G. R. No.

180989               February 7, 2012 Philippines; and, second, to contribute to accelerating

the delivery of public services and improving
GUALBERTO J. DELA LLANA, Petitioner,  government operations by curbing undue bureaucratic
vs. red tape and ensuring facilitation of government
THE CHAIRPERSON, COMMISSION ON AUDIT, transactions, while continuing to preserve and protect
THE EXECUTIVE SECRETARY and THE the integrity of these transactions. Concomitant to the
NATIONAL TREASURER, Respondents. lifting of the pre-audit of government transactions of
NGAs and GOCCs, Circular No. 89-299 mandated the
DECISION installation, implementation and monitoring of an
adequate internal control system, which would be the
direct responsibility of the government agency head.
SERENO, J.:
Circular No. 89-299 further provided that the pre-audit
This is a Petition for Certiorari under Rule 65 of the
activities retained by the COA as therein outlined shall
Rules of Court with a prayer for the issuance of a
no longer be a pre-requisite to the implementation or
temporary restraining order pursuant to Section 7,
prosecution of projects and the payment of claims.
Article IX-D of the 1987 Constitution, seeking to annul
The COA aimed to henceforth focus its efforts on the
and set aside Commission on Audit (COA) Circular
post-audit of financial accounts and transactions, as
No. 89-299, which lifted its system of pre-audit of
well as on the assessment and evaluation of the
government financial transactions.
adequacy and effectivity of the agency’s fiscal control
process. However, the circular did not include the
Statement of the Facts and the Case financial transactions of local government units
(LGUs) in its coverage.
On 26 October 1982, the COA issued Circular No. 82-
195, lifting the system of pre-audit of government The COA later issued Circular No. 94-006 on 17
financial transactions, albeit with certain exceptions. February 1994 and Circular No. 95-006 on 18 May
The circular affirmed the state policy that all resources 1995. Both circulars clarified and expanded the total
of the government shall be managed, expended or lifting of pre-audit activities on all financial
utilized in accordance with law and regulations, and transactions of NGAs, GOCCs, and LGUs. The
safeguarded against loss or wastage through illegal or remaining audit activities performed by COA auditors
improper disposition, with a view to ensuring would no longer be pre-requisites to the
efficiency, economy and effectiveness in the implementation or prosecution of projects, perfection
operations of government. Further, the circular of contracts, payment of claims, and/or approval of
emphasized that the responsibility to ensure faithful applications filed with the agencies.
1 

adherence to the policy rested directly with the chief

or head of the government agency concerned. The
It also issued COA Circular No. 89-299, as amended
circular was also designed to further facilitate or
by Circular No. 89-299A, which in Section 3.2
expedite government transactions without impairing
provides:
their integrity.
3.2 Whenever circumstances warrant, however, such
After the change in administration due to the February
as where the internal control system of a government
1986 revolution, grave irregularities and anomalies in
agency is inadequate, This Commission may
the government’s financial transactions were
reinstitute pre-audit or adopt such other control
uncovered. Hence, on 31 March 1986, the COA
measures, including temporary or special pre-audit,
issued Circular No. 86-257, which reinstated the pre-
as are necessary and appropriate to protect the funds
audit of selected government transactions. The
and property of the agency.
selective pre-audit was perceived to be an effective,
although temporary, remedy against the said
anomalies. On 18 May 2009, COA issued Circular No. 2009-002,
which reinstituted the selective pre-audit of
government transactions in view of the rising incidents
With the normalization of the political system and the
of irregular, illegal, wasteful and anomalous
stabilization of government operations, the COA saw
disbursements of huge amounts of public funds and
it fit to issue Circular No. 89-299, which again lifted
disposals of public property. Two years later, or on 22
the pre-audit of government transactions of national
July 2011, COA issued Circular No. 2011-002, which
government agencies (NGAs) and government-owned
lifted the pre-audit of government transactions
or -controlled corporations (GOCCs). The rationale for
implemented by Circular No. 2009-002. In its
the circular was, first, to reaffirm the concept that
assessment, subsequent developments had shown
fiscal responsibility resides in management as
heightened vigilance of government agencies in
embodied in the Government Auditing Code of the
safeguarding their resources. January 2009, petitioner, substituted by his
daughter, filed his Memorandum.
7  8 

In the interregnum, on 3 May 2006, petitioner dela

Llana wrote to the COA regarding the The main issue for our resolution in this Petition is
recommendation of the Senate Committee on whether or not petitioner is entitled to the
Agriculture and Food that the Department of extraordinary writ of certiorari.
Agriculture set up an internal pre-audit service. On 18
July 2006, the COA replied to petitioner, informing him Procedural Issues
of the prior issuance of Circular No. 89-299. The 18
2 

July 2006 reply of the COA further emphasized the Technical Defects of the Petition
required observance of Administrative Order No. 278
dated 8 June 1992, which directed the strengthening
Public respondents correctly allege that petitioner
of internal control systems of government offices
failed to attach a certified true copy of the assailed
through the installation of an internal audit service
Order, and that the Petition lacked a statement of
(IAS).
material dates. In view, however, of the serious
matters dealt with in this Petition, this Court opts to
On 15 January 2008, petitioner filed this Petition for tackle the merits thereof with least regard to
Certiorari under Rule 65. He alleges that the pre-audit technicalities. A perusal of the Petition shows that the
duty on the part of the COA cannot be lifted by a mere factual background of the case, although brief, has
circular, considering that pre-audit is a constitutional been sufficiently alleged by petitioner.
mandate enshrined in Section 2 of Article IX-D of the
1987 Constitution. He further claims that, because of
3 

Standing
the lack of pre-audit by COA, serious irregularities in
government transactions have been committed, such
as the ₱728-million fertilizer fund scam, irregularities This Petition has been filed as a taxpayer’s suit.
in the ₱550-million call center laboratory project of the
Commission on Higher Education, and many others. A taxpayer is deemed to have the standing to raise a
constitutional issue when it is established that public
On 22 February 2008, public respondents filed their funds from taxation have been disbursed in alleged
Comment on the Petition. They argue therein that the
4  contravention of the law or the Constitution. Petitioner
9 

Petition must be dismissed, as it is not proper for a claims that the issuance of Circular No. 89-299 has
petition for certiorari, considering that (1) there is no led to the dissipation of public funds through
allegation showing that the COA exercised judicial or numerous irregularities in government financial
quasi-judicial functions when it promulgated Circular transactions. These transactions have allegedly been
No. 89-299; and (2) there is no convincing explanation left unchecked by the lifting of the pre-audit performed
showing how the promulgation of the circular was by COA, which, petitioner argues, is its Constitutional
done with grave abuse of discretion. Further, the duty. Thus, petitioner has standing to file this suit as a
Petition is allegedly defective in form, in that there is taxpayer, since he would be adversely affected by the
no discussion of material dates as to when petitioner illegal use of public money.
received a copy of the circular; there is no factual
background of the case; and petitioner failed to attach Propriety of Certiorari
a certified true copy of the circular. In any case, public
respondents aver that the circular is valid, as the COA Public respondents aver that a petition for certiorari is
has the power under the 1987 Constitution to not proper in this case, as there is no indication that
promulgate it. the writ is directed against a tribunal, a board, or an
officer exercising judicial or quasi-judicial functions, as
On 9 May 2008, petitioner filed his Reply to the
5  required in certiorari proceedings. Conversely,
10 

Comment. petitioner for his part claims that certiorari is proper

under Section 7, Article IX-A of the 1987 Constitution,
On 17 June 2008, this Court resolved to require the which provides in part:
parties to submit their respective memoranda. On 12
September 2008, public respondents submitted their Section 7. x x x. Unless otherwise provided by this
Memorandum. On 15 September 2008, Amethya dela
6  Constitution or by law, any decision, order, or ruling of
Llana-Koval, daughter of petitioner, manifested to the each Commission may be brought to the Supreme
Court his demise on 8 July 2008 and moved that she Court on certiorari by the aggrieved party within thirty
be allowed to continue with the Petition and substitute days from receipt of a copy thereof.
for him. Her motion for substitution was granted by
this Court in a Resolution dated 7 October 2008. On 5 Petitioner is correct in that decisions and orders of the
COA are reviewable by the court via a petition for includes the duty to conduct pre-audit.  A pre-audit is
1âwphi1

certiorari. However, these refer to decisions and an examination of financial transactions before their
orders which were rendered by the COA in its quasi- consumption or payment. It seeks to determine
17 

judicial capacity. Circular No. 89-299 was whether the following conditions are present: (1) the
promulgated by the COA under its quasi-legislative or proposed expenditure complies with an appropriation
rule-making powers. Hence, Circular No. 89-299 is law or other specific statutory authority; (2) sufficient
not reviewable by certiorari. funds are available for the purpose; (3) the proposed
expenditure is not unreasonable or extravagant, and
Neither is a petition for prohibition appropriate in this the unexpended balance of appropriations to which it
case. A petition for prohibition is filed against any will be charged is sufficient to cover the entire amount
tribunal, corporation, board, or person — whether of the expenditure; and (4) the transaction is approved
exercising judicial, quasi-judicial, or ministerial by the proper authority and the claim is duly
functions — who has acted without or in excess of supported by authentic underlying evidence. It could,
18 

jurisdiction or with grave abuse of discretion, and the among others, identify government agency
petitioner prays that judgment be rendered, transactions that are suspicious on their face prior to
commanding the respondent to desist from further their implementation and prior to the disbursement of
proceeding in the action or matter specified in the funds.
petition. However, prohibition only lies against judicial
11 

or ministerial functions, but not against legislative or Petitioner anchors his argument on Section 2 of
quasi-legislative functions. 12 
Article IX-D of the 1987 Constitution, which reads as
follows:
Nonetheless, this Court has in the past seen fit to step
in and resolve petitions despite their being the subject Section 2.
of an improper remedy, in view of the public importa
nce of the issues raised therein (transcedental 1. The Commission on Audit shall have the
importance). In this case, petitioner avers that the
13 
power, authority, and duty to examine, audit,
conduct of pre-audit by the COA could have and settle all accounts pertaining to the
prevented the occurrence of the numerous alleged revenue and receipts of, and expenditures or
irregularities in government transactions that involved uses of funds and property, owned or held in
substantial amounts of public money. This is a serious trust by, or pertaining to, the Government, or
allegation of a grave deficiency in observing a any of its subdivisions, agencies, or
constitutional duty if proven correct. instrumentalities, including government-owned
or controlled corporations with original
This Court can use its authority to set aside errors of charters, and on a post- audit basis:
practice or technicalities of procedure, including the
aforementioned technical defects of the Petition, and a. constitutional bodies, commissions
resolve the merits of a case with such serious and offices that have been granted
allegations of constitutional breach. Rules of fiscal autonomy under this
procedure were promulgated to provide guidelines for Constitution;
the orderly administration of justice, not to shackle the
hand that dispenses it. 14 
b. autonomous state colleges and
universities;
Substantive Issues
c. other government-owned or
The 1987 Constitution has made the COA the controlled corporations and their
guardian of public funds, vesting it with broad powers subsidiaries; and
over all accounts pertaining to government revenues
and expenditures and the use of public funds and d. such non-governmental entities
property, including the exclusive authority to define receiving subsidy or equity, directly or
the scope of its audit and examination; to establish indirectly, from or through the
the techniques and methods for the review; and to Government, which are required by
promulgate accounting and auditing rules and law or the granting institution to submit
regulations. Its exercise of its general audit power is
15 
to such audit as a condition of subsidy
among the constitutional mechanisms that give life to or equity. However, where the internal
the check and balance system inherent in our form of control system of the audited agencies
government. 16 
is inadequate, the Commission may
adopt such measures, including
Petitioner claims that the constitutional duty of COA temporary or special pre-audit, as are
 necessary and appropriate to correct WE CONCUR:
the deficiencies. It shall keep the
general accounts of the Government
and, for such period as may be
provided by law, preserve the
vouchers and other supporting papers
pertaining thereto.

2. The Commission shall have exclusive

authority, subject to the limitations in this
Article, to define the scope of its audit and
examination, establish the techniques and
methods required therefor, and promulgate
accounting and auditing rules and regulations,
including those for the prevention and
disallowance of irregular, unnecessary,
excessive, extravagant, or unconscionable
expenditures or uses of government funds
and properties. (Emphasis supplied)

He claims that under the first paragraph quoted

above, government transactions must undergo a pre-
audit, which is a COA duty that cannot be lifted by a
mere circular.

We find for public respondents.

Petitioner’s allegations find no support in the

aforequoted Constitutional provision. There is nothing
in the said provision that requires the COA to conduct
a pre-audit of all government transactions and for all
government agencies. The only clear reference to a
pre-audit requirement is found in Section 2, paragraph
1, which provides that a post-audit is mandated for
certain government or private entities with state
subsidy or equity and only when the internal control
system of an audited entity is inadequate. In such a
situation, the COA may adopt measures, including a
temporary or special pre-audit, to correct the
deficiencies.

Hence, the conduct of a pre-audit is not a mandatory

duty that this Court may compel the COA to perform.
This discretion on its part is in line with the
constitutional pronouncement that the COA has the
exclusive authority to define the scope of its audit and
examination. When the language of the law is clear
and explicit, there is no room for interpretation, only
application. Neither can the scope of the provision be
19 

unduly enlarged by this Court.

WHEREFORE, premises considered, the Petition is

DISMISSED.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice
 supervening events that occurred since the issuance
of the TRO. These events were the holding of the GA
G.R. No. 185053               February 15, 2012 on 26 November 2005 and the election of new
officers. Thus, on 8 December 2005, the RTC, finding
EUSTAQUIO CANDARI, Jr., RENE ESPULGAR, the provisional remedy of preliminary injunction to be
EDITHA DACIA, GONZALO PALMA, Jr., ANDRES moot, issued a Resolution denying respondents’
3 

DE LEON, ARNOLD BAJAR, PETER BAYBAYAN, prayer for the issuance of a writ of preliminary
EUGENIO TABURNO, MATEO ALOJADO, injunction and quashing the TRO previously issued.
ANSELMO LIGTAS, FLORITA BULANGIS,
ADELAIDA PENIG, ATTY. LEVI SALIGUMBA, Thereafter, respondents filed an Amended
EDITHA JIMENA, CYNTHIA BELARMA and Complaint seeking to enjoin petitioners from
4 

ANTONIA BANTING, Petitioners,  assuming office and exercising the powers conferred

vs. on directors of DARBCI.
ROLAND DONASCO, LIDIO VILLA, RENE GAID,
PEPITO GUMBAN, OSCAR ANDRADA, ROMEO On 29 November 2006, the RTC issued an Omnibus
CASTONES, ROSEMARY CORDOVA, GLORIA Order dismissing the Amended Complaint, ruling as
5 

MATULLANO, PONCIANO ABALOS, RESTITUTO follows:

BATIANCILLA, Respondents.
Gauging from these allegations that plaintiffs were
DECISION incumbent BOD members of DARBCI and did not
consent or sanctioned (sic) the 26 November 2005
SERENO, J.: BOD election, which was conducted despite the
existing TRO, do not confer a right unto them that
Respondents were members of the board of directors ought to be respected by defendants (sic); neither the
of Dolefil Agrarian Reform Beneficiaries Cooperative, Tripartite Agreement among Board I, II, and III help
Incorporated (DARBCI). They were elected into office their cause. The supervening factors, i.e. the General
on 12 July 1998 and their terms should have ended Assembly Meeting and the Election of Officers by the
on 12 July 2000. However, they continued to occupy overriding majority members of DARBCI then
their positions in a holdover capacity until the occurring (sic) rendered these averments insignificant.
controversy in this case arose. Resultantly, no delict or wrong can be imputed to the
latter owing to said factors which were duly
established during the hearings and found by the
On 23 November 2005, respondents instituted Civil Honorable Court.
Case No. 471-05 at Branch 39 of the Regional Trial
Court (RTC) of Polomolok, South Cotabato to enjoin
petitioners from holding a special general assembly x x x           x x x          x x x
(GA) and an election of officers. Respondents alleged
that the process by which the GA had been called In sum, the Amended Complaint and the evidence
was not in accordance with Sec. 35 of Republic Act thus far adduced disclose that plaintiffs have neither
No. 6938, otherwise known as the Cooperative Code legal right nor the requisite personality to file an action
of the Philippines. for nullification of the assailed DARBCI General
Assembly and Election. Hence, their aforesaid
On 24 November 2005, the RTC issued a 72-hour Complaint is doomed for dismissal for failing to state a
Temporary Restraining Order (TRO) to restrain cause of action. The Court must hold, as it holds now,
petitioners from holding the GA. 1 
that the present action cannot pass muster on sheer
dictates of law and equity. (Emphasis supplied.)
Despite the TRO, but without the participation of
petitioners, 5,910 members – or 78.68% of the total Respondents thereafter filed a Petition for
membership of the cooperative – went through with Certiorari with the Court of Appeals (CA) docketed as
6 

the GA on 26 November 2005 and elected petitioners CA-G.R. SP No. 01851. They contended that the trial
in absentia as new members of the board. court committed grave abuse of discretion when it
considered the evidence adduced in the hearing for
the issuance of a writ of preliminary injunction. They
On 1 December 2005, the TRO was extended to its further alleged that the Amended Complaint clearly
full term of twenty (20) days from issuance. 2 
stated a cause of action based on their rights as the
then incumbent officers of DARBCI.
The trial court considered the evidence adduced
during the hearing on the application for a writ of The CA rendered the assailed Decision, which 7 

preliminary injunction. In addition, it considered the remanded the case to the RTC for further
proceedings. In allowing the Petition, the appellate The incumbent members of the Board of Directors
court stated that the "lingering organization and and various committees who were elected into office
leadership crisis in the DARBCI undermines the during the November 25, 2005 special elections shall
cooperative’s viability to pursue its objectives." It continue to serve the cooperative until their
considered the case to be one that might become an successors have been elected and qualified into
impediment to the State’s land reform program in office. They shall be deemed to have served for one
Polomolok. Thus, it took cognizance of the case in the term only;
interest of public welfare and the advancement of
public policy. The Court notes that the 25 November 2005 GA
meeting referred to by the by-laws was actually held
The CA found that respondents’ Amended Complaint on 26 November 2005. However, considering the
contained sufficient allegations that constituted a clear language and intent of the provision, the Court
cause of action against herein petitioners. Thus, it deems the date contained in the Amended By-laws to
held that the RTC gravely abused its discretion when be a mere typographical error.
the latter dismissed the case for lack of cause of
action. On 29 March 2009, the second meeting was held
whereby a new set of officers was elected by the GA.
Petitioners moved for reconsideration, but this motion
was subsequently denied. 8 
In Joya v. Presidential Commission on Good
Government, we said:
12 

Petitioners now come before this Court, alleging that

the CA erred in allowing respondents’ Petition for For a court to exercise its power of adjudication, there
Certiorari despite being the wrong remedy. They also must be an actual case or controversy — one which
insist that the CA erred in ruling that a cause of action involves a conflict of legal rights, an assertion of
existed despite the fact that the issue had become opposite legal claims susceptible of judicial resolution;
moot. They allege that the trial court was not limited to the case must not be moot or academic or based on
the allegations of the Complaint, but it may also extra-legal or other similar considerations not
consider the evidence presented during the hearing cognizable by a court of justice. A case becomes
for the issuance of the writ of preliminary injunction. moot and academic when its purpose has become
Finally, they contend that the CA misappreciated the stale, such as the case before us.
facts of the case in stating that the issue was with
regard to the implementation of the agrarian reform Sec. 34 of the Cooperative Code states that the
program, when it was merely the legality of the highest policy-making body of the cooperative is the
elections of the new board of directors. GA, to wit:

Respondents, in their Comment, assert that their

9 
The general assembly shall be the highest policy-
Amended Complaint stated a cause of action, and making body of the cooperative and shall exercise
that the trial court should have conducted a trial on such powers as are stated in this Code, in the articles
the merits instead of dismissing the Amended of cooperation and in the by-laws of the cooperative.
Complaint, especially when petitioners failed to The general assembly shall have the following
present proof that a GA and an election of officers exclusive powers which cannot be delegated:
were held on 26 November 2005. Finally, respondents
contend that the RTC’s act of dismissing the case was
(1) To determine and approve amendments to
in grave abuse of discretion, reviewable via their
the articles of cooperation and by-laws;
Petition for Certiorari.
(2) To elect or appoint the members of the
On 8 July 2009, petitioners filed a Reply to
board of directors, and to remove them for
respondents’ Comment. They informed this Court
10 

cause;
that two more GA meetings had been held.
(3) To approve developmental plans of the
During the 20 December 2008 meeting, the GA
cooperative; and
ratified the Amended Articles of Cooperation and the
Amended By-Laws of the cooperative. A Certificate of
Registration to that effect was issued by Cooperative (4) Such other matters requiring a two-thirds
Development Authority (CDA) on 9 February 2009. 11  (2/3) vote of all members of the general
assembly, as provided in this Code.
Article X, Sec. 1 of the Amended By-Laws provides:
In the present case, the GA has clearly expressed its
intentions through the subsequent amendment of when they filed the case with the RTC, as their terms
DARBCI’s Articles of Cooperation and By-Laws and had ended on 12 July 2000. Undoubtedly, it would be
through the election of new officers. a futile attempt and a waste of resources to remand
the case to the trial court. There would be nothing left
In Kilusang Bayan sa Paglilingkod ng mga Magtitinda for the trial court to execute, should respondents be
ng Bagong Pamilihang Bayan ng Muntinlupa, Inc. successful in their Petition.
(KBMBPM) v. Dominguez, we denied the Petition on
13 

the ground that the issue had become moot and It is clear from the Omnibus Order of the RTC that it
academic considering that the GA of KBMPM already dismissed the Amended Complaint because the
elected a new set of officers, even if it was found that supervening events had rendered the case moot
the right to due process of petitioners therein were through the voluntary act of the GA – as the highest
clearly violated, to wit: policy-making body of the cooperative – to declare the
contested positions vacant and to elect a new set of
In the instant case, there was no notice of a hearing officers. As a consequence, respondents no longer
on the alleged petition of the general membership of had the personality or the cause of action to maintain
the KBMBPM; there was, as well, not even a the case against petitioners herein. Thus, the RTC
semblance of a hearing. The Order was based solely committed no error when it dismissed the case.
on an alleged petition by the general membership of
the KBMBPM. There was then a clear denial of due WHEREFORE, in view of the foregoing, the Petition is
process. It is most unfortunate that it was done after hereby GRANTED. The assailed Court of Appeals
democracy was restored through the peaceful people Decision in CA-G.R. SP No. 01851 dated 6 August
revolt at EDSA and the overwhelming ratification of a 2008 and the Resolution dated 14 October 2008 are
new Constitution thereafter, which preserves for the hereby REVERSED and SET ASIDE. The Order
generations to come the gains of that historic struggle dated 21 November 2006 issued by Branch 39 of the
which earned for this Republic universal admiration. Regional Trial Court of Polomolok, South Cotabato is
hereby AFFIRMED and REINSTATED.
If there were genuine grievances against petitioners,
the affected members should have timely raise (sic) SO ORDERED.
these issues in the annual general assembly or in a
special general assembly. Or, if such a remedy would MARIA LOURDES P. A. SERENO
be futile for some reason or another, judicial recourse Associate Justice
was available.
WE CONCUR:
Be that as it may, petitioners cannot, however, be
restored to their positions.  Their terms expired in
1âwphi1

1989, thereby rendering their prayer for reinstatement

moot and academic. Pursuant to Section 13 of the by-
laws, during the election at the first annual general
assembly after registration, one-half plus one (4) of
the directors obtaining the highest number of votes
shall serve for two years, and the remaining directors
(3) for one year; thereafter, all shall be elected for a
term of two years. Hence, in 1988, when the board
was disbanded, there was a number of directors
whose terms would have expired the next year (1989)
and a number whose terms would have expired two
years after (1990). Reversion to the status quo
preceding October 1988 would not be feasible in view
of this turn of events. Besides, elections were held in
1990 and 1991. The affairs of the cooperative are
presently being managed by a new board of directors
duly elected in accordance with the cooperative's by-
laws.

In the present case, the replacement of respondents

with other members of the board was willed by the
GA. It is also important to note that respondents were
only occupying their positions in a holdover capacity
 Philippines (Senate), through the Senate Committee
on Government Corporations and Public Enterprises,
conducted an inquiry in aid of legislation on the
reported excessive salaries, allowances, and other
G.R. No. 193978               February 28, 2012 benefits of GOCCs and government financial
institutions (GFIs). 6 

JELBERT B. GALICTO, Petitioner, 
vs. Based on its findings that "officials and governing
H.E. PRESIDENT BENIGNO SIMEON C. AQUINO boards of various [GOCCs] and [GFIs] x x x have
III, in his capacity as President of the Republic of been granting themselves unwarranted allowances,
the Philippines; ATTY. PAQUITO N. OCHOA, JR., bonuses, incentives, stock options, and other benefits
in his capacity as Executive Secretary; and [as well as other] irregular and abusive practices," the
7 

FLORENCIO B. ABAD, in his capacity as Secretary Senate issued Senate Resolution No. 17 "urging the
of the Department of Budget and President to order the immediate suspension of the
Management, Respondents. unusually large and apparently excessive allowances,
bonuses, incentives and other perks of members of
the governing boards of [GOCCs] and [GFIs]." 8 

RESOLUTION
Heeding the call of Congress, Pres. Aquino, on
BRION, J.:
September 8, 2010, issued EO 7, entitled "Directing
the Rationalization of the Compensation and Position
Before us is a Petition for Certiorari and Prohibition Classification System in the [GOCCs] and [GFIs], and
with Application for Writ of Preliminary Injunction for Other Purposes." EO 7 provided for the guiding
and/or Temporary Restraining Order, seeking to
1 
principles and framework to establish a fixed
nullify and enjoin the implementation of Executive compensation and position classification system for
Order No. (EO) 7 issued by the Office of the President GOCCs and GFIs. A Task Force was also created to
on September 8, 2010. Petitioner Jelbert B. Galicto review all remunerations of GOCC and GFI
asserts that EO 7 is unconstitutional for having been employees and officers, while GOCCs and GFIs were
issued beyond the powers of the President and for ordered to submit to the Task Force information
being in breach of existing laws. regarding their compensation. Finally, EO 7 ordered
(1) a moratorium on the increases in the salaries and
The petitioner is a Filipino citizen and an employee of other forms of compensation, except salary
the Philippine Health Insurance Corporation adjustments under EO 8011 and EO 900, of all GOCC
(PhilHealth). He is currently holding the position of
2 
and GFI employees for an indefinite period to be set
Court Attorney IV and is assigned at the PhilHealth by the President, and (2) a suspension of all
9 

Regional Office CARAGA. 3 

allowances, bonuses and incentives of members of
the Board of Directors/Trustees until December 31,
Respondent Benigno Simeon C. Aquino III is the 2010.10 

President of the Republic of the Philippines (Pres.

Aquino); he issued EO 7 and has the duty of EO 7 was published on September 10, 2010. It took
11 

implementing it. Respondent Paquito N. Ochoa, Jr. is effect on September 25, 2010 and precluded the
the incumbent Executive Secretary and, as the alter Board of Directors, Trustees and/or Officers of
ego of Pres. Aquino, is tasked with the GOCCs from granting and releasing bonuses and
implementation of EO 7. Respondent Florencio B. allowances to members of the board of directors, and
Abad is the incumbent Secretary of the Department of from increasing salary rates of and granting new or
Budget and Management (DBM) charged with the additional benefits and allowances to their employees.
implementation of EO 7. 4 

The Petition
The Antecedent Facts
The petitioner claims that as a PhilHealth employee,
On July 26, 2010, Pres. Aquino made public in his first he is affected by the implementation of EO 7, which
State of the Nation Address the alleged excessive was issued with grave abuse of discretion amounting
allowances, bonuses and other benefits of Officers to lack or excess of jurisdiction, based on the
and Members of the Board of Directors of the Manila following arguments:
Waterworks and Sewerage System – a government
owned and controlled corporation (GOCC) which has I.
been unable to meet its standing
obligations. Subsequently, the Senate of the
5 

EXECUTIVE ORDER NO. 7 IS NULL AND

VOID FOR LACK OF LEGAL BASIS DUE TO III.
THE FOLLOWING GROUNDS:
EXECUTIVE ORDER NO. 7 IS BY
A. P.D. 985 IS NOT APPLICABLE AS SUBSTANCE A LAW, WHICH IS A
BASIS FOR EXECUTIVE ORDER DEROGATION OF CONGRESSIONAL
NO. 7 BECAUSE THE PREROGATIVE AND IS THEREFORE
GOVERNMENT-OWNED AND UNCONSTITUTIONAL.
CONTROLLED CORPORATIONS
WERE SUBSEQUENTLY GRANTED IV.
THE POWER TO FIX
COMPENSATION LONG AFTER THE ACTS OF SUSPENDING AND
SUCH POWER HAS BEEN IMPOSING MORATORIUM ARE ULTRA
REVOKED BY P.D. 1597 AND R.A. VIRES ACTS BECAUSE J.R. NO. 4 DOES
6758. NOT EXPRESSLY AUTHORIZE THE
PRESIDENT TO EXERCISE SUCH
B. THE GOVERNMENT-OWNED POWERS.
AND CONTROLLED
CORPORATIONS DO NOT NEED TO V.
HAVE ITS COMPENSATION PLANS,
RATES AND POLICIES REVIEWED
EXECUTIVE ORDER NO. 7 IS AN INVALID
BY THE DBM AND APPROVED BY
ISSUANCE BECAUSE IT HAS NO
THE PRESIDENT BECAUSE P.D.
SUFFICIENT STANDARDS AND IS
1597 REQUIRES ONLY THE GOCCs
THEREFORE ARBITRARY,
TO REPORT TO THE OFFICE TO
UNREASONABLE AND A VIOLATION OF
THE PRESIDENT THEIR
SUBSTANTIVE DUE PROCESS.
COMPENSATION PLANS AND
RATES BUT THE SAME DOES NOT
GIVE THE PRESIDENT THE POWER VI.
OF CONTROL OVER THE FISCAL
POWER OF THE GOCCs. EXECUTIVE ORDER NO. 7 INVOLVES THE
DETERMINATION AND DISCRETION AS TO
C. J.R. NO. 4, [SERIES] 2009 IS NOT WHAT THE LAW SHALL BE AND IS
APPLICABLE AS LEGAL BASIS THEREFORE INVALID FOR ITS
BECAUSE IT HAD NOT RIPENED USURPATION OF LEGISLATIVE POWER.
INTO X X X LAW, THE SAME NOT
HAVING BEEN PUBLISHED. VII.

D. ASSUMING ARGUENDO THAT CONSISTENT WITH THE DECISION OF

J.R. NO. 1, S. 2004 (sic) AND J.R. 4, THE SUPREME COURT IN PIMENTEL V.
S. 2009 ARE VALID, STILL THEY AGUIRRE CASE, EXECUTIVE ORDER NO. 7
ARE NOT APPLICABLE AS LEGAL IS ONLY DIRECTORY AND NOT
BASIS BECAUSE THEY ARE NOT MANDATORY. 12 

LAWS WHICH MAY VALIDLY

DELEGATE POWER TO THE The Case for the Respondents
PRESIDENT TO SUSPEND THE
POWER OF THE BOARD TO FIX On December 13, 2010, the respondents filed their
COMPENSATION. Comment. They pointed out the following procedural
defects as grounds for the petition’s dismissal: (1) the
II. petitioner lacks locus standi; (2) the petitioner failed to
attach a board resolution or secretary’s certificate
EXECUTIVE ORDER NO. 7 IS INVALID FOR authorizing him to question EO 7 in behalf of
DIVESTING THE BOARD OF DIRECTORS PhilHealth; (3) the petitioner’s signature does not
OF [THE] GOCCS OF THEIR POWER TO indicate his PTR Number, Mandatory Continuing
FIX THE COMPENSATION, A POWER Legal Education (MCLE) Compliance Number and
WHICH IS A LEGISLATIVE GRANT AND Integrated Bar of the Philippines (IBP) Number; (4)
WHICH COULD NOT BE REVOKED OR the jurat of the Verification and Certification of Non-
MODIFIED BY AN EXECUTIVE FIAT. Forum Shopping failed to indicate a valid identification
card as provided under A.M. No. 02-8-13-SC; (5) the
President should be dropped as a party respondent resolve to dismiss this petition for certiorari.
as he is immune from suit; and (6) certiorari is not
applicable to this case.13 
First, the respondents neither acted in any judicial or
quasi-judicial capacity nor arrogated unto themselves
The respondents also raised substantive defenses to any judicial or quasi-judicial prerogatives. A petition
support the validity of EO 7. They claim that the for certiorari under Rule 65 of the 1997 Rules of Civil
President exercises control over the governing boards Procedure is a special civil action that may be invoked
of the GOCCs and GFIs; thus, he can fix their only against a tribunal, board, or officer exercising
compensation packages. In addition, EO 7 was issued judicial or quasi-judicial functions.
in accordance with law for the purpose of controlling
the grant of excessive salaries, allowances, incentives Section 1, Rule 65 of the 1997 Rules of Civil
and other benefits to GOCC and GFI employees. Procedure provides:
They also advocate the validity of Joint Resolution
(J.R.) No. 4, which they point to as the authority for SECTION 1. Petition for certiorari. — When any
issuing EO 7. 14 
tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its
Meanwhile, on June 6, 2011, Congress enacted or his jurisdiction, or with grave abuse of discretion
Republic Act (R.A.) No. 10149, otherwise known as
15 
amounting to lack or excess of jurisdiction, and there
the "GOCC Governance Act of 2011." Section 11 of is no appeal, or any plain, speedy, and adequate
RA 10149 expressly authorizes the President to fix remedy in the ordinary course of law, a person
the compensation framework of GOCCs and GFIs. aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and
The Court’s Ruling praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or
We resolve to DISMISS the petition for its patent officer, and granting such incidental reliefs as law and
formal and procedural infirmities, and for having been justice may require.
mooted by subsequent events.
Elsewise stated, for a writ of certiorari to issue, the
A. Certiorari is not the proper remedy. following requisites must concur: (1) it must be
directed against a tribunal, board, or officer exercising
Under the Rules of Court, petitions for Certiorari and judicial or quasi-judicial functions; (2) the tribunal,
Prohibition are availed of to question judicial, quasi- board, or officer must have acted without or in excess
judicial and mandatory acts. Since the issuance of an of jurisdiction or with grave abuse of discretion
EO is not judicial, quasi-judicial or a mandatory act, a amounting [to] lack or excess of jurisdiction; and (3)
petition for certiorari and prohibition is an incorrect there is no appeal or any plain, speedy, and adequate
remedy; instead a petition for declaratory relief under remedy in the ordinary course of law.
Rule 63 of the Rules of Court, filed with the Regional
Trial Court (RTC), is the proper recourse to assail the A respondent is said to be
validity of EO 7: exercising judicial function where he has the power to
determine what the law is and what the legal rights of
Section 1. Who may file petition. Any person the parties are, and then undertakes to determine
interested under a deed, will, contract or other written these questions and adjudicate upon the rights of the
instrument, whose rights are affected by a statute, parties.
executive order or regulation, ordinance, or any other
governmental regulation may, before breach or Quasi-judicial function, on the other hand, is "a term
violation thereof, bring an action in the appropriate which applies to the actions, discretion, etc., of public
Regional Trial Court to determine any question of administrative officers or bodies … required to
construction or validity arising, and for a declaration of investigate facts or ascertain the existence of facts,
his rights or duties, thereunder. (Emphases ours.) hold hearings, and draw conclusions from them as a
basis for their official action and to exercise discretion
Liga ng mga Barangay National v. City Mayor of of a judicial nature."
Manila is a case in point. In Liga, we dismissed the
16  17 

petition for certiorari to set aside an EO issued by a Before a tribunal, board, or officer may exercise
City Mayor and insisted that a petition for declaratory judicial or quasi-judicial acts, it is necessary that there
relief should have been filed with the RTC. We be a law that gives rise to some specific rights of
painstakingly ruled: persons or property under which adverse claims to
such rights are made, and the controversy ensuing
After due deliberation on the pleadings filed, we therefrom is brought before a tribunal, board, or officer
clothed with power and authority to determine the law quasi-judicial functions.
and adjudicate the respective rights of the contending
parties. While we have recognized in the past that we can
exercise the discretion and rulemaking authority we
The respondents do not fall within the ambit are granted under the Constitution, and set aside
20 

of tribunal, board, or officer exercising judicial or procedural considerations to permit parties to bring a
quasi-judicial functions. As correctly pointed out by suit before us at the first instance through certiorari
the respondents, the enactment by the City Council of and/or prohibition, this liberal policy remains to be an
21 

Manila of the assailed ordinance and the issuance by exception to the general rule, and thus, has its limits.
respondent Mayor of the questioned executive order In Concepcion v. Commission on Elections
were done in the exercise of legislative and executive (COMELEC), we emphasized the importance of
22 

functions, respectively, and not of judicial or quasi- availing of the proper remedies and cautioned against
judicial functions. On this score alone, certiorari will the wrongful use of certiorari in order to assail the
not lie. quasi-legislative acts of the COMELEC, especially by
the wrong party. In ruling that liberality and the
Second, although the instant petition is styled as a transcendental doctrine cannot trump blatant
petition for certiorari, in essence, it seeks the disregard of procedural rules, and considering that the
declaration by this Court of the unconstitutionality or petitioner had other available remedies (such as a
illegality of the questioned ordinance and executive petition for declaratory relief with the appropriate RTC
order. It, thus, partakes of the nature of a petition for under the terms of Rule 63 of the Rules of Court), as
declaratory relief over which this Court has only in this case, we categorically ruled:
appellate, not original, jurisdiction. Section 5, Article
VIII of the Constitution provides: The petitioner’s unusual approaches and use of Rule
65 of the Rules of Court do not appear to us to be the
Sec. 5. The Supreme Court shall have the following result of any error in reading Rule 65, given the way
powers: the petition was crafted. Rather, it was a backdoor
approach to achieve what the petitioner could not
(1) Exercise original jurisdiction over cases directly do in his individual capacity under Rule 65. It
affecting ambassadors, other public ministers was, at the very least, an attempted bypass of other
and consuls, and over petitions for certiorari, available, albeit lengthier, modes of review that the
prohibition, mandamus, quo warranto, and Rules of Court provide. While we stop short of
habeas corpus. concluding that the petitioner’s approaches constitute
an abuse of process through a manipulative reading
and application of the Rules of Court, we nevertheless
(2) Review, revise, reverse, modify, or affirm
resolve that the petition should be dismissed for its
on appeal or certiorari as the law or the Rules
blatant violation of the Rules. The transgressions
of Court may provide, final judgments and
alleged in a petition, however weighty they may
orders of lower courts in:
sound, cannot be justifications for blatantly
disregarding the rules of procedure, particularly when
(a) All cases in which remedial measures were available under these same
the constitutionality or validity of any rules to achieve the petitioner’s objectives. For our
treaty, international or executive part, we cannot and should not – in the name of
agreement, law, presidential decree, liberality and the "transcendental importance" doctrine
proclamation, order, – entertain these types of petitions. As we held in the
instruction, ordinance, or regulation is very recent case of Lozano, et al. vs. Nograles, albeit
in question. (Italics supplied). from a different perspective, our liberal approach has
its limits and should not be abused. [emphasis
23 

As such, this petition must necessar[ily] fail, as this supplied]

Court does not have original jurisdiction over a
petition for declaratory relief even if only questions of B. Petitioner lacks locus standi.
law are involved. 18 

"Locus standi or legal standing has been defined as a

Likewise, in Southern Hemisphere Engagement personal and substantial interest in a case such that
Network, Inc. v. Anti Terrorism Council, we similarly
19 
the party has sustained or will sustain direct injury as
dismissed the petitions for certiorari and prohibition a result of the governmental act that is being
challenging the constitutionality of R.A. No. 9372, challenged. The gist of the question on standing is
otherwise known as the "Human Security Act of whether a party alleges such personal stake in the
2007," since the respondents therein (members of the outcome of the controversy as to assure that concrete
Anti-Terrorism Council) did not exercise judicial or
adverseness which sharpens the presentation of on a mere expectancy. In this case, the curtailment of
issues upon which the court depends for illumination future increases in his salaries and other benefits
of difficult constitutional questions." This requirement
24 
cannot but be characterized as contingent events or
of standing relates to the constitutional mandate that expectancies. To be sure, he has no vested rights to
this Court settle only actual cases or controversies. 25 
salary increases and, therefore, the absence of such
right deprives the petitioner of legal standing to assail
Thus, as a general rule, a party is allowed to "raise a EO 7.
constitutional question" when (1) he can show that he
will personally suffer some actual or threatened injury It has been held that as to the element of injury, such
because of the allegedly illegal conduct of the aspect is not something that just anybody with some
government; (2) the injury is fairly traceable to the grievance or pain may assert. It has to be direct and
challenged action; and (3) the injury is likely to be substantial to make it worth the court’s time, as well
redressed by a favorable action. 26 
as the effort of inquiry into the constitutionality of the
acts of another department of government. If the
Jurisprudence defines interest as "material interest, asserted injury is more imagined than real, or is
an interest in issue and to be affected by the decree, merely superficial and insubstantial, then the courts
as distinguished from mere interest in the question may end up being importuned to decide a matter that
involved, or a mere incidental interest. By real interest does not really justify such an excursion into
is meant a present substantial interest, as constitutional adjudication. The rationale for this
30 

distinguished from a mere expectancy or a future, constitutional requirement of locus standi is by no

contingent, subordinate, or consequential interest." 27  means trifle. Not only does it assure the vigorous
adversary presentation of the case; more importantly,
To support his claim that he has locus standi to file it must suffice to warrant the Judiciary’s overruling the
the present petition, the petitioner contends that as an determination of a coordinate, democratically elected
employee of PhilHealth, he "stands to be prejudiced organ of government, such as the President, and the
by [EO] 7, which suspends or imposes a moratorium clear approval by Congress, in this case. Indeed, the
on the grants of salary increases or new or increased rationale goes to the very essence of representative
benefits to officers and employees of GOCC[s] and x democracies. 31 

x x curtail[s] the prerogative of those officers who are

to fix and determine his compensation." The 28  Neither can the lack of locus standi be cured by the
petitioner also claims that he has standing as a petitioner’s claim that he is instituting the present
member of the bar in good standing who has an petition as a member of the bar in good standing who
interest in ensuring that laws and orders of the has an interest in ensuring that laws and orders of the
Philippine government are legally and validly issued Philippine government are legally and validly issued.
and implemented. This supposed interest has been branded by the
Court in Integrated Bar of the Phils. (IBP) v. Hon.
The respondents meanwhile argue that the petitioner Zamora, "as too general an interest which is shared
32 

is not a real party-in-interest since future increases in by other groups and [by] the whole citizenry." Thus,
33 

salaries and other benefits are merely contingent the Court ruled in IBP that the mere invocation by the
events or expectancies. The petitioner, too, is not
29  IBP of its duty to preserve the rule of law and nothing
asserting a public right for which he is entitled to seek more, while undoubtedly true, is not sufficient to
judicial protection. Section 9 of EO 7 reads: clothe it with standing in that case. The Court made a
similar ruling in Prof. David v. Pres. Macapagal-
Arroyo and held that the petitioners therein, who are
34 

Section 9. Moratorium on Increases in Salaries,

national officers of the IBP, have no legal standing,
Allowances, Incentives and Other Benefits. –
having failed to allege any direct or potential injury
Moratorium on increases in the rates of salaries, and
which the IBP, as an institution, or its members may
the grant of new increases in the rates of allowances,
suffer as a consequence of the issuance of
incentives and other benefits, except salary
Presidential Proclamation No. 1017 and General
adjustments pursuant to Executive Order No. 8011
Order No. 5. 35 

dated June 17, 2009 and Executive Order No. 900

dated June 23, 2010, are hereby imposed until
specifically authorized by the President. [emphasis We note that while the petition raises vital
ours] constitutional and statutory questions concerning the
power of the President to fix the compensation
packages of GOCCs and GFIs with possible
In the present case, we are not convinced that the
implications on their officials and employees, the
petitioner has demonstrated that he has a personal
same cannot "infuse" or give the petitioner locus
stake or material interest in the outcome of the case
standi under the transcendental importance or
because his interest, if any, is speculative and based
paramount public interest doctrine. In Velarde v.
Social Justice Society, we held that even if the Court
36 
Number and PTR Number is merely to protect the
could have exempted the case from the stringent public from bogus lawyers. A similar construction
locus standi requirement, such heroic effort would be should be given to Bar Matter No. 1922, which
futile because the transcendental issue could not be requires lawyers to indicate their MCLE Certificate of
resolved any way, due to procedural infirmities and Compliance or Certificate of Exemption; otherwise,
shortcomings, as in the present case. In other words,
37 
the provision that allows parties to sign their own
giving due course to the present petition which is pleadings will be negated.
saddled with formal and procedural infirmities
explained above in this Resolution, cannot but be an However, the point raised by the respondents
exercise in futility that does not merit the Court’s regarding the petitioner’s defective jurat is correct.
liberality. As we emphasized in Lozano v. Indeed, A.M. No. 02-8-13-SC, dated February 19,
Nograles, "while the Court has taken an
38 
2008, calls for a current identification document
increasingly liberal approach to the rule of locus issued by an official agency bearing the photograph
standi, evolving from the stringent requirements and signature of the individual as competent evidence
of ‘personal injury’ to the broader ‘transcendental of identity. Nevertheless, we hasten to clarify that the
importance’ doctrine, such liberality is not to be defective jurat in the Verification/Certification of Non-
abused." 39 
Forum Shopping is not a fatal defect, as we held in In-
N-Out Burger, Inc. v. Sehwani, Incorporated. The
41 

Finally, since the petitioner has failed to demonstrate verification is only a formal, not a jurisdictional,
a material and personal interest in the issue in requirement that the Court may waive.
dispute, he cannot also be considered to have filed
the present case as a representative of PhilHealth. In D. The petition has been mooted by supervening
this regard, we cannot ignore or excuse the blatant events.
failure of the petitioner to provide a Board Resolution
or a Secretary’s Certificate from PhilHealth to act as Because of the transitory nature of EO 7, it has been
its representative. pointed out that the present case has already been
rendered moot by these supervening events: (1) the
C. The petition has a defective jurat. lapse on December 31, 2010 of Section 10 of EO 7
that suspended the allowances and bonuses of the
The respondents claim that the petition should be directors and trustees of GOCCs and GFIs; and (2)
dismissed for failing to comply with Section 3, Rule 7 the enactment of R.A. No. 10149 amending the
of the Rules of Civil Procedure, which requires the provisions in the charters of GOCCs and GFIs
party or the counsel representing him to sign the empowering their board of directors/trustees to
pleading and indicate an address that should not be a determine their own compensation system, in favor of
post office box. The petition also allegedly violated the the grant of authority to the President to perform this
Supreme Court En Banc Resolution dated November act.
12, 2001, requiring counsels to indicate in their
pleadings their Roll of Attorneys Number, their PTR With the enactment of the GOCC Governance Act of
Number and their IBP Official Receipt or Lifetime 2011, the President is now authorized to fix the
Member Number; otherwise, the pleadings would be compensation framework of GOCCs and GFIs. The
considered unsigned and dismissible. Bar Matter No. pertinent provisions read:
1922 likewise states that a counsel should note down
his MCLE Certificate of Compliance or Certificate of Section 5. Creation of the Governance Commission
Exemption in the pleading, but the petitioner had for Government-Owned or -Controlled Corporations.
failed to do so.40 
— There is hereby created an advisory, monitoring,
and oversight body with authority to formulate,
We do not see any violation of Section 3, Rule 7 of implement and coordinate policies to be known as the
the Rules of Civil Procedure as the petition bears the Governance Commission for Government-Owned or-
petitioner’s signature and office address. The present Controlled Corporations, hereinafter referred to as the
suit was brought before this Court by the petitioner GCG, which shall be attached to the Office of the
himself as a party litigant and not through counsel. President. The GCG shall have the following powers
Therefore, the requirements under the Supreme Court and functions:
En Banc Resolution dated November 12, 2001 and
Bar Matter No. 1922 do not apply. In Bar Matter No. xxxx
1132, April 1, 2003, we clarified that a party who is not
a lawyer is not precluded from signing his own
h) Conduct compensation studies, develop and
pleadings as this is allowed by the Rules of Court; the
recommend to the President a competitive
purpose of requiring a counsel to indicate his IBP
compensation and remuneration system which shall
attract and retain talent, at the same time allowing the GFIs. For the Court to still rule upon the supposed
GOCC to be financially sound and sustainable; unconstitutionality of EO 7 will merely be an academic
exercise. Any further discussion of the constitutionality
xxxx of EO 7 serves no useful purpose since such issue is
moot in its face in light of the enactment of R.A. No.
Section 8. Coverage of the Compensation and 10149. In the words of the eminent constitutional law
Position Classification System. — The GCG, after expert, Fr. Joaquin Bernas, S.J., "the Court normally
conducting a compensation study, shall develop a [will not] entertain a petition touching on an issue that
Compensation and Position Classification System has become moot because x x x there would [be] no
which shall apply to all officers and employees of the longer x x x a ‘flesh and blood’ case for the Court to
GOCCs whether under the Salary Standardization resolve."44 

Law or exempt therefrom and shall consist of classes

of positions grouped into such categories as the GCG All told, in view of the supervening events rendering
may determine, subject to approval of the President. the petition moot, as well as its patent formal and
procedural infirmities, we no longer see any reason
Section 9. Position Titles and Salary Grades. — All for the Court to resolve the other issues raised in the
positions in the Positions Classification System, as certiorari petition.
determined by the GCG and as approved by the
President, shall be allocated to their proper position WHEREFORE, premises considered, the petition is
titles and salary grades in accordance with an Index DISMISSED. No costs.
of Occupational Services, Position Titles and Salary
Grades of the Compensation and Position SO ORDERED.
Classification System, which shall be prepared by the
GCG and approved by the President. ARTURO D. BRION
Associate Justice
xxxx
WE CONCUR:
[N]o GOCC shall be exempt from the coverage of the
Compensation and Position Classification System
developed by the GCG under this Act.

As may be gleaned from these provisions, the new

law amended R.A. No. 7875 and other laws that
enabled certain GOCCs and GFIs to fix their own
compensation frameworks; the law now authorizes
the President to fix the compensation and position
classification system for all GOCCs and GFIs, as well
as other entities covered by the law. This means that,
the President can now reissue an EO containing
these same provisions without any legal constraints. 1âwphi1

A moot case is "one that ceases to present a

justiciable controversy by virtue of supervening
events, so that a declaration thereon would be of no
practical use or value." "[A]n action is considered
42 

‘moot’ when it no longer presents a justiciable

controversy because the issues involved have
become academic or dead[,] or when the matter in
dispute has already been resolved and hence, one is
not entitled to judicial intervention unless the issue is
likely to be raised again between the parties x x x.
Simply stated, there is nothing for the x x x court to
resolve as [its] determination x x x has been
overtaken by subsequent events." 43 

This is the present situation here. Congress, thru R.A.

No. 10149, has expressly empowered the President
to establish the compensation systems of GOCCs and
 February 2, 2015, or 7 years reckoned from February
2, 2008 when he was appointed to that position.

Meanwhile, Evelyn R. San Buenaventura (San

Buenaventura) was appointed as COA Commissioner
to serve the unexpired term of Villar as Commissioner
G.R. No. 192791               April 24, 2012 or up to February 2, 2011.

DENNIS A. B. FUNA, Petitioner,  Before the Court could resolve this petition, Villar, via
vs. a letter dated February 22, 2011 addressed to
THE CHAIRMAN, COMMISSION ON AUDIT, President Benigno S. Aquino III, signified his intention
REYNALDO A. VILLAR, Respondent. to step down from office upon the appointment of his
replacement. True to his word, Villar vacated his
position when President Benigno Simeon Aquino III
DECISION
named Ma. Gracia Pulido-Tan (Chairman Tan) COA
Chairman. This development has rendered this
VELASCO, JR., J.: petition and the main issue tendered therein moot and
academic.
In this Petition for Certiorari and Prohibition under
Rule 65, Dennis A. B. Funa challenges the case is considered moot and academic when its
constitutionality of the appointment of Reynaldo A. purpose has become stale, or when it ceases to
2 

Villar as Chairman of the Commission on Audit and present a justiciable controversy owing to the onset of
accordingly prays that a judgment issue "declaring the supervening events, so that a resolution of the case
3 

unconstitutionality" of the appointment. or a declaration on the issue would be of no practical

value or use. In such instance, there is no actual
4 

The facts of the case are as follows: substantial relief which a petitioner would be entitled
to, and which will anyway be negated by the dismissal
On February 15, 2001, President Gloria Macapagal- of the basic petition. As a general rule, it is not within
5 

Arroyo (President Macapagal-Arroyo) appointed Our charge and function to act upon and decide a
Guillermo N. Carague (Carague) as Chairman of the moot case. However, in David v. Macapagal-
Commission on Audit (COA) for a term of seven (7) Arroyo, We acknowledged and accepted certain
6 

years, pursuant to the 1987 Constitution. Carague’s

1 
exceptions to the issue of mootness, thus:
term of office started on February 2, 2001 to end on
February 2, 2008. The "moot and academic" principle is not a magical
formula that can automatically dissuade the courts in
Meanwhile, on February 7, 2004, President resolving a case. Courts will decide cases, otherwise
Macapagal-Arroyo appointed Reynaldo A. Villar moot and academic, if: first, there is a grave violation
(Villar) as the third member of the COA for a term of of the Constitution, second, the exceptional character
seven (7) years starting February 2, 2004 until of the situation and the paramount public interest is
February 2, 2011. involved, third, when constitutional issue raised
requires formulation of controlling principles to guide
Following the retirement of Carague on February 2, the bench, the bar, and the public, and fourth, the
2008 and during the fourth year of Villar as COA case is capable of repetition yet evading review.
Commissioner, Villar was designated as Acting
Chairman of COA from February 4, 2008 to April 14, Although deemed moot due to the intervening
2008. Subsequently, on April 18, 2008, Villar was appointment of Chairman Tan and the resignation of
nominated and appointed as Chairman of the COA. Villar, We consider the instant case as falling within
Shortly thereafter, on June 11, 2008, the Commission the requirements for review of a moot and academic
on Appointments confirmed his appointment. He was case, since it asserts at least four exceptions to the
to serve as Chairman of COA, as expressly indicated mootness rule discussed in David, namely: there is a
in the appointment papers, until the expiration of the grave violation of the Constitution; the case involves a
original term of his office as COA Commissioner or on situation of exceptional character and is of paramount
February 2, 2011. Challenged in this recourse, Villar, public interest; the constitutional issue raised requires
in an obvious bid to lend color of title to his hold on the formulation of controlling principles to guide the
the chairmanship, insists that his appointment as COA bench, the bar and the public; and the case is capable
Chairman accorded him a fresh term of seven (7) of repetition yet evading review. The situation
7 

years which is yet to lapse. He would argue, in fine, presently obtaining is definitely of such exceptional
that his term of office, as such chairman, is up to nature as to necessarily call for the promulgation of
principles that will henceforth "guide the bench, the To have legal standing, therefore, a suitor must show
bar and the public" should like circumstance arise. that he has sustained or will sustain a "direct injury"
Confusion in similar future situations would be as a result of a government action, or have a "material
smoothed out if the contentious issues advanced in interest" in the issue affected by the challenged
the instant case are resolved straightaway and settled official act. However, the Court has time and again
12 

definitely. There are times when although the dispute acted liberally on the locus standi requirements and
has disappeared, as in this case, it nevertheless cries has accorded certain individuals, not otherwise
out to be addressed. To borrow from Javier v. directly injured, or with material interest affected, by a
Pacificador, "Justice demands that we act then, not
8 
Government act, standing to sue provided a
only for the vindication of the outraged right, though constitutional issue of critical significance is at
gone, but also for the guidance of and as a restraint in stake. The rule on locus standi is after all a mere
13 

the future." procedural technicality in relation to which the Court,

in a catena of cases involving a subject of
Both procedural and substantive issues are raised in transcendental import, has waived, or relaxed, thus
this proceeding. The procedural aspect comes down allowing non-traditional plaintiffs, such as concerned
to the question of whether or not the following citizens, taxpayers, voters or legislators, to sue in the
requisites for the exercise of judicial review of an public interest, albeit they may not have been
executive act obtain in this petition, viz: (1) there must personally injured by the operation of a law or any
be an actual case or justiciable controversy before the other government act. In David, the Court laid out the
14 

court; (2) the question before it must be ripe for bare minimum norm before the so-called "non-
adjudication; (3) the person challenging the act must traditional suitors" may be extended standing to sue,
be a proper party; and (4) the issue of constitutionality thusly:
must be raised at the earliest opportunity and must be
the very litis mota of the case. 9 
1.) For taxpayers, there must be a claim of
illegal disbursement of public funds or that the
To Villar, all the requisites have not been met, it being tax measure is unconstitutional;
alleged in particular that petitioner, suing as a
taxpayer and citizen, lacks the necessary standing to 2.) For voters, there must be a showing of
challenge his appointment. On the other hand, the
10 
obvious interest in the validity of the election
Office of the Solicitor General (OSG), while law in question;
recognizing the validity of Villar’s appointment for the
period ending February 11, 2011, has expressed the 3.) For concerned citizens, there must be a
view that petitioner should have had filed a petition for showing that the issues raised are of
declaratory relief or quo warranto under Rule 63 or transcendental importance which must be
Rule 66, respectively, of the Rules of Court instead of settled early; and
certiorari under Rule 65.
4.) For legislators, there must be a claim that
Villar’s posture on the absence of some of the the official action complained of infringes their
mandatory requisites for the exercise by the Court of prerogatives as legislators.
its power of judicial review must fail. As a general rule,
a petitioner must have the necessary personality or This case before Us is of transcendental importance,
standing (locus standi) before a court will recognize since it obviously has "far-reaching implications," and
the issues presented. In Integrated Bar of the there is a need to promulgate rules that will guide the
Philippines v. Zamora, We defined locus standi as: bench, bar, and the public in future analogous cases.
We, thus, assume a liberal stance and allow petitioner
x x x a personal and substantial interest in the case to institute the instant petition.
such that the party has sustained or will sustain a
direct injury as a result of the governmental act that is Anent the aforestated posture of the OSG, there is no
being challenged. The term "interest" means a serious disagreement as to the propriety of the
material interest, an interest in issue affected by the availment of certiorari as a medium to inquire on
decree, as distinguished from mere interest in the whether the assailed appointment of respondent Villar
question involved, or a mere incidental interest. The as COA Chairman infringed the constitution or was
gist of the question of standing is whether a party infected with grave abuse of discretion. For under the
alleges "such personal stake in the outcome of the expanded concept of judicial review under the 1987
controversy as to assure the concrete adverseness Constitution, the corrective hand of certiorari may be
which sharpens the presentation of issues upon which invoked not only "to settle actual controversies
the court depends for illumination of difficult involving rights which are legally demandable and
constitutional questions."11 
enforceable," but also "to determine whether or not
there has been a grave abuse of discretion amounting about by reason of the expiration of term save the
to lack or excess of jurisdiction on the part of any aforementioned first set of appointees and those
branch or instrumentality of the government." "Grave
15 
made to fill up vacancies resulting from certain
abuse of discretion" denotes: causes; third, the prohibition against reappointment of
commission members who served the full term of
such capricious and whimsical exercise of judgment seven years or of members first appointed under the
as is equivalent to lack of jurisdiction, or, in other Constitution who served their respective terms of
words, where the power is exercised in an arbitrary or office; fourth, the limitation of the term of a member to
despotic manner by reason of passion or personal the unexpired portion of the term of the predecessor;
hostility, and it must be so patent and gross as to and fifth, the proscription against temporary
amount to an evasion of positive duty or to a virtual appointment or designation.
refusal to perform the duty enjoined or to act in
contemplation of law. 16 
To elucidate on the mechanics of and the adverted
limitations on the matter of COA-member
We find the remedy of certiorari applicable to the appointments with fixed but staggered terms of office,
instant case in view of the allegation that then the Court lays down the following postulates
President Macapagal-Arroyo exercised her appointing deducible from pertinent constitutional provisions, as
power in a manner constituting grave abuse of construed by the Court:
discretion.
1. The terms of office and appointments of the
This brings Us to the pivotal substantive issue of first set of commissioners, or the seven, five
whether or not Villar’s appointment as COA and three-year termers referred to in Sec.
Chairman, while sitting in that body and after having 1(2), Art. IX(D) of the Constitution, had
served for four (4) years of his seven (7) year term as already expired. Hence, their respective terms
COA commissioner, is valid in light of the term of office find relevancy for the most part only
limitations imposed under, and the circumscribing in understanding the operation of the
concepts tucked in, Sec. 1 (2), Art. IX(D) of the rotational plan. In Gaminde v. Commission on
Constitution, which reads: Audit, the Court described how the smooth
19 

functioning of the rotational system

(2) The Chairman and Commissioners [on Audit] shall contemplated in said and like provisions
be appointed by the President with the consent of the covering the two other independent
Commission on Appointments for a term of seven commissions is achieved thru the staggering
years without reappointment. Of those first appointed, of terms:
the Chairman shall hold office for seven years, one
commissioner for five years, and the other x x x [T]he terms of the first Chairmen and
commissioner for three years, without reappointment. Commissioners of the Constitutional
Appointment to any vacancy shall be only for the Commissions under the 1987 Constitution
unexpired portion of the term of the predecessor. In must start on a common date [February 02,
no case shall any member be appointed or 1987, when the 1987 Constitution was ratified]
designated in a temporary or acting capacity. irrespective of the variations in the dates of
(Emphasis added.) 17  appointments and qualifications of the
appointees in order that the expiration of the
And if valid, for how long can he serve? first terms of seven, five and three years
should lead to the regular recurrence of the
two-year interval between the expiration of the
At once clear from a perusal of the aforequoted
terms.
provision are the defined restricting features in the
matter of the composition of COA and the
appointment of its members (commissioners and x x x In case of a belated appointment, the
chairman) designed to safeguard the independence interval between the start of the terms and the
and impartiality of the commission as a body and that actual appointment shall be counted against
of its individual members. These are, first, the
18  the appointee. (Italization in the original;
20 

rotational plan or the staggering term in the emphasis added.)

commission membership, such that the appointment
of commission members subsequent to the original Early on, in Republic v. Imperial, the
21 

set appointed after the effectivity of the 1987 Court wrote of two conditions, "both
Constitution shall occur every two years; second, the indispensable to [the] workability" of
maximum but a fixed term-limit of seven (7) years for the rotational plan. These conditions
all commission members whose appointments came may be described as follows: (a) that
 the terms of the first batch of Commissioner De Vera to the position of
commissioners should start on a chairman, then Chief Justice Manuel Moran
common date; and (b) that any called attention to the fact that the prohibition
vacancy due to death, resignation or against "reappointment" comes as a
disability before the expiration of the continuation of the requirement that the
term should be filled only for the commissioners––referring to members of the
unexpired balance of the term. COMELEC under the 1935 Constitution––
Otherwise, Imperial continued, "the shall hold office for a term of nine (9) years.
regularity of the intervals between This sentence formulation imports, notes
appointments would be destroyed." Chief Justice Moran, that reappointment is not
There appears to be near unanimity an absolute prohibition.
as to the purpose/s of the rotational
system, as originally conceived, i.e., to 4. The adverted system of regular rotation or
place in the commission a new the staggering of appointments and terms in
appointee at a fixed interval (every two the membership for all three constitutional
years presently), thus preventing a commissions, namely the COA, Commission
four-year administration appointing on Elections (COMELEC) and Civil Service
more than one permanent and regular Commission (CSC) found in the 1987
commissioner, or to borrow from
22 
Constitution was patterned after the amended
Commissioner Monsod of the 1986 1935 Constitution for the appointment of the
CONCOM, "to prevent one person members of COMELEC with this difference:
27 

(the President of the Philippines) from the 1935 version entailed a regular interval of
dominating the commissions." It has
23 
vacancy every three (3) years, instead of the
been declared too that the rotational present two (2) years and there was no
plan ensures continuity in, and, as express provision on appointment to any
indicated earlier, secure the vacancy being limited to the unexpired portion
independence of, the commissions as of the his predecessor’s term. The model
a body. 24 
1935 provision reads:

2. An appointment to any vacancy in COA, Section 1. There shall be an independent Commission
which arose from an expiration of a term, after on Elections composed of a Chairman and two other
the first chairman and commissioners members to be appointed by the President with the
appointed under the 1987 Constitution have consent of the Commission on Appointments, who
bowed out, shall, by express constitutional shall hold office for a term of nine years and may not
fiat, be for a term of seven (7) years, save be reappointed. Of the Members of the Commission
when the appointment is to fill up a vacancy first appointed, one shall hold office for nine years,
for the corresponding unserved term of an another for six years and the third for three years. x x
outgoing member. In that case, the x
appointment shall only be for the unexpired
portion of the departing commissioner’s term Petitioner now asseverates the view that Sec. 1(2),
of office. There can only be an unexpired Art. IX(D) of the 1987 Constitution proscribes
portion when, as a direct result of his demise, reappointment of any kind within the commission, the
disability, resignation or impeachment, as the point being that a second appointment, be it for the
case may be, a sitting member is unable to same position (commissioner to another position of
complete his term of office. To repeat, should
25 
commissioner) or upgraded position (commissioner to
the vacancy arise out of the expiration of the chairperson) is a prohibited reappointment and is a
term of the incumbent, then there is nullity ab initio. Attention is drawn in this regard to the
technically no unexpired portion to speak of. Court’s disposition in Matibag v. Benipayo. 28 

The vacancy is for a new and complete

seven-year term and, ergo, the appointment
Villar’s promotional appointment, so it is argued, is
thereto shall in all instances be for a maximum
void from the start, constituting as it did a
seven (7) years.
reappointment enjoined by the Constitution, since it
actually needed another appointment to a different
3. Sec. 1(2), Art. IX(D) of the 1987 office and requiring another confirmation by the
Constitution prohibits the "reappointment" of a Commission on Appointments.
member of COA after his appointment for
seven (7) years. Writing for the Court in
Central to the adjudication of the instant petition is the
Nacionalista Party v. De Vera, a case
26 

correct meaning to be given to Sec. 1(2), Article IX(D)

involving the promotion of then COMELEC
of the Constitution on the ban against reappointment be appointed by the President with the consent of the
in relation to the appointment issued to respondent Commission on Appointments for a term of seven
Villar to the position of COA Chairman. years without reappointment. Of those first appointed,
the Chairman shall hold office for seven years, one
Without question, the parties have presented two (2) commissioner for five years, and the other
contrasting and conflicting positions. Petitioner commissioner for three years, without reappointment.
contends that Villar’s appointment is proscribed by the Appointment to any vacancy shall be only for the
constitutional ban on reappointment under the unexpired portion of the term of the predecessor. x x x
aforecited constitutional provision. On the other hand, (Emphasis added.)
respondent Villar initially asserted that his
appointment as COA Chairman is valid up to February The first sentence is unequivocal enough. The COA
2, 2015 pursuant to the same provision. Chairman shall be appointed by the President for a
term of seven years, and if he has served the full
The Court finds petitioner’s position bereft of merit. term, then he can no longer be reappointed or
The flaw lies in regarding the word "reappointment" extended another appointment. In the same vein, a
as, in context, embracing any and all species of Commissioner who was appointed for a term of seven
appointment. years who likewise served the full term is barred from
being reappointed. In short, once the Chairman or
The rule is that if a statute or constitutional provision Commissioner shall have served the full term of seven
is clear, plain and free from ambiguity, it must be years, then he can no longer be reappointed to either
given its literal meaning and applied without the position of Chairman or Commissioner. The
attempted interpretation. This is known as the plain
29  obvious intent of the framers is to prevent the
meaning rule enunciated by the maxim verba legis president from "dominating" the Commission by
non est recedendum, or from the words of a statute allowing him to appoint an additional or two more
there should be no departure. 30  commissioners.

The primary source whence to ascertain constitutional The same purpose obtains in the second sentence of
intent or purpose is the language of the provision Sec. 1(2). The Constitutional Convention barred
itself. If possible, the words in the Constitution must
31  reappointment to be extended to commissioner-
be given their ordinary meaning, save where technical members first appointed under the 1987 Constitution
terms are employed. J.M. Tuason & Co., Inc. v. Land to prevent the President from controlling the
Tenure Administration illustrates the verbal legis rule commission. Thus, the first Chairman appointed under
in this wise: the 1987 Constitution who served the full term of
seven years can no longer be extended a
reappointment. Neither can the Commissioners first
We look to the language of the document itself in our
appointed for the terms of five years and three years
search for its meaning. We do not of course stop
be eligible for reappointment. This is the plain
there, but that is where we begin. It is to be assumed
meaning attached to the second sentence of Sec.
that the words in which constitutional provisions are
1(2), Article IX(D).
couched express the objective sought to be attained.
They are to be given their ordinary meaning except
where technical terms are employed in which case the On the other hand, the provision, on its face, does not
significance thus attached to them prevails. As the prohibit a promotional appointment from
Constitution is not primarily a lawyer’s document, it commissioner to chairman as long as the
being essential for the rule of law to obtain that it commissioner has not served the full term of seven
should ever be present in the people’s consciousness, years, further qualified by the third sentence of Sec.
its language as much as possible should be 1(2), Article IX (D) that "the appointment to any
understood in the sense they have in common use. vacancy shall be only for the unexpired portion of the
What it says according to the text of the provision to term of the predecessor." In addition, such
be construed compels acceptance and negates the promotional appointment to the position of Chairman
power of the courts to alter it, based on the postulate must conform to the rotational plan or the staggering
that the framers and the people mean what they say. of terms in the commission membership such that the
Thus there are cases where the need for construction aggregate of the service of the Commissioner in said
is reduced to a minimum. (Emphasis supplied.)
32  position and the term to which he will be appointed to
the position of Chairman must not exceed seven
years so as not to disrupt the rotational system in the
Let us dissect and examine closely the provision in
commission prescribed by Sec. 1(2), Art. IX(D).
question:
In conclusion, there is nothing in Sec. 1(2), Article
(2) The Chairman and Commissioners [on Audit] shall
IX(D) that explicitly precludes a promotional the intent of the framers of the Constitution in
appointment from Commissioner to Chairman, interpreting its provisions.
provided it is made under the aforestated
circumstances or conditions. Far from prohibiting reappointment of any kind,
including a situation where a commissioner is
It may be argued that there is doubt or ambiguity on upgraded to the position of chairman, the 1987
whether Sec. 1(2), Art. IX(D), as couched, allows a Constitution in fact unequivocally allows promotional
promotional appointment from Commissioner to appointment, but subject to defined parameters. The
Chairman. Even if We concede the existence of an ensuing exchanges during the deliberations of the
ambiguity, the outcome will remain the same. J.M. 1986 Constitutional Commission (CONCOM) on a
Tuason & Co., Inc. teaches that in case of doubt as
33 
draft proposal of what would eventually be Sec. 1(2),
to the import and react of a constitutional provision, Art. IX(D) of the present Constitution amply support
resort should be made to extraneous aids of the thesis that a promotional appointment is allowed
construction, such as debates and proceedings of the provided no one may be in the COA for an aggregate
Constitutional Convention, to shed light on and threshold period of 7 years:
ascertain the intent of the framers or the purpose of
the provision being construed. MS. AQUINO: In the same paragraph, I would
propose an amendment x x x. Between x x x the
The understanding of the Convention as to what was sentence which begins with "In no case," insert THE
meant by the terms of the constitutional provision APPOINTEE SHALL IN NO CASE SERVE AN
which was the subject of the deliberation goes a long AGGREGATE PERIOD OF MORE THAN SEVEN
way toward explaining the understanding of the YEARS. I was thinking that this may approximate the
people when they ratified it. The Court applied this situation wherein a commissioner is first appointed as
principle in Civil Liberties Union v. Executive chairman. I am willing to withdraw that amendment if
Secretary: there is a representation on the part of the Committee
that there is an implicit intention to prohibit a term that
A foolproof yardstick in constitutional construction is in the aggregate will exceed more than seven years. If
the intention underlying the provision under that is the intention, I am willing to withdraw my
consideration. Thus, it has been held that the Court in amendment.
construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and MR. MONSOD: If the [Gentlewoman] will read the
the evils, if any, sought to be prevented or remedied. whole Article, she will notice that there is no
A doubtful provision will be examined in the light of reappointment of any kind and, therefore, as a whole
the history of the times, and the condition and there is no way somebody can serve for more than
circumstances under which the Constitution was seven years. The purpose of the last sentence is to
framed. The object is to ascertain the reason which make sure that this does not happen by including in
induced the framers of the Constitution to enact the the appointment both temporary and acting
particular provision and the purpose sought to be capacities.
accomplished thereby, in order to construe the whole
as to make the words consonant to that reason and MS. AQUINO. Yes. Reappointment is fine; that is
calculated to effect that purpose. (Emphasis added.)
34 
accounted for. But I was thinking of a situation
wherein a commissioner is upgraded to a position of
And again in Nitafan v. Commissioner on Internal chairman. But if this provision is intended to cover that
Revenue: kind of situation, then I am willing to withdraw my
amendment.
x x x The ascertainment of that intent is but in keeping
with the fundamental principle of constitutional MR. MONSOD. It is covered.
construction that the intent of the framers of the
organic law and of the people adopting it should be MR. FOZ. There is a provision on line 29 precisely to
given effect. The primary task in constitutional cover that situation. It states: "Appointment to any
construction is to ascertain and thereafter assure the vacancy shall be only for the unexpired portion of the
realization of the purpose of the framers and of the predecessor." In other words, if there is upgrading of
people in the adoption of the Constitution. It may also position from commissioner to chairman, the
be safely assumed that the people in ratifying the appointee can serve only the unexpired portion of the
Constitution were guided mainly by the explanation term of the predecessor.
offered by the framers. (Emphasis added.)
35 

MS. AQUINO: But we have to be very specific x x x

Much weight and due respect must be accorded to because it might shorten the term because he serves
only the unexpired portion of the term of the A similar opinion was expressed in the same Visarra
predecessor. case by the concurring Justice Angelo Bautista,
although he expressly alluded to a promotional
MR. FOZ: He takes it at his own risk. He knows that appointment as not being a prohibited appointment
he will only have to serve the unexpired portion of the under Art. X of the 1935 Constitution.
term of the predecessor. (Emphasis added.) 36 

Petitioner’s invocation of Matibag as additional

The phrase "upgrading of position" found in the argument to contest the constitutionality of Villar’s
underscored portion unmistakably shows that Sec. elevation to the COA chairmanship is inapposite. In
1(2), Art. IX(D) of the 1987 Constitution, for all its Matibag, then President Macapagal-Arroyo appointed,
caveat against reappointment, does not per se ad interim, Alfredo Benipayo as COMELEC Chairman
preclude, in any and all cases, the promotional and Resurreccion Borra and Florentino Tuason as
appointment or upgrade of a commissioner to Commissioners, each for a term of office of seven (7)
chairman, subject to this proviso: the appointee’s years. All three immediately took their oath of, and
tenure in office does not exceed 7 years in all. Indeed, assumed, office. These appointments were twice
such appointment does not contextually come within renewed because the Commission on Appointments
the restricting phrase "without reappointment" twice failed to act on the first two ad interim appointments.
written in that section. Delegate Foz even cautioned, Via a petition for prohibition, some disgruntled
as a matter of fact, that a sitting commissioner COMELEC officials assail as infirm the appointments
accepting a promotional appointment to fill up an of Benipayo, et al.
unexpired portion pertaining to the higher office does
so at the risk of shortening his original term. To Matibag lists (4) four situations where the prohibition
illustrate the Foz’s concern: assume that Carague left on reappointment would arise, or to be specific, where
COA for reasons other than the expiration of his the proviso "[t]he Chairman and the Commissioners
threshold 7-year term and Villar accepted an shall be appointed x x x for a term of seven years
appointment to fill up the vacancy. In this situation, the without reappointment" shall apply. Justice Antonio T.
latter can only stay at the COA and served the Carpio declares in his dissent that Villar’s appointment
unexpired portion of Carague’s unexpired term as falls under a combination of two of the four situations.
departing COA Chairman, even if, in the process, his
(Villar’s) own 7-year term as COA commissioner has Conceding for the nonce the correctness of the
not yet come to an end. In this illustration, the premises depicted in the situations referred to in
inviolable regularity of the intervals between Matibag, that case is of doubtful applicability to the
appointments in the COA is preserved. instant petition. Not only is it cast against a different
milieu, but the lis mota of the case, as expressly
Moreover, jurisprudence tells us that the word declared in the main opinion, "is the very
"reappointment" means a second appointment to one constitutional issue raised by petitioner." And what
41 

and the same office. As Justice Arsenio Dizon

37 
is/are this/these issue/s? Only two defined issues
(Justice Dizon) aptly observed in his dissent in Visarra in Matibag are relevant, viz: (1) the nature of an ad
v. Miraflor, the constitutional prohibition against the
38 
interim appointment and subsumed thereto the effect
reappointment of a commissioner refers to his second of a by-passed ad interim appointment; and (2) the
appointment to the same office after holding it for nine constitutionality of renewals of ad interim
years. As Justice Dizon observed, "[T]he occupant of
39 
appointments. The opinion defined these issues in the
an office obviously needs no such second following wise: "Petitioner [Matibag] filed the instant
appointment unless, for some valid cause, such as petition questioning the appointment and the right to
the expiration of his term or resignation, he had remain in office of Benipayo, Borra and Tuason as
ceased to be the legal occupant thereof."  The
40 
Chairman and Commissioners of the COMELEC,
inevitable implication of Justice Dizon’s cogent respectively. Petitioner claims that the ad interim
observation is that a promotion from commissioner to appointments of Benipayo, et al. violate the
chairman, albeit entailing a second appointment, constitutional provisions on the independence of
involves a different office and, hence, not, in the strict COMELEC, as well as on the prohibitions on
legal viewpoint, a reappointment. Stated a bit temporary appointments and reappointments of its
differently, "reappointment" refers to a movement to Chairman and members." As may distinctly be noted,
one and the same office. Necessarily, a movement to an upgrade or promotion was not in issue in Matibag.
a different position within the commission (from
Commissioner to Chairman) would constitute an We shall briefly address the four adverted situations
appointment, or a second appointment, to be precise, outlined in Matibag, in which, as there urged, the
but not reappointment. uniform proviso on no reappointment––after a
member of any of the three constitutional
commissions is appointed for a term of seven (7) defined, of any kind is prohibited under any and all
years––shall apply. Matibag made the following circumstances. To reiterate, the word "reappointment"
formulation: means a second appointment to one and the same
office; and Sec. 1(2), Art. IX(D) of the 1987
The first situation is where an ad interim appointee Constitution and similar provisions do not peremptorily
after confirmation by the Commission on prohibit the promotional appointment of a
Appointments serves his full 7-year term. Such person commissioner to chairman, provided the new
cannot be reappointed whether as a member or as appointee’s tenure in both capacities does not exceed
chairman because he will then be actually serving seven (7) years in all. The statements in Matibag
more than seven (7) years. enunciating the ban on reappointment in the
aforecited fourth situation, perforce, must be
The second situation is where the appointee, after abandoned, for, indeed, a promotional appointment
confirmation, serves part of his term and then resigns from the position of Commissioner to that of Chairman
before his seven-year term of office ends. Such is constitutionally permissible and not barred by Sec.
person cannot be reappointed whether as a member 1(2), Art. IX (D) of the Constitution.
or as chair to a vacancy arising from retirement
because a reappointment will result in the appointee One of the aims behind the prohibition on
serving more than seven years. reappointment, petitioner urges, is to ensure and
preserve the independence of COA and its
The third situation is where the appointee is confirmed members, citing what the dissenting Justice J.B.L
44 

to serve the unexpired portion of someone who died Reyes wrote in Visarra, that once appointed and
or resigned, and the appointee completes the confirmed, the commissioners should be free to act as
unexpired term. Such person cannot be reappointed their conscience demands, without fear of retaliation
whether as a member or as chair to a vacancy arising or hope or reward. Pursued to its logical conclusion,
from retirement because a reappointment will result in petitioner’s thesis is that a COA member may no
the appointee also serving more than seven (7) years. longer act with independence if he or she can be
rewarded with a promotion or appointment, for then
he or she will do the bidding of the appointing
The fourth situation is where the appointee has
authority in the hope of being promoted or
previously served a term of less than seven (7) years,
reappointed.
and a vacancy arises from death or resignation. Even
if it will not result in his serving more than seven
years, a reappointment of such person to serve an The unstated reason behind Justice J.B.L. Reyes’
unexpired term is also prohibited because his counsel is that independence is really a matter of
situation will be similar to those appointed under the choice. Without taking anything away from the gem
second sentence of Sec. 1(20), Art. IX-C of the imparted by the eminent jurist, what Chief Justice
Constitution [referring to the first set of appointees Moran said on the subject of independence is just as
(the 5 and 3 year termers) whose term of office are logically sound and perhaps even more compelling,
less than 7 years but are barred from being as follows:
reappointed under any situation]." (Words in brackets
42 

and emphasis supplied.) A Commissioner, hopeful of reappointment may strive

to do good. Whereas, without that hope or other hope
The situations just described constitute an obiter of material reward, his enthusiasm may decline as the
dictum, hence without the force of adjudication, for the end of his term approaches and he may even lean to
corresponding formulation of the four situations was abuses if there is no higher restrain in his moral
not in any way necessary to resolve any of the character. Moral character is no doubt the most
determinative issues specifically defined in Matibag. effective safeguard of independence. With moral
An opinion entirely unnecessary for the decision of the integrity, a commissioner will be independent with or
case or one expressed upon a point not necessarily without the possibility of reappointment.
45 

involved in the determination of the case is an obiter.43 

The Court is likewise unable to sustain Villar’s

There can be no serious objection to the scenarios proposition that his promotional appointment as COA
depicted in the first, second and third situations, both Chairman gave him a completely fresh 7-year term––
hewing with the proposition that no one can stay in from February 2008 to February 2015––given his four
any of the three independent commissions for an (4)-year tenure as COA commissioner devalues all
aggregate period of more than seven (7) years. The the past pronouncements made by this Court, starting
fourth situation, however, does not commend itself for in De Vera, then Imperial, Visarra, and finally Matibag.
concurrence inasmuch as it is basically predicated on While there had been divergence of opinion as to the
the postulate that reappointment, as earlier herein import of the word "reappointment," there has been
unanimity on the dictum that in no case can one be a appointment shall be counted against the 7-year term
COA member, either as chairman or commissioner, or of the appointee. Posing, however, as an
a mix of both positions, for an aggregate term of more insurmountable barrier to a full 7-year appointment for
than 7 years. A contrary view would allow a Villar is the rule against one serving the commission
circumvention of the aggregate 7-year service for an aggregate term of more than seven (7) years.
limitation and would be constitutionally offensive as it
would wreak havoc to the spirit of the rotational Where the Constitution or, for that matter, a statute,
system of succession. Imperial, passing upon the has fixed the term of office of a public official, the
rotational system as it applied to the then appointing authority is without authority to specify in
organizational set-up of the COMELEC, stated: the appointment a term shorter or longer than what
the law provides. If the vacancy calls for a full seven-
The provision that of the first three commissioners year appointment, the President is without discretion
appointed "one shall hold office for 9 years, another to extend a promotional appointment for more or for
for 6 years and the third for 3 years," when taken less than seven (7) years. There is no in between. He
together with the prescribed term of office for 9 years or she cannot split terms. It is not within the power of
without reappointment, evinces a deliberate plan to the appointing authority to override the positive
have a regular rotation or cycle in the membership of provision of the Constitution which dictates that the
the commission, by having subsequent members term of office of members of constitutional bodies
appointable only once every three years. 46 
shall be seven (7) years. A contrary reasoning "would
48 

make the term of office to depend upon the pleasure

To be sure, Villar’s appointment as COA Chairman or caprice of the [appointing authority] and not upon
partakes of a promotional appointment which, under the will [of the framers of the Constitution] of the
appropriate setting, would be outside the purview of legislature as expressed in plain and undoubted
the constitutional reappointment ban in Sec 1(2), Art. language in the law."49 

IX(D) of the Constitution. Nonetheless, such

appointment, even for the term appearing in the In net effect, then President Macapagal-Arroyo could
underlying appointment paper, ought still to be struck not have had, under any circumstance, validly
down as unconstitutional for the reason as shall be appointed Villar as COA Chairman, for a full 7-year
explained. appointment, as the Constitution decrees, was not
legally feasible in light of the 7-year aggregate rule.
Consider: Villar had already served 4 years of his 7-year term as
COA Commissioner. A shorter term, however, to
In a mandatory tone, the aforecited constitutional comply with said rule would also be invalid as the
provision decrees that the appointment of a COA corresponding appointment would effectively breach
member shall be for a fixed 7-year term if the vacancy the clear purpose of the Constitution of giving to every
results from the expiration of the term of the appointee so appointed subsequent to the first set of
predecessor. We reproduce in its pertinent part the commissioners, a fixed term of office of 7 years. To
provision referred to: recapitulate, a COA commissioner like respondent
Villar who serves for a period less than seven (7)
years cannot be appointed as chairman when such
(2) The Chairman and Commissioners [on Audit] shall
position became vacant as a result of the expiration of
be appointed x x x for a term of seven years without
the 7-year term of the predecessor (Carague). Such
reappointment. x x x Appointment to any vacancy
appointment to a full term is not valid and
shall be only for the unexpired portion of the term of
constitutional, as the appointee will be allowed to
the predecessor. x x x
serve more than seven (7) years under the
constitutional ban.
Accordingly, the promotional appointment as COA
Chairman of Villar for a stated fixed term of less than
On the other hand, a commissioner who resigned
seven (7) years is void for violating a clear, but
before serving his 7- year term can be extended an
mandatory constitutional prescription. There can be
appointment to the position of chairman for the
no denying that the vacancy in the position of COA
unexpired period of the term of the latter, provided the
chairman when Carague stepped down in February 2,
aggregate of the period he served as commissioner
2008 resulted from the expiration of his 7-year term.
and the period he will serve as chairman will not
Hence, the appointment to the vacancy thus created
exceed seven (7) years. This situation will only obtain
ought to have been one for seven (7) years in line
when the chairman leaves the office by reason of
with the verbal legis approach of interpreting the
47 

death, disability, resignation or impeachment. Let us

Constitution. It is to be understood, however, following
consider, in the concrete, the situation of then
Gaminde, that in case of a belated appointment, the
Chairman Carague and his successor, Villar. Carague
interval between the start of the term and the actual
was appointed COA Chairman effective February 2,
2001 for a term of seven (7) years, or up to February has two and only two options on term appointments.
2, 2008. Villar was appointed as Commissioner on Either he extends an appointment for a full 7-year
February 2, 2004 with a 7-year term to end on term when the vacancy results from the expiration of
February 2, 2011. If Carague for some reason term, or for a shorter period corresponding to the
vacated the chairmanship in 2007, then Villar can unexpired term of the predecessor when the vacancy
resign as commissioner in the same year and later be occurs by reason of death, physical disability,
appointed as chairman to serve only up to February 2, resignation or impeachment. If the vacancy calls for a
2008, the end of the unexpired portion of Carague’s full seven-year appointment, the Chief Executive is
term. In this hypothetical scenario, Villar’s barred from extending a promotional appointment for
appointment to the position of chairman is valid and less than seven years. Else, the President can trifle
constitutional as the aggregate periods of his two (2) with terms of office fixed by the Constitution.
appointments will only be five (5) years which neither
distorts the rotational scheme nor violates the rule that Justice Mendoza likewise invites attention to an
the sum total of said appointments shall not exceed instance in history when a commissioner had been
seven (7) years. Villar would, however, forfeit two (2) promoted chairman after the expiration of the term of
years of his original seven (7)-year term as his predecessor, referring specifically to the
Commissioner, since, by accepting an upgraded appointment of then COMELEC Commissioner
appointment to Carague’s position, he agreed to Gaudencio Garcia to succeed Jose P. Carag after the
serve the unexpired portion of the term of the expiration of the latter’s term in 1959 as COMELEC
predecessor. As illustrated earlier, following Mr. Foz’s chairman. Such appointment to the position of
line, if there is an upgrading of position from chairman is not constitutionally permissible under the
commissioner to chairman, the appointee takes the 1987 Constitution because of the policy and intent of
risk of cutting short his original term, knowing pretty its framers that a COA member who has served his
well before hand that he will serve only the unexpired full term of seven (7) years or even for a shorter
portion of the term of his predecessor, the outgoing period can no longer be extended another
COA chairman. appointment to the position of chairman for a full term
of seven (7) years. As revealed in the deliberations of
In the extreme hypothetical situation that Villar the Constitutional Commission that crafted the 1987
vacates the position of chairman for causes other than Constitution, a member of COA who also served as a
the expiration of the original term of Carague, the commissioner for less than seven (7) years in said
President can only appoint the successor of Villar for position cannot be appointed to the position of
the unexpired portion of the Carague term in line with chairman for a full term of seven (7) years since the
Sec. 1(2), Art. IX(D) of the Constitution. Upon the aggregate will exceed seven (7) years. Thus, the
expiration of the original 7-year term of Carague, the adverted Garcia appointment in 1959 made under the
President can appoint a new chairman for a term of 1935 Constitution cannot be used as a precedent to
seven (7) full years. an appointment of such nature under the 1987
Constitution. The dissent further notes that the
In his separate dissent, my esteemed colleague, Mr. upgrading remained uncontested. In this regard,
Justice Mendoza, takes strong exception to the view suffice it to state that the promotion in question was
that the promotional appointment of a sitting either legal or it was not. If it were not, no amount of
commissioner is plausible only when he is appointed repetitive practices would clear it of invalidating taint.
to the position of chairman for the unexpired portion of
the term of said official who leaves the office by Lastly, Villar’s appointment as chairman ending
reason of any the following reasons: death, disability, February 2, 2011 which Justice Mendoza considers
resignation or impeachment, not when the vacancy as valid is likewise unconstitutional, as it will destroy
arises out as a result of the expiration of the 7-year the rationale and policy behind the rotational system
term of the past chairman. There is nothing in the or the staggering of appointments and terms in COA
Constitution, so Justice Mendoza counters, that as prescribed in the Constitution. It disturbs in a way
restricts the promotion of an incumbent commissioner the staggered rotational system of appointment under
to the chairmanship only in instances where the Sec. 1(2), Art. IX(D) of the 1987 Constitution.
tenure of his predecessor was cut short by any of the Consider: If Villar’s term as COA chairman up to
four events referred to. As earlier explained, the February 2, 2011 is viewed as valid and constitutional
majority view springs from the interplay of the as espoused by my esteemed colleague, then two
following premises: The explicit command of the vacancies have simultaneously occurred and two (2)
Constitution is that the "Chairman and the COA members going out of office at once, opening
Commissioners shall be appointed by the President x positions for two (2) appointables on that date as
x x for a term of seven years [and] appointment to any Commissioner San Buenaventura’s term also expired
vacancy shall be only for the unexpired portion of the on that day. This is precisely one of the mischiefs the
term of the predecessor." To repeat, the President staggering of terms and the regular intervals
appointments seek to address. Note that San 4. A commissioner who resigns after serving
Buenaventura was specifically appointed to succeed in the Commission for less than seven years
Villar as commissioner, meaning she merely occupied is eligible for an appointment to the position of
the position vacated by her predecessor whose term Chairman for the unexpired portion of the term
as such commissioner expired on February 2, 2011. of the departing chairman. Such appointment
The result is what the framers of the Constitution is not covered by the ban on reappointment,
doubtless sought to avoid, a sitting President with a 6- provided that the aggregate period of the
year term of office, like President Benigno C. Aquino length of service as commissioner and the
III, appointing all or at least two (2) members of the unexpired period of the term of the
three-man Commission during his term. He appointed predecessor will not exceed seven (7) years
Ma. Gracia Pulido-Tan as Chairman for the term and provided further that the vacancy in the
ending February 2, 2015 upon the relinquishment of position of Chairman resulted from death,
the post by respondent Villar, and Heidi Mendoza was resignation, disability or removal by
appointed Commissioner for a 7-year term ending impeachment. The Court clarifies that
February 2, 2018 to replace San Buenaventura. If "reappointment" found in Sec. 1(2), Art. IX(D)
Justice Mendoza’s version is adopted, then situations means a movement to one and the same
like the one which obtains in the Commission will office (Commissioner to Commissioner or
definitely be replicated in gross breach of the Chairman to Chairman). On the other hand,
Constitution and in clear contravention of the intent of an appointment involving a movement to a
its framers. Presidents in the future can easily control different position or office (Commissioner to
the Commission depriving it of its independence and Chairman) would constitute a new
impartiality. appointment and, hence, not, in the strict legal
sense, a reappointment barred under the
To sum up, the Court restates its ruling on Sec. 1(2), Constitution.
Art. IX(D) of the Constitution, viz:
5. Any member of the Commission cannot be
1. The appointment of members of any of the appointed or designated in a temporary or
three constitutional commissions, after the acting capacity.
expiration of the uneven terms of office of the
first set of commissioners, shall always be for WHEREFORE the petition is PARTLY GRANTED.
a fixed term of seven (7) years; an The appointment of then Commissioner Reynaldo A.
appointment for a lesser period is void and Villar to the position of Chairman of the Commission
unconstitutional. on Audit to replace Guillermo N. Carague, whose term
of office as such chairman has expired, is hereby
The appointing authority cannot validly declared UNCONSTITUTIONAL for violation of Sec.
shorten the full term of seven (7) years in case 1(2), Art. IX(D) of the Constitution.
of the expiration of the term as this will result
in the distortion of the rotational system
prescribed by the Constitution.

2. Appointments to vacancies resulting from

certain causes (death, resignation, disability or
impeachment) shall only be for the unexpired
portion of the term of the predecessor, but
such appointments cannot be less than the
unexpired portion as this will likewise disrupt
the staggering of terms laid down under Sec.
1(2), Art. IX(D).

3. Members of the Commission, e.g. COA,

COMELEC or CSC, who were appointed for a
full term of seven years and who served the
entire period, are barred from reappointment
to any position in the Commission. Corollarily,
the first appointees in the Commission under
the Constitution are also covered by the
prohibition against reappointment.
 reconsideration and with due regard to Senate
Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court
set the subject motion for oral arguments on August 2,
2012.7 On August 3, 2012, the Court discussed the
merits of the arguments and agreed, in the meantime,
to suspend the effects of the second paragraph of the
dispositive portion of the July 17, 2012 Decision which
decreed that it was immediately executory. The
decretal portion of the August 3, 2012
G.R. No. 202242               April 16, 2013 Resolution8 reads:

FRANCISCO I. CHAVEZ, Petitioner,  WHEREFORE, the parties are hereby directed to

vs. submit their respective MEMORANDA within ten (10)
JUDICIALAND BAR COUNCIL, SEN. FRANCIS days from notice. Until further orders, the Court
JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS, hereby SUSPENDS the effect of the second
JR., Respondents. paragraph of the dispositive portion of the Court’s July
17, 2012 Decision, which reads: "This disposition is
RESOLUTION immediately executory."9

MENDOZA, J.: Pursuant to the same resolution, petitioner and

respondents filed their respective memoranda.10
This resolves the Motion for Reconsideration1 filed by
the Office of the Solicitor General (OSG) on behalf of Brief Statement of the Antecedents
the respondents, Senator Francis Joseph G.
Escudero and Congressman Niel C. Tupas, Jr. In this disposition, it bears reiterating that from the
(respondents), duly opposed2 by the petitioner, former birth of the Philippine Republic, the exercise of
Solicitor General Francisco I. Chavez (petitioner). appointing members of the Judiciary has always been
the exclusive prerogative of the executive and
By way of recapitulation, the present action stemmed legislative branches of the government. Like their
from the unexpected departure of former Chief Justice progenitor of American origins, both the Malolos
Renato C. Corona on May 29, 2012, and the Constitution11 and the 1935 Constitution12vested the
nomination of petitioner, as his potential successor. In power to appoint the members of the Judiciary in the
his initiatory pleading, petitioner asked the Court to President, subject to confirmation by the Commission
determine 1] whether the first paragraph of Section 8, on Appointments. It was during these times that the
Article VIII of the 1987 Constitution allows more than country became witness to the deplorable practice of
one (1) member of Congress to sit in the JBC; and 2] aspirants seeking confirmation of their appointment in
if the practice of having two (2) representatives from the Judiciary to ingratiate themselves with the
each House of Congress with one (1) vote each is members of the legislative body.13
sanctioned by the Constitution.
Then, under the 1973 Constitution,14 with the fusion of
On July 17, 2012, the Court handed down the the executive and legislative powers in one body, the
assailed subject decision, disposing the same in the appointment of judges and justices ceased to be
following manner: subject of scrutiny by another body. The power
became exclusive and absolute to the Executive,
subject only to the condition that the appointees must
WHEREFORE, the petition is GRANTED. The current
have all the qualifications and none of the
numerical composition of the Judicial and Bar Council
disqualifications.
is declared UNCONSTITUTIONAL. The Judicial and
Bar Council is hereby enjoined to reconstitute itself so
that only one (1) member of Congress will sit as a Prompted by the clamor to rid the process of
representative in its proceedings, in accordance with appointments to the Judiciary of the evils of political
Section 8(1), Article VIII of the 1987 Constitution. pressure and partisan activities,15 the members of the
Constitutional Commission saw it wise to create a
separate, competent and independent body to
This disposition is immediately executory.
recommend nominees to the President.
SO ORDERED.
Thus, it conceived of a body, representative of all the
stakeholders in the judicial appointment process, and
On July 31, 2012, following respondents’ motion for called it the Judicial and Bar Council (JBC). The
Framers carefully worded Section 8, Article VIII of the discuss them jointly.
1987 Constitution in this wise:
Ruling of the Court
Section 8. (1) A Judicial and Bar Council is hereby
created under the supervision of the Supreme Court The Constitution evinces the direct action of the
composed of the Chief Justice as ex officio Chairman, Filipino people by which the fundamental powers of
the Secretary of Justice, and a representative of the government are established, limited and defined and
Congress as ex officio Members, a representative of by which those powers are distributed among the
the Integrated Bar, a professor of law, a retired several departments for their safe and useful exercise
Member of the Supreme Court, and a representative for the benefit of the body politic.19 The Framers
of the private sector. reposed their wisdom and vision on one suprema lex
to be the ultimate expression of the principles and the
From the moment of the creation of the JBC, framework upon which government and society were
Congress designated one (1) representative to sit in to operate. Thus, in the interpretation of the
the JBC to act as one of the ex-officio constitutional provisions, the Court firmly relies on the
members.16 Pursuant to the constitutional provision basic postulate that the Framers mean what they say.
that Congress is entitled to one (1) representative, The language used in the Constitution must be taken
each House sent a representative to the JBC, not to have been deliberately chosen for a definite
together, but alternately or by rotation. purpose. Every word employed in the Constitution
must be interpreted to exude its deliberate intent
In 1994, the seven-member composition of the JBC which must be maintained inviolate against
was substantially altered.  An eighth member was
1âwphi1
disobedience and defiance. What the Constitution
added to the JBC as the two (2) representatives from clearly says, according to its text, compels
Congress began sitting simultaneously in the JBC, acceptance and bars modification even by the branch
with each having one-half (1/2) of a vote.17 tasked to interpret it.

In 2001, the JBC En Banc decided to allow the For this reason, the Court cannot accede to the
representatives from the Senate and the House of argument of plain oversight in order to justify
Representatives one full vote each.18 It has been the constitutional construction. As stated in the July 17,
situation since then. 2012 Decision, in opting to use the singular letter "a"
to describe "representative of Congress," the Filipino
Grounds relied upon by Respondents people through the Framers intended that Congress
be entitled to only one (1) seat in the JBC. Had the
intention been otherwise, the Constitution could have,
Through the subject motion, respondents pray that the
in no uncertain terms, so provided, as can be read in
Court reconsider its decision and dismiss the petition
its other provisions.
on the following grounds: 1] that allowing only one
representative from Congress in the JBC would lead
to absurdity considering its bicameral nature; 2] that A reading of the 1987 Constitution would reveal that
the failure of the Framers to make the proper several provisions were indeed adjusted as to be in
adjustment when there was a shift from unilateralism tune with the shift to bicameralism. One example is
to bicameralism was a plain oversight; 3] that two Section 4, Article VII, which provides that a tie in the
representatives from Congress would not subvert the presidential election shall be broken "by a majority of
intention of the Framers to insulate the JBC from all the Members of both Houses of the Congress,
political partisanship; and 4] that the rationale of the voting separately."20 Another is Section 8 thereof
Court in declaring a seven-member composition which requires the nominee to replace the Vice-
would provide a solution should there be a stalemate President to be confirmed "by a majority of all the
is not exactly correct. Members of both Houses of the Congress, voting
separately."21 Similarly, under Section 18, the
proclamation of martial law or the suspension of the
While the Court may find some sense in the reasoning
privilege of the writ of habeas corpus may be revoked
in amplification of the third and fourth grounds listed
or continued by the Congress, voting separately, by a
by respondents, still, it finds itself unable to reverse
vote of at least a majority of all its Members."22 In all
the assailed decision on the principal issues covered
these provisions, the bicameral nature of Congress
by the first and second grounds for lack of merit.
was recognized and, clearly, the corresponding
Significantly, the conclusion arrived at, with respect to
adjustments were made as to how a matter would be
the first and second grounds, carries greater bearing
handled and voted upon by its two Houses.
in the final resolution of this case.
Thus, to say that the Framers simply failed to adjust
As these two issues are interrelated, the Court shall
Section 8, Article VIII, by sheer inadvertence, to their I humbly reiterate my position that there should be
decision to shift to a bicameral form of the legislature, only one representative of Congress in the JBC in
is not persuasive enough. Respondents cannot just accordance with Article VIII, Section 8 (1) of the 1987
lean on plain oversight to justify a conclusion Constitution x x x.
favorable to them. It is very clear that the Framers
were not keen on adjusting the provision on The aforesaid provision is clear and unambiguous and
congressional representation in the JBC because it does not need any further interpretation. Perhaps, it is
was not in the exercise of its primary function – to apt to mention that the oft-repeated doctrine that
legislate. JBC was created to support the executive "construction and interpretation come only after it has
power to appoint, and Congress, as one whole body, been demonstrated that application is impossible or
was merely assigned a contributory non-legislative inadequate without them."
function.
Further, to allow Congress to have two
The underlying reason for such a limited participation representatives in the Council, with one vote each, is
can easily be discerned. Congress has two (2) to negate the principle of equality among the three
Houses. The need to recognize the existence and the branches of government which is enshrined in the
role of each House is essential considering that the Constitution.
Constitution employs precise language in laying down
the functions which particular House plays, regardless In view of the foregoing, I vote for the proposition that
of whether the two Houses consummate an official act the Council should adopt the rule of single
by voting jointly or separately. Whether in the exercise representation of Congress in the JBC in order to
of its legislative23 or its non-legislative functions such respect and give the right meaning to the above-
as inter alia, the power of appropriation,24 the quoted provision of the Constitution. (Emphases and
declaration of an existence of a state of underscoring supplied)
war,25 canvassing of electoral returns for the President
and Vice-President,26 and impeachment,27 the
On March 14, 2007, then Associate Justice Leonardo
dichotomy of each House must be acknowledged and
A. Quisumbing, also a JBC Consultant, submitted to
recognized considering the interplay between these
the Chief Justice and ex-officio JBC Chairman his
two Houses. In all these instances, each House is
opinion,29 which reads:
constitutionally granted with powers and functions
peculiar to its nature and with keen consideration to 1)
its relationship with the other chamber; and 2) in 8. Two things can be gleaned from the excerpts and
consonance with the principle of checks and citations above: the creation of the JBC is intended to
balances, as to the other branches of government. curtail the influence of politics in Congress in the
appointment of judges, and the understanding is that
seven (7) persons will compose the JBC. As such, the
In checkered contrast, there is essentially no
interpretation of two votes for Congress runs counter
interaction between the two Houses in their
to the intendment of the framers. Such interpretation
participation in the JBC. No mechanism is required
actually gives Congress more influence in the
between the Senate and the House of
appointment of judges. Also, two votes for Congress
Representatives in the screening and nomination of
would increase the number of JBC members to eight,
judicial officers. Rather, in the creation of the JBC, the
which could lead to voting deadlock by reason of
Framers arrived at a unique system by adding to the
even-numbered membership, and a clear violation of
four (4) regular members, three (3) representatives
7 enumerated members in the Constitution.
from the major branches of government - the Chief
(Emphases and underscoring supplied)
Justice as ex-officio Chairman (representing the
Judicial Department), the Secretary of Justice
(representing the Executive Department), and a In an undated position paper,30 then Secretary of
representative of the Congress (representing the Justice Agnes VST Devanadera opined:
Legislative Department). The total is seven (7), not
eight. In so providing, the Framers simply gave As can be gleaned from the above constitutional
recognition to the Legislature, not because it was in provision, the JBC is composed of seven (7)
the interest of a certain constituency, but in reverence representatives coming from different sectors. From
to it as a major branch of government. the enumeration it is patent that each category of
members pertained to a single individual only. Thus,
On this score, a Member of Congress, Hon. Simeon while we do not lose sight of the bicameral nature of
A. Datumanong, from the Second District of our legislative department, it is beyond dispute that
Maguindanao, submitted his well-considered Art. VIII, Section 8 (1) of the 1987 Constitution is
position28 to then Chief Justice Reynato S. Puno: explicit and specific that "Congress" shall have only
"xxx a representative." Thus, two (2) representatives
from Congress would increase the number of JBC member of the House of Representatives in the JBC
members to eight (8), a number beyond what the and vice-versa is, thus, misplaced. In the JBC, any
Constitution has contemplated. (Emphases and member of Congress, whether from the Senate or the
underscoring supplied) House of Representatives, is constitutionally
empowered to represent the entire Congress. It may
In this regard, the scholarly dissection on the matter be a constricted constitutional authority, but it is not
by retired Justice Consuelo Ynares-Santiago, a an absurdity.
former JBC consultant, is worth reiterating.31 Thus:
From this score stems the conclusion that the lone
A perusal of the records of the Constitutional representative of Congress is entitled to one full vote.
Commission reveals that the composition of the JBC This pronouncement effectively disallows the scheme
reflects the Commission’s desire "to have in the of splitting the said vote into half (1/2), between two
Council a representation for the major elements of the representatives of Congress. Not only can this
community." xxx The ex-officio members of the unsanctioned practice cause disorder in the voting
Council consist of representatives from the three main process, it is clearly against the essence of what the
branches of government while the regular members Constitution authorized. After all, basic and
are composed of various stakeholders in the judiciary. reasonable is the rule that what cannot be legally
The unmistakeable tenor of Article VIII, Section 8(1) done directly cannot be done indirectly. To permit or
was to treat each ex-officio member as representing tolerate the splitting of one vote into two or more is
one co-equal branch of government. xxx Thus, the clearly a constitutional circumvention that cannot be
JBC was designed to have seven voting members countenanced by the Court. Succinctly put, when the
with the three ex-officio members having equal say in Constitution envisioned one member of Congress
the choice of judicial nominees. sitting in the JBC, it is sensible to presume that this
representation carries with him one full vote.
xxx
It is also an error for respondents to argue that the
No parallelism can be drawn between the President, in effect, has more influence over the JBC
representative of Congress in the JBC and the simply because all of the regular members of the JBC
exercise by Congress of its legislative powers under are his appointees. The principle of checks and
Article VI and constituent powers under Article XVII of balances is still safeguarded because the
the Constitution. Congress, in relation to the executive appointment of all the regular members of the JBC is
and judicial branches of government, is subject to a stringent process of confirmation by the
constitutionally treated as another co-equal branch in Commission on Appointments, which is composed of
the matter of its representative in the JBC. On the members of Congress.
other hand, the exercise of legislative and constituent
powers requires the Senate and the House of Respondents’ contention that the current irregular
Representatives to coordinate and act as distinct composition of the JBC should be accepted, simply
bodies in furtherance of Congress’ role under our because it was only questioned for the first time
constitutional scheme. While the latter justifies and, in through the present action, deserves scant
fact, necessitates the separateness of the two Houses consideration. Well-settled is the rule that acts done in
of Congress as they relate inter se, no such violation of the Constitution no matter how frequent,
dichotomy need be made when Congress interacts usual or notorious cannot develop or gain acceptance
with the other two co-equal branches of government. under the doctrine of estoppel or laches, because
once an act is considered as an infringement of the
It is more in keeping with the co-equal nature of the Constitution it is void from the very beginning and
three governmental branches to assign the same cannot be the source of any power or authority.
weight to considerations that any of its
representatives may have regarding aspiring It would not be amiss to point out, however, that as a
nominees to the judiciary. The representatives of the general rule, an unconstitutional act is not a law; it
Senate and the House of Representatives act as such confers no rights; it imposes no duties; it affords no
for one branch and should not have any more protection; it creates no office; it is inoperative as if it
quantitative influence as the other branches in the has not been passed at all. This rule, however, is not
exercise of prerogatives evenly bestowed upon the absolute. Under the doctrine of operative facts,
three. Sound reason and principle of equality among actions previous to the declaration of
the three branches support this conclusion. unconstitutionality are legally recognized. They are
[Emphases and underscoring supplied] not nullified. This is essential in the interest of fair
play. To reiterate the doctrine enunciated in Planters
The argument that a senator cannot represent a Products, Inc. v. Fertiphil Corporation:32
The doctrine of operative fact, as an exception to the amount of practical logic or convenience can convince
general rule, only applies as a matter of equity and the Court to perform either an excision or an insertion
fair play. It nullifies the effects of an unconstitutional that will change the manifest intent of the Framers. To
law by recognizing that the existence of a statute prior broaden the scope of congressional representation in
to a determination of unconstitutionality is an the JBC is tantamount to the inclusion of a subject
operative fact and may have consequences which matter which was not included in the provision as
cannot always be ignored. The past cannot always be enacted. True to its constitutional mandate, the Court
erased by a new judicial declaration. The doctrine is cannot craft and tailor constitutional provisions in
applicable when a declaration of unconstitutionality order to accommodate all of situations no matter how
will impose an undue burden on those who have ideal or reasonable the proposed solution may sound.
relied on the invalid law. Thus, it was applied to a To the exercise of this intrusion, the Court declines.
criminal case when a declaration of unconstitutionality
would put the accused in double jeopardy or would WHEREFORE, the Motion for Reconsideration filed
put in limbo the acts done by a municipality in reliance by respondents is hereby DENIED.
upon a law creating it.33
The suspension of the effects of the second
Under the circumstances, the Court finds the paragraph of the dispositive portion of the July 17,
exception applicable in this case and holds that 2012 Decision of the Court, which reads, "This
notwithstanding its finding of unconstitutionality in the disposition is immediately executory," is hereby
current composition of the JBC, all its prior official LIFTED.
actions are nonetheless valid.
SO ORDERED.
Considering that the Court is duty bound to protect the
Constitution which was ratified by the direct action of JOSE CATRAL MENDOZA
the Filipino people, it cannot correct what respondents Associate Justice
perceive as a mistake in its mandate. Neither can the
Court, in the exercise of its power to interpret the spirit
WE CONCUR:
of the Constitution, read into the law something that is
contrary to its express provisions and justify the same
as correcting a perceived inadvertence. To do so MARIA LOURDES P. A. SERENO
would otherwise sanction the Court action of making Chief Justice
amendment to the Constitution through a judicial
pronouncement.
ANTONIO T. PRESBITERO J.
CARPIO VELASCO, JR.
In other words, the Court cannot supply the legislative
Associate Justice Associate Justice
omission. According to the rule of casus omissus "a
case omitted is to be held as intentionally
omitted."34 "The principle proceeds from a reasonable TERESITA J.
certainty that a particular person, object or thing has ARTURO D.
LEONARDO-DE
been omitted from a legislative BRION
CASTRO
enumeration."35 Pursuant to this, "the Court cannot Associate Justice
Associate Justice
under its power of interpretation supply the omission
even though the omission may have resulted from
inadvertence or because the case in question was not DIOSDADO M. LUCAS P.
foreseen or contemplated."36 "The Court cannot PERALTA BERSAMIN
supply what it thinks the legislature would have Associate Justice Associate Justice
supplied had its attention been called to the omission,
as that would be judicial legislation."37 MARIANO C. DEL ROBERTO A.
CASTILLO ABAD
Stated differently, the Court has no power to add Associate Justice Associate Justice
another member by judicial construction.

The call for judicial activism fails to stir the sensibilities MARTIN S. JOSE PORTUGAL
of the Court tasked to guard the Constitution against VILLARAMA, JR. PEREZ
usurpation. The Court remains steadfast in confining Associate Justice Associate Justice
its powers in the sphere granted by the Constitution
itself. Judicial activism should never be allowed to BIENVENIDO L. ESTELA M.
become judicial exuberance.38 In cases like this, no
 Counsel-of-record, the motion for
PERLAS- reconsideration filed by the representative of
REYES
BERNABE the Senate to the Judicial and Bar Council in
Associate Justice
Associate Justice the case of Francisco Chavez v. Judicial and
Bar Council, Sen. Francis Joseph G.
Escudero and Rep. Niel Tupas, Jr.;" id. at
MARVIC MARIO VICTOR F. LEONEN 311-312.
Associate Justice
7
 Id. at 313-314.
CERTIFICATION
8
 Id. at (318-I)-(318-K).
Pursuant to Section 13, Article VIII of the Constitution,
T hereby certify that the conclusions in the above 9
 Id. at 318-J.
Resolution had been reached in consultation before
the case was assigned to the writer of the opinion of
 Petitioner’s Memorandum, id. at 326-380;
10
the Court.
Respondents’ Memorandum, id. at 381-424.
MARIA LOURDES P. A. SERENO 11
 Malolos Constitution Article 80 Title X. – The
Chief Justice
Chief Justice of the Supreme Court and the
Solicitor-General shall be chosen by the
National Assembly in concurrence with the
President of the Republic and the Secretaries
of the Government, and shall be absolutely
Footnotes independent of the Legislative and Executive
Powers."
1
 Rollo, pp. 257-286.
12
 1935 Constitution Article VIII, Section 5. –
2
 Id. at 287-298. The Members of the Supreme Court and all
judges of inferior courts shall be appointed by
3
 Entitled "Resolution expressing the sense of the President with the consent of the
the Senate that the Judicial and Bar Council Commission on Appointments."
(JBC) defer the consideration of all nominees
and the preparation of the short list to be  1 Records of the Constitutional Commission
13

submitted to the President for the position of Proceedings and Debates, 437.
Chief Justice of the Supreme Court;" id. at
303-304.  Section 4 Article X of the 1973 Constitution
14

provides: "The Members of the Supreme

4
 Entitled "Resolution expressing anew the Court and judges of inferior courts shall be
sense of the Senate that the Senate and appointed by the President."
House of Representatives should have one
(1) representative each in the Judicial and Bar  1 Records, Constitutional Commission,
15

Council (JBC) and that each representative is Proceedings and Debates, p. 487.
entitled to a full vote;" id. at 305-307.
 List of JBC Chairpersons, Ex-Officio and
16

5
 Entitled "Resolution to file an urgent motion Regular Members, Ex Officio Secretaries and
with the Supreme Court to set for oral Consultants, issued by the Office of the
argument the motion for reconsideration filed Executive Officer, Judicial and Bar Council,
by the representatives of Congress to the rollo, pp. 62-63.
Judicial and Bar Council (JBC) in the case of
Francisco Chavez v. Judicial and Bar Council, 17
 Id.
Sen. Francis Joseph G.. Escudero and Rep.
Niel Tupas Jr., G.R. No. 2022242 considering  Id. at 80, citing Minutes of the 1st En Banc
18

the primordial importance of the constitutional Executive Meeting, January 12, 2000 and
issues involved;" id. at 308-310. Minutes of the 12th En Banc Meeting, May 30,
2001.
6
 Entitled "Resolution authorizing Senator
Joker P. Arroyo to argue, together with the 19
 Malcolm, The Constitutional Law of the
Philippine Islands (2nd ed. 1926), p. 26. may revoke such proclamation or suspension,
which revocation shall not be set aside by the
20
 1987 Constitution, Article VII, Section 4. – President. Upon the initiative of the President,
The President and the Vice-President shall be the Congress may, in the same manner,
elected by direct vote of the people for a term extend such proclamation or suspension for a
of six years which shall begin at noon on the period to be determined by the Congress, if
thirtieth day of June next following the day of the invasion or rebellion shall persist and
the election and shall end at noon of the same public safety requires it. (Emphasis supplied)
date, six years thereafter. The President shall
not be eligible for any re-election. No person 23
 1987 Constitution, Article VI Section 27(1). –
who has succeeded as President and has Every bill passed by the Congress shall,
served as such for more than four years shall before it becomes a law, be presented to the
be qualified for election to the same office at President. If he approves the same, he shall
any time. sign it; otherwise, he shall veto it and return
the same with his objections to the House
xxx where it originated, which shall enter the
objections at large in its Journal and proceed
The person having the highest number to reconsider it. If, after such reconsideration,
of votes shall be proclaimed elected, two-thirds of all the Members of such House
but in case two or more shall have an shall agree to pass the bill, it shall be sent,
equal and highest number of votes, together with the objections, to the other
one of them shall forthwith be chosen House by which it shall likewise be
by the vote of a majority of all the reconsidered, and if approved by two-thirds of
Members of both Houses of the all the Members of that House, it shall become
Congress, voting separately. a law. In all such cases, the votes of each
(Emphasis supplied) House shall be determined by yeas or nays,
and the names of the Members voting for or
against shall be entered in its Journal. The
x x x.
President shall communicate his veto of any
bill to the House where it originated within
21
 1987 Constitution, Article VII, Section 9. – thirty days after the date of receipt thereof;
Whenever there is a vacancy in the Office of otherwise, it shall become a law as if he had
the Vice-President during the term for which signed it.
he was elected, the President shall nominate
a Vice-President from among the Members of 24
 1987 Constitution, Article VI Section 24. –
the Senate and the House of Representatives
All appropriation, revenue or tariff bills, bills
who shall assume office upon confirmation by
authorizing increase of public debt, bills of
a majority vote of all the Members of both
local application, and private bills shall
Houses of the Congress, voting separately.
originate exclusively in the House of
(Emphasis supplied)
Representatives, but the Senate may propose
or concur with amendments.
22
 1987 Constitution, Article VII, Section 18. –
The President shall be the Commander-in-
 1987 Constitution, Article VI Section 23 (1).
25
Chief of all armed forces of the Philippines
– The Congress, by a vote of two-thirds of
and whenever it becomes necessary, he may
both Houses in joint session assembled,
call out such armed forces to prevent or
voting separately, shall have the sole power to
suppress lawless violence, invasion or
declare the existence of a state of war.
rebellion. In case of invasion or rebellion,
when the public safety requires it, he may, for
a period not exceeding sixty days, suspend
26
 1987 Constitution, Article VII Section 4. –
the privilege of the writ of habeas corpus or The returns of every election for President and
place the Philippines or any part thereof under Vice-President, duly certified by the board of
martial law. Within forty-eight hours from the canvassers of each province or city, shall be
proclamation of martial law or the suspension transmitted to the Congress, directed to the
of the privilege of the writ of habeas corpus, President of the Senate. Upon receipt of the
the President shall submit a report in person certificates of canvass, the President of the
or in writing to the Congress. The Congress, Senate shall, not later than thirty days after
voting jointly, by a vote of at least a majority of the day of the election, open all certificates in
all its Members in regular or special session, the presence of the Senate and the House of
Representatives in joint public session, and 34
 Black’s Law Dictionary, Fifth ed., p. 198.
the Congress, upon determination of the
authenticity and due execution thereof in the  Agpalo, Statutory Construction, 2009 ed., p.
35

manner provided by law, canvass the votes. 231.

The person having the highest number  Id., citing Cartwrite v. Cartwrite, 40 A2d 30,
36

of votes shall be proclaimed elected, 155 ALR 1088 (1944).

but in case two or more shall have an
equal and highest number of votes, 37
 Id., Agpalo, p. 232
one of them shall forthwith be chosen
by the vote of a majority of all the 38
 Dissenting Opinion, Chief Justice
Members of both Houses of the
Panganiban, Central Bank (Now Bangko
Congress, voting separately.
Sentral Ng Pilipinas) Employees Association,
Inc. v. Bangko Sentral ng Pilipinas, G.R. No.
 1987 Constitution, Article XI Section 3 (1). –
27
148208, December 15, 2004, 446 SCRA 299,
The House of Representatives shall have the citing Peralta v. COMELEC. No. L-47771,
exclusive power to initiate all cases of March 11, 1978, 82 SCRA 30, 77, citing
impeachment. concurring and dissenting opinion of former
Chief Justice Fernando, citing Malcolm.
xxx

(6) The Senate shall have the sole The Lawphil Project - Arellano Law Foundation
power to try and decide all cases of
impeachment. When sitting for that
purpose, the Senators shall be on
oath or affirmation. When the
President of the Philippines is on trial, DISSENTING OPINION
the Chief Justice of the Supreme
Court shall preside, but shall not vote. ABAD, J.:
No person shall be convicted without
the concurrence of two-thirds of all the
Members of the Senate. On July 17, 2012, the Court rendered a
Decision1 granting the petition for declaration of
unconstitutionality, prohibition, and injunction filed by
 Dated March 27, 2007; Annex "D," rollo, p.
28
petitioner Francisco I. Chavez, and declaring that the
104. current numerical composition of the Judicial and Bar
Council (JBC) is unconstitutional. The Court also
29
 Annex C, id. at 95. Quoting the enjoined the JBC to reconstitute itself so that only one
interpretation of Article VIII, Section (1) of the member of Congress will sit as a representative in its
Constitution by Fr. Joaquin Bernas in page proceedings, in accordance with Section 8(1), Article
984 of his book, The 1987 Constitution of the VIII of the 1987 Constitution.
Republic of the Philippines, A Commentary.
He quoted another author, Hector de Leon, On July 24, 2012, respondents Senator Francis
and portions of the decisions of this Court in Joseph G. Escudero and Congressman Niel C.
Flores v. Drilon, and Escalante v. Santos, Tupas, Jr. moved for reconsideration.2 The Court then
before extensively quoting the Record of the conducted and heard the parties in oral arguments on
Constitutional Commission of 1986 (pages the following Issues:
444 to 491).
1. Whether or not the current practice of the JBC to
30
 Annex "E," id. at 1205. perform its functions with eight members, two of
whom are members of Congress, runs counter to the
31
 Rollo, pp. 91-93. letter and spirit of Section 8(1), Article VIII of the 1987
Constitution.
 G.R. No. 166006, March 14, 2008, 548
32

SCRA 485. A. Whether or not the JBC should be composed of

seven members only.
33
 Id. at 516-517. (Citations omitted.)
B. Whether or not Congress is entitled to more than
one seat in the JBC. differently, maintain separate administrative
organizations, and deliberate on laws independently.
C. Assuming Congress is entitled to more than one In fact, neither the Senate nor the House of
seat, whether or not each representative of Congress Representatives can by itself claim to represent the
should be entitled to exercise one whole vote. Congress.

I maintain my dissent to the majority opinion now Again, that the framers of the 1987 Constitution did
being reconsidered. not intend to limit the term "Congress" to just either of
the two Houses can be seen from the words that they
To reiterate, the vital question that needs to be used in crafting Section 8(1 ). While the provision
resolved is: whether or not the Senate and the House provides for just "a representative of the Congress," it
of Representatives are entitled to one representative also provides that such representation is "ex officio" or
each in the JBC, both with the right to cast one full "by virtue of one's office, or position."4
vote in its deliberations.
Under the Senate rules, the Chairperson of its Justice
At the core of the present controversy is Section 8(1), Committee is automatically the Senate representative
Article VIII of the 1987 Constitution, which provides to the JBC. In the same way, under the House of
that: Representatives rules, the Chairperson of its Justice
Committee is the House representative to the JBC.
Consequently, there are actually two persons in
Section 8. (1) A Judicial and Bar Council is hereby
Congress who hold separate offices or positions with
created under the supervision of the Supreme Court
the attached function of sitting in the JBC. If the Court
composed of the Chief Justice as ex officio Chairman,
adheres to a literal translation of Section 8(1 ), no
the Secretary of Justice, and a representative of the
representative from Congress will qualify as "ex
Congress as ex officio Members, a representative of
officio" member of the JBC. This would deny
the Integrated Bar, a professor of law, a retired
Congress the representation that the framers of the
Member of the Supreme Court, and a representative
1987 Constitution intended it to have.
of the private sector. (Emphasis supplied)
Having said that the Senate and the House of
In interpreting Section 8(1) above, the majority opinion
Representatives should have one representative each
reiterated that in opting to use the singular letter "a" to
in the JBC, it is logical to conclude that each should
describe "representative of the Congress," the Filipino
also have the right to cast one full vote in its
people through the framers of the 1987 Constitution
deliberations. To split the vote between the two
intended Congress to just have one representative in
legislators would be an absurdity since it would
the JBC. The majority opinion added that there could
diminish their standing and make them second class
not have been any plain oversight in the wordings of
members of the JBC, something that the Constitution
the provision since the other provisions of the 1987
clearly does not contemplate. Indeed, the JBC
Constitution were amended accordingly with the shift
abandoned the half-a-vote practice on January 12,
to a bicameral legislative body.
2000 and recognized the right of both legislators to
cast one full vote each. Only by recognizing this right
The mere fact, however, that adjustments were made can the true spirit and reason of Section 8(1) be
in some provisions should not mislead the Court into attained.
concluding that all provisions have been amended to
recognize the bicameral nature of Congress. As I
For the above reasons, I vote to GRANT the motion
have previously noted in my dissenting opinion, Fr.
for reconsideration.
Joaquin G. Bernas, a member of the Constitutional
Commission himself, admitted that the committee
charged with making adjustments in the previously ROBERTO A. ABAD
passed provisions covering the JBC, failed to consider Associate Justice
the impact of the changed character of the Legislature
on the inclusion of "a representative of the Congress"
in the membership of the JBC.3

Indeed, to insist that only one member of Congress Footnotes

from either the Senate or the House of
Representatives should sit at any time in the JBC, is 1
 Rollo, pp. 226-250.
to ignore the fact that they are still separate and
distinct from each other although they are both 2
 Id. at 257-284.
involved in law-making. Both legislators are elected
 3
 http://opinion.inquirer.net/31813/jbc-odds- Our Constitution creates a Congress consisting of two
and-ends (last accessed February 15, 2013). chambers. Thus, in Article VI, Section 1, the
Constitution provides the following:
 Webster's New World College Dictionary, 3rd
4

Edition, p. 477. The legislative power shall be vested in the

Congress of the Philippines which shall consist of
a Senate and a House of Representatives x x x.
The Lawphil Project - Arellano Law Foundation (Emphasis provided)

Senators are "elected at large by the qualified voters

of the Philippines".1 Members of the House of
Representatives, on the other hand, are elected by
DISSENTING OPINION legislative districts2 or through the party list
system.3 The term of a Senator4 is different from that
LEONEN, J.: of a Member of the House of
Representatives.5 Therefore, the Senate and the
I dissent. House of Representatives while component parts of
the Congress are not the same in terms of their
representation. The very rationale of a bicameral
Both the Senate and the House of Representatives system is to have the Senators represent a national
must be represented in the Judicial and Bar Council. constituency. Representatives of the House of
This is the Constitution's mandate read as a whole Representatives, on the other hand, are dominantly
and in the light of the ordinary and contemporary from legislative districts except for one fifth which are
understanding of our people of the structure of our from the party list system.
government. Any other interpretation diminishes
Congress and negates the effectivity of its
representation in the Judicial and Bar Council. Each chamber is organized separately.6 The Senate
and the House each promulgates their own rules of
procedure.7 Each chamber maintains separate
It is a Constitution we are interpreting. More than Journals.8 They each have separate Records of their
privileging a textual preposition, our duty is to ensure proceedings.9The Senate and the House of
that the constitutional project ratified by our people is Representatives discipline their own respective
given full effect. members.10
At issue in this case is the interpretation of Article VIII, To belabor the point: There is no presiding officer for
Section 8 of the Constitution which provides the the Congress of the Philippines, but there is a Senate
following: President and a Speaker of the House of
Representatives. There is no single journal for the
Section 8. (1) A Judicial and Bar Council is hereby Congress of the Philippines, but there is a journal for
created under the supervision of the Supreme Court the Senate and a journal for the House of
composed of the Chief Justice as ex officio Chairman, Representatives. There is no record of proceedings
the Secretary of for the entire Congress of the Philippines, but there is
a Record of proceedings for the Senate and a Record
Justice, and a representative of the Congress as ex of proceedings for the House of Representatives. The
officio Members, a representative of the Integrated Congress of the Philippines does not discipline its
Bar, a professor of law, a retired Member of the members. It is the Senate that promulgates its own
Supreme Court, and a representative of the private rules and disciplines its members. Likewise, it is the
sector. (Emphasis provided) House that promulgates its own rules and disciplines
its members.
Mainly deploying verba legis as its interpretative
modality, the main opinion chooses to focus on the No Senator reports to the Congress of the Philippines.
article "a." As correctly pointed out in the original Rather, he or she reports to the Senate. No Member
dissent of Justice Robert A bad, the entire phrase of the House of Representatives reports to the
includes the words "representative of Congress" and Congress of the Philippines. Rather, he or she reports
"ex officio Members." In the context of the to the House of Representatives.
constitutional plan involving a bicameral Congress,
these words create ambiguity. Congress, therefore, is the Senate and the House of
Representatives. Congress does not exist separate
A Bicameral Congress from the Senate and the House of Representatives.
Any Senator acting ex officio or as a representative of the Senate. As I said we may have probably adopted
the Senate must get directions from the Senate. By the American formula in the beginning but over these
constitutional design, he or she cannot get years, I think we have developed that kind of a system
instructions from the House of Representatives. If a and adopted it to our own needs. So at this point in
Senator represents the Congress rather than simply time, with people power working, it is not only the
the Senate, then he or she must be open to amend or Members of the House who can be subjected to
modify the instructions given to him or her by the people power but also the Members of the Senate
Senate if the House of Representatives’ instructions because they can also be picketed and criticized
are different. Yet, the Constitution vests disciplinary through written articles and talk shows. And even the
power only on the Senate for any Senator. people not only from their constituencies in their
respective regions and districts but from the whole
The same argument applies to a Member of the country can exercise people power against the
House of Representatives. Members of the Senate because they are supposed
to represent the entire country. So while the Members
No Senator may carry instructions from the House of of Congress become unconsciously parochial in their
Representatives. No Member of the House of desire to help their constituencies, the Members of the
Representatives may carry instructions from the Senate are there to take a look at all of these
Senate. Neither Senator nor Member of the House of parochial proposals and coordinate them with the
Representatives may therefore represent Congress national problems. They may be detached in that
as a whole. sense but they are not detached from the people
because they themselves know and realize that they
owe their position not only to the people from their
The difference between the Senate and the House of
respective provinces but also to the people from the
Representative was a subject of discussion in the
whole country. So, I say that people power now will be
Constitutional Commission. In the July 21, 1986
able to monitor the activities of the Members of the
Records of the Constitutional Commission,
House of Representatives and that very same people
Commissioner Jose F. S. Bengzon presented the
power can be also used to monitor the activities of the
following argument during the discussion on
Members of the Senate.11
bicameralism, on the distinction between
Congressmen and Senators, and the role of the
Filipino people in making these officials accountable: Commissioner Bengzon provided an illustration of the
fundamental distinction between the House of
Representatives and the Senate, particularly
I grant the proposition that the Members of the House
regarding their respective constituencies and
of Representatives are closer to the people that they
electorate. These differences, however, only illustrate
represent. I grant the proposition that the Members of
that the work of the Senate and the House of
the House of Representatives campaign on a one-to-
Representatives taken together results in a Congress
one basis with the people in the barrios and their
functioning as one branch of government. Article VI,
constituencies. I also grant the proposition that the
Section 1, as approved by the Commission, spoke of
candidates for Senator do not have as much time to
one Congress whose powers are vested in both the
mingle around with their constituencies in their
House of Representatives and the Senate.
respective home bases as the candidates for the
House. I also grant the proposition that the candidates
for the Senate go around the country in their efforts to Thus, when the Constitution provides that a
win the votes of all the members of the electorate at a "representative of Congress" should participate in the
lesser time than that given to the candidates for the Judicial and Bar Council, it cannot mean a Senator
House of Representatives. But then the lesson of the carrying out the instructions of the House or a
last 14 years has made us mature in our political Member of the House of Representative carrying out
thinking and has given us political will and self- instructions from the Senate. It is not the kind of a
determination. We really cannot disassociate the fact single Congress contemplated by our Constitution.
that the Congressman, the Member of the House of The opinion therefore that a Senator or a Member of
Representatives, no matter how national he would like the House of Representative may represent the
to think, is very much strongly drawn into the Congress as a whole is contrary to the intent of the
problems of his local constituents in his own district. Constitution. It is unworkable.

Due to the maturity of the Filipinos for the last 14 One mechanism used in the past to work out the
years and because of the emergence of people consequence of the majority’s opinion is to allow a
power, I believe that this so-called people power can Senator and a Member of the House of
be used to monitor not only the Members of the Representative to sit in the Judicial and Bar Council
House of Representatives but also the Members of but to each allow them only half a vote.
Within the Judicial and Bar Council, the Chief Justice other 114 other places in the Constitution that uses
is entitled to one vote. The Secretary of Justice is also the word "Congress".
entitled to one whole vote and so are the Integrated
Bar of the Philippines, the private sector, legal Or, we could give the provision a reasonable
academia, and retired justices. Each of these sectors interpretation that is within the expectations of the
are given equal importance and rewarded with one people who ratified the Constitution by also seeing
whole vote. However, in this view, the Senate is only and reading the words "representative of Congress"
worth fifty percent of the wisdom of these sectors. and "ex officio."
Likewise, the wisdom of the House of Representatives
is only worth fifty percent of these institutions. This proposed interpretation does not violate the basic
tenet regarding the authoritativeness of the text of the
This is constitutionally abominable. It is inconceivable Constitution. It does not detract from the text. It
that our people, in ratifying the Constitution granting follows the canonical requirement of verba legis. But
awesome powers to Congress, intended to diminish in doing so, we encounter an ambiguity.
its component parts. After all, they are institutions
composed of people who have submitted themselves In Macalintal v. Presidential Electoral Tribunal,13 we
to the electorate. In creating shortlists of possible said:
candidates to the judiciary, we can safely suppose
that their input is not less than the input of the
As the Constitution is not primarily a lawyer’s
professor of law or the member of the Integrated Bar
document, it being essential for the rule of law to
of the Philippines or the member from the private
obtain that it should ever be present in the people’s
sector.
consciousness, its language as much as possible
should be understood in the sense they have in
The other solution done in the past was to alternate common use. What it says according to the text of the
the seat between a Senator and a Member of the provision to be construed compels acceptance and
House of Representatives. negates the power of the courts to alter it, based on
the postulate that the framers and the people mean
To alternate the seat given to Congress between the what they say. Thus these are cases where the need
Senate and the House of Representatives would for construction is reduced to a minimum.
mean not giving a seat to the Congress at all. Again,
when a Senator is seated, he or she represents the However, where there is ambiguity or doubt, the
Senate and not Congress as a whole. When a words of the Constitution should be interpreted in
Member of the House of Representative is seated, he accordance with the intent of its framers or ratio legis
or she can only represent Congress as a whole. Thus, et anima. A doubtful provision must be examined in
alternating the seat not only diminishes congressional light of the history of the times, and the condition and
representation; it negates it. circumstances surrounding the framing of the
Constitution. In following this guideline, courts should
Constitutional Interpretation bear in mind the object sought to be accomplished in
adopting a doubtful constitutional provision, and the
The argument that swayed the majority in this case’s evils sought to be prevented or remedied.
original decision was that if those who crafted our Consequently, the intent of the framers and the
Constitution intended that there be two people ratifying the constitution, and not the
representatives from Congress, it would not have panderings of self-indulgent men, should be given
used the preposition "a" in Article VIII, Section 8 (1). effect.
However, beyond the number of representatives, the
Constitution intends that in the Judicial and Bar Last, ut magis valeat quam pereat – the Constitution
Council, there will be representation from Congress is to be interpreted as a whole. We intoned thus in the
and that it will be "ex officio", i.e., by virtue of their landmark case of Civil Liberties Union v. Executive
positions or offices. We note that the provision did not Secretary:
provide for a number of members to the Judicial and
Bar Council. This is unlike the provisions creating It is a well-established rule in constitutional
many other bodies in the Constitution.12 construction that no one provision of the Constitution
is to be separated from all the others, to be
In other words, we could privilege or start our considered alone, but that all the provisions bearing
interpretation only from the preposition "a" and from upon a particular subject are to be brought into view
there provide a meaning that ensures a difficult and and to be so interpreted as to effectuate the great
unworkable result -- one which undermines the purposes of the instrument. Sections bearing on a
concept of a bicameral congress implied in all the particular subject should be considered and
interpreted together as to effectuate the whole judicial position. We take judicial notice that for
purpose of the Constitution and one section is not to vacancies, each member of the Judicial and Bar
be allowed to defeat another, if by any reasonable Council is asked to list at least three (3) names. All
construction, the two can be made to stand together. these votes are tallied and those who garner a
specific plurality are thus put on the list and
In other words, the court must harmonize them, if transmitted to the President. There had been no
practicable, and must lean in favor of a construction occasion when the Judicial and Bar Council ever
which will render every word operative, rather than needed to break a tie. The Judicial and Bar Council’s
one which may make the words idle and nugatory. functions proceed regardless of whether they have
(Emphasis provided) seven or eight members.

And in Civil Liberties Union v. Executive The second reason that the main opinion accepted as
Secretary,13 we said: persuasive was the opinion that Congress does not
discharge its function to check and balance the power
A foolproof yardstick in constitutional construction is of both the Judiciary and the Executive in the Judicial
the intention underlying the provision under and Bar Council. From this premise, it then proceeds
consideration. Thus, it has been held that the Court in to argue that the Representative of Congress, who is
construing a Constitution should bear in mind the ex officio, does not need to consult with Congress as
object sought to be accomplished by its adoption, and a whole.
the evils, if any, sought to be prevented or remedied.
A doubtful provision will be examined in the light of This is very perplexing and difficult to accept.
the history of the times, and the condition and
circumstances under which the Constitution was By virtue of the fundamental premise of separation of
framed. The object is to ascertain the reason which powers, the appointing power in the judiciary should
induced the framers of the Constitution to enact the be done by the Supreme Court. However, for judicial
particular provision and the purpose sought to be positions, this is vested in the Executive. Furthermore,
accomplished thereby, in order to construe the whole because of the importance of these appointments, the
as to make the words consonant to that reason and President’s discretion is limited to a shortlist submitted
calculated to effect that purpose. to him by the Judicial and Bar Council which is under
the supervision of the Supreme Court but composed
The authoritativeness of text is no excuse to provide of several components.
an unworkable result or one which undermines the
intended structure of government provided in the The Judicial and Bar Council represents the
Constitution. Text is authoritative, but it is not constituents affected by judicial appointments and by
exhaustive of the entire universe of meaning. extension, judicial decisions. It provides for those who
have some function vis a vis the law that should be
There is no compelling reason why we should blind applied and interpreted by our courts. Hence,
ourselves as to the meaning of "representative of represented are practicing lawyers (Integrated Bar of
Congress" and "ex officio." There is no compelling the Philippines), prosecutors (Secretary of the
reason why there should only be one representative Department of Justice), legal academia (professor of
of a bicameral Congress. law), and judges or justices (retired justice and the
Chief Justice). Also represented in some way are
Proposed Reasons for Only One Representative of those that will be affected by the interpretation directly
Congress (private sector representative).

The first reason to support the need for only one Congress is represented for many reasons.
representative of Congress is the belief that there
needs to be an odd number in the Judicial and Bar One, it crafts statutes and to that extent may want to
Council. ensure that those who are appointed to the judiciary
are familiar with these statutes and will have the
This is true only if the decision of the constitutional competence, integrity, and independence to read its
organ in question is a dichotomous one, i.e., a yes or meaning.
a no. It is in this sense that a tie-breaker will be
necessary. Two, the power of judicial review vests our courts with
the ability to nullify their acts. Congress, therefore,
However, the Judicial and Bar Council is not that sort has an interest in the judicial philosophy of those
of a constitutional organ. Its duty is to provide the considered for appointment into our judiciary.
President with a shortlist of candidates to every
Three, Congress is a political organ. As such, it is to the views of the large majority who did not talk,
familiar with the biases of our political leaders much less of the mass or our fellow citizens whose
including that of the President. Thus, it will have votes at the polls gave that instrument the force of
greater sensitivity to the necessity for political fundamental law. We think it safer to construe the
accommodations if there be any. Keeping in mind the constitution from what appears upon its face.’The
independence required of our judges and justices, the proper interpretation therefore depends more on
Members of Congress may be able to appreciate the how it was understood by the people adopting it
kind of balance that will be necessary -- the same than in the framers’ understanding
balance that the President might be able to likewise thereof.15 (Emphasis provided)
appreciate -- when putting a person in the shortlist of
judicial candidates. Not only do they appreciate this Also worth Our recall is the celebrated comment of
balance, they embody it. Senators and Members of Charles P. Curtis, Jr. on the role of history in
the House of Representatives (unlike any of the other constitutional exegesis:16
members of the Judicial and Bar Council), periodically
submit themselves to the electorate. The intention of the framers of the Constitution, even
assuming we could discover what it was, when it is
It is for these reasons that the Congressional not adequately expressed in the Constitution, that is
representatives in the Judicial and Bar Council may to say, what they meant when they did not say it,
be instructed by their respective chambers to consider surely that has no binding force upon us. If we look
some principles and directions. Through resolutions or behind or beyond what they set down in the
actions by the Congressional Committees they document, prying into what else they wrote and
represent, the JBC Congressional representatives’ what they said, anything we may find is only
choices may be constrained. Therefore, they do not advisory. They may sit in at our councils. There is
sit there just to represent themselves. Again, they are no reason why we should eavesdrop on
"representatives of Congress" "ex officio". theirs.17 (Emphasis provided)

The third reason to support only one representative of In addition to the interpretative value of the discussion
Congress is the belief that there is the "unmistakable in the Constitutional Commission, we should always
tenor" in the provision in question that one co-equal be careful when we quote from their records without
branch should be represented only by one understanding their context.
Representative.14 It may be true that the Secretary of
Justice is the political alter ego of the President or the The Committees of the Constitutional Commission
Executive. However, Congress as a whole does not were all tasked to finish their reports not later than
have a political alter ego. In other words, while the July 7, 1986.18 The Second and Third Readings were
Executive may be represented by a single individual, scheduled to finish not later than August 15,
Congress cannot be represented by an individual. 1986.19 The members of the Sponsorship and Style
Congress, as stated earlier, operates through the Committee were tasked to finish their work of
Senate and the House of Representatives. Unlike the formulating and polishing the style of the final draft of
Executive, the Legislative branch cannot be the new Constitution scheduled for submission to the
represented by only one individual. entire membership of the Commission not later than
August 25, 1986.20
A Note on the Work of the Constitutional Commission
The Rules of the Constitutional Commission also
Time and again, we have clarified the interpretative provided for a process of approving resolutions and
value to Us of the deliberations of the Constitutional amendments.
Commission. Thus in Civil Liberties Union v.
Executive Secretary, we emphasized: Constitutional proposals were embodied in resolutions
signed by the author.21 If they emanated from a
While it is permissible in this jurisdiction to consult the committee, the resolution was signed by its
debates and proceedings of the constitutional chairman.22 Resolutions were filed with the Secretary-
convention in order to arrive at the reason and General.23 The First Reading took place when the
purpose of the resulting Constitution, resort thereto titles of the resolutions were read and referred to the
may be had only when other guides fail as said appropriate committee.24
proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in The Committees then submitted a Report on each
the constitutional convention ‘are of value as showing resolution.25 The Steering Committee took charge of
the views of the individual members, and as indicating including the committee report in the Calendar for
the reason for their votes, but they give Us no light as Second Reading.26 The Second Reading took place
on the day set for the consideration of a Commission for the whole day.
resolution.27 The provisions were read in full with the
amendments proposed by the committee, if there Then, a vote on the structure of Congress took
were any.28 place.43 Forty four (44) commissioners cast their votes
during the roll call.44 The vote was 23 to 22.45
A motion to close debate took place after three
speeches for and two against, or if only one speech On October 8, 1986, the Article on the Judiciary was
has been raised and none against it.29 The President reopened for purposes of introducing amendments to
of the Constitutional Commission had the prerogative the proposed Sections 3, 7, 10, 11, 13, and 14.46
to allow debates among those who had indicated that
they intended to be heard on certain matters.30 After On October 9, 1986, the entire Article on the
the close of the debate, the Constitutional Legislature was approved on Third Reading.47
Commission proceeded to consider the Committee
amendments.31
By October 10, 1986, changes in style on the Article
on the Legislature were introduced.48
After a resolution was approved on Second Reading,
it was included in the Calendar for Third
On October 15, 1986, Commissioner Guingona
Reading.32 Neither further debate nor amendment
presented the 1986 Constitution to the President of
shall be made on the resolution on its Third
the Constitutional Commission, Cecilia Munoz-
Reading.33 All constitutional proposals approved by
Palma.49
the Commission after Third Reading were referred to
the Committees on Sponsorship and Style for
collation, organization, and consolidation into a It is apparent that the Constitutional Commission
complete and final draft of the Constitution.34 The final either through the Style and Sponsorship Committee
draft was submitted to the Commission for the sole or the Committees on the Legislature and the
purpose of determining whether it reflects faithfully Judiciary was not able to amend the provision
and accurately the proposals as approved on Second concerning the Judicial and Bar Council after the
Reading.35 Commission had decided to propose a bicameral
Congress. We can take judicial notice of the
chronology of events during the deliberations of the
With respect to the provision which is now Article VIII,
Constitutional Commission. The chronology should be
Section 8 (1), the timetable was as follows:
taken as much as the substance of discussions
exchanged between the Commissioners.
On July 10, 1986, the Committee on the Judiciary
presented its Report to the
The quotations from the Commissioners mentioned in
Commission.36 Deliberations then took place on the
the main opinion and in the proposed resolution of the
same day; on July 11, 1986; and on July 14, 1986. It
present Motion for Reconsideration should thus be
was on July 10 that Commissioner Rodrigo raised
appreciated in its proper context.
points regarding the Judicial and Bar Council.37 The
discussion spoke of the Judicial and Bar Council
having seven members. The interpellation involving Commissioners Rodrigo
and Concepcion took place on July 10, 1986 and on
July 14, 1986.50 These discussions were about
Numerous mentions of the Judicial and Bar Council
Committee Report No. 18 on the Judiciary. Thus:
being comprised of seven members were also made
by Commissioners on July 14, 1986. On the same
day, the amended article was approved by unanimous MR. RODRIGO: Let me go to another point then.
voting.38
On page 2, Section 5, there is a novel provision about
On July 19, 1986, the vote on Third Reading on the appointments of members of the Supreme Court and
Article on the Judiciary took place.39 The vote was 43 of judges of lower courts. At present it is the President
and none against.40 who appoints them. If there is a Commission on
Appointments, then it is the President with the
confirmation of the Commission on Appointments. In
Committee Report No. 22 proposing an article on a
this proposal, we would like to establish a new office,
National Assembly was reported out by July 21,
a sort of a board composed of seven members, called
1986.41 It provided for a unicameral assembly.
the Judicial and Bar Council. And while the President
Commissioner Hilario Davide, Jr., made the
will still appoint the members of the judiciary, he will
presentation and stated that they had a very difficult
be limited to the recommendees of this Council.
decision to make regarding bicameralism and
unicameralism.42 The debate occupied the
 xxxx Mr. Presiding Officer, if this Council is created, there
will be no uniformity in our constitutional provisions on
MR. RODRIGO: Of the seven members of the Judicial appointments. The members of the Judiciary will be
and Bar Council, the President appoints four of them segregated from the rest of the government. Even a
who are the regular members. municipal judge cannot be appointed by the President
except upon recommendation or nomination of three
xxxx names by this committee of seven people,
commissioners of the Commission on Elections, the
COA and Commission on Civil Service x x x even
MR. CONCEPCION: The only purpose of the
ambassadors, generals of the Army will not come
Committee is to eliminate partisan politics.51
under this restriction. Why are we going to segregate
the Judiciary from the rest of our government in the
xxxx appointment of the high-ranking officials?

It must also be noted that during the same day and in Another reason is that this Council will be ineffective.
the same discussion, both Commissioners Rodrigo It will just besmirch the honor of our President without
and Concepcion later on referred to a ‘National being effective at all because this Council will be
Assembly’ and not a ‘Congress,’ as can be seen here: under the influence of the President. Four out of
seven are appointees of the President, and they can
MR. RODRIGO: Another point. Under our present be reappointed when their term ends. Therefore, they
Constitution, the National Assembly may enact rules would kowtow to the President. A fifth member is the
of court, is that right? On page 4, the proviso on lines Minister of Justice, an alter ego of the President.
17 to 19 of the Article on the Judiciary provides: Another member represents the legislature. In all
probability, the controlling party in the legislature
The National Assembly may repeal, alter, or belongs to the President and, therefore, this
supplement the said rules with the advice and representative from the National Assembly is also
concurrence of the Supreme Court. under the influence of the President. And may I say,
Mr. Presiding Officer, that even the Chief Justice of
MR. CONCEPCION: Yes. the Supreme Court is an appointee of the President.
So, it is futile; he will be influenced anyway by the
MR. RODRIGO: So, two things are required of the President.53
National Assembly before it can repeal, alter or
supplement the rules concerning the protection and It must again be noted that during this day and period
enforcement of constitutional rights, pleading, etc. — of amendments after the quoted passage in the
it must have the advice and concurrence of the Decision, the Commission later on made use of the
Supreme Court. term ‘National Assembly’ and not ‘Congress’ again:

MR. CONCEPCION: That is correct.52 MR. MAAMBONG: Presiding Officer and members of
the Committee, I propose to delete the last sentence
On July 14, 1986, the Commission proceeded with the on Section 16, lines 28 to 30 which reads: "The Chief
Period of Amendments. This was when the exchange Justice shall address the National Assembly at the
noted in the main opinion took place. Thus: opening of each regular session."

MR. RODRIGO: If my amendment is approved, then May I explain that I have gone over the operations of
the provision will be exactly the same as the provision other deliberative assemblies in some parts of the
in the 1935 Constitution, Article VIII, Section 5. world, and I noticed that it is only the Chief Executive
or head of state who addresses the National
xxxx Assembly at its opening. When we say "opening," we
are referring to the first convening of any national
assembly. Hence, when the Chief Executive or head
If we do not remove the proposed amendment on the of state addresses the National Assembly on that
creation of the Judicial and Bar Council, this will be a occasion, no other speaker is allowed to address the
diminution of the appointing power of the highest body.
magistrate of the land, of the President of the
Philippines elected by all the Filipino people. The
appointing power will be limited by a group of seven So I move for the deletion of this last sentence.54
people who are not elected by the people but only
appointed. Based on the chronology of events, the discussions
cited by the main ponencia took place when the
commissioners were still contemplating a unicameral ordinary people who seek to understand this most
legislature in the course of this discussion. basic law through Our decisions would understand
Necessarily, only one Representative would be that beyond a single isolated text -- even beyond a
needed to fully effect the participation of a unicameral prepos1t10n in Article VIII, Section 8 (1 ), our
legislature. Therefore, any mention of the composition primordial values and principles are framed,
of the JBC having seven members in the records of congealed and will be given full effect.
the Constitutional Commission, particularly during the
dates cited, was obviously within the context that the In a sense, we do not just read words in a legal
Commission had not yet voted and agreed upon a document; we give meaning to a Constitution.
bicameral legislature.
For these reasons, I vote to grant the Motion for
The composition of the Congress as a bilateral Reconsideration and deny the Petition for lack of
legislature became final only after the JBC merit.
discussions as a seven-member Council indicated in
the Records of the Constitutional Commission took MARVIC MARIO VICTOR F. LEONEN
place. This puts into the proper context the Associate Justice
recognition by Commissioner Christian Monsod on
July 30, 1986, which runs as follows:

Last week, we voted for a bicameral legislature.

Perhaps it is symptomatic of what the thinking of this
group is, that all the provisions that were being drafted
up to that time assumed a unicameral government.55

The repeated mentions of the JBC having seven

members as indicated in the Records of the
Constitutional Commission do not justify the points
raised by petitioner. This is a situation where the
records of the Constitutional Commission do not serve
even as persuasive means to ascertain intent at least
in so far as the intended numbers for the Judicial and
Bar Council. Certainly they are not relevant even to
advise us on how Congress is to be represented in
that constitutional organ.

We should never forget that when we interpret the

Constitution, we do so with full appreciation of every
part of the text within an entire document understood
by the people as they ratified it and with all its
contemporary consequences. As an eminent author in
constitutional theory has observed while going
through the various interpretative modes presented in
jurisprudence: "x x x all of the methodologies that will
be discussed, properly understood, figure in
constitutional analysis as opportunities: as starting
points, constituent parts of complex arguments, or
concluding evocations." 56

Discerning that there should be a Senator and a

Member of the House of Representatives that sit in
the Judicial and Bar Council so that Congress can be
fully represented ex officio is not judicial activism. It is
in keeping with the constitutional project of a
bicameral Congress that is effective whenever and
wherever it is represented. It is in tune with how our
people understand Congress as described in the
fundamental law. It is consistent with our duty to read
the authoritative text of the Constitution so that
 Resources Corporation (K-Water) which won the
public bidding conducted by the Power Sector Assets
and Liabilities Management Corporation (PSALM).

The Facts

Respondent PSALM is a government-owned and

controlled corporation created by virtue of Republic
Act No. 9136, otherwise known as the "Electric Power
1 

Industry Reform Act of 2001" (EPIRA). The

EPIRAprovided a framework for the restructuring of
G.R. No. 192088               October 9, 2012
the electric power industry, including the privatization
of the assets of the National Power Corporation
INITIATIVES FOR DIALOGUE AND (NPC), the transition to the desired competitive
EMPOWERMENT THROUGH ALTERNATIVE structure, and the definition of the responsibilities of
LEGAL SERVICES, INC. (IDEALS, INC.), the various government agencies and private entities.
represented by its Executive Director, Mr. Said law mandated PSALM to manage the orderly
Edgardo Ligon, and FREEDOM FROM DEBT sale, disposition, and privatization of NPC generation
COALITION (FDC), represented by its Vice assets, real estate and other disposable assets, and
President Rebecca L. Malay, AKBAYAN CITIZEN'S Independent Power Producer (IPP) contracts with the
ACTION PARTY, represented by its Chair objective of liquidating all NPC financial obligations
Emeritus Loretta Anne P. Rosales, ALLIANCE OF and stranded contract costs in an optimal manner,
PROGRESSIVE LABOR, represented by its which liquidation is to be completed within PSALM’s
Chairperson, Daniel L. Edralin, REP. WALDEN 25-year term of existence. 2 

BELLO, in his capacity as duly-elected Member of

the House of Representatives, Petitioners, 
Sometime in August 2005, PSALM commenced the
vs.
privatization of the 246-megawatt (MW) AHEPP
POWER SECTOR ASSETS AND LIABILITIES
located in San Lorenzo, Norzagaray, Bulacan.
MANAGEMENT CORPORATION (PSALM),
AHEPP’s main units built in 1967 and 1968, and 5
represented by its Acting President and Chief
auxiliary units, form part of the Angat Complex which
Executive Officer Atty. Ma. Luz L. Caminero,
includes the Angat Dam, Angat Reservoir and the
METROPOLITAN WATERWORKS AND
outlying watershed area. A portion of the AHEPP - the
SEWERAGE SYSTEM (MWSS), represented by its
10 MW Auxiliary Unit No. 4 completed on June 16,
Administrator Atty. Diosdado M. Allado,
1986 and the 18 MW Auxiliary Unit No. 5 completed
NATIONAL IRRIGATION ADMINISTRATION (NIA),
on January 14, 1993 - is owned by respondent
represented by its Administrator Carlos S.
Metropolitan Waterworks and Sewerage System
Salazar, KOREA WATER RESOURCES
(MWSS). The main units produce a total of 200 MW
3 

CORPORATION, represented by its Chief

of power while the auxiliary units yield the remaining
Executive Officer, Kim Kuen-Ho and/or Attorneys-
46 MW of power. The Angat Dam and AHEPP are
in-fact, Atty. Anna Bianca L. Torres and Atty.
utilized for power generation, irrigation, water supply
Luther D. Ramos, FIRST GEN NORTHERN
and flood control purposes. Because of its multi-
ENERGY CORP., represented by its President, Mr.
functional design, the operation of the Angat Complex
Federico R. Lopez, SAN MIGUEL CORP.,
involves various government agencies, namely: (1)
represented by its President, Mr. Ramon S. Ang,
NPC; (2) National Water Resources Board (NWRB);
SNABOITIZ POWER-PANGASINAN INC.,
(3) MWSS; (4) respondent National Irrigation
represented by its President, Mr. Antonio R.
Administration (NIA); and (5) Philippine Atmospheric,
Moraza, TRANS-ASIA OIL AND ENERGY
Geophysical and Astronomical Services
DEVELOPMENT CORPORATION, represented by
Administration (PAG-ASA).
its President and CEO, Mr. Francisco L. Viray, and
DMCI POWER CORP., represented by its
President, Mr. Nestor Dadivas, Respondents. On December 15, 2009, PSALM’s Board of Directors
approved the Bidding Procedures for the privatization
of the AHEPP. An Invitation to Bid was published on
DECISION
January 11, 12 and 13, 2010 in three major national
newspapers. Subject of the bid was the AHEPP
VILLARAMA, J.: consisting of 4 main units and 3 auxiliary units with an
aggregate installed capacity of 218 MW. The two
Before us is a petition for certiorari and prohibition auxiliary units owned by MWSS were excluded from
seeking to permanently enjoin the sale of the Angat the bid.
Hydro-Electric Power Plant (AHEPP) to Korea Water
The following terms and conditions for the purchase of Corporation  
AHEPP were set forth in the Bidding Package: San Miguel Corporation 312,500,000.00
SNAboitiz Power-Pangasinan,
IB-05 CONDITION OF THE SALE 256,000,000.00
Inc.
Trans-Asia Oil & Energy 237,000,000.00
The Asset shall be sold on an "AS IS, WHERE Development Corporation  
IS" basis.
DMCI Power Corporation 188,890,000.00
The Angat Dam (which is part of the Non-Power
Components) is a multi-purpose hydro facility which On May 5, 2010, and after a post-bid evaluation,
currently supplies water for domestic use, irrigation PSALM’s Board of Directors approved and confirmed
and power generation. The four main units of the the issuance of a Notice of Award to the highest
Angat Plant release water to an underground trailrace bidder, K-Water. 6 

that flows towards the Bustos Dam which is owned

and operated by the National Irrigation Administration On May 19, 2010, the present petition with prayer for
("NIA") and provides irrigation requirements to certain a temporary restraining order (TRO) and/or writ of
areas in Bulacan. The water from the auxiliary units 1, preliminary injunction was filed by the Initiatives for
2 and 3 flows to the Ipo Dam which is owned and Dialogue and Empowerment Through Alternative
operated by MWSS and supplies domestic water to Legal Services, Inc. (IDEALS), Freedom from Debt
Metro Manila and other surrounding cities. Coalition (FDC), AKBAYAN Citizen’s Action Party
(AKBAYAN) and Alliance of Progressive Labor.
The priority of water usage under Philippine Law
would have to be observed by the Buyer/Operator. On May 24, 2010, this Court issued a Status QuoAnte
Order directing the respondents to maintain the status
The Winning Bidder/Buyer shall be requested to enter quo prevailing before the filing of the petition and to
into an operations and maintenance agreement with file their respective Comments on the petition. 7 

PSALM for the Non-Power Components in

accordance with the terms and conditions of the O & Arguments of the Parties
M Agreement to be issued as part of the Final
Transaction Documents. The Buyer, as Operator, Petitioners contend that PSALM gravely abused its
shall be required to operate and maintain the Non- discretion when, in the conduct of the bidding it
Power Components at its own cost and expense. disregarded and violated the people’s right to
PSALM is currently negotiating a water protocol information guaranteed under the Constitution, as
agreement with various parties which are currently the follows: (1) the bidding process was commenced by
MWSS, NIA, the National Water Resources Board PSALM without having previously released to the
and NPC. If required by PSALM, the Buyer will be public critical information such as the terms and
required to enter into the said water protocol conditions of the sale, the parties qualified to bid and
agreement as a condition to the award of the Asset. the minimum bid price, as laid down in the case of
Chavez v. Public Estates Authority ; (2) PSALM
8 

The Buyer shall be responsible for securing the refused to divulge significant information requested by
necessary rights to occupy the land underlying the petitioners, matters which are of public concern; and
Asset. (Emphasis supplied.)
4  (3) the bidding was not conducted in an open and
transparent manner, participation was indiscriminately
All participating bidders were required to comply with restricted to the private sectors in violation of the
the following: EPIRA which provides that its provisions shall be
"construed in favor of the establishment, promotion,
preservation of competition and people empowerment
(a) submission of a Letter of Interest; (b) execution of
so that the widest participation of the people, whether
Confidentiality Agreement and Undertaking; and (c)
directly or indirectly, is ensured."
9 

payment of a non-refundable fee of US$ 2,500 as

Participation Fee. After holding pre-bid conferences
5 

and forum discussions with various stakeholders, Petitioners also assail the PSALM in not offering the
PSALM received the following bids from six sale of the AHEPP to MWSS which co-owned the
competing firms: Angat Complex together with NPC and NIA. Being a
mere co-owner, PSALM cannot sell the AHEPP
without the consent of co-owners MWSS and NIA,
US$
K-Water and being an indivisible thing, PSALM has a positive
440,880,000.00
obligation to offer its undivided interest to the other
First Gen Northern Energy 365,000,678.00 co-owners before selling the same to an outsider.
Hence, PSALM’s unilateral disposition of the said bidding process initiated by PSALM be declared null
hydro complex facility violates the Civil Code rules on and void for violating such right, as defined by
co-ownership (Art. 498) and Sec. 47 (e) of the EPIRA international law and by domestic law establishing the
which granted PSALM the legal option of transferring State’s obligation to ensure water security for its
possession, control and operation of NPC generating people.
assets like the AHEPP to another entity in order "to
protect potable water, irrigation and all other In its Comment With Urgent Motion to Lift Status Quo
requirements imbued with public interest." Ante Order, respondent PSALM prayed for the
dismissal of the petition on the following procedural
As to the participation in the bidding of and award of grounds: (a) a petition for certiorari is not the proper
contract to K-Water which is a foreign corporation, remedy because PSALM was not acting as a tribunal
petitioners contend that PSALM clearly violated the or board exercising judicial or quasi-judicial functions
constitutional provisions on the appropriation and when it commenced the privatization of AHEPP; (b)
utilization of water as a natural resource, as the present petition is rendered moot by the issuance
implemented by the Water Code of the Philippines of a Notice of Award in favor of K-Water; (c) assuming
limiting water rights to Filipino citizens and the petition is not mooted by such contract award, this
corporations which are at least 60% Filipino-owned. Court has no jurisdiction over the subject matter of the
Further considering the importance of the Angat Dam controversy involving a political question, and also
which is the source of 97% of Metro Manila’s water because if it were the intent of Congress to exclude
supply, as well as irrigation for farmlands in 20 the AHEPP in the privatization of NPC assets, it
municipalities and towns in Pampanga and Bulacan, should have clearly expressed such intent as it did
petitioners assert that PSALM should prioritize such with the Agus and Pulangui power plants under Sec.
domestic and community use of water over that of 47 of the EPIRA; (d) petitioners’ lack of standing to
power generation. question the bidding process for failure to show any
injury as a result thereof, while Rep. Walden Bello
They maintain that the Philippine Government, along likewise does not have such legal standing in his
with its agencies and subdivisions, have an obligation capacity as a duly elected member of the House of
under international law, to recognize and protect the Representatives as can be gleaned from the rulings in
legally enforceable human right to water of petitioners David v. Arroyo and Philippine Constitutional
11 

and the public in general. Association v. Enriquez.12 

Petitioners cite the Advisory on the "Right to Water in On the alleged violation of petitioners’ right to
Light of the Privatization of the Angat Hydro-Electric information, PSALM avers that it conducted the
Power Plant" dated November 9, 2009 issued by the
10  bidding in an open and transparent manner, through a
Commission on Human Rights (CHR) urging the series of events in accordance with the governing
Government to revisit and reassess its policy on water rules on public bidding. The non-disclosure of certain
resources vis-à-vis its concurrent obligations under information in the invitation to bid was
international law to provide, and ensure and sustain, understandable, such as the minimum or reserve
among others, "safe, sufficient, affordable and price which are still subject to negotiation and
convenient access to drinking water." Since approval of PSALM’s Board of Directors. The ruling in
investment in hydropower business is primarily driven Chavez v. Public Estates Authority is inapplicable
13 

by generation of revenues both for the government since it involved government property which has
and private sector, the CHR warns that once the become unserviceable or was no longer needed and
AHEPP is privatized, there will be less accessible thus fell under Sec. 79 of the Government Auditing
water supply, particularly for those living in Metro Code whereas the instant case concerns a
Manila and the Province of Bulacan and nearby areas hydroelectric power plant adjacent to a dam which still
which are currently benefited by the AHEPP. The provides water supply to Metro Manila. In the bidding
CHR believes that the management of AHEPP is for the AHEPP, PSALM claims that it relied on the
better left to MWSS being a government body and Rules and Regulations Implementing the EPIRA, as
considering the public interest involved. However, well as COA Circular No. 89-296 on the general
should the decision to privatize the AHEPP become procedures for bidding by government agencies and
inevitable, the CHR strongly calls for specific and instrumentalities of assets that will be divested or
concrete safeguards to ensure the right to water of all, government property that will be disposed of. PSALM
as the domestic use of water is more fundamental likewise avers that it was constrained to deny
than the need for electric power. petitioner IDEALS’ letter dated April 20, 2010
requesting documents relative to the privatization of
Petitioners thus argue that the protection of their right Angat Dam due to non-submission of a Letter of
to water and of public interest requires that the Interest, Confidentiality and Undertaking and non-
payment of the Participation Fee. With regard to
IDEALS’ request for information about the winning In its Comment, respondent MWSS asserts that by
14 

bidder, as contained in its letter dated May 14, 2010, virtue of its various statutory powers since its creation
the same was already referred to respondent K- in 1971, which includes the construction, maintenance
Water’s counsel for appropriate action. and operation of dams, reservoir and other
waterworks within its territorial jurisdiction, it has
In any case, PSALM maintains that not all details supervision and control over the Angat Dam given
relative to the privatization of the AHEPP can be that the Angat Reservoir supplies approximately 97%
readily disclosed; the confidentiality of certain matters of the water requirements of Metro Manila. Over the
was necessary to ensure the optimum bid price for the course of its authority over the Angat Dam, Dykes and
property. Reservoir, MWSS has incurred expenses to maintain
their upkeep, improve and upgrade their facilities.
PSALM further refutes the assertion of petitioners that Thus, in 1962, MWSS contributed about 20% for the
the Angat Complex is an indivisible system and co- construction cost of the Angat Dam and Dykes (then
owned with MWSS and NIA. It contends that MWSS’s equivalent to about ₱ 21 million); in 1992, MWSS
contribution in the funds used for the construction of contributed about ₱ 218 million for the construction of
the AHEPP did not give rise to a regime of co- Auxiliary Unit No. 5; in 1998, MWSS contributed ₱
ownership as the said funds were merely in exchange 73.5 million for the construction cost of the low level
for the supply of water that MWSS would get from the outlet; and subsequently, MWSS invested ₱ 3.3 billion
Angat Dam, while the Umiray-AngatTransbasin to build the Umiray-AngatTransbasin Tunnel to
Rehabilitation Project the improvement and repair of supplement the water supply available from the Angat
which were funded by MWSS, did not imply a co- Dam, which tunnel contributes a minimum of about 9
ownership as these facilities are located in remote cubic meters per second to the Angat Reservoir, thus
places. Moreover, PSALM points out that PSALM, increasing power generation. MWSS argues that its
MWSS and NIA each was issued a water permit, and powers over waterworks are vested upon it by a
are thus holders of separate water rights. special law (MWSS Charter) which prevails over the
EPIRA which is a general law, as well as other special
laws, issuances and presidential edicts. And as
On the alleged violation of petitioners’ and the
contained in Sec. 1 of the MWSS Charter, which
people’s right to water, PSALM contends that such is
remains valid and effective, it is expressly provided
baseless and proceeds from the mistaken assumption
that the establishment, operation and maintenance of
that the Angat Dam was sold and as a result thereof,
waterworks systems must always be supervised by
the continuity and availability of domestic water supply
the State.
will be interrupted. PSALM stresses that only the
hydroelectric facility is being sold and not the Angat
Dam which remains to be owned by PSALM, and that MWSS further alleges that after the enactment of
the NWRB still governs the water allocation therein EPIRA, it had expressed the desire to acquire
while the NPC-FFWSDO still retains exclusive control ownership and control of the AHEPP so as not to
over the opening of spillway gates during rainy leave the operation of the Angat Reservoir to private
season. The foregoing evinces the continued discretion that may prejudice the water allocation to
collective control by government agencies over the MWSS as dictated by NWRB rules.
Angat Dam, which in the meantime, is in dire need of
repairs, the cost of which cannot be borne by the Representations were thereafter made with the Office
Government. of the President (OP) for the turn over of the
management of these facilities to MWSS, and joint
PSALM further debunks the nationality issue raised by consultation was also held with PSALM officials for
petitioners, citing previous opinions rendered by the the possibility of a Management Committee to
Department of Justice (DOJ) consistently holding that manage and control the Angat Dam Complex under
the utilization of water by a hydroelectric power plant the chairmanship of the water sector, which position
does not constitute appropriation of water from its was supported by former Secretary
natural source considering that the source of water HermogenesEbdane of the Department of Public
(dam) that enters the intake gate of the power plant is Works and Highways (DPWH). In March 2008,
an artificial structure. Moreover, PSALM is mindful of PSALM proposed the creation of an inter-agency
the State’s duty to protect the public’s right to water technical working group (TWG) to draft the Operations
when it sold the AHEPP. In fact, such concern as and Maintenance (O & M) Agreement for the AHEPP
taken into consideration by PSALM in devising a that will be in effect after its privatization. PSALM
privatization scheme for the AHEPP whereby the likewise sought the view of the Office of the
water allocation is continuously regulated by the Government Corporate Counsel (OGCC) which
NWRB and the dam and its spillway gates remain opined that PSALM may turn over the facility to a
under the ownership and control of NPC. qualified entity such as MWSS without need of public
bidding. In 2009, various local governments supported
the transfer of the control and management of the NIA are not co-owners of the various rights over the
AHEPP to MWSS, while the League of Cities and Angat Dam as in fact each of them holds its own
Municipalities interposed its opposition to the water rights; (3) the State through the EPIRA
privatization of the AHEPP fearing that it might expressly mandates PSALM to privatize all NPC
increase the cost of water in Metro Manila, and also assets, which necessarily includes the AHEPP; (4) the
because it will be disadvantageous to the national privatization of the AHEPP will not affect the priority of
government since the AHEPP only contributes 246 water for domestic and municipal uses as there are
MW of electricity to the Luzon Grid. Even the CHR sufficient safeguards to ensure the same, and also
has advised the Government to reassess its because the Water Code specifically mandates that
privatization policy and to always consider paramount such use shall take precedence over other uses, and
the most basic resources necessary and even the EPIRA itself gives priority to use of water for
indispensable for human survival, which includes domestic and municipal purposes over power
water. generation; (5) the Water Protocol also safeguards
priority of use of water for domestic purposes; (6) the
MWSS further avers that upon the facilitation of the bidding procedure for the AHEPP was valid, and the
OGCC and participated in by various stakeholders, bidding was conducted by PSALM in an open and
including its two concessionaires, Manila Water transparent manner; and (7) the right to information of
Company, Inc. and Maynilad Water Services, Inc., petitioners and the public in general was fully
various meetings and conferences were held relative satisfied, and PSALM adopted reasonable rules and
to the drafting of the regulations for the orderly conduct of its functions
pursuant to its mandate under the EPIRA.
Memorandum of Agreement on the Angat Water
Protocol. On April 20, 2010, the final draft of the Angat FGNEC nevertheless prays of this Court to declare
Water Protocol was finally complete. However, as of the nationality requirements for the ownership,
June 18, 2010, only MWSS and NIA signed the said operation and maintenance of the AHEPP as
final draft. MWSS thus contends that PSALM failed to prescribed by the Constitution and pertinent laws.
institute any safeguards as prescribed in Sec. 47 of Considering the allegation of petitioners that K-Water
the EPIRA when it proceeded with the privatization of is owned by the Republic of South Korea, FGNEC
the AHEPP. asserts that PSALM should not have allowed said
entity to participate in the bidding because under our
As to the issue of nationality requirement in the Constitution, the exploration, development and
appropriation of water resources under the utilization of natural resources are reserved to Filipino
Constitution, MWSS cites the case of Manila Prince citizens or to corporations with 60% of their capital
Hotel v. Government Service Insurance being owned by Filipinos.
System which interpreted paragraph 2, Sec. 10, Art.
15 

XII of the 1987 Constitution providing that "in the grant Respondent NIA filed its Comment stating that its
17 

of rights, privileges, and concessions covering the interest in this case is limited only to the protection of
national economy and patrimony, the State shall give its water allocation drawn from the Angat Dam as
preference to qualified Filipinos" to imply "a determined by the NWRB. Acknowledging that it has
mandatory, positive command which is complete in to share the meager water resources with other
itself and which needs no further guidelines or government agencies in fulfilment of their respective
implementing laws or rules for its enforcement x xx mandate, NIA submits that it is willing to sit down and
and is per se judicially enforceable." In this case, the discuss issues relating to water allocation, as
AHEPP is in dire danger of being wholly-owned by a evidenced by the draft Memorandum of Agreement on
Korean corporation which probably merely considers the Angat Water Protocol. Since the reliefs prayed for
it as just another business opportunity, and as such in the instant petition will not be applicable to NIA
cannot be expected to observe and ensure the which was not involved in the bidding conducted by
smooth facilitation of the more critical purposes of PSALM, it will thus not be affected by the outcome of
water supply and irrigation. the case.

Respondent First Gen Northern Energy Corporation Respondents San Miguel Corporation (SMC), DMCI
(FGNEC) also filed a Comment disagreeing with the
16  Power Corporation, Trans-Asia Oil and Energy
contentions of petitioners and respondent MWSS on Development Corporation and SNAboitiz Power-
account of the following: (1) the NPC charter vested Pangasinan, Inc. filed their respective
upon it complete jurisdiction and control over Comments with common submission that they are
18 

watersheds like the Angat Watershed surrounding the not real parties-in-interest and should be excluded
reservoir of the power plants, and hence Art. 498 of from the case. They assert that PSALM acted
the Civil Code is inapplicable; (2) NPC, MWSS and pursuant to its mandate to privatize the AHEPP when
it conducted the bidding, and there exists no reason
for them to take any action to invalidate the said entities in their procurement of goods, infrastructure
bidding wherein they lost to the highest bidder K- and consultancy services," considering that what was
Water. involved in Chavez is an amended Joint Venture
Agreement which seeks to transfer title and ownership
On its part, respondent K-Water filed a Manifestation over government property. Petitioners point out that
In Lieu of Comment stating that it is not in a position
19  the requirement under COA Circular 89-296 as
to respond to petitioners’ allegations, having justifiably regards confidentiality covers only sealed proposals
relied on the mandate and expertise of PSALM in the and not all information relating to the AHEPP
conduct of public bidding for the privatization of the privatization. PSALM’s simple referral of IDEALS’
AHEPP and had no reason to question the legality or request letter to the counsel of K-Water is very telling,
constitutionality of the privatization process, including indicating PSALM’s limited knowledge about a
the bidding. K-Water submits that its participation in company it allowed to participate in the bidding and
the bidding for the AHEPP was guided at all times by which even won the bidding.
an abiding respect for the Constitution and the laws of
the Philippines, and hopes for a prompt resolution of On the transfer of water rights to K-Water, petitioners
the present petition to further strengthen and enhance reiterate that this violates the Water Code, and
the investment environment – considering the level of contrary to PSALM’s statements, once NPC transfers
investment entailed, not only in financial terms – by its water permit to K-Water, in accordance with the
providing a definitive resolution and reliable guidance terms of the Asset Purchase Agreement, NPC gives
for investors, whether Filipino or foreign, as basis for up its authority to extract or utilize water from the
effective investment and business decisions. Angat River. Petitioners further assert that the terms
of the sale of AHEPP allowing the buyer the operation
In their Consolidated Reply, petitioners contend that
20  and management of the Non-Power Components,
the instant petition is not mooted with the issuance of constitutes a relinquishment of government control
a Notice of Award to K-Water because the over the Angat Dam, in violation of Art. XII, Sec. 2 of
privatization of AHEPP is not finished until and unless the Constitution. PSALM likewise has not stated that
the deed of absolute sale has been executed. They all stakeholders have signed the Water Protocol. Such
cite the ruling in David v. Arroyo, that courts will
21  absence of a signed Water Protocol is alarming in the
decide cases, otherwise moot and academic, if: light of PSALM’s pronouncement that the terms of the
sale to K-Water would still subject to negotiation. Is
first, there is a grave violation of the Constitution; PSALM’s refusal to sign the Water Protocol part of its
second, the exceptional character of the situation and strategy to negotiate the terms of the sale with the
the paramount public interest is involved; third, when bidders? If so, then PSALM is blithely and cavalierly
constitutional issue raised requires formulation of bargaining away the Filipinos’ right to water.
controlling principles to guide the bench, the bar and
the public; and fourth, the case is capable of repetition Responding to the claims of MWSS in its Comment,
yet evading review. PSALM contends that MWSS’s allegations regarding
the bidding process is belied by MWSS’s own
Petitioners reiterate their legal standing to file the admission that it held discussions with PSALM to
present suit in their capacity as taxpayers, or as highlight the important points and issues surrounding
Filipino citizens asserting the promotion and the AHEPP privatization that needed to be threshed
protection of a public right, aside from being directly out. Moreover, MWSS also admits having
injured by the proceedings of PSALM. As to the participated, along with other agencies and
absence of Certification and Verification of Non- stakeholders, various meetings and conferences
Forum Shopping from petitioner Bello in the file copy relative to the drafting of a Memorandum of
of PSALM, the same was a mere inadvertence in Agreement on the Angat Water Protocol.
photocopying the same.
As regards the Angat Dam, PSALM emphasizes that
On the matter of compliance with an open and MWSS never exercised jurisdiction and control over
transparent bidding, petitioners also reiterate as held the said facility. PSALM points out that the Angat Dam
in Chavez v. Public Estates Authority, that the Court’s
22  was constructed in 1967, or four years before the
interpretation of public bidding applies to any law enactment of Republic Act No. 6234, upon the
which requires public bidding, especially since Sec. commissioning thereof by the NPC and the
79 of the Government Auditing Code does not consequent construction by Grogun, Inc., a private
enumerate the data that must be disclosed to the corporation. MWSS’ attempt to base its claim of
public. PSALM should have followed the minimum jurisdiction over the Angat Dam upon its
requirements laid down in said case instead of characterization of EPIRA as a general law must
adopting the "format generally used by government likewise fail. PSALM explains that EPIRA cannot be
classified as a general law as it applies to a particular
portion of the State, i.e., the energy sector. The decided under different factual circumstances. It
EPIRA must be deemed an exception to the provision reiterates that the AHEPP, being a generation asset,
in the Revised MWSS Charter on MWSS’s general can be sold to a foreign entity, under the EPIRA, in
jurisdiction over waterworks systems. accordance with the policy reforms said law
introduced in the power sector; the EPIRA aims to
PSALM stresses that pursuant to the EPIRA, PSALM enable open access in the electricity market and then
took ownership of all existing NPC generation assets, enable the government to concentrate more fully on
liabilities, IPP contracts, real estate and other the supply of basic needs to the Filipino people.
disposable assets, which necessarily includes the Owing to the competitive and open nature of the
AHEPP Complex, of which the Angat Dam is part. As generation sector, foreign corporation may own
to the OGCC opinion cited by MWSS to support its generation assets.
position that control and management of the Angat
Dam Complex should be turned over to MWSS, the Issues
OGCC had already issued a second opinion dated
August 20, 2008 which clarified the tenor of its earlier The present controversy raised the following issues:
Opinion No. 107, s. 2008, stating that "the disposal of
the Angat HEPP by sale through public bidding – the 1) Legal standing of petitioners;
principal mode of disposition under EPIRA – remains
PSALM’s primary option." Moreover, as pointed out
2) Mootness of the petition;
by the National Economic Development Authority
(NEDA) in its letter dated September 16, 2009, the
ownership and operation of a hydropower plant goes 3) Violation of the right to information;
beyond the mandate of MWSS. This view is
consistent with the provisions of EPIRA mandating the 4) Ownership of the AHEPP;
transfer of ownership and control of NPC generation
assets, IPP Contracts, real estate and other 5) Violation of Sec. 2, Art. XII of the Constitution;
disposable assets to a private person or entity.
Consequently, a transfer to another government entity 6) Violation of the Water Code provisions on the grant
of the said NPC assets would be a clear violation of of water rights; and
the EPIRA. Even assuming such is allowed by EPIRA,
it would not serve the objective of the EPIRA, i.e., that 7) Failure of PSALM to comply with Sec. 47 (e) of
of liquidating all NPC’s financial obligations and would EPIRA.
merely transfer NPC’s debts from the hands of one
government entity to another, the funds that would be Mootness and Locus Standi
utilized by MWSS in the acquisition of the AHEPP
would doubtless come from the pockets of the Filipino
people. PSALM’s contention that the present petition had
already been mooted by the issuance of the Notice of
Award to K-Water is misplaced. Though petitioners
As regards the opposition of various local government had sought the immediate issuance of injunction
units to the sale of the AHEPP, PSALM said that a against the bidding commenced by PSALM --
forum was held specifically to address their concerns. specifically enjoining it from proceeding to the next
After the said forum, these LGUs did not anymore step of issuing a notice of award to any of the bidders
raise the same concerns; such inaction on their part -- they further prayed that PSALM be permanently
could be taken as an acquiescence to, and enjoined from disposing of the AHEPP through
acceptance of, the explanations made by PSALM privatization. The petition was thus filed not only as a
during the forum. means of enforcing the State’s obligation to protect
the citizens’ "right to water" that is recognized under
PSALM had made it clear that it is only the AHEPP international law and legally enforceable under our
and not the Angat Dam which was being privatized. Constitution, but also to bar a foreign corporation from
The same wrong premise underpinned the position of exploiting our water resources in violation of Sec. 2,
the CHR with its erroneous allegation that MWSS is Art. XII of the 1987 Constitution. If the impending sale
allowed, under its Revised Charter, to operate and of the AHEPP to K-Water indeed violates the
maintain a power plant. Constitution, it is the duty of the Court to annul the
contract award as well as its implementation. As this
PSALM further contends that the sale of AHEPP to K- Court held in Chavez v. Philippine Estates
Water did not violate the Constitution’s provision on Authority, "supervening events, whether intended or
23 

the State’s natural resources and neither is the ruling accidental, cannot prevent the Court from rendering a
in Manila Prince Hotel applicable as said case was decision if there is a grave violation of the
Constitution." subject to such limitations as may be provided by law.
(Emphasis supplied.)
We also rule that petitioners possess the requisite
legal standing in filing this suit as citizens and The people’s constitutional right to information is
taxpayers. intertwined with the government’s constitutional duty
of full public disclosure of all transactions involving
"Legal standing" or locus standi has been defined as public interest. Section 28, Article II of the
28 

a personal and substantial interest in the case such Constitution declares the State policy of full
that the party has sustained or will sustain direct injury transparency in all transactions involving public
as a result of the governmental act that is being interest, to wit:
challenged, alleging more than a generalized
grievance. The gist of the question of standing is Sec. 28. Subject to reasonable conditions prescribed
whether a party alleges "such personal stake in the by law, the State adopts and implements a policy of
outcome of the controversy as to assure that concrete full public disclosure of all its transactions involving
adverseness which sharpens the presentation of public interest. (Italics supplied.)
issues upon which the court depends for illumination
of difficult constitutional questions." This Court,
24 
The foregoing constitutional provisions seek to
however, has adopted a liberal attitude on the locus promote transparency in policy-making and in the
standi of a petitioner where the petitioner is able to operations of the government, as well as provide the
craft an issue of transcendental significance to the people sufficient information to exercise effectively
people, as when the issues raised are of paramount other constitutional rights. They are also essential to
importance to the public. Thus, when the proceeding
25 
hold public officials "at all times x xx accountable to
involves the assertion of a public right, the mere fact the people," for unless citizens have the proper
that the petitioner is a citizen satisfies the requirement information, they cannot hold public officials
of personal interest.26 
accountable for anything. Armed with the right
information, citizens can participate in public
There can be no doubt that the matter of ensuring discussions leading to the formulation of government
adequate water supply for domestic use is one of policies and their effective implementation. An
paramount importance to the public. That the informed citizenry is essential to the existence and
continued availability of potable water in Metro Manila proper functioning of any democracy. 29 

might be compromised if PSALM proceeds with the

privatization of the hydroelectric power plant in the Consistent with this policy, the EPIRA was enacted to
Angat Dam Complex confers upon petitioners such provide for "an orderly and transparent privatization"
personal stake in the resolution of legal issues in a of NPC’s assets and liabilities. Specifically, said law
30 

petition to stop its implementation. mandated that "all assets of NPC shall be sold in an
open and transparent manner through public
Moreover, we have held that if the petition is anchored bidding."31 

on the people’s right to information on matters of

public concern, any citizen can be the real party in In Chavez v. Public Estates Authority involving the
32 

interest. The requirement of personal interest is execution of an Amended Joint Venture Agreement
satisfied by the mere fact that the petitioner is a on the disposition of reclaimed lands without public
citizen, and therefore, part of the general public which bidding, the Court held:
possesses the right. There is no need to show any
special interest in the result. It is sufficient that x x xBefore the consummation of the contract, PEA
petitioners are citizens and, as such, are interested in must, on its own and without demand from anyone,
the faithful execution of the laws.27 
disclose to the public matters relating to the
disposition of its property. These include the size,
Violation of Right to Information location, technical description and nature of the
property being disposed of, the terms and conditions
The people’s right to information is provided in of the disposition, the parties qualified to bid, the
Section 7, Article III of the Constitution, which reads: minimum price and similar information. PEA must
prepare all these data and disclose them to the public
Sec. 7. The right of the people to information on at the start of the disposition process, long before the
matters of public concern shall be recognized. Access consummation of the contract, because the
to official records, and to documents, and papers Government
pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis Auditing Code requires public bidding. If PEA fails to
for policy development, shall be afforded the citizen, make this disclosure, any citizen can demand from
PEA this information at any time during the bidding In Chavez v. National Housing Authority, the Court
35 

process. held that pending the enactment of an enabling law,

the release of information through postings in public
Information, however, on on-going evaluation or bulletin boards and government websites satisfies the
review of bids or proposals being undertaken by the constitutional requirement, thus:
bidding or review committee is not immediately
accessible under the right to information. While the It is unfortunate, however, that after almost twenty
evaluation or review is still on-going, there are no (20) years from birth of the 1987 Constitution, there is
"official acts, transactions, or decisions" on the bids or still no enabling law that provides the mechanics for
proposals. However, once the committee makes its the compulsory duty of government agencies to
official recommendation, there arises a "definite disclose information on government transactions.
proposition" on the part of the government. From this Hopefully, the desired enabling law will finally see the
moment, the public’s right to information attaches, and light of day if and when Congress decides to approve
any citizen can access all the non-proprietary the proposed "Freedom of Access to Information Act."
information leading to such definite proposition. In In the meantime, it would suffice that government
Chavez v. PCGG, the Court ruled as follows: agencies post on their bulletin boards the documents
incorporating the information on the steps and
"Considering the intent of the framers of the negotiations that produced the agreements and the
Constitution, we believe that it is incumbent upon the agreements themselves, and if finances permit, to
PCGG and its officers, as well as other government upload said information on their respective websites
representatives, to disclose sufficient public for easy access by interested parties. Without any law
information on any proposed settlement they have or regulation governing the right to disclose
decided to take up with the ostensible owners and information, the NHA or any of the respondents
holders of ill-gotten wealth. Such information, though, cannot be faulted if they were not able to disclose
must pertain to definite propositions of the information relative to the SMDRP to the public in
government not necessarily to intra-agency or inter- general. (Emphasis supplied.)
36 

agency recommendations or communications during

the stage when common assertions are still in the The Court, however, distinguished the duty to disclose
process of being formulated or are in the "exploratory" information from the duty to permit access to
stage. There is need, of course, to observe the same information on matters of public concern under Sec. 7,
restrictions on disclosure of information in general, as Art. III of the Constitution. Unlike the disclosure of
discussed earlier – such as on matters involving information which is mandatory under the
national security, diplomatic or foreign relations, Constitution, the other aspect of the people’s right to
intelligence and other classified information." know requires a demand or request for one to gain
(Emphasis supplied.) access to documents and paper of the particular
agency. Moreover, the duty to disclose covers only
Chavez v. Public Estates Authority thus laid down the transactions involving public interest, while the duty to
rule that the constitutional right to information includes allow access has a broader scope of information
official information on on-going negotiations before a which embraces not only transactions involving public
final contract. The information, however, must interest, but any matter contained in official
constitute definite propositions by the government and communications and public documents of the
should not cover recognized exceptions like privileged government agency. Such relief must be granted to
37 

information, military and diplomatic secrets and similar the party requesting access to official records,
matters affecting national security and public order. In documents and papers relating to official acts,
addition, Congress has prescribed other limitations on transactions, and decisions that are relevant to a
the right to information in several legislations.
33  government contract.

In this case, petitioners’ first letter dated April 20, Here, petitioners’ second letter dated May 14, 2010
2010 requested for documents such as Terms of specifically requested for detailed information
Reference and proposed bids submitted by the regarding the winning bidder, such as company
bidders. At that time, the bids were yet to be profile, contact person or responsible officer, office
submitted at the bidding scheduled on April 28, 2010. address and Philippine registration. But before
It is also to be noted that PSALM’s website carried PSALM could respond to the said letter, petitioners
news and updates on the sale of AHEPP, providing filed the present suit on May 19, 2010. PSALM’s
important information on bidding activities and letter-reply dated May 21, 2010 advised petitioners
clarifications regarding the terms and conditions of the that their letter-re quest was referred to the counsel of
Asset Purchase Agreement (APA) to be signed by K-Water. We find such action insufficient compliance
PSALM and the winning bidder (Buyer). 34  with the constitutional requirement and inconsistent
with the policy under EPIRA to implement the
privatization of NPC assets in an "open and and management of the Angat Dam Complex. 38 

transparent" manner. PSALM’s evasive response to

the request for information was unjustified because all In March 2008, PSALM sought legal advice from the
bidders were required to deliver documents such as OGCC on available alternatives to a sale structure for
company profile, names of authorized the AHEPP. On May 27, 2008, then Government
officers/representatives, financial and technical Corporate Counsel Alberto C. Agra issued Opinion
experience. No. 107, s. 2008 stating that PSALM is not limited to
39 

"selling" as a means of fulfilling its mandate under the

Consequently, this relief must be granted to EPIRA, and that in dealing with the AHEPP, PSALM
petitioners by directing PSALM to allow petitioners has the following options:
access to the papers and documents relating to the
company profile and legal capacity of the winning 1. Transfer the ownership, possession, control, and
bidder. Based on PSALM’s own press releases, K- operation of the Angat Facility to another entity, which
Water is described as a Korean firm with extensive may or may not be a private enterprise, as specifically
experience in implementing and managing water provided under Section 47 (e) of RA 9136;
resources development projects in South Korea, and
also contributed significantly to the development of 2. Transfer the Angat Facility, through whatever form,
that country’s heavy and chemical industries and the to another entity for the purpose of protecting the
modernization of its national industrial structure. public interest. 40 

AngatHEPP is Under the Jurisdiction of The OGCC cited COA Circular No. 89-296 which
the Department of Energy Through NPC provides that government property or assets that are
no longer serviceable or needed "may be transferred
It must be clarified that though petitioners had alleged to other government entities/agencies without cost or
a co-ownership by virtue of the joint supervision in the at an appraised value upon authority of the head or
operation of the Angat Complex by MWSS, NPC and governing body of the agency or corporation, and
NIA, MWSS actually recognized the ownership and upon due accomplishment of an Invoice and Receipt
jurisdiction of NPC over the hydroelectric power plant of Property." Pointing out the absence of any
itself. While MWSS had initially sought to acquire prohibition under R.A. No. 9136 and its IRR for
ownership of the AHEPP without public bidding, it now PSALM to transfer the AHEPP to another government
prays that PSALM be ordered to turn over the instrumentality, and considering that MWSS is
possession and control of the said facility to MWSS. allowed under its charter to acquire the said facility,
MWSS invokes its own authority or "special powers" the OGCC expressed the view that PSALM may, "in
by virtue of its general jurisdiction over waterworks the interest of stemming a potential water crisis, turn
systems, and in consideration of its substantial over the ownership, operations and management of
investments in the construction of two auxiliary units the Angat Facility to a qualified entity, such as the
in the AHEPP, as well as the construction of the MWSS, without need of public bidding as the latter is
Umiray-AngatTransbasin Tunnel to supplement the also a government entity." 41 

water intake at the Angat Reservoir which resulted in

increased power generation. Consequently, MWSS requested the Office of the
President (OP) to exclude the AHEPP from the list of
Records disclosed that as early as December 2005, NPC assets to be privatized under the EPIRA. Said
following the decision of PSALM’s Board of Directors request was endorsed to the Department of Finance
to commence the sale process of the AHEPP along (DOF) which requested the National Economic
with Magat and AmlanHEPPs in August 2005, MWSS Development Authority (NEDA) to give its comments.
was actively cooperating and working with PSALM Meanwhile, on August 20, 2008, the OGCC issued a
regarding the proposed Protocol for the Privatization Clarification on its Opinion No. 107, s. 2008 stating
42 

of the AHEPP, specifically on the terms and that the tenor of the latter issuance was "permissive"
conditions for the management, control and operation and "necessarily, the disposal of the AHEPP by sale
of the Angat Dam Complex taking into consideration through public bidding – the principal mode of
the concerns of its concessionaires. A Technical disposition under x xx R.A. 9136 – remains PSALM’s
Working Group (TWG) similar to that formed for the primary option." The OGCC further explained its
Operation and Management Agreement of position, thus:
Pantabangan and Magat dams was created,
consisting of representatives from PSALM, MWSS If, in the exercise of PSALM’s discretion, it determines
and other concerned agencies, to formulate strategies that privatization by sale through public bidding is the
for the effective implementation of the privatization of best mode to fulfill its mandate under R.A. 9136, and
AHEPP and appropriate structure for the operation that this mode will not contravene the State’s declared
policy on water resources, then the same is legally excluded from the list of NPC assets to be privatized,
permissible. and that the ownership, management and control of
the Dam be transferred from NPC to MWSS, with
Finally, in OGCC Opinion No. 107 s. 2008, this Office reasonable compensation." 46 

underscored "the overriding policy of the State x xx

recognizing that ‘water is vital to national development Based on the foregoing factual backdrop, there seems
x xx’ and the crucial role which the Angat Facility to be no dispute as to the complete jurisdiction of
plays in the uninterrupted and adequate supply and NPC over the government-owned Angat Dam and
distribution of potable water to residents of Metro AHEPP.
Manila." This Office reiterates "the primacy of the
State’s interest in mitigating the possible deleterious The Angat Reservoir and Dam were constructed from
effects of an impending "water crisis" encompassing 1964 to 1967 and have become operational since
areas even beyond Metro Manila." Any transfer of the 1968. They have multiple functions:
AHEPP to be undertaken by PSALM – whether to a
private or public entity – must not contravene the 1) To provide irrigation to about 31,000 hectares of
State’s declared policy of ensuring the flow of clean, land in 20 municipalities and towns in Pampanga and
potable water under RA 6395 and 9136, and Bulacan;
Presidential Decree 1067. Hence, said transfer and/or
privatization scheme must ensure the preservation of
2) To supply the domestic and industrial water
the AHEPP as a vital source of water for Metro Manila
requirements of residents in Metro Manila;
and the surrounding provinces. (Emphasis supplied.)
43 

3) To generate hydroelectric power to feed the Luzon

On September 16, 2009, NEDA Deputy Director
Grid; and
General Rolando G. Tungpalan, by way of comment
to MWSS’s position, wrote the DOF stating that
MWSS’s concern on ensuring an uninterrupted and 4) To reduce flooding to downstream towns and
adequate supply of water for domestic use is amply villages. 47 

protected and consistently addressed in the EPIRA.

Hence, NEDA concluded that there appears to be no The Angat Dam is a rockfill dam with a spillway
basis to exclude AHEPP from the list of NPC equipped with three gates at a spilling level of 219
generation assets to be privatized and no compelling meters and has storage capacity of about 850 million
reason to transfer its management, operations and cubic meters. Water supply to the MWSS is released
control to MWSS. NEDA further pointed out that:
44  through five auxiliary turbines where it is diverted to
the two tunnels going to the Ipo Dam. The Angat
48 

Ownership and operation of a hydropower plant, Dam is one of the dams under the management of
however, goes beyond the mandate of MWSS.To NPC while the La Mesa and Ipo dams are being
operate a power generation plant, given the sector’s managed by MWSS. MWSS is a government
legislative setup would require certification and corporation existing by virtue of R.A. No.
permits that has to be secured by the operator. 6234. NAPOCOR or NPC is also a government-
49 

MWSS does not have the technical capability to owned corporation created under Commonwealth Act
undertake the operation and maintenance of the (C.A.) No. 120, which, among others, was vested
50 

AHEPP nor manage the contract of a contracted with the following powers under Sec. 2, paragraph (g):
private party to undertake the task for MWSS. While
MWSS may tap NPC to operate and maintain the (g) To construct, operate and maintain power plants,
AHEPP, this, similar to contracting out a private party, auxiliary plants, dams, reservoirs, pipes, mains,
may entail additional transaction costs, and ultimately transmission lines, power stations and substations,
result to higher generation rates. (Emphasis
45  and other works for the purpose of developing
supplied.) hydraulic power from any river, creek, lake, spring and
waterfall in the Philippines and supplying such power
Thereafter, MWSS sought the support of the DPWH in to the inhabitants thereof; to acquire, construct, install,
a letter dated September 24, 2009 addressed to then maintain, operate and improve gas, oil, or steam
Secretary Hermogenes E. Ebdane, Jr., for the engines, and/or other prime movers, generators and
exclusion of the AHEPP from the list of NPC assets to other machinery in plants and/or auxiliary plants for
be privatized and instead transfer the ownership, the production of electric power; to establish, develop,
possession and control thereof to MWSS with operate, maintain and administer power and lighting
reasonable compensation. Acting on the said request, system for the use of the Government and the general
Secretary Ebdane, Jr. wrote a memorandum for the public; to sell electric power and to fix the rates and
President recommending that "the Angat Dam be provide for the collection of the charges for any
service rendered: Provided, That the rates of charges
shall not be subject to revision by the Public Service needs of waterworks systems, and the requirements
Commission; of domestic water supply;

x x x x (Emphasis supplied.) (o) In the prosecution and maintenance of its projects,

the Corporation shall adopt measures to prevent
On September 10, 1971, R.A. No. 6395 was enacted environmental pollution and promote the
which revised the charter of NPC, extending its conservation, development and maximum utilization
corporate life to the year 2036. NPC thereafter of natural resources; and
continued to exercise complete jurisdiction over dams
and power plants including the Angat Dam, Angat x x x x (Emphasis supplied.)
Reservoir and AHEPP. While the NPC was expressly
granted authority to construct, operate and maintain On December 4, 1965, Presidential Proclamation No.
power plants, MWSS was not vested with similar 505 was issued amending Proclamation No. 71 by
function. Section 3 (f), (o) and (p) of R.A. No. 6234 transferring the administration of the watersheds
provides that MWSS’s powers and attributes include established in Montalban, San Juan del Monte,
the following – Norzagaray, Angat, San Rafael, Peñaranda and
Infanta, Provinces of Rizal, Bulacan, Nueva Ecija and
(f) To construct, maintain, and operate dams, Quezon, to NPC. Subsequent executive issuances
reservoirs, conduits, aqueducts, tunnels, purification Presidential Decree (P.D.) No. 1515 which was
plants, water mains, pipes, fire hydrants, pumping signed in June 1978 and amended by P.D. No. 1749
stations, machineries and other waterworks for the in December 1980 led to the creation of the NPC
purpose of supplying water to the inhabitants of its Watershed Management Division which presently has
territory, for domestic and other purposes; and to 11 watershed areas under its management. 52 

purify, regulate and control the use, as well as prevent

the wastage of water; Privatization of AHEPP Mandatory Under EPIRA

xxxx With the advent of EPIRA in 2001, PSALM came into

existence for the principal purpose of managing the
(o) To assist in the establishment, operation and orderly sale, privatization and disposition of
maintenance of waterworks and sewerage systems generation assets, real estate and other disposable
within its jurisdiction under cooperative basis; assets of the NPC including IPP Contracts.
Accordingly, PSALM was authorized to take title to
(p) To approve and regulate the establishment and and possession of, those assets transferred to it.
construction of waterworks and sewerage systems in EPIRA mandated that all such assets shall be sold
privately owned subdivisions within its jurisdiction; x through public bidding with the exception of Agus and
xx. (Emphasis supplied.) Pulangui complexes in Mindanao, the privatization of
which was left to the discretion of PSALM in
On December 9, 1992, by virtue of R.A. No. consultation with Congress, thus:
53 

7638, NPC was placed under the Department of

51 

Energy (DOE) as one of its attached agencies. Sec. 47. NPC Privatization. – Except for the assets of
SPUG, the generation assets, real estate, and other
Aside from its ownership and control of the Angat disposable assets as well as IPP contracts of NPC
Dam and AHEPP, NPC was likewise mandated to shall be privatized in accordance with this Act. Within
exercise complete jurisdiction and control over its six (6) months from the effectivity of this Act, the
watershed, pursuant to Sec. 2 (n) and (o) of R.A. No. PSALM Corp. shall submit a plan for the endorsement
6395 for development and conservation purposes: by the Joint Congressional Power Commission and
the approval of the President of the Philippines, on the
total privatization of the generation assets, x xx of
(n) To exercise complete jurisdiction and control over
NPC and thereafter, implement the same, in
watersheds surrounding the reservoirs of plants
accordance with the following guidelines, except as
and/or projects constructed or proposed to be
provided for in paragraph (f) herein:
constructed by the Corporation. Upon determination
by the Corporation of the areas required for
watersheds for a specific project, the Bureau of x xxx
Forestry, the Reforestation Administration and the
Bureau of Lands shall, upon written advice by the (d) All assets of NPC shall be sold in an open and
Corporation, forthwith surrender jurisdiction to the transparent manner through public bidding, x xx;
Corporation of all areas embraced within the
watersheds, subject to existing private rights, the x xxx
(f) The Agus and the Pulangui complexes in the availability of the option to transfer the said facility
Mindanao shall be excluded from among the to another government entity such as MWSS. Having
generation companies that will be initially privatized. no such discretion in the first place, PSALM
Their ownership shall be transferred to the PSALM committed no grave abuse of discretion when it
Corp. and both shall continue to be operated by the commenced the sale process of AHEPP pursuant to
NPC. Said complexes may be privatized not earlier the EPIRA.
than ten (10) years from the effectivity of this Act, x
xx.The privatization of Agus and Pulangui complexes In any case, the Court finds that the operation and
shall be left to the discretion of PSALM Corp. in maintenance of a hydroelectric power plant is not
consultation with Congress; among the statutorily granted powers of MWSS.
Although MWSS was granted authority to construct
x xxx (Emphasis supplied.) and operate dams and reservoirs, such was for the
specific purpose of supplying water for domestic and
The intent of Congress not to exclude the AHEPP other uses, and the treatment, regulation and control
from the privatization of NPC generation assets is of water usage, and not power generation. Moreover,
57 

evident from the express provision exempting only the since the sale of AHEPP by PSALM merely
aforesaid two power plants in Mindanao. Had the implements the legislated reforms for the electric
legislature intended that PSALM should likewise be power industry through schemes that aim "to enhance
allowed discretion in case of NPC generation assets the inflow of private capital and broaden the
other than those mentioned in Sec. 47, it could have ownership base of the power generation, transmission
explicitly provided for the same. But the EPIRA and distribution sectors," the proposed transfer to
58 

exempted from privatization only those two plants in MWSS which is another government entity
Mindanao and the Small Power Utilities Group contravenes that State policy. COA Circular No. 89-
(SPUG). Expressiouniusestexclusioalterius, the
54  296 likewise has no application to NPC generating
express inclusion of one implies the exclusion of all assets which are still serviceable and definitely
others. 55  needed by the Government for the purpose of
liquidating NPC’s accumulated debts amounting to
It is a settled rule of statutory construction that the billions in US Dollars. Said administrative circular
express mention of one person, thing, or cannot prevail over the EPIRA, a special law
consequence implies the exclusion of all others. The governing the disposition of government properties
rule is expressed in the familiar maxim, under the jurisdiction of the DOE through NPC.
expressiouniusestexclusioalterius.
Sale of Government-Owned AHEPP
The rule of expressiouniusestexclusioalterius is to a Foreign Corporation Not Prohibited
formulated in a number of ways. One variation of the But Only Filipino Citizens and Corporations
rule is principle that what is expressed puts an end to 60% of whose capital is owned by Filipinos
that which is implied. Expressiumfacitcessaretacitum. May be Granted Water Rights
Thus, where a statute, by its terms, is expressly
limited to certain matters, it may not, by interpretation The core issue concerns the legal implications of the
or construction, be extended to other matters. acquisition by K-Water of the AHEPP in relation to the
constitutional policy on our natural resources.
x xxx
Sec. 2, Art. XII of the 1987 Constitution provides in
The rule of expressiouniusestexclusioalterius and its part:
variations are canons of restrictive interpretation.
They are based on the rules of logic and the natural SEC.2. All lands of the public domain, waters,
workings of the human mind. They are predicated minerals, coal, petroleum, and other mineral oils, all
upon one’s own voluntary act and not upon that of forces of potential energy, fisheries, forests or timber,
others. They proceed from the premise that the wildlife, flora and fauna, and other natural resources
legislature would not have made specified are owned by the State. With the exception of
enumeration in a statute had the intention been not to agricultural lands, all other natural resources shall not
restrict its meaning and confine its terms to those be alienated. The exploration, development, and
expressly mentioned. 56  utilization of natural resources shall be under the full
control and supervision of the State. The State may
The Court therefore cannot sustain the position of directly undertake such activities, or it may enter into
petitioners, adopted by respondent MWSS, that co-production, joint venture, or production-sharing
PSALM should have exercised the discretion not to agreements with Filipino citizens, or corporations or
proceed with the privatization of AHEPP, or at least associations at least sixty per centum of whose capital
is owned by such citizens. Such agreements may be x xxx
for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and Art. 9. Waters may be appropriated and used in
under such terms and conditions as may be provided accordance with the provisions of this Code.
by law. In case of water rights for irrigation, water
supply, fisheries, or industrial uses other than the Appropriation of water, as used in this Code, is the
development of water power, beneficial use may be acquisition of rights over the use of waters or the
the measure and limit of the grant. taking or diverting of waters from a natural source in
the manner and for any purpose allowed by law.
x xxx (Emphasis supplied.)
Art. 10. Water may be appropriated for
The State’s policy on the management of water the following purposes:
resources is implemented through the regulation of
water rights. Presidential Decree No. 1067, otherwise x xxx
known as "The Water Code of the Philippines" is the
basic law governing the ownership, appropriation
(d) Power generation
utilization, exploitation, development, conservation
and protection of water resources and rights to land
related thereto. The National Water Resources x xxx
Council (NWRC) was created in 1974 under P.D. No.
424 and was subsequently renamed as National Art. 13. Except as otherwise herein provided, no
Water Resources Board (NWRB) pursuant to person including government instrumentalities or
Executive Order No. 124-A. The NWRB is the chief
59  government-owned or controlled corporations, shall
coordinating and regulating agency for all water appropriate water without a water right, which shall be
resources management development activities which evidenced by a document known as a water permit.
is tasked with the formulation and development of
policies on water utilization and appropriation, the Water right is the privilege granted by the government
control and supervision of water utilities and to appropriate and use water.
franchises, and the regulation and rationalization of
water rates.60 
x xxx

The pertinent provisions of Art. 3, P.D. No. 1067 Art. 15. Only citizens of the Philippines, of legal age,
provide: as well as juridical persons, who are duly qualified by
law to exploit and develop water resources, may apply
Art. 3. The underlying principles of this for water permits. (Emphasis supplied.)
code are:
It is clear that the law limits the grant of water rights
a. All waters belong to the State. only to Filipino citizens and juridical entities duly
qualified by law to exploit and develop water
b. All waters that belong to the State resources, including private corporations with sixty
can not be the subject to acquisitive percent of their capital owned by Filipinos. In the case
prescription. of Angat River, the NWRB has issued separate water
permits to MWSS, NPC and NIA. 61 

c. The State may allow the use or

development of waters by Under the EPIRA, the generation of electric power, a
administrative concession. business affected with public interest, was opened to
private sector and any new generation company is
d. The utilization, exploitation, required to secure a certificate of compliance from the
development, conservation and Energy Regulatory Commission (ERC), as well as
protection of water resources shall be health, safety and environmental clearances from the
subject to the control and regulation of concerned government agencies. Power generation
the government through the National shall not be considered a public utility operation, and
62 

Water Resources Council x xx hence no franchise is necessary. Foreign investors

are likewise allowed entry into the electric power
industry. However, there is no mention of water rights
e. Preference in the use and
in the privatization of multi-purpose hydropower
development of waters shall consider
facilities. Section 47 (e) addressed the issue of water
current usages and be responsive to
security, as follows:
the changing needs of the country.
(e) In cases of transfer of possession, control, one centavo per kilowatt-hour sales (P0.0025/kWh),
operation or privatization of multi-purpose hydro which shall form part of the Universal Charge. This
facilities, safeguards shall be prescribed to ensure environmental fund shall be used solely for watershed
that the national government may direct water usage rehabilitation and management and shall bemanaged
in cases of shortage to protect potable water, by NPC under existing arrangements. NPC shall
irrigation, and all other requirements imbued with submit an annual report to the DOE detailing the
public interest; progress of the water shed rehabilitation program.

x xxx (Emphasis supplied.) (d) The NPC and PSALM or NIA, as the case may be,
shall continue to be responsible for the dam structure
This provision is consistent with the priority accorded and all other appurtenant structures necessary for the
to domestic and municipal uses of water under the
63  safe and reliable operation of the hydropower plants.
Water Code, thus: The NPC and PSALM or NIA, as the case may be,
shall enter into an operations and maintenance
Art. 22. Between two or more appropriators of water agreement with the private operator of the power plant
from the same sources of supply, priority in time of to cover the dam structure and all other appurtenant
appropriation shall give the better right, except that in facilities. (Emphasis supplied.)
times of emergency the use of water for domestic and
municipal purposes shall have a better right over all In accordance with the foregoing implementing
other uses; Provided, That, where water shortage is regulations, and in furtherance of the Asset Purchase
recurrent and the appropriator for municipal use has a Agreement (APA), PSALM, NPC and K-Water
64 

lower priority in time of appropriation, then it shall be executed on April 28, 2010 an Operations and
his duty to find an alternative source of supply in Maintenance Agreement (O & M Agreement) for the
65 

accordance with conditions prescribed by the Board. administration, rehabilitation, operation, preservation
(Emphasis supplied.) and maintenance, by K-Water as the eventual owner
of the AHEPP, of the Non-Power Components
Rule 23, Section 6 of the Implementing Rules and meaning the Angat Dam, non-power equipment,
Regulations (IRR) of the EPIRA provided for the facilities, installations, and appurtenant devices and
structure of appropriation of water resources in multi- structures, including the water sourced from the
purpose hydropower plants which will undergo Angat Reservoir.
privatization, as follows:
It is the position of PSALM that as the new owner only
Section 6. Privatization of Hydroelectric Generation of the hydroelectric power plant, K-Water will be a
Plants. mere operator of the Angat Dam. In the power
generation activity, K-Water will have to utilize the
waters already extracted from the river and
(a) Consistent with Section 47(e) of the Act and
impounded on the dam. This process of generating
Section 4(f) of this Rule, the Privatization of hydro
electric power from the dam water entering the power
facilities of NPC shall cover the power component
plant thus does not constitute appropriation within the
including assignable long-term water rights
meaning of natural resource utilization in the
agreements for the use of water, which shall be
Constitution and the Water Code.
passed onto and respected by the buyers of the
hydroelectric power plants.
The operation of a typical hydroelectric power plant
has been described as follows:
(b) The National Water Resources Board (NWRB)
shall ensure that the allocation for irrigation, as
indicated by the NIA and requirements for domestic Hydroelectric energy is produced by the force of
water supply as provided for by the appropriate Local falling water. The capacity to produce this energy is
Water District(s) are recognized and provided for in dependent on both the available flow and the height
the water rights agreements. NPC or PSALM may from which it falls. Building up behind a high dam,
also impose additional conditions in the shareholding water accumulates potential energy. This is
agreement with the winning bidders to ensure national transformed into mechanical energy when the water
security, including, but not limited to, the use of water rushes down the sluice and strikes the rotary blades
during drought or calamity. of turbine. The turbine's rotation spins electromagnets
which generate current in stationary coils of wire.
Finally, the current is put through a transformer where
(c) Consistent with Section 34(d) of the Act, the NPC
the voltage is increased for long distance transmission
shall continue to be responsible for watershed
over power lines.66 

rehabilitation and management and shall be entitled to

the environmental charge equivalent to one-fourth of
Foreign ownership of a hydropower facility is not x xx while the Water Code imposes a nationality
prohibited under existing laws. The construction, requirement for the grant of water permits, the same
rehabilitation and development of hydropower plants refers to the privilege "to appropriate and use water."
are among those infrastructure projects which even This should be interpreted to mean the extraction of
wholly-owned foreign corporations are allowed to water from its natural source (Art. 9, P.D. No. 1067).
undertake under the Amended Build-Operate-Transfer Once removed therefrom, they cease to be a part of
(Amended BOT) Law (R.A. No. 7718). 67 
the natural resources of the country and are the
subject of ordinary commerce and may be acquired
Beginning 1987, the policy has been openness to by foreigners (Op. No. 55, series of 1939). x xx in
foreign investments as evident in the fiscal incentives case of a contract of lease, the water permit shall be
provided for the restructuring and privatization of the secured by the lessor and included in the lease as an
power industry in the Philippines, under the Power improvement. The water so removed from the natural
Sector Restructuring Program (PSRP) of the Asian source may be appropriated/used by the foreign
Development Bank. corporation leasing the property.

The establishment of institutional and legal framework Opinion No. 14, S. 1995
for the entry of private sector in the power industry
began with the issuance by President Corazon C. The nationality requirement imposed by the Water
Aquino of Executive Order No. 215 in 1987. Said Code refers to the privilege "to appropriate and use
order allowed the entry of private sector – the IPPs – water." This, we have consistently interpreted to mean
to participate in the power generation activities in the the extraction of water directly from its natural source.
country. The entry of IPPs was facilitated and made Once removed from its natural source the water
attractive through the first BOT Law in 1990 (R.A. No. ceases to be a part of the natural resources of the
6957) which aimed to "minimize the burden of country and may be subject of ordinary commerce
infrastructure projects on the national government and may even be acquired by foreigners. (Secretary
budget, minimize external borrowing for infrastructure of Justice Op. No. 173, s. 1984; No. 24, s. 1989; No.
projects, and use the efficiency of the private sector in 100 s. 1994)
delivering a public good." In 1993, the Electric Power
Crisis Act was passed giving the President In fine, we reiterate our earlier view that a foreign
emergency powers to urgently address the power entity may legally process or treat water after its
crisis in the country. The full implementation of the
68 
removal from a natural source by a qualified person,
restructuring and privatization of the power industry natural or juridical.
was achieved when Congress passed the EPIRA in
2001. Opinion No. 122, s. 1998

With respect to foreign investors, the nationality issue The crucial issue at hand is the determination of
had been framed in terms of the character or nature of whether the utilization of water by the power plant to
the power generation process itself, i.e., whether the be owned and operated by a foreign-owned
activity amounts to utilization of natural resources corporation (SRPC) will violate the provisions of the
within the meaning of Sec. 2, Art. XII of the Water Code.
Constitution. If so, then foreign companies cannot
engage in hydropower generation business; but if not,
As proposed, the participation of SRPC to the
then government may legally allow even foreign-
arrangement commences upon construction of the
owned companies to operate hydropower facilities.
power station, consisting of a dam and a power plant.
After the completion of the said station, its ownership
The DOJ has consistently regarded hydropower and control shall be turned over to NPC. However,
generation by foreign entities as not constitutionally SRPC shall remain the owner of the power plant and
proscribed based on the definition of water shall operate it for a period of twenty-five (25) years.
appropriation under the Water Code, thus:
It appears that the dam, which will be owned and
Opinion No. 173, 1984 controlled by NPC, will block the natural flow of the
river. The power plant, which is situated next to it, will
This refers to your request for opinion on the entirely depend upon the dam for its water supply
possibility of granting water permits to foreign which will pass through an intake gate situated one
corporations authorized to do business in the hundred (100) meters above the riverbed. Due to the
Philippines x xx distance from the riverbed, water could not enter the
power plant absent the dam that traps the flow of the
x xxx river. It appears further that no water shall enter the
power tunnel without specific dispatch instructions which shall exercise control over the release of water,
from NPC, and such supplied water shall be used only while the ownership of the power components (power
by SRPC for power generation and not for any other plant and related facilities) is open to both Filipino
purpose. When electricity is generated therein, the citizens/corporations and 100% foreign-owned
same shall be supplied to NPC for distribution to the corporations.
public. These facts x xx viewed in relation to the
Water Code, specifically Article 9 thereof, x xx clearly Sustaining the position of PSALM, then Secretary
show that there is no circumvention of the law. Raul M. Gonzalez opined:

This Department has declared that the nationality Premised on the condition that only the power
requirement imposed by the Water Code refers to the components shall be transferred to the foreign bidders
privilege "to appropriate and use water" and has while the non-power components/structures shall be
interpreted this phrase to mean the extraction of water retained by state agencies concerned, we find that
directly from its natural source (Secretary of Justice both PSALM’s proposal and position are tenable.
Opinion No. 14, s. 1995). "Natural" is defined as that
which is produced without aid of stop, valves, slides, x xxx
or other supplementary means (see Webster’s New
International Dictionary, Second Edition, p. 1630). The
x xx as ruled in one case by a U.S. court:
water that is used by the power plant could not enter
the intake gate without the dam, which is a man-made
structure. Such being the case, the source of the Where the State of New York took its natural
water that enters the power plant is of artificial resources consisting of Saratoga Spring and, through
character rather than natural. This Department is a bottling process, put those resources into preserved
consistent in ruling, that once water is removed from condition where they could be sold to the public in
its natural source, it ceases to be a part of the natural competition with private waters, the state agencies
resources of the country and may be the subject of were not immune from federal taxes imposed upon
ordinary commerce and may even be acquired by bottled waters on the theory that state was engaged
foreigners. (Ibid., No. 173, s. 1984; No. 24, s. 1989; in the sale of "natural resources."
No. 100, s. 1994).
Applied to the instant case, and construed in relation
It is also significant to note that NPC, a government- to the earlier-mentioned constitutional inhibition, it
owned and controlled corporation, has the effective would appear clear that while both waters and
control over all elements of the extraction process, geothermal steam are, undoubtedly "natural
including the amount and timing thereof considering resources", within the meaning of Section 2 Article XII
that x xx the water will flow out of the power tunnel of the present Constitution, hence, their exploitation,
and through the power plant, to be used for the development and utilization should be limited to
generation of electricity, only when the Downstream Filipino citizens or corporations or associations at
Gates are opened, which occur only upon the specific least sixty per centum of the capital of which is owned
water release instructions given by NPC to SRPC. by Filipino citizens, the utilization thereof can be
This specific feature of the agreement, taken together opened even to foreign nationals, after the same have
with the above-stated analysis of the source of water been extracted from the source by qualified persons
that enters the plant, support the view that the or entities. The rationale is because, since they no
nationality requirement embodied in Article XII, longer form part of the natural resources of the
Section 2 of the present Constitution and in Article 15 country, they become subject to ordinary commerce.
of the Water Code, is not violated. 69 

A contrary interpretation, i.e., that the removed or

(Emphasis supplied.) extracted natural resources would remain inalienable
especially to foreign nationals, can lead to absurd
consequences, e.g. that said waters and geothermal
The latest executive interpretation is stated in DOJ
steam, and any other extracted natural resources,
Opinion No. 52, s. 2005 which was rendered upon the
cannot be acquired by foreign nationals for sale within
request of PSALM in connection with the proposed
or outside the country, which could not have been
sale structure for the privatization of hydroelectric and
intended by the framers of the Constitution.
geothermal generation assets (Gencos) of NPC.
PSALM sought a ruling on the legality of its proposed
privatization scheme whereby the non-power The fact that under the proposal, the non-power
components (dam, reservoir and appurtenant components and structures shall be retained and
structures and watershed area) shall be owned by the maintained by the government entities concerned is,
State through government entities like NPC or NIA to us, not only a sufficient compliance of constitutional
requirement of "full control and supervision of the
State" in the exploitation, development and utilization With the advent of privatization of the electric power
of natural resources. It is also an enough safeguard industry which resulted in its segregation into four
against the evil sought to be avoided by the sectors -- generation, transmission, distribution and
constitutional reservation x xx. (Italics in the original,
70 
supply – NPC’s generation and transmission functions
emphasis supplied.) were unbundled. Power generation and transmission
were treated as separate sectors governed by distinct
Appropriation of water, as used in the Water rules under the new regulatory framework introduced
Code refers to the "acquisition of rights over the use by EPIRA. The National Transmission Corporation
of waters or the taking or diverting of waters from a (TRANSCO) was created to own and operate the
natural source in the manner and for any purpose transmission assets and perform the transmission
allowed by law." This definition is not as broad as the
71  functions previously under NPC. While the NPC
concept of appropriation of water in American continues to undertake missionary electrification
jurisprudence: programs through the SPUG, PSALM was also
created to liquidate the assets and liabilities of NPC.
An appropriation of water flowing on the public
domain consists in the capture, impounding, or Under the EPIRA, NPC’s generation function was
diversion of it from its natural course or channel and restricted as it was allowed to "generate and sell
its actual application to some beneficial use private or electricity only from the undisposed generating assets
personal to the appropriator, to the entire exclusion and IPP contracts of PSALM" and was prohibited from
(or exclusion to the extent of the water appropriated) incurring "any new obligations to purchase power
of all other persons. x xx 72  through bilateral contracts with generation companies
or other suppliers." PSALM, on the other hand, was
76 

On the other hand, "water right" is defined in tasked "to structure the sale, privatization or
the Water Code as the privilege granted by the disposition of NPC assets and IPP contracts and/or
government to appropriate and use water. Black’s
73  their energy output based on such terms and
Law Dictionary defined "water rights" as "a legal right, conditions which shall optimize the value and sale
in the nature of a corporeal hereditament, to use the prices of said assets." In the case of multi-purpose
77 

water of a natural stream or water furnished through a hydropower plants, the IRR of R.A. No. 9136 provided
ditch or canal, for general or specific purposes, such that their privatization would extend to water rights
as irrigation, mining, power, or domestic use, either to which shall be transferred or assigned to the buyers
its full capacity or to a measured extent or during a thereof, subject to safeguards mandated by Sec.
defined portion of the time," or "the right to have the 47(e) to enable the national government to direct
water flow so that some portion of it may be reduced water usage in cases of shortage to protect water
to possession and be made private property of requirements imbued with public interest.
individual, and it is therefore the right to divert water
from natural stream by artificial means and apply the Accordingly, the Asset Purchase Agreement executed
same to beneficial use." 74  between PSALM and K-Water stipulated:

Under the Water Code concept of appropriation, a 2.04 Matters Relating to the Non-Power Component
foreign company may not be said to be
"appropriating" our natural resources if it utilizes the x xxx
waters collected in the dam and converts the same
into electricity through artificial devices. Since the Matters relating to Water Rights
NPC remains in control of the operation of the dam by
virtue of water rights granted to it, as determined NPC has issued a certification (the "Water
under DOJ Opinion No. 122, s. 1998, there is no legal Certification") wherein NPC consents, subject to
impediment to foreign-owned companies undertaking Philippine Law, to the (i) transfer of the Water Permit
the generation of electric power using waters already to the BUYER or its Affiliate, and (ii) use by the
appropriated by NPC, the holder of water permit. BUYER or its Affiliate of the water covered by the
Such was the situation of hydropower projects under Water Permit from Closing Date up to a maximum
the BOT contractual arrangements whereby foreign period of one (1) year thereafter to enable the BUYER
investors are allowed to finance or undertake to appropriate and use water sourced from Angat
construction and rehabilitation of infrastructure reservoir for purposes of power generation; provided,
projects and/or own and operate the facility that should the consent or approval of any
constructed. However, in case the facility requires a Governmental Body be required for either (i) or (ii),
public utility franchise, the facility operator must be a the BUYER must secure such consent or approval.
Filipino corporation or at least 60% owned by The BUYER agrees and shall fully comply with the
Filipino.
75 
Water Permit and the Water Certification. x xx
x xxx directs the transfer of water rights in the privatization
of multi-purpose hydropower facilities, is thus merely
Multi-Purpose Facility directory.

The BUYER is fully aware that the Non-Power It is worth mentioning that the Water Code explicitly
Components is a multi-purpose hydro-facility and the provides that Filipino citizens and juridical persons
water is currently being appropriated for domestic who may apply for water permits should be "duly
use, municipal use, irrigation and power generation. qualified by law to exploit and develop water
Anything in this Agreement notwithstanding, the resources."
BUYER shall, at all times even after the Payment
Date, fully and faithfully comply with Philippine Law, Thus, aside from the grant of authority to construct
including the Instructions, the Rule Curve and and operate dams and power plants, NPC’s Revised
Operating Guidelines and the Water Charter specifically authorized it –
Protocol. (Emphasis supplied.)
78 

(f) To take water from any public stream, river, creek,

Lease or transfer of water rights is allowed under the lake, spring or waterfall in the Philippines, for the
Water Code, subject to the approval of NWRB after purposes specified in this Act; to intercept and divert
due notice and hearing. However, lessees or
79 
the flow of waters from lands of riparian owners and
transferees of such water rights must comply with the from persons owning or interested in waters which are
citizenship requirement imposed by the Water Code or may be necessary for said purposes, upon
and its IRR. But regardless of such qualification of payment of just compensation therefor; to alter,
water permit holders/transferees, it is to be noted that straighten, obstruct or increase the flow of water in
there is no provision in the EPIRA itself authorizing streams or water channels intersecting or connecting
the NPC to assign or transfer its water rights in case therewith or contiguous to its works or any part
of transfer of operation and possession of multi- thereof: Provided, That just compensation shall be
purpose hydropower facilities. Since only the power paid to any person or persons whose property is,
plant is to be sold and privatized, the operation of the directly or indirectly, adversely affected or damaged
non-power components such as the dam and thereby.80 

reservoir, including the maintenance of the

surrounding watershed, should remain under the The MWSS is likewise vested with the power to
jurisdiction and control of NPC which continue to be a construct, maintain and operate dams and reservoirs
government corporation. There is therefore no for the purpose of supplying water for domestic and
necessity for NPC to transfer its permit over the water other purposes, as well to construct, develop,
rights to K-Water. Pursuant to its purchase and maintain and operate such artesian wells and springs
operation/management contracts with K-Water, NPC as may be needed in its operation within its
may authorize the latter to use water in the dam to territory. On the other hand, NIA, also a water permit
81 

generate electricity. holder in Angat River, is vested with similar authority

to utilize water resources, as follows:
NPC’s water rights remain an integral aspect of its
jurisdiction and control over the dam and reservoir. (b) To investigate all available and possible water
That the EPIRAitselfdid not ordain any transfer of resources in the country for the purpose of utilizing
water rights leads us to infer that Congress intended the same for irrigation, and to plan, design and
NPC to continue exercising full supervision over the construct the necessary projects to make the ten to
dam, reservoir and, more importantly, to remain in twenty-year period following the approval of this Act
complete control of the extraction or diversion of water as the Irrigation Age of the Republic of the
from the Angat River. Indeed, there can be no debate Philippines; 82 

that the best means of ensuring that PSALM/NPC can

fulfill the duty to prescribe "safeguards to enable the (c) To construct multiple-purpose water resources
national government to direct water usage to protect projects designed primarily for irrigation, and
potable water, irrigation, and all other requirements secondarily for hydraulic power development and/or
imbued with public interest" is for it to retain the water other uses such as flood control, drainage, land
rights over those water resources from where the dam reclamation, domestic water supply, roads and
waters are extracted. In this way, the State’s full highway construction and reforestation, among
supervision and control over the country’s water others, provided, that the plans, designs and the
resources is also assured notwithstanding the construction thereof, shall be undertaken in
privatized power generation business. coordination with the agencies concerned; 83 

Section 6 (a) of the IRR of R.A. No. 9136 insofar as it To reiterate, there is nothing in the EPIRAwhich
declares that it is mandatory for PSALM or NPC to whereby NPC grants authority to K-Water to utilize the
transfer or assign NPC’s water rights to buyers of its waters diverted or collected in the Angat Dam for
multi-purpose hydropower facilities as part of the hydropower generation. Further, NPC and K-Water
privatization process. While PSALM was mandated to shall faithfully comply with the terms and conditions of
transfer the ownership of all hydropower plants except the Memorandum of Agreement on Water Protocol, as
those mentioned in Sec. 47 (f), any transfer of well as with such other regulations and issuances of
possession, operation and control of the multi- the NWRB governing water rights and water usage.
purpose hydropower facilities, the intent to preserve
water resources under the full supervision and control WHEREFORE, the present petition for certiorari and
of the State is evident when PSALM was obligated to prohibition with prayer for injunctive relief/s
prescribe safeguards to enable the national is PARTLY GRANTED.
government to direct water usage to domestic and
other requirements "imbued with public interest." The following DISPOSITIONS are in ORDER:
There is no express requirement for the transfer of
water rights in all cases where the operation of
1) The bidding conducted and the Notice of
hydropower facilities in a multi-purpose dam complex
Award issued by PSALM in favor of the
is turned over to the private sector.
winning bidder, KOREA WATER
RESOURCES CORPORATION (K-WATER),
As the new owner of the AHEPP, K-Water will have to are declared VALID and LEGAL;
utilize the waters in the Angat Dam for hydropower
generation. Consistent with the goals of the EPIRA,
2) PSALM is directed to FURNISH the
private entities are allowed to undertake power
petitioners with copies of all documents and
generation activities and acquire NPC’s generation
records in its files pertaining to K-Water;
assets. But since only the hydroelectric power plants
and appurtenances are being sold, the privatization
scheme should enable the buyer of a hydroelectric 3) Section 6 (a), Rule 23, IRR of the EPIRA, is
power plant in NPC’s multi-purpose dam complex to hereby declared as merely DIRECTORY, and
have beneficialuse of the waters diverted or collected not an absolute condition in all cases where
in the Angat Dam for its hydropower generation NPC-owned hydropower generation facilities
activities, and at the same time ensure that the NPC are privatized;
retains full supervision and control over the extraction
and diversion of waters from the Angat River. 4) NPC shall CONTINUE to be
the HOLDER of Water Permit No. 6512
In fine, the Court rules that while the sale of AHEPP to issued by the National Water Resources
a foreign corporation pursuant to the privatization Board. NPC shall authorize K-Water to utilize
mandated by the EPIRA did not violate Sec. 2, Art. XII the waters in the Angat Dam for hydropower
of the 1987 Constitution which limits the exploration, generation, subject to the NWRB’s rules and
development and utilization of natural resources regulations governing water right and usage.
under the full supervision and control of the State or The Asset Purchase Agreement and
the State’s undertaking the same through joint Operation & Management Agreement
venture, co-production or production sharing between NPC/PSALM and K- Water are thus
agreements with Filipino corporations 60% of the amended accordingly.
capital of which is owned by Filipino citizens, the
stipulation in the Asset Purchase Agreement and Except for the requirement of securing a water
Operations and Maintenance Agreement whereby permit, K-Water remains BOUND by its
NPC consents to the transfer of water rights to the undertakings and warranties under the APA
foreign buyer, K-Water, contravenes the aforesaid and O & M Agreement;
constitutional provision and the Water Code. 1âwphi1

5) NPC shall be a CO-PARTY with K-Water in

Section 6, Rule 23 of the IRR of EPIRA, insofar as it the Water Protocol Agreement with MWSS
ordered NPC’s water rights in multi-purpose and NIA, and not merely as a conforming
hydropower facilities to be included in the sale authority or agency; and
thereof, is declared as merely directoryand not an
absolute condition in the privatization scheme. In this 6) The Status Quo Ante Order issued by this
case, we hold that NPC shall continue to be the Court on May 24, 2010 is hereby LIFTED and
holder of the water permit even as the operational SET ASIDE.
control and day-to-day management of the AHEPP is
turned over to K-Water under the terms and No pronouncement as to costs.
conditions of their APA and O & M Agreement,
SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

G.R. No. 192986               January 15, 2013

ADVOCATES FOR TRUTH IN LENDING, INC. and

EDUARDO B. OLAGUER, Petitioners, 
vs.
BANGKO SENTRAL MONETARY BOARD,
represented by its Chairman, GOVERNOR
ARMANDO M. TETANGCO, JR., and its incumbent
members: JUANITA D. AMATONG, ALFREDO C.
ANTONIO, PETER FA VILA, NELLY F.
VILLAFUERTE, IGNACIO R. BUNYE and CESAR V.
PURISIMA, Respondents.

DECISION

REYES, J.:

Petitioners, claiming that they are raising issues of

transcendental importance to the public, filed directly
with this Court this Petition for Certiorari under Rule
65 of the 1997 Rules of Court, seeking to declare that
the Bangko Sentral ng Pilipinas Monetary Board
(BSP-MB), replacing the Central Bank Monetary
Board (CB-MB) by virtue of Republic Act (R.A.) No.
7653, has no authority to continue enforcing Central
Bank Circular No. 905,1 issued by the CB-MB in 1982,
which "suspended" Act No. 2655, or the Usury Law of
1916.

Factual Antecedents

Petitioner "Advocates for Truth in Lending, Inc."

(AFTIL) is a non-profit, non-stock corporation
organized to engage in pro bono concerns and
activities relating to money lending issues. It was
incorporated on July 9, 2010,2 and a month later, it
filed this petition, joined by its founder and president,
Eduardo B. Olaguer, suing as a taxpayer and a
citizen.

R.A. No. 265, which created the Central Bank (CB) of

the Philippines on June 15, 1948, empowered the CB-
MB to, among others, set the maximum interest rates
which banks may charge for all types of loans and
other credit operations, within limits prescribed by the
Usury Law. Section 109 of R.A. No. 265 reads: borrowings, including deposits and deposit
substitutes, or loans of financial intermediaries.
Sec. 109. Interest Rates, Commissions and Charges. (Underlining and emphasis ours)
— The Monetary Board may fix the maximum rates of
interest which banks may pay on deposits and on In its Resolution No. 2224 dated December 3,
other obligations. 1982,3 the CB-MB issued CB Circular No. 905, Series
of 1982, effective on January 1, 1983. Section 1 of the
The Monetary Board may, within the limits prescribed Circular, under its General Provisions, removed the
in the Usury Law fix the maximum rates of interest ceilings on interest rates on loans or forbearance of
which banks may charge for different types of loans any money, goods or credits, to wit:
and for any other credit operations, or may fix the
maximum differences which may exist between the Sec. 1. The rate of interest, including commissions,
interest or rediscount rates of the Central Bank and premiums, fees and other charges, on a loan or
the rates which the banks may charge their customers forbearance of any money, goods, or credits,
if the respective credit documents are not to lose their regardless of maturity and whether secured or
eligibility for rediscount or advances in the Central unsecured, that may be charged or collected by any
Bank. person, whether natural or juridical, shall not be
subject to any ceiling prescribed under or pursuant to
Any modifications in the maximum interest rates the Usury Law, as amended. (Underscoring and
permitted for the borrowing or lending operations of emphasis ours)
the banks shall apply only to future operations and not
to those made prior to the date on which the The Circular then went on to amend Books I to IV of
modification becomes effective. the CB’s "Manual of Regulations for Banks and Other
Financial Intermediaries" (Manual of Regulations) by
In order to avoid possible evasion of maximum removing the applicable ceilings on specific interest
interest rates set by the Monetary Board, the Board rates. Thus, Sections 5, 9 and 10 of CB Circular No.
may also fix the maximum rates that banks may pay 905 amended Book I, Subsections 1303, 1349,
to or collect from their customers in the form of 1388.1 of the Manual of Regulations, by removing the
commissions, discounts, charges, fees or payments of ceilings for interest and other charges, commissions,
any sort. (Underlining ours) premiums, and fees applicable to commercial banks;
Sections 12 and 17 removed the interest ceilings for
On March 17, 1980, the Usury Law was amended by thrift banks (Book II, Subsections 2303, 2349);
Presidential Decree (P.D.) No. 1684, giving the CB- Sections 19 and 21 removed the ceilings applicable to
MB authority to prescribe different maximum rates of rural banks (Book III, Subsection 3152.3-c); and,
interest which may be imposed for a loan or renewal Sections 26, 28, 30 and 32 removed the ceilings for
thereof or the forbearance of any money, goods or non-bank financial intermediaries (Book IV,
credits, provided that the changes are effected Subsections 4303Q.1 to 4303Q.9, 4303N.1, 4303P).4
gradually and announced in advance. Thus, Section
1-a of Act No. 2655 now reads: On June 14, 1993, President Fidel V. Ramos signed
into law R.A. No. 7653 establishing the Bangko
Sec. 1-a. The Monetary Board is hereby authorized to Sentral ng Pilipinas (BSP) to replace the CB. The
prescribe the maximum rate or rates of interest for the repealing clause thereof, Section 135, reads:
loan or renewal thereof or the forbearance of any
money, goods or credits, and to change such rate or Sec. 135. Repealing Clause. — Except as may be
rates whenever warranted by prevailing economic and provided for in Sections 46 and 132 of this Act,
social conditions: Provided, That changes in such rate Republic Act No. 265, as amended, the provisions of
or rates may be effected gradually on scheduled any other law, special charters, rule or regulation
dates announced in advance. issued pursuant to said Republic Act No. 265, as
amended, or parts thereof, which may be inconsistent
In the exercise of the authority herein granted the with the provisions of this Act are hereby repealed.
Monetary Board may prescribe higher maximum rates Presidential Decree No. 1792 is likewise repealed.
for loans of low priority, such as consumer loans or
renewals thereof as well as such loans made by Petition for Certiorari
pawnshops, finance companies and other similar
credit institutions although the rates prescribed for To justify their skipping the hierarchy of courts and
these institutions need not necessarily be uniform. going directly to this Court to secure a writ of
The Monetary Board is also authorized to prescribe certiorari, petitioners contend that the transcendental
different maximum rate or rates for different types of importance of their Petition can readily be seen in the
issues raised therein, to wit: They further insist that under Section 109 of R.A. No.
265, the authority of the CB-MB was clearly only to fix
a) Whether under R.A. No. 265 and/or P.D. the banks’ maximum rates of interest, but always
No. 1684, the CB-MB had the statutory or within the limits prescribed by the Usury Law.
constitutional authority to prescribe the
maximum rates of interest for all kinds of Thus, according to petitioners, CB Circular No. 905,
credit transactions and forbearance of money, which was promulgated without the benefit of any
goods or credit beyond the limits prescribed in prior public hearing, is void because it violated Article
the Usury Law; 5 of the New Civil Code, which provides that "Acts
executed against the provisions of mandatory or
b) If so, whether the CB-MB exceeded its prohibitory laws shall be void, except when the law
authority when it issued CB Circular No. 905, itself authorizes their validity."
which removed all interest ceilings and thus
suspended Act No. 2655 as regards usurious They further claim that just weeks after the issuance
interest rates; of CB Circular No. 905, the benchmark 91-day
Treasury bills (T-bills),13 then known as "Jobo"
c) Whether under R.A. No. 7653, the new bills14 shot up to 40% per annum, as a result. The
BSP-MB may continue to enforce CB Circular banks immediately followed suit and re-priced their
No. 905.5 loans to rates which were even higher than those of
the "Jobo" bills. Petitioners thus assert that CB
Petitioners attached to their petition copies of several Circular No. 905 is also unconstitutional in light of
Senate Bills and Resolutions of the 10th Congress, Section 1 of the Bill of Rights, which commands that
which held its sessions from 1995 to 1998, calling for "no person shall be deprived of life, liberty or property
investigations by the Senate Committee on Banks and without due process of law, nor shall any person be
Financial Institutions into alleged unconscionable denied the equal protection of the laws."
commercial rates of interest imposed by these
entities. Senate Bill (SB) Nos. 376 and 1860,7 filed by Finally, petitioners point out that R.A. No. 7653 did not
Senator Vicente C. Sotto III and the late Senator Blas re-enact a provision similar to Section 109 of R.A. No.
F. Ople, respectively, sought to amend Act No. 2655 265, and therefore, in view of the repealing clause in
by fixing the rates of interest on loans and Section 135 of R.A. No. 7653, the BSP-MB has been
forbearance of credit; Philippine Senate Resolution stripped of the power either to prescribe the maximum
(SR) No. 1053,8 10739 and 1102,10 filed by Senators rates of interest which banks may charge for different
Ramon B. Magsaysay, Jr., Gregorio B. Honasan and kinds of loans and credit transactions, or to suspend
Franklin M. Drilon, respectively, urged the aforesaid Act No. 2655 and continue enforcing CB Circular No.
Senate Committee to investigate ways to curb the 905.
high commercial interest rates then obtaining in the
country; Senator Ernesto Maceda filed SB No. 1151 Ruling
to prohibit the collection of more than two months of
advance interest on any loan of money; and Senator The petition must fail.
Raul Roco filed SR No. 114411seeking an investigation
into an alleged cartel of commercial banks, called A. The Petition is procedurally infirm.
"Club 1821", reportedly behind the regime of high
interest rates. The petitioners also attached news
The decision on whether or not to accept a petition for
clippings12 showing that in February 1998 the banks’
certiorari, as well as to grant due course thereto, is
prime lending rates, or interests on loans to their best
addressed to the sound discretion of the court.15 A
borrowers, ranged from 26% to 31%.
petition for certiorari being an extraordinary remedy,
the party seeking to avail of the same must strictly
Petitioners contend that under Section 1-a of Act No. observe the procedural rules laid down by law, and
2655, as amended by P.D. No. 1684, the CB-MB was non-observance thereof may not be brushed aside as
authorized only to prescribe or set the maximum rates mere technicality.16
of interest for a loan or renewal thereof or for the
forbearance of any money, goods or credits, and to
As provided in Section 1 of Rule 65, a writ of certiorari
change such rates whenever warranted by prevailing
is directed against a tribunal exercising judicial or
economic and social conditions, the changes to be
quasi-judicial functions.17 Judicial functions are
effected gradually and on scheduled dates; that
exercised by a body or officer clothed with authority to
nothing in P.D. No. 1684 authorized the CB-MB to lift
determine what the law is and what the legal rights of
or suspend the limits of interest on all credit
the parties are with respect to the matter in
transactions, when it issued CB Circular No. 905.
controversy. Quasi-judicial function is a term that
applies to the action or discretion of public detract from the high regard for petitioners as civic
administrative officers or bodies given the authority to leaders to say that their interest falls short of that
investigate facts or ascertain the existence of facts, required to maintain an action under the Rule 3, Sec.
hold hearings, and draw conclusions from them as a 2.24
basis for their official action using discretion of a
judicial nature.18 C. The Petition raises no issues of transcendental
importance.
The CB-MB (now BSP-MB) was created to perform
executive functions with respect to the establishment, In the 1993 case of Joya v. Presidential Commission
operation or liquidation of banking and credit on Good Government,25 it was held that no question
institutions, and branches and agencies thereof.19 It involving the constitutionality or validity of a law or
does not perform judicial or quasi-judicial functions. governmental act may be heard and decided by the
Certainly, the issuance of CB Circular No. 905 was court unless there is compliance with the legal
done in the exercise of an executive function. requisites for judicial inquiry, namely: (a) that the
Certiorari will not lie in the instant case.20 question must be raised by the proper party; (b) that
there must be an actual case or controversy; (c) that
B. Petitioners have no locus standi to file the Petition the question must be raised at the earliest possible
opportunity; and (d) that the decision on the
Locus standi is defined as "a right of appearance in a constitutional or legal question must be necessary to
court of justice on a given question." In private suits, the determination of the case itself.
Section 2, Rule 3 of the 1997 Rules of Civil Procedure
provides that "every action must be prosecuted or In Prof. David v. Pres. Macapagal-Arroyo,26 the Court
defended in the name of the real party in interest," summarized the requirements before taxpayers,
who is "the party who stands to be benefited or voters, concerned citizens, and legislators can be
injured by the judgment in the suit or the party entitled accorded a standing to sue, viz:
to the avails of the suit." Succinctly put, a party’s
standing is based on his own right to the relief (1) the cases involve constitutional issues;
sought.21
(2) for taxpayers, there must be a claim of
Even in public interest cases such as this petition, the illegal disbursement of public funds or that the
Court has generally adopted the "direct injury" test tax measure is unconstitutional;
that the person who impugns the validity of a statute
must have "a personal and substantial interest in the (3) for voters, there must be a showing of
case such that he has sustained, or will sustain direct obvious interest in the validity of the election
injury as a result."22 Thus, while petitioners assert a law in question;
public right to assail CB Circular No. 905 as an illegal
executive action, it is nonetheless required of them to
(4) for concerned citizens, there must be a
make out a sufficient interest in the vindication of the
showing that the issues raised are of
public order and the securing of relief. It is significant
transcendental importance which must be
that in this petition, the petitioners do not allege that
settled early; and
they sustained any personal injury from the issuance
of CB Circular No. 905.
(5) for legislators, there must be a claim that
the official action complained of infringes upon
Petitioners also do not claim that public funds were
their prerogatives as legislators.
being misused in the enforcement of CB Circular No.
905. In Kilosbayan, Inc. v. Morato,23 involving the on-
line lottery contract of the PCSO, there was no While the Court may have shown in recent decisions
allegation that public funds were being misspent, a certain toughening in its attitude concerning the
which according to the Court would have made the question of legal standing, it has nonetheless always
action a public one, "and justify relaxation of the made an exception where the transcendental
requirement that an action must be prosecuted in the importance of the issues has been established,
name of the real party-in-interest." The Court held, notwithstanding the petitioners’ failure to show a direct
moreover, that the status of Kilosbayan as a people’s injury.27 In CREBA v. ERC,28 the Court set out the
organization did not give it the requisite personality to following instructive guides as determinants on
question the validity of the contract. Thus: whether a matter is of transcendental importance,
namely: (1) the character of the funds or other assets
involved in the case; (2) the presence of a clear case
Petitioners do not in fact show what particularized
of disregard of a constitutional or statutory prohibition
interest they have for bringing this suit. It does not
by the public respondent agency or instrumentality of
the government; and (3) the lack of any other party D. The CB-MB merely suspended the effectivity of the
with a more direct and specific interest in the Usury Law when it issued CB Circular No. 905.
questions being raised. Further, the Court stated in
Anak Mindanao Party-List Group v. The Executive The power of the CB to effectively suspend the Usury
Secretary29 that the rule on standing will not be waived Law pursuant to P.D. No. 1684 has long been
where these determinants are not established. recognized and upheld in many cases. As the Court
explained in the landmark case of Medel v.
In the instant case, there is no allegation of misuse of CA,36 citing several cases, CB Circular No. 905 "did
public funds in the implementation of CB Circular No. not repeal nor in anyway amend the Usury Law but
905. Neither were borrowers who were actually simply suspended the latter’s effectivity;"37that "a CB
affected by the suspension of the Usury Law joined in Circular cannot repeal a law, [for] only a law can
this petition. Absent any showing of transcendental repeal another law;"38 that "by virtue of CB Circular
importance, the petition must fail. No. 905, the Usury Law has been rendered
ineffective;"39 and "Usury has been legally non-
More importantly, the Court notes that the instant existent in our jurisdiction. Interest can now be
petition adverted to the regime of high interest rates charged as lender and borrower may agree upon."40
which obtained at least 15 years ago, when the banks’
prime lending rates ranged from 26% to 31%,30 or In First Metro Investment Corp. v. Este Del Sol
even 29 years ago, when the 91-day Jobo bills Mountain Reserve, Inc.41 cited in DBP v. Perez,42 we
reached 40% per annum. In contrast, according to the also belied the contention that the CB was engaged in
BSP, in the first two (2) months of 2012 the bank self-legislation. Thus:
lending rates averaged 5.91%, which implies that the
banks’ prime lending rates were lower; moreover, Central Bank Circular No. 905 did not repeal nor in
deposit interests on savings and long-term deposits any way amend the Usury Law but simply suspended
have also gone very low, averaging 1.75% and the latter’s effectivity. The illegality of usury is wholly
1.62%, respectively.31 the creature of legislation. A Central Bank Circular
cannot repeal a law. Only a law can repeal another
Judging from the most recent auctions of T-bills, the law. x x x.43
savings rates must be approaching 0%.  In the
1âwphi1

auctions held on November 12, 2012, the rates of 3- In PNB v. Court of Appeals,44 an escalation clause in a
month, 6-month and 1-year T-bills have dropped to loan agreement authorized the PNB to unilaterally
0.150%, 0.450% and 0.680%, increase the rate of interest to 25% per annum, plus a
respectively.32 According to Manila Bulletin, this very penalty of 6% per annum on past dues, then to 30%
low interest regime has been attributed to "high on October 15, 1984, and to 42% on October 25,
liquidity and strong investor demand amid positive 1984. The Supreme Court invalidated the rate
economic indicators of the country."33 increases made by the PNB and upheld the 12%
interest imposed by the CA, in this wise:
While the Court acknowledges that cases of
transcendental importance demand that they be P.D. No. 1684 and C.B. Circular No. 905 no more
settled promptly and definitely, brushing aside, if we than allow contracting parties to stipulate freely
must, technicalities of procedure,34 the delay of at regarding any subsequent adjustment in the interest
least 15 years in the filing of the instant petition has rate that shall accrue on a loan or forbearance of
actually rendered moot and academic the issues it money, goods or credits. In fine, they can agree to
now raises. adjust, upward or downward, the interest previously
stipulated. x x x.45
For its part, BSP-MB maintains that the petitioners’
allegations of constitutional and statutory violations of Thus, according to the Court, by lifting the interest
CB Circular No. 905 are really mere challenges made ceiling, CB Circular No. 905 merely upheld the parties’
by petitioners concerning the wisdom of the Circular. freedom of contract to agree freely on the rate of
It explains that it was in view of the global economic interest. It cited Article 1306 of the New Civil Code,
downturn in the early 1980’s that the executive under which the contracting parties may establish
department through the CB-MB had to formulate such stipulations, clauses, terms and conditions as
policies to achieve economic recovery, and among they may deem convenient, provided they are not
these policies was the establishment of a market- contrary to law, morals, good customs, public order,
oriented interest rate structure which would require or public policy.
the removal of the government-imposed interest rate
ceilings.35 E. The BSP-MB has authority to enforce CB Circular
No. 905.
Section 1 of CB Circular No. 905 provides that "The It is settled that nothing in CB Circular No. 905 grants
rate of interest, including commissions, premiums, lenders a carte blanche authority to raise interest
fees and other charges, on a loan or forbearance of rates to levels which will either enslave their
any money, goods, or credits, regardless of maturity borrowers or lead to a hemorrhaging of their
and whether secured or unsecured, that may be assets.48 As held in Castro v. Tan:49
charged or collected by any person, whether natural
or juridical, shall not be subject to any ceiling The imposition of an unconscionable rate of interest
prescribed under or pursuant to the Usury Law, as on a money debt, even if knowingly and voluntarily
amended." It does not purport to suspend the Usury assumed, is immoral and unjust. It is tantamount to a
Law only as it applies to banks, but to all lenders. repugnant spoliation and an iniquitous deprivation of
property, repulsive to the common sense of man. It
Petitioners contend that, granting that the CB had has no support in law, in principles of justice, or in the
power to "suspend" the Usury Law, the new BSP-MB human conscience nor is there any reason
did not retain this power of its predecessor, in view of whatsoever which may justify such imposition as
Section 135 of R.A. No. 7653, which expressly righteous and as one that may be sustained within the
repealed R.A. No. 265. The petitioners point out that sphere of public or private morals.50
R.A. No. 7653 did not reenact a provision similar to
Section 109 of R.A. No. 265. Stipulations authorizing iniquitous or unconscionable
interests have been invariably struck down for being
A closer perusal shows that Section 109 of R.A. No. contrary to morals, if not against the law.51 Indeed,
265 covered only loans extended by banks, whereas under Article 1409 of the Civil Code, these contracts
under Section 1-a of the Usury Law, as amended, the are deemed inexistent and void ab initio, and
BSP-MB may prescribe the maximum rate or rates of therefore cannot be ratified, nor may the right to set
interest for all loans or renewals thereof or the up their illegality as a defense be waived.
forbearance of any money, goods or credits, including
those for loans of low priority such as consumer Nonetheless, the nullity of the stipulation of usurious
loans, as well as such loans made by pawnshops, interest does not affect the lender’s right to recover
finance companies and similar credit institutions. It the principal of a loan, nor affect the other terms
even authorizes the BSP-MB to prescribe different thereof.52 Thus, in a usurious loan with mortgage, the
maximum rate or rates for different types of right to foreclose the mortgage subsists, and this right
borrowings, including deposits and deposit can be exercised by the creditor upon failure by the
substitutes, or loans of financial intermediaries. debtor to pay the debt due. The debt due is
considered as without the stipulated excessive
Act No. 2655, an earlier law, is much broader in interest, and a legal interest of 12% per annum will be
scope, whereas R.A. No. 265, now R.A. No. 7653, added in place of the excessive interest formerly
merely supplemented it as it concerns loans by banks imposed,53following the guidelines laid down in the
and other financial institutions. Had R.A. No. 7653 landmark case of Eastern Shipping Lines, Inc. v.
been intended to repeal Section 1-a of Act No. 2655, Court of Appeals,54 regarding the manner of
it would have so stated in unequivocal terms. computing legal interest:

Moreover, the rule is settled that repeals by II. With regard particularly to an award of interest in
implication are not favored, because laws are the concept of actual and compensatory damages,
presumed to be passed with deliberation and full the rate of interest, as well as the accrual thereof, is
knowledge of all laws existing pertaining to the imposed, as follows:
subject.46 An implied repeal is predicated upon the
condition that a substantial conflict or repugnancy is 1. When the obligation is breached, and it
found between the new and prior laws. Thus, in the consists in the payment of a sum of money,
absence of an express repeal, a subsequent law i.e., a loan or forbearance of money, the
cannot be construed as repealing a prior law unless interest due should be that which may have
an irreconcilable inconsistency and repugnancy exists been stipulated in writing. Furthermore, the
in the terms of the new and old laws.47 We find no interest due shall itself earn legal interest from
such conflict between the provisions of Act 2655 and the time it is judicially demanded. In the
R.A. No. 7653. absence of stipulation, the rate of interest
shall be 12% per annum to be computed from
F. The lifting of the ceilings for interest rates does not default, i.e., from judicial or extrajudicial
authorize stipulations charging excessive, demand under and subject to the provisions of
unconscionable, and iniquitous interest. Article 1169 of the Civil Code.
 2. When an obligation, not constituting a loan SO ORDERED.
or forbearance of money, is breached, an
interest on the amount of damages awarded BIENVENIDO L. REYES
may be imposed at the discretion of the court Associate Justice
at the rate of 6% per annum. No interest,
however, shall be adjudged on unliquidated
claims or damages except when or until the
demand can be established with reasonable
certainty. Accordingly, where the demand is
established with reasonable certainty, the
interest shall begin to run from the time the
claim is made judicially or extrajudicially (Art.
1169, Civil Code) but when such certainty
cannot be so reasonably established at the
time the demand is made, the interest shall
G.R. No. 191644               February 19, 2013
begin to run only from the date the judgment
of the court is made (at which time the
quantification of damages may be deemed to DENNIS A.B. FUNA, Petitioner, 
have been reasonably ascertained). The vs.
actual base for the computation of legal CTING SECRETARY OF JUSTICE ALBERTO C.
interest shall, in any case, be on the amount AGRA, IN HIS OFFICIAL CONCURRENT
finally adjudged. CAPACITIES AS ACTING SECRETARY OF THE
DEPARTMENT OF JUSTICE AND AS ACTING
SOLICITOR GENERAL, EXECUTIVE SECRETARY
3. When the judgment of the court awarding a
LEANDRO R. MENDOZA, OFFICE OF THE
sum of money becomes final and executory,
PRESIDENT, Respondents.
the rate of legal interest, whether the case
falls under paragraph 1 or paragraph 2,
above, shall be 12% per annum from such DECISION
finality until its satisfaction, this interim period
being deemed to be by then an equivalent to a BERSAMIN, J.:
forbearance of credit.55 (Citations omitted)
Section 13, Article VII of the 1987 Constitution
The foregoing rules were further clarified in Sunga- expressly prohibits the President, Vice-President, the
Chan v. Court of Appeals, 56 as follows: Members of the Cabinet, and their deputies or
assistants from holding any other office or
Eastern Shipping Lines, Inc. synthesized the rules on employment during their tenure unless otherwise
the imposition of interest, if proper, and the applicable provided in the Constitution. Complementing the
rate, as follows: The 12% per annum rate under CB prohibition is Section 7, paragraph (2), Article IX-B of
Circular No. 416 shall apply only to loans or the 1987 Constitution, which bans any appointive
forbearance of money, goods, or credits, as well as to official from holding any other office or employment in
judgments involving such loan or forbearance of the Government or any subdivision, agency or
money, goods, or credit, while the 6% per annum instrumentality thereof, including government-owned
under Art. 2209 of the Civil Code applies "when the or controlled corporations or their subsidiaries, unless
transaction involves the payment of indemnities in the otherwise allowed by law or the primary functions of
concept of damage arising from the breach or a delay his position.
in the performance of obligations in general," with the
application of both rates reckoned "from the time the These prohibitions under the Constitution are at the
complaint was filed until the [adjudged] amount is fully core of this special civil action for certiorari and
paid." In either instance, the reckoning period for the prohibition commenced on April 7, 2010 to assail the
commencement of the running of the legal interest designation of respondent Hon. Alberto C. Agra, then
shall be subject to the condition "that the courts are the Acting Secretary of Justice, as concurrently the
vested with discretion, depending on the equities of Acting Solicitor General.
each case, on the award of interest."57 (Citations
omitted) Antecedents

WHEREFORE, premises considered, the Petition for The petitioner alleges that on March 1, 2010,
certiorari is DISMISSED. President Gloria M. Macapagal-Arroyo appointed
Agra as the Acting Secretary of Justice following the
resignation of Secretary Agnes VST Devanadera in not distinguish between an appointment or
order to vie for a congressional seat in Quezon designation of a Member of the Cabinet in an acting
Province; that on March 5, 2010, President Arroyo or temporary capacity, on the one hand, and one in a
designated Agra as the Acting Solicitor General in a permanent capacity, on the other hand; and that
concurrent capacity;1 that on April 7, 2010, the Acting Secretaries, being nonetheless Members of the
petitioner, in his capacity as a taxpayer, a concerned Cabinet, are not exempt from the constitutional ban.
citizen and a lawyer, commenced this suit to He emphasizes that the position of the Solicitor
challenge the constitutionality of Agra’s concurrent General is not an ex officio position in relation to the
appointments or designations, claiming it to be position of the Secretary of Justice, considering that
prohibited under Section 13, Article VII of the 1987 the Office of the Solicitor General (OSG) is an
Constitution; that during the pendency of the suit, independent and autonomous office attached to the
President Benigno S. Aquino III appointed Atty. Jose Department of Justice (DOJ).8 He insists that the fact
Anselmo I. Cadiz as the Solicitor General; and that that Agra was extended an appointment as the Acting
Cadiz assumed as the Solicitor General and Solicitor General shows that he did not occupy that
commenced his duties as such on August 5, 2010.2 office in an ex officio capacity because an ex
officio position does not require any further warrant or
Agra renders a different version of the antecedents. appointment.
He represents that on January 12, 2010, he was then
the Government Corporate Counsel when President Respondents contend, in contrast, that Agra’s
Arroyo designated him as the Acting Solicitor General concurrent designations as the Acting Secretary of
in place of Solicitor General Devanadera who had Justice and Acting Solicitor General were only in a
been appointed as the Secretary of Justice;3 that on temporary capacity, the only effect of which was to
March 5, 2010, President Arroyo designated him also confer additional duties to him. Thus, as the Acting
as the Acting Secretary of Justice vice Secretary Solicitor General and Acting Secretary of Justice,
Devanadera who had meanwhile tendered her Agra was not "holding" both offices in the strict
resignation in order to run for Congress representing constitutional sense.9 They argue that an
a district in Quezon Province in the May 2010 appointment, to be covered by the constitutional
elections; that he then relinquished his position as the prohibition, must be regular and permanent, instead of
Government Corporate Counsel; and that pending the a mere designation.
appointment of his successor, Agra continued to
perform his duties as the Acting Solicitor General.4 Respondents further contend that, even on the
assumption that Agra’s concurrent designation
Notwithstanding the conflict in the versions of the constituted "holding of multiple offices," his continued
parties, the fact that Agra has admitted to holding the service as the Acting Solicitor General was akin to a
two offices concurrently in acting capacities is settled, hold-over; that upon Agra’s designation as the Acting
which is sufficient for purposes of resolving the Secretary of Justice, his term as the Acting Solicitor
constitutional question that petitioner raises herein. General expired in view of the constitutional
prohibition against holding of multiple offices by the
The Case Members of the Cabinet; that under the principle of
hold-over, Agra continued his service as the Acting
In Funa v. Ermita,5 the Court resolved a petition Solicitor General "until his successor is elected and
for certiorari, prohibition and mandamus brought by qualified"10 to "prevent a hiatus in the government
herein petitioner assailing the constitutionality of the pending the time when a successor may be chosen
designation of then Undersecretary of the Department and inducted into office;"11 and that during his
of Transportation and Communications (DOTC) Maria continued service as the Acting Solicitor General, he
Elena H. Bautista as concurrently the Officer-in- did not receive any salaries and emoluments from the
Charge of the Maritime Industry Authority. The OSG after becoming the Acting Secretary of Justice
petitioner has adopted here the arguments he on March 5, 2010.12
advanced in Funa v. Ermita, and he has rested his
grounds of challenge mainly on the pronouncements Respondents point out that the OSG’s independence
in Civil Liberties Union v. Executive and autonomy are defined by the powers and
Secretary6and Public Interest Center, Inc. v. Elma.7 functions conferred to that office by law, not by the
person appointed to head such office;13 and that
What may differentiate this challenge from those in although the OSG is attached to the DOJ, the DOJ’s
the others is that the appointments being hereby authority, control and supervision over the OSG are
challenged were in acting or temporary capacities. limited only to budgetary purposes.14
Still, the petitioner submits that the prohibition under
Section 13, Article VII of the 1987 Constitution does In his reply, petitioner counters that there was no
"prevailing special circumstance" that justified the held:
non-application to Agra of Section 13, Article VII of the
1987 Constitution;15 that the temporariness of the To have legal standing, therefore, a suitor must show
appointment or designation is not an excuse to that he has sustained or will sustain a "direct injury"
disregard the constitutional ban against holding of as a result of a government action, or have a "material
multiple offices by the Members of the Cabinet;16 that interest" in the issue affected by the challenged
Agra’s invocation of the principle of hold-over is official act. However, the Court has time and again
misplaced for being predicated upon an erroneous acted liberally on the locus standi requirements
presentation of a material fact as to the time of his and has accorded certain individuals, not
designation as the Acting Solicitor General and Acting otherwise directly injured, or with material interest
Secretary of Justice; that Agra’s concurrent affected, by a Government act, standing to sue
designations further violated the Administrative Code provided a constitutional issue of critical
of 1987 which mandates that the OSG shall be significance is at stake. The rule on locus
autonomous and independent.17 standi is after all a mere procedural technicality in
relation to which the Court, in a catena of cases
Issue involving a subject of transcendental import, has
waived, or relaxed, thus allowing non-traditional
Did the designation of Agra as the Acting Secretary of plaintiffs, such as concerned citizens, taxpayers,
Justice, concurrently with his position of Acting voters or legislators, to sue in the public interest,
Solicitor General, violate the constitutional prohibition albeit they may not have been personally injured
against dual or multiple offices for the Members of the by the operation of a law or any other government
Cabinet and their deputies and assistants? act. In David, the Court laid out the bare minimum
norm before the so-called "non-traditional
Ruling suitors" may be extended standing to sue, thusly:

The petition is meritorious. 1.) For taxpayers, there must be a claim of

illegal disbursement of public funds or that the
tax measure is unconstitutional;
The designation of Agra as Acting Secretary of
Justice concurrently with his position of Acting
Solicitor General was unconstitutional and void for 2.) For voters, there must be a showing of
being in violation of the constitutional prohibition obvious interest in the validity of the election
under Section 13, Article VII of the 1987 Constitution. law in question;

1. 3.) For concerned citizens, there must be a

showing that the issues raised are of
transcendental importance which must be
Requisites of judicial review not in issue
settled early; and
The power of judicial review is subject to limitations, to
4.) For legislators, there must be a claim that
wit: (1) there must be an actual case or controversy
the official action complained of infringes their
calling for the exercise of judicial power; (2) the
prerogatives as legislators.
person challenging the act must have the standing to
assail the validity of the subject act or issuance, that
is, he must have a personal and substantial interest in This case before Us is of transcendental
the case such that he has sustained, or will sustain, importance, since it obviously has "far-reaching
direct injury as a result of its enforcement; (3) the implications," and there is a need to promulgate
question of constitutionality must be raised at the rules that will guide the bench, bar, and the public
earliest opportunity; and (4) the issue of in future analogous cases. We, thus, assume a
constitutionality must be the very lis mota of the liberal stance and allow petitioner to institute the
case.18 instant petition.20 (Bold emphasis supplied)

Here, the OSG does not dispute the justiciability and In Funa v. Ermita,21 the Court recognized the locus
ripeness for consideration and resolution by the Court standi of the petitioner as a taxpayer, a concerned
of the matter raised by the petitioner. Also, the locus citizen and a lawyer because the issue raised therein
standi of the petitioner as a taxpayer, a concerned involved a subject of transcendental importance
citizen and a lawyer to bring a suit of this nature has whose resolution was necessary to promulgate rules
already been settled in his favor in rulings by the to guide the Bench, Bar, and the public in similar
Court on several other public law litigations he cases.
brought. In Funa v. Villar,19 for one, the Court has
But, it is next posed, did not the intervening Section 13. The President, Vice-President, the
appointment of and assumption by Cadiz as the Members of the Cabinet, and their deputies or
Solicitor General during the pendency of this suit assistants shall not, unless otherwise provided in this
render this suit and the issue tendered herein moot Constitution, hold any other office or employment
and academic? during their tenure. They shall not, during said tenure,
directly or indirectly practice any other profession,
A moot and academic case is one that ceases to participate in any business, or be financially interested
present a justiciable controversy by virtue of in any contract with, or in any franchise, or special
supervening events, so that a declaration thereon privilege granted by the Government or any
would be of no practical use or value.22 Although the subdivision, agency, or instrumentality thereof,
controversy could have ceased due to the intervening including government-owned or controlled
appointment of and assumption by Cadiz as the corporations or their subsidiaries. They shall strictly
Solicitor General during the pendency of this suit, and avoid conflict of interest in the conduct of their office.
such cessation of the controversy seemingly rendered
moot and academic the resolution of the issue of the A relevant and complementing provision is Section 7,
constitutionality of the concurrent holding of the two paragraph (2), Article IX-B of the 1987 Constitution, to
positions by Agra, the Court should still go forward wit:
and resolve the issue and not abstain from exercising
its power of judicial review because this case comes Section 7. x x x
under several of the well-recognized exceptions
established in jurisprudence. Verily, the Court did not Unless otherwise allowed by law or the primary
desist from resolving an issue that a supervening functions of his position, no appointive official shall
event meanwhile rendered moot and academic if any hold any other office or employment in the
of the following recognized exceptions obtained, Government or any subdivision, agency or
namely: (1) there was a grave violation of the instrumentality thereof, including government-owned
Constitution; (2) the case involved a situation of or controlled corporations or their subsidiaries.
exceptional character and was of paramount public
interest; (3) the constitutional issue raised required
The differentiation of the two constitutional provisions
the formulation of controlling principles to guide the
was well stated in Funa v. Ermita,25 a case in which
Bench, the Bar and the public; and (4) the case was
the petitioner herein also assailed the designation of
capable of repetition, yet evading review.23
DOTC Undersecretary as concurrent Officer-in-
Charge of the Maritime Industry Authority, with the
It is the same here. The constitutionality of the Court reiterating its pronouncement in Civil Liberties
concurrent holding by Agra of the two positions in the Union v. The Executive Secretary26 on the intent of the
Cabinet, albeit in acting capacities, was an issue that Framers behind these provisions of the
comes under all the recognized exceptions. The issue Constitution, viz:
involves a probable violation of the Constitution, and
relates to a situation of exceptional character and of
Thus, while all other appointive officials in the civil
paramount public interest by reason of its
service are allowed to hold other office or employment
transcendental importance to the people. The
in the government during their tenure when such is
resolution of the issue will also be of the greatest
allowed by law or by the primary functions of their
value to the Bench and the Bar in view of the broad
positions, members of the Cabinet, their deputies and
powers wielded through said positions. The situation
assistants may do so only when expressly authorized
further calls for the review because the situation is
by the Constitution itself. In other words, Section 7,
capable of repetition, yet evading review.24 In other
Article IX-B is meant to lay down the general rule
words, many important and practical benefits are still
applicable to all elective and appointive public
to be gained were the Court to proceed to the ultimate
officials and employees, while Section 13, Article
resolution of the constitutional issue posed.
VII is meant to be the exception applicable only to
the President, the Vice-President, Members of the
2. Cabinet, their deputies and assistants.

Unconstitutionality of Agra’s concurrent xxxx

designation as Acting Secretary of Justice and
Acting Solicitor General
Since the evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition on the
At the center of the controversy is the correct President, Vice-President, members of the Cabinet,
application of Section 13, Article VII of the 1987 their deputies and assistants with respect to holding
Constitution, viz: multiple offices or employment in the government
during their tenure, the exception to this prohibition temporary designations of Cabinet Members,
must be read with equal severity. On its face, the undersecretaries and assistant secretaries as officers-
language of Section 13, Article VII is prohibitory so in-charge of government agencies, instrumentalities,
that it must be understood as intended to be a positive or government-owned or controlled corporations."31
and unequivocal negation of the privilege of holding
multiple government offices or employment. Verily, According to Public Interest Center, Inc. v. Elma,32 the
wherever the language used in the constitution is only two exceptions against the holding of multiple
prohibitory, it is to be understood as intended to be a offices are: (1) those provided for under the
positive and unequivocal negation. The phrase Constitution, such as Section 3, Article VII, authorizing
"unless otherwise provided in this Constitution" the Vice President to become a member of the
must be given a literal interpretation to refer only Cabinet; and (2) posts occupied by Executive officials
to those particular instances cited in the specified in Section 13, Article VII without additional
Constitution itself, to wit: the Vice-President being compensation in ex officio capacities as provided by
appointed as a member of the Cabinet under Section law and as required by the primary functions of the
3, par. (2), Article VII; or acting as President in those officials’ offices. In this regard, the decision in Public
instances provided under Section 7, pars. (2) and (3), Interest Center, Inc. v. Elma adverted to the
Article VII; and, the Secretary of Justice being ex- resolution issued on August 1, 1991 in Civil Liberties
officio member of the Judicial and Bar Council by Union v. The Executive Secretary, whereby the Court
virtue of Section 8 (1), Article VIII. (Bold emphasis held that the phrase "the Members of the Cabinet,
supplied.) and their deputies or assistants" found in Section
13, supra, referred only to the heads of the various
Being designated as the Acting Secretary of Justice executive departments, their undersecretaries and
concurrently with his position of Acting Solicitor assistant secretaries, and did not extend to other
General, therefore, Agra was undoubtedly covered by public officials given the rank of Secretary,
Section 13, Article VII, supra, whose text and spirit Undersecretary or Assistant Secretary.33 Hence,
were too clear to be differently read. Hence, Agra in Public Interest Center, Inc. v. Elma, the Court
could not validly hold any other office or employment opined that the prohibition under Section 13 did not
during his tenure as the Acting Solicitor General, cover Elma, a Presidential Assistant with the rank of
because the Constitution has not otherwise so Undersecretary.34
provided.27
It is equally remarkable, therefore, that Agra’s
It was of no moment that Agra’s designation was in an designation as the Acting Secretary of Justice was not
acting or temporary capacity. The text of Section in an ex officio capacity, by which he would have
13, supra, plainly indicates that the intent of the been validly authorized to concurrently hold the two
Framers of the Constitution was to impose a stricter positions due to the holding of one office being the
prohibition on the President and the Members of his consequence of holding the other. Being included in
Cabinet in so far as holding other offices or the stricter prohibition embodied in Section 13, supra,
employments in the Government or in government- Agra cannot liberally apply in his favor the broad
owned or government controlled-corporations was exceptions provided in Section 7, paragraph 2, Article
concerned.28 In this regard, to hold an office means to IX-B of the Constitution ("Unless otherwise allowed by
possess or to occupy the office, or to be in possession law or the primary functions of his position") to justify
and administration of the office, which implies nothing his designation as Acting Secretary of Justice
less than the actual discharge of the functions and concurrently with his designation as Acting Solicitor
duties of the office.29 Indeed, in the language of General, or vice versa. Thus, the Court has said –
Section 13 itself, supra, the Constitution makes no
reference to the nature of the appointment or [T]he qualifying phrase "unless otherwise provided in
designation. The prohibition against dual or multiple this Constitution" in Section 13, Article VII cannot
offices being held by one official must be construed as possibly refer to the broad exceptions provided under
to apply to all appointments or designations, whether Section 7, Article IX-B of the 1987 Constitution. To
permanent or temporary, for it is without question that construe said qualifying phrase as respondents would
the avowed objective of Section 13, supra, is to have us do, would render nugatory and meaningless
prevent the concentration of powers in the Executive the manifest intent and purpose of the framers of the
Department officials, specifically the President, the Constitution to impose a stricter prohibition on the
Vice-President, the Members of the Cabinet and their President, Vice-President, Members of the Cabinet,
deputies and assistants.30 To construe differently is to their deputies and assistants with respect to holding
"open the veritable floodgates of circumvention of an other offices or employment in the government during
important constitutional disqualification of officials in their tenure. Respondents’ interpretation that Section
the Executive Department and of limitations on the 13 of Article VII admits of the exceptions found in
President’s power of appointment in the guise of Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the thereof consisting in the investigation of the crimes,
Constitution as to when the highranking officials of the prosecution of offenders and administration of the
Executive Branch from the President to Assistant correctional system; implement the laws on the
Secretary, on the one hand, and the generality of civil admission and stay of aliens, citizenship, land titling
servants from the rank immediately below Assistant system, and settlement of land problems involving
Secretary downwards, on the other, may hold any small landowners and members of indigenous cultural
other office or position in the government during their minorities; and provide free legal services to indigent
tenure.35 members of the society."37 The DOJ’s specific powers
and functions are as follows:
To underscore the obvious, it is not sufficient for Agra
to show that his holding of the other office was (1) Act as principal law agency of the
"allowed by law or the primary functions of his government and as legal counsel and
position." To claim the exemption of his concurrent representative thereof, whenever so required;
designations from the coverage of the stricter
prohibition under Section 13, supra, he needed to (2) Investigate the commission of crimes,
establish herein that his concurrent designation was prosecute offenders and administer the
expressly allowed by the Constitution. But, alas, he probation and correction system;
did not do so.
(3) Extend free legal
To be sure, Agra’s concurrent designations as Acting assistance/representation to indigents and
Secretary of Justice and Acting Solicitor General did poor litigants in criminal cases and non-
not come within the definition of an ex commercial civil disputes;
officio capacity. Had either of his concurrent
designations been in an ex officio capacity in relation (4) Preserve the integrity of land titles through
to the other, the Court might now be ruling in his proper registration;
favor.
(5) Investigate and arbitrate untitled land
The import of an ex officio capacity has been fittingly disputes involving small landowners and
explained in Civil Liberties Union v. Executive members of indigenous cultural communities;
Secretary,36 as follows:
(6) Provide immigration and naturalization
x x x. The term ex officio means "from office; by virtue regulatory services and implement the laws
of office." It refers to an "authority derived from official governing citizenship and the admission and
character merely, not expressly conferred upon the stay of aliens;
individual character, but rather annexed to the official
position." Ex officio likewise denotes an "act done in
(7) Provide legal services to the national
an official character, or as a consequence of office,
government and its functionaries, including
and without any other appointment or authority other
government-owned or controlled corporations
than that conferred by the office." An ex
and their subsidiaries; and
officio member of a board is one who is a member by
virtue of his title to a certain office, and without further
warrant or appointment. x x x. (8) Perform such other functions as may be
provided by law.38
xxxx
On the other hand, the Administrative Code of
1987 confers upon the Office of the Solicitor General
The ex officio position being actually and in legal
the following powers and functions, to wit:
contemplation part of the principal office, it follows that
the official concerned has no right to receive
additional compensation for his services in the said The Office of the Solicitor General shall represent the
position. The reason is that these services are already Government of the Philippines, its agencies and
paid for and covered by the compensation attached to instrumentalities and its officials and agents in any
his principal office. x x x. litigation, proceeding, investigation or matter requiring
the services of lawyers. When authorized by the
President or head of the office concerned, it shall also
Under the Administrative Code of 1987, the DOJ is
represent government owned or controlled
mandated to "provide the government with a principal
corporations. The Office of the Solicitor General shall
law agency which shall be both its legal counsel and
discharge duties requiring the services of lawyers. It
prosecution arm; administer the criminal justice
shall have the following specific powers and functions:
system in accordance with the accepted processes
1. Represent the Government in the Supreme may be required to render reports or furnish
Court and the Court of Appeals in all criminal information regarding the assignment.
proceedings; represent the Government and
its officers in the Supreme Court, the Court of 8. Deputize legal officers of government
Appeals, and all other courts or tribunals in all departments, bureaus, agencies and offices to
civil actions and special proceedings in which assist the Solicitor General and appear or
the Government or any officer thereof in his represent the Government in cased involving
official capacity is a party. their respective offices, brought before the
courts and exercise supervision and control
2. Investigate, initiate court action, or in any over such legal Officers with respect to such
manner proceed against any person, cases.
corporation or firm for the enforcement of any
contract, bond, guarantee, mortgage, pledge 9. Call on any department, bureau, office,
or other collateral executed in favor of the agency or instrumentality of the Government
Government. Where proceedings are to be for such service, assistance and cooperation
conducted outside of the Philippines the as may be necessary in fulfilling its functions
Solicitor General may employ counsel to and responsibilities and for this purpose enlist
assist in the discharge of the aforementioned the services of any government official or
responsibilities. employee in the pursuit of his tasks.

3. Appear in any court in any action involving 10. Departments, bureaus, agencies, offices,
the validity of any treaty, law, executive order instrumentalities and corporations to whom
or proclamation, rule or regulation when in his the Office of the Solicitor General renders
judgment his intervention is necessary or legal services are authorized to disburse
when requested by the Court. funds from their sundry operating and other
funds for the latter Office. For this purpose,
4. Appear in all proceedings involving the the Solicitor General and his staff are
acquisition or loss of Philippine citizenship. specifically authorized to receive allowances
as may be provided by the Government
5. Represent the Government in all land offices, instrumentalities and corporations
registration and related proceedings. Institute concerned, in addition to their regular
actions for the reversion to the Government of compensation.
lands of the public domain and improvements
thereon as well as lands held in violation of 11. Represent, upon the instructions of the
the Constitution. President, the Republic of the Philippines in
international litigations, negotiations or
6. Prepare, upon request of the President or conferences where the legal position of the
other proper officer of the National Republic must be defended or presented.
Government, rules and guidelines for
government entities governing the preparation 12. Act and represent the Republic and/or the
of contracts, making investments, undertaking people before any court, tribunal, body or
of transactions, and drafting of forms or other commission in any matter, action or
writings needed for official use, with the end in proceedings which, in his opinion affects the
view of facilitating their enforcement and welfare of the people as the ends of justice
insuring that they are entered into or prepared may require; and
conformably with law and for the best interests
of the public. 13. Perform such other functions as may be
provided by law.39
7. Deputize, whenever in the opinion of the
Solicitor General the public interest requires, The foregoing provisions of the applicable laws show
any provincial or city fiscal to assist him in the that one position was not derived from the other.
performance of any function or discharge of Indeed, the powers and functions of the OSG are
any duty incumbent upon him, within the neither required by the primary functions nor included
jurisdiction of the aforesaid provincial or city by the powers of the DOJ, and vice versa. The OSG,
fiscal. When so deputized, the fiscal shall be while attached to the DOJ,40 is not a constituent unit of
under the control and supervision of the the latter,41 as, in fact, the Administrative Code of
Solicitor General with regard to the conduct of 1987 decrees that the OSG is independent and
the proceedings assigned to the fiscal, and he autonomous.42 With the enactment of Republic Act
No. 9417,43 the Solicitor General is now vested with a Green - whether one office is subordinate to the
cabinet rank, and has the same qualifications for other, in the sense that one office has the right to
appointment, rank, prerogatives, salaries, allowances, interfere with the other.
benefits and privileges as those of the Presiding
Justice of the Court of Appeals.44 [I]ncompatibility between two offices, is an
inconsistency in the functions of the two; x x x Where
Moreover, the magnitude of the scope of work of the one office is not subordinate to the other, nor the
Solicitor General, if added to the equally demanding relations of the one to the other such as are
tasks of the Secretary of Justice, is obviously too inconsistent and repugnant, there is not that
much for any one official to bear. Apart from the sure incompatibility from which the law declares that the
peril of political pressure, the concurrent holding of the acceptance of the one is the vacation of the other.
two positions, even if they are not entirely The force of the word, in its application to this matter
incompatible, may affect sound government is, that from the nature and relations to each other, of
operations and the proper performance of duties. the two places, they ought not to be held by the same
Heed should be paid to what the Court has pointedly person, from the contrariety and antagonism which
observed in Civil Liberties Union v. Executive would result in the attempt by one person to faithfully
Secretary: 45 and impartially discharge the duties of one, toward the
incumbent of the other. X x x The offices must
Being head of an executive department is no mean subordinate, one [over] the other, and they must, per
job. It is more than a full-time job, requiring full se, have the right to interfere, one with the other,
attention, specialized knowledge, skills and expertise. before they are incompatible at common law. x x x.
If maximum benefits are to be derived from a
department head’s ability and expertise, he should be xxxx
allowed to attend to his duties and responsibilities
without the distraction of other governmental offices or While Section 7, Article IX-B of the 1987 Constitution
employment. He should be precluded from dissipating applies in general to all elective and appointive
his efforts, attention and energy among too many officials, Section 13, Article VII, thereof applies in
positions of responsibility, which may result in particular to Cabinet secretaries, undersecretaries
haphazardness and inefficiency. Surely the and assistant secretaries. In the Resolution in Civil
advantages to be derived from this concentration of Liberties Union v. Executive Secretary, this Court
attention, knowledge and expertise, particularly at this already clarified the scope of the prohibition provided
stage of our national and economic development, far in Section 13, Article VII of the 1987 Constitution.
outweigh the benefits, if any, that may be gained from Citing the case of US v. Mouat, it specifically identified
a department head spreading himself too thin and the persons who are affected by this prohibition as
taking in more than what he can handle. secretaries, undersecretaries and assistant
secretaries; and categorically excluded public officers
It is not amiss to observe, lastly, that assuming that who merely have the rank of secretary,
Agra, as the Acting Solicitor General, was not covered undersecretary or assistant secretary.
by the stricter prohibition under Section 13, supra, due
to such position being merely vested with a cabinet Another point of clarification raised by the Solicitor
rank under Section 3, Republic Act No. 9417, he General refers to the persons affected by the
nonetheless remained covered by the general constitutional prohibition. The persons cited in the
prohibition under Section 7, supra. Hence, his constitutional provision are the "Members of the
concurrent designations were still subject to the Cabinet, their deputies and assistants." These terms
conditions under the latter constitutional provision. In must be given their common and general acceptation
this regard, the Court aptly pointed out in Public as referring to the heads of the executive
Interest Center, Inc. v. Elma:46 departments, their undersecretaries and assistant
secretaries. Public officials given the rank equivalent
The general rule contained in Article IX-B of the 1987 to a Secretary, Undersecretary, or Assistant
Constitution permits an appointive official to hold more Secretary are not covered by the prohibition, nor is
than one office only if "allowed by law or by the the Solicitor General affected thereby. (Italics
primary functions of his position." In the case supplied).
of Quimson v. Ozaeta, this Court ruled that, "[t]here is
no legal objection to a government official occupying It is clear from the foregoing that the strict prohibition
two government offices and performing the functions under Section 13, Article VII of the 1987 Constitution
of both as long as there is no incompatibility." The is not applicable to the PCGG Chairman nor to the
crucial test in determining whether incompatibility CPLC, as neither of them is a secretary,
exists between two offices was laid out in People v. undersecretary, nor an assistant secretary, even if the
former may have the same rank as the latter seems unjust that the public should benefit by the
positions. services of an officer de facto and then be freed from
all liability to pay any one for such services. Any per
It must be emphasized, however, that despite the diem, allowances or other emoluments received by
non-applicability of Section 13, Article VII of the 1987 the respondents by virtue of actual services rendered
Constitution to respondent Elma, he remains covered in the questioned positions may therefore be retained
by the general prohibition under Section 7, Article IX- by them.
B and his appointments must still comply with the
standard of compatibility of officers laid down therein; A de facto officer is one who derives his appointment
failing which, his appointments are hereby from one having colorable authority to appoint, if the
pronounced in violation of the Constitution.47 office is an appointive office, and whose appointment
is valid on its face.51 He may also be one who is in
Clearly, the primary functions of the Office of the possession of an office, and is discharging its duties
Solicitor General are not related or necessary to the under color of authority, by which is meant authority
primary functions of the Department of Justice. derived from an appointment, however irregular or
Considering that the nature and duties of the two informal, so that the incumbent is not a mere
offices are such as to render it improper, from volunteer.52 Consequently, the acts of the de
considerations of public policy, for one person to facto officer are just as valid for all purposes as those
retain both,48 an incompatibility between the offices of a de jure officer, in so far as the public or third
exists, further warranting the declaration of Agra’s persons who are interested therein are concerned. 53
designation as the Acting Secretary of Justice,
concurrently with his designation as the Acting In order to be clear, therefore, the Court holds that all
Solicitor General, to be void for being in violation of official actions of Agra as a de facto Acting Secretary
the express provisions of the Constitution. of Justice, assuming that was his later designation,
were presumed valid, binding and effective as if he
3. was the officer legally appointed and qualified for the
office. 54 This clarification is necessary in order to
Effect of declaration of unconstitutionality of protect the sanctity of the dealings by the public with
Agra’s concurrent appointment; the de persons whose ostensible authority emanates from
facto officer doctrine the State. 55 Agra's official actions covered by this
claritlcation extend to but are not limited to the
promulgation of resolutions on petitions for review
In view of the application of the stricter prohibition
filed in the Department of Justice, and the issuance of
under Section 13, supra, Agra did not validly hold the
department orders, memoranda and circulars relative
position of Acting Secretary of Justice concurrently
to the prosecution of criminal cases.
with his holding of the position of Acting Solicitor
General. Accordingly, he was not to be considered as
a de jure officer for the entire period of his tenure as WHEREFORE, the Comi GRANTS the petition
the Acting Secretary of Justice. A de jure officer is for certiorari and prohibition; ANNULS AND
one who is deemed, in all respects, legally appointed VOIDS the designation of Hon. Alberto C. Agra as the
and qualified and whose term of office has not Acting Secretary of Justice in a concurrent capacity
expired.49 with his position as the Acting Solicitor General for
being unconstitutional and violative of Section 13,
Article VII of the 1987 Constitution;
That notwithstanding, Agra was a de facto officer
and DECLARES that l-Ion. Alberto C. Agra was a de
during his tenure as Acting Secretary of Justice.
facto officer during his tenure as Acting Secretary of
In Civil Liberties Union v. Executive Secretary,50 the
Justice.
Court said:
No pronouncement on costs of suit.
During their tenure in the questioned positions,
respondents may be considered de facto officers and
as such entitled to emoluments for actual services SO ORDERED.
rendered. It has been held that "in cases where there
is no de jure, officer, a de facto officer, who, in good LUCAS P. BERSAMIN
faith has had possession of the office and has Associate Justice
discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may in an WE CONCUR:
appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it
G.R. Nos. L-68379-81 September 22, 1986

EVELIO B. JAVIER, petitioner, 
vs.
THE COMMISSION ON ELECTIONS, and ARTURO
F. PACIFICADOR, respondents.

Raul S. Roco and Lorna Patajo-Kapunan for

petitioner. 

CRUZ, J.:

The new Solicitor General has moved to dismiss this

petition on the ground that as a result of supervening
events it has become moot and academic. It is not as
simple as that. Several lives have been lost in
connection with this case, including that of the
petitioner himself. The private respondent is now in
hiding. The purity of suffrage has been defiled and the
popular will scorned through a confabulation of those
in authority. This Court cannot keep silent in the face
of these terrible facts. The motion is denied. 

The petitioner and the private respondent were

candidates in Antique for the Batasang Pambansa in
the May 1984 elections. The former appeared to enjoy
more popular support but the latter had the advantage
of being the nominee of the KBL with all its perquisites
of power. On May 13, 1984, the eve of the elections,
the bitter contest between the two came to a head
when several followers of the petitioner were
ambushed and killed, allegedly by the latter's men.
Seven suspects, including respondent Pacificador,
are now facing trial for these murders. The incident
naturally heightened tension in the province and
sharpened the climate of fear among the electorate.
Conceivably, it intimidated voters against supporting
the Opposition candidate or into supporting the
candidate of the ruling party.  It is a notorious fact decried by many people and even
by the foreign press that elections during the period of
It was in this atmosphere that the voting was held, the Marcos dictatorship were in the main a
and the post-election developments were to run true desecration of the right of suffrage. Vote-buying,
to form. Owing to what he claimed were attempts to intimidation and violence, illegal listing of voters,
railroad the private respondent's proclamation, the falsified returns, and other elections anomalies
petitioner went to the Commission on Elections to misrepresented and vitiated the popular will and led to
question the canvass of the election returns. His the induction in office of persons who did not enjoy
complaints were dismissed and the private the confidence of the sovereign electorate. Genuine
respondent was proclaimed winner by the Second elections were a rarity. The price at times was human
Division of the said body. The petitioner thereupon lives. The rule was chicanery and irregularity, and on
came to this Court, arguing that the proclamation was all levels of the polls, from the barangay to the
void because made only by a division and not by the presidential. This included the rigged plebiscites and
Commission on Elections en banc as required by the referenda that also elicited the derision and provoked
Constitution. Meanwhile, on the strength of his the resentments of the people. 
proclamation, the private respondent took his oath as
a member of the Batasang Pambansa.  Antique in 1984 hewed to the line and equaled if it did
not surpass the viciousness of elections in other
The case was still being considered by this Court provinces dominated by the KBL. Terrorism was a
when on February 11, 1986, the petitioner was special feature, as demonstrated by the killings
gunned down in cold blood and in broad daylight. The previously mentioned, which victimized no less than
nation, already indignant over the obvious one of the main protagonists and implicated his rival
manipulation of the presidential elections in favor of as a principal perpetrator. Opposition leaders were in
Marcos, was revolted by the killing, which flaunted a constant peril of their lives even as their supporters
scornful disregard for the law by the assailants who were gripped with fear of violence at the hands of the
apparently believed they were above the law. This party in power. 
ruthless murder was possibly one of the factors that
strengthened the cause of the Opposition in the What made the situation especially deplorable was
February revolution that toppled the Marcos regime the apparently indifferent attitude of the Commission
and installed the present government under President on Elections toward the anomalies being committed. It
Corazon C. Aquino.  is a matter of record that the petitioner complained
against the terroristic acts of his opponents. All the
The abolition of the Batasang Pambansa and the electoral body did was refer the matter to the Armed
disappearance of the office in dispute between the Forces without taking a more active step as befitted
petitioner and the private respondent-both of whom its constitutional role as the guardian of free, orderly
have gone their separate ways-could be a convenient and honest elections. A more assertive stance could
justification for dismissing this case. But there are have averted the Sibalom election eve massacre and
larger issues involved that must be resolved now, saved the lives of the nine victims of the tragedy. 
once and for all, not only to dispel the legal
ambiguities here raised. The more important purpose Public confidence in the Commission on Elections
is to manifest in the clearest possible terms that this was practically nil because of its transparent bias in
Court will not disregard and in effect condone wrong favor of the administration. This prejudice left many
on the simplistic and tolerant pretext that the case has opposition candidates without recourse except only to
become moot and academic.  this Court. 

The Supreme Court is not only the highest arbiter of Alleging serious anomalies in the conduct of the
legal questions but also the conscience of the elections and the canvass of the election returns, the
government. The citizen comes to us in quest of law petitioner went to the Commission on Elections to
but we must also give him justice. The two are not prevent the impending proclamation of his rival, the
always the same. There are times when we cannot private respondent herein.   Specifically, the petitioner
1

grant the latter because the issue has been settled charged that the elections were marred by "massive
and decision is no longer possible according to the terrorism, intimidation, duress, vote-buying, fraud,
law. But there are also times when although the tampering and falsification of election returns under
dispute has disappeared, as in this case, it duress, threat and intimidation, snatching of ballot
nevertheless cries out to be resolved. Justice boxes perpetrated by the armed men of respondent
demands that we act then, not only for the vindication Pacificador."   Particular mention was made of the
2

of the outraged right, though gone, but also for the municipalities of Caluya, Cabate, Tibiao, Barbaza,
guidance of and as a restraint upon the future.  Laua-an, and also of San Remigio, where the
petitioner claimed the election returns were not placed within ninety days from the date of their
in the ballot boxes but merely wrapped in cement submission for decision.
bags or Manila paper. 
While both invoking the above provisions, the
On May 18, 1984, the Second Division of the petitioner and the respondents have arrived at
Commission on Elections directed the provincial opposite conclusions. The records are voluminous
board of canvassers of Antique to proceed with the and some of the pleadings are exhaustive and in part
canvass but to suspend the proclamation of the even erudite. And well they might be, for the noble
winning candidate until further orders.  On June 7,
3
profession of the law-despite all the canards that have
1984, the same Second Division ordered the board to been flung against it-exerts all efforts and considers
immediately convene and to proclaim the winner all possible viewpoints in its earnest search of the
without prejudice to the outcome of the case before truth. 
the Commission.  On certiorari before this Court, the
4

proclamation made by the board of canvassers was The petitioner complains that the Proclamation made
set aside as premature, having been made before the by the Second Division is invalid because all contests
lapse of the 5-day period of appeal, which the involving the members of the Batasang Pambansa
petitioner had seasonably made.   Finally, on July 23,
5
come under the jurisdiction of the Commission on
1984, the Second Division promulgated the decision Elections en banc. This is as it should be, he says, to
now subject of this petition which inter alia proclaimed insure a more careful decision, considering the
Arturo F. Pacificador the elected assemblyman of the importance of the offices involved. The respondents,
province of Antique.  6
for their part, argue that only contests need to be
heard and decided en banc and all other cases can
This decision was signed by Chairman Victoriano be-in fact, should be-filed with and decided only by
Savellano and Commissioners Jaime Opinion and any of the three divisions. 
Froilan M. Bacungan. Previously asked to inhibit
himself on the ground that he was a former law The former Solicitor General makes much of this
partner of private respondent Pacificador, Opinion had argument and lays a plausible distinction between the
refused.7
terms "contests" and "cases" to prove his
point.   Simply put, his contention is that the pre-
8

The petitioner then came to this Court, asking us to proclamation controversy between the petitioner and
annul the said decision.  the private respondent was not yet a contest at that
time and therefore could be validly heard by a mere
The core question in this case is one of jurisdiction, to division of the Commission on Elections, consonant
wit: Was the Second Division of the Commission on with Section 3. The issue was at this stage still
Elections authorized to promulgate its decision of July administrative and so was resoluble by the
23, 1984, proclaiming the private respondent the Commission under its power to administer all laws
winner in the election?  relative to the conduct of elections,  not its authority as
9

sole judge of the election contest. 

The applicable provisions are found in Article XII-C,
Sections 2 and 3, of the 1973 Constitution.  A contest, according to him, should involve a
contention between the parties for the same office "in
Section 2 confers on the Commission on Elections the which the contestant seeks not only to oust the
power to:  intruder but also to have himself inducted into the
office."   No proclamation had as yet been made
10

when the petition was filed and later decided. Hence,

(2) Be the sole judge of all contests relating to
since neither the petitioner nor the private respondent
the election, returns and qualifications of all
had at that time assumed office, there was no
member of the Batasang Pambansa and
Member of the Batasang Pambansa from Antique
elective provincial and city officials. 
whose election, returns or qualifications could be
examined by the Commission on Elections en banc.
Section 3 provides: 
In providing that the Commission on Elections could
The Commission on Elections may sit en act in division when deciding election cases,
banc or in three divisions. All election cases according to this theory, the Constitution was laying
may be heard and decided by divisions except down the general rule. The exception was the election
contests involving members of the Batasang contest involving the members of the Batasang
Pambansa, which shall be heard and Pambansa, which had to be heard and decided en
decided en banc. Unless otherwise provided banc.   The en banc requirement would apply only
11

by law, all election cases shall be decided

from the time a candidate for the Batasang Pambansa P.D. No. 1296, otherwise known as the 1978 Election
was proclaimed as winner, for it was only then that a Code. Section 175 thereof provided: 
contest could be permitted under the law. All matters
arising before such time were, necessarily, subject to Sec. 175. Suspension and annulment of
decision only by division of the Commission as these proclamation.-The Commission shall be the
would come under the general heading of "election sole judge of all pre-proclamation
cases."  controversies and any of its decisions, orders
or rulings shall be final and executory. It
As the Court sees it, the effect of this interpretation may, motu proprio or upon written petition,
would be to divide the jurisdiction of the Commission and after due notice and hearing order the
on Elections into two, viz.: (1) over matters suspension of the proclamation of a
arising before the proclamation, which should be candidate-elect or annul any proclamation, if
heard and decided by division in the exercise of its one has been made, on any of the grounds
administrative power; and (2) over matters mentioned in Sections 172, 173 and 174
arising after the proclamation, which could be heard thereof. 
and decided only en banc in the exercise of its judicial
power. Stated otherwise, the Commission as a whole Before that time all proceedings affecting the election,
could not act as sole judge as long as one of its returns and qualifications of public officers came
divisions was hearing a pre-proclamation matter under the complete jurisdiction of the competent court
affecting the candidates for the Batasang Pambansa or tribunal from beginning to end and in the exercise
because there was as yet no contest; or to put it still of judicial power only. It therefore could not have been
another way, the Commission en banc could not do the intention of the framers in 1935, when the
what one of its divisions was competent to do, i.e., Commonwealth Charter was adopted, and even in
decide a pre-proclamation controversy. Moreover, a 1973, when the past Constitution was imposed, to
mere division of the Commission on Elections could divide the electoral process into the pre-proclamation
hear and decide, save only those involving the stage and the post-proclamation stage and to provide
election, returns and qualifications of the members of for a separate jurisdiction for each stage, considering
the Batasang Pambansa, all cases involving elective the first administrative and the second judicial.
provincial and city officials from start to
finish, including pre-proclamation controversies and Besides, the term "contest" as it was understood at
up to the election protest. In doing so, it would the time Article XII-C. Section 2(2) was incorporated
exercise first administrative and then judicial powers. in the 1973 Constitution did not follow the strict
But in the case of the Commission en banc, its definition of a contention between the parties for the
jurisdiction would begin only after the proclamation same office. Under the Election Code of 1971, which
was made and a contest was filed and not at any time presumably was taken into consideration when the
and on any matter before that, and always in the 1973 Constitution was being drafted, election contests
exercise only of judicial power.  included the quo warranto petition that could be filed
by any voter on the ground of disloyalty or ineligibility
This interpretation would give to the part more powers of the contestee although such voter was himself not
than were enjoyed by the whole, granting to the claiming the office involved.  12

division while denying to the banc. We do not think

this was the intention of the Constitution. The framers The word "contests" should not be given a restrictive
could not have intended such an irrational rule. meaning; on the contrary, it should receive the widest
possible scope conformably to the rule that the words
We believe that in making the Commission on used in the Constitution should be interpreted
Elections the sole judge of all contests involving the liberally. As employed in the 1973 Constitution, the
election, returns and qualifications of the members of term should be understood as referring to any matter
the Batasang Pambansa and elective provincial and involving the title or claim of title to an elective office,
city officials, the Constitution intended to give it full made before or after proclamation of the winner,
authority to hear and decide these cases from whether or not the contestant is claiming the office in
beginning to end and on all matters related thereto, dispute. Needless to stress, the term should be given
including those arising before the proclamation of the a consistent meaning and understood in the same
winners.  sense under both Section 2(2) and Section 3 of Article
XII-C of the Constitution. 
It is worth observing that the special procedure for the
settlement of what are now called "pre-proclamation The phrase "election, returns and qualifications"
controversies" is a relatively recent innovation in our should be interpreted in its totality as referring to all
laws, having been introduced only in 1978, through matters affecting the validity of the contestee's title.
But if it is necessary to specify, we can say that Commission en banc from exercising the power
"election" referred to the conduct of the polls, directly, on the theory that the greater power
including the listing of voters, the holding of the embraces the lesser. It could if it wanted to but then it
electoral campaign, and the casting and counting of could also allow the division to act for it. That
the votes; "returns" to the canvass of the returns and argument would militate against the purpose of the
the proclamation of the winners, including questions provision, which precisely limited all questions
concerning the composition of the board of affecting the election contest, as distinguished from
canvassers and the authenticity of the election returns election cases in general, to the jurisdiction of the
and "qualifications" to matters that could be raised in Commission en banc as sole judge thereof. "Sole
a quo warranto proceeding against the proclaimed judge" excluded not only all other tribunals but also
winner, such as his disloyalty or ineligibility or the and even the division of the Commission A decision
inadequacy of his certificate of candidacy.  made on the contest by less than the Commission en
banc would not meet the exacting standard of care
All these came under the exclusive jurisdiction of the and deliberation ordained by the Constitution 
Commission on Elections insofar as they applied to
the members of the defunct Batasang Pambansa and, Incidentally, in making the Commission the "sole
under Article XII-C, Section 3, of the 1973 judge" of pre- proclamation controversies in Section
Constitution, could be heard and decided by it only en 175, supra, the law was obviously referring to the
banc.  body sitting en banc. In fact, the pre-proclamation
controversies involved in Aratuc vs. Commission on
We interpret "cases" as the generic term denoting the Elections,   where the said provision was applied,
13

actions that might be heard and decided by the were heard and decided en banc. 
Commission on Elections, only by division as a
general rule except where the case was a "contest" Another matter deserving the highest consideration of
involving members of the Batasang Pambansa, which this Court but accorded cavalier attention by the
had to be heard and decided en banc.  respondent Commission on Elections is due process
of law, that ancient guaranty of justice and fair play
As correctly observed by the petitioner, the purpose of which is the hallmark of the free society.
Section 3 in requiring that cases involving members of Commissioner Opinion ignored it. Asked to inhibit
the Batasang Pambansa be heard and decided by the himself on the ground that he was formerly a law
Commission en banc was to insure the most careful partner of the private respondent, he obstinately
consideration of such cases. Obviously, that objective insisted on participating in the case, denying he was
could not be achieved if the Commission could act en biased. 14

banc only after the proclamation had been made, for

it might then be too late already. We are all-too- Given the general attitude of the Commission on
familiar with the grab-the-proclamation-and-delay-the- Elections toward the party in power at the time, and
protest strategy of many unscrupulous candidates the particular relationship between Commissioner
which has resulted in the frustration of the popular will Opinion and MP Pacificador, one could not be at least
and the virtual defeat of the real winners in the apprehensive, if not certain, that the decision of the
election. The respondent's theory would make this body would be adverse to the petitioner. As in fact it
gambit possible for the pre- proclamation was. Commissioner Opinion's refusal to inhibit himself
proceedings, being summary in nature, could be and his objection to the transfer of the case to another
hastily decided by only three members in division, division cannot be justified by any criterion of
without the care and deliberation that would have propriety. His conduct on this matter belied his
otherwise been observed by the Commission en wounded protestations of innocence and proved the
banc.  motives of the Second Division when it rendered its
decision. 
After that, the delay. The Commission en banc might
then no longer be able to rectify in time the This Court has repeatedly and consistently demanded
proclamation summarily and not very judiciously made "the cold neutrality of an impartial judge" as the
by the division. While in the end the protestant might indispensable imperative of due process.   To bolster
15

be sustained, he might find himself with only a Phyrric that requirement, we have held that the judge must
victory because the term of his office would have not only be impartial but must also appear to be
already expired.  impartial as an added assurance to the parties that his
decision will be just.  The litigants are entitled to no
16

It may be argued that in conferring the initial power to less than that. They should be sure that when their
decide the pre- proclamation question upon the rights are violated they can go to a judge who shall
division, the Constitution did not intend to prevent the give them justice. They must trust the judge,
otherwise they will not go to him at all. They must Where many kept a meekly silence for fear of
believe in his sense of fairness, otherwise they will not retaliation, and still others feigned and fawned in
seek his judgment. Without such confidence, there hopes of safety and even reward, he chose to fight.
would be no point in invoking his action for the justice He was not afraid. Money did not tempt him. Threats
they expect. did not daunt him. Power did not awe him. His was a
singular and all-exacting obsession: the return of
Due process is intended to insure that confidence by freedom to his country. And though he fought not in
requiring compliance with what Justice Frankfurter the barricades of war amid the sound and smoke of
calls the rudiments of fair play. Fair play cans for shot and shell, he was a soldier nonetheless, fighting
equal justice. There cannot be equal justice where a valiantly for the liberties of his people against the
suitor approaches a court already committed to the enemies of his race, unfortunately of his race too, who
other party and with a judgment already made and would impose upon the land a perpetual night of dark
waiting only to be formalized after the litigants shall enslavement. He did not see the breaking of the
have undergone the charade of a formal hearing. dawn, sad to say, but in a very real sense Evelio B.
Judicial (and also extra-judicial) proceedings are not Javier made that dawn draw nearer because he was,
orchestrated plays in which the parties are supposed like Saul and Jonathan, "swifter than eagles and
to make the motions and reach the denouement stronger than lions." 
according to a prepared script. There is no writer to
foreordain the ending. The judge will reach his A year ago this Court received a letter which began: "I
conclusions only after all the evidence is in and all the am the sister of the late Justice Calixto Zaldivar. I am
arguments are filed, on the basis of the established the mother of Rhium Z. Sanchez, the grandmother of
facts and the pertinent law.  Plaridel Sanchez IV and Aldrich Sanchez, the aunt of
Mamerta Zaldivar. I lost all four of them in the election
The relationship of the judge with one of the parties eve ambush in Antique last year." She pleaded, as so
may color the facts and distort the law to the prejudice did hundreds of others of her provincemates in
of a just decision. Where this is probable or even only separate signed petitions sent us, for the early
posssible, due process demands that the judge inhibit resolution of that horrible crime, saying: "I am 82
himself, if only out of a sense of delicadeza. For like years old now. I am sick. May I convey to you my
Caesar's wife, he must be above suspicion. prayer in church and my plea to you, 'Before I die, I
Commissioner Opinion, being a lawyer, should have would like to see justice to my son and grandsons.'
recognized his duty and abided by this well-known May I also add that the people of Antique have not
rule of judicial conduct. For refusing to do so, he stopped praying that the true winner of the last
divested the Second Division of the necessary vote elections will be decided upon by the Supreme Court
for the questioned decision, assuming it could act, soon."
and rendered the proceeding null and void.  17

That was a year ago and since then a new

Since this case began in 1984, many significant government has taken over in the wake of the
developments have taken place, not the least February revolution. The despot has escaped, and
significant of which was the February revolution of with him, let us pray, all the oppressions and
"people power" that dislodged the past regime and repressions of the past have also been banished
ended well nigh twenty years of travail for this captive forever. A new spirit is now upon our land. A new
nation. The petitioner is gone, felled by a hail of vision limns the horizon. Now we can look forward
bullets sprayed with deadly purpose by assassins with new hope that under the Constitution of the future
whose motive is yet to be disclosed. The private every Filipino shall be truly sovereign in his own
respondent has disappeared with the "pomp of power" country, able to express his will through the pristine
he had before enjoyed. Even the Batasang Pambansa ballow with only his conscience as his counsel. 
itself has been abolished, "an iniquitous vestige of the
previous regime" discontinued by the Freedom This is not an impossible dream. Indeed, it is an
Constitution. It is so easy now, as has been approachable goal. It can and will be won if we are
suggested not without reason, to send the recrds of able at last, after our long ordeal, to say never again
this case to the archives and say the case is finished to tyranny. If we can do this with courage and
and the book is closed. conviction, then and only then, and not until then, can
we truly say that the case is finished and the book is
But not yet.  closed. 

Let us first say these meager words in tribute to a WHEREFORE, let it be spread in the records of this
fallen hero who was struck down in the vigor of his case that were it not for the supervening events that
youth because he dared to speak against tyranny. have legally rendered it moot and academic, this
petition would have been granted and the decision of
the Commission on Elections dated July 23, 1984, set
aside as violative of the Constitution.

SO ORDERED.

Feria, Yap, Narvasa, Alampay and Paras, JJ., concur.

Fernan and Gutierrez, Jr., JJ., concur in the result.

G.R. No. 133486           January 28, 2000

ABS-CBN BROADCASTING
CORPORATION, petitioner, 
vs.
COMMISSION ON ELECTIONS, respondent.

PANGANIBAN, J.:

The holding of exit polls and the dissemination of their

results through mass media constitute an essential
part of the freedoms of speech and of the press.
Hence, the Comelec cannot ban them totally in the
guise of promoting clean, honest, orderly and credible
elections. Quite the contrary, exit polls — properly
conducted and publicized — can be vital tools in
eliminating the evils of election-fixing and fraud.
Narrowly tailored countermeasures may be prescribed
by the Comelec so as to minimize or suppress the
incidental problems in the conduct of exit polls,
without transgressing in any manner the fundamental
rights of our people.

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of

the Rules of Court assailing Commission on Elections
(Comelec) en banc Resolution No. 98-1419 dated
1 

April 21, 1998. In the said Resolution, the poll body

RESOLVED to approve the issuance of a

restraining order to stop ABS-CBN or any
other groups, its agents or representatives
from conducting such exit survey and to
authorize the Honorable Chairman to issue
the same.
The Resolution was issued by the Comelec allegedly our democratic government. By its very nature, exit
upon "information from [a] reliable source that ABS- polling is tied up with elections. To set aside the
CBN (Lopez Group) has prepared a project, with PR resolution of the issue now will only postpone a task
groups, to conduct radio-TV coverage of the that could well crop up again in future elections. 6 

elections . . . and to make [an] exit survey of the . . .

vote during the elections for national officials In any event, in Salonga v. Cruz Paño, the Court had
particularly for President and Vice President, results occasion to reiterate that it "also has the duty to
of which shall be [broadcast] immediately." The
2 
formulate guiding and controlling constitutional
electoral body believed that such project might conflict principles, precepts, doctrines, or rules. It has the
with the official Comelec count, as well as the symbolic function of educating bench and bar on the
unofficial quick count of the National Movement for extent of protection given by constitutional
Free Elections (Namfrel). It also noted that it had not guarantees." Since the fundamental freedoms of
7 

authorized or deputized Petitioner ABS-CBN to speech and of the press are being invoked here, we
undertake the exit survey. have resolved to settle, for the guidance of posterity,
whether they likewise protect the holding of exit polls
On May 9, 1998, this Court issued the Temporary and the dissemination of data derived therefrom.
Restraining Order prayed for by petitioner. We
directed the Comelec to cease and desist, until further The solicitor general further contends that the Petition
orders, from implementing the assailed Resolution or should be dismissed for petitioner's failure to exhaust
the restraining order issued pursuant thereto, if any. In available remedies before the issuing forum,
fact, the exit polls were actually conducted and specifically the filing of a motion for reconsideration.
reported by media without any difficulty or problem.
This Court, however, has ruled in the past that this
The Issues procedural requirement may be glossed over to
prevent a miscarriage of justice, when the issue
8 

Petitioner raises this lone issue: "Whether or not the involves the principle of social justice or the protection
Respondent Commission acted with grave abuse of of labor, when the decision or resolution sought to be
9 

discretion amounting to a lack or excess of jurisdiction set aside is a nullity, or when the need for relief is
10 

when it approved the issuance of a restraining order extremely urgent and certiorari is the only adequate
enjoining the petitioner or any [other group], its agents and speedy remedy available. 11 

or representatives from conducting exit polls during

the . . . May 11 elections." 3 
The instant Petition assails a Resolution issued by the
Comelec en banc on April 21, 1998, only twenty (20)
In his Memorandum, the solicitor general, in seeking
4 
days before the election itself. Besides, the petitioner
to dismiss the Petition, brings up additional issues: (1) got hold of a copy thereof only on May 4, 1998. Under
mootness and (2) prematurity, because of petitioner's the circumstances, there was hardly enough
failure to seek a reconsideration of the assailed opportunity to move for a reconsideration and to
Comelec Resolution. obtain a swift resolution in time or the May 11, 1998
elections. Moreover, not only is time of the essence;
The Court's Ruling the Petition involves transcendental constitutional
issues. Direct resort to this Court through a special
The Petition is meritorious.
5  civil action for certiorari is therefore justified.

Procedural Issues: Main Issue:

Mootness and Prematurity Validity of Conducting Exit Polls

The solicitor general contends that the petition is moot An exit poll is a species of electoral survey conducted
and academic, because the May 11, 1998 election by qualified individuals or groups of individuals for the
has already been held and done with. Allegedly, there purpose of determining the probable result of an
is no longer any actual controversy before us. election by confidentially asking randomly selected
voters whom they have voted for, immediately after
they have officially cast their ballots. The results of the
The issue is not totally moot. While the assailed
survey are announced to the public, usually through
Resolution referred specifically to the May 11, 1998
the mass media, to give an advance overview of how,
election, its implications on the people's fundamental
in the opinion of the polling individuals or
freedom of expression transcend the past election.
organizations, the electorate voted. In our electoral
The holding of periodic elections is a basic feature of
history, exit polls had not been resorted to until the
recent May 11, 1998 elections. question, we need to review quickly our jurisprudence
on the freedoms of speech and of the press.
In its Petition, ABS-CBN Broadcasting Corporation
maintains that it is a responsible member of the mass Nature and Scope of Freedoms of Speech
media, committed to report balanced election-related and of the Press
data, including "the exclusive results of Social
Weather Station (SWS) surveys conducted in fifteen The freedom of expression is a fundamental principle
administrative regions." of our democratic government. It "is a 'preferred' right
and, therefore, stands on a higher level than
It argues that the holding of exit polls and the substantive economic or other liberties. . . . [T]his
nationwide reporting their results are valid exercises must be so because the lessons of history, both
of the freedoms of speech and of the press. It submits political and legal, illustrate that freedom of thought
that, in precipitately and unqualifiedly restraining the and speech is the indispensable condition of nearly
holding and the reporting of exit polls, the Comelec every other form of freedom." 14 

gravely abused its discretion and grossly violated the

petitioner's constitutional rights. Our Constitution clearly mandates that no law shall be
passed abridging the freedom of speech or of the
Public respondent, on the other hand, vehemently press. In the landmark case Gonzales
15 

denies that, in issuing the assailed Resolution, it v. Comelec, this Court enunciated that at the very
16 

gravely abused its discretion. It insists that the least, free speech and a free press consist of the
issuance thereof was "pursuant to its constitutional liberty to discuss publicly and truthfully any matter of
and statutory powers to promote a clean, honest, public interest without prior restraint.
orderly and credible May 11, 1998 elections"; and "to
protect, preserve and maintain the secrecy and The freedom of expression is a means of assuring
sanctity of the ballot." It contends that "the conduct of individual self-fulfillment, of attaining the truth, of
exit surveys might unduly confuse and influence the securing participation by the people in social and
voters," and that the surveys were designed "to political decision-making, and of maintaining the
condition the minds of people and cause confusion as balance between stability and change. It represents a
17 

to who are the winners and the [losers] in the profound commitment to the principle that debates on
election," which in turn may result in "violence and public issues should be uninhibited, robust, and wide
anarchy." open. It means more than the right to approve
18 

existing political beliefs or economic arrangements, to

Public respondent further argues that "exit surveys lend support to official measures, or to take refuge in
indirectly violate the constitutional principle to the existing climate of opinion on any of public
preserve the sanctity of the ballots," as the "voters are consequence. And paraphrasing the eminent Justice
lured to reveal the contents of ballots," in violation of Oliver Wendell Holmes, we stress that the freedom
19 

Section 2, Article V of the Constitution; and relevant

12 
encompasses the thought we hate, no less than the
provisions of the Omnibus Election Code. It submits
13 
thought we agree with.
that the constitutionally protected freedoms invoked
by petitioner "are not immune to regulation by the Limitations
State in the legitimate exercise of its police power,"
such as in the present case. The realities of life in a complex society, however,
preclude an absolute exercise of the freedoms of
The solicitor general, in support of the public speech and of the press. Such freedoms could not
respondent, adds that the exit polls pose a "clear and remain unfettered and unrestrained at all times and
present danger of destroying the credibility and under all circumstances. They are not immune to
20 

integrity of the electoral process," considering that regulation by the State in the exercise of its police
they are not supervised by any government agency power. While the liberty to think is absolute, the
21 

and can in general be manipulated easily. He insists power to express such thought in words and deeds
that these polls would sow confusion among the has limitations.
voters and would undermine the official tabulation of
votes conducted by the Commission, as well as the In Cabansag v. Fernandez this Court had occasion to
22 

quick count undertaken by the Namfrel. discuss two theoretical test in determining the validity
of restrictions to such freedoms, as follows:
Admittedly, no law prohibits the holding and the
reporting of exit polls. The question can thus be more These are the "clear and present danger" rule
narrowly defined: May the Comelec, in the exercise of and the "dangerous tendency" rule. The first,
its powers, totally ban exit polls? In answering this as interpreted in a number of cases, means
 that the evil consequence of the comment or should be greeted with furrowed brows, so it has
36 

utterance must be "extremely serious and the been said.

degree of imminence extremely high" before
the utterance can be punished. The danger to To justify a restriction, the promotion of a substantial
be guarded against is the "substantive evil" government interest must be clearly shown. Thus: 37 

sought to be prevented. . . . 23 

A government regulation is sufficiently justified

The "dangerous tendency" rule, on the other if it is within the constitutional power of the
hand, . . . may be epitomized as follows: if the government, if it furthers an important or
words uttered create a dangerous tendency substantial government interest; if the
which the state has a right to prevent, then governmental interest is unrelated to the
such words are punishable. It is not necessary suppression of free expression; and if the
that some definite or immediate acts of force, incidental restriction on alleged First
violence, or unlawfulness be advocated. It is Amendment freedoms is no greater than is
sufficient that such acts be advocated in essential to the furtherance of that interest. 38 

general terms. Nor is it necessary that the

language used be reasonably calculated to Hence, even though the government's purposes are
incite persons to acts of force, violence, or legitimate and substantial, they cannot be pursued by
unlawfulness. It is sufficient if the natural means that broadly stifle fundamental personal
tendency and probable effect of the utterance liberties, when the end can be more narrowly
be to bring about the substantive evil which achieved. 39 

the legislative body seeks to prevent. 24 

The freedoms of speech and of the press should all

Unquestionably, this Court adheres to the "clear and the more be upheld when what is sought to be
present danger" test. It implicitly did in its earlier curtailed is the dissemination of information meant. to
decisions in Primicias v. Fugoso and American Bible
25 
add meaning to the equally vital right of suffrage. We 40 

Society v. City of Manila; as well as in later

26 
cannot support any ruling or order "the effect of which
ones, Vera v. Arca, Navarro v. Villegas, Imbong
27  28 
would be to nullify so vital a constitutional right as free
v. Ferrer, Blo Umpar Adiong v. Comelec and, more
29  30 
speech." When faced with borderline situations in
41 

recently, in Iglesia ni Cristo v. MTRCB. In setting the

31 
which the freedom of a candidate or a party to speak
standard or test for the "clear and present danger" or the freedom of the electorate to know is invoked
doctrine, the Court echoed the words of Justice against actions allegedly made to assure clean and
Holmes: "The question in every case is whether the free elections, this Court shall lean in favor of
words used are used in such circumstances and are freedom. For in the ultimate analysis, the freedom of
of such a nature as to create a clear and present the citizen and the State's power to regulate should
danger that they will bring about the substantive evils not be antagonistic. There can be no free and honest
that Congress has a right to prevent. It is a question of elections if, in the efforts to maintain them, the
proximity and degree." 32 
freedom to speak and the right to know are unduly
curtailed.42 

A limitation on the freedom of expression may be

justified only by a danger of such substantive True, the government has a stake in protecting the
character that the state has a right to prevent. Unlike fundamental right to vote by providing voting places
in the "dangerous tendency" doctrine, the danger that are safe and accessible. It has the duty to secure
must not only be clear but also present. "Present" the secrecy of the ballot and to preserve the sanctity
refers to the time element; the danger must not only and the integrity of the electoral process. However, in
be probable but very likely to be inevitable. The evil 33 
order to justify a restriction of the people's freedoms
sought to be avoided must be so substantive as to of speech and of the press, the state's responsibility
justify a clamp over one's mouth or a restraint of a of ensuring orderly voting must far outweigh them.
writing instrument. 34 

These freedoms have additional importance, because

Justification for a Restriction exit polls generate important research data which may
be used to study influencing factors and trends in
Doctrinally, the Court has always ruled in favor of the voting behavior. An absolute prohibition would thus be
freedom of expression, and any restriction is treated unreasonably restrictive, because it effectively
an exemption. The power to exercise prior restraint is prevents the use of exit poll data not only for election-
not to be presumed; rather the presumption is against day projections, but also for long-term research. 43 

its validity. And it is respondent's burden to overthrow

35 

such presumption. Any act that restrains speech Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed restrained, candidates, researchers, social scientists
Resolution as having been issued pursuant to its and the electorate in general would be deprived of
constitutional mandate to ensure a free, orderly, studies on the impact of current events and of
honest, credible and peaceful election. While election-day and other factors on voters' choices. 1âwphi1.nêt

admitting that "the conduct of an exit poll and the

broadcast of the results thereof [are] . . . an exercise In Daily Herald Co. v. Munro, the US Supreme Court
46 

of press freedom," it argues that "[p]ress freedom may held that a statute, one of the purposes of which was
be curtailed if the exercise thereof creates a clear and to prevent the broadcasting of early returns, was
present danger to the community or it has a unconstitutional because such purpose was
dangerous tendency." It then contends that "an exit impermissible, and the statute was neither narrowly
poll has the tendency to sow confusion considering tailored to advance a state interest nor the least
the randomness of selecting interviewees, which restrictive alternative. Furthermore, the general
further make[s] the exit poll highly unreliable. The interest of the State in insulating voters from outside
probability that the results of such exit poll may not be influences is insufficient to justify speech regulation.
in harmony with the official count made by the Just as curtailing election-day broadcasts and
Comelec . . . is ever present. In other words, the exit newspaper editorials for the reason that they might
poll has a clear and present danger of destroying the indirectly affect the voters' choices is impermissible,
credibility and integrity of the electoral process." so is impermissible, so is regulating speech via an exit
poll restriction.
47 

Such arguments are purely speculative and clearly

untenable. First, by the very nature of a survey, the The absolute ban imposed by the Comelec cannot,
interviewees or participants are selected at random, therefore, be justified. It does not leave open any
so that the results will as much as possible be alternative channel of communication to gather the
representative or reflective of the general sentiment or type of information obtained through exit polling. On
view of the community or group polled. Second, the the other hand, there are other valid and reasonable
survey result is not meant to replace or be at par with ways and means to achieve the Comelec end of
the official Comelec count. It consists merely of the avoiding or minimizing disorder and confusion that
opinion of the polling group as to who the electorate in may be brought about by exit surveys.
general has probably voted for, based on the limited
data gathered from polled individuals. Finally, not at For instance, a specific limited area for conducting
stake here are the credibility and the integrity of the exit polls may be designated. Only professional
elections, which are exercises that are separate and survey groups may be allowed to conduct the same.
independent from the exit polls. The holding and the Pollsters may be kept at a reasonable distance from
reporting of the results of exit polls cannot undermine the voting center. They may be required to explain to
those of the elections, since the former is only part of voters that the latter may refuse interviewed, and that
the latter. If at all, the outcome of one can only be the interview is not part of the official balloting
indicative of the other. process. The pollsters may further be required to wear
distinctive clothing that would show they are not
The Comelec's concern with the possible election officials. Additionally, they may be required
48 

noncommunicative effect of exit polls — disorder and to undertake an information campaign on the nature
confusion in the voting centers — does not justify a of the exercise and the results to be obtained
total ban on them. Undoubtedly, the assailed Comelec therefrom. These measures, together with a general
Resolution is too broad, since its application is without prohibition of disruptive behavior, could ensure a
qualification as to whether the polling is disruptive or clean, safe and orderly election.
not. Concededly, the Omnibus Election Code
44 

prohibits disruptive behavior around the voting For its part, petitioner ABS-CBN explains its survey
centers. There is no showing, however, that exit polls
45 
methodology as follows: (1) communities are
or the means to interview voters cause chaos in randomly selected in each province; (2) residences to
voting centers. Neither has any evidence been be polled in such communities are also chosen at
presented proving that the presence of exit poll random; (3) only individuals who have already voted,
reporters near an election precinct tends to create as shown by the indelible ink on their fingers, are
disorder or confuse the voters. interviewed; (4) the interviewers use no cameras of
any sort; (5) the poll results are released to the public
Moreover, the prohibition incidentally prevents the only on the day after the elections. These
49 

collection of exit poll data and their use for any precautions, together with the possible measures
purpose. The valuable information and ideas that earlier stated, may be undertaken to abate the
could be derived from them, based on the voters' Comelec's fear, without consequently and unjustifiably
answer to the survey questions will forever remain stilling the people's voice.
unknown and unexplored. Unless the ban is
With the foregoing premises, we conclude that the
interest of the state in reducing disruption is
outweighed by the drastic abridgment of the
constitutionally guaranteed rights of the media and the
electorate. Quite the contrary, instead of disrupting
elections, exit polls — properly conducted and
publicized — can be vital tools for the holding of
honest, orderly, peaceful and credible elections; and
for the elimination of election-fixing, fraud and other
electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls

indirectly transgress the sanctity and the secrecy of
the ballot is off-tangent to the real issue. Petitioner
does not seek access to the ballots cast by the voters.
The ballot system of voting is not at issue here.

The reason behind the principle of ballot secrecy is to

avoid vote buying through voter identification. Thus,
voters are prohibited from exhibiting the contents of G.R. No. 148208             December 15, 2004
their official ballots to other persons, from making
copies thereof, or from putting distinguishing marks CENTRAL BANK (now Bangko Sentral ng
thereon so as to be identified. Also proscribed is Pilipinas) EMPLOYEES ASSOCIATION,
finding out the contents of the ballots cast by INC., petitioner, 
particular voters or disclosing those of disabled or vs.
illiterate voters who have been assisted. Clearly, what BANGKO SENTRAL NG PILIPINAS and the
is forbidden is the association of voters with their EXECUTIVE SECRETARY, respondents.
respective votes, for the purpose of assuring that the
votes have been cast in accordance with the
instructions of a third party. This result cannot,
however, be achieved merely through the voters'
verbal and confidential disclosure to a pollster of
whom they have voted for. DECISION

In exit polls, the contents of the official ballot are not

actually exposed. Furthermore, the revelation of
whom an elector has voted for is not compulsory, but
voluntary. Voters may also choose not to reveal their PUNO, J.:
identities. Indeed, narrowly tailored countermeasures
may be prescribed by the Comelec, so as to minimize Can a provision of law, initially valid,
or suppress incidental problems in the conduct of exit become subsequently unconstitutional, on the
polls, without transgressing the fundamental rights of ground that its continuedoperation would violate the
our people. equal protection of the law? We hold that with the
passage of the subsequent laws amending the charter
WHEREFORE, the Petition is GRANTED, and the of seven (7) other governmental financial institutions
Temporary Restraining Order issued by the Court on (GFIs), the continued operation of the last proviso of
May 9, 1998 is made PERMANENT. Assailed Minute Section 15(c), Article II of Republic Act (R.A.) No.
Resolution No. 98-1419 issued by the Comelec en 7653, constitutes invidious discrimination on the 2,994
banc on April 21, 1998 is hereby NULLIFIED and SET rank-and-file employees of the Bangko Sentral ng
ASIDE. No costs. Pilipinas (BSP).

SO ORDERED. I.

The Case

First the facts.

On July 3, 1993, R.A. No. 7653 (the New Central BSP personnel's position. Petitioner also claims that it
Bank Act) took effect. It abolished the old Central is not germane to the purposes of Section 15(c),
Bank of the Philippines, and created a new BSP. Article II of R.A. No. 7653, the most important of
which is to establish professionalism and
On June 8, 2001, almost eight years after the excellence at all levels in the BSP. Petitioner offers
1 

effectivity of R.A. No. 7653, petitioner Central Bank the following sub-set of arguments:
(now BSP) Employees Association, Inc., filed a
petition for prohibition against BSP and the Executive a. the legislative history of R.A. No. 7653
Secretary of the Office of the President, to restrain shows that the questioned proviso does not
respondents from further implementing the appear in the original and amended versions
last proviso in Section 15(c), Article II of R.A. No. of House Bill No. 7037, nor in the original
7653, on the ground that it is unconstitutional. version of Senate Bill No. 1235;  2 

Article II, Section 15(c) of R.A. No. 7653 provides: b. subjecting the compensation of the BSP
rank-and-file employees to the rate prescribed
Section 15. Exercise of Authority - In the exercise of by the SSL actually defeats the purpose of the
its authority, the Monetary Board shall: law of establishing professionalism and
3 

excellence at all levels in the

xxx       xxx       xxx BSP;  (emphasis supplied)
4 

(c) establish a human resource management c. the assailed proviso was the product of

system which shall govern the selection, amendments introduced during the
hiring, appointment, transfer, promotion, or deliberation of Senate Bill No. 1235, without
dismissal of all personnel. Such system shall showing its relevance to the objectives of the
aim to establish professionalism and law, and even admitted by one senator as
excellence at all levels of the Bangko discriminatory against low-salaried employees
Sentral in accordance with sound principles of of the BSP; 5 

management.
d. GSIS, LBP, DBP and SSS personnel are all
A compensation structure, based on job exempted from the coverage of the SSL; thus
evaluation studies and wage surveys and within the class of rank-and-file personnel of
subject to the Board's approval, shall be government financial institutions (GFIs), the
instituted as an integral component of BSP rank-and-file are also discriminated
the Bangko Sentral's human resource upon; and 6 

development program: Provided, That the

Monetary Board shall make its own system e. the assailed proviso has caused the
conform as closely as possible with the demoralization among the BSP rank-and-file
principles provided for under Republic Act No. and resulted in the gross disparity between
6758 [Salary Standardization Act]. Provided, their compensation and that of the BSP
however, That compensation and wage officers'. 7 

structure of employees whose positions

fall under salary grade 19 and below shall In sum, petitioner posits that the classification is not
be in accordance with the rates prescribed reasonable but arbitrary and capricious, and violates
under Republic Act No. 6758. [emphasis the equal protection clause of the
supplied] Constitution. Petitioner also stresses: (a) that R.A. No.
8 

7653 has a separability clause, which will allow the

The thrust of petitioner's challenge is that the declaration of the unconstitutionality of the proviso in
above proviso makes question without affecting the other provisions; and (b)
an unconstitutional cut between two classes of the urgency and propriety of the petition, as
employees in the BSP, viz: (1) the BSP officers or some 2,994 BSP rank-and-file employees have
those exempted from the coverage of the Salary been prejudiced since 1994 when the proviso was
Standardization Law (SSL) (exempt class); and (2) implemented. Petitioner concludes that: (1) since the
the rank-and-file (Salary Grade [SG] 19 and below), inequitable proviso has no force and effect of law,
or those not exempted from the coverage of the SSL respondents' implementation of such amounts to lack
(non-exempt class). It is contended that this of jurisdiction; and (2) it has no appeal nor any other
classification is "a classic case of class legislation," plain, speedy and adequate remedy in the ordinary
allegedly not based on substantial distinctions which course except through this petition for prohibition,
make real differences, but solely on the SG of the which this Court should take cognizance of,
considering the transcendental importance of the legal therefore, a requirement, in order to avoid the
issue involved.9 
constitutional prohibition against inequality,
that every man, woman and child should be
Respondent BSP, in its comment, contends that the
10  affected alike by a statute. Equality of
provision does not violate the equal protection clause operation of statutes does not mean
and can stand the constitutional test, provided it is indiscriminate operation on persons merely as
construed in harmony with other provisions of the such, but on persons according to the
same law, such as "fiscal and administrative circumstances surrounding them. It
autonomy of BSP," and the mandate of the Monetary guarantees equality, not identity of rights. The
Board to "establish professionalism and excellence at Constitution does not require that things which
all levels in accordance with sound principles of are different in fact be treated in law as though
management." they were the same. The equal protection
clause does not forbid discrimination as to
The Solicitor General, on behalf of respondent things that are different. It does not prohibit
Executive Secretary, also defends the validity of the legislation which is limited either in the object
provision. Quite simplistically, he argues that the to which it is directed or by the territory within
classification is based on actual and real which it is to operate.
differentiation, even as it adheres to the enunciated
policy of R.A. No. 7653 to establish professionalism The equal protection of the laws clause of the
and excellence within the BSP subject to prevailing Constitution allows classification.
laws and policies of the national government. 11  Classification in law, as in the other
departments of knowledge or practice, is the
II. grouping of things in speculation or practice
because they agree with one another in
certain particulars. A law is not invalid
Issue
because of simple inequality. The very idea of
classification is that of inequality, so that it
Thus, the sole - albeit significant - issue to be goes without saying that the mere fact of
resolved in this case is whether the last paragraph of inequality in no manner determines the matter
Section 15(c), Article II of R.A. No. 7653, runs afoul of of constitutionality. All that is required of a
the constitutional mandate that "No person shall be. . . valid classification is that it be reasonable,
denied the equal protection of the laws." 12 
which means that the classification should be
based on substantial distinctions which make
III. for real differences, that it must be germane to
the purpose of the law; that it must not be
Ruling limited to existing conditions only; and that it
must apply equally to each member of the
A. UNDER THE PRESENT STANDARDS OF class. This Court has held that the standard is
EQUAL PROTECTION, satisfied if the classification or distinction is
SECTION 15(c), ARTICLE II OF R.A. NO. 7653 IS based on a reasonable foundation or rational
VALID. basis and is not palpably arbitrary.

Jurisprudential standards for equal protection In the exercise of its power to make
challenges indubitably show that the classification classifications for the purpose of enacting
created by the questioned proviso, on its face and in laws over matters within its jurisdiction, the
its operation, bears no constitutional infirmities. state is recognized as enjoying a wide range
of discretion. It is not necessary that the
It is settled in constitutional law that the "equal classification be based on scientific or marked
protection" clause does not prevent the Legislature differences of things or in their relation.
from establishing classes of individuals or objects Neither is it necessary that the classification
upon which different rules shall operate - so long as be made with mathematical nicety. Hence,
the classification is not unreasonable. As held legislative classification may in many cases
in Victoriano v. Elizalde Rope Workers' Union, and 13  properly rest on narrow distinctions, for the
reiterated in a long line of cases:14  equal protection guaranty does not preclude
the legislature from recognizing degrees of
The guaranty of equal protection of the laws is evil or harm, and legislation is addressed to
not a guaranty of equality in the application of evils as they may appear. (citations omitted) 
the laws upon all citizens of the state. It is not,
Congress is allowed a wide leeway in providing for a
valid classification. The equal protection clause is not
15 
The constitutionality of a statute cannot, in every
infringed by legislation which applies only to those instance, be determined by a mere comparison of its
persons falling within a specified class. If the
16 
provisions with applicable provisions of the
groupings are characterized by substantial distinctions Constitution, since the statute may be constitutionally
that make real differences, one class may be treated valid as applied to one set of facts and invalid in its
and regulated differently from another. The 17 
application to another. 24 

classification must also be germane to the purpose of

the law and must apply to all those belonging to the A statute valid at one time may become void at
same class. 18 
another time because of altered
circumstances. Thus, if a statute in its practical
25 

In the case at bar, it is clear in the legislative operation becomes arbitrary or confiscatory, its
deliberations that the exemption of officers (SG 20 validity, even though affirmed by a former
and above) from the SSL was intended to address the adjudication, is open to inquiry and investigation in the
BSP's lack of competitiveness in terms of attracting light of changed conditions. 26 

competent officers and executives. It was not

intended to discriminate against the rank-and-file. If Demonstrative of this doctrine is Vernon Park Realty
the end-result did in fact lead to a disparity of v. City of Mount Vernon, where the Court of
27 

treatment between the officers and the rank-and-file in Appeals of New York declared as unreasonable and
terms of salaries and benefits, the discrimination or arbitrary a zoning ordinance which placed the
distinction has a rational basis and is not palpably, plaintiff's property in a residential district, although it
purely, and entirely arbitrary in the legislative sense. 
19 
was located in the center of a business area. Later
amendments to the ordinance then prohibited the use
That the provision was a product of amendments of the property except for parking and storage of
introduced during the deliberation of the Senate Bill automobiles, and service station within a parking
does not detract from its validity. As early as 1947 and area. The Court found the ordinance to constitute an
reiterated in subsequent cases, this Court has
20 
invasion of property rights which was contrary to
subscribed to the conclusiveness of an enrolled bill to constitutional due process. It ruled:
refuse invalidating a provision of law, on the ground
that the bill from which it originated contained no such While the common council has the
provision and was merely inserted by the bicameral unquestioned right to enact zoning laws
conference committee of both Houses. respecting the use of property in accordance
with a well-considered and comprehensive
Moreover, it is a fundamental and familiar teaching plan designed to promote public health, safety
that all reasonable doubts should be resolved in favor and general welfare, such power is subject to
of the constitutionality of a statute. An act of the
21 
the constitutional limitation that it may not be
legislature, approved by the executive, is presumed to exerted arbitrarily or unreasonably and this is
be within constitutional limitations. To justify the
22 
so whenever the zoning ordinance precludes
nullification of a law, there must be a clear and the use of the property for any purpose for
unequivocal breach of the Constitution, not a doubtful which it is reasonably adapted. By the same
and equivocal breach. 23 
token, an ordinance valid when adopted
will nevertheless be stricken down as
B. THE ENACTMENT, HOWEVER, OF invalid when, at a later time, its operation
SUBSEQUENT LAWS - under changed conditions proves
EXEMPTING ALL OTHER RANK-AND-FILE confiscatory such, for instance, as when the
EMPLOYEES greater part of its value is destroyed, for which
OF GFIs FROM THE SSL - RENDERS THE the courts will afford relief in an appropriate
CONTINUED case. (citations omitted, emphasis supplied)
28 

APPLICATION OF THE CHALLENGED PROVISION

A VIOLATION OF THE EQUAL PROTECTION In the Philippine setting, this Court declared the
CLAUSE. continued enforcement of a valid law as
unconstitutional as a consequence of significant
While R.A. No. 7653 started as a valid measure well changes in circumstances. Rutter v.
within the legislature's power, we hold that Esteban upheld the constitutionality of the
29 

the enactment of subsequent laws exempting all moratorium law - its enactment and operation being a
rank-and-file employees of other GFIs leeched all valid exercise by the State of its police power - but
30 

validity out of the challenged proviso. also ruled that the continued enforcement of the
otherwise valid law would be unreasonable and
1. The concept of relative constitutionality. oppressive. It noted the subsequent changes in the
country's business, industry and agriculture. Thus, the injustice is more patent when, under the law,
law was set aside because its continued operation the debtor is not even required to pay interest
would be grossly discriminatory and lead to the during the operation of the relief, unlike similar
oppression of the creditors. The landmark ruling statutes in the United States.
states:
31 

xxx       xxx       xxx

The question now to be determined is, is the
period of eight (8) years which Republic Act In the face of the foregoing observations, and
No. 342 grants to debtors of a monetary consistent with what we believe to be as the
obligation contracted before the last global only course dictated by justice, fairness and
war and who is a war sufferer with a claim righteousness, we feel that the only way open
duly approved by the Philippine War Damage to us under the present circumstances is to
Commission reasonable under the present declare that the continued operation and
circumstances? enforcement of Republic Act No. 342 at the
present time is unreasonable and
It should be noted that Republic Act No. 342 oppressive, and should not be prolonged a
only extends relief to debtors of prewar minute longer, and, therefore, the same
obligations who suffered from the ravages of should be declared null and void and
the last war and who filed a claim for their without effect. (emphasis supplied, citations
losses with the Philippine War Damage omitted)
Commission. It is therein provided that said
obligation shall not be due and demandable 2. Applicability of the equal protection clause.
for a period of eight (8) years from and after
settlement of the claim filed by the debtor with In the realm of equal protection, the U.S. case
said Commission. The purpose of the law is to of Atlantic Coast Line R. Co. v. Ivey is illuminating.
32 

afford to prewar debtors an opportunity to The Supreme Court of Florida ruled against the
rehabilitate themselves by giving them a continued application of statutes authorizing the
reasonable time within which to pay their recovery of double damages plus attorney's fees
prewar debts so as to prevent them from against railroad companies, for animals killed on
being victimized by their creditors. While it is unfenced railroad right of way without proof of
admitted in said law that since liberation negligence. Competitive motor carriers, though
conditions have gradually returned to normal, creating greater hazards, were not subjected to
this is not so with regard to those who have similar liability because they were not yet in
suffered the ravages of war and so it was existence when the statutes were enacted. The Court
therein declared as a policy that as to them ruled that the statutes became invalid as denying
the debt moratorium should be continued in "equal protection of the law," in view of changed
force (Section 1). conditions since their enactment.

But we should not lose sight of the fact that In another U.S. case, Louisville & N.R. Co. v.
these obligations had been pending since Faulkner, the Court of Appeals of Kentucky declared
33 

1945 as a result of the issuance of Executive unconstitutional a provision of a statute which

Orders Nos. 25 and 32 and at present their imposed a duty upon a railroad company of proving
enforcement is still inhibited because of the that it was free from negligence in the killing or injury
enactment of Republic Act No. 342 and would of cattle by its engine or cars. This, notwithstanding
continue to be unenforceable during the eight- that the constitutionality of the statute, enacted in
year period granted to prewar debtors to 1893, had been previously sustained. Ruled the
afford them an opportunity to rehabilitate Court:
themselves, which in plain language means
that the creditors would have to observe a vigil
The constitutionality of such legislation was
of at least twelve (12) years before they could
sustained because it applied to all similar
effect a liquidation of their investment dating
corporations and had for its object the safety
as far back as 1941. his period seems to us
of persons on a train and the protection of
unreasonable, if not oppressive. While the
property…. Of course, there were no
purpose of Congress is plausible, and should
automobiles in those days.
be commended, the relief accorded works
The subsequent inauguration and
injustice to creditors who are practically left at
development of transportation by motor
the mercy of the debtors. Their hope to effect
vehicles on the public highways by common
collection becomes extremely remote, more
carriers of freight and passengers created
so if the credits are unsecured. And the
 even greater risks to the safety of occupants [W]e see no difference between a law
of the vehicles and of danger of injury and which denies equal protection and a law
death of domestic animals. Yet, under the law which permits of such denial. A law may
the operators of that mode of competitive appear to be fair on its face and impartial in
transportation are not subject to the same appearance, yet, if it permits of unjust and
extraordinary legal responsibility for killing illegal discrimination, it is within the
such animals on the public roads as are constitutional prohibition….. In other words,
railroad companies for killing them on their statutes may be adjudged unconstitutional
private rights of way.  because of their effect in operation…. If a law
has the effect of denying the equal protection
The Supreme Court, speaking through Justice of the law it is unconstitutional. …. (emphasis
36 

Brandeis in Nashville, C. & St. L. Ry. Co. v. supplied, citations omitted

Walters, 294 U.S. 405, 55 S.Ct. 486, 488, 79
L.Ed. 949, stated, "A statute valid when 3. Enactment of R.A. Nos. 7907 + 8282 + 8289 +
enacted may become invalid by change in 8291 + 8523 + 8763
the conditions to which it is applied. The + 9302 = consequential unconstitutionality of
police power is subject to the constitutional challenged proviso.
limitation that it may not be exerted arbitrarily
or unreasonably." A number of prior opinions According to petitioner, the last proviso of Section
of that court are cited in support of the 15(c), Article II of R.A. No. 7653 is also violative of the
statement. The State of Florida for many equal protection clause because after it was enacted,
years had a statute, F.S.A. § 356.01 et seq. the charters of the GSIS, LBP, DBP and SSS were
imposing extraordinary and special duties also amended, but the personnel of the latter GFIs
upon railroad companies, among which was were all exempted from the coverage of the
that a railroad company was liable for double SSL. Thus, within the class of rank-and-file personnel
37 

damages and an attorney's fee for killing of GFIs, the BSP rank-and-file are also discriminated
livestock by a train without the owner having upon.
to prove any act of negligence on the part of
the carrier in the operation of its train. In Indeed, we take judicial notice that after the new BSP
Atlantic Coast Line Railroad Co. v. Ivey, it was charter was enacted in 1993, Congress also
held that the changed conditions brought undertook the amendment of the charters of the
about by motor vehicle transportation GSIS, LBP, DBP and SSS, and three other GFIs, from
rendered the statute unconstitutional since if a 1995 to 2004, viz:
common carrier by motor vehicle had killed
the same animal, the owner would have been
1. R.A. No. 7907 (1995) for Land Bank of the
required to prove negligence in the operation
Philippines (LBP);
of its equipment. Said the court, "This certainly
is not equal protection of the law." (emphasis
34 

supplied) 2. R.A. No. 8282 (1997) for Social Security

System (SSS);
Echoes of these rulings resonate in our case
law, viz: 3. R.A. No. 8289 (1997) for Small Business
Guarantee and Finance Corporation,
(SBGFC);
[C]ourts are not confined to the language of
the statute under challenge in determining
whether that statute has any discriminatory 4. R.A. No. 8291 (1997) for Government
effect. A statute nondiscriminatory on its Service Insurance System (GSIS);
face may be grossly discriminatory in its
operation. Though the law itself be fair on its 5. R.A. No. 8523 (1998) for Development
face and impartial in appearance, yet, if it is Bank of the Philippines (DBP);
applied and administered by public authority
with an evil eye and unequal hand, so as 6. R.A. No. 8763 (2000) for Home Guaranty
practically to make unjust and illegal Corporation (HGC); and
38 

discriminations between persons in similar

circumstances, material to their rights, the 7. R.A. No. 9302 (2004) for Philippine Deposit
denial of equal justice is still within the Insurance Corporation (PDIC).
prohibition of the Constitution. (emphasis
35 

supplied, citations omitted) It is noteworthy, as petitioner points out, that the

subsequent charters of the seven other GFIs further, That the personnel appointed by the
share this common proviso: a blanket exemption SSS President, except those below the rank
of all their employees from the coverage of the SSL, of assistant manager, shall be subject to the
expressly or impliedly, as illustrated below: confirmation by the Commission; Provided
further, That the personnel of the SSS shall be
1. LBP (R.A. No. 7907) selected only from civil service eligibles and
be subject to civil service rules and
Section 10. Section 90 of [R.A. No. 3844] is regulations: Provided, finally, That the SSS
hereby amended to read as follows: shall be exempt from the provisions of
Republic Act No. 6758 and Republic Act
No. 7430. (emphasis supplied)
Section 90. Personnel. -
3. SBGFC (R.A. No. 8289)
xxx       xxx       xxx
Section 8. [Amending R.A. No. 6977, Section
All positions in the Bank shall be governed by
11]: 
a compensation, position classification system
and qualification standards approved by the
Bank's Board of Directors based on a xxx       xxx       xxx
comprehensive job analysis and audit of
actual duties and responsibilities. The The Small Business Guarantee and Finance
compensation plan shall be comparable with Corporation shall:
the prevailing compensation plans in the
private sector and shall be subject to periodic xxx       xxx       xxx
review by the Board no more than once every
two (2) years without prejudice to yearly merit (e) notwithstanding the provisions of
reviews or increases based on productivity Republic Act No. 6758, and Compensation
and profitability. The Bank shall therefore be Circular No. 10, series of 1989 issued by the
exempt from existing laws, rules and Department of Budget and Management, the
regulations on compensation, position Board of Directors of SBGFC shall have
classification and qualification the authority to extend to the employees
standards. It shall however endeavor to make and personnel thereof the allowance and
its system conform as closely as possible with fringe benefits similar to those extended to
the principles under Republic Act No. 6758. and currently enjoyed by the employees
(emphasis supplied) and personnel of other government
financial institutions. (emphases supplied)
xxx       xxx       xxx
4. GSIS (R.A. No. 8291)
2. SSS (R.A. No. 8282)
Section 1. [Amending Section 43(d)]. 
Section 1. [Amending R.A. No. 1161, Section
3(c)]:  xxx       xxx       xxx

xxx       xxx       xxx Sec. 43. Powers and Functions of the Board

of Trustees. - The Board of Trustees shall
(c)The Commission, upon the have the following powers and functions:
recommendation of the SSS President, shall
appoint an actuary and such other personnel xxx       xxx       xxx
as may [be] deemed necessary; fix their
reasonable compensation, allowances and (d) upon the recommendation of the President
other benefits; prescribe their duties and and General Manager, to approve the GSIS'
establish such methods and procedures as organizational and administrative structures
may be necessary to insure the efficient, and staffing pattern, and to establish, fix,
honest and economical administration of the review, revise and adjust the appropriate
provisions and purposes of this Act: Provided, compensation package for the officers and
however, That the personnel of the SSS employees of the GSIS with reasonable
below the rank of Vice President shall be allowances, incentives, bonuses, privileges
appointed by the SSS President: Provided, and other benefits as may be necessary or
 proper for the effective management, system and qualifications standards approved
operation and administration of the GSIS, by the Corporation's Board of Directors based
which shall be exempt from Republic Act on a comprehensive job analysis and audit of
No. 6758, otherwise known as the Salary actual duties and responsibilities: Provided,
Standardization Law and Republic Act No. further, That the compensation plan shall
7430, otherwise known as the Attrition be comparable with the prevailing
Law. (emphasis supplied) compensation plans in the private sector
and which shall be exempt from Republic
xxx       xxx       xxx Act No. 6758, otherwise known as the
Salary Standardization Law, and from
5. DBP (R.A. No. 8523) other laws, rules and regulations on
salaries and compensations; and to
establish a Provident Fund and determine the
Section 6. [Amending E.O. No. 81, Section
Corporation's and the employee's
13]: 
contributions to the Fund; (emphasis supplied)
Section 13. Other Officers and Employees. -
xxx       xxx       xxx
The Board of Directors shall provide for an
organization and staff of officers and
employees of the Bank and upon 7. PDIC (R.A. No. 9302)
recommendation of the President of the Bank,
fix their remunerations and other emoluments. Section 2. Section 2 of [Republic Act No. 3591, as
All positions in the Bank shall be governed by amended] is hereby further amended to read:
the compensation, position classification
system and qualification standards approved xxx       xxx       xxx
by the Board of Directors based on a
comprehensive job analysis of actual duties 3.
and responsibilities. The compensation plan
shall be comparable with the prevailing xxx       xxx       xxx
compensation plans in the private sector and
shall be subject to periodic review by the
A compensation structure, based on job
Board of Directors once every two (2) years,
evaluation studies and wage surveys and
without prejudice to yearly merit or increases
subject to the Board's approval, shall be
based on the Bank's productivity and
instituted as an integral component of the
profitability. The Bank shall, therefore, be
Corporation's human resource development
exempt from existing laws, rules, and
program: Provided, That all positions in the
regulations on compensation, position
Corporation shall be governed by a
classification and qualification standards.
compensation, position classification system
The Bank shall however, endeavor to make
and qualification standards approved by the
its system conform as closely as possible
Board based on a comprehensive job analysis
with the principles under Compensation
and audit of actual duties and
and Position Classification Act of 1989
responsibilities. The compensation plan
(Republic Act No. 6758, as
shall be comparable with the prevailing
amended). (emphasis supplied)
compensation plans of other government
financial institutions and shall be subject to
6. HGC (R.A. No. 8763) review by the Board no more than once every
two (2) years without prejudice to yearly merit
Section 9. Powers, Functions and Duties of the Board reviews or increases based on productivity
of Directors. - The Board shall have the following and profitability. The Corporation shall
powers, functions and duties: therefore be exempt from existing laws,
rules and regulations on compensation,
xxx       xxx       xxx position classification and qualification
standards. It shall however endeavor to make
(e) To create offices or positions necessary for its system conform as closely as possible with
the efficient management, operation and the principles under Republic Act No. 6758, as
administration of the Corporation: Provided, amended. (emphases supplied)
That all positions in the Home Guaranty
Corporation (HGC) shall be governed by a Thus, eleven years after the amendment of the
compensation and position classification BSP charter, the rank-and-file of seven other GFIs
were granted the exemption that was specifically that each exemption (granted to the seven other
denied to the rank-and-file of the BSP. And as if to GFIs) rests "on a policy determination by the
add insult to petitioner's injury, even the Securities legislature." All legislative enactments necessarily
and Exchange Commission (SEC) was granted the rest on a policy determination - even those that
same blanket exemption from the SSL in 2000! 39 
have been declared to contravene the Constitution.
Verily, if this could serve as a magic wand to sustain
The prior view on the constitutionality of R.A. No. the validity of a statute, then no due process and
7653 was confined to an evaluation of its equal protection challenges would ever prosper.
classification between the rank-and-file and the There is nothing inherently sacrosanct in a policy
officers of the BSP, found reasonable because there determination made by Congress or by the Executive;
were substantial distinctions that made real it cannot run riot and overrun the ramparts of
differences between the two classes. protection of the Constitution.

The above-mentioned subsequent enactments, In fine, the "policy determination" argument may
however, constitute significant changes in support the inequality of treatment between the rank-
circumstancethat considerably alter the and-file and the officers of the BSP, but it cannot
reasonability of the continued operation of the justify the inequality of treatment between BSP rank-
last proviso of Section 15(c), Article II of Republic and-file and other GFIs' who are similarly situated. It
Act No. 7653, thereby exposing the proviso to fails to appreciate that what is at issue in the second
more serious scrutiny. This time, the scrutiny relates level of scrutiny is not the declared policy of each
to the constitutionality of the classification - albeit law per se, but the oppressive results of Congress'
made indirectly as a consequence of the passage of inconsistent and unequal policytowards the BSP
eight other laws - between the rank-and-file of the rank-and-file and those of the seven other GFIs. At
BSP and the seven other GFIs. The classification bottom, the second challenge to the constitutionality
must not only be reasonable, but must also apply of Section 15(c), Article II of Republic Act No. 7653 is
equally to all members of the premised precisely on the irrational
class. The proviso may be fair on its face and discriminatory policy adopted by Congress in its
impartial in appearance but it cannot be grossly treatment of persons similarly situated. In the field
discriminatory in its operation, so as practically to of equal protection, the guarantee that "no person
make unjust distinctions between persons who are shall be … denied the equal protection of the laws"
without differences.40  includes the prohibition against enacting laws that
allow invidious discrimination, directly or
Stated differently, the second level of inquiry deals indirectly. If a law has the effect of denying the equal
with the following questions: Given that Congress protection of the law, or permits such denial, it is
chose to exempt other GFIs (aside the BSP) from the unconstitutional.41 

coverage of the SSL, can the exclusion of the rank-

and-file employees of the BSP stand constitutional It is against this standard that the disparate treatment
scrutiny in the light of the fact that Congress did not of the BSP rank-and-file from the other GFIs cannot
exclude the rank-and-file employees of the other stand judicial scrutiny. For as regards the exemption
GFIs? Is Congress' power to classify so unbridled as from the coverage of the SSL, there exist no
to sanction unequal and discriminatory treatment, substantial distinctions so as to differentiate, the BSP
simply because the inequity manifested itself, not rank-and-file from the other rank-and-file of the seven
instantly through a single overt act, but gradually and GFIs. On the contrary, our legal history shows that
progressively, through seven separate acts of GFIs have long been recognized as comprising
Congress? Is the right to equal protection of the law one distinct class, separate from other
bounded in time and space that: (a) the right can only governmental entities.
be invoked against a classification made directly and
deliberately, as opposed to a discrimination that Before the SSL, Presidential Decree (P.D.) No. 985
arises indirectly, or as a consequence of several other (1976) declared it as a State policy (1) to provide
acts; and (b) is the legal analysis confined to equal pay for substantially equal work, and (2) to base
determining the validity within the parameters of the differences in pay upon substantive differences in
statute or ordinance (where the inclusion or exclusion duties and responsibilities, and qualification
is articulated), thereby proscribing any evaluation vis- requirements of the positions. P.D. No. 985 was
à-vis the grouping, or the lack thereof, among several passed to address disparities in pay among similar or
similar enactments made over a period of time? comparable positions which had given rise to
dissension among government employees. But even
In this second level of scrutiny, the inequality of then, GFIs and government-owned and/or
treatment cannot be justified on the mere assertion controlled corporations (GOCCs) were already
identified as a distinct class among government
employees. Thus, Section 2 also provided, "[t]hat (8) responsibility for accuracy of records and
notwithstanding a standardized salary system reports;
established for all employees, additional financial
incentives may be established by government (9) accountability for funds, properties and
corporation and financial institutions for their equipment; and
employees to be supported fully from their corporate
funds and for such technical positions as may be (10) hardship, hazard and personal risk
approved by the President in critical government involved in the job.
agencies." 42 

The Benchmark Position Schedule enumerates the

The same favored treatment is made for the GFIs and position titles that fall within Salary Grades 1 to 20.
the GOCCs under the SSL. Section 3(b) provides that
one of the principles governing the Compensation and
Clearly, under R.A. No. 6758, the rank-and-file of all
Position Classification System of the Government is
GFIs were similarly situated in all aspects pertaining
that: "[b]asic compensation for all personnel in the
to compensation and position classification, in
government and government-owned or controlled
consonance with Section 5, Article IX-B of the 1997
corporations and financial institutions shall generally
Constitution.47 

be comparable with those in the private sector doing

comparable work, and must be in accordance with
prevailing laws on minimum wages." Then came the enactment of the amended charter
of the BSP, implicitly exempting the Monetary Board
from the SSL by giving it express authority to
Thus, the BSP and all other GFIs and GOCCs were
determine and institute its own compensation and
under the unified Compensation and Position
wage structure. However, employees whose positions
Classification System of the SSL, but rates of pay
43 

fall under SG 19 and below were specifically limited to

under the SSL were determined on the basis of,
the rates prescribed under the SSL.
among others, prevailing rates in the private sector for
comparable work. Notably, the Compensation and
Position Classification System was to be governed by Subsequent amendments to the charters of other
the following principles: (a) just and equitable wages, GFIs followed. Significantly, each government
with the ratio of compensation between pay financial institution (GFI) was not only expressly
distinctions maintained at equitable levels; and (b)
44  authorized to determine and institute its own
basic compensation generally comparable with the compensation and wage structure, but also explicitly
private sector, in accordance with prevailing laws on exempted - without distinction as to salary grade
minimum wages. Also, the Department of Budget and
45  or position - all employees of the GFI from the
Management was directed to use, as guide for SSL.
preparing the Index of Occupational Services, the
Benchmark Position Schedule, and the following It has been proffered that legislative deliberations
factors:
46  justify the grant or withdrawal of exemption from the
SSL, based on the perceived need "to fulfill the
(1) the education and experience required to mandate of the institution concerned considering,
perform the duties and responsibilities of the among others, that: (1) the GOCC or GFI is
positions; essentially proprietary in character; (2) the GOCC or
GFI is in direct competition with
their [sic] counterparts in the private sector, not only
(2) the nature and complexity of the work to
in terms of the provisions of goods or services, but
be performed;
also in terms of hiring and retaining competent
personnel; and (3) the GOCC or GFI are or
(3) the kind of supervision received; were [sic] experiencing difficulties filling up plantilla
positions with competent personnel and/or retaining
(4) mental and/or physical strain required in these personnel. The need for the scope of
the completion of the work; exemption necessarily varies with the particular
circumstances of each institution, and the
(5) nature and extent of internal and external corresponding variance in the benefits received by
relationships; the employees is merely incidental."

(6) kind of supervision exercised; The fragility of this argument is manifest. First, the
BSP is the central monetary authority, and 48 

(7) decision-making responsibility; the banker of the government and all its political
subdivisions. It has the sole power and authority to
49 
issue currency; provide policy directions in the areas
50 
SSL, and its rank-and-file endowed a more preferred
of money, banking, and credit; and supervise banks treatment than the rank-and-file of the BSP.
and regulate finance companies and non-bank
financial institutions performing quasi-banking The violation to the equal protection clause becomes
functions, including the exempted GFIs. Hence, the
51 
even more pronounced when we are faced with this
argument that the rank-and-file employees of the undeniable truth: that if Congress had enacted a law
seven GFIs were exempted because of the for the sole purpose of exempting the eight GFIs from
importance of their institution's mandate cannot stand the coverage of the SSL, the exclusion of the BSP
any more than an empty sack can stand. rank-and-file employees would have been devoid of
any substantial or material basis. It bears no moment,
Second, it is certainly misleading to say that "the need therefore, that the unlawful discrimination was not a
for the scope of exemption necessarily varies with the direct result arising from one law. "Nemo potest
particular circumstances of each institution." Nowhere facere per alium quod non potest facere per
in the deliberations is there a cogent basis for the directum." No one is allowed to do indirectly what he
exclusion of the BSP rank-and-file from the exemption is prohibited to do directly.
which was granted to the rank-and-file of the other
GFIs and the SEC. As point in fact, the BSP and the It has also been proffered that "similarities alone are
seven GFIs are similarly situated in so far as not sufficient to support the conclusion that rank-and-
Congress deemed it necessary for these institutions file employees of the BSP may be lumped together
to be exempted from the SSL. True, the SSL- with similar employees of the other GOCCs for
exemption of the BSP and the seven GFIs was purposes of compensation, position classification and
granted in the amended charters of each GFI, qualification standards. The fact that certain persons
enacted separately and over a period of time. But it have some attributes in common does not
bears emphasis that, while each GFI has a mandate automatically make them members of the same class
different and distinct from that of another, the with respect to a legislative classification." Cited is the
deliberations show that the raison d'être of the SSL- ruling in Johnson v. Robinson: "this finding of
54 

exemption was inextricably linked to and for the most similarity ignores that a common characteristic shared
part based on factors common to the eight GFIs, i.e., by beneficiaries and nonbeneficiaries alike, is not
(1) the pivotal role they play in the economy; (2) the sufficient to invalidate a statute when other
necessity of hiring and retaining qualified and effective characteristics peculiar to only one group rationally
personnel to carry out the GFI's mandate; and (3) the explain the statute's different treatment of the two
recognition that the compensation package of these groups."
GFIs is not competitive, and fall substantially below
industry standards. Considering further that (a) the The reference to Johnson is inapropos. In Johnson,
BSP was the first GFI granted SSL exemption; and (b) the US Court sustained the validity of the
the subsequent exemptions of other GFIs did not classification as there were quantitative and
distinguish between the officers and the rank-and-file; qualitative distinctions, expressly recognized by
it is patent that the classification made between the Congress, which formed a rational basis for the
BSP rank-and-file and those of the other seven classification limiting educational benefits to military
GFIs was inadvertent, and NOT intended, i.e., it was service veterans as a means of helping them readjust
not based on any substantial distinction vis-à-vis the to civilian life. The Court listed the peculiar
particular circumstances of each GFI. Moreover, the characteristics as follows:
exemption granted to two GFIs makes express
reference to allowance and fringe benefits similar to
First, the disruption caused by military service
those extended to and currently enjoyed by the
is quantitatively greater than that caused by
employees and personnel of other
alternative civilian service. A conscientious
GFIs, underscoring that GFIs are a particular class
52 

objector performing alternative service is

within the realm of government entities.
obligated to work for two years. Service in the
Armed Forces, on the other hand, involves a
It is precisely this unpremeditated discrepancy in six-year commitment…
treatment of the rank-and-file of the BSP - made
manifest and glaring with each and every
xxx       xxx       xxx
consequential grant of blanket exemption from the
SSL to the other GFIs - that cannot be rationalized or
justified. Even more so, when the SEC - which is not a Second, the disruptions suffered by military
GFI - was given leave to have a compensation plan veterans and alternative service performers
that "shall be comparable with the prevailing are qualitatively different. Military veterans
compensation plan in the [BSP] and other suffer a far greater loss of personal freedom
[GFIs]," then granted a blanket exemption from the
53  during their service careers. Uprooted from
 civilian life, the military veteran becomes part It bears stressing that the exemption from the SSL is
of the military establishment, subject to its a "privilege" fully within the legislative prerogative to
discipline and potentially hazardous duty. give or deny. However, its subsequent grant to the
Congress was acutely aware of the peculiar rank-and-file of the seven other GFIs and continued
disabilities caused by military service, in denial to the BSP rank-and-file employees breached
consequence of which military servicemen the latter's right to equal protection. In other words,
have a special need for readjustment while the granting of a privilege per se is a matter of
benefits… (citations omitted)
55 
policy exclusively within the domain and prerogative
of Congress, the validity or legality of the exercise of
In the case at bar, it is precisely the fact that as this prerogative is subject to judicial review. So when
58 

regards the exemption from the SSL, there are no the distinction made is superficial, and not based on
characteristics peculiar only to the seven GFIs or substantial distinctions that make real differences
their rank-and-file so as to justify the exemption between those included and excluded, it becomes a
which BSP rank-and-file employees were matter of arbitrariness that this Court has the duty and
denied (not to mention the anomaly of the SEC the power to correct. As held in the United Kingdom
59 

getting one). The distinction made by the law is not case of Hooper v. Secretary of State for Work and
only superficial, but also arbitrary. It is not based on
56  Pensions, once the State has chosen to confer
60 

substantial distinctions that make real differences benefits, "discrimination" contrary to law may occur
between the BSP rank-and-file and the seven other where favorable treatment already afforded to one
GFIs.  group is refused to another, even though the State is
under no obligation to provide that favorable
Moreover, the issue in this case is not - as the treatment. 61 

dissenting opinion of Mme. Justice Carpio-Morales

would put it - whether "being an employee of a GOCC The disparity of treatment between BSP rank-and-file
or GFI is reasonable and sufficient basis for and the rank-and-file of the other seven GFIs
exemption" from R.A. No. 6758. It is Congress itself definitely bears the unmistakable badge of invidious
that distinguished the GFIs from other discrimination - no one can, with candor and fairness,
government agencies, not once but eight times, deny the discriminatory character of the subsequent
through the enactment of R.A. Nos. 7653, 7907, 8282, blanket and total exemption of the seven other GFIs
8289, 8291, 8523, 8763, and 9302. These laws may from the SSL when such was withheld from the
have created a "preferred sub-class within BSP. Alikes are being treated as unalikes without
government employees," but the present challenge is any rational basis.
not directed at the wisdom of these laws. Rather, it is
a legal conundrum involving the exercise of legislative Again, it must be emphasized that the equal
power, the validity of which must be measured not protection clause does not demand absolute
only by looking at the specific exercise in and by equality but it requires that all persons shall be
itself (R.A. No. 7653), but also as to the legal treated alike, under like circumstances and
effects brought about by seven separate exercises - conditions both as to privileges conferred and
albeit indirectly and without intent. liabilities enforced. Favoritism and undue preference
cannot be allowed. For the principle is that equal
Thus, even if petitioner had not alleged "a comparable protection and security shall be given to every person
change in the factual milieu as regards the under circumstances which, if not identical, are
compensation, position classification and qualification analogous. If law be looked upon in terms of burden
standards of the employees of the BSP (whether of or charges, those that fall within a class should be
the executive level or of the rank-and-file) since the treated in the same fashion; whatever restrictions cast
enactment of the new Central Bank Act" is of no on some in the group is equally binding on the rest. 62 

moment. In GSIS v. Montesclaros, this Court

57 

resolved the issue of constitutionality notwithstanding In light of the lack of real and substantial distinctions
that claimant had manifested that she was no longer that would justify the unequal treatment between the
interested in pursuing the case, and even when the rank-and-file of BSP from the seven other GFIs, it is
constitutionality of the said provision was not squarely clear that the enactment of the seven subsequent
raised as an issue, because the issue involved not charters has rendered the continued application of the
only the claimant but also others similarly situated and challenged proviso anathema to the equal protection
whose claims GSIS would also deny based on the of the law, and the same should be declared as an
challenged proviso. The Court held that social justice outlaw.
and public interest demanded the resolution of the
constitutionality of the proviso. And so it is with the IV.
challenged proviso in the case at bar.
 Equal Protection Under International Lens "old" equal protection, a "new" equal
protection, connoting strict scrutiny, arose….
In our jurisdiction, the standard and analysis of The intensive review associated with the new
equal protection challenges in the main have followed equal protection imposed two demands - a
the "rational basis" test, coupled with a deferential demand not only as to means but also one
attitude to legislative classifications and a reluctance
63  as to ends. Legislation qualifying for strict
to invalidate a law unless there is a showing of a clear scrutiny required a far closer fit between
and unequivocal breach of the Constitution.  64  classification and statutory purpose than the
rough and ready flexibility traditionally
A. Equal Protection in the United States tolerated by the old equal protection: means
had to be shown "necessary" to achieve
statutory ends, not merely "reasonably
In contrast, jurisprudence in the U.S. has gone
related" ones. Moreover, equal protection
beyond the static "rational basis" test. Professor
became a source of ends scrutiny as well:
Gunther highlights the development in equal
legislation in the areas of the new equal
protection jurisprudential analysis, to wit: 
65 

protection had to be justified by "compelling"

state interests, not merely the wide spectrum
Traditionally, equal protection supported only of "legitimate" state ends.
minimal judicial intervention in most contexts.
Ordinarily, the command of equal protection
The Warren Court identified the areas
was only that government must not impose
appropriate for strict scrutiny by searching
differences in treatment "except upon some
for two characteristics: the presence of a
reasonable differentiation fairly related to the
"suspect" classification; or an impact on
object of regulation." The old variety of equal
"fundamental" rights or interests. In the
protection scrutiny focused solely on
category of "suspect classifications," the
the means used by the legislature: it insisted
Warren Court's major contribution was to
merely that the classification in the
intensify the strict scrutiny in the traditionally
statute reasonably relates to the legislative
interventionist area of racial classifications.
purpose. Unlike substantive due process,
But other cases also suggested that there
equal protection scrutiny was not typically
might be more other suspect categories as
concerned with identifying "fundamental
well: illegitimacy and wealth for example. But
values" and restraining legislative ends. And
it was the 'fundamental interests" ingredient of
usually the rational
the new equal protection that proved
classification requirement was readily
particularly dynamic, open-ended, and
satisfied: the courts did not demand a tight fit
amorphous….. [Other fundamental interests
between classification and purpose; perfect
included voting, criminal appeals, and the right
congruence between means and ends was
of interstate travel ….]
not required.
xxx       xxx       xxx
xxx       xxx       xxx
The Burger Court and Equal Protection.
[From marginal intervention to major
cutting edge: The Warren Court's "new equal
protection" and the two-tier approach.] The Burger Court was reluctant to expand
the scope of the new equal protection,
although its best established ingredient
From its traditional modest role, equal
retains vitality. There was also mounting
protection burgeoned into a major
discontent with the rigid two-tier formulations
intervention tool during the Warren
of the Warren Court's equal protection
era, especially in the 1960s. The Warren
doctrine. It was prepared to use the clause as
Court did not abandon the deferential
an interventionist tool without resorting to the
ingredients of the old equal protection: in most
strict language of the new equal protection….
areas of economic and social legislation, the
[Among the fundamental interests identified
demands imposed by equal protection
during this time were voting and access to the
remained as minimal as ever…But the Court
ballot, while "suspect" classifications included
launched an equal protection revolution by
sex, alienage and illegitimacy.]
finding large new areas for strict rather than
deferential scrutiny. A sharply
differentiated two-tier approach evolved by xxx       xxx       xxx
the late 1960s: in addition to the deferential
Even while the two-tier scheme has often of those objectives." That standard is
been adhered to in form, there has also been "intermediate" with respect to both ends and
an increasingly noticeable resistance to the means: where ends must be "compelling" to
sharp difference between deferential "old" and survive strict scrutiny and merely "legitimate"
interventionist "new" equal protection. A under the "old" mode, "important" objectives
number of justices sought formulations that are required here; and where means must be
would blur the sharp distinctions of the two- "necessary" under the "new" equal protection,
tiered approach or that would narrow the gap and merely "rationally related" under the "old"
between strict scrutiny and deferential review. equal protection, they must be "substantially
The most elaborate attack came from Justice related" to survive the "intermediate" level of
Marshall, whose frequently stated position review. (emphasis supplied, citations omitted)
was developed most elaborately in his dissent
in the Rodriguez case:  66 
B. Equal Protection in Europe

The Court apparently seeks to establish [that] The United Kingdom and other members of the
equal protection cases fall into one of two neat European Community have also gone forward in
categories which dictate the appropriate discriminatory legislation and jurisprudence. Within
standard of review - strict scrutiny or mere the United Kingdom domestic law, the most extensive
rationality. But this (sic) Court's [decisions] list of protected grounds can be found in Article 14 of
defy such easy categorization. A principled the European Convention on Human
reading of what this Court has done reveals Rights (ECHR). It prohibits discrimination on grounds
that it has applied a spectrum of standards in such as "sex, race, colour, language, religion, political
reviewing discrimination allegedly violative of or other opinion, national or social origin, association
the equal protection clause. This spectrum with a national minority, property, birth or other
clearly comprehends variations in the degree status." This list is illustrative and not
of care with which Court will scrutinize exhaustive. Discrimination on the basis of race,
particular classification, depending, I believe, sex and religion is regarded as grounds that
on the constitutional and societal importance require strict scrutiny. A further indication that
of the interests adversely affected and the certain forms of discrimination are regarded
recognized invidiousness of the basis upon as particularly suspect under the Covenant can be
which the particular classification is drawn. gleaned from Article 4, which, while allowing states to
derogate from certain Covenant articles in times of
Justice Marshall's "sliding national emergency, prohibits derogation by
scale" approach describes many of the measures that discriminate solely on the grounds of
modern decisions, although it is a formulation "race, colour, language, religion or social origin." 67 

that the majority refused to embrace. But the

Burger Court's results indicate at least two Moreover, the European Court of Human
significant changes in equal protection Rights has developed a test of justification which
law: First, invocation of the "old" equal varies with the ground of discrimination. In
protection formula no longer signals, as it did the Belgian Linguistics case the European Court
68 

with the Warren Court, an extreme deference set the standard of justification at a low level:
to legislative classifications and a virtually discrimination would contravene the Convention only
automatic validation of challenged statutes. if it had no legitimate aim, or there was no reasonable
Instead, several cases, even while voicing the relationship of proportionality between the means
minimal "rationality" "hands-off" standards of employed and the aim sought to be realised. But69 

the old equal protection, proceed to find the over the years, the European Court has developed
statute unconstitutional. Second, in some a hierarchy of grounds covered by Article 14 of
areas the modern Court has put forth the ECHR, a much higher level of justification
standards for equal protection review that, being required in respect of those regarded as
while clearly more intensive than the "suspect" (sex, race, nationality, illegitimacy, or
deference of the "old" equal protection, are sexual orientation) than of others. Thus,
less demanding than the strictness of the in Abdulaziz,  the European Court declared that:
70 

"new" equal protection. Sex discrimination is

the best established example of . . . [t]he advancement of the equality of the
an "intermediate" level of review. Thus, in sexes is today a major goal in the member
one case, the Court said that "classifications States of the Council of Europe. This means
by gender must that very weighty reasons would have to be
serve important governmental objectives and advanced before a difference of treatment on
must be substantially related to achievement
 the ground of sex could be regarded as requiring State action. Article 26 of the ICCPR
compatible with the Convention. requires "guarantee[s]" of "equal and effective
protection against discrimination" while Articles 1 and
And in Gaygusuz v. Austria, the European
71  14 of the American and European Conventions oblige
Court held that "very weighty reasons would have States Parties "to ensure ... the full and free exercise
to be put forward before the Court could regard a of [the rights guaranteed] ... without any
difference of treatment based exclusively on the discrimination" and to "secure without discrimination"
ground of nationality as compatible with the the enjoyment of the rights guaranteed. These 82 

Convention." The European Court will then permit

72  provisions impose a measure of positive
States a very much narrower margin of obligation on States Parties to take steps to
appreciation in relation to discrimination on grounds eradicate discrimination.
of sex, race, etc., in the application of the Convention
rights than it will in relation to distinctions drawn by In the employment field, basic detailed minimum
states between, for example, large and small land- standards ensuring equality and prevention of
owners.  73 
discrimination, are laid down in the ICESCR and in a 83 

very large number of Conventions administered by the

C. Equality under International Law International Labour Organisation, a United Nations
body.  Additionally, many of the other international
84 

The principle of equality has long been recognized and regional human rights instruments have specific
under international law. Article 1 of the Universal provisions relating to employment. 85 

Declaration of Human Rights proclaims that all

human beings are born free and equal in dignity The United Nations Human Rights Committee has
and rights. Non-discrimination, together with equality also gone beyond the earlier tendency to view the
before the law and equal protection of the law without prohibition against discrimination (Article 26) as
any discrimination, constitutes basic principles in the confined to the ICCPR rights. In Broeks and Zwaan-
86  87 

protection of human rights.  74  de Vries, the issue before the Committee was
88 

whether discriminatory provisions in the Dutch

Most, if not all, international human rights Unemployment Benefits Act (WWV) fell within the
instruments include some prohibition on scope of Article 26. The Dutch government submitted
discrimination and/or provisions about equality. The75  that discrimination in social security benefit provision
general international provisions pertinent to was not within the scope of Article 26, as the right was
discrimination and/or equality are the International contained in the ICESCR and not the ICCPR. They
Covenant on Civil and Political Rights (ICCPR); the 76  accepted that Article 26 could go beyond the rights
International Covenant on Economic, Social and contained in the Covenant to other civil and political
Cultural Rights (ICESCR); the International rights, such as discrimination in the field of taxation,
Convention on the Elimination of all Forms of Racial but contended that Article 26 did not extend to the
Discrimination (CERD); the Convention on the
77  social, economic, and cultural rights contained in
Elimination of all Forms of Discrimination against ICESCR. The Committee rejected this argument. In its
Women (CEDAW); and the Convention on the Rights view, Article 26 applied to rights beyond the Covenant
of the Child (CRC). including the rights in other international treaties such
as the right to social security found in ICESCR:
In the broader international context, equality is also
enshrined in regional instruments such as the Although Article 26 requires that legislation
American Convention on Human Rights; the African
78  should prohibit discrimination, it does not of
Charter on Human and People's Rights; the 79  itself contain any obligation with respect to the
European Convention on Human Rights; the 80  matters that may be provided for by
European Social Charter of 1961 and revised Social legislation. Thus it does not, for example,
Charter of 1996; and the European Union Charter of require any state to enact legislation to
Rights (of particular importance to European states). provide for social security. However, when
Even the Council of the League of Arab States has such legislation is adopted in the exercise of a
adopted the Arab Charter on Human Rights in 1994, State's sovereign power, then such legislation
although it has yet to be ratified by the Member States must comply with Article 26 of the Covenant. 89 

of the League. 81 

Breaches of the right to equal protection occur directly

The equality provisions in these instruments do or indirectly. A classification may be struck down if it
not merely function as traditional "first has the purpose or effect of violating the right to
generation" rights, commonly viewed as equal protection. International law recognizes
concerned only with constraining rather than that discrimination may occur indirectly, as the
Human Rights Committee took into account the
90 
Covenant on Economic, Social, and Cultural
definitions of discrimination adopted by CERD and Rights, the International Convention on the
CEDAW in declaring that: Elimination of All Forms of Racial
Discrimination, the Convention against
. . . "discrimination" as used in the [ICCPR] Discrimination in Education, the Convention
should be understood to imply any distinction, (No. 111) Concerning Discrimination in
exclusion, restriction or preference which Respect of Employment and Occupation - all
is based on any ground such as race, embody the general principle against
colour, sex, language, religion, political or discrimination, the very antithesis of fairness
other opinion, national or social origin, and justice. The Philippines, through its
property, birth or other status, and which has Constitution, has incorporated this principle as
the purpose or effect of nullifying or part of its national laws.
impairing the recognition, enjoyment or
exercise by all persons, on an equal footing, In the workplace, where the relations between
of all rights and freedoms.  (emphasis
91 
capital and labor are often skewed in favor of
supplied) capital, inequality and discrimination by the
employer are all the more reprehensible.
Thus, the two-tier analysis made in the case at bar
of the challenged provision, and its conclusion of The Constitution specifically provides that
unconstitutionality by subsequent operation, are labor is entitled to "humane conditions of
in cadence and in consonance with the work." These conditions are not restricted to
progressive trend of other jurisdictions and in the physical workplace - the factory, the office
international law. There should be no hesitation in or the field - but include as well the manner by
using the equal protection clause as a major cutting which employers treat their employees.
edge to eliminate every conceivable irrational
discrimination in our society. Indeed, the social justice The Constitution also directs the State to
imperatives in the Constitution, coupled with the promote "equality of employment opportunities
special status and protection afforded to labor, compel for all." Similarly, the Labor Code provides that
this approach.92 
the State shall "ensure equal work
opportunities regardless of sex, race or
Apropos the special protection afforded to labor under creed." It would be an affront to both the spirit
our Constitution and international law, we held in and letter of these provisions if the State, in
International School Alliance of Educators v. spite of its primordial obligation to promote
Quisumbing:  93 
and ensure equal employment opportunities,
closes its eyes to unequal and discriminatory
That public policy abhors inequality and terms and conditions of employment.
discrimination is beyond contention. Our
Constitution and laws reflect the policy against xxx       xxx       xxx
these evils. The Constitution in the Article on
Social Justice and Human Rights exhorts Notably, the International Covenant on
Congress to "give highest priority to the Economic, Social, and Cultural Rights, in
enactment of measures that protect and Article 7 thereof, provides:
enhance the right of all people to human
dignity, reduce social, economic, and political The States Parties to the present Covenant
inequalities." The very broad Article 19 of the recognize the right of everyone to the
Civil Code requires every person, "in the enjoyment of just and [favorable] conditions of
exercise of his rights and in the performance work, which ensure, in particular:
of his duties, [to] act with justice, give
everyone his due, and observe honesty and
a. Remuneration which provides all
good faith."
workers, as a minimum, with:
International law, which springs from general
i. Fair wages and equal
principles of law, likewise proscribes
remuneration for work of equal
discrimination. General principles of law
value without distinction of any
include principles of equity, i.e., the general
kind, in particular women
principles of fairness and justice, based on the
being guaranteed conditions of
test of what is reasonable. The Universal
work not inferior to those
Declaration of Human Rights, the International
enjoyed by men, with equal
 pay for equal work;  [I]n resolving constitutional disputes, [this Court]
should not be beguiled by foreign jurisprudence some
xxx       xxx       xxx of which are hardly applicable because they have
been dictated by different constitutional settings and
The foregoing provisions impregnably needs." Indeed, although the Philippine Constitution
98 

institutionalize in this jurisdiction the long can trace its origins to that of the United States, their
honored legal truism of "equal pay for equal paths of development have long since diverged.  99 

work." Persons who work with substantially

equal qualifications, skill, effort and Further, the quest for a better and more "equal" world
responsibility, under similar conditions, should calls for the use of equal protection as a tool of
be paid similar salaries. (citations omitted) effective judicial intervention.

Congress retains its wide discretion in providing for a Equality is one ideal which cries out for bold
valid classification, and its policies should be attention and action in the Constitution. The
accorded recognition and respect by the courts of Preamble proclaims "equality" as an ideal
justice except when they run afoul of the precisely in protest against crushing inequities
Constitution. The deference stops where the
94  in Philippine society. The command to
classification violates a fundamental right, or promote social justice in Article II, Section 10,
prejudices persons accorded special protection in "all phases of national development,"
by the Constitution. When these violations arise, this further explicitated in Article XIII, are clear
Court must discharge its primary role as the vanguard commands to the State to take affirmative
of constitutional guaranties, and require a stricter action in the direction of greater equality.…
and more exacting adherence to constitutional [T]here is thus in the Philippine Constitution
limitations. Rational basis should not suffice. no lack of doctrinal support for a more
vigorous state effort towards achieving a
Admittedly, the view that prejudice to persons reasonable measure of equality. 100 

accorded special protection by the Constitution

requires a stricter judicial scrutiny finds no support in Our present Constitution has gone further in
American or English jurisprudence. Nevertheless, guaranteeing vital social and economic rights to
these foreign decisions and authorities are not per marginalized groups of society, including
se controlling in this jurisdiction. At best, they are labor. Under the policy of social justice, the law
101 

persuasive and have been used to support many of bends over backward to accommodate the interests of
our decisions. We should not place undue and
95  the working class on the humane justification that
fawning reliance upon them and regard them as those with less privilege in life should have more in
indispensable mental crutches without which we law. And the obligation to afford protection to labor is
102 

cannot come to our own decisions through the incumbent not only on the legislative and executive
employment of our own endowments. We live in a branches but also on the judiciary to translate this
different ambience and must decide our own pledge into a living reality. Social justice calls for the
103 

problems in the light of our own interests and needs, humanization of laws and the equalization of social
and of our qualities and even idiosyncrasies as a and economic forces by the State so that justice in its
people, and always with our own concept of law and rational and objectively secular conception may at
justice. Our laws must be construed in accordance
96  least be approximated. 104 

with the intention of our own lawmakers and such

intent may be deduced from the language of each law V.
and the context of other local legislation related
thereto. More importantly, they must be construed to A Final Word
serve our own public interest which is the be-all and
the end-all of all our laws. And it need not be stressed Finally, concerns have been raised as to the propriety
that our public interest is distinct and different from of a ruling voiding the challenged provision. It has
others.97 
been proffered that the remedy of petitioner is not with
this Court, but with Congress, which alone has the
In the 2003 case of Francisco v. House of power to erase any inequity perpetrated by R.A. No.
Representatives, this Court has stated that: 7653. Indeed, a bill proposing the exemption of the
"[A]merican jurisprudence and authorities, much less BSP rank-and-file from the SSL has supposedly been
the American Constitution, are of dubious application filed.
for these are no longer controlling within our
jurisdiction and have only limited persuasive merit Under most circumstances, the Court will exercise
insofar as Philippine constitutional law is concerned.... judicial restraint in deciding questions of
constitutionality, recognizing the broad discretion foremost leaders of the Convention that
given to Congress in exercising its legislative power. drafted the 1935 Constitution - declared, as
Judicial scrutiny would be based on the "rational early as July 15, 1936, that "(i)n times of
basis" test, and the legislative discretion would be social disquietude or political excitement, the
given deferential treatment. 105 
great landmarks of the Constitution are apt to
be forgotten or marred, if not entirely
But if the challenge to the statute is premised on obliterated. In cases of conflict, the judicial
the denial of a fundamental right, or the department is the only constitutional organ
perpetuation of prejudice against persons favored which can be called upon to determine the
by the Constitution with special protection, proper allocation of powers between the
judicial scrutiny ought to be more strict. A weak several departments" of the
and watered down view would call for the abdication government. (citations omitted; emphasis
107 

of this Court's solemn duty to strike down any law supplied)

repugnant to the Constitution and the rights it
enshrines. This is true whether the actor committing In the case at bar, the challenged proviso operates on
the unconstitutional act is a private person or the the basis of the salary grade or officer-employee
government itself or one of its instrumentalities. status. It is akin to a distinction based on
Oppressive acts will be struck down regardless of the economic class and status, with the higher grades
character or nature of the actor.  106 
as recipients of a benefit specifically withheld from the
lower grades. Officers of the BSP now receive higher
Accordingly, when the grant of power is compensation packages that are competitive with the
qualified, conditional or subject to limitations, industry, while the poorer, low-salaried employees are
the issue on whether or not the prescribed limited to the rates prescribed by the SSL. The
qualifications or conditions have been met, or implications are quite disturbing: BSP rank-and-file
the limitations respected, is justiciable or non- employees are paid the strictly regimented rates of
political, the crux of the problem being one of the SSL while employees higher in rank - possessing
legality or validity of the contested act, not its higher and better education and opportunities for
wisdom. Otherwise, said qualifications, career advancement - are given higher compensation
conditions or limitations - particularly those packages to entice them to stay. Considering that
prescribed or imposed by the Constitution - majority, if not all, the rank-and-file employees
would be set at naught. What is more, the consist of people whose status and rank in life are
judicial inquiry into such issue and the less and limited, especially in terms of job
settlement thereof are the main functions of marketability, it is they - and not the officers - who
courts of justice under the Presidential form of have the real economic and financial need for the
government adopted in our 1935 Constitution, adjustment This is in accord with the policy of the
and the system of checks and balances, one Constitution "to free the people from poverty, provide
of its basic predicates. As a consequence, We adequate social services, extend to them a decent
have neither the authority nor the standard of living, and improve the quality of life for
discretion to decline passing upon said all." Any act of Congress that runs counter to this
108 

issue, but are under the ineluctable constitutional desideratum deserves strict

obligation - made particularly more scrutiny by this Court before it can pass muster.
exacting and peremptory by our oath, as
members of the highest Court of the land, To be sure, the BSP rank-and-file employees merit
to support and defend the Constitution - to greater concern from this Court. They represent the
settle it. This explains why, in Miller v. more impotent rank-and-file government employees
Johnson, it was held that courts have a "duty, who, unlike employees in the private sector, have no
rather than a power", to determine whether specific right to organize as a collective bargaining
another branch of the government has "kept unit and negotiate for better terms and conditions of
within constitutional limits." Not satisfied with employment, nor the power to hold a strike to protest
this postulate, the court went farther and unfair labor practices. Not only are they impotent as a
stressed that, if the Constitution provides how labor unit, but their efficacy to lobby in Congress is
it may be amended - as it is in our 1935 almost nil as R.A. No. 7653 effectively isolated them
Constitution - "then, unless the manner is from the other GFI rank-and-file in
followed, the judiciary as the interpreter of that compensation. These BSP rank-and-file employees
constitution, will declare the amendment represent the politically powerless and they
invalid." In fact, this very Court - speaking should not be compelled to seek a political
through Justice Laurel, an outstanding solution to their unequal and iniquitous
authority on Philippine Constitutional Law, as treatment. Indeed, they have waited for many years
well as one of the highly respected and for the legislature to act. They cannot be asked to wait
some more for discrimination cannot be given any
waiting time. Unless the equal protection clause of the
Constitution is a mere platitude, it is the Court's duty
to save them from reasonless discrimination.

IN VIEW WHEREOF, we hold that the continued

operation and implementation of the last proviso of
Section 15(c), Article II of Republic Act No. 7653 is
unconstitutional.

Davide, Jr., C.J., Quisumbing, Ynares-Santiago,

Sandoval-Gutierrez, Austria-Martinez, Azcuna, Tinga,
and Chico-Nazario, JJ., concur.

Panganiban, Carpio, Carpio-Morales, and Garcia,

JJ., see dissenting.
G.R. No. 74457 March 20, 1987
Corona, and Callejo, Sr., JJ., on leave.
RESTITUTO YNOT, petitioner, 
vs.
INTERMEDIATE APPELLATE COURT, THE
STATION COMMANDER, INTEGRATED NATIONAL
POLICE, BAROTAC NUEVO, ILOILO and THE
REGIONAL DIRECTOR, BUREAU OF ANIMAL
INDUSTRY, REGION IV, ILOILO CITY, respondents.

Ramon A. Gonzales for petitioner.

CRUZ, J.:

The essence of due process is distilled in the immortal

cry of Themistocles to Alcibiades "Strike — but hear
me first!" It is this cry that the petitioner in effect
repeats here as he challenges the constitutionality of
Executive Order No. 626-A.

The said executive order reads in full as follows:

WHEREAS, the President has given

orders prohibiting the interprovincial
movement of carabaos and the
slaughtering of carabaos not
complying with the requirements of
Executive Order No. 626 particularly
with respect to age;

WHEREAS, it has been observed that

despite such orders the violators still
manage to circumvent the prohibition
against inter-provincial movement of
carabaos by transporting carabeef
instead; and

WHEREAS, in order to achieve the

purposes and objectives of Executive
Order No. 626 and the prohibition
 against interprovincial movement of The petitioner appealed the decision to the
carabaos, it is necessary to strengthen Intermediate Appellate Court,*   which upheld the trial
3

the said Executive Order and provide court, ** and he has now come before us in this petition for review
on certiorari.
for the disposition of the carabaos and
carabeef subject of the violation;
The thrust of his petition is that the executive order is
unconstitutional insofar as it authorizes outright
NOW, THEREFORE, I, FERDINAND confiscation of the carabao or carabeef being
E. MARCOS, President of the transported across provincial boundaries. His claim is
Philippines, by virtue of the powers that the penalty is invalid because it is imposed
vested in me by the Constitution, do without according the owner a right to be heard before
hereby promulgate the following: a competent and impartial court as guaranteed by due
process. He complains that the measure should not
SECTION 1. Executive Order No. 626 have been presumed, and so sustained, as
is hereby amended such that constitutional. There is also a challenge to the
henceforth, no carabao regardless of improper exercise of the legislative power by the
age, sex, physical condition or former President under Amendment No. 6 of the 1973
purpose and no carabeef shall be Constitution.  4

transported from one province to

another. The carabao or carabeef While also involving the same executive order, the
transported in violation of this case of Pesigan v. Angeles   is not applicable here.
5

Executive Order as amended shall be The question raised there was the necessity of the
subject to confiscation and forfeiture previous publication of the measure in the Official
by the government, to be distributed to Gazette before it could be considered enforceable.
charitable institutions and other similar We imposed the requirement then on the basis of due
institutions as the Chairman of the process of law. In doing so, however, this Court did
National Meat Inspection Commission not, as contended by the Solicitor General, impliedly
may ay see fit, in the case of carabeef, affirm the constitutionality of Executive Order No. 626-
and to deserving farmers through A. That is an entirely different matter.
dispersal as the Director of Animal
Industry may see fit, in the case of
carabaos. This Court has declared that while lower courts should
observe a becoming modesty in examining
constitutional questions, they are nonetheless not
SECTION 2. This Executive Order prevented from resolving the same whenever
shall take effect immediately. warranted, subject only to review by the highest
tribunal.   We have jurisdiction under the Constitution
6

Done in the City of Manila, this 25th to "review, revise, reverse, modify or affirm on appeal
day of October, in the year of Our or certiorari, as the law or rules of court may provide,"
Lord, nineteen hundred and eighty. final judgments and orders of lower courts in, among
others, all cases involving the constitutionality of
(SGD.) FERDINAND E.  This simply means that the
certain measures. 
7

MARCOS resolution of such cases may be made in the first

instance by these lower courts.
President
And while it is true that laws are presumed to be
Republicconstitutional,
of the that presumption is not by any means
conclusive and in fact may be rebutted. Indeed, if
Philippines
there be a clear showing of their invalidity, and of the
The petitioner had transported six carabaos in a pump need to declare them so, then "will be the time to
boat from Masbate to Iloilo on January 13, 1984, make the hammer fall, and heavily,"   to recall Justice
8

when they were confiscated by the police station Laurel's trenchant warning. Stated otherwise, courts
commander of Barotac Nuevo, Iloilo, for violation of should not follow the path of least resistance by
the above measure. 1 The petitioner sued for recovery, and the simply presuming the constitutionality of a law when it
Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of is questioned. On the contrary, they should probe the
a supersedeas bond of P12,000.00. After considering the merits of the
case, the court sustained the confiscation of the carabaos and, since they
issue more deeply, to relieve the abscess,
could no longer be produced, ordered the confiscation of the bond. The paraphrasing another distinguished jurist,   and so
9

court also declined to rule on the constitutionality of the executive order, as heal the wound or excise the affliction.
raise by the petitioner, for lack of authority and also for its presumed
validity. 2
Judicial power authorizes this; and when the exercise
is demanded, there should be no shirking of the task in the course of the decision of cases as they
for fear of retaliation, or loss of favor, or popular arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for
censure, or any other similar inhibition unworthy of the example, would go no farther than to define due process — and in so doing
sums it all up — as nothing more and nothing less than "the embodiment of
bench, especially this Court. the sporting Idea of fair play." 12 

The challenged measure is denominated an executive When the barons of England extracted from their sovereign liege the
reluctant promise that that Crown would thenceforth not proceed against
order but it is really presidential decree, promulgating the life liberty or property of any of its subjects except by the lawful
a new rule instead of merely implementing an existing judgment of his peers or the law of the land, they thereby won for
law. It was issued by President Marcos not for the themselves and their progeny that splendid guaranty of fairness that is now
the hallmark of the free society. The solemn vow that King John made at
purpose of taking care that the laws were faithfully Runnymede in 1215 has since then resounded through the ages, as a
executed but in the exercise of his legislative authority ringing reminder to all rulers, benevolent or base, that every person, when
confronted by the stern visage of the law, is entitled to have his say in a fair
under Amendment No. 6. It was provided thereunder and open hearing of his cause.
that whenever in his judgment there existed a grave
emergency or a threat or imminence thereof or
The closed mind has no place in the open society. It is
whenever the legislature failed or was unable to act
part of the sporting Idea of fair play to hear "the other
adequately on any matter that in his judgment
side" before an opinion is formed or a decision is
required immediate action, he could, in order to meet
made by those who sit in judgment. Obviously, one
the exigency, issue decrees, orders or letters of
side is only one-half of the question; the other half
instruction that were to have the force and effect of
must also be considered if an impartial verdict is to be
law. As there is no showing of any exigency to justify
reached based on an informed appreciation of the
the exercise of that extraordinary power then, the
issues in contention. It is indispensable that the two
petitioner has reason, indeed, to question the validity
sides complement each other, as unto the bow the
of the executive order. Nevertheless, since the
arrow, in leading to the correct ruling after
determination of the grounds was supposed to have
examination of the problem not from one or the other
been made by the President "in his judgment, " a
perspective only but in its totality. A judgment based
phrase that will lead to protracted discussion not really
on less that this full appraisal, on the pretext that a
necessary at this time, we reserve resolution of this
hearing is unnecessary or useless, is tainted with the
matter until a more appropriate occasion. For the
vice of bias or intolerance or ignorance, or worst of all,
nonce, we confine ourselves to the more fundamental
in repressive regimes, the insolence of power.
question of due process.
The minimum requirements of due process are notice
It is part of the art of constitution-making that the
and hearing 13 which, generally speaking, may not be dispensed with
provisions of the charter be cast in precise and because they are intended as a safeguard against official arbitrariness. It is
unmistakable language to avoid controversies that a gratifying commentary on our judicial system that the jurisprudence of this
country is rich with applications of this guaranty as proof of our fealty to the
might arise on their correct interpretation. That is the rule of law and the ancient rudiments of fair play. We have consistently
Ideal. In the case of the due process clause, however, declared that every person, faced by the awesome power of the State, is
this rule was deliberately not followed and the wording entitled to "the law of the land," which Daniel Webster described almost two
hundred years ago in the famous Dartmouth College Case, 14 as "the law
was purposely kept ambiguous. In fact, a proposal to which hears before it condemns, which proceeds upon inquiry and renders
delineate it more clearly was submitted in the judgment only after trial." It has to be so if the rights of every person are to
be secured beyond the reach of officials who, out of mistaken zeal or plain
Constitutional Convention of 1934, but it was rejected arrogance, would degrade the due process clause into a worn and empty
by Delegate Jose P. Laurel, Chairman of the catchword.
Committee on the Bill of Rights, who forcefully argued
against it. He was sustained by the body. 10 This is not to say that notice and hearing are
imperative in every case for, to be sure, there are a
The due process clause was kept intentionally vague so it would remain number of admitted exceptions. The conclusive
also conveniently resilient. This was felt necessary because due process is
not, like some provisions of the fundamental law, an "iron rule" laying down presumption, for example, bars the admission of
an implacable and immutable command for all seasons and all persons. contrary evidence as long as such presumption is
Flexibility must be the best virtue of the guaranty. The very elasticity of the
due process clause was meant to make it adapt easily to every situation,
based on human experience or there is a rational
enlarging or constricting its protection as the changing times and connection between the fact proved and the fact
circumstances may require. ultimately presumed therefrom. 15 There are instances when
the need for expeditions action will justify omission of these requisites, as in
the summary abatement of a nuisance per se, like a mad dog on the loose,
Aware of this, the courts have also hesitated to adopt which may be killed on sight because of the immediate danger it poses to
their own specific description of due process lest they the safety and lives of the people. Pornographic materials, contaminated
confine themselves in a legal straitjacket that will meat and narcotic drugs are inherently pernicious and may be summarily
destroyed. The passport of a person sought for a criminal offense may be
deprive them of the elbow room they may need to cancelled without hearing, to compel his return to the country he has
vary the meaning of the clause whenever indicated. fled. 16 Filthy restaurants may be summarily padlocked in the interest of the
public health and bawdy houses to protect the public morals. 17 In such
Instead, they have preferred to leave the import of the instances, previous judicial hearing may be omitted without violation of due
protection open-ended, as it were, to be "gradually process in view of the nature of the property involved or the urgency of the
ascertained by the process of inclusion and exclusion need to protect the general welfare from a clear and present danger.
The protection of the general welfare is the particular interests of the public generally, as
function of the police power which both restraints and distinguished from those of a
is restrained by due process. The police power is particular class" and that the
simply defined as the power inherent in the State to prohibition of the slaughter of
regulate liberty and property for the promotion of the carabaos for human consumption, so
general welfare. 18 By reason of its function, it extends to all the long as these animals are fit for
great public needs and is described as the most pervasive, the least agricultural work or draft purposes
limitable and the most demanding of the three inherent powers of the State,
far outpacing taxation and eminent domain. The individual, as a member of was a "reasonably necessary"
society, is hemmed in by the police power, which affects him even before limitation on private ownership, to
he is born and follows him still after he is dead — from the womb to beyond
the tomb — in practically everything he does or owns. Its reach is virtually
protect the community from the loss of
limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as long the services of such animals by their
as the activity or the property has some relevance to the public welfare, its slaughter by improvident owners,
regulation under the police power is not only proper but necessary. And the
justification is found in the venerable Latin maxims, Salus populi est tempted either by greed of momentary
suprema lex and Sic utere tuo ut alienum non laedas, which call for the gain, or by a desire to enjoy the luxury
subordination of individual interests to the benefit of the greater number.
of animal food, even when by so doing
the productive power of the
It is this power that is now invoked by the government community may be measurably and
to justify Executive Order No. 626-A, amending the dangerously affected.
basic rule in Executive Order No. 626, prohibiting the
slaughter of carabaos except under certain conditions. In the light of the tests mentioned above, we hold with
The original measure was issued for the reason, as the Toribio Case that the carabao, as the poor man's
expressed in one of its Whereases, that "present tractor, so to speak, has a direct relevance to the
conditions demand that the carabaos and the public welfare and so is a lawful subject of Executive
buffaloes be conserved for the benefit of the small Order No. 626. The method chosen in the basic
farmers who rely on them for energy needs." We measure is also reasonably necessary for the purpose
affirm at the outset the need for such a measure. In sought to be achieved and not unduly oppressive
the face of the worsening energy crisis and the upon individuals, again following the above-cited
increased dependence of our farms on these doctrine. There is no doubt that by banning the
traditional beasts of burden, the government would slaughter of these animals except where they are at
have been remiss, indeed, if it had not taken steps to least seven years old if male and eleven years old if
protect and preserve them.  female upon issuance of the necessary permit, the
executive order will be conserving those still fit for
A similar prohibition was challenged in United States farm work or breeding and preventing their
v. Toribio, 19 where a law regulating the registration, branding and improvident depletion. 
slaughter of large cattle was claimed to be a deprivation of property without
due process of law. The defendant had been convicted thereunder for
having slaughtered his own carabao without the required permit, and he But while conceding that the amendatory measure
appealed to the Supreme Court. The conviction was affirmed. The law was
sustained as a valid police measure to prevent the indiscriminate killing of has the same lawful subject as the original executive
carabaos, which were then badly needed by farmers. An epidemic had order, we cannot say with equal certainty that it
stricken many of these animals and the reduction of their number had
resulted in an acute decline in agricultural output, which in turn had caused
complies with the second requirement, viz., that there
an incipient famine. Furthermore, because of the scarcity of the animals be a lawful method. We note that to strengthen the
and the consequent increase in their price, cattle-rustling had spread original measure, Executive Order No. 626-A imposes
alarmingly, necessitating more effective measures for the registration and
branding of these animals. The Court held that the questioned statute was a an absolute ban not on the slaughter of the carabaos
valid exercise of the police power and declared in part as follows: but on their movement, providing that "no carabao
regardless of age, sex, physical condition or purpose
To justify the State in thus interposing (sic) and no carabeef shall be transported from one
its authority in behalf of the public, it province to another." The object of the prohibition
must appear, first, that the interests of escapes us. The reasonable connection between the
the public generally, as distinguished means employed and the purpose sought to be
from those of a particular class, achieved by the questioned measure is missing
require such interference; and second,
that the means are reasonably We do not see how the prohibition of the inter-
necessary for the accomplishment of provincial transport of carabaos can prevent their
the purpose, and not unduly indiscriminate slaughter, considering that they can be
oppressive upon individuals. ...  killed anywhere, with no less difficulty in one province
than in another. Obviously, retaining the carabaos in
From what has been said, we think it one province will not prevent their slaughter there, any
is clear that the enactment of the more than moving them to another province will make
provisions of the statute under it easier to kill them there. As for the carabeef, the
consideration was required by "the prohibition is made to apply to it as otherwise, so says
executive order, it could be easily circumvented by 626-A is penal in nature, the violation thereof should
simply killing the animal. Perhaps so. However, if the have been pronounced not by the police only but by a
movement of the live animals for the purpose of court of justice, which alone would have had the
preventing their slaughter cannot be prohibited, it authority to impose the prescribed penalty, and only
should follow that there is no reason either to prohibit after trial and conviction of the accused.
their transfer as, not to be flippant dead meat.
We also mark, on top of all this, the questionable
Even if a reasonable relation between the means and manner of the disposition of the confiscated property
the end were to be assumed, we would still have to as prescribed in the questioned executive order. It is
reckon with the sanction that the measure applies for there authorized that the seized property shall "be
violation of the prohibition. The penalty is outright distributed to charitable institutions and other similar
confiscation of the carabao or carabeef being institutions as the Chairman of the National Meat
transported, to be meted out by the executive Inspection Commission may see fit, in the case of
authorities, usually the police only. In the Toribio carabeef, and to deserving farmers through dispersal
Case, the statute was sustained because the penalty as the Director of Animal Industry may see fit, in the
prescribed was fine and imprisonment, to be imposed case of carabaos." (Emphasis supplied.) The
by the court after trial and conviction of the accused. phrase "may see fit" is an extremely generous and
Under the challenged measure, significantly, no such dangerous condition, if condition it is. It is laden with
trial is prescribed, and the property being transported perilous opportunities for partiality and abuse, and
is immediately impounded by the police and declared, even corruption. One searches in vain for the usual
by the measure itself, as forfeited to the government. standard and the reasonable guidelines, or better still,
the limitations that the said officers must observe
In the instant case, the carabaos were arbitrarily when they make their distribution. There is none.
confiscated by the police station commander, were Their options are apparently boundless. Who shall be
returned to the petitioner only after he had filed a the fortunate beneficiaries of their generosity and by
complaint for recovery and given a supersedeas bond what criteria shall they be chosen? Only the officers
of P12,000.00, which was ordered confiscated upon named can supply the answer, they and they alone
his failure to produce the carabaos when ordered by may choose the grantee as they see fit, and in their
the trial court. The executive order defined the own exclusive discretion. Definitely, there is here a
prohibition, convicted the petitioner and immediately "roving commission," a wide and sweeping authority
imposed punishment, which was carried out forthright. that is not "canalized within banks that keep it from
The measure struck at once and pounced upon the overflowing," in short, a clearly profligate and
petitioner without giving him a chance to be heard, therefore invalid delegation of legislative powers.
thus denying him the centuries-old guaranty of
elementary fair play. To sum up then, we find that the challenged measure
is an invalid exercise of the police power because the
It has already been remarked that there are occasions method employed to conserve the carabaos is not
when notice and hearing may be validly dispensed reasonably necessary to the purpose of the law and,
with notwithstanding the usual requirement for these worse, is unduly oppressive. Due process is violated
minimum guarantees of due process. It is also because the owner of the property confiscated is
conceded that summary action may be validly taken in denied the right to be heard in his defense and is
administrative proceedings as procedural due process immediately condemned and punished. The
is not necessarily judicial only.   In the exceptional
20 conferment on the administrative authorities of the
cases accepted, however. there is a justification for power to adjudge the guilt of the supposed offender is
the omission of the right to a previous hearing, to wit, a clear encroachment on judicial functions and
the immediacy of the problem sought to be corrected militates against the doctrine of separation of powers.
and the urgency of the need to correct it. There is, finally, also an invalid delegation of
legislative powers to the officers mentioned therein
In the case before us, there was no such pressure of who are granted unlimited discretion in the distribution
time or action calling for the petitioner's peremptory of the properties arbitrarily taken. For these reasons,
treatment. The properties involved were not even we hereby declare Executive Order No. 626-A
inimical per se as to require their instant destruction. unconstitutional.
There certainly was no reason why the offense
prohibited by the executive order should not have We agree with the respondent court, however, that
been proved first in a court of justice, with the the police station commander who confiscated the
accused being accorded all the rights safeguarded to petitioner's carabaos is not liable in damages for
him under the Constitution. Considering that, as we enforcing the executive order in accordance with its
held in Pesigan v. Angeles,   Executive Order No.
21 mandate. The law was at that time presumptively
valid, and it was his obligation, as a member of the
police, to enforce it. It would have been impertinent of
him, being a mere subordinate of the President, to
declare the executive order unconstitutional and, on
his own responsibility alone, refuse to execute it. Even
the trial court, in fact, and the Court of Appeals itself
did not feel they had the competence, for all their
superior authority, to question the order we now
annul.

The Court notes that if the petitioner had not seen fit
to assert and protect his rights as he saw them, this
case would never have reached us and the taking of
his property under the challenged measure would
have become a faitaccompli despite its invalidity. We
commend him for his spirit. Without the present
challenge, the matter would have ended in that pump
boat in Masbate and another violation of the
Constitution, for all its obviousness, would have been
perpetrated, allowed without protest, and soon
forgotten in the limbo of relinquished rights.

The strength of democracy lies not in the rights it

guarantees but in the courage of the people to invoke
them whenever they are ignored or violated. Rights
are but weapons on the wall if, like expensive
tapestry, all they do is embellish and impress. Rights,
as weapons, must be a promise of protection. They
become truly meaningful, and fulfill the role assigned
to them in the free society, if they are kept bright and
sharp with use by those who are not afraid to assert
them.

WHEREFORE, Executive Order No. 626-A is hereby

declared unconstitutional. Except as affirmed above,
the decision of the Court of Appeals is reversed.
The supersedeas bond is cancelled and the amount
thereof is ordered restored to the petitioner. No costs. 

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez,

Jr., Paras, Gancayco, Padilla Bidin Sarmiento and
Cortes, JJ., concur.

Melencio-Herrera and Feliciano, JJ., are on leave.

 Maasin approved Municipal Ordinance No. 98-01,
entitled "The Municipal Revised Revenue Code." The
Code contained a provision for increased rentals for
the stalls and the imposition of goodwill fees in the
amount of ₱20,000.00 and ₱15,000.00 for stalls
located on the first and second floors of the municipal
public market, respectively. The same Code
authorized respondent to enter into lease contracts
over the said market stalls,5 and incorporated a
standard contract of lease for the stall holders at the
municipal public market. 

Only a month later, on 18 September 1998,

the Sangguniang Bayan of Maasin approved
Resolution No. 68, series of 1998,6 moving to have
the meeting dated 11 August 1998 declared
inoperative as a public hearing, because majority of
the persons affected by the imposition of the goodwill
fee failed to agree to the said measure. However,
G.R. No. 182065               October 27, 2009 Resolution No. 68, series of 1998, of
the Sangguniang Bayan of Maasin was vetoed by
EVELYN ONGSUCO and ANTONIA respondent on 30 September 1998.7
SALAYA, Petitioners, 
vs. After Municipal Ordinance No. 98-01 was approved
HON. MARIANO M. MALONES, both in his private on 17 August 1998, another purported public hearing
and official capacity as Mayor of the Municipality was held on 22 January 1999.8
of Maasin, Iloilo, Respondent.
On 9 June 1999, respondent wrote a letter to
DECISION petitioners informing them that they were occupying
stalls in the newly renovated municipal public market
CHICO-NAZARIO, J.: without any lease contract, as a consequence of
which, the stalls were considered vacant and open for
qualified and interested applicants.9
This is a Petition for Review on Certiorari under Rule
45 of the Rules of Court, assailing the Decision1 dated
28 November 2006, rendered by the Court of Appeals This prompted petitioners, together with other similarly
in CA-G.R. SP No. 86182, which affirmed the situated stall holders at the municipal public
Decision2 dated 15 July 2003, of the Regional Trial market,10 to file before the RTC on 25 June 1999 a
Court (RTC), Branch 39, of Iloilo City, in Civil Case Petition for Prohibition/Mandamus, with Prayer for
No. 25843, dismissing the special civil action for Issuance of Temporary Restraining Order and/or Writ
Mandamus/Prohibition with Prayer for Issuance of a of Preliminary Injunction,11 against respondent. The
Temporary Restraining Order and/or Writ of Petition was docketed as Civil Case No. 25843. 
Preliminary Injunction, filed by petitioners Evelyn
Ongsuco and Antonia Salaya against respondent Petitioners alleged that they were bona fide occupants
Mayor Mariano Malones of the Municipality of Maasin, of the stalls at the municipal public market, who had
Iloilo. been religiously paying the monthly rentals for the
stalls they occupied. 
Petitioners are stall holders at the Maasin Public
Market, which had just been newly renovated. In a Petitioners argued that public hearing was mandatory
letter3 dated 6 August 1998, the Office of the in the imposition of goodwill fees. Section 186 of the
Municipal Mayor informed petitioners of a meeting Local Government Code of 1991 provides that an
scheduled on 11 August 1998 concerning the ordinance levying taxes, fees, or charges shall not be
municipal public market. Revenue measures were enacted without any prior hearing conducted for the
discussed during the said meeting, including the purpose. Municipal Ordinance No. 98-01, imposing
increase in the rentals for the market stalls and the goodwill fees, is invalid on the ground that the
imposition of "goodwill fees" in the amount of conferences held on 11 August 1998 and 22 January
₱20,000.00,4payable every month. 1999 could not be considered public hearings.
According to Article 277(b)(3) of the Implementing
On 17 August 1998, the Sangguniang Bayan of Rules and Regulations of the Local Government
Code: July 2003 dismissing the Petition in Civil Case No.
25843. 
(3) The notice or notices shall specify the date or
dates and venue of the public hearing or hearings. The RTC found that petitioners could not avail
The initial public hearing shall be held not earlier than themselves of the remedy of mandamus or
ten (10) days from the sending out of the notice or prohibition. It reasoned that mandamus would not lie
notices, or the last day of publication, or date of in this case where petitioners failed to show a clear
posting thereof, whichever is later. (Emphasis ours.) legal right to the use of the market stalls without
paying the goodwill fees imposed by the municipal
The letter from the Office of the Municipal Mayor was government. Prohibition likewise would not apply to
sent to stall holders on 6 August 1998, informing the the present case where respondent’s acts, sought to
latter of the meeting to be held, as was in fact held, on be enjoined, did not involve the exercise of judicial or
11 August 1998, only five days after notice.12 quasi-judicial functions. 

Hence, petitioners prayed that respondent be The RTC also dismissed the Petition in Civil Case No.
enjoined from imposing the goodwill fees pending the 25843 on the ground of non-exhaustion of
determination of the reasonableness thereof, and administrative remedies. Petitioners’ failure to
from barring petitioners from occupying the stalls at question the legality of Municipal Ordinance No. 98-01
the municipal public market and continuing with the before the Secretary of Justice, as provided under
operation of their businesses.  Section 187 of the Local Government
Code,15 rendered the Petition raising the very same
Respondent, in answer, maintained that Municipal issue before the RTC premature. 
Ordinance No. 98-01 is valid. He reasoned that
Municipal Ordinance No. 98-01 imposed goodwill fees The dispositive part of the RTC Decision dated 15
to raise income to pay for the loan obtained by the July 2003 reads:
Municipality of Maasin for the renovation of its public
market. Said ordinance is not per se a tax or revenue WHEREFORE, in view of all the foregoing, and
measure, but involves the operation and management finding the petition without merit, the same is, as it is
of an economic enterprise of the Municipality of hereby ordered, dismissed. 16
Maasin as a local government unit; thus, there was no
mandatory requirement to hold a public hearing for On 12 August 2003, petitioners and their co-plaintiffs
the enactment thereof. And, even granting that a filed a Motion for Reconsideration.17 The RTC denied
public hearing was required, respondent insisted that petitioners’ Motion for Reconsideration in a Resolution
public hearings take place on 11 August 1998 and 22 dated 18 June 2004.18
January 1999.
While Civil Case No. 25843 was pending, respondent
Respondent further averred that petitioners were filed before the 12th Municipal Circuit Trial Court
illegally occupying the market stalls, and the only way (MCTC) of Cabatuan-Maasin, Iloilo City a case in
petitioners could legitimize their occupancy of said behalf of the Municipality of Maasin against petitioner
market stalls would be to execute lease contracts with Evelyn Ongsuco, entitled Municipality of Maasin v.
the Municipality of Maasin. While respondent admitted Ongsuco, a Complaint for Unlawful Detainer with
that petitioners had been paying rentals for their Damages, docketed as MCTC Civil Case No. 257. On
market stalls in the amount of ₱45.00 per month prior 18 June 2002, the MCTC decided in favor of the
to the renovation of the municipal public market, Municipality of Maasin and ordered petitioner
respondent asserted that no rentals were paid or Ongsuco to vacate the market stalls she occupied,
collected from petitioners ever since the renovation Stall No. 1-03 and Stall No. 1-04, and to pay monthly
began.  rentals in the amount of ₱350.00 for each stall from
October 2001 until she vacates the said market
Respondent sought from the RTC an award for moral stalls.19 On appeal, Branch 36 of the RTC of Maasin,
damages in the amount of not less than ₱500,000.00, Iloilo City, promulgated a Decision, dated 29 April
for the social humiliation and hurt feelings he suffered 2003, in a case docketed as Civil Case No. 02-
by reason of the unjustified filing by petitioners of Civil 27229 affirming the decision of the MCTC. A Writ of
Case No. 25843; and an order for petitioners to Execution was issued by the MCTC on 8 December
vacate the renovated market stalls and pay 2003.20
reasonable rentals from the date they began to
occupy said stalls until they vacate the same. 13 Petitioners, in their appeal before the Court of
Appeals, docketed as CA-G.R. SP No. 86182,
The RTC subsequently rendered a Decision14 on 15 challenged the dismissal of their Petition for
Prohibition/Mandamus docketed as Civil Case No. WHETHER OR NOT THE PETITIONERS
25843 by the RTC. Petitioners explained that they did HAVE EXHAUSTED ADMINISTRATIVE
appeal the enactment of Municipal Ordinance No. 98- REMEDIES BEFORE FILING THE INSTANT
01 before the Department of Justice, but their appeal CASE IN COURT;
was not acted upon because of their failure to attach a
copy of said municipal ordinance. Petitioners claimed II
that one of their fellow stall holders, Ritchelle
Mondejar, wrote a letter to the Officer-in-Charge WHETHER OR NOT EXHAUSTION OF
(OIC), Municipal Treasurer of Maasin, requesting a ADMINISTRATIVE REMEDIES IS
copy of Municipal Ordinance No. 98-01, but received APPLICABLE IN THIS CASE; AND
no reply.21
III
In its Decision dated 28 November 2006 in CA-G.R.
SP No. 86182, the Court of Appeals again ruled in
WHETHER OR NOT THE APPELLEE
respondent’s favor. 
MARIANO MALONES WHO WAS THEN THE
MUNICIPAL MAYOR OF MAASIN, ILOILO
The Court of Appeals declared that the "goodwill fee" HAS COMMITTED GRAVE ABUSE OF
was a form of revenue measure, which the DISCRETION.25
Municipality of Maasin was empowered to impose
under Section 186 of the Local Government Code.
After a close scrutiny of the circumstances that gave
Petitioners failed to establish any grave abuse of
rise to this case, the Court determines that there is no
discretion committed by respondent in enforcing
need for petitioners to exhaust administrative
goodwill fees. 
remedies before resorting to the courts.
The Court of Appeals additionally held that even if
The findings of both the RTC and the Court of
respondent acted in grave abuse of discretion,
Appeals that petitioners’ Petition for
petitioners’ resort to a petition for prohibition was
Prohibition/Mandamus in Civil Case No. 25843 was
improper, since respondent’s acts in question herein
premature is anchored on Section 187 of the Local
did not involve the exercise of judicial, quasi-judicial,
Government Code, which reads:
or ministerial functions, as required under Section 2,
Rule 65 of the Rules of Court. Also, the filing by
petitioners of the Petition for Prohibition/Mandamus Section 187. Procedure for Approval and Effectivity of
before the RTC was premature, as they failed to Tax Ordinances and Revenue Measures; Mandatory
exhaust administrative remedies prior thereto. The Public Hearings.—The procedure for approval of local
appellate court did not give any weight to petitioners’ tax ordinances and revenue measures shall be in
assertion that they filed an appeal challenging the accordance with the provisions of this Code:
legality of Municipal Ordinance No. 98-01 before the Provided, That public hearings shall be conducted for
Secretary of Justice, as no proof was presented to the purpose prior to the enactment thereof: Provided,
support the same.  further, That any question on the constitutionality or
legality of tax ordinances or revenue measures may
be raised on appeal within thirty (30) days from the
In the end, the Court of Appeals decreed:
effectivity thereof to the Secretary of Justice who shall
render a decision within sixty (60) days from the date
WHEREFORE, in view of the foregoing, this Court of receipt of the appeal: Provided, however, That such
finds the instant appeal bereft of merit. The assailed appeal shall not have the effect of suspending the
decision dated July 15, 2003 as well as the effectivity of the ordinance and the accrual and
subsequent resolution dated 18 June 2004 are hereby payment of the tax, fee, or charge levied therein:
AFFIRMED and the instant appeal is hereby Provided, finally, That within thirty (30) days after
DISMISSED. 22 receipt of the decision or the lapse of the sixty-day
period without the Secretary of Justice acting upon
Petitioners filed a Motion for Reconsideration23 of the the appeal, the aggrieved party may file appropriate
foregoing Decision, but it was denied by the Court of proceedings with a court of competent jurisdiction.
Appeals in a Resolution24 dated 8 February 2008. (Emphasis ours.)

Hence, the present Petition, where petitioners raise It is true that the general rule is that before a party is
the following issues: allowed to seek the intervention of the court, he or she
should have availed himself or herself of all the
I means of administrative processes afforded him or
her. Hence, if resort to a remedy within the
administrative machinery can still be made by giving (2) Review, revise, reverse, modify or affirm on appeal
the administrative officer concerned every opportunity or certiorari, as the law or the Rules of Court may
to decide on a matter that comes within his or her provide, final judgments and orders of lower courts in:
jurisdiction, then such remedy should be exhausted
first before the court’s judicial power can be sought. (a) All cases in which the constitutionality or validity of
The premature invocation of the intervention of the any treaty, international or executive agreement, law,
court is fatal to one’s cause of action. The doctrine of presidential decree, proclamation, order, instruction,
exhaustion of administrative remedies is based on ordinance, or regulation is in question. (Emphases
practical and legal reasons. The availment of ours.)
administrative remedy entails lesser expenses and
provides for a speedier disposition of controversies. In J.M. Tuason and Co., Inc. v. Court of
Furthermore, the courts of justice, for reasons of Appeals,29 Ynot v. Intermediate Appellate Court,30 and
comity and convenience, will shy away from a dispute Commissioner of Internal Revenue v. Santos,31 the
until the system of administrative redress has been Court has affirmed the jurisdiction of the RTC to
completed and complied with, so as to give the resolve questions of constitutionality and validity of
administrative agency concerned every opportunity to laws (deemed to include local ordinances) in the first
correct its error and dispose of the case. However, instance, without deciding questions which pertain to
there are several exceptions to this rule. 26 legislative policy.

The rule on the exhaustion of administrative remedies Although not raised in the Petition at bar, the Court is
is intended to preclude a court from arrogating unto compelled to discuss another procedural issue,
itself the authority to resolve a controversy, the specifically, the declaration by the RTC, and affirmed
jurisdiction over which is initially lodged with an by the Court of Appeals, that petitioners availed
administrative body of special competence. Thus, a themselves of the wrong remedy in filing a Petition for
case where the issue raised is a purely legal question, Prohibition/Mandamus before the RTC. 
well within the competence; and the jurisdiction of the
court and not the administrative agency, would clearly
Sections 2 and 3, Rule 65 of the Rules of the Rules of
constitute an exception.27 Resolving questions of law,
Court lay down under what circumstances petitions for
which involve the interpretation and application of
prohibition and mandamus may be filed, to wit:
laws, constitutes essentially an exercise of judicial
power that is exclusively allocated to the Supreme
Court and such lower courts the Legislature may SEC. 2. Petition for prohibition. – When the
establish. 28 proceedings of any tribunal, corporation, board, officer
or person, whether exercising judicial, quasi-judicial or
ministerial functions, are without or in excess of its or
In this case, the parties are not disputing any factual
his jurisdiction, or with grave abuse of discretion
matter on which they still need to present evidence.
amounting to lack or excess of jurisdiction, and there
The sole issue petitioners raised before the RTC in
is no appeal or any other plain, speedy, and adequate
Civil Case No. 25843 was whether Municipal
remedy in the ordinary course of law, a person
Ordinance No. 98-01 was valid and enforceable
aggrieved thereby may file a verified petition in the
despite the absence, prior to its enactment, of a public
proper court, alleging the facts with certainty and
hearing held in accordance with Article 276 of the
praying that judgment be rendered commanding the
Implementing Rules and Regulations of the Local
respondent to desist from further proceedings in the
Government Code. This is undoubtedly a pure
action or matter specified therein, or otherwise
question of law, within the competence and
granting such incidental reliefs as law and justice may
jurisdiction of the RTC to resolve.
require. 
Paragraph 2(a) of Section 5, Article VIII of the
SEC. 3. Petition for mandamus. – When any tribunal,
Constitution, expressly establishes the appellate
corporation, board, officer or person unlawfully
jurisdiction of this Court, and impliedly recognizes the
neglects the performance of an act which the law
original jurisdiction of lower courts over cases
specifically enjoins as a duty resulting from an office,
involving the constitutionality or validity of an
trust, or station, or unlawfully excludes another from
ordinance:
the use and enjoyment of a right or office to which
such other is entitled, and there is no other plain,
Section 5. The Supreme Court shall have the speedy and adequate remedy in the ordinary course
following powers: of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts
xxxx with certainty and praying that judgment be rendered
commanding the respondent, immediately or at some
other time to be specified by the court, to do the act The Court holds that respondent herein is performing
required to be done to protect the rights of the a ministerial function.
petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the It bears to emphasize that Municipal Ordinance No.
respondent. (Emphases ours.) 98-01 enjoys the presumption of validity, unless
declared otherwise. Respondent has the duty to carry
In a petition for prohibition against any tribunal, out the provisions of the ordinance under Section 444
corporation, board, or person -- whether exercising of the Local Government Code: 
judicial, quasi-judicial, or ministerial functions -- who
has acted without or in excess of jurisdiction or with Section 444. The Chief Executive: Powers, Duties,
grave abuse of discretion, the petitioner prays that Functions and Compensation. – (a) The Municipal
judgment be rendered, commanding the mayor, as the chief executive of the municipal
respondent to desist from further proceeding in the government, shall exercise such powers and perform
action or matter specified in the petition.32 On the such duties and functions as provided by this Code
other hand, the remedy of mandamus lies to and other laws.
compelperformance of a ministerial duty.33 The
petitioner for such a writ should have a well-defined, (b) For efficient, effective and economical governance
clear and certain legal right to the performance of the the purpose of which is the general welfare of the
act, and it must be the clear and imperative duty of municipality and its inhabitants pursuant to Section 16
respondent to do the act required to be done.34 of this Code, the Municipal mayor shall:

In this case, petitioners’ primary intention is to prevent xxxx

respondent from implementing Municipal Ordinance
No. 98-01, i.e., by collecting the goodwill fees from
(2) Enforce all laws and ordinances relative to the
petitioners and barring them from occupying the stalls
governance of the municipality and the exercise of its
at the municipal public market. Obviously, the writ
corporate powers provided for under Section 22 of
petitioners seek is more in the nature of prohibition
this Code, implement all approved policies, programs,
(commanding desistance), rather than mandamus
projects, services and activities of the municipality x x
(compelling performance).
x.
For a writ of prohibition, the requisites are: (1) the
xxxx
impugned act must be that of a "tribunal, corporation,
board, officer, or person, whether exercising judicial,
quasi-judicial or ministerial functions"; and (2) there is (3) Initiate and maximize the generation of resources
no plain, speedy, and adequate remedy in the and revenues, and apply the same to the
ordinary course of law."35 implementation of development plans, program
objectives sand priorities as provided for under
Section 18 of this Code, particularly those resources
The exercise of judicial function consists of the power
and revenues programmed for agro-industrial
to determine what the law is and what the legal rights
development and country-wide growth and progress,
of the parties are, and then to adjudicate upon the
and relative thereto, shall:
rights of the parties. The term quasi-judicial function
applies to the action and discretion of public
administrative officers or bodies that are required to xxxx
investigate facts or ascertain the existence of facts,
hold hearings, and draw conclusions from them as a (iii) Ensure that all taxes and other revenues of the
basis for their official action and to exercise discretion municipality are collected, and that municipal funds
of a judicial nature. In implementing Municipal are applied in accordance with law or ordinance to the
Ordinance No. 98-01, respondent is not called upon to payment of expenses and settlement of obligations of
adjudicate the rights of contending parties or to the municipality; x x x. (Emphasis ours.)
exercise, in any manner, discretion of a judicial
nature.  Municipal Ordinance No. 98-01 imposes increased
rentals and goodwill fees on stall holders at the
A ministerial function is one that an officer or tribunal renovated municipal public market, leaving
performs in the context of a given set of facts, in a respondent, or the municipal treasurer acting as his
prescribed manner and without regard for the exercise alter ego, no discretion on whether or not to collect
of his or its own judgment, upon the propriety or the said rentals and fees from the stall holders, or
impropriety of the act done.36 whether or to collect the same in the amounts fixed by
the ordinance. 
The Court further notes that respondent already not consist of taxes alone, but also other fees and
deemed petitioners’ stalls at the municipal public charges. And rentals and goodwill fees, imposed by
market vacated. Without such stalls, petitioners would Municipal Ordinance No. 98-01 for the occupancy of
be unable to conduct their businesses, thus, depriving the stalls at the municipal public market, fall under the
them of their means of livelihood. It is imperative on definition of charges. 
petitioners’ part to have the implementation of
Municipal Ordinance No. 98-01 by respondent For the valid enactment of ordinances imposing
stopped the soonest. As this Court has established in charges, certain legal requisites must be met. Section
its previous discussion, there is no more need for 186 of the Local Government Code identifies such
petitioners to exhaust administrative remedies, requisites as follows:
considering that the fundamental issue between them
and respondent is one of law, over which the courts Section 186. Power to Levy Other Taxes, Fees or
have competence and jurisdiction. There is no other Charges.—Local government units may exercise the
plain, speedy, and adequate remedy for petitioners in power to levy taxes, fees or charges on any base or
the ordinary course of law, except to seek from the subject not otherwise specifically enumerated herein
courts the issuance of a writ of prohibition or taxed under the provisions of the National Internal
commanding respondent to desist from continuing to Revenue Code, as amended, or other applicable
implement what is allegedly an invalid ordinance. 1 a vv p h i 1

laws: Provided, That the taxes, fees or charges shall

not be unjust, excessive, oppressive, confiscatory or
This brings the Court to the substantive issue in this contrary to declared national policy: Provided, further,
Petition on the validity of Municipal Ordinance N. 98- That the ordinance levying such taxes, fees or
01.  charges shall not be enacted without any prior public
hearing conducted for the purpose. (Emphasis ours.)
Respondent maintains that the imposition of goodwill
fees upon stall holders at the municipal public market Section 277 of the Implementing Rules and
is not a revenue measure that requires a prior public Regulations of the Local Government Code
hearing. Rentals and other consideration for establishes in detail the procedure for the enactment
occupancy of the stalls at the municipal public market of such an ordinance, relevant provisions of which are
are not matters of taxation.  reproduced below:

Respondent’s argument is specious.  Section 277. Publication of Tax Ordinance and

Revenue Measures.—x x x. 
Article 219 of the Local Government Code provides
that a local government unit exercising its power to x x x x 
impose taxes, fees and charges should comply with
the requirements set in Rule XXX, entitled "Local (b) The conduct of public hearings shall be governed
Government Taxation": by the following procedure:

Article 219. Power to Create Sources of Revenue.— xxxx

Consistent with the basic policy of local autonomy,
each LGU shall exercise its power to create its own
(2) In addition to the requirement for publication or
sources of revenue and to levy taxes, fees, or
posting, the sanggunian concerned shall cause the
charges, subject to the provisions of this Rule. Such
sending of written notices of the proposed ordinance,
taxes, fees, or charges shall accrue exclusively to the
enclosing a copy thereof, to the interested or affected
LGU. (Emphasis ours.)
parties operating or doing business within the
territorial jurisdiction of the LGU concerned.
Article 221(g) of the Local Government Code of 1991
defines "charges" as:
(3) The notice or notices shall specify the date or
dates and venue of the public hearing or hearings.
Article 221. Definition of Terms. The initial public hearing shall be held not earlier than
ten (10) days from the sending out of the notice or
x x x x  notices, or the last day of publication, or date of
posting thereof, whichever is later;
(g) Charges refer to pecuniary liability, as rents or
fees against persons or property. (Emphasis ours.) xxxx

Evidently, the revenues of a local government unit do (c) No tax ordinance or revenue measure shall be
enacted or approved in the absence of a public ordinance. Petitioners are also DECLARED as lawful
hearing duly conducted in the manner provided under occupants of the market stalls they occupied at the
this Article. (Emphases ours.) time they filed the Petition for Mandamus/Prohibition
docketed as Civil Case No. 25843. In the event that
It is categorical, therefore, that a public hearing be they were deprived of possession of the said market
held prior to the enactment of an ordinance levying stalls, petitioners are entitled to recover possession of
taxes, fees, or charges; and that such public hearing these stalls.
be conducted as provided under Section 277 of the
Implementing Rules and Regulations of the Local SO ORDERED.
Government Code. 
MINITA V. CHICO-NAZARIO
There is no dispute herein that the notices sent to Associate Justice
petitioners and other stall holders at the municipal
public market were sent out on 6 August 1998,
informing them of the supposed "public hearing" to be
held on 11 August 1998. Even assuming that
petitioners received their notice also on 6 August
1998, the "public hearing" was already scheduled,
and actually conducted, only five days later, on 11
August 1998. This contravenes Article 277(b)(3) of the
Implementing Rules and Regulations of the Local
Government Code which requires that the public
hearing be held no less than ten days from the time
the notices were sent out, posted, or published. 

When the Sangguniang Bayan of Maasin sought to

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

The defect in the enactment of Municipal Ordinance

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

Since no public hearing had been duly conducted

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

IN VIEW OF THE FOREGOING, the instant Petition is

GRANTED. The assailed Decision dated 28
November 2006 of the Court of Appeals in CA-G.R.
SP No. 86182 is REVERSED and SET ASIDE.
Municipal Ordinance No. 98-01 is DECLARED void
and ineffective, and a writ of prohibition is ISSUED
commanding the Mayor of the Municipality of Maasin,
Iloilo, to permanently desist from enforcing the said
 had never been. It was oblivious to the force of the
principle adopted by this Court that while a statute's
repugnancy to the fundamental law deprives it of its
character as a juridical norm, its having been
operative prior to its being nullified is a fact that is not
devoid of legal consequences. As will hereafter be
explained, such a failing of the lower court resulted in
an erroneous decision. We find for appellant
Philippine National Bank, and we reverse.

There is no dispute as to the facts. Plaintiff obtained

the loan in the amount of P450.00 from defendant
Bank dated July 19, 1939, maturing on July 19, 1944,
secured by real estate mortgage duly registered
covering property described in T.C.T. No. 11275 of
the province of Pangasinan. As of November 27,
1959, the balance due on said loan was in the amount
of P1,294.00. As early as July 13 of the same year,
G.R. No. L-23127 April 29, 1971 defendant instituted extra-judicial foreclosure
proceedings in the office of defendant Provincial
FRANCISCO SERRANO DE AGBAYANI, plaintiff- Sheriff of Pangasinan for the recovery of the balance
appellee,  of the loan remaining unpaid. Plaintiff countered with
vs. his suit against both defendants on August 10, 1959,
PHILIPPINE NATIONAL BANK and THE her main allegation being that the mortgage sought to
PROVINCIAL SHERIFF OF PANGASINAN, be foreclosed had long prescribed, fifteen years
defendants, PHILIPPINE NATIONAL having elapsed from the date of maturity, July 19,
BANK, defendant-appellant. 1944. She sought and was able to obtain a writ of
preliminary injunction against defendant Provincial
Dionisio E. Moya for plaintiff-appellee.  Sheriff, which was made permanent in the decision
now on appeal. Defendant Bank in its answer prayed
for the dismissal of the suit as even on plaintiff's own
Ramon B. de los Reyes for defendant-appellant. theory the defense of prescription would not be
available if the period from March 10, 1945, when
Executive Order No. 32  was issued, to July 26, 1948,
1

when the subsequent legislative act  extending the

2

FERNANDO, J.: period of moratorium was declared invalid, were to be

deducted from the computation of the time during
A correct appreciation of the controlling doctrine as to which the bank took no legal steps for the recovery of
the effect, if any, to be attached to a statute the loan. As noted, the lower court did not find such
subsequently adjudged invalid, is decisive of this contention persuasive and decided the suit in favor of
appeal from a lower court decision. Plaintiff Francisco plaintiff.
Serrano de Agbayani, now appellee, was able to
obtain a favorable judgment in her suit against Hence this appeal, which, as made clear at the outset,
defendant, now appellant Philippine National Bank, possesses merit, there being a failure on the part of
permanently enjoining the other defendant, the the lower court to adhere to the applicable
Provincial Sheriff of Pangasinan, from proceeding with constitutional doctrine as to the effect to be given to a
an extra-judicial foreclosure sale of land belonging to statute subsequently declared invalid.
plaintiff mortgaged to appellant Bank to secure a loan
declared no longer enforceable, the prescriptive 1. The decision now on appeal reflects the orthodox
period having lapsed. There was thus a failure to view that an unconstitutional act, for that matter an
sustain the defense raised by appellant that if the executive order or a municipal ordinance likewise
moratorium under an Executive Order and later an Act suffering from that infirmity, cannot be the source of
subsequently found unconstitutional were to be any legal rights or duties. Nor can it justify any official
counted in the computation, then the right to foreclose act taken under it. Its repugnancy to the fundamental
the mortgage was still subsisting. In arriving at such a law once judicially declared results in its being to all
conclusion, the lower court manifested a tenacious intents and purposes a mere scrap of paper. As the
adherence to the inflexible view that an new Civil Code puts it: "When the courts declare a law
unconstitutional act is not a law, creating no rights and to be inconsistent with the Constitution, the former
imposing no duties, and thus as inoperative as if it shall be void and the latter shall govern.
Administrative or executive acts, orders and oppression. It may be of course that if challenged, an
regulations shall be valid only when they are not adverse judgment could be the result, as its running
contrary to the laws of the Constitution.  It is
3
counter to the Constitution could still be shown. In the
understandable why it should be so, the Constitution meanwhile though, in the normal course of things, it
being supreme and paramount. Any legislative or has been acted upon by the public and accepted as
executive act contrary to its terms cannot survive. valid. To ignore such a fact would indeed be the
fruitful parent of injustice. Moreover, as its
Such a view has support in logic and possesses the constitutionality is conditioned on its being fair or
merit of simplicity. It may not however be sufficiently reasonable, which in turn is dependent on the actual
realistic. It does not admit of doubt that prior to the situation, never static but subject to change, a
declaration of nullity such challenged legislative or measure valid when enacted may subsequently, due
executive act must have been in force and had to be to altered circumstances, be stricken down.
complied with. This is so as until after the judiciary, in
an appropriate case, declares its invalidity, it is That is precisely what happened in connection with
entitled to obedience and respect. Parties may have Republic Act No. 342, the moratorium legislation,
acted under it and may have changed their positions. which continued Executive Order No. 32, issued by
What could be more fitting than that in a subsequent the then President Osmeña, suspending the
litigation regard be had to what has been done while enforcement of payment of all debts and other
such legislative or executive act was in operation and monetary obligations payable by war sufferers. So it
presumed to be valid in all respects. It is now was explicitly held in Rutter v. Esteban where such
8

accepted as a doctrine that prior to its being nullified, enactment was considered in 1953 "unreasonable
its existence as a fact must be reckoned with. This is and oppressive, and should not be prolonged a
merely to reflect awareness that precisely because minute longer, and, therefore, the same should be
the judiciary is the governmental organ which has the declared null and void and without effect."  At the time
9

final say on whether or not a legislative or executive of the issuance of the above Executive Order in 1945
measure is valid, a period of time may have elapsed and of the passage of such Act in 1948, there was a
before it can exercise the power of judicial review that factual justification for the moratorium. The Philippines
may lead to a declaration of nullity. It would be to was confronted with an emergency of impressive
deprive the law of its quality of fairness and justice magnitude at the time of her liberation from the
then, if there be no recognition of what had transpired Japanese military forces in 1945. Business was at a
prior to such adjudication. standstill. Her economy lay prostrate. Measures,
radical measures, were then devised to tide her over
In the language of an American Supreme Court until some semblance of normalcy could be restored
decision: "The actual existence of a statute, prior to and an improvement in her economy noted. No
such a determination [of unconstitutionality], is an wonder then that the suspension of enforcement of
operative fact and may have consequences which payment of the obligations then existing was declared
cannot justly be ignored. The past cannot always be first by executive order and then by legislation. The
erased by a new judicial declaration. The effect of the Supreme Court was right therefore in rejecting the
subsequent ruling as to invalidity may have to be contention that on its face, the Moratorium Law was
considered in various aspects, with respect to unconstitutional, amounting as it did to the impairment
particular relations, individual and corporate, and of the obligation of contracts. Considering the
particular conduct, private and official."  This language
4 circumstances confronting the legitimate government
has been quoted with approval in a resolution upon its return to the Philippines, some such remedial
in Araneta v. Hill  and the decision in Manila Motor
5 device was needed and badly so. An unyielding
Co., Inc. v. Flores.  An even more recent instance is
6 insistence then on the rights to property on the part of
the opinion of Justice Zaldivar speaking for the Court the creditors was not likely to meet with judicial
in Fernandez v. Cuerva and Co. 7 sympathy. Time passed however, and conditions did
change.
2. Such an approach all the more commends itself
whenever police power legislation intended to When the legislation was before this Court in 1953,
promote public welfare but adversely affecting the question before it was its satisfying the rational
property rights is involved. While subject to be basis test, not as of the time of its enactment but as of
assailed on due process, equal protection and non- such date. Clearly, if then it were found unreasonable,
impairment grounds, all that is required to avoid the the right to non-impairment of contractual obligations
corrosion of invalidity is that the rational basis or must prevail over the assertion of community power to
reasonableness test is satisfied. The legislature on remedy an existing evil. The Supreme Court was
the whole is not likely to allow an enactment suffering, convinced that such indeed was the case. As stated in
to paraphrase Cardozo, from the infirmity of out the opinion of Justice Bautista Angelo: "But we should
running the bounds of reason and resulting in sheer not lose sight of the fact that these obligations had
been pending since 1945 as a result of the issuance from March 10, 1945, the effectivity of Executive
of Executive Orders Nos. 25 and 32 and at present Order No. 32, to May 18, 1953, when the decision
their enforcement is still inhibited because of the of Rutter v. Esteban was promulgated, covering eight
enactment of Republic Act No. 342 and would years, two months and eight days. Obviously then,
continue to be unenforceable during the eight-year when resort was had extra-judicially to the foreclosure
period granted to prewar debtors to afford them an of the mortgage obligation, there was time to spare
opportunity to rehabilitate themselves, which in plain before prescription could be availed of as a defense.
language means that the creditors would have to
observe a vigil of at least twelve (12) years before WHEREFORE, the decision of January 27, 1960 is
they could affect a liquidation of their investment reversed and the suit of plaintiff filed August 10, 1959
dating as far back as 1941. This period seems to us dismissed. No costs.
unreasonable, if not oppressive. While the purpose of
Congress is plausible, and should be commended, Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal,
the relief accorded works injustice to creditors who Zaldivar, Castro, Teehankee, Barredo, Villamor, and
are practically left at the mercy of the debtors. Their Makasiar, JJ., concur.
hope to effect collection becomes extremely remote,
more so if the credits are unsecured. And the injustice
is more patent when, under the law the debtor is not
even required to pay interest during the operation of
the relief, unlike similar statutes in the United
States.   The conclusion to which the foregoing
10

considerations inevitably led was that as of the time of

adjudication, it was apparent that Republic Act No.
342 could not survive the test of validity. Executive
Order No. 32 should likewise be nullified. That before
the decision they were not constitutionally infirm was
admitted expressly. There is all the more reason then
to yield assent to the now prevailing principle that the
existence of a statute or executive order prior to its
being adjudged void is an operative fact to which legal
consequences are attached.

3. Precisely though because of the judicial recognition

that moratorium was a valid governmental response
to the plight of the debtors who were war sufferers,
this Court has made clear its view in a series of cases
impressive in their number and unanimity that during
the eight-year period that Executive Order No. 32 and
Republic Act No. 342 were in force, prescription did
not run. So it has been held from Day v. Court of
First 
Instance,   decided in 1954, to Republic v.
11

Hernaez,   handed down only last year. What is

12

deplorable is that as of the time of the lower court

decision on January 27, 1960, at least eight decisions
had left no doubt as to the prescriptive period being
tolled in the meanwhile prior to such adjudication of
invalidity.   Speaking of the opposite view entertained
13

by the lower court, the present Chief Justice, in Liboro

v. Finance and Mining Investments Corp.  has 14

categorized it as having been "explicitly and

consistently rejected by this Court."  15

The error of the lower court in sustaining plaintiff's suit

is thus manifest. From July 19, 1944, when her loan
matured, to July 13, 1959, when extra-judicial
foreclosure proceedings were started by appellant
Bank, the time consumed is six days short of fifteen
years. The prescriptive period was tolled however,
 (d) Chairman administrator - The
President shall appoint a professional
manager as administrator of the Subic
Authority with a compensation to be
determined by the Board subject to the
approval of the Secretary of Budget, who
shall be the ex oficio chairman of the
Board and who shall serve as the chief
executive officer of the Subic
Authority: Provided, however, That for
the first year of its operations from the
effectivity of this Act, the mayor of the
City of Olongapo shall be appointed as
the chairman and chief executive officer
of the Subic Authority(emphasis
supplied).

G.R. No. 104732 June 22, 1993 Petitioners, who claim to be taxpayers,
employees of the U.S. Facility at the
ROBERTO A. FLORES, DANIEL Y. Subic, Zambales, and officers and
FIGUEROA, ROGELIO T. PALO, members of the Filipino Civilian
DOMINGO A. JADLOC, CARLITO T. Employees Association in U.S. Facilities
CRUZ and MANUEL P. in the Philippines, maintain that
REYES, Petitioner, vs. HON. FRANKLIN the proviso in par. (d) of Sec. 13 herein-
M. DRILON, Executive Secretary, and above quoted in italics infringes on the
RICHARD J. GORDON, Respondents. following constitutional and statutory
provisions: (a) Sec. 7, first par., Art. IX-
Isagani M. Jungco, Valeriano S. Peralta, B, of the Constitution, which states that
Miguel Famularcano, Jr. and Virgilio E. "[n]o elective official shall be eligible for
Acierto for petitioners. appointment or designation in any
capacity to any public officer or position
BELLOSILLO, J.: during his tenure," 3because the City
Mayor of Olongapo City is an elective
The constitutionality of Sec. 13, par. (d), official and the subject posts are public
of R.A. 7227, 1otherwise known as the offices; (b) Sec. 16, Art. VII, of the
"Bases Conversion and Development Act Constitution, which provides that "[t]he
of 1992," under which respondent Mayor President shall . . . . appoint all other
Richard J. Gordon of Olongapo City was officers of the Government whose
appointed Chairman and Chief Executive appointments are not
Officer of the Subic Bay Metropolitan otherwise provided for by law, and those
Authority (SBMA), is challenged in this whom he may be authorized by law to
original petition with prayer for appoint", 4since it was Congress through
prohibition, preliminary injunction and the questioned proviso and not the
temporary restraining order "to prevent President who appointed the Mayor to
useless and unnecessary expenditures of the subject posts; 5and, (c) Sec. 261,
public funds by way of salaries and other par. (g), of the Omnibus Election Code,
operational expenses attached to the which says:
office . . . ." 2Paragraph (d) reads -
Sec. 261. Prohibited Acts. - The following
shall be guilty of an election offense: . . . Act, the mayor of the City of Olongapo
(g) Appointment of new employees, shall be appointed as the chairman and
creation of new position, promotion, or chief executive officer of the Subic
giving salary increases. - During the Authority," violates the constitutional
period of forty-five days before a regular proscription against appointment or
election and thirty days before a special designation of elective officials to other
election, (1) any head, official or government posts. chanroblesvirtualawlibrary chanrobles virtual law library

appointing officer of a government office,

agency or instrumentality, whether In full, Sec. 7 of Art. IX-B of the
national or local, including government- Constitution provides:
owned or controlled corporations, who
appoints or hires any new employee, No elective official shall be eligible for
whether provisional, temporary or appointment or designation in any
casual, or creates and fills any new capacity to any public office or position
position, except upon prior authority of during his tenure. chanroblesvirtualawlibrary chanrobles virtual law library

the Commission. The Commission shall

not grant the authority sought unless it is Unless otherwise allowed by law or by
satisfied that the position to be filled is the primary functions of his position, no
essential to the proper functioning of the appointive official shall hold any other
office or agency concerned, and that the office or employment in the Government
position shall not be filled in a manner or any subdivision, agency or
that may influence the election. As an instrumentality thereof, including
exception to the foregoing provisions, a government-owned or controlled
new employee may be appointed in case corporations or their subsidiaries.
of urgent need: Provided, however, That
notice of the appointment shall be given The section expresses the policy against
to the Commission within three days the concentration of several public
from the date of the appointment. Any positions in one person, so that a public
appointment or hiring in violation of this officer or employee may serve full-time
provision shall be null and void. (2) Any with dedication and thus be efficient in
government official who promotes, or the delivery of public services. It is an
gives any increase of salary or affirmation that a public office is a full-
remuneration or privilege to any time job. Hence, a public officer or
government official or employee, employee, like the head of an executive
including those in government-owned or department described in Civil Liberties
controlled corporations . . . . Union v. Executive Secretary, G.R. No.
83896, and Anti-Graft League of the
for the reason that the appointment of Philippines, Inc. v. Philip Ella C. Juico, as
respondent Gordon to the subject posts Secretary of Agrarian Reform, G.R. No.
made by respondent Executive Secretary 83815, 6". . . . should be allowed to
on 3 April 1992 was within the prohibited attend to his duties and responsibilities
45-day period prior to the 11 May 1992 without the distraction of other
Elections.chanroblesvirtualawlibrary chanrobles virtual law library
governmental duties or employment. He
should be precluded from dissipating his
The principal question is whether efforts, attention and energy among too
the proviso in Sec. 13, par. (d), of R.A. many positions of responsibility, which
7227 which states, "Provided, may result in haphazardness and
however, That for the first year of its inefficiency . . . ."
chanrobles virtual law library

operations from the effectivity of this

Particularly as regards the first (2) paragraphs of Sec. 7, Art. 
paragraph of Sec. 7, "(t)he basic idea IX-B, of the Constitution. While the
really is to prevent a situation where a second paragraph authorizes holding of
local elective official will work for his multiple offices by an appointive official
appointment in an executive position in when allowed by law or by the primary
government, and thus neglect his functions of his position, the first
constituents . . . ." 7 chanrobles virtual law library paragraph appears to be more stringent
by not providing any exception to the
In the case before us, the rule against appointment or designation
subject proviso directs the President to of an elective official to the government
appoint an elective official, i.e., the post, except as are particularly
Mayor of Olongapo City, to other recognized in the Constitution itself, e.g.,
government posts (as Chairman of the the President as head of the economic
Board and Chief Executive Officer of and planning agency; 9the Vice-President,
SBMA). Since this is precisely what the who may be appointed Member of the
constitutional proscription seeks to Cabinet; 10and, a member of Congress
prevent, it needs no stretching of the who may be designated ex
imagination to conclude that officio member of the Judicial and Bar
the proviso contravenes Sec. 7, first Council. 11chanrobles virtual law library

par., Art. IX-B, of the Constitution. Here,

the fact that the expertise of an elective The distinction between the first and
official may be most beneficial to the second paragraphs of Sec. 7, Art. IX-B,
higher interest of the body politic is of no was not accidental when drawn, and not
moment. chanroblesvirtualawlibrary chanrobles virtual law library without reason. It was purposely sought
by the drafters of the Constitution as
It is argued that Sec. 94 of the Local shown in their deliberation, thus -
Government Code (LGC) permits the
appointment of a local elective official to MR. MONSOD. In other words, what then
another post if so allowed by law or by Commissioner is saying, Mr. Presiding
the primary functions of his office. 8But, Officer, is that the prohibition is more
the contention is fallacious. Section 94 of strict with respect to elective officials,
the LGC is not determinative of the because in the case of appointive
constitutionality of Sec. 13, par. (d), of officials, there may be a law that will
R.A. 7227, for no legislative act can allow them to hold other positions. chanroblesvirtualawlibrary chanrobles virtual law library

prevail over the fundamental law of the

land. Moreover, since the MR. FOZ. Yes, I suggest we make that
constitutionality of Sec. 94 of LGC is not difference, because in the case of
the issue here nor is that section sought appointive officials, there will be certain
to be declared unconstitutional, we need situations where the law should allow
not rule on its validity. Neither can we them to hold some other positions. 12 chanrobles virtual law library

invoke a practice otherwise

unconstitutional as authority for its The distinction being clear, the
validity.
chanroblesvirtualawlibrary chanrobles virtual law library
exemption allowed to appointive officials
in the second paragraph cannot be
In any case, the view that an elective extended to elective officials who are
official may be appointed to another post governed by the first paragraph. chanroblesvirtualawlibrary chanrobles virtual law library

if allowed by law or by the primary

functions of his office, ignores the clear- It is further argued that the SBMA posts
cut difference in the wording of the two are merely ex officio to the position of
Mayor of Olongapo City, hence, an Rene Saguisag remarked that "if the
excepted circumstance, citing Civil Conference Committee just said "the
Liberties Union v. Executive Mayor shall be the Chairman" then that
Secretary, 13where we stated that the should foreclose the issue. It is a
prohibition against the holding of any legislative choice." 15The Senator took a
other office or employment by the view that the constitutional proscription
President, Vice-President, Members of against appointment of elective officials
the Cabinet, and their deputies or may have been sidestepped if Congress
assistants during their tenure, attached the SBMA posts to the Mayor of
as provided in Sec. 13, Art. VII, of the Olongapo City instead of directing the
Constitution, does not comprehend President to appoint him to the post.
additional duties and functions required Without passing upon this view of
by the primary functions of the officials Senator Saguisag, it suffices to state that
concerned, who are to perform them in Congress intended the posts to be
an ex officio capacity as provided by law, appointive, thus nibbling in the bud the
without receiving any additional argument that they are ex officio. chanroblesvirtualawlibrary chanrobles virtual law library

compensation therefor. chanroblesvirtualawlibrary chanrobles virtual law library

The analogy with the position of

This argument is apparently based on a Chairman of the Metro Manila Authority
wrong premise. Congress did not made by respondents cannot be applied
contemplate making the subject SBMA to uphold the constitutionality of the
posts as ex officio or automatically challenged proviso since it is not put in
attached to the Office of the Mayor of issue in the present case. In the same
Olongapo City without need of vein, the argument that if no elective
appointment. The phrase "shall be official may be appointed or designated
appointed" unquestionably shows the to another post then Sec. 8, Art. IX-B, of
intent to make the SBMA posts the Constitution allowing him to receive
appointive and not merely adjunct to the double compensation 16would be useless,
post of Mayor of Olongapo City. Had it is non sequitur since Sec. 8 does not
been the legislative intent to make the affect the constitutionality of the
subject positions ex officio, Congress subject proviso. In any case, the Vice-
would have, at least, avoided the word President for example, an elective official
"appointed" and, instead, "ex officio" who may be appointed to a cabinet post
would have been used. 14 chanrobles virtual law library under Sec. 3, Art. VII, may receive the
compensation attached to the cabinet
Even in the Senate deliberations, the position if specifically authorized by
Senators were fully aware that law.chanroblesvirtualawlibrary chanrobles virtual law library

subject proviso may contravene Sec. 7,

first par., Art. IX-B, but they Petitioners also assail the legislative
nevertheless passed the bill and decided encroachment on the appointing
to have the controversy resolved by the authority of the President. Section 13,
courts. Indeed, the Senators would not par. (d), itself vests in the President the
have been concerned with the effects of power to appoint the Chairman of the
Sec. 7, first par., had they considered Board and the Chief Executive Officer of
the SBMA posts as ex officio. chanroblesvirtualawlibrary chanrobles virtual law library SBMA, although he really has no choice
under the law but to appoint the Mayor
Cognizant of the complication that may of Olongapo City. chanroblesvirtualawlibrary chanrobles virtual law library

arise from the way the

subject proviso was stated, Senator As may be defined, an "appointment" is
"[t]he designation of a person, by the officer, it (Congress) cannot at the same
person or persons having authority time limit the choice of the President to
therefor, to discharge the duties of some only one candidate. Once the power of
office or trust," 17or "[t]he selection or appointment is conferred on the
designation of a person, by the person or President, such conferment necessarily
persons having authority therefor, to fill carries the discretion of whom to
an office or public function and discharge appoint. Even on the pretext of
the duties of the same. 18In his prescribing the qualifications of the
treatise, Philippine Political  officer, Congress may not abuse such
Law, 19Senior Associate Justice Isagani A. power as to divest the appointing
Cruz defines appointment as "the authority, directly or indirectly, of his
selection, by the authority vested with discretion to pick his own choice.
the power, of an individual who is to Consequently, when the qualifications
exercise the functions of a given office."
law library
chanrobles virtual prescribed by Congress can only be met
by one individual, such enactment
Considering that appointment calls for a effectively eliminates the discretion of
selection, the appointing power the appointing power to choose and
necessarily exercises a discretion. constitutes an irregular restriction on the
According to Woodbury, power of appointment. 24 chanrobles virtual law library

J., 20"the choice of a person to fill an

office constitutes the essence of his In the case at bar, while Congress willed
appointment," 21and Mr. Justice Malcolm that the subject posts be filled with a
adds that an "[a]ppointment to office is presidential appointee for the first year
intrinsically an executive act involving of its operations from the effectivity of
the exercise of R.A. 7227, the proviso nevertheless
discretion." 22In Pamantasan ng Lungsod limits the appointing authority to only
ng Maynila v. Intermediate Appellate one eligible, i.e., the incumbent Mayor of
Court  23we held: Olongapo City. Since only one can qualify
for the posts in question, the President is
The power to appoint is, in essence, precluded from exercising his discretion
discretionary. The appointing power has to choose whom to appoint. Such
the right of choice which he may exercise supposed power of appointment, sans
freely according to his judgment, the essential element of choice, is no
deciding for himself who is best qualified power at all and goes against the very
among those who have the necessary nature itself of appointment. chanroblesvirtualawlibrary chanrobles virtual law library

qualifications and eligibilities. It is a

prerogative of the appointing power . . . . While it may be viewed that
the proviso merely sets the qualifications
Indeed, the power of choice is the heart of the officer during the first year of
of the power to appoint. Appointment operations of SBMA, i.e., he must be the
involves an exercise of discretion of Mayor of Olongapo City, it is manifestly
whom to appoint; it is not a ministerial an abuse of congressional authority to
act of issuing appointment papers to the prescribe qualifications where only one,
appointee. In other words, the choice of and no other, can qualify. Accordingly,
the appointee is a fundamental while the conferment of the appointing
component of the appointing power. chanroblesvirtualawlibrary chanrobles virtual law library
power on the President is a perfectly
valid legislative act, the proviso limiting
Hence, when Congress clothes the his choice to one is certainly an
President with the power to appoint an encroachment on his prerogative. chanroblesvirtualawlibrary chanrobles virtual law library
Since the ineligibility of an elective disqualification or lack of eligibility. This
official for appointment remains all provision should not be confused with
throughout his tenure or during his Sec. 13, Art. VI, of the Constitution
incumbency, he may however resign first where "(n)o Senator or Member of the
from his elective post to cast off the House of Representatives may hold any
constitutionally-attached disqualification other office or employment in the
before he may be considered fit for Government . . . during his term without
appointment. The deliberation in the forfeiting his seat . . . ." The difference
Constitutional Commission is between the two provisions is significant
enlightening: in the sense that incumbent national
legislators lose their elective posts only
MR. DAVIDE. On Section 4, page 3, line after they have been appointed to
8, I propose the substitution of the word another government office, while other
"term" with TENURE. chanroblesvirtualawlibrary chanrobles virtual law library
incumbent elective officials must first
resign their posts before they can be
MR. FOZ. The effect of the proposed appointed, thus running the risk of losing
amendment is to make possible for one the elective post as well as not being
to resign from his position. chanroblesvirtualawlibrary chanrobles virtual law library
appointed to the other post. It is
therefore clear that ineligibility is not
MR. DAVIDE. Yes, we should allow that directly related with forfeiture of office. ".
prerogative. chanroblesvirtualawlibrary chanrobles virtual law library
. . . The effect is quite different where it
is expressly provided by law that a
MR. FOZ. Resign from his position to person holding one office shall be
accept an executive position. chanroblesvirtualawlibrary chanrobles virtual law library

ineligible to another. Such a provision is

held to incapacitate the incumbent of an
MR. DAVIDE. Besides, it may turn out in office from accepting or holding a second
a given case that because of, say, office (State ex rel. Van Antwerp v
incapacity, he may leave the service, but Hogan, 283 Ala. 445, 218 So 2d 258;
if he is prohibited from being appointed McWilliams v Neal, 130 Ga 733, 61 SE
within the term for which he was elected, 721) and to render his election or
we may be depriving the government of appointment to the latter office void
the needed expertise of an individual. 25
law library
chanrobles virtual

(State ex rel. Childs v Sutton, 63 Minn

147, 65 NW 262. Annotation: 40 ALR
Consequently, as long as he is an 945) or voidable (Baskin v State, 107
incumbent, an elective official remains Okla 272, 232 p 388, 40 ALR
ineligible for appointment to another 941)." 26"Where the constitution, or
public office. chanroblesvirtualawlibrary chanrobles virtual law library

statutes declare that persons holding one

office shall be ineligible for election or
Where, as in the case of respondent appointment to another office, either
Gordon, an incumbent elective official generally or of a certain kind, the
was, notwithstanding his ineligibility, prohibition has been held to incapacitate
appointed to other government posts, he the incumbent of the first office to hold
does not automatically forfeit his elective the second so that any attempt to hold
office nor remove his ineligibility imposed the second is void (Ala. - State ex rel.
by the Constitution. On the contrary, Van Antwerp v. Hogan, 218 So 2d 258,
since an incumbent elective official is not 283 Ala 445)." 27 chanrobles virtual law library

eligible to the appointive position, his

appointment or designation thereto As incumbent elective official, respondent
cannot be valid in view of his Gordon is ineligible for appointment to
the position of Chairman of the Board deliberations of S.B. 1648, precursor of
and Chief Executive of SBMA; hence, his R.A. 7227, when he articulated -
appointment thereto pursuant to a
legislative act that contravenes the . . . . (much) as we would like to have
Constitution cannot be sustained. He the present Mayor of Olongapo City as
however remains Mayor of Olongapo the Chief Executive of this Authority that
City, and his acts as SBMA official are not we are creating; (much) as I, myself,
necessarily null and void; he may be would like to because I know the
considered a de facto officer, "one whose capacity, integrity, industry and
acts, though not those of a lawful officer, dedication of Mayor Gordon; (much) as
the law, upon principles of policy and we would like to give him this terrific,
justice, will hold valid so far as they burdensome and heavy responsibility, we
involve the interest of the public and cannot do it because of the constitutional
third persons, where the duties of the prohibition which is very clear. It says:
office were exercised . . . . under color of "No elective official shall be appointed or
a known election or appointment, void designated to another position in any
because the officer was not eligible, or capacity." 29 chanrobles virtual law library

because there was a want of power in

the electing or appointing body, or by For, indeed, "a Constitution must be firm
reason of some defect or irregularity in and immovable, like a mountain amidst
its exercise, such ineligibility, want of the strife of storms or a rock in the ocean
power or defect being unknown to the amidst the raging of the waves." 30One of
public . . . . [or] under color of an the characteristics of the Constitution is
election, or appointment, by or pursuant permanence, i.e., "its capacity to resist
to a public unconstitutional law, before capricious or whimsical change dictated
the same is adjudged to be such (State not by legitimate needs but only by
vs. Carroll, 38 Conn., 499; Wilcox vs. passing fancies, temporary passions or
Smith, 5 Wendell [N.Y.], 231; 21 Am. occasional infatuations of the people with
Dec., 213; Sheehan's Case, 122 Mass, ideas or personalities . . . . Such a
445, 23 Am. Rep., 323)." 28 chanrobles virtual law library
Constitution is not likely to be easily
tampered with to suit political
Conformably with our ruling in Civil expediency, personal ambitions or ill-
Liberties Union, any and all per diems, advised agitation for change." 31 chanrobles virtual law library

allowances and other emoluments which

may have been received by respondent Ergo, under the Constitution, Mayor
Gordon pursuant to his appointment may Gordon has a choice. We have no
be retained by him. chanroblesvirtualawlibrary chanrobles virtual law library
choice.chanroblesvirtualawlibrary chanrobles virtual law library

The illegality of his appointment to the WHEREFORE, the proviso in par. (d),

SBMA posts being now evident, other Sec. 13, of R.A. 7227, which states:
matters affecting the legality of the ". . . Provided, however, That for the first
questioned proviso as well as the year of its operations from the effectivity
appointment of said respondent made of this Act, the Mayor of the City of
pursuant thereto need no longer be Olongapo shall be appointed as the
discussed.chanroblesvirtualawlibrary chanrobles virtual law library
chairman and chief executive officer of
the Subic Authority," is declared
In thus concluding as we do, we can only unconstitutional; consequently, the
share the lament of Sen. Sotero Laurel appointment pursuant thereto of the
which he expressed in the floor Mayor of Olongapo City, respondent
Richard J. Gordon, is INVALID, hence
NULL and VOID. chanroblesvirtualawlibrary chanrobles virtual law library

However, all per diems, allowances and

other emoluments received by
respondent Gordon, if any, as such
Chairman and Chief Executive Officer
may be retained by him, and all acts
otherwise legitimate done by him in the
exercise of his authority as officer de
facto of SBMA are hereby UPHELD. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED. G.R. No. 102232 March 9, 1994

Narvasa, C.J., Cruz, Feliciano, Bidin, VIOLETA ALDOVINO, ALI ALIBASA, FELIX
Griño-Aquino, Regalado, Davide, Jr., BALINO, DIONISIO BALLESTEROS, JOSE N.
Romero, Nocon, Melo and Quiason, JJ., BALEIN, JR., FREDDIE CAUTON, JANE CORROS,
ROBERTO CRUZ, TRINIDAD DACUMOS,
concur. chanroblesvirtualawlibrary chanrobles virtual law library

ANGELITA DIMAPILIS, ANDREA ESTONILO,

EFREN FONTANILLA, MARY PAZ FRIGILLANA,
Padilla, J., is on leave. MANUEL HENSON, SAMUEL HIPOL, MERLENE
IBALIO, MAGDALENA JAMILLA, ALEXANDER
JUSTINIANI, ROMULO MIRADOR, JULIO
MIRAVITE, DANTE NAGTALON, CLARITA
NAMUCO, ALICIA ORBITA, ANGELITA PUCAN,
MYRNA P. SALVADOR, LIBRADA TANTAY, and
ARACELI J. DE VEYRA, petitioners, 
vs.
SECRETARY RAFAEL ALUNAN III, DEPARTMENT
OF TOURISM and SECRETARY GUILLERMO M.
CARAGUE, DEPARTMENT OF BUDGET AND
MANAGEMENT, respondents.

JOSEPHINE G. ANDAYA, ROSALINDA T.

ATIENZA, JOSE M. BALDOVINO, JR., ASUNCION
C. BRIONES, RIZALINA P. ESPIRITU, MARIBELLE
A. GARCIA, ABDULIA T. LANDINGIN, FLORITA O.
OCAMPO, ROLANDO SISON, LOURDES V.
TAMAYO, and ROLANDO VALDEZ, intervenors.

ERLINDA PIZA, ELEONOR SAGNIT, FIDEL

SEVIDAL, CONCEPCION TIMARIO, ELOISA
ALONZO, ANGELITO DELA CRUZ, ROLANDO C.
CAGASCA, LYNIE ARCENAS, MARIA EMMA
JASMIN, ALFONSO ANGELES, MACACUNA
PANGANDAMAN, ROSALITA MAUNA, ROMEO
PADILLA, ASCENSION PADILLA, CRISPULO
PADILLA, VIRGILIO DEJERO, MEDARDO ILAO,
ROSITA SOMERA, ARMANDO CRUZ, CATALINO
DABU, FRANCISCO VILLARAIZ, NORMA
JUMILLA, KENNEDY BASA, and ARMANDO
MENDOZA, intervenors.

ANICITA S. BALUYUT, ANTONINO D. EDRALIN,

EVELYN A. ENRIQUEZ, MA. VICTORIA L.
JACOBO, DANIEL M. MANAMTAM, JESSIE C.
MANRIQUE, ENCARNACION T. RADAZA, and Herein petitioners and intervenors claiming that they
MARIO P. RUIVIVAR, intervenors. should not be deprived of the relief granted to their
former co-employees plead for reinstatement "without
AMOR T. MEDINA and FELIX L. loss of seniority rights and with back salaries
POLIQUIT, intervenors. computed under the new staffing pattern from dates of
their invalid termination at rates not lower than their
Leven S. Puno for petitioners. former salaries." 7

The Solicitor General for respondents. Decisive in this recourse is the determination of
whether the separation of herein petitioners and
intervenors from service was pursuant to office orders
and memoranda declared void in Mandani.

BELLOSILLO, J.: Except for petitioners Samuel Hipol, Jane Corros and

Myrna Salvador, intervenors Concepcion Timario,
ASSERTING that their plight is similar to petitioners' Efren Fontanilla, Ascension Padilla and Evelyn
in Mandani v. Gonzales,  and in the consolidated
1
Enriquez, public respondents do not dispute that
cases of Abrogar v. Garrucho, Jr., petitioners and intervenors were unseated from the
and Arnaldo v. Garrucho, Jr.,   herein petitioners and
2
then Ministry of Tourism, pursuant to office orders and
intervenors seek reinstatement and payment of back memoranda issued under E.O. No. 120. Public
wages. respondents nevertheless pray for the denial of the
petition not only because petitioners and intervenors
Section 29 of Executive Order No. 120, which took failed to exhaust administrative remedies and that
effect upon its approval on 30 January 1987, their claims are barred by laches, but also in view of
reorganizing the then Ministry of Tourism, provides the disruption of the present organizational set-up if
that incumbents whose positions are not included in reinstatement is directed.
the new position structure and staffing pattern or who
are not reappointed are deemed separated from the The Solicitor General argues that while petitioners
service. Pursuant thereto, the then Ministry of Tourism and intervenors (except petitioners Samuel Hipol,
(MOT, now Department of Tourism, DOT) issued Jane Corros and Efren Fontanilla) were dismissed
various office orders and memoranda declaring all contemporaneously with their colleagues
positions thereat vacant,  and effecting the separation
3
in Mandani (filed 3 June 1987 and decided 4 June
of many of its employees,  which led to the Mandani,
4
1990), Abrogar (filed 31 October 1990 and decided
Abrogar and Arnaldo cases, as well as the instant 6 August 1991) and Arnaldo (filed 7 January 1991 and
petition. decided 6 August 1991), they filed this petition and
the interventions only in October 1991, and February,
In Mandani, we declared null and void all office orders March, May and July 1992, or more than four (4)
and memoranda issued pursuant to E.O. 120 and years later, hence, laches has set in. In reply,
directed "public respondents or their successors . . . petitioners and intervenors explain —
to immediately restore the petitioners to their positions
without loss of seniority rights and with back salaries . . . since the time these DOT
computed under the new staffing pattern from the employees were illegally dismissed in
dates of their invalid terminations at rates not lower May, 1987, most of them returned to
than their former salaries." 5
the far away provinces of their origin
because they became jobless. It was
In Abrogar and Arnaldo, we ordered the reinstatement only by the slow and unreliable
of petitioners "to their former positions without loss of communication of word of mouth that
seniority rights and with back salaries computed they came to know much later on that
under the new staffing pattern from the dates of their they are (sic) entitled to be reinstated
invalid dismissals at rates not lower than their former to the DOT . . . 8

salaries, provided, however, that no supervening

event shall have occured which would otherwise The doctrine of laches is "principally a question of
disqualify them for such reinstatement, and provided, inequity of permitting a claim to be enforced, this
further, that whatever benefits they may have inequity being founded on some change in . . . the
received from the Government by reason of their relation of parties."  In the case at bar, equity, if ever
9

termination shall be reimbursed through reasonable invoked, must lean in favor of petitioners and
salary deduction."6
intervenors who were unjustly injured by public
respondents' unlawful acts. The prejudice from the
high-handed violation of the rights of petitioners and 16. Following the Decision of this
intervenors resulting in their loss of employment is far Honorable Court in the Mandani
more serious than the inconvenience to public vs. Gonzalez case and its Resolution
respondents in rectifying their own mistakes. in the consolidated cases of Abrogar
vs. Garrucho and Arnaldo
Moreover, petitioners and intervenors cannot be vs. Garrucho, petitioners made
deemed to have slept on their rights considering, as representations with the DOT to be
we should, the following unrebutted allegations in the reinstated and/or paid their back
main petition: wages . . . . 
10

7. Petitioners protested their illegal Neither could petitioners and intervenors be faulted
termination from the DOT. Many of for not joining in the previous petitions because, as we
them questioned their termination with held in Cristobal v. Melchor (No. L- 43203, 29 July
the Department of Labor and 1977; 78 SCRA 175, 183, 187) —
Employment where they filed a
Complaint against the DOT and its top More importantly, Cristobal could be
officials for illegal dismissal. . . . Some expected — without necessarily
of them questioned their illegal spending time and money by going to
termination before the Civil Service court — to relie upon the outcome of
Commission. the case filed by his co-employees to
protect his interests considering the
8. Many of petitioners joined a picket similarity of his situation to that of the
and demonstration held by illegally plaintiffs therein and the identical relief
terminated employees of the DOT being sought. On this point, We find a
before its office at the DOT building at statement of Justice Louis Brandeis of
the Luneta Park. the United States Supreme Court in
Southern Pacific vs. Bogert, relevant
9. Petitioners were forced to receive and persuasive, and We quote;
their separation or retirement benefits
from the DOT, but all under protest. The essence of laches is not merely
The others continued to fight their lapse of time. It is essential that there
cases with the Department of Labor be also acquiescence in the alleged
and Employment even if they got their wrong or lack of diligence in seeking a
separation and/or retirement benefits. remedy. Here plaintiffs, or others
representing them, protested . . . and
xxx xxx xxx ever since they have . . . persisted in
the diligent pursuit of a
remedy . . . Where the cause of action
11. After the finality of this Decision
is of such a nature that a suit to
(Mandani) . . . many other terminated
enforce it would be brought on behalf,
employees of the DOT wrote to then
not only of the plaintiff, but of all
DOT Secretary Peter D. Garrucho, Jr.,
persons similarly situated, it is not
as the successor-in-interest of former
essential that each such person
Sec. Jose U. Gonzales, and DBM
should intervened (sic) in the suit
Secretary Guillermo Carague, asking
brought in order that he be deemed
that following the Decision in
thereafter free from the laches which
this Mandani vs. Gonzalez case and
bars those who sleep on their
being similarly situated as the twenty-
rights (citations omitted).
eight (28) petitioners therein, that they
be reinstated to their former or
equivalent positions in the DOT and/or xxx xxx xxx
to be paid their back wages. Then . . .
DOT Secretary Garrucho and DBM This Court, applying the principle of
Sec. Carague never responded to equity, need not be bound by the rigid
these letters and did not reinstate application of the law, but rather its
and/or pay any of their back wages. action should conform to the
conditions or exigencies to a given
xxx xxx xxx problem or situation in order to grant a
relief that will serve the ends of justice.
 To paraphrase then Chief Justice The principle that prescription does not run against
John Edwin Marshall of the United the State, which contemplates a situation where a
States Supreme Court, let us to (do) private party cannot defeat the claim of the State by
complete justice and not do justice by raising the defense of prescription, is inapplicable
halves ("The court of equity in all because in this case the private parties are the ones
cases delights to do complete justice filing a suit against the State. Consequently, we
and not by halves." Marshall, C. J. — reiterate our pronouncement in Fernandez v. Grolier
Knight vs. Knight, 3 P. Wms. 331, International, Inc.,  that "[i]t is true that there are
15

334; Corbet v.Johnson, 1 Brock, 77, exceptions to the rule that an action will not be
81 — both cited in Hefner, et declared to have prescribed if prescription is not
al. vs. Northwestern Mutual Life expressly invoked (Garcia vs. Mathis, 100 SCRA
Insurance Co., 123 U.S., 309, 313). 250). However, where considerations of substantial
justice come in (as in this case when the very
We emphasize that prescription was never raised employment, and therefore the lifeblood, of each
here as an issue; at most, it is deemed waived. petitioner/intervenor is involved), it is better to resolve
In Fernandez v.Grolier International, Inc.,   we stated:
11 the issues on the basic merits of the case instead of
applying the rule on prescription which the private
In the case of Director of Lands respondent waived when it was not pleaded."
v. Dano (96 SCRA 161, 165), this Anyhow, it was public respondents who created the
Court held that "inasmuch as problem of petitioners and intervenors by illegally
petitioner had never pleaded the abolishing their positions and terminating their
statute of limitations, he is deemed to services in outrageous disregard of the basic
have waived the same". protection accorded civil servants, hence our repeated
pronouncement that it was unconstitutional.
In the cited case of Directors of Lands v. Dano, the
Director of Lands, who was similarly situated as public An unconstitutional act is not a law; it confers no
respondents herein who represent the Government, rights; it imposes no duties; it affords no protection; it
was deemed to have waived the defense of creates no office; it is, in legal contemplation,
prescription "inasmuch as petitioner had never inoperative, as if it had not been passed. It is
pleaded the statute of limitations." therefore stricken from the statute books and
considered never to have existed at all. Not only the
parties but all persons are bound by the declaration of
The matter of prescription, we reiterate, may not be
unconstitutionality which means that no one may
considered at this late stage, not only because it was
thereafter invoke it nor may the courts be permitted to
never raised and therefore now foreclosed, but more
apply it in subsequent cases. It is, in other words, a
importantly, because it must yield to the higher
total nullity.   Plainly, it was as if petitioners and
16

interest of justice. Incidentally, it is only in the dissent

intervenors were never served their termination orders
that the question of prescription is introduced. Not
and, consequently, were never separated from the
even the Government raised it.
service, The fact that they were not able to assume
office and exercise their duties is attributable to the
In 1977, we in fact relaxed the rule on prescription continuing refusal of public respondents to take them
in Cristobal v. Melchor  to give way to a determination
12
in unless they first obtained court orders, perhaps, for
of the case on the merits where, like in this case, "[i]t government budgetary and accounting purposes.
was an act of the government through its responsible Under the circumstances, the more prudent thing that
officials . . . which contributed to the alleged delay in public respondents could have done upon receipt of
the filing of . . . complaint for reinstatement." But, we the decision in Mandani, if they were earnest in
need not go back that far. On 15 August 1991, the making amends and restoring petitioners and
Court En Banc granted the related petition in intervenors to their positions, was to inform the latter
intervention of Alberto A. Peralta, of the nullification of their termination orders and to
et al.,   in the consolidated cases of Abrogar
13
return to work and resume their functions. After all,
v. Garrucho, and Arnaldo v. Garrucho, even if filed on many of them were supposed to be waiting for
1 August 1991 or two months after the four-year instructions from the DOT because in their termination
prescriptive period, which lapsed on the 14th and 28th orders it promised to directly contact them by
of May 1991. As we ruled in Cristobal v. Melchor,   "it 14
telephone, telegram or written notice as soon as funds
is indeed the better rule that courts, under the for their separation would be available.  17

principle of equity, will not be guided or bound strictly

by the statute of limitations or the doctrine of laches
Furthermore, the representations to DOT made by
when to do so manifest wrong and injustice would
petitioners and intervenors for their reinstatement
result."
partook of the nature of an administrative proceeding,
and public respondents also failed to raise the issue —
of prescription therein. As already adverted to, that
issue was never raised before us. In reciting the The Court disregards the questions
alleged instances of delay in bringing up this suit, the raised as to procedure, failure to
Solicitor General simply referred to laches, not exhaust administrative remedies, the
prescription. Since this case is an original action, and standing of certain parties to sue (this
if we treat the petition and interventions as ordinary was raised by the Civil Service
complaints, the failure of public respondents to raise Commission in G.R. No. 86241, and
the issue of prescription in their comments cannot be failure to exhaust administrative
interpreted any less than a waiver of that defense. remedies was raised in G.R. Nos.
For, defenses and objections not pleaded either in a 81954 and 81917 by the Solicitor
motion to dismiss or in the answer are deemed General), and other technical
waived, except the failure to state a cause of action objections, for two reasons, "[b]ecause
which may be alleged in a later pleading, if one is of the demands of public interest,
permitted.  18
including the need for stability in the
public service" (Sarmiento III v. Mison,
Above all, what public respondents brought up was G.R. No. 79974, December 17, 1987,
the doctrine of laches, not prescription; and laches is 153 SCRA 549, 551-552) and
different from prescription. The defense of laches because of the serious implications of
applies independently of prescription. While these cases on the administration of
prescription is concerned with the fact of delay, laches the Philippine civil service and the
is concerned with the effect of delay. Prescription is a rights of public servants.
matter of time; laches is a question of inequity of
permitting a claim to be enforced, this inequity being On the argument that existing organizational set-up
founded on some change in the condition of the would be disrupted if reinstatement be directed, we
property or the relation of the parties. Prescription is need only reiterate our 18 October 1990 Resolution
statutory; laches is not. Laches applies in equity, in Mandani that —
whereas prescription applies at law. Prescription is
based on fixed time, laches is not.   In any case, it
19
An erring head of a Department,
can be said that the prescriptive period was tolled with Bureau, or Office cannot avoid
the filing of the termination cases before the reinstatement, payment of back pay,
Department of Labor and Employment and the Civil and other acts of compliance with the
Service Commission, the pendency of which is orders of this Court by interposing
acknowledged in the Comment and Memorandum of changes effected subsequent to his
public respondents. unlawful acts and claiming that such
changes make it difficult to obey this
Incidentally, even the picketing of the premises and Court's orders.
the placards demanding their immediate
reinstatement could not be any less than written The basic principle to be applied
demands sufficient to interrupt the period of whenever the Court declares an
prescription. As we noted earlier, "[a]fter the finality of administrative official to have acted in
this Decision (Mandani) . . . many other terminated an unlawful manner is for that official
employees of the DOT wrote to then DOT Secretary to undo the harmful effects of his
Peter D. Garrucho, Jr . . . and DBM Secretary illegal act and to accord to the
Guillermo Carague asking that following the Decision aggrieved parties restoration or
in this Mandani vs. Gonzalez case and being similarly restitution in good faith to make up for
situated as the twenty-eight (28) petitioners the deprivations which may have been
therein . . . they be reinstated to their former or suffered because of his act. 23

equivalent positions in the DOT and/or to be paid their

back wages." But "[t]hen . . . DOT Secretary Garrucho
Petitioners and intervenors, who are similarly situated
and DBM Sec. Carague never responded to these
as their counterparts
letters,"   so that it may be said that the period that
20

in Mandani, Abrogar and Arnaldo, deserve no less

was interrupted never started to run again against
than equal treatment.
petitioner and intervenors.
The Solicitor General takes exception to petitioner
The requirement of prior resort to administrative
Samuel Hipol who was separated from the service
remedies is not an absolute rule and this did not bar
under an order of 19 May 1986 issued pursuant to
direct access to this Court in the analogous cases
Sec. 2, Art. III, of Proclamation No. 3, and not under
of Dario v. Mison,   and Mandani v. Gonzalez,   thus
21 22
E.O. No. 120.  In reply, petitioner Hipol admits that he
24
exist, the effect is, as if the termination did not occur.
was "in the process of working for his However, since the determination in this case is
reinstatement/reappointment at the DOT when . . . all limited only to the extent of the nullity of said orders
positions thereat were declared vacant . . ."   Since 25
and memoranda, the reinstatement of Salvador,
his separation from service was not under void orders Padilla and Enriquez cannot be ordered in the instant
issued pursuant to E.O. No. 120 and, worse, he was proceeding.
not even an incumbent when E.O. No. 120 was
issued, Hipol could not be considered as in the same The Solicitor General also seeks dismissal of the
situation as the petitioners petition and intervention against intervenors Rizalina
in Mandani, Abrogar and Arnaldo. T. Espiritu, Abdulia T. Landingin, Medardo Ilao, Rosita
Somera, Armando Cruz, Catalino Dabu, Francisco
A parallel case is that of intervenor Concepcion Villaraiz, Norma Jumilia, Kennedy Basa, Rolando G.
Timario who, according to the Solicitor General, Cagasca and Alfonso Angeles because they were
resigned effective 28 May 1987 and was not already reinstated. However, because of the
separated under any of the invalid orders.   Intervenor
26
unrefuted allegation that these employees were not
Timario however contends that she is entitled to relief yet paid their respective back wages, then to that
because her courtesy resignation was accepted on 9 extent, their petitions must be granted.
June 1987 or during the period positions were
declared vacant pursuant to MOT Office Order No. 9- In computing back wages, we cannot blindly accept
87.   It is significant to note that Timario's letter of
27
the allegation of petitioners and intervenors that since
resignation cited "professional reasons" as cause for their separation from the service in 1987, or about
her abdication  which, obviously, pertains to the
28
seven (7) years ago, they have been jobless hence
nature of her work. Moreover, conspicuously absent is entitled to full back wages. Conformably with existing
the customary order requiring the filing of courtesy jurisprudence, the award of back wages should not
resignations. Timario may not be permitted to exceed a period of five (5) years.  35

characterize, by way of self-serving assertions, that

her resignation was merely a courtesy resignation In the final analysis, the dissent admits that petitioners
pursuant to any of the voided office orders or and intervenors truly deserve the reliefs they pray for
memoranda. except that their cause of action has allegedly
prescribed. Shall we now frustrate their rightful claims
The claim of the Solicitor General that petitioners on a ground that was never raised, nor even hinted at,
Jane Corros and Efren Fontanilla were not employees by public respondents in the entire proceeding? That
of the Ministry of Tourism because their names did would be antithetic to our concept of social justice; at
not appear in the regular plantilla of the Ministry of the very least, it is subversive of the rudiments of
Tourism,  is specious since the listing of names in the
29
fairplay.
plantilla is not a conclusive evidence of employment.
Nonetheless, in view of the incessant allegation of the WHEREFORE, the instant petition is GRANTED.
Solicitor General that Corros and Fontanilla were not Petitioners Violeta Aldovino, Ali Alibasa, Felix Balino,
employees of the Ministry, and considering the Dionisio Ballesteros, Jose N. Balein, Jr., Freddie
photocopies of Fontanilla's appointment papers and Cauton, Roberto Cruz, Trinidad Dacumos, Angelita
termination order submitted by him,   as well as the
30
Dimapilis, Andrea Estonilo, Mary Paz Frigillana,
bare assertion of petitioner Corros that she was for 11 Manuel Henson, Merlene Ibalio, Magdalena Jamilla,
years PRO I in the Licensing Division of the Ministry Alexander Justiniani, Romulo Mirador, Julio Miravite,
and that her name could not be found in the plantilla Dante Nagtalon, Clarita Namuco, Alicia Orbita,
because she is now Jane Ombawa in view of her Angelita Pucan, Myrna P. Salvador,
marriage,  the fact of employment should be threshed
31
Librada Tantay, and Araceli De Veyra, and
out first in a proper forum as this Court is not a trier of intervenors Josephine G. Andaya, Rosalinda T.
facts. Atienza, Jose M. Baldovino, Jr., Asuncion C. Briones,
Maribelle A. Garcia, Florita O. Ocampo, Rolando
The Solicitor General contends that since petitioner Sison, Lourdes B. Tamayo, Rolando Valdez, Erlinda
Myrna Salvador was a casual employee,  intervenor32
Piza, Eleonor Sagnit, Fidel Sevidal, Eloisa Alonzo,
Ascension Padilla was a temporary appointee whose Angelito Dela Cruz, Lynie Arcenas, Maria Emma
appointment expired 20 February 1987,  and 33
Jasmin, Macacuna Pangandaman, Rosalia Mauna,
intervenor Evelyn Enriquez was also a temporary Romeo Padilla, Ascencion Padilla, Crispulo Padilla,
appointee,   their appointments are terminable at the
34
Virgilio Dejero, Armando Mendoza, Anicita S. Baluyut,
pleasure of the appointing authority. Considering Antonio D. Edralin, Evelyn A. Enriquez, Ma. Victoria L.
however that the office orders and memoranda which Jacobo, Daniel M. Manamtam, Jessie C. Manrique,
directed the separation of petitioners and intervenors Encarnacion T. Radaza, Mario P. Ruivivar, Amor T.
were annulled, hence in legal contemplation did not
Medina, and Felix L. Poliquit, are ordered
REINSTATED immediately to their former positions
without loss of seniority rights and with back salaries
computed under the new staffing pattern from the
dates of their invalid dismissals at rates not lower that
their former salaries but not to exceed a period of five
(5) years, provided, however, that no supervening
event shall have occured which would otherwise
disqualify then from such reinstatement,
and provided, further, that whatever benefits they
may have received from the Government by reason of
their termination shall be reimbursed through G.R. No. 101083 July 30, 1993
reasonable salary deductions.

Public respondents are likewise ordered to pay

DAVIDE, JR., J.:
intervenors Rizalina P. Espiritu, Abdulia T. Landingin,
Medardo Ilao, Rosita Somera, Armando Cruz,
Catalino Dabu, Francisco Villaraiz, Norma Jumilia, In a broader sense, this petition bears upon the right
Kennedy Basa, Rolando G. Cagasca and Alfonso of Filipinos to a balanced and healthful ecology which
Angeles their back salaries similarly under the above- the petitioners dramatically associate with the twin
quoted conditions. concepts of "inter-generational responsibility" and
"inter-generational justice." Specifically, it touches on
the issue of whether the said petitioners have a cause
As regards petitioners Samuel Hipol, Jane Corros and
of action to "prevent the misappropriation or
Efren Fontanilla, their petition is DISMISSED, as well
impairment" of Philippine rainforests and "arrest the
as the petition in intervention of Concepcion Timario.
unabated hemorrhage of the country's vital life
support systems and continued rape of Mother Earth."
SO ORDERED.
The controversy has its genesis in Civil Case No. 90-
Padilla, Bidin, Regalado, Romero, Nocon, Melo, 77 which was filed before Branch 66 (Makati, Metro
Quiason, Vitug and Kapunan, JJ., concur. Manila) of the Regional Trial Court (RTC), National
Capital Judicial Region. The principal plaintiffs therein,
Puno, J., took no part. now the principal petitioners, are all minors duly
represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-
stock and non-profit corporation organized for the
purpose of, inter alia, engaging in concerted action
geared for the protection of our environment and
natural resources. The original defendant was the
Honorable Fulgencio S. Factoran, Jr., then Secretary
of the Department of Environment and Natural
Resources (DENR). His substitution in this petition by
the new Secretary, the Honorable Angel C. Alcala,
was subsequently ordered upon proper motion by the
petitioners.  The complaint  was instituted as a
1 2

taxpayers' class suit  and alleges that the plaintiffs

3

"are all citizens of the Republic of the Philippines,

taxpayers, and entitled to the full benefit, use and
enjoyment of the natural resource treasure that is the
country's virgin tropical forests." The same was filed
for themselves and others who are equally concerned
about the preservation of said resource but are "so
numerous that it is impracticable to bring them all
before the Court." The minors further asseverate that
they "represent their generation as well as
generations yet unborn."  Consequently, it is prayed
4

for that judgment be rendered:

 . . . ordering defendant, his agents, of multi-billion peso dams constructed and operated
representatives and other persons for the purpose of supplying water for domestic uses,
acting in his behalf to — irrigation and the generation of electric power, and (k)
the reduction of the earth's capacity to process carbon
(1) Cancel all existing timber license dioxide gases which has led to perplexing and
agreements in the country; catastrophic climatic changes such as the
phenomenon of global warming, otherwise known as
(2) Cease and desist from receiving, the "greenhouse effect."
accepting, processing, renewing or
approving new timber license Plaintiffs further assert that the adverse and
agreements. detrimental consequences of continued and
deforestation are so capable of unquestionable
and granting the plaintiffs ". . . such other reliefs just demonstration that the same may be submitted as a
and equitable under the premises." 5 matter of judicial notice. This notwithstanding, they
expressed their intention to present expert witnesses
as well as documentary, photographic and film
The complaint starts off with the general averments
evidence in the course of the trial.
that the Philippine archipelago of 7,100 islands has a
land area of thirty million (30,000,000) hectares and is
endowed with rich, lush and verdant rainforests in As their cause of action, they specifically allege that:
which varied, rare and unique species of flora and
fauna may be found; these rainforests contain a CAUSE OF ACTION
genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous 7. Plaintiffs replead by reference the
Philippine cultures which have existed, endured and foregoing allegations.
flourished since time immemorial; scientific evidence
reveals that in order to maintain a balanced and 8. Twenty-five (25) years ago, the
healthful ecology, the country's land area should be Philippines had some sixteen (16)
utilized on the basis of a ratio of fifty-four per cent million hectares of rainforests
(54%) for forest cover and forty-six per cent (46%) for constituting roughly 53% of the
agricultural, residential, industrial, commercial and country's land mass.
other uses; the distortion and disturbance of this
balance as a consequence of deforestation have 9. Satellite images taken in 1987
resulted in a host of environmental tragedies, such as reveal that there remained no more
(a) water shortages resulting from drying up of the than 1.2 million hectares of said
water table, otherwise known as the "aquifer," as well rainforests or four per cent (4.0%) of
as of rivers, brooks and streams, (b) salinization of the the country's land area.
water table as a result of the intrusion therein of salt
water, incontrovertible examples of which may be
10. More recent surveys reveal that a
found in the island of Cebu and the Municipality of
mere 850,000 hectares of virgin old-
Bacoor, Cavite, (c) massive erosion and the
growth rainforests are left, barely 2.8%
consequential loss of soil fertility and agricultural
of the entire land mass of the
productivity, with the volume of soil eroded estimated
Philippine archipelago and about 3.0
at one billion (1,000,000,000) cubic meters per annum
million hectares of immature and
— approximately the size of the entire island of
uneconomical secondary growth
Catanduanes, (d) the endangering and extinction of
forests.
the country's unique, rare and varied flora and fauna,
(e) the disturbance and dislocation of cultural
communities, including the disappearance of the 11. Public records reveal that the
Filipino's indigenous cultures, (f) the siltation of rivers defendant's, predecessors have
and seabeds and consequential destruction of corals granted timber license agreements
and other aquatic life leading to a critical reduction in ('TLA's') to various corporations to cut
marine resource productivity, (g) recurrent spells of the aggregate area of 3.89 million
drought as is presently experienced by the entire hectares for commercial logging
country, (h) increasing velocity of typhoon winds purposes.
which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising A copy of the TLA holders and the
from the absence of the absorbent mechanism of corresponding areas covered is hereto
forests, (j) the siltation and shortening of the lifespan attached as Annex "A".
12. At the present rate of extreme prejudice of plaintiffs.
deforestation, i.e. about 200,000
hectares per annum or 25 hectares 18. The continued failure and refusal
per hour — nighttime, Saturdays, by defendant to cancel the TLA's is an
Sundays and holidays included — the act violative of the rights of plaintiffs,
Philippines will be bereft of forest especially plaintiff minors who may be
resources after the end of this ensuing left with a country that is desertified
decade, if not earlier. (sic), bare, barren and devoid of the
wonderful flora, fauna and indigenous
13. The adverse effects, disastrous cultures which the Philippines had
consequences, serious injury and been abundantly blessed with.
irreparable damage of this continued
trend of deforestation to the plaintiff 19. Defendant's refusal to cancel the
minor's generation and to generations aforementioned TLA's is manifestly
yet unborn are evident and contrary to the public policy
incontrovertible. As a matter of fact, enunciated in the Philippine
the environmental damages Environmental Policy which, in
enumerated in paragraph 6 hereof are pertinent part, states that it is the
already being felt, experienced and policy of the State —
suffered by the generation of plaintiff
adults. (a) to create, develop, maintain and
improve conditions under which man
14. The continued allowance by and nature can thrive in productive
defendant of TLA holders to cut and and enjoyable harmony with each
deforest the remaining forest stands other;
will work great damage and
irreparable injury to plaintiffs — (b) to fulfill the social, economic and
especially plaintiff minors and their other requirements of present and
successors — who may never see, future generations of Filipinos and;
use, benefit from and enjoy this rare
and unique natural resource treasure.
(c) to ensure the attainment of an
environmental quality that is
This act of defendant constitutes a conductive to a life of dignity and well-
misappropriation and/or impairment of being. (P.D. 1151, 6 June 1977)
the natural resource property he holds
in trust for the benefit of plaintiff
20. Furthermore, defendant's
minors and succeeding generations.
continued refusal to cancel the
aforementioned TLA's is contradictory
15. Plaintiffs have a clear and to the Constitutional policy of the State
constitutional right to a balanced and to —
healthful ecology and are entitled to
protection by the State in its capacity
a. effect "a more equitable distribution
as the parens patriae.
of opportunities, income and wealth"
and "make full and efficient use of
16. Plaintiff have exhausted all natural resources (sic)." (Section 1,
administrative remedies with the Article XII of the Constitution);
defendant's office. On March 2, 1990,
plaintiffs served upon defendant a final
b. "protect the nation's marine wealth."
demand to cancel all logging permits
(Section 2, ibid);
in the country.
c. "conserve and promote the nation's
A copy of the plaintiffs' letter dated
cultural heritage and resources (sic)"
March 1, 1990 is hereto attached as
(Section 14, Article XIV, id.);
Annex "B".
d. "protect and advance the right of
17. Defendant, however, fails and
the people to a balanced and healthful
refuses to cancel the existing TLA's to
ecology in accord with the rhythm and
the continuing serious damage and
 harmony of nature." (Section 16, Civil Code (Human Relations), Section 4 of Executive
Article II, id.) Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine
21. Finally, defendant's act is contrary Environmental Policy), Section 16, Article II of the
to the highest law of humankind — the 1987 Constitution recognizing the right of the people
natural law — and violative of to a balanced and healthful ecology, the concept of
plaintiffs' right to self-preservation and generational genocide in Criminal Law and the
perpetuation. concept of man's inalienable right to self-preservation
and self-perpetuation embodied in natural law.
22. There is no other plain, speedy Petitioners likewise rely on the respondent's
and adequate remedy in law other correlative obligation per Section 4 of E.O. No. 192, to
than the instant action to arrest the safeguard the people's right to a healthful
unabated hemorrhage of the country's environment.
vital life support systems and
continued rape of Mother Earth.  6 It is further claimed that the issue of the respondent
Secretary's alleged grave abuse of discretion in
On 22 June 1990, the original defendant, Secretary granting Timber License Agreements (TLAs) to cover
Factoran, Jr., filed a Motion to Dismiss the complaint more areas for logging than what is available involves
based on two (2) grounds, namely: (1) the plaintiffs a judicial question.
have no cause of action against him and (2) the issue
raised by the plaintiffs is a political question which Anent the invocation by the respondent Judge of the
properly pertains to the legislative or executive Constitution's non-impairment clause, petitioners
branches of Government. In their 12 July 1990 maintain that the same does not apply in this case
Opposition to the Motion, the petitioners maintain that because TLAs are not contracts. They likewise submit
(1) the complaint shows a clear and unmistakable that even if TLAs may be considered protected by the
cause of action, (2) the motion is dilatory and (3) the said clause, it is well settled that they may still be
action presents a justiciable question as it involves the revoked by the State when the public interest so
defendant's abuse of discretion. requires.

On 18 July 1991, respondent Judge issued an order On the other hand, the respondents aver that the
granting the aforementioned motion to dismiss.  In the
7 petitioners failed to allege in their complaint a specific
said order, not only was the defendant's claim — that legal right violated by the respondent Secretary for
the complaint states no cause of action against him which any relief is provided by law. They see nothing
and that it raises a political question — sustained, the in the complaint but vague and nebulous allegations
respondent Judge further ruled that the granting of the concerning an "environmental right" which supposedly
relief prayed for would result in the impairment of entitles the petitioners to the "protection by the state
contracts which is prohibited by the fundamental law in its capacity as parens patriae." Such allegations,
of the land. according to them, do not reveal a valid cause of
action. They then reiterate the theory that the question
Plaintiffs thus filed the instant special civil action of whether logging should be permitted in the country
for certiorari under Rule 65 of the Revised Rules of is a political question which should be properly
Court and ask this Court to rescind and set aside the addressed to the executive or legislative branches of
dismissal order on the ground that the respondent Government. They therefore assert that the
Judge gravely abused his discretion in dismissing the petitioners' resources is not to file an action to court,
action. Again, the parents of the plaintiffs-minors not but to lobby before Congress for the passage of a bill
only represent their children, but have also joined the that would ban logging totally.
latter in this case.
8

As to the matter of the cancellation of the TLAs,

On 14 May 1992, We resolved to give due course to respondents submit that the same cannot be done by
the petition and required the parties to submit their the State without due process of law. Once issued, a
respective Memoranda after the Office of the Solicitor TLA remains effective for a certain period of time —
General (OSG) filed a Comment in behalf of the usually for twenty-five (25) years. During its effectivity,
respondents and the petitioners filed a reply thereto. the same can neither be revised nor cancelled unless
the holder has been found, after due notice and
hearing, to have violated the terms of the agreement
Petitioners contend that the complaint clearly and
or other forestry laws and regulations. Petitioners'
unmistakably states a cause of action as it contains
proposition to have all the TLAs indiscriminately
sufficient allegations concerning their right to a sound
cancelled without the requisite hearing would be
environment based on Articles 19, 20 and 21 of the
violative of the requirements of due process. against the respondent Judge's challenged order for
having been issued with grave abuse of discretion
Before going any further, We must first focus on some amounting to lack of jurisdiction. The pertinent
procedural matters. Petitioners instituted Civil Case portions of the said order reads as follows:
No. 90-777 as a class suit. The original defendant and
the present respondents did not take issue with this xxx xxx xxx
matter. Nevertheless, We hereby rule that the said
civil case is indeed a class suit. The subject matter of After a careful and circumspect
the complaint is of common and general interest not evaluation of the Complaint, the Court
just to several, but to all citizens of the Philippines. cannot help but agree with the
Consequently, since the parties are so numerous, it, defendant. For although we believe
becomes impracticable, if not totally impossible, to that plaintiffs have but the noblest of
bring all of them before the court. We likewise declare all intentions, it (sic) fell short of
that the plaintiffs therein are numerous and alleging, with sufficient definiteness, a
representative enough to ensure the full protection of specific legal right they are seeking to
all concerned interests. Hence, all the requisites for enforce and protect, or a specific legal
the filing of a valid class suit under Section 12, Rule 3 wrong they are seeking to prevent and
of the Revised Rules of Court are present both in the redress (Sec. 1, Rule 2, RRC).
said civil case and in the instant petition, the latter Furthermore, the Court notes that the
being but an incident to the former. Complaint is replete with vague
assumptions and vague conclusions
This case, however, has a special and novel element. based on unverified data. In fine,
Petitioners minors assert that they represent their plaintiffs fail to state a cause of action
generation as well as generations yet unborn. We find in its Complaint against the herein
no difficulty in ruling that they can, for themselves, for defendant.
others of their generation and for the succeeding
generations, file a class suit. Their personality to sue Furthermore, the Court firmly believes
in behalf of the succeeding generations can only be that the matter before it, being
based on the concept of intergenerational impressed with political color and
responsibility insofar as the right to a balanced and involving a matter of public policy, may
healthful ecology is concerned. Such a right, as not be taken cognizance of by this
hereinafter expounded, considers  Court without doing violence to the
the "rhythm and harmony of nature." Nature means sacred principle of "Separation of
the created world in its entirety.  Such rhythm and
9
Powers" of the three (3) co-equal
harmony indispensably include, inter alia, the branches of the Government.
judicious disposition, utilization, management,
renewal and conservation of the country's forest, The Court is likewise of the impression
mineral, land, waters, fisheries, wildlife, off-shore that it cannot, no matter how we
areas and other natural resources to the end that their stretch our jurisdiction, grant the
exploration, development and utilization be equitably reliefs prayed for by the plaintiffs, i.e.,
accessible to the present as well as future to cancel all existing timber license
generations.  Needless to say, every generation has
10
agreements in the country and to
a responsibility to the next to preserve that rhythm cease and desist from receiving,
and harmony for the full enjoyment of a balanced and accepting, processing, renewing or
healthful ecology. Put a little differently, the minors' approving new timber license
assertion of their right to a sound environment agreements. For to do otherwise
constitutes, at the same time, the performance of their would amount to "impairment of
obligation to ensure the protection of that right for the contracts" abhored (sic) by the
generations to come. fundamental law.  11

The locus standi of the petitioners having thus been We do not agree with the trial court's conclusions that
addressed, We shall now proceed to the merits of the the plaintiffs failed to allege with sufficient definiteness
petition. a specific legal right involved or a specific legal wrong
committed, and that the complaint is replete with
After a careful perusal of the complaint in question vague assumptions and conclusions based on
and a meticulous consideration and evaluation of the unverified data. A reading of the complaint itself belies
issues raised and arguments adduced by the parties, these conclusions.
We do not hesitate to find for the petitioners and rule
The complaint focuses on one specific fundamental MR. VILLACORTA:
legal right — the right to a balanced and healthful
ecology which, for the first time in our nation's Does this section
constitutional history, is solemnly incorporated in the mandate the State to
fundamental law. Section 16, Article II of the 1987 provide sanctions
Constitution explicitly provides: against all forms of
pollution — air, water
Sec. 16. The State shall protect and and noise pollution?
advance the right of the people to a
balanced and healthful ecology in MR. AZCUNA:
accord with the rhythm and harmony
of nature. Yes, Madam
President. The right to
This right unites with the right to health healthful (sic)
which is provided for in the preceding environment
section of the same article: necessarily carries
with it the correlative
Sec. 15. The State shall protect and duty of not impairing
promote the right to health of the the same and,
people and instill health therefore, sanctions
consciousness among them. may be provided for
impairment of
While the right to a balanced and healthful ecology is environmental
to be found under the Declaration of Principles and balance. 12

State Policies and not under the Bill of Rights, it does

not follow that it is less important than any of the civil The said right implies, among many other things, the
and political rights enumerated in the latter. Such a judicious management and conservation of the
right belongs to a different category of rights country's forests.
altogether for it concerns nothing less than self-
preservation and self-perpetuation — aptly and Without such forests, the ecological or
fittingly stressed by the petitioners — the environmental balance would be irreversiby
advancement of which may even be said to predate disrupted.
all governments and constitutions. As a matter of fact,
these basic rights need not even be written in the Conformably with the enunciated right to a balanced
Constitution for they are assumed to exist from the and healthful ecology and the right to health, as well
inception of humankind. If they are now explicitly as the other related provisions of the Constitution
mentioned in the fundamental charter, it is because of concerning the conservation, development and
the well-founded fear of its framers that unless the utilization of the country's natural resources,   then
13

rights to a balanced and healthful ecology and to President Corazon C. Aquino promulgated on 10 June
health are mandated as state policies by the 1987 E.O. No. 192,   Section 4 of which expressly
14

Constitution itself, thereby highlighting their continuing mandates that the Department of Environment and
importance and imposing upon the state a solemn Natural Resources "shall be the primary government
obligation to preserve the first and protect and agency responsible for the conservation,
advance the second, the day would not be too far management, development and proper use of the
when all else would be lost not only for the present country's environment and natural resources,
generation, but also for those to come — generations specifically forest and grazing lands, mineral,
which stand to inherit nothing but parched earth resources, including those in reservation and
incapable of sustaining life. watershed areas, and lands of the public domain, as
well as the licensing and regulation of all natural
The right to a balanced and healthful ecology carries resources as may be provided for by law in order to
with it the correlative duty to refrain from impairing the ensure equitable sharing of the benefits derived
environment. During the debates on this right in one therefrom for the welfare of the present and future
of the plenary sessions of the 1986 Constitutional generations of Filipinos." Section 3 thereof makes the
Commission, the following exchange transpired following statement of policy:
between Commissioner Wilfrido Villacorta and
Commissioner Adolfo Azcuna who sponsored the Sec. 3. Declaration of Policy. — It is
section in question: hereby declared the policy of the State
to ensure the sustainable use,
 development, management, renewal, authority. Said section provides:
and conservation of the country's
forest, mineral, land, off-shore areas Sec. 2. Mandate. — (1) The
and other natural resources, including Department of Environment and
the protection and enhancement of the Natural Resources shall be primarily
quality of the environment, and responsible for the implementation of
equitable access of the different the foregoing policy.
segments of the population to the
development and the use of the (2) It shall, subject to law and higher
country's natural resources, not only authority, be in charge of carrying out
for the present generation but for the State's constitutional mandate to
future generations as well. It is also control and supervise the exploration,
the policy of the state to recognize and development, utilization, and
apply a true value system including conservation of the country's natural
social and environmental cost resources.
implications relative to their utilization,
development and conservation of our
Both E.O. NO. 192 and the Administrative Code of
natural resources.
1987 have set the objectives which will serve as the
bases for policy formulation, and have defined the
This policy declaration is substantially re-stated it Title powers and functions of the DENR.
XIV, Book IV of the Administrative Code of
1987,  specifically in Section 1 thereof which reads:
15

It may, however, be recalled that even before the

ratification of the 1987 Constitution, specific statutes
Sec. 1. Declaration of Policy. — (1) already paid special attention to the "environmental
The State shall ensure, for the benefit right" of the present and future generations. On 6
of the Filipino people, the full June 1977, P.D. No. 1151 (Philippine Environmental
exploration and development as well Policy) and P.D. No. 1152 (Philippine Environment
as the judicious disposition, utilization, Code) were issued. The former "declared a continuing
management, renewal and policy of the State (a) to create, develop, maintain and
conservation of the country's forest, improve conditions under which man and nature can
mineral, land, waters, fisheries, thrive in productive and enjoyable harmony with each
wildlife, off-shore areas and other other, (b) to fulfill the social, economic and other
natural resources, consistent with the requirements of present and future generations of
necessity of maintaining a sound Filipinos, and (c) to insure the attainment of an
ecological balance and protecting and environmental quality that is conducive to a life of
enhancing the quality of the dignity and well-being."   As its goal, it speaks of the
16

environment and the objective of "responsibilities of each generation as trustee and

making the exploration, development guardian of the environment for succeeding
and utilization of such natural generations."   The latter statute, on the other hand,
17

resources equitably accessible to the gave flesh to the said policy.

different segments of the present as
well as future generations.
Thus, the right of the petitioners (and all those they
represent) to a balanced and healthful ecology is as
(2) The State shall likewise recognize clear as the DENR's duty — under its mandate and by
and apply a true value system that virtue of its powers and functions under E.O. No. 192
takes into account social and and the Administrative Code of 1987 — to protect and
environmental cost implications advance the said right.
relative to the utilization, development
and conservation of our natural
A denial or violation of that right by the other who has
resources.
the corelative duty or obligation to respect or protect
the same gives rise to a cause of action. Petitioners
The above provision stresses "the necessity of maintain that the granting of the TLAs, which they
maintaining a sound ecological balance and claim was done with grave abuse of discretion,
protecting and enhancing the quality of the violated their right to a balanced and healthful
environment." Section 2 of the same Title, on the ecology; hence, the full protection thereof requires
other hand, specifically speaks of the mandate of the that no further TLAs should be renewed or granted.
DENR; however, it makes particular reference to the
fact of the agency's being subject to law and higher
A cause of action is defined as:
 . . . an act or omission of one party in controversies involving rights which
violation of the legal right or rights of are legally demandable and
the other; and its essential elements enforceable, and to determine whether
are legal right of the plaintiff, or not there has been a grave abuse
correlative obligation of the defendant, of discretion amounting to lack or
and act or omission of the defendant excess of jurisdiction on the part of
in violation of said legal right. 
18
any branch or instrumentality of the
Government.
It is settled in this jurisdiction that in a motion to
dismiss based on the ground that the complaint fails Commenting on this provision in his book, Philippine
to state a cause of action,   the question submitted to
19
Political Law,   Mr. Justice Isagani A. Cruz, a
22

the court for resolution involves the sufficiency of the distinguished member of this Court, says:
facts alleged in the complaint itself. No other matter
should be considered; furthermore, the truth of falsity The first part of the authority
of the said allegations is beside the point for the truth represents the traditional concept of
thereof is deemed hypothetically admitted. The only judicial power, involving the settlement
issue to be resolved in such a case is: admitting such of conflicting rights as conferred as
alleged facts to be true, may the court render a valid law. The second part of the authority
judgment in accordance with the prayer in the represents a broadening of judicial
complaint?   In Militante vs. Edrosolano,   this Court
20 21
power to enable the courts of justice to
laid down the rule that the judiciary should "exercise review what was before forbidden
the utmost care and circumspection in passing upon a territory, to wit, the discretion of the
motion to dismiss on the ground of the absence political departments of the
thereof [cause of action] lest, by its failure to manifest government.
a correct appreciation of the facts alleged and
deemed hypothetically admitted, what the law grants As worded, the new provision vests in
or recognizes is effectively nullified. If that happens, the judiciary, and particularly the
there is a blot on the legal order. The law itself stands Supreme Court, the power to rule
in disrepute." upon even the wisdom of the
decisions of the executive and the
After careful examination of the petitioners' complaint, legislature and to declare their acts
We find the statements under the introductory invalid for lack or excess of jurisdiction
affirmative allegations, as well as the specific because tainted with grave abuse of
averments under the sub-heading CAUSE OF discretion. The catch, of course, is the
ACTION, to be adequate enough to show, prima meaning of "grave abuse of
facie, the claimed violation of their rights. On the basis discretion," which is a very elastic
thereof, they may thus be granted, wholly or partly, phrase that can expand or contract
the reliefs prayed for. It bears stressing, however, that according to the disposition of the
insofar as the cancellation of the TLAs is concerned, judiciary.
there is the need to implead, as party defendants, the
grantees thereof for they are indispensable parties. In Daza vs. Singson,   Mr. Justice Cruz, now
23

speaking for this Court, noted:

The foregoing considered, Civil Case No. 90-777 be
said to raise a political question. Policy formulation or In the case now before us, the
determination by the executive or legislative branches jurisdictional objection becomes even
of Government is not squarely put in issue. What is less tenable and decisive. The reason
principally involved is the enforcement of a right vis-a- is that, even if we were to assume that
vis policies already formulated and expressed in the issue presented before us was
legislation. It must, nonetheless, be emphasized that political in nature, we would still not be
the political question doctrine is no longer, the precluded from revolving it under the
insurmountable obstacle to the exercise of judicial expanded jurisdiction conferred upon
power or the impenetrable shield that protects us that now covers, in proper cases,
executive and legislative actions from judicial inquiry even the political question. Article VII,
or review. The second paragraph of section 1, Article Section 1, of the Constitution clearly
VIII of the Constitution states that: provides: . . .

Judicial power includes the duty of the The last ground invoked by the trial court in
courts of justice to settle actual dismissing the complaint is the non-impairment of
contracts clause found in the Constitution. The court a in this case.
quo declared that:
A license is merely a permit or
The Court is likewise of the impression privilege to do what otherwise would
that it cannot, no matter how we be unlawful, and is not a contract
stretch our jurisdiction, grant the between the authority, federal, state,
reliefs prayed for by the plaintiffs, i.e., or municipal, granting it and the
to cancel all existing timber license person to whom it is granted; neither
agreements in the country and to is it property or a property right, nor
cease and desist from receiving, does it create a vested right; nor is it
accepting, processing, renewing or taxation (37 C.J. 168). Thus, this
approving new timber license Court held that the granting of license
agreements. For to do otherwise does not create irrevocable rights,
would amount to "impairment of neither is it property or property rights
contracts" abhored (sic) by the (People vs. Ong Tin, 54 O.G. 7576).
fundamental law.  24

We reiterated this pronouncement in Felipe Ysmael,

We are not persuaded at all; on the contrary, We are Jr. & Co., Inc. vs. Deputy Executive Secretary:  26

amazed, if not shocked, by such a sweeping

pronouncement. In the first place, the respondent . . . Timber licenses, permits and
Secretary did not, for obvious reasons, even invoke in license agreements are the principal
his motion to dismiss the non-impairment clause. If he instruments by which the State
had done so, he would have acted with utmost regulates the utilization and
infidelity to the Government by providing undue and disposition of forest resources to the
unwarranted benefits and advantages to the timber end that public welfare is promoted.
license holders because he would have forever bound And it can hardly be gainsaid that they
the Government to strictly respect the said licenses merely evidence a privilege granted by
according to their terms and conditions regardless of the State to qualified entities, and do
changes in policy and the demands of public interest not vest in the latter a permanent or
and welfare. He was aware that as correctly pointed irrevocable right to the particular
out by the petitioners, into every timber license must concession area and the forest
be read Section 20 of the Forestry Reform Code (P.D. products therein. They may be validly
No. 705) which provides: amended, modified, replaced or
rescinded by the Chief Executive
. . . Provided, That when the national when national interests so require.
interest so requires, the President may Thus, they are not deemed contracts
amend, modify, replace or rescind any within the purview of the due process
contract, concession, permit, licenses of law clause [See Sections 3(ee) and
or any other form of privilege granted 20 of Pres. Decree No. 705, as
herein . . . amended. Also, Tan v. Director of
Forestry, G.R. No. L-24548, October
Needless to say, all licenses may thus be 27, 1983, 125 SCRA 302].
revoked or rescinded by executive action. It is
not a contract, property or a property right Since timber licenses are not contracts, the non-
protested by the due process clause of the impairment clause, which reads:
Constitution. In Tan vs. Director of
Forestry,   this Court held:
25
Sec. 10. No law impairing, the
obligation of contracts shall be
. . . A timber license is an instrument passed.  27

by which the State regulates the

utilization and disposition of forest cannot be invoked.
resources to the end that public
welfare is promoted. A timber license In the second place, even if it is to be assumed that
is not a contract within the purview of the same are contracts, the instant case does not
the due process clause; it is only a involve a law or even an executive issuance declaring
license or privilege, which can be the cancellation or modification of existing timber
validly withdrawn whenever dictated licenses. Hence, the non-impairment clause cannot as
by public interest or public welfare as yet be invoked. Nevertheless, granting further that a
law has actually been passed mandating WHEREFORE, being impressed with merit, the
cancellations or modifications, the same cannot still instant Petition is hereby GRANTED, and the
be stigmatized as a violation of the non-impairment challenged Order of respondent Judge of 18 July
clause. This is because by its very nature and 1991 dismissing Civil Case No. 90-777 is hereby set
purpose, such as law could have only been passed in aside. The petitioners may therefore amend their
the exercise of the police power of the state for the complaint to implead as defendants the holders or
purpose of advancing the right of the people to a grantees of the questioned timber license
balanced and healthful ecology, promoting their health agreements.
and enhancing the general welfare. In Abe vs. Foster
Wheeler  No pronouncement as to costs.
Corp.   this Court stated:
28

G.R. NO. 159357. April 28, 2004]

The freedom of contract, under our
system of government, is not meant to
be absolute. The same is understood Brother MARIANO MIKE Z.
to be subject to reasonable legislative VELARDE, Petitioner, v. SOCIAL
regulation aimed at the promotion of JUSTICE SOCIETY,Respondent.
public health, moral, safety and
welfare. In other words, the
DECISION
constitutional guaranty of non-
impairment of obligations of contract is
limited by the exercise of the police PANGANIBAN, J.:
power of the State, in the interest of
public health, safety, moral and A decision that does not conform to the
general welfare. form and substance required by the
Constitution and the law is void and
The reason for this is emphatically set forth in Nebia
vs. New York,   quoted in Philippine American Life
29 deemed legally inexistent. To be valid,
Insurance Co. vs. Auditor General,  to wit:
30 decisions should comply with the form,
the procedure and the substantive
Under our form of government the use requirements laid out in the Constitution,
of property and the making of the Rules of Court and relevant
contracts are normally matters of
private and not of public concern. The
circulars/orders of the Supreme Court.
general rule is that both shall be free For the guidance of the bench and the
of governmental interference. But bar, the Court hereby discusses these
neither property rights nor contract forms, procedures and requirements.
rights are absolute; for government
cannot exist if the citizen may at will
use his property to the detriment of his
The Case
fellows, or exercise his freedom of
contract to work them harm. Equally Before us is a Petition for Review1 under
fundamental with the private right is Rule 45 of the Rules of Court, assailing
that of the public to regulate it in the the June 12, 2003 Decision2 and July 29,
common interest.
2003 Order3 of the Regional Trial Court
In short, the non-impairment clause must yield to the
(RTC) of Manila (Branch 49). 4  ςrνll

police power of the state.  31

The challenged Decision was the offshoot

Finally, it is difficult to imagine, as the trial court did, of a Petition for Declaratory Relief5 filed
how the non-impairment clause could apply with before the RTC-Manila by herein
respect to the prayer to enjoin the respondent Respondent Social Justice Society (SJS)
Secretary from receiving, accepting, processing,
renewing or approving new timber licenses for, save against herein Petitioner Mariano Mike Z.
in cases of renewal, no contract would have as of yet Velarde, together with His Eminence,
existed in the other instances. Moreover, with respect Jaime Cardinal Sin, Executive Minister
to renewal, the holder is not entitled to it as a matter Erao Manalo, Brother Eddie Villanueva
of right. and Brother Eliseo F. Soriano as co-
respondents. The Petition prayed for the candidate for an elective office, or urging
resolution of the question whether or not or requiring the members of their flock to
the act of a religious leader like any of vote for a specified candidate. 
herein respondents, in endorsing the
candidacy of a candidate for elective The subsequent proceedings were
office or in urging or requiring the recounted in the challenged Decision in
members of his flock to vote for a these words: ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ

specified candidate, is violative of the

letter or spirit of the constitutional x x x. Bro. Eddie Villanueva submitted,
provisions x x x.6ςrνll
within the original period [to file an
Answer], a Motion to Dismiss.
Alleging that the questioned Decision did Subsequently, Executive Minister Erao
not contain a statement of facts and a Manalo and Bro. Mike Velarde, filed their
dispositive portion, herein petitioner filed Motions to Dismiss. While His Eminence
a Clarificatory Motion and Motion for Jaime Cardinal L. Sin, filed a Comment
Reconsideration before the trial court. and Bro. Eli Soriano, filed an Answer
Soriano, his co-respondent, similarly filed within the extended period and similarly
a separate Motion for Reconsideration. In prayed for the dismissal of the Petition.
response, the trial court issued the All sought the dismissal of the Petition on
assailed Order, which held as follows: ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ
the common grounds that it does not
state a cause of action and that there is
x x x [T]his Court cannot reconsider, no justiciable controversy. They were
because what it was asked to do, was ordered to submit a pleading by way of
only to clarify a Constitutional provision advisement, which was closely followed
and to declare whether acts are violative by another Order denying all the Motions
thereof. The Decision did not make a to Dismiss. Bro. Mike Velarde, Bro. Eddie
dispositive portion because a dispositive Villanueva and Executive Minister Erao
portion is required only in coercive Manalo moved to reconsider the denial.
reliefs, where a redress from wrong His Eminence Jaime Cardinal L. Sin,
suffered and the benefit that the asked for extension to file memorandum.
prevailing party wronged should get. The Only Bro. Eli Soriano complied with the
step that these movants have to take, is first Order by submitting his
direct appeal under Rule 45 of the Rules Memorandum. x x x.  chanroblesvirtuallawlibrary

of Court, for a conclusive interpretation

of the Constitutional provision to the x x x the Court denied the Motions to
Supreme Court.7 Dismiss, and the Motions for
Reconsideration filed by Bro. Mike
The Antecedent Proceedings Velarde, Bro. Eddie Villanueva and
Executive Minister Erao Manalo, which
On January 28, 2003, SJS filed a Petition raised no new arguments other than
for Declaratory Relief (SJS Petition) those already considered in the motions
before the RTC-Manila against Velarde to dismiss x x x.9  ςrνll

and his aforesaid co-respondents. SJS, a

registered political party, sought the After narrating the above incidents, the
interpretation of several constitutional trial court said that it had jurisdiction
provisions,8 specifically on the separation over the Petition, because in praying for
of church and state; and a declaratory a determination as to whether the
judgment on the constitutionality of the actions imputed to the respondents are
acts of religious leaders endorsing a violative of Article II, Section 6 of the
Fundamental Law, [the Petition] has 3.Whether or not herein respondent has
raised only a question of law.10 It then legal interest in filing the Petition for
proceeded to a lengthy discussion of the declaratory relief; chanroblesvirtuallawlibrary

issue raised in the Petition the separation

of church and state even tracing, to 4.Whether or not the constitutional
some extent, the historical background of question sought to be resolved by herein
the principle. Through its discourse, the respondent is ripe for judicial
court a quo opined at some point that determination; chanroblesvirtuallawlibrary

the [e]ndorsement of specific candidates

in an election to any public office is a 5.Whether or not there is adequate
clear violation of the separation remedy other than the declaratory relief;
clause.11 
ςrνll
and,

After its essay on the legal issue, 6.Whether or not the court a quo has
however, the trial court failed to include jurisdiction over the Petition for
a dispositive portion in its assailed declaratory relief of herein respondent.15  ςrνll

Decision. Thus, Velarde and Soriano filed

separate Motions for Reconsideration During the Oral Argument, the issues
which, as mentioned earlier, were denied were narrowed down and classified as
by the lower court. follows: ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ

Hence, this Petition for Review.12  ςrνll

A.Procedural Issues

This Court, in a Resolution13 dated Did the Petition for Declaratory Relief

September 2, 2003, required SJS and the raise a justiciable controversy?Did it
Office of the Solicitor General (OSG) to state a cause of action? Did respondent
submit their respective comments. In the have any legal standing to file the
same Resolution, the Court gave the Petition for Declaratory Relief? chanroblesvirtualawlibrary

other parties -- impleaded as

respondents in the original case below B.Substantive Issues
--the opportunity to comment, if they so
desired. 1.Did the RTC Decision conform to the
form and substance required by the
On April 13, 2004, the Court en banc Constitution, the law and the Rules of
conducted an Oral Argument.14 Court?chanroblesvirtualawlibrary

The Issues 2.May religious leaders like herein

petitioner, Bro. Mike Velarde, be
In his Petition, Brother Mike Velarde prohibited from endorsing candidates for
submits the following issues for this public office? Corollarily, may they be
Courts resolution: ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ
banned from campaigning against said
candidates?
1.Whether or not the Decision dated 12
June 2003 rendered by the court a The Courts Ruling
quo was proper and valid; chanroblesvirtuallawlibrary

The Petition of Brother Mike Velarde is

2.Whether or not there exists justiceable meritorious.
controversy in herein respondents
Petition for declaratory relief; chanroblesvirtuallawlibrary
Procedural Issues:
 Requisites of Petitions  Velarde alleges that SJS premised its
for Declaratory Relief action on mere speculations, contingent
events, and hypothetical issues that had
Section 1 of Rule 63 of the Rules of not yet ripened into an actual
Court, which deals with petitions for controversy. Thus, its Petition for
declaratory relief, provides in part:ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ
Declaratory Relief must fail.

Section 1. Who may file petition.- Any A justiciable controversy refers to an

person interested under a deed, will, existing case or controversy that is
contract or other written instrument, appropriate or ripe for judicial
whose rights are affected by a statute, determination, not one that is conjectural
executive order or regulation, ordinance, or merely anticipatory.18 The SJS Petition
or any other governmental regulation for Declaratory Relief fell short of this
may, before breach or violation thereof, test. It miserably failed to allege an
bring an action in the appropriate existing controversy or dispute between
Regional Trial Court to determine any the petitioner and the named
question of construction or validity respondents therein. Further, the Petition
arising, and for a declaration of his rights did not sufficiently state what specific
or duties thereunder. legal right of the petitioner was violated
by the respondents therein; and what
Based on the foregoing, an action for particular act or acts of the latter were in
declaratory relief should be filed by a breach of its rights, the law or the
person interested under a deed, a will, a Constitution.
contract or other written instrument, and
whose rights are affected by a statute, As pointed out by Brother Eliseo F.
an executive order, a regulation or an Soriano in his Comment,19 what exactly
ordinance. The purpose of the remedy is has he done that merited the attention of
to interpret or to determine the validity SJS? He confesses that he does not know
of the written instrument and to seek a the answer, because the SJS Petition (as
judicial declaration of the parties rights well as the assailed Decision of the RTC)
or duties thereunder.16 The essential yields nothing in this respect. His
requisites of the action are as follows: Eminence, Jaime Cardinal Sin, adds that,
(1) there is a justiciable controversy; (2) at the time SJS filed its Petition on
the controversy is between persons January 28, 2003, the election season
whose interests are adverse; (3) the had not even started yet; and that, in
party seeking the relief has a legal any event, he has not been actively
interest in the controversy; and (4) the involved in partisan politics.
issue is ripe for judicial determination.17
An initiatory complaint or petition filed
Justiciable Controversy with the trial court should contain a
plain, concise and direct statement of the
Brother Mike Velarde contends that the ultimate facts on which the party
SJS Petition failed to allege, much less pleading relies for his claim x x x.20 Yet,
establish before the trial court, that there the SJS Petition stated no ultimate facts.
existed a justiciable controversy or an
adverse legal interest between them; Indeed, SJS merely speculated or
and that SJS had a legal right that was anticipated without factual moorings
being violated or threatened to be that, as religious leaders, the petitioner
violated by petitioner. On the contrary, and his co-respondents below had
endorsed or threatened to endorse a principle on the separation of church and
candidate or candidates for elective state. SJS did not ask for a declaration of
offices; and that such actual or its rights and duties; neither did it pray
threatened endorsement will enable for the stoppage of any threatened
[them] to elect men to public office who violation of its declared rights.Courts,
[would] in turn be forever beholden to however, are proscribed from rendering
their leaders, enabling them to control an advisory opinion.25
the government[;]21 and pos[ing] a clear
and present danger of serious erosion of Cause of Action
the peoples faith in the electoral
process[;] and reinforc[ing] their belief Respondent SJS asserts that in order to
that religious leaders determine the maintain a petition for declaratory relief,
ultimate result of elections,22 which a cause of action need not be alleged or
would then be violative of the separation proven. Supposedly, for such petition to
clause. prosper, there need not be any violation
of a right, breach of duty or actual wrong
Such premise is highly speculative and committed by one party against the
merely theoretical, to say the least. other.
Clearly, it does not suffice to constitute a
justiciable controversy. The Petition does Petitioner, on the other hand, argues
not even allege any indication or that the subject matter of an action for
manifest intent on the part of any of the declaratory relief should be a deed, a
respondents below to champion an will, a contract (or other written
electoral candidate, or to urge their so- instrument), a statute, an executive
called flock to vote for, or not to vote for, order, a regulation or an ordinance. But
a particular candidate. It is a time- the subject matter of the SJS Petition is
honored rule that sheer speculation does the constitutionality of an act of a
not give rise to an actionable right. religious leader to endorse the candidacy
of a candidate for elective office or to
Obviously, there is no factual allegation urge or require the members of the flock
that SJS rights are being subjected to to vote for a specified
any threatened, imminent and inevitable candidate.26 According to petitioner, this
violation that should be prevented by the subject matter is beyond the realm of an
declaratory relief sought.The judicial action for declaratory relief.27 Petitioner
power and duty of the courts to settle avers that in the absence of a valid
actual controversies involving rights that subject matter, the Petition fails to state
are legally demandable and a cause of action and, hence, should
enforceable23 cannot be exercised when have been dismissed outright by the
there is no actual or threatened violation court a quo.
of a legal right.
A cause of action is an act or an omission
All that the 5-page SJS Petition prayed of one party in violation of the legal right
for was that the question raised in or rights of another, causing injury to the
paragraph 9 hereof be resolved.24 In latter.28 Its essential elements are the
other words, it merely sought an opinion following: (1) a right in favor of the
of the trial court on whether the plaintiff; (2) an obligation on the part of
speculated acts of religious leaders the named defendant to respect or not to
endorsing elective candidates for political violate such right; and (3) such
offices violated the constitutional defendants act or omission that is
violative of the right of the plaintiff or the Corpus Juris Secundum and submits
constituting a breach of the obligation of that the [p]laintiff in a declaratory
the former to the latter.29 ςrνll judgment action does not seek to enforce
a claim against [the] defendant, but
The failure of a complaint to state a seeks a judicial declaration of [the] rights
cause of action is a ground for its of the parties for the purpose of guiding
outright dismissal.30However, in special [their] future conduct, and the essential
civil actions for declaratory relief, the distinction between a declaratory
concept of a cause of action under judgment action and the usual action is
ordinary civil actions does not strictly that no actual wrong need have been
apply. The reason for this exception is committed or loss have occurred in order
that an action for declaratory relief to sustain the declaratory judgment
presupposes that there has been no action, although there must be no
actual breach of the instruments involved uncertainty that the loss will occur or
or of rights arising that the asserted rights will be
thereunder.31 Nevertheless, a breach or invaded.35 ςrνll

violation should be impending, imminent

or at least threatened. SJS has, however, ignored the crucial
point of its own reference that there
A perusal of the Petition filed by SJS must be no uncertainty that the loss will
before the RTC discloses no explicit occur or that the asserted rights will be
allegation that the former had any legal invaded. Precisely, as discussed earlier, it
right in its favor that it sought to protect. merely conjectures that herein petitioner
We can only infer the interest, (and his co-respondents
supposedly in its favor, from its bare below) might actively participate in
allegation that it has thousands of partisan politics, use the awesome voting
members who are citizens-taxpayers- strength of its faithful flock [to] enable it
registered voters and who are keenly to elect men to public office x x x,
interested in a judicial clarification of the enabling [it] to control the
constitutionality of the partisan government.36  ςrνll

participation of religious leaders in

Philippine politics and in the process to During the Oral Argument, though,
insure adherence to the Constitution by Petitioner Velarde and his co-
everyone x x x.32  ςrνll respondents below all strongly asserted
that they had not in any way engaged or
Such general averment does not, intended to participate in partisan
however, suffice to constitute a legal politics.They all firmly assured this Court
right or interest. Not only is the that they had not done anything to
presumed interest not personal in trigger the issue raised and to entitle SJS
character; it is likewise too vague, highly to the relief sought.
speculative and uncertain.33 The Rules
require that the interest must be Indeed, the Court finds in the Petition for
material to the issue and affected by the Declaratory Relief no single allegation of
questioned act or instrument, as fact upon which SJS could base a right of
distinguished from simple curiosity or relief from the named respondents. In
incidental interest in the question any event, even granting that it
raised.34 
ςrνll sufficiently asserted a legal right it
sought to protect, there was
To bolster its stance, SJS cites nevertheless no certainty that such right
would be invaded by the said First, parties suing as taxpayers must
respondents. Not even the alleged specifically prove that they have
proximity of the elections to the time the sufficient interest in preventing the illegal
Petition was filed below (January 28, expenditure of money raised by
2003) would have provided the certainty taxation.42 A taxpayers action may be
that it had a legal right that would be properly brought only when there is an
jeopardized or violated by any of those exercise by Congress of its taxing or
Respondents.  spending power.43 In the present case,
there is no allegation, whether express
Legal Standing or implied, that taxpayers money is
being illegally disbursed.
Legal standing or locus standi has been
defined as a personal and substantial Second, there was no showing in the
interest in the case, such that the party Petition for Declaratory Relief that SJS as
has sustained or will sustain direct injury a political party or its members as
as a result of the challenged registered voters would be adversely
act.37 Interest means a material interest affected by the alleged acts of the
in issue that is affected by the respondents below, if the question at
questioned act or instrument, as issue was not resolved. There was no
distinguished from a mere incidental allegation that SJS had suffered or would
interest in the question involved.38 
ςrνll
be deprived of votes due to the acts
imputed to the said respondents. Neither
Petitioner alleges that [i]n seeking did it allege that any of its members
declaratory relief as to the would be denied the right of suffrage or
constitutionality of an act of a religious the privilege to be voted for a public
leader to endorse, or require the office they are seeking.
members of the religious flock to vote for
a specific candidate, herein Respondent Finally, the allegedly keen interest of its
SJS has no legal interest in the thousands of members who are citizens-
controversy;39 it has failed to establish taxpayers-registered voters is too
how the resolution of the proffered general44 and beyond the contemplation
question would benefit or injure it. of the standards set by our
jurisprudence. Not only is the presumed
Parties bringing suits challenging the interest impersonal in character; it is
constitutionality of a law, an act or a likewise too vague, highly speculative
statute must show not only that the law and uncertain to satisfy the requirement
[or act] is invalid, but also that [they of standing.45
have] sustained or [are] in immediate or
imminent danger of sustaining some Transcendental Importance
direct injury as a result of its
enforcement, and not merely that [they] In any event, SJS urges the Court to
suffer thereby in some indefinite take cognizance of the Petition, even
way.40 They must demonstrate that they sans legal standing, considering that the
have been, or are about to be, denied issues raised are of paramount public
some right or privilege to which they are interest.
lawfully entitled, or that they are about
to be subjected to some burdens or In not a few cases, the Court has
penalties by reason of the statute or act liberalized the locus standi requirement
complained of.41 ςrνll
when a petition raises an issue of
transcendental significance or paramount followed by trial courts in the conduct of
importance to the people.46Recently, civil cases.50 
ςrνll

after holding that the IBP had no locus

standi to bring the suit, the Court in IBP Prefatorily, the trial court may -- motu
v. Zamora47 nevertheless entertained the proprio or upon motion of the defendant
Petition therein. It noted that the IBP has -- dismiss a complaint51 (or petition, in a
advanced constitutional issues which special civil action) that does not allege
deserve the attention of this Court in the plaintiffs (or petitioners) cause or
view of their seriousness, novelty and causes of action.52 A complaint or petition
weight as precedents.48 ςrνll
should contain a plain, concise and direct
statement of the ultimate facts on which
Similarly in the instant case, the Court the party pleading relies for his claim or
deemed the constitutional issue raised in defense.53 It should likewise clearly
the SJS Petition to be of paramount specify the relief sought.54 
ςrνll

interest to the Filipino people. The issue

did not simply concern a delineation of Upon the filing of the complaint/petition
the separation between church and state, and the payment of the requisite legal
but ran smack into the governance of our fees, the clerk of court shall forthwith
country. The issue was both issue the corresponding summons to the
transcendental in importance and novel defendants or the respondents, with a
in nature, since it had never been directive that the defendant
decided before. answer55 within 15 days, unless a
different period is fixed by the
The Court, thus, called for Oral Argument court.56 The summons shall also contain
to determine with certainty whether it a notice that if such answer is not filed,
could resolve the constitutional issue the plaintiffs/petitioners shall take a
despite the barren allegations in the SJS judgment by default and may be granted
Petition as well as the abbreviated the relief applied for.57 The court,
proceedings in the court below. Much to however, may -- upon such terms as
its chagrin, however, counsels for the may be just -- allow an answer to be
parties -- particularly for Respondent SJS filed after the time fixed by the Rules.58  ςrνll

-- made no satisfactory allegations or

clarifications that would supply the If the answer sets forth a counterclaim or
deficiencies hereinabove discussed. cross-claim, it must be answered within
Hence, even if the Court would exempt ten (10) days from service.59 A reply may
this case from the stringent locus be filed within ten (10) days from service
standi requirement, such heroic effort of the pleading responded to.60  ςrνll

would be futile because the

transcendental issue cannot be resolved When an answer fails to tender an issue
anyway. or admits the material allegations of the
adverse partys pleading, the court may,
Proper Proceedings Before  on motion of that party, direct judgment
the Trial Court on such pleading (except in actions for
declaration of nullity or annulment of
To prevent a repetition of this waste of marriage or for legal
precious judicial time and effort, and for separation). 61 Meanwhile, a party
the guidance of the bench and the bar, seeking to recover upon a claim, a
the Court reiterates counterclaim or crossclaim -- or to obtain
the elementary procedure49 that must be a declaratory relief -- may, at any time
after the answer thereto has been pretrial,68 which is a mandatory
served, move for a summary judgment in proceeding.69 A plaintiffs/ petitioners (or
its favor.62 Similarly, a party against its duly authorized representatives) non-
whom a claim, a counterclaim or appearance at the pretrial, if without
crossclaim is asserted -- or a declaratory valid cause, shall result in the dismissal
relief sought -- may, at any time, move of the action with prejudice, unless the
for a summary judgment in its court orders otherwise. A similar failure
favor.63 After the motion is heard, the on the part of the defendant shall be a
judgment sought shall be rendered cause for allowing the plaintiff/petitioner
forthwith if there is a showing that, to present evidence ex parte, and the
except as to the amount of damages, court to render judgment on the basis
there is no genuine issue as to any thereof.70 
ςrνll

material fact; and that the moving party

is entitled to a judgment as a matter of The parties are required to file their
law.64 
ςrνll
pretrial briefs; failure to do so shall have
the same effect as failure to appear at
Within the time for -- but before -- filing the pretrial.71 Upon the termination
the answer to the complaint or petition, thereof, the court shall issue an order
the defendant may file a motion to reciting in detail the matters taken up at
dismiss based on any of the grounds the conference; the action taken on
stated in Section 1 of Rule 16 of the them, the amendments allowed to the
Rules of Court. During the hearing of the pleadings; and the agreements or
motion, the parties shall submit their admissions, if any, made by the parties
arguments on the questions of law, and regarding any of the matters
their evidence on the questions of considered.72 The parties may further
fact.65After the hearing, the court may avail themselves of any of the modes of
dismiss the action or claim, deny the discovery,73 if they so wish.
motion, or order the amendment of the
pleadings. It shall not defer the Thereafter, the case shall be set for
resolution of the motion for the reason trial,74 in which the parties shall adduce
that the ground relied upon is not their respective evidence in support of
indubitable. In every case, the resolution their claims and/or defenses. By their
shall state clearly and distinctly the written consent or upon the application
reasons therefor.66 ςrνll
of either party, or on its own motion, the
court may also order any or all of the
If the motion is denied, the movant may issues to be referred to a commissioner,
file an answer within the balance of the who is to be appointed by it or to be
period originally prescribed to file an agreed upon by the parties.75 The trial or
answer, but not less than five (5) days in hearing before the commissioner shall
any event, computed from the receipt of proceed in all respects as it would if held
the notice of the denial. If the pleading is before the court.76 ςrνll

ordered to be amended, the defendant

shall file an answer within fifteen (15) Upon the completion of such
days, counted from the service of the proceedings, the commissioner shall file
amended pleading, unless the court with the court a written report on the
provides a longer period.67 ςrνll
matters referred by the parties.77 The
report shall be set for hearing, after
After the last pleading has been served which the court shall issue an order
and filed, the case shall be set for adopting, modifying or rejecting it in
whole or in part; or recommitting it with Petition, Velarde, Villanueva and Manalo
instructions; or requiring the parties to filed Motions to Dismiss; Cardinal Sin, a
present further evidence before the Comment; and Soriano, within a priorly
commissioner or the court.78  ςrνll granted extended period, an Answer in
which he likewise prayed for the
Finally, a judgment or final order dismissal of the Petition.82 SJS filed a
determining the merits of the case shall Rejoinder to the Motion of Velarde, who
be rendered. The decision shall be in subsequently filed a Sur-Rejoinder.
writing, personally and directly prepared Supposedly, there were several
by the judge, stating clearly and scheduled settings, in which the [c]ourt
distinctly the facts and the law on which was apprised of the respective positions
it is based, signed by the issuing of the parties.83 The nature of such
magistrate, and filed with the clerk of settings -- whether pretrial or trial
court.79 
ςrνll
hearings -- was not disclosed in the
records. Before ruling on the Motions to
Based on these elementary guidelines, Dismiss, the trial court issued an
let us examine the proceedings before Order84 dated May 8, 2003, directing the
the trial court in the instant case. parties to submit their memoranda.
Issued shortly thereafter was another
First, with respect to the initiatory Order85 dated May 14, 2003, denying all
pleading of the SJS. Even a cursory the Motions to Dismiss.
perusal of the Petition immediately
reveals its gross inadequacy. It contained In the latter Order, the trial court
no statement of ultimate facts upon perfunctorily ruled: ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ

which the petitioner relied for its claim.

Furthermore, it did not specify the relief The Court now resolves to deny the
it sought from the court, but merely Motions to Dismiss, and after all the
asked it to answer a hypothetical memoranda are submitted, then, the
question. case shall be deemed as submitted for
resolution.86 
ςrνll

Relief, as contemplated in a legal action,

refers to a specific coercive measure Apparently, contrary to the requirement
prayed for as a result of a violation of the of Section 2 of Rule 16 of the Rules of
rights of a plaintiff or a petitioner.80 As Court, the Motions were not
already discussed earlier, the Petition heard.Worse, the Order purportedly
before the trial court had no allegations resolving the Motions to Dismiss did not
of fact81 or of any specific violation of the state any reason at all for their denial, in
petitioners rights, which the respondents contravention of Section 3 of the said
had a duty to respect. Such deficiency Rule 16. There was not even any
amounted to a failure to state a cause of statement of the grounds relied upon by
action; hence, no coercive relief could be the Motions; much less, of the legal
sought and adjudicated. The Petition findings and conclusions of the trial
evidently lacked substantive court.
requirements and, we repeat, should
have been dismissed at the outset. Thus, Velarde, Villanueva and Manalo
moved for reconsideration. Pending the
Second, with respect to the trial court resolution of these Motions for
proceedings. Within the period set to file Reconsideration, Villanueva filed a Motion
their respective answers to the SJS to suspend the filing of the parties
memoranda. But instead of separately decision must adhere to constitutional
resolving the pending Motions fairly and and legal requirements.
squarely, the trial court again
transgressed the Rules of Court when it First Substantive Issue:
immediately proceeded to issue its
Decision, even before tackling the issues Fundamental Requirements 
raised in those Motions. of a Decision

Furthermore, the RTC issued its Decision The Constitution commands that [n]o
without allowing the parties to file their decision shall be rendered by any court
answers. For this reason, there was no without expressing therein clearly and
joinder of the issues. If only it had distinctly the facts and the law on which
allowed the filing of those answers, the it is based. No Petition for Review or
trial court would have known, as the Oral motion for reconsideration of a decision
Argument revealed, that the petitioner of the court shall be refused due course
and his co-respondents below had not or denied without stating the basis
committed or threatened to commit the therefor.88  ςrνll

act attributed to them (endorsing

candidates) -- the act that was Consistent with this constitutional
supposedly the factual basis of the suit. mandate, Section 1 of Rule 36 of the
Rules on Civil Procedure similarly
Parenthetically, the court a quo further provides:ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ

failed to give a notice of the Petition to

the OSG, which was entitled to be heard Sec. 1. Rendition of judgments and final
upon questions involving the orders. A judgment or final order
constitutionality or validity of statutes determining the merits of the case shall
and other measures.87  ςrνll
be in writing personally and directly
prepared by the judge, stating clearly
Moreover, as will be discussed in more and distinctly the facts and the law on
detail, the questioned Decision of the which it is based, signed by him and filed
trial court was utterly wanting in the with the clerk of court.
requirements prescribed by the
Constitution and the Rules of Court. In the same vein, Section 2 of Rule 120
of the Rules of Court on Criminal
All in all, during the loosely abbreviated Procedure reads as follows: ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ

proceedings of the case, the trial court

indeed acted with inexplicable haste, Sec. 2. Form and contents of judgments.
with total ignorance of the law -- or, -- The judgment must be written in the
worse, in cavalier disregard of the rules official language, personally and directly
of procedure -- and with grave abuse of prepared by the judge and signed by him
discretion. and shall contain clearly and distinctly a
statement of the facts proved or
Contrary to the contentions of the trial admitted by the accused and the law
judge and of SJS, proceedings for upon which the judgment is based.
declaratory relief must still follow the
process described above -- the petition x     x     x.
must state a cause of action; the
proceedings must undergo the procedure Pursuant to the Constitution, this Court
outlined in the Rules of Court; and the also issued on January 28, 1988,
Administrative Circular No. 1, prompting impetuosity of the judge, preventing him
all judges to make complete findings of from deciding ipse dixit. Vouchsafed
facts in their decisions, and scrutinize neither the sword nor the purse by the
closely the legal aspects of the case in Constitution but nonetheless vested with
the light of the evidence presented.They the sovereign prerogative of passing
should avoid the tendency to generalize judgment on the life, liberty or property
and form conclusions without detailing of his fellowmen, the judge must
the facts from which such conclusions ultimately depend on the power of
are deduced. reason for sustained public confidence in
the justness of his decision.
In many cases,89 this Court has time and
time again reminded magistrates to heed In People v. Bugarin,91 the Court also
the demand of Section 14, Article VIII of explained:ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ

the Constitution. The Court, through

Chief Justice Hilario G. Davide Jr. in Yao The requirement that the decisions of
v. Court of Appeals,90 discussed at length courts must be in writing and that they
the implications of this provision and must set forth clearly and distinctly the
strongly exhorted thus: ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ
facts and the law on which they are
based serves many functions. It is
Faithful adherence to the requirements of intended, among other things, to inform
Section 14, Article VIII of the the parties of the reason or reasons for
Constitution is indisputably a paramount the decision so that if any of them
component of due process and fair play. appeals, he can point out to the appellate
It is likewise demanded by the due court the finding of facts or the rulings
process clause of the Constitution. The on points of law with which he disagrees.
parties to a litigation should be informed More than that, the requirement is an
of how it was decided, with an assurance to the parties that, in reaching
explanation of the factual and legal judgment, the judge did so through the
reasons that led to the conclusions of the processes of legal reasoning. x x x.  chanroblesvirtuallawlibrary

court. The court cannot simply say that

judgment is rendered in favor of X and Indeed, elementary due process
against Y and just leave it at that without demands that the parties to a litigation
any justification whatsoever for its be given information on how the case
action. The losing party is entitled to was decided, as well as an explanation of
know why he lost, so he may appeal to the factual and legal reasons that led to
the higher court, if permitted, should he the conclusions of the court.92  ςrνll

believe that the decision should be

reversed. A decision that does not clearly In Madrid v. Court of Appeals,93 this
and distinctly state the facts and the law Court had instructed magistrates to exert
on which it is based leaves the parties in effort to ensure that their decisions
the dark as to how it was reached and is would present a comprehensive analysis
precisely prejudicial to the losing party, or account of the factual and legal
who is unable to pinpoint the possible findings that would substantially address
errors of the court for review by a higher the issues raised by the parties.
tribunal. More than that, the requirement
is an assurance to the parties that, in In the present case, it is starkly obvious
reaching judgment, the judge did so that the assailed Decision contains no
through the processes of legal reasoning. statement of facts -- much less an
It is, thus, a safeguard against the assessment or analysis thereof -- or of
the courts findings as to the probable The resolution of the Court on a given
facts. The assailed Decision begins with a issue as embodied in the dispositive part
statement of the nature of the action and of the decision or order is the investitive
the question or issue presented. Then or controlling factor that determines and
follows a brief explanation of the settles the rights of the parties and the
constitutional provisions involved, and questions presented therein,
what the Petition sought to achieve. notwithstanding the existence of
Thereafter, the ensuing procedural statements or declaration in the body of
incidents before the trial court are said order that may be confusing.
tracked. The Decision proceeds to a full-
length opinion on the nature and the The assailed Decision in the present case
extent of the separation of church and leaves us in the dark as to its final
state. Without expressly stating the final resolution of the Petition. To recall, the
conclusion she has reached or specifying original Petition was for declaratory
the relief granted or denied, the trial relief. So, what relief did the trial court
judge ends her Decision with the clause grant or deny? What rights of the parties
SO ORDERED. did it conclusively declare? Its final
statement says, SO ORDERED. But what
What were the antecedents that exactly did the court order? It had the
necessitated the filing of the Petition? temerity to label its issuance a Decision,
What exactly were the distinct facts that when nothing was in fact decided. 
gave rise to the question sought to be
resolved by SJS? More important, what Respondent SJS insists that the
were the factual findings and analysis on dispositive portion can be found in the
which the trial court based its legal body of the assailed Decision. It claims
findings and conclusions? None were that the issue is disposed of and the
stated or implied. Indeed, the RTCs Petition finally resolved by the statement
Decision cannot be upheld for its failure of the trial court found on page 10 of its
to express clearly and distinctly the facts 14-page Decision, which reads:
on which it was based. Thus, the trial Endorsement of specific candidates in an
court clearly transgressed the election to any public office is a clear
constitutional directive. violation of the separation clause.95 
ςrνll

The significance of factual findings lies in We cannot agree.

the value of the decision as a precedent.
How can it be so if one cannot apply the In Magdalena Estate, Inc. v.
ruling to similar circumstances, simply Caluag,96 the obligation of the party
because such circumstances are imposed by the Court was allegedly
unknown? Otherwise stated, how will the contained in the text of the original
ruling be applied in the future, if there is Decision. The Court, however, held: ςηαñrοblεš  νιr†υαl  lαω lιbrαrÿ

no point of factual comparison? chanroblesvirtualawlibrary

x x x The quoted finding of the lower

Moreover, the court a quo did not include court cannot supply deficiencies in the
a resolutory or dispositive portion in its dispositive portion. It is a mere opinion
so-called Decision. The importance of of the court and the rule is settled that
such portion was explained in the early where there is a conflict between
case Manalang v. Tuason de the dispositive part and the opinion, the
Rickards,94 from which we quote: ςηαñrοblεš  νιr†υαl  lαω lιbrαrÿ
former must prevail over the latter on
the theory that the dispositive portion is
the final order while the opinion is merely prologue may serve to acquaint readers
a statement ordering nothing. (Italics in with the specific nature of the
the original)  controversy and the issues involved. An
epilogue may be a summation of the
Thus, the dispositive portion cannot be important principles applied to the
deemed to be the statement quoted by resolution of the issues of paramount
SJS and embedded in the last paragraph public interest or significance. It may
of page 10 of the assailed 14-page also lay down an enduring philosophy of
Decision. If at all, that statement is law or guiding principle.
merely an answer to a hypothetical legal
question and just a part of the opinion of Let us now, again for the guidance of the
the trial court. It does not conclusively bench and the bar, discuss the essential
declare the rights (or obligations) of the parts of a good decision.
parties to the Petition. Neither does it
grant any -- much less, the proper -- 1.Statement of the Case
relief under the circumstances, as
required of a dispositive portion. The Statement of the Case consists of a
legal definition of the nature of the
Failure to comply with the constitutional action.At the first instance, this part
injunction is a grave abuse of discretion states whether the action is a civil case
amounting to lack or excess of for collection, ejectment, quieting of title,
jurisdiction. Decisions or orders issued in foreclosure of mortgage, and so on; or, if
careless disregard of the constitutional it is a criminal case, this part describes
mandate are a patent nullity and must be the specific charge -- quoted usually
struck down as void.97 from the accusatory portion of the
information -- and the plea of the
Parts of a Decision accused. Also mentioned here are
whether the case is being decided on
In general, the essential parts of a good appeal or on a petition for certiorari , the
decision consist of the following: (1) court of origin, the case number in the
statement of the case; (2) statement of trial court, and the dispositive portion of
facts; (3) issues or assignment of errors; the assailed decision.
(4) court ruling, in which each issue is,
as a rule, separately considered and In a criminal case, the verbatim
resolved; and, finally, (5) dispositive reproduction of the criminal information
portion. The ponente may also opt to serves as a guide in determining the
include an introduction or a prologue as nature and the gravity of the offense for
well as an epilogue, especially in cases in which the accused may be found
which controversial or novel issues are culpable.As a rule, the accused cannot be
involved.98 
ςrνll convicted of a crime different from or
graver than that charged.
An introduction may consist of a concise
but comprehensive statement of the Also, quoting verbatim the text of the
principal factual or legal issue/s of the information is especially important when
case. In some cases -- particularly those there is a question on the sufficiency of
concerning public interest; or involving the charge, or on whether qualifying and
complicated commercial, scientific, modifying circumstances have been
technical or otherwise rare subject adequately alleged therein.
matters -- a longer introduction or
To ensure that due process is accorded, In criminal cases, it is better to present
it is important to give a short description both the version of the prosecution and
of the proceedings regarding the plea of that of the defense, in the interest of
the accused. Absence of an arraignment, fairness and due process. A detailed
or a serious irregularity therein, may evaluation of the contentions of the
render the judgment void, and further parties must follow. The resolution of
consideration by the appellate court most criminal cases, unlike civil and
would be futile. In some instances, other cases, depends to a large extent on
especially in appealed cases, it would the factual issues and the appreciation of
also be useful to mention the fact of the the evidence. The plausibility or the
appellants detention, in order to dispose implausibility of each version can
of the preliminary query -- whether or sometimes be initially drawn from a
not they have abandoned their appeal by reading of the facts. Thereafter, the
absconding or jumping bail. bases of the court in arriving at its
findings and conclusions should be
Mentioning the court of origin and the explained.
case number originally assigned helps in
facilitating the consolidation of the On appeal, the fact that the assailed
records of the case in both the trial and decision of the lower court fully,
the appellate courts, after entry of final intelligently and correctly resolved all
judgment. factual and legal issues involved may
partly explain why the reviewing court
Finally, the reproduction of the decretal finds no reason to reverse the findings
portion of the assailed decision informs and conclusions of the former.
the reader of how the appealed case was Conversely, the lower courts patent
decided by the court a quo. misappreciation of the facts or
misapplication of the law would aid in a
2.Statement of Facts better understanding of why its ruling is
reversed or modified.
There are different ways of relating the
facts of the case. First, under the In appealed civil cases, the opposing sets
objective or reportorial method, the of facts no longer need to be presented.
judge summarizes -- without comment -- Issues for resolution usually involve
the testimony of each witness and the questions of law, grave abuse of
contents of each exhibit. Second, under discretion, or want of jurisdiction; hence,
the synthesis method, the factual theory the facts of the case are often
of the plaintiff or prosecution and then undisputed by the parties. With few
that of the defendant or defense is exceptions, factual issues are not
summarized according to the judges best entertained in non-criminal
light. Third, in the subjective method, cases.Consequently, the narration of
the version of the facts accepted by the facts by the lower court, if exhaustive
judge is simply narrated without and clear, may be reproduced;
explaining what the parties versions otherwise, the material factual
are. Finally, through a combination of antecedents should be restated in the
objective and subjective means, the words of the reviewing magistrate.
testimony of each witness is reported
and the judge then formulates his or her In addition, the reasoning of the lower
own version of the facts. court or body whose decision is under
review should be laid out, in order that
the parties may clearly understand why practicable. The respective contentions of
the lower court ruled in a certain way, the parties should also be mentioned
and why the reviewing court either finds here. When procedural questions are
no reason to reverse it or concludes raised in addition to substantive ones, it
otherwise. is better to resolve the former
preliminarily.
3.Issues or Assignment of Errors
5.The Disposition or Dispositive
Both factual and legal issues should be Portion
stated. On appeal, the assignment of
errors, as mentioned in the appellants In a criminal case, the disposition should
brief, may be reproduced in toto and include a finding of innocence or guilt,
tackled seriatim,so as to avoid motions the specific crime committed, the penalty
for reconsideration of the final decision imposed, the participation of the
on the ground that the court failed to accused, the modifying circumstances if
consider all assigned errors that could any, and the civil liability and costs. In
affect the outcome of the case. But when case an acquittal is decreed, the court
the appellant presents repetitive issues must order the immediate release of the
or when the assigned errors do not strike accused, if detained, (unless they are
at the main issue, these may be restated being held for another cause) and order
in clearer and more coherent terms. the director of the Bureau of Corrections
(or wherever the accused is detained) to
Though not specifically questioned by the report, within a maximum of ten (10)
parties, additional issues may also be days from notice, the exact date when
included, if deemed important for the accused were set free.
substantial justice to be rendered. Note
that appealed criminal cases are In a civil case as well as in a special civil
given de novo review, in contrast to action, the disposition should state
noncriminal cases in which the reviewing whether the complaint or petition is
court is generally limited to issues granted or denied, the specific relief
specifically raised in the appeal. The few granted, and the costs.The following test
exceptions are errors of jurisdiction; of completeness may be
questions not raised but necessary in applied. First, the parties should know
arriving at a just decision on the case; or their rights and obligations. Second, they
unassigned errors that are closely related should know how to execute the decision
to those properly assigned, or upon under alternative
which depends the determination of the contingencies. Third, there should be no
question properly raised. need for further proceedings to dispose
of the issues. Fourth, the case should be
4.The Courts Ruling terminated by according the proper
relief. The proper relief usually depends
This part contains a full discussion of the upon what the parties seek in their
specific errors or issues raised in the pleadings. It may declare their rights and
complaint, petition or appeal, as the case duties, command the performance of
may be; as well as of other issues the positive prestations, or order them to
court deems essential to a just abstain from specific acts. The
disposition of the case. Where there are disposition must also adjudicate costs.
several issues, each one of them should
be separately addressed, as much as The foregoing parts need not always be
discussed in sequence. But they should in the assailed Decision. At best, SJS
all be present and plainly identifiable in merely asked the trial court to answer a
the decision.Depending on the writers hypothetical question. In effect, it merely
character, genre and style, the language sought an advisory opinion, the rendition
should be fresh and free-flowing, not of which was beyond the courts
necessarily stereotyped or in a fixed constitutional mandate and
form; much less highfalutin, hackneyed jurisdiction.99 
ςrνll

and pretentious. At all times, however,

the decision must be clear, concise, Indeed, the assailed Decision was
complete and correct. rendered in clear violation of the
Constitution, because it made no findings
Second Substantive Issue: of facts and final disposition. Hence, it is
void and deemed legally inexistent.
Religious Leaders Endorsement  Consequently, there is nothing for this
of Candidates for Public Office Court to review, affirm, reverse or even
just modify.
The basic question posed in the SJS
Petition -- WHETHER ENDORSEMENTS OF Regrettably, it is not legally possible for
CANDIDACIES BY RELIGIOUS LEADERS the Court to take up, on the merits, the
IS UNCONSTITUTIONAL -- undoubtedly paramount question involving a
deserves serious consideration. As stated constitutional principle. It is a time-
earlier, the Court deems this honored rule that the constitutionality of
constitutional issue to be of paramount a statute [or act] will be passed upon
interest to the Filipino citizenry, for it only if, and to the extent that, it is
concerns the governance of our country directly and necessarily involved in a
and its people. Thus, despite the obvious justiciable controversy and is essential to
procedural transgressions by both SJS the protection of the rights of the parties
and the trial court, this Court still called concerned.100 ςrνll

for Oral Argument, so as not to leave any

doubt that there might be room to WHEREFORE, the Petition for Review of
entertain and dispose of the SJS Petition Brother Mike Velarde
on the merits. is GRANTED. Theassailed June 12, 2003
Decision and July 29, 2003 Order of the
Counsel for SJS has utterly failed, Regional Trial Court of Manila (Branch
however, to convince the Court that 49) are hereby DECLARED NULL AND
there are enough factual and legal bases VOID and thus SET ASIDE.The SJS
to resolve the paramount issue. On the Petition for Declaratory Relief
other hand, the Office of the Solicitor is DISMISSED for failure to state a cause
General has sided with petitioner insofar of action.
as there are no facts supporting the SJS
Petition and the assailed Decision.  Let a copy of this Decision be furnished
the Office of the Court Administrator to
We reiterate that the said Petition failed evaluate and recommend whether the
to state directly the ultimate facts that it trial judge may, after observing due
relied upon for its claim. During the Oral process, be held administratively liable
Argument, counsel for SJS candidly for rendering a decision violative of the
admitted that there were no factual Constitution, the Rules of Court and
allegations in its Petition for Declaratory relevant circulars of this Court. No costs.
Relief.Neither were there factual findings
SO ORDERED.

Davide, Jr., C.J., Puno, Quisumbing,

Sandoval-Gutierrez, Carpio, Austria- G.R. No. 162230               April 28, 2010
Martinez, Carpio-Morales, Callejo,
Sr., Azcuna, and TINGA, JJ., concur.

Vitug, J., in the result.

Ynares-Santiago, J., no part.
The Treaty of Peace with Japan, insofar as it
Corona, J., on leave.
barred future claims such as those asserted by
plaintiffs in these actions, exchanged full
compensation of plaintiffs for a future peace.
History has vindicated the wisdom of that
bargain. And while full compensation for
plaintiffs’ hardships, in the purely economic
sense, has been denied these former prisoners
and countless other survivors of the war, the
immeasurable bounty of life for themselves and
their posterity in a free society and in a more
peaceful world services the debt.1

There is a broad range of vitally important

areas that must be regularly decided by the
Executive Department without either challenge
or interference by the Judiciary. One such area
involves the delicate arena of foreign relations.
It would be strange indeed if the courts and the
executive spoke with different voices in the
realm of foreign policy. Precisely because of
the nature of the questions presented, and the
lapse of more than 60 years since the conduct
complained of, we make no attempt to lay
down general guidelines covering other
situations not involved here, and confine the
opinion only to the very questions necessary to
reach a decision on this matter.

Factual Antecedents

This is an original Petition for Certiorari under

Rule 65 of the Rules of Court with an
application for the issuance of a writ of
preliminary mandatory injunction against the
Office of the Executive Secretary, the
Secretary of the Department of Foreign Affairs
(DFA), the Secretary of the Department of
Justice (DOJ), and the Office of the Solicitor
General (OSG).
Petitioners are all members of the MALAYA Petitioners’ arguments
LOLAS, a non-stock, non-profit organization
registered with the Securities and Exchange Petitioners argue that the general waiver of
Commission, established for the purpose of claims made by the Philippine government in
providing aid to the victims of rape by the Treaty of Peace with Japan is void. They
Japanese military forces in the Philippines claim that the comfort women system
during the Second World War. established by Japan, and the brutal rape and
enslavement of petitioners constituted a crime
Petitioners narrate that during the Second against humanity,3 sexual slavery,4 and
5
World War, the Japanese army attacked torture.  They allege that the prohibition against
villages and systematically raped the women these international crimes is jus cogens norms
as part of the destruction of the village. Their from which no derogation is possible; as such,
communities were bombed, houses were in waiving the claims of Filipina comfort women
looted and burned, and civilians were publicly and failing to espouse their complaints against
tortured, mutilated, and slaughtered. Japanese Japan, the Philippine government is in breach
soldiers forcibly seized the women and held of its legal obligation not to afford impunity for
them in houses or cells, where they were crimes against humanity. Finally, petitioners
repeatedly raped, beaten, and abused by assert that the Philippine government’s
Japanese soldiers. As a result of the actions of acceptance of the “apologies” made by Japan
their Japanese tormentors, the petitioners have as well as funds from the Asian Women’s Fund
spent their lives in misery, having endured (AWF) were contrary to international law.
physical injuries, pain and disability, and
mental and emotional suffering.2 Respondents’ Arguments

Petitioners claim that since 1998, they have Respondents maintain that all claims of the
approached the Executive Department through Philippines and its nationals relative to the war
the DOJ, DFA, and OSG, requesting were dealt with in the San Francisco Peace
assistance in filing a claim against the Treaty of 1951 and the bilateral Reparations
Japanese officials and military officers who Agreement of 1956.6
ordered the establishment of the “comfort
women” stations in the Philippines. However, Article 14 of the Treaty of Peace7 provides:
officials of the Executive Department declined
to assist the petitioners, and took the position Article 14. Claims and Property
that the individual claims of the comfort women
for compensation had already been fully a) It is recognized that Japan should pay
satisfied by Japan’s compliance with the Peace reparations to the Allied Powers for the
Treaty between the Philippines and Japan. damage and suffering caused by it during the
war. Nevertheless it is also recognized that the
Issues resources of Japan are not presently sufficient,
if it is to maintain a viable economy, to make
Hence, this petition where petitioners pray for complete reparation for all such damage and
this court to (a) declare that respondents suffering and at the present time meet its other
committed grave abuse of discretion amounting obligations.
to lack or excess of discretion in refusing to
espouse their claims for the crimes against b) Except as otherwise provided in the present
humanity and war crimes committed against Treaty, the Allied Powers waive all reparations
them; and (b) compel the respondents to claims of the Allied Powers, other claims of the
espouse their claims for official apology and Allied Powers and their nationals arising out of
other forms of reparations against Japan any actions taken by Japan and its nationals in
before the International Court of Justice (ICJ) the course of the prosecution of the war, and
and other international tribunals. claims of the Allied Powers for direct military
costs of occupation.
In addition, respondents argue that the returned home and were ostracized by their
apologies made by Japan8 have been families. Some committed suicide. Others, out
satisfactory, and that Japan had addressed the of shame, never returned home.18
individual claims of the women through the
atonement money paid by the Asian Women’s Efforts to Secure Reparation
Fund.
The most prominent attempts to compel the
Historical Background Japanese government to accept legal
responsibility and pay compensatory damages
The comfort women system was the tragic for the comfort women system were through a
legacy of the Rape of Nanking. In December series of lawsuits, discussion at the United
1937, Japanese military forces captured the Nations (UN), resolutions by various nations,
city of Nanking in China and began a “barbaric and the Women’s International Criminal
campaign of terror” known as the Rape of Tribunal. The Japanese government, in turn,
Nanking, which included the rapes and responded through a series of public apologies
murders of an estimated 20,000 to 80,000 and the creation of the AWF.19
Chinese women, including young girls,
pregnant mothers, and elderly women.9 Lawsuits

In reaction to international outcry over the In December 1991, Kim Hak-Sun and two other
incident, the Japanese government sought survivors filed the first lawsuit in Japan by
ways to end international condemnation10 by former comfort women against the Japanese
establishing the “comfort women” system. government. The Tokyo District Court however
Under this system, the military could dismissed their case.20 Other suits
21
simultaneously appease soldiers’ sexual followed,  but the Japanese government has,
appetites and contain soldiers’ activities within thus far, successfully caused the dismissal of
a regulated environment.11 Comfort stations every case.22
would also prevent the spread of venereal
disease among soldiers and discourage Undoubtedly frustrated by the failure of
soldiers from raping inhabitants of occupied litigation before Japanese courts, victims of the
territories.12 comfort women system brought their claims
before the United States (US). On September
Daily life as a comfort woman was “unmitigated 18, 2000, 15 comfort women filed a class
misery.”13 The military forced victims into action lawsuit in the US District Court for the
barracks-style stations divided into tiny cubicles District of Columbia23“seeking money damages
where they were forced to live, sleep, and have for [allegedly] having been subjected to sexual
sex with as many 30 soldiers per day.14 The 30 slavery and torture before and during World
minutes allotted for sexual relations with each War II,” in violation of “both positive and
soldier were 30-minute increments of customary international law.” The case was
unimaginable horror for the women.15 Disease filed pursuant to the Alien Tort Claims Act
was rampant.16 Military doctors regularly (“ATCA”),24 which allowed the plaintiffs to sue
examined the women, but these checks were the Japanese government in a US federal
carried out to prevent the spread of venereal district court.25 On October 4, 2001, the district
diseases; little notice was taken of the frequent court dismissed the lawsuit due to lack of
cigarette burns, bruises, bayonet stabs and jurisdiction over Japan, stating that “[t]here is
even broken bones inflicted on the women by no question that this court is not the
soldiers. appropriate forum in which plaintiffs may seek
to reopen x x x discussions nearly half a
Fewer than 30% of the women survived the century later x x x [E]ven if Japan did not enjoy
war.17 Their agony continued in having to suffer sovereign immunity, plaintiffs’ claims are non-
with the residual physical, psychological, and justiciable and must be dismissed.”
emotional scars from their former lives. Some
The District of Columbia Court of Appeals since many of the victims are of a very
affirmed the lower court’s dismissal of the advanced age;
case.26 On appeal, the US Supreme Court
granted the women’s petition for writ of (c) Make a full disclosure of documents and
certiorari, vacated the judgment of the District materials in its possession with regard to
of Columbia Court of Appeals, and remanded comfort stations and other related activities of
the case.27 On remand, the Court of Appeals the Japanese Imperial Army during the Second
affirmed its prior decision, noting that “much as World War;
we may feel for the plight of the appellants, the
courts of the US simply are not authorized to (d) Make a public apology in writing to
hear their case.”28 The women again brought individual women who have come forward and
their case to the US Supreme Court which can be substantiated as women victims of
denied their petition for writ of certiorari on Japanese military sexual slavery;
February 21, 2006.
(e) Raise awareness of these issues by
Efforts at the United Nations amending educational curricula to reflect
historical realities;
In 1992, the Korean Council for the Women
Drafted for Military Sexual Slavery by Japan (f) Identify and punish, as far as possible,
(KCWS), submitted a petition to the UN Human perpetrators involved in the recruitment and
Rights Commission (UNHRC), asking for institutionalization of comfort stations during
assistance in investigating crimes committed the Second World War.
by Japan against Korean women and seeking
reparations for former comfort women.29 The Gay J. McDougal, the Special Rapporteur for
UNHRC placed the issue on its agenda and the UN Sub-Commission on Prevention of
appointed Radhika Coomaraswamy as the Discrimination and Protection of Minorities,
issue’s special investigator. In 1996, also presented a report to the Sub-Committee
Coomaraswamy issued a Report reaffirming on June 22, 1998 entitled Contemporary Forms
Japan’s responsibility in forcing Korean women of Slavery: Systematic Rape, Sexual Slavery
to act as sex slaves for the imperial army, and and Slavery-like Practices During Armed
made the following recommendations: Conflict. The report included an appendix
entitled An Analysis of the Legal Liability of the
A. At the national level Government of Japan for ‘Comfort Women
Stations’ established during the Second World
137. The Government of Japan should: War,30 which contained the following findings:

(a) Acknowledge that the system of comfort 68. The present report concludes that the
stations set up by the Japanese Imperial Army Japanese Government remains liable for grave
during the Second World War was a violation violations of human rights and humanitarian
of its obligations under international law and law, violations that amount in their totality to
accept legal responsibility for that violation; crimes against humanity. The Japanese
Government’s arguments to the contrary,
(b) Pay compensation to individual victims of including arguments that seek to attack the
Japanese military sexual slavery according to underlying humanitarian law prohibition of
principles outlined by the Special Rapporteur of enslavement and rape, remain as
the Sub-Commission on Prevention of unpersuasive today as they were when they
Discrimination and Protection of Minorities on were first raised before the Nuremberg war
the right to restitution, compensation and crimes tribunal more than 50 years ago. In
rehabilitation for victims of grave violations of addition, the Japanese Government’s
human rights and fundamental freedoms. A argument that Japan has already settled all
special administrative tribunal for this purpose claims from the Second World War through
should be set up with a limited time-frame peace treaties and reparations agreements
following the war remains equally particular the enslavement of comfort women,
unpersuasive. This is due, in large part, to the to bring those responsible for it to justice, and
failure until very recently of the Japanese to end the ongoing cycle of impunity for
Government to admit the extent of the wartime sexual violence against women.”
Japanese military’s direct involvement in the
establishment and maintenance of these rape After examining the evidence for more than a
centres. The Japanese Government’s silence year, the “tribunal” issued its verdict on
on this point during the period in which peace December 4, 2001, finding the former Emperor
and reparations agreements between Japan Hirohito and the State of Japan guilty of crimes
and other Asian Governments were being against humanity for the rape and sexual
negotiated following the end of the war must, slavery of women.32 It bears stressing,
as a matter of law and justice, preclude Japan however, that although the tribunal included
from relying today on these peace treaties to prosecutors, witnesses, and judges, its
extinguish liability in these cases. judgment was not legally binding since the
tribunal itself was organized by private citizens.
69. The failure to settle these claims more than
half a century after the cessation of hostilities is Action by Individual Governments
a testament to the degree to which the lives of
women continue to be undervalued. Sadly, this On January 31, 2007, US Representative
failure to address crimes of a sexual nature Michael Honda of California, along with six co-
committed on a massive scale during the sponsor representatives, introduced House
Second World War has added to the level of Resolution 121 which called for Japanese
impunity with which similar crimes are action in light of the ongoing struggle for
committed today. The Government of Japan closure by former comfort women. The
has taken some steps to apologize and atone Resolution was formally passed on July 30,
for the rape and enslavement of over 200,000 2007,33 and made four distinct demands:
women and girls who were brutalized in
“comfort stations” during the Second World [I]t is the sense of the House of
War. However, anything less than full and Representatives that the Government of Japan
unqualified acceptance by the Government of (1) should formally acknowledge, apologize,
Japan of legal liability and the consequences and accept historical responsibility in a clear
that flow from such liability is wholly and unequivocal manner for its Imperial Armed
inadequate. It must now fall to the Government Forces’ coercion of young women into sexual
of Japan to take the necessary final steps to slavery, known to the world as “comfort
provide adequate redress. women”, during its colonial and wartime
occupation of Asia and the Pacific Islands from
The UN, since then, has not taken any official the 1930s through the duration of World War II;
action directing Japan to provide the (2) would help to resolve recurring questions
reparations sought. about the sincerity and status of prior
statements if the Prime Minister of Japan were
Women’s International War Crimes  to make such an apology as a public statement
in his official capacity; (3) should clearly and
Tribunal publicly refute any claims that the sexual
enslavement and trafficking of the “comfort
The Women’s International War Crimes women” for the Japanese Imperial Army never
Tribunal (WIWCT) was a “people’s tribunal” occurred; and (4) should educate current and
established by a number of Asian women and future generations about this horrible crime
human rights organizations, supported by an while following the recommendations of the
international coalition of non-governmental international community with respect to the
organizations.31 First proposed in 1998, the “comfort women.”34
WIWCT convened in Tokyo in 2000 in order to
“adjudicate Japan’s military sexual violence, in In December 2007, the European Parliament,
the governing body of the European Union, to announce the findings as a result of that
drafted a resolution similar to House Resolution study.
121.35Entitled, “Justice for Comfort Women,”
the resolution demanded: (1) a formal As a result of the study which indicates that
acknowledgment of responsibility by the comfort stations were operated in extensive
Japanese government; (2) a removal of the areas for long periods, it is apparent that there
legal obstacles preventing compensation; and existed a great number of comfort women.
(3) unabridged education of the past. The Comfort stations were operated in response to
resolution also stressed the urgency with which the request of the military authorities of the
Japan should act on these issues, stating: “the day. The then Japanese military was, directly
right of individuals to claim reparations against or indirectly, involved in the establishment and
the government should be expressly management of the comfort stations and the
recognized in national law, and cases for transfer of comfort women. The recruitment of
reparations for the survivors of sexual slavery, the comfort women was conducted mainly by
as a crime under international law, should be private recruiters who acted in response to the
prioritized, taking into account the age of the request of the military. The Government study
survivors.” has revealed that in many cases they were
recruited against their own will, through
The Canadian and Dutch parliaments have coaxing coercion, etc., and that, at times,
each followed suit in drafting resolutions administrative/military personnel directly took
against Japan. Canada’s resolution demands part in the recruitments. They lived in misery at
the Japanese government to issue a formal comfort stations under a coercive atmosphere.
apology, to admit that its Imperial Military
coerced or forced hundreds of thousands of As to the origin of those comfort women who
women into sexual slavery, and to restore were transferred to the war areas, excluding
references in Japanese textbooks to its war those from Japan, those from the Korean
crimes.36 The Dutch parliament’s resolution Peninsula accounted for a large part. The
calls for the Japanese government to uphold Korean Peninsula was under Japanese rule in
the 1993 declaration of remorse made by Chief those days, and their recruitment, transfer,
Cabinet Secretary Yohei Kono. control, etc., were conducted generally against
their will, through coaxing, coercion, etc.
The Foreign Affairs Committee of the United
Kingdom’s Parliament also produced a report Undeniably, this was an act, with the
in November, 2008 entitled, “Global Security: involvement of the military authorities of the
Japan and Korea” which concluded that Japan day, that severely injured the honor and dignity
should acknowledge the pain caused by the of many women. The Government of Japan
issue of comfort women in order to ensure would like to take this opportunity once again to
cooperation between Japan and Korea. extend its sincere apologies and remorse to all
those, irrespective of place of origin, who
Statements of Remorse made by suffered immeasurable pain and incurable
representatives of the Japanese government physical and psychological wounds as comfort
women.
Various officials of the Government of Japan
have issued the following public statements It is incumbent upon us, the Government of
concerning the comfort system: Japan, to continue to consider seriously, while
listening to the views of learned circles, how
a) Statement by the Chief Cabinet Secretary best we can express this sentiment.
Yohei Kono in 1993:
We shall face squarely the historical facts as
The Government of Japan has been described above instead of evading them, and
conducting a study on the issue of wartime take them to heart as lessons of history. We
“comfort women” since December 1991. I wish hereby reiterated our firm determination never
to repeat the same mistake by forever Representatives adopted on June 9, 1995)
engraving such issues in our memories through
the study and teaching of history. e) Various Public Statements by Japanese
Prime Minister Shinzo Abe
As actions have been brought to court in Japan
and interests have been shown in this issue I have talked about this matter in the Diet
outside Japan, the Government of Japan shall sessions last year, and recently as well, and to
continue to pay full attention to this matter, the press. I have been consistent. I will stand
including private researched related thereto. by the Kono Statement. This is our consistent
position. Further, we have been apologizing
b) Prime Minister Tomiichi Murayama’s sincerely to those who suffered immeasurable
Statement in 1994 pain and incurable psychological wounds as
comfort women. Former Prime Ministers,
On the issue of wartime “comfort women”, including Prime Ministers Koizumi and
which seriously stained the honor and dignity of Hashimoto, have issued letters to the comfort
many women, I would like to take this women. I would like to be clear that I carry the
opportunity once again to express my profound same feeling. This has not changed even
and sincere remorse and apologies” slightly. (Excerpt from Remarks by Prime
Minister Abe at an Interview by NHK, March
c) Letters from the Prime Minister of Japan to 11, 2007).
Individual Comfort Women
I am apologizing here and now. I am
The issue of comfort women, with the apologizing as the Prime Minister and it is as
involvement of the Japanese military stated in the statement by the Chief Cabinet
authorities at that time, was a grave affront to Secretary Kono. (Excerpt from Remarks by
the honor and dignity of a large number of Prime Minister Abe at the Budget Committee,
women. the House of Councilors, the Diet of Japan,
March 26, 2007).
As Prime Minister of Japan, I thus extend anew
my most sincere apologies and remorse to all I am deeply sympathetic to the former comfort
the women who endured immeasurable and women who suffered hardships, and I have
painful experiences and suffered incurable expressed my apologies for the extremely
physical and psychological wounds as comfort agonizing circumstances into which they were
women. placed. (Excerpt from Telephone Conference
by Prime Minister Abe to President George W.
I believe that our country, painfully aware of its Bush, April 3, 2007).
moral responsibilities, with feelings of apology
and remorse, should face up squarely to its I have to express sympathy from the bottom of
past history and accurately convey it to future my heart to those people who were taken as
generations. wartime comfort women. As a human being, I
would like to express my sympathies, and also
d) The Diet (Japanese Parliament) passed as prime minister of Japan I need to apologize
resolutions in 1995 and 2005 to them. My administration has been saying all
along that we continue to stand by the Kono
Solemnly reflecting upon the many instances of Statement. We feel responsible for having
colonial rule and acts of aggression that forced these women to go through that
occurred in modern world history, and hardship and pain as comfort women under the
recognizing that Japan carried out such acts in circumstances at the time. (Excerpt from an
the past and inflicted suffering on the people of interview article “A Conversation with Shinzo
other countries, especially in Asia, the Abe” by the Washington Post, April 22, 2007).
Members of this House hereby express deep
remorse. (Resolution of the House of x x x both personally and as Prime Minister of
Japan, my heart goes out in sympathy to all support programs for former comfort women.
those who suffered extreme hardships as Over the next five years, these were
comfort women; and I expressed my apologies implemented by the Department of Social
for the fact that they were forced to endure Welfare and Development.
such extreme and harsh conditions. Human
rights are violated in many parts of the world Our Ruling
during the 20th Century; therefore we must
work to make the 21st Century a wonderful Stripped down to its essentials, the issue in this
century in which no human rights are violated. case is whether the Executive Department
And the Government of Japan and I wish to committed grave abuse of discretion in not
make significant contributions to that end. espousing petitioners’ claims for official
(Excerpt from Prime Minister Abe’s remarks at apology and other forms of reparations against
the Joint Press Availability after the summit Japan.
meeting at Camp David between Prime
Minister Abe and President Bush, April 27, The petition lacks merit.
2007).
From a Domestic Law Perspective, the
The Asian Women’s Fund Executive Department has the exclusive
prerogative to determine whether to espouse
Established by the Japanese government in petitioners’ claims against Japan.
1995, the AWF represented the government’s
concrete attempt to address its moral Baker v. Carr39 remains the starting point for
responsibility by offering monetary analysis under the political question doctrine.
compensation to victims of the comfort women There the US Supreme Court explained that:
system.37 The purpose of the AWF was to
show atonement of the Japanese people x x x Prominent on the surface of any case
through expressions of apology and remorse to held to involve a political question is found a
the former wartime comfort women, to restore textually demonstrable constitutional
their honor, and to demonstrate Japan’s strong commitment of the issue to a coordinate
respect for women.38 political department or a lack of judicially
discoverable and manageable standards for
The AWF announced three programs for resolving it, or the impossibility of deciding
former comfort women who applied for without an initial policy determination of a kind
assistance: (1) an atonement fund paying ¥2 clearly for non-judicial discretion; or the
million (approximately $20,000) to each impossibility of a court’s undertaking
woman; (2) medical and welfare support independent resolution without expressing lack
programs, paying ¥2.5-3 million ($25,000- of the respect due coordinate branches of
$30,000) for each woman; and (3) a letter of government; or an unusual need for
apology from the Japanese Prime Minister to unquestioning adherence to a political decision
each woman. Funding for the program came already made; or the potentiality of
from the Japanese government and private embarrassment from multifarious
donations from the Japanese people. As of pronouncements by various departments on
March 2006, the AWF provided ¥700 million question.
(approximately $7 million) for these programs
in South Korea, Taiwan, and the Philippines; In Tañada v. Cuenco,40 we held that political
¥380 million (approximately $3.8 million) in questions refer “to those questions which,
Indonesia; and ¥242 million (approximately under the Constitution, are to be decided by
$2.4 million) in the Netherlands. the people in their sovereign capacity, or in
regard to which full discretionary authority has
On January 15, 1997, the AWF and the been delegated to the legislative or executive
Philippine government signed a Memorandum branch of the government. It is concerned with
of Understanding for medical and welfare issues dependent upon the wisdom, not legality
of a particular measure.” avoided and success for our aims achieved,
congressional legislation which is to be made
Certain types of cases often have been found effective through negotiation and inquiry within
to present political questions.41 One such the international field must often accord to the
category involves questions of foreign President a degree of discretion and freedom
relations. It is well-established that “[t]he from statutory restriction which would not be
conduct of the foreign relations of our admissible where domestic affairs alone
government is committed by the Constitution to involved. Moreover, he, not Congress, has the
the executive and legislative—’the political’— better opportunity of knowing the conditions
departments of the government, and the which prevail in foreign countries, and
propriety of what may be done in the exercise especially is this true in time of war. He has his
of this political power is not subject to judicial confidential sources of information. He has his
inquiry or decision.”42 The US Supreme Court agents in the form of diplomatic, consular and
has further cautioned that decisions relating to other officials. x x x
foreign policy are delicate, complex, and
involve large elements of prophecy. They are This ruling has been incorporated in our
and should be undertaken only by those jurisprudence through Bayan v. Executive
directly responsible to the people whose Secretary46 and Pimentel v. Executive
welfare they advance or imperil. They are Secretary;47 its overreaching principle was,
decisions of a kind for which the Judiciary has perhaps, best articulated in (now Chief) Justice
neither aptitude, facilities nor responsibility.43 Puno’s dissent in Secretary of Justice v.
Lantion:48
To be sure, not all cases implicating foreign
relations present political questions, and courts x x x The conduct of foreign relations is full of
certainly possess the authority to construe or complexities and consequences, sometimes
invalidate treaties and executive with life and death significance to the nation
agreements.44 However, the question whether especially in times of war. It can only be
the Philippine government should espouse entrusted to that department of government
claims of its nationals against a foreign which can act on the basis of the best available
government is a foreign relations matter, the information and can decide with decisiveness.
authority for which is demonstrably committed x x x It is also the President who possesses the
by our Constitution not to the courts but to the most comprehensive and the most confidential
political branches. In this case, the Executive information about foreign countries for our
Department has already decided that it is to the diplomatic and consular officials regularly brief
best interest of the country to waive all claims him on meaningful events all over the world.
of its nationals for reparations against Japan in He has also unlimited access to ultra-sensitive
the Treaty of Peace of 1951. The wisdom of military intelligence data. In fine, the
such decision is not for the courts to question. presidential role in foreign affairs is dominant
Neither could petitioners herein assail the said and the President is traditionally accorded a
determination by the Executive wider degree of discretion in the conduct of
Department via the instant petition foreign affairs. The regularity, nay, validity of
for certiorari. his actions are adjudged under less stringent
standards, lest their judicial repudiation lead to
In the seminal case of US v. Curtiss-Wright breach of an international obligation, rupture of
Export Corp.,45 the US Supreme Court held state relations, forfeiture of confidence, national
that “[t]he President is the sole organ of the embarrassment and a plethora of other
nation in its external relations, and its sole problems with equally undesirable
representative with foreign relations.” consequences.

It is quite apparent that if, in the maintenance The Executive Department has determined that
of our international relations, embarrassment— taking up petitioners’ cause would be inimical
perhaps serious embarrassment—is to be to our country’s foreign policy interests, and
could disrupt our relations with Japan, thereby provision, respecting these subjects, in the
creating serious implications for stability in this treaty, they could not be agitated after the
region. For us to overturn the Executive treaty, by the British government, much less by
Department’s determination would mean an her subjects in courts of justice. (Emphasis
assessment of the foreign policy judgments by supplied).
a coordinate political branch to which authority
to make that judgment has been This practice of settling claims by means of a
constitutionally committed. peace treaty is certainly nothing new. For
instance, in Dames & Moore v. Regan,51 the
In any event, it cannot reasonably be US Supreme Court held:
maintained that the Philippine government was
without authority to negotiate the Treaty of Not infrequently in affairs between nations,
Peace with Japan. And it is equally true that, outstanding claims by nationals of one country
since time immemorial, when negotiating against the government of another country are
peace accords and settling international claims: “sources of friction” between the two
sovereigns. United States v. Pink, 315 U.S.
x x x [g]overnments have dealt with x x x 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796
private claims as their own, treating them as (1942). To resolve these difficulties, nations
national assets, and as counters, `chips’, in have often entered into agreements settling the
international bargaining. Settlement claims of their respective nationals. As one
agreements have lumped, or linked, claims treatise writer puts it, international agreements
deriving from private debts with others that settling claims by nationals of one state against
were intergovernmental in origin, and the government of another “are established
concessions in regard to one category of international practice reflecting traditional
claims might be set off against concessions in international theory.” L. Henkin, Foreign Affairs
the other, or against larger political and the Constitution 262 (1972). Consistent
considerations unrelated to debts.49 with that principle, the United States has
repeatedly exercised its sovereign authority to
Indeed, except as an agreement might settle the claims of its nationals against foreign
otherwise provide, international settlements countries. x x x Under such agreements, the
generally wipe out the underlying private President has agreed to renounce or extinguish
claims, thereby terminating any recourse under claims of United States nationals against
domestic law. In Ware v. Hylton,50 a case foreign governments in return for lump-sum
brought by a British subject to recover a debt payments or the establishment of arbitration
confiscated by the Commonwealth of Virginia procedures. To be sure, many of these
during the war, Justice Chase wrote: settlements were encouraged by the United
States claimants themselves, since a
I apprehend that the treaty of peace abolishes claimant’s only hope of obtaining any payment
the subject of the war, and that after peace is at all might lie in having his Government
concluded, neither the matter in dispute, nor negotiate a diplomatic settlement on his behalf.
the conduct of either party, during the war, can But it is also undisputed that the “United States
ever be revived, or brought into contest again. has sometimes disposed of the claims of its
All violences, injuries, or damages sustained by citizens without their consent, or even without
the government, or people of either, during the consultation with them, usually without
war, are buried in oblivion; and all those things exclusive regard for their interests, as
are implied by the very treaty of peace; and distinguished from those of the nation as a
therefore not necessary to be expressed. whole.” Henkin, supra, at 262-263. Accord,
Hence it follows, that the restitution of, or Restatement (Second) of Foreign Relations
compensation for, British property confiscated, Law of the United States § 213 (1965)
or extinguished, during the war, by any of the (President “may waive or settle a claim against
United States, could only be provided for by the a foreign state x x x [even] without the consent
treaty of peace; and if there had been no of the [injured] national”). It is clear that the
practice of settling claims continues today. the Allied Powers (SCAP) for the region,
General Douglas MacArthur, confiscated
Respondents explain that the Allied Powers Japanese assets in conjunction with the task of
concluded the Peace Treaty with Japan not managing the economic affairs of the
necessarily for the complete atonement of the vanquished nation and with a view to
suffering caused by Japanese aggression reparations payments. It soon became clear
during the war, not for the payment of that Japan’s financial condition would render
adequate reparations, but for security any aggressive reparations plan an exercise in
purposes. The treaty sought to prevent the futility. Meanwhile, the importance of a stable,
spread of communism in Japan, which democratic Japan as a bulwark to communism
occupied a strategic position in the Far East. in the region increased. At the end of 1948,
Thus, the Peace Treaty compromised MacArthur expressed the view that “[t]he use of
individual claims in the collective interest of the reparations as a weapon to retard the
free world. reconstruction of a viable economy in Japan
should be combated with all possible means”
This was also the finding in a similar case and “recommended that the reparations issue
involving American victims of Japanese slave be settled finally and without delay.”
labor during the war.52 In a consolidated case
in the Northern District of California,53 the court That this policy was embodied in the treaty is
dismissed the lawsuits filed, relying on the clear not only from the negotiations history but
1951 peace treaty with Japan,54 because of the also from the Senate Foreign Relations
following policy considerations: Committee report recommending approval of
the treaty by the Senate. The committee noted,
The official record of treaty negotiations for example:
establishes that a fundamental goal of the
agreement was to settle the reparations issue Obviously insistence upon the payment of
once and for all. As the statement of the chief reparations in any proportion commensurate
United States negotiator, John Foster Dulles, with the claims of the injured countries and
makes clear, it was well understood that their nationals would wreck Japan’s economy,
leaving open the possibility of future claims dissipate any credit that it may possess at
would be an unacceptable impediment to a present, destroy the initiative of its people, and
lasting peace: create misery and chaos in which the seeds of
discontent and communism would flourish. In
Reparation is usually the most controversial short, [it] would be contrary to the basic
aspect of peacemaking. The present peace is purposes and policy of x x x the United States
no exception. x x x.

On the one hand, there are claims both vast We thus hold that, from a municipal law
and just. Japan’s aggression caused perspective, that certiorari will not lie. As a
tremendous cost, losses and suffering. general principle—and particularly here, where
such an extraordinary length of time has lapsed
On the other hand, to meet these claims, there between the treaty’s conclusion and our
stands a Japan presently reduced to four home consideration—the Executive must be given
islands which are unable to produce the food ample discretion to assess the foreign policy
its people need to live, or the raw materials considerations of espousing a claim against
they need to work. x x x Japan, from the standpoint of both the interests
of the petitioners and those of the Republic,
The policy of the United States that Japanese and decide on that basis if apologies are
liability for reparations should be sharply limited sufficient, and whether further steps are
was informed by the experience of six years of appropriate or necessary.
United States-led occupation of Japan. During
the occupation the Supreme Commander of The Philippines is not under any international
obligation to espouse petitioners’ claims. an obligation to protect its citizens abroad, and
may also confer upon the national a right to
In the international sphere, traditionally, the demand the performance of that obligation, and
only means available for individuals to bring a clothe the right with corresponding sanctions.
claim within the international legal system has However, all these questions remain within the
been when the individual is able to persuade a province of municipal law and do not affect the
government to bring a claim on the individual’s position internationally.58 (Emphasis supplied)
behalf.55 Even then, it is not the individual’s
rights that are being asserted, but rather, the The State, therefore, is the sole judge to decide
state’s own rights. Nowhere is this position whether its protection will be granted, to what
more clearly reflected than in the dictum of the extent it is granted, and when will it cease. It
Permanent Court of International Justice (PCIJ) retains, in this respect, a discretionary power
in the 1924 Mavrommatis Palestine the exercise of which may be determined by
Concessions Case: considerations of a political or other nature,
unrelated to the particular case.
By taking up the case of one of its subjects and
by resorting to diplomatic action or international The International Law Commission’s (ILC’s)
judicial proceedings on his behalf, a State is in Draft Articles on Diplomatic Protection fully
reality asserting its own right to ensure, in the support this traditional view. They (i) state that
person of its subjects, respect for the rules of “the right of diplomatic protection belongs to or
international law. The question, therefore, vests in the State,”59 (ii) affirm its discretionary
whether the present dispute originates in an nature by clarifying that diplomatic protection is
injury to a private interest, which in point of fact a “sovereign prerogative” of the State;60 and (iii)
is the case in many international disputes, is stress that the state “has the right to exercise
irrelevant from this standpoint. Once a State diplomatic protection on behalf of a national. It
has taken up a case on behalf of one of its is under no duty or obligation to do so.”61
subjects before an international tribunal, in the
eyes of the latter the State is sole claimant.56 It has been argued, as petitioners argue now,
that the State has a duty to protect its nationals
Since the exercise of diplomatic protection is and act on his/her behalf when rights are
the right of the State, reliance on the right is injured.62However, at present, there is no
within the absolute discretion of states, and the sufficient evidence to establish a general
decision whether to exercise the discretion may international obligation for States to exercise
invariably be influenced by political diplomatic protection of their own nationals
considerations other than the legal merits of abroad.63 Though, perhaps desirable, neither
the particular claim.57 As clearly stated by the state practice nor opinio juris has evolved in
ICJ in such a direction. If it is a duty internationally, it
is only a moral and not a legal duty, and there
Barcelona Traction: is no means of enforcing its fulfillment.64

The Court would here observe that, within the We fully agree that rape, sexual slavery,
limits prescribed by international law, a State torture, and sexual violence are morally
may exercise diplomatic protection by whatever reprehensible as well as legally prohibited
means and to whatever extent it thinks fit, for it under contemporary international
is its own right that the State is asserting. law.65 However, petitioners take quite a
Should the natural or legal person on whose theoretical leap in claiming that these
behalf it is acting consider that their rights are proscriptions automatically imply that that the
not adequately protected, they have no remedy Philippines is under a non-derogable obligation
in international law. All they can do is resort to to prosecute international crimes, particularly
national law, if means are available, with a view since petitioners do not demand the imputation
to furthering their cause or obtaining redress. of individual criminal liability, but seek to
The municipal legislator may lay upon the State recover monetary reparations from the state of
Japan. Absent the consent of states, an protection; they are obligations erga omnes.
applicable treaty regime, or a directive by the
Security Council, there is no non-derogable Such obligations derive, for example, in
duty to institute proceedings against Japan. contemporary international law, from the
Indeed, precisely because of states’ reluctance outlawing of acts of aggression, and of
to directly prosecute claims against another genocide, as also from the principles and rules
state, recent developments support the modern concerning the basic rights of the human
trend to empower individuals to directly person, including protection from slavery and
participate in suits against perpetrators of racial discrimination. Some of the
international crimes.66 Nonetheless, corresponding rights of protection have entered
notwithstanding an array of General Assembly into the body of general international law …
resolutions calling for the prosecution of crimes others are conferred by international
against humanity and the strong policy instruments of a universal or quasi-universal
arguments warranting such a rule, the practice character.
of states does not yet support the present
existence of an obligation to prosecute The Latin phrase, ‘erga omnes,’ has since
international crimes.67 Of course a customary become one of the rallying cries of those
duty of prosecution is ideal, but we cannot find sharing a belief in the emergence of a value-
enough evidence to reasonably assert its based international public order. However, as
existence. To the extent that any state practice is so often the case, the reality is neither so
in this area is widespread, it is in the practice of clear nor so bright. Whatever the relevance of
granting amnesties, immunity, selective obligations erga omnes as a legal concept, its
prosecution, or de facto impunity to those who full potential remains to be realized in
commit crimes against humanity.”68 practice.69

Even the invocation of jus cogens norms and The term is closely connected with the
erga omnes obligations will not alter this international law concept of jus cogens. In
analysis. Even if we sidestep the question of international law, the term “jus cogens”
whether jus cogens norms existed in 1951, (literally, “compelling law”) refers to norms that
petitioners have not deigned to show that the command peremptory authority, superseding
crimes committed by the Japanese army conflicting treaties and custom. Jus cogens
violated jus cogens prohibitions at the time the norms are considered peremptory in the sense
Treaty of Peace was signed, or that the duty to that they are mandatory, do not admit
prosecute perpetrators of international crimes derogation, and can be modified only by
is an erga omnes obligation or has attained the general international norms of equivalent
status of jus cogens. authority.70

The term erga omnes (Latin: in relation to Early strains of the jus cogens doctrine have
everyone) in international law has been used existed since the 1700s,71 but peremptory
as a legal term describing obligations owed by norms began to attract greater scholarly
States towards the community of states as a attention with the publication of Alfred von
whole. The concept was recognized by the ICJ Verdross’s influential 1937 article, Forbidden
in Barcelona Traction: Treaties in International Law.72 The recognition
of jus cogens gained even more force in the
x x x an essential distinction should be drawn 1950s and 1960s with the ILC’s preparation of
between the obligations of a State towards the the Vienna Convention on the Law of Treaties
international community as a whole, and those (VCLT).73 Though there was a consensus that
arising vis-à-vis another State in the field of certain international norms had attained the
diplomatic protection. By their very nature, the status of jus cogens,74 the ILC was unable to
former are the concern of all States. In view of reach a consensus on the proper criteria for
the importance of the rights involved, all States identifying peremptory norms.
can be held to have a legal interest in their
After an extended debate over these and other
theories of jus cogens, the ILC concluded
ruefully in 1963 that “there is not as yet any
generally accepted criterion by which to identify
a general rule of international law as having the
character of jus cogens.”75 In a commentary
accompanying the draft convention, the ILC
indicated that “the prudent course seems to be
to x x x leave the full content of this rule to be
worked out in State practice and in the
jurisprudence of international tribunals.”76 Thus,
while the existence of jus cogens in
international law is undisputed, no consensus
exists on its substance,77 beyond a tiny core of
principles and rules.78

Of course, we greatly sympathize with the

cause of petitioners, and we cannot begin to
comprehend the unimaginable horror they
underwent at the hands of the Japanese
soldiers. We are also deeply concerned that, in
apparent contravention of fundamental
principles of law, the petitioners appear to be
without a remedy to challenge those that have
offended them before appropriate fora.
Needless to say, our government should take
the lead in protecting its citizens against
violation of their fundamental human rights.
Regrettably, it is not within our power to order
the Executive Department to take up the
petitioners’ cause. Ours is only the power
to urge and exhort the Executive Department
to take up petitioners’ cause.

WHEREFORE, the Petition is hereby

DISMISSED.

SO ORDERED.