Macariola vs. Asuncion, 114 SCRA 77 (1982)

s. Asuncion, 114 SCRA 77 (1982)

EN BANC

[Adm. Case No. 133-J. May 31, 1982.]

BERNARDITA R. MACARIOLA, complainant, vs. HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte, respondent.D E C I S I O N

MAKASIAR, J p:

In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge Elias B. Asuncion of the Court of First Instance of Leyte,

now Associate Justice of the Court of Appeals, with "acts unbecoming a judge."

The factual setting of the case is stated in the report dated May 27, 1971 of then Associate Justice Cecilia Muñoz Palma of the Court of Appeals now

retired Associate Justice of the Supreme Court, to whom this case was referred on October 28, 1968 for investigation, thus:

"Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for partition filed by Sinforosa R. Bales, Luz R.

Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs, against Bernardita R. Macariola, defendant,

concerning the properties left by the deceased Francisco Reyes, the common father of the plaintiff and defendant.

"In her defenses to the complaint for partition, Mrs. Macariola alleged among other things that: a) plaintiff Sinforosa R. Bales was not

a daughter of the deceased Francisco Reyes; b) the only legal heirs of the deceased were defendant Macariola, she being the only

offspring of the first marriage of Francisco Reyes with Felisa Espiras, and the remaining plaintiffs who were the children of the

deceased by his second marriage with Irene Ondes; c) the properties left by the deceased were all the conjugal properties of the

latter and his first wife, Felisa Espiras, and no properties were acquired by the deceased during his second marriage; d) if there was

any partition to be made, those conjugal properties should first be partitioned into two parts, and one part is to be adjudicated solely

to defendant it being the share of the latter's deceased mother, Felisa Espiras, and the other half which is the share of the deceased

Francisco Reyes was to be divided equally among his children by his two marriages.

"On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil Case 3010, the dispositive portion of which reads:

"'IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a preponderance of evidence, finds and so

holds, and hereby renders judgment (1) Declaring the plaintiffs Luz R. Bakunawa, Anacorita Reyes, Ruperto

Reyes, Adela Reyes and Priscilla Reyes as the only children legitimated by the subsequent marriage of

Francisco Reyes Diaz to Irene Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to have been an illegitimate

child of Francisco Reyes Diaz; (3) Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and 1/4 of Lot

1145 as belonging to the conjugal partnership of the spouses Francisco Reyes Diaz and Felisa Espiras; (4)

Declaring Lot No. 2304 and 1/4 of Lot No. 3416 as belonging to the spouses Francisco Reyes Diaz and Irene

Ondez in common partnership; (5) Declaring that 1/2 of Lot No. 1184 as belonging exclusively to the deceased

Francisco Reyes Diaz; (6) Declaring the defendant Bernardita R. Macariola, being the only legal and forced heir

of her mother Felisa Espiras, as the exclusive owner of one-half of each of Lots Nos. 4474, 4475, 4892, 5265,

4803, 4581, 4506; and the remaining one-half (1/2) of each of said Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581,

4506 and one-half (1/2) of one-fourth (1/4) of Lot No. 1154 as belonging to the estate of Francisco Reyes Diaz; (7)

Declaring Irene Ondez to be the exclusive owner of one-half (1/2) of Lot No. 2304 and one-half (1/2) of one-fourth

(1/4) of Lot No. 3416; the remaining one-half (1/2) of Lot 2304 and the remaining one-half (1/2) of one fourth (1/4)

of Lot No. 3416 as belonging to the estate of Francisco Reyes Diaz; (8) Directing the division or partition of the

estate of Francisco Reyes Diaz in such a manner as to give or grant to Irene Ondez, as surviving widow of

Francisco Reyes Diaz, a hereditary share of one-twelfth (1/12) of the whole estate of Francisco Reyes Diaz (Art.

996 in relation to Art. 892, par 2, New Civil Code), and the remaining portion of the estate to be divided among

the plaintiffs Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, Priscilla

Reyes and defendant Bernardita R. Macariola, in such a way that the extent of the total share of plaintiff

Sinforosa R. Bales in the hereditary estate shall not exceed the equivalent of two-fifth (2/5) of the total share of

any or each of the other plaintiffs and the defendant (Art. 983, New Civil Code), each of the latter to receive equal

shares from the hereditary estate, (Ramirez vs. Bautista, 14 Phil. 528; Diancin vs. Bishop of Jaro, O.G. [3rd Ed.]

p. 33); (9) Directing the parties, within thirty days after this judgment shall have become final to submit to this

court, for approval, a project of partition of the hereditary estate in the proportion above indicated, and in such

manner as the parties may, by agreement, deemed convenient and equitable to them taking into consideration

the location, kind, quality, nature and value of the properties involved; (10) Directing the plaintiff Sinforosa R.

Bales and defendant Bernardita R. Macariola to pay the costs of this suit, in the proportion of one-third (1/3) by

the first named and two-thirds (2/3) by the second named; and (11) Dismissing all other claims of the parties [pp.

27-29 of Exh. C].

"The decision in civil case 3010 became final for lack of an appeal, and on October 16, 1963, a project of partition was submitted to

Judge Asuncion which is marked Exh. A. Notwithstanding the fact that the project of partition was not signed by the parties

themselves but only by the respective counsel of plaintiffs and defendant, Judge Asuncion approved it in his Order dated October

23, 1963, which for convenience is quoted hereunder in full:

'The parties, through their respective counsels, presented to this Court for approval the following project of

partition:

'COMES NOW, the plaintiffs and the defendant in the above-entitled case, to this Honorable Court respectfully

submit the following Project of Partition:

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

'2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the eastern part of the lot shall be

awarded likewise to Bernardita R. Macariola;

'3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes Bales;

'4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the western part of the lot shall likewise

be awarded to Sinforosa Reyes-Bales;

'5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes Bakunawa, Anacorita Reyes, Ruperto

Reyes, Adela Reyes and Priscilla Reyes in equal shares;

'6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the portions awarded under item (2) and

(4) above shall be awarded to Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla

Reyes in equal shares, provided, however that the remaining portion of Lot No. 3416 shall belong exclusively to

Priscilla Reyes.

'WHEREFORE, it is respectfully prayed that the Project of Partition indicated above which is made in accordance

with the decision of the Honorable Court be approved.

'Tacloban City, October 16, 1963.

(SGD) BONIFACIO RAMO

Atty. for the

Defendant

Tacloban City

'(SGD) ZOTICO A. TOLETE

Atty. for the Plaintiff

Tacloban City

'While the Court thought it more desirable for all the parties to have signed this Project of Partition,

nevertheless, upon assurance of both counsels of the respective parties to this Court that the Project of

Partition, as above-quoted, had been made after a conference and agreement of the plaintiffs and the defendant

approving the above Project of Partition, and that both lawyers had represented to the Court that they are given

full authority to sign by themselves the Project of Partition, the Court, therefore, finding the above-quoted

project of Partition to be in accordance with law, hereby approves the same. The parties, therefore, are directed

to execute such papers, documents or instrument sufficient in form and substance for the vesting of the rights,

interests and participations which were adjudicated to the respective parties, as outlined in the Project of

Partition and the delivery of the respective properties adjudicated to each one in view of said Project of Partition,

and to perform such other acts as are legal and necessary to effectuate the said Project of Partition.

'SO ORDERED.

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

'(SGD) ELIAS B. ASUNCION

Judge'

"EXH. B.

"The above Order of October 23, 1963, was amended on November 11, 1963, only for the purpose of giving authority to the Register

of Deeds of the Province of Leyte to issue the corresponding transfer certificates of title to the respective adjudicatees in conformity

with the project of partition (see Exh. U).

"One of the properties mentioned in the project of partition was Lot 1184 or rather one-half thereof with an area of 15,162.5 sq.

meters. This lot, which according to the decision was the exclusive property of the deceased Francisco Reyes, was adjudicated in

said project of partition to the plaintiffs Luz, Anacorita, Ruperto, Adela, and Priscilla all surnamed Reyes in equal shares, and when

the project of partition was approved by the trial court the adjudicatees caused Lot 1184 to be subdivided into five lots denominated

as Lot 1184-A to 1184-E inclusive (Exh. V).

"Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion's court (Exhs. F, F-1 and V-1), while Lot 1184-E

which had an area of 2,172.5556 sq. meters was sold on July 31, 1964 to Dr. Arcadio Galapon (Exh. 2) who was issued transfer

certificate of title No. 2338 of the Register of Deeds of the city of Tacloban (Exh. 12).

"On March 6, 1965, Dr. Arcadio Galapon and his wife sold a portion of Lot 1184-E with an area of around 1,306 sq. meters to Judge

Asuncion and his wife, Victoria S. Asuncion (Exh. 11), which particular portion was declared by the latter for taxation purposes (Exh.

F).

"On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective shares and interest in Lot 1184-E to 'The

Traders Manufacturing and Fishing Industries Inc.' (Exh. 15 & 16). At the time of said sale the stockholders of the corporation were

Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and the latter's wife, Victoria S. Asuncion, with

Judge Asuncion as the President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of Incorporation of 'The Traders

Manufacturing and Fishing Industries, Inc.' which we shall henceforth refer to as 'TRADERS' were registered with the Securities and

Exchange Commission only on January 9, 1967 (Exh. E)" [pp. 378-385, rec.].

Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6, 1968 alleging four causes of action, to wit: [1] that

respondent Judge Asuncion violated Article 1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one

of those properties involved in Civil Case No. 3010 decided by him; [2] that he likewise violated Article 14, paragraphs 1 and 5 of the Code of Commerce,

Section 3, paragraph H, of R.A. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil Service Rules, and

Canon 25 of the Canons of Judicial Ethics, by associating himself with the Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a

ranking officer while he was a judge of the Court of First Instance of Leyte; [3] that respondent was guilty of coddling an impostor and acted in disregard

of judicial decorum by closely fraternizing with a certain Dominador Arigpa Tan who openly and publicly advertised himself as a practising attorney when

in truth and in fact his name does not appear in the Rolls of Attorneys and is not a member of the Philippine Bar; and [4] that there was a culpable

defiance of the law and utter disregard for ethics by respondent Judge (pp. 1-7, rec.).

Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on October 16, 1968 by herein complainant. In Our

resolution of October 28, 1968, We referred this case to then Justice Cecilia Muñoz Palma of the Court of Appeals, for investigation, report and

recommendation. After hearing, the said Investigating Justice submitted her report dated May 27, 1971 recommending that respondent Judge should be

reprimanded or warned in connection with the first cause of action alleged in the complaint, and for the second cause of action, respondent should be

warned in case of a finding that he is prohibited under the law to engage in business. On the third and fourth causes of action, Justice Palma

recommended that respondent Judge be exonerated.

The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant herein instituted an action before the Court of First

Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa R. Bales, et al., defendants," which was docketed as Civil Case No. 4235,

seeking the annulment of the project of partition made pursuant to the decision in Civil Case No. 3010 and the two orders issued by respondent Judge

approving the same, as well as the partition of the estate and the subsequent conveyances with damages. It appears, however, that some defendants

were dropped from the civil case. For one, the case against Dr. Arcadio Galapon was dismissed because he was no longer a real party in interest when

Civil Case No. 4234 was filed, having already conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge and on August 31, 1966 the

remainder was sold to the Traders Manufacturing and Fishing Industries, Inc. Similarly, the case against defendant Victoria Asuncion was dismissed on

the ground that she was no longer a real party in interest at the time the aforesaid Civil Case No. 4234 was filed as the portion of Lot 1184 acquired by her

and respondent Judge from Dr. Arcadio Galapon was already sold on August 31, 1966 to the Traders Manufacturing and Fishing Industries, Inc. Likewise,

the cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez, Traders Manufacturing and Fishing Industries, Inc.,

Alfredo R. Celestial and Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A. Tolete were

dismissed with the conformity of complainant herein, plaintiff therein, and her counsel.

On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was directed and authorized on June 2, 1969 by the then

Secretary (now Minister) of Justice and now Minister of National Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a decision,

the dispositive portion of which reads as follows:

"A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION —

"(1) declaring that only Branch IV of the Court of First Instance of Leyte has jurisdiction to take cognizance of the issue of

the legality and validity of the Project of Partition [Exhibit "B"] and the two Orders [Exhibits 'C' and 'C-3']

approving the partition;

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

"(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias B. Asuncion,

"(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for moral damages;

"(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.00] for exemplary damages;

"(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal damages; and

"(d) the sum of TEN THOUSAND PESOS [P10,000.00] for Attorney's Fees.

"B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN, FOR HERSELF AND FOR THE HEIRS OF THE DECEASED

GERARDO VILLASIN —

"(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs of the deceased Gerardo Villasin;

"(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of Gerardo Villasin the cost of the suit.

"C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES, ET AL., WHO WERE PLAINTIFFS IN CIVIL CASE NO. 3010 —

"(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer, Priscilla R. Solis, Luz R. Bakunawa,

Anacorita R. Eng and Ruperto O. Reyes.

"D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO —

"(1) Dismissing the complaint against Bonifacio Ramo;

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

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

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

I

WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her first cause of action, that respondent Judge Elias B.

Asuncion violated Article 1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those

properties involved in Civil Case No. 3010.

That Article provides:

"Article 1491. The following persons cannot acquire by purchase, even at a public or judicial action, either in person or through the

mediation of another:

xxx xxx xxx

"(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with

the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose

jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and

shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part

by virtue of their profession" [italics supplied].

The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is the subject of litigation to the persons disqualified

therein. WE have already ruled that ". . . for the prohibition to operate, the sale or assignment of the property must take place during the pendency of the

litigation involving the property" (The Director of Lands vs. Ababa, et al., 88 SCRA 513, 519 [1979]; Rosario vda. de Laig vs. Court of Appeals, 86 SCRA

641, 646 [1978]).

In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E, the decision in Civil Case No. 3010 which he rendered

on June 8, 1963 was already final because none of the parties therein filed an appeal within the reglementary period; hence, the lot in question was no

longer subject of the litigation. Moreover, at the time of the sale on March 6, 1965, respondent's order dated October 23, 1963 and the amended order

dated November 11, 1963 approving the October 16, 1963 project of partition made pursuant to the June 8, 1963 decision, had long become final for there

was no appeal from said orders.

Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the plaintiffs in Civil Case No. 3010 but from Dr. Arcadio

Galapon who earlier purchased on July 31, 1964 Lot 1184-E from three of the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after

the finality of the decision in Civil Case No. 3010. It may be recalled that Lot 1184 or more specifically one-half thereof was adjudicated in equal shares to

Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and Anacorita Reyes in the project of partition, and the same was subdivided into five lots

denominated as Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was sold on July 31, 1964 to Dr. Galapon for which he was issued TCT No. 2338 by the

Register of Deeds of Tacloban City, and on March 6, 1965 he sold a portion of said lot to respondent Judge and his wife who declared the same for

taxation purposes only. The subsequent sale on August 31, 1966 by spouses Asuncion and spouses Galapon of their respective shares and interest in

said Lot 1184-E to the Traders Manufacturing and Fishing Industries, Inc., in which respondent was the president and his wife was the secretary, took

place long after the finality of the decision in Civil Case No. 3010 and of the subsequent two aforesaid orders therein approving the project of partition.

While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before the Court of First Instance of Leyte docketed as Civil

Case No. 4234, seeking to annul the project of partition and the two orders approving the same, as well as the partition of the estate and the subsequent

conveyances, the same, however, is of no moment.

The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr. Arcadio Galapon; hence, after the finality of the

decision which he rendered on June 8, 1963 in Civil Case No. 3010 and his two questioned orders dated October 23, 1963 and November 11, 1963.

Therefore, the property was no longer subject of litigation.

The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter, change or affect the aforesaid facts — that the questioned

sale to respondent Judge, now Court of Appeals Justice, was effected and consummated long after the finality of the aforesaid decision or orders.

Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one year after the finality of the decision in Civil Case No.

3010 as well as the two orders approving the project of partition, and not during the pendency of the litigation, there was no violation of paragraph 5,

Article 1491 of the New Civil Code.

It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio Galapon by Priscilla Reyes, Adela Reyes and Luz R.

Bakunawa was only a mere scheme to conceal the illegal and unethical transfer of said lot to respondent Judge as a consideration for the approval of the

project of partition. In this connection, We agree with the findings of the Investigating Justice thus:

"And so we are now confronted with this all-important question whether or not the acquisition by respondent of a portion of Lot

1184-E and the subsequent transfer of the whole lot to 'TRADERS' of which respondent was the President and his wife the Secretary,

was intimately related to the Order of respondent approving the project of partition, Exh. A.

"Respondent vehemently denies any interest or participation in the transactions between the Reyeses and the Galapons concerning

Lot 1184-E, and he insists that there is no evidence whatsoever to show that Dr. Galapon had acted, in the purchase of Lot 1184-E, in

mediation for him and his wife. (See p. 14 of Respondent's Memorandum).

xxx xxx xxx

"On this point, I agree with respondent that there is no evidence in the record showing that Dr. Arcadio Galapon acted as a mere

'dummy' of respondent in acquiring Lot 1184-E from the Reyeses. Dr. Galapon appeared to this investigator as a respectable citizen,

credible and sincere, and I believe him when he testified that he bought Lot 1184-E in good faith and for valuable consideration from

the Reyeses without any intervention of, or previous understanding with Judge Asuncion" (pp. 391-394, rec.).

On the contention of complainant herein that respondent Judge acted illegally in approving the project of partition although it was not signed by the

parties, We quote with approval the findings of the Investigating Justice, as follows:

"1. I agree with complainant that respondent should have required the signature of the parties more particularly that of Mrs.

Macariola on the project of partition submitted to him for approval; however, whatever error was committed by respondent in that

respect was done in good faith as according to Judge Asuncion he was assured by Atty. Bonifacio Ramo, the counsel of record of

Mrs. Macariola, that he was authorized by his client to submit said project of partition, (See Exh. B and tsn. p. 24, January 20, 1969).

While it is true that such written authority if there was any, was not presented by respondent in evidence, nor did Atty. Ramo appear

to corroborate the statement of respondent, his affidavit being the only one that was presented as respondent's Exh. 10, certain

actuations of Mrs. Macariola lead this investigator to believe that she knew the contents of the project of partition, Exh. A, and that

she gave her conformity thereto. I refer to the following documents:

"1) Exh. 9 — Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban Cadastral Survey in which

the deceased Francisco Reyes holds a '1/4 share' (Exh. 9-a). On this certificate of title the Order dated November

11, 1963, (Exh. U) approving the project of partition was duly entered and registered on November 26, 1963 (Exh.

9-D);

"2) Exh. 7 — Certified copy of a deed of absolute sale executed by Bernardita Reyes Macariola on October 22,

1963, conveying to Dr. Hector Decena the one-fourth share of the late Francisco Reyes-Diaz in Lot 1154. In this

deed of sale the vendee stated that she was the absolute owner of said one-fourth share, the same having been

adjudicated to her as her share in the estate of her father Francisco Reyes Diaz as per decision of the Court of

First Instance of Leyte under case No. 3010 (Exh. 7-A). The deed of sale was duly registered and annotated at the

back of OCT 19520 on December 3, 1963 (see Exh. 9-e).

"In connection with the abovementioned documents it is to be noted that in the project of partition dated October 16, 1963, which

was approved by respondent on October 23, 1963, followed by an amending Order on November 11, 1963, Lot 1154 or rather 1/4

thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in Lot 1154 which complainant sold to Dr. Decena on October 22, 1963,

several days after the preparation of the project of partition.

"Counsel for complainant stresses the view, however, that the latter sold her one-fourth share in Lot 1154 by virtue of the decision in

Civil Case 3010 and not because of the project of partition, Exh. A. Such contention is absurd because from the decision, Exh. C, it is

clear that one-half of one-fourth of Lot 1154 belonged to the estate of Francisco Reyes Diaz while the other half of said one-fourth

was the share of complainant's mother, Felisa Espiras; in other words, the decision did not adjudicate the whole of the one-fourth of

Lot 1154 to the herein complainant (see Exhs. C-3 & C-4). Complainant became the owner of the entire one fourth of Lot 1154 only by

means of the project of partition, Exh. A. Therefore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it was for no other reason

than that she was well aware of the distribution of the properties of her deceased father as per Exhs. A and B. It is also significant at

this point to state that Mrs. Macariola admitted during the cross-examination that she went to Tacloban City in connection with the

sale of Lot 1154 to Dr. Decena (tsn. p. 92, November 28, 1968) from which we can deduce that she could not have been kept ignorant

of the proceedings in civil case 3010 relative to the project of partition.

"Complainant also assails the project of partition because according to her the properties adjudicated to her were insignificant lots

and the least valuable. Complainant, however, did not present any direct and positive evidence to prove the alleged gross

inequalities in the choice and distribution of the real properties when she could have easily done so by presenting evidence on the

area, location, kind, the assessed and market value of said properties. Without such evidence there is nothing in the record to show

that there were inequalities in the distribution of the properties of complainant's father" (pp. 386-389, rec.).

Finally, while it is true that respondent Judge did not violate paragraph 5, Article 1491 of the New Civil Code in acquiring by purchase a portion of Lot

1184-E which was in litigation in his court, it was, however, improper for him to have acquired the same. He should be reminded of Canon 3 of the Canons

of Judicial Ethics which requires that: "A judge's official conduct should be free from the appearance of impropriety, and his personal behavior, not only

upon the bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach." And as aptly observed by the

Investigating Justice: ". . . it was unwise and indiscreet on the part of respondent to have purchased or acquired a portion of a piece of property that was

or had been in litigation in his court and caused it to be transferred to a corporation of which he and his wife were ranking officers at the time of such

transfer. One who occupies an exalted position in the judiciary has the duty and responsibility of maintaining the faith and trust of the citizenry in the

courts of justice, so that not only must he be truly honest and just, but his actuations must be such as not give cause for doubt and mistrust in the

uprightness of his administration of justice. In this particular case of respondent, he cannot deny that the transactions over Lot 1184-E are damaging and

render his actuations open to suspicion and distrust. Even if respondent honestly believed that Lot 1184-E was no longer in litigation in his court and that

he was purchasing it from a third person and not from the parties to the litigation, he should nonetheless have refrained from buying it for himself and

transferring it to a corporation in which he and his wife were financially involved, to avoid possible suspicion that his acquisition was related in one way

or another to his official actuations in civil case 3010. The conduct of respondent gave cause for the litigants in civil case 3010, the lawyers practising in

his court, and the public in general to doubt the honesty and fairness of his actuations and the integrity of our courts of justice" (pp. 395-396, rec.).

LexLib

II

With respect to the second cause of action, the complainant alleged that respondent Judge violated paragraphs 1 and 5, Article 14 of the Code of

Commerce when he associated himself with the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, said

corporation having been organized to engage in business. Said Article provides that:

"Article 14 — The following cannot engage in commerce, either in person or by proxy, nor can they hold any office or have any

direct, administrative, or financial intervention in commercial or industrial companies within the limits of the districts, provinces, or

towns in which they discharge their duties:

"1. Justices of the Supreme Court, judges and officials of the department of public prosecution in active service.

This provision shall not be applicable to mayors, municipal judges, and municipal prosecuting

attorneys nor to those who by chance are temporarily discharging the functions of judge or

prosecuting attorney.

xxx xxx xxx

"5. Those who by virtue of laws or special provisions may not engage in commerce in a determinate territory."

It is Our considered view that although the aforestated provision is incorporated in the Code of Commerce which is part of the commercial laws of the

Philippines, it, however, partakes of the nature of a political law as it regulates the relationship between the government and certain public officers and

employees, like justices and judges.

Political Law has been defined as that branch of public law which deals with the organization and operation of the governmental organs of the State and

define the relations of the state with the inhabitants of its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that political law

embraces constitutional law, law of public corporations, administrative law including the law on public officers and elections. Specifically, Article 14 of

the Code of Commerce partakes more of the nature of an administrative law because it regulates the conduct of certain public officers and employees

with respect to engaging in business; hence, political in essence.

It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885, with some modifications made by the "Comision de

Codificacion de las Provincias de Ultramar," which was extended to the Philippines by the Royal Decree of August 6, 1888, and took effect as law in this

jurisdiction on December 1, 1888.

Upon the transfer of sovereignty from Spain to the United States and later on from the United States to the Republic of the Philippines, Article 14 of this

Code of Commerce must be deemed to have been abrogated because where there is change of sovereignty, the political laws of the former sovereign,

whether compatible or not with those of the new sovereign, are automatically abrogated, unless they are expressly re-enacted by affirmative act of the

new sovereign.

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

"'By well-settled public law, upon the cession of territory by one nation to another, either following a conquest or otherwise, . . .

those laws which are political in their nature and pertain to the prerogatives of the former government immediately cease upon the

transfer of sovereignty.' (Opinion, Atty. Gen., July 10, 1899).

"While municipal laws of the newly acquired territory not in conflict with the laws of the new sovereign continue in force without the

express assent or affirmative act of the conqueror, the political laws do not. (Halleck's Int. Law, chap. 34, par. 14). However, such

political laws of the prior sovereignty as are not in conflict with the constitution or institutions of the new sovereign, may be

continued in force if the conqueror shall so declare by affirmative act of the commander-in-chief during the war, or by Congress in

time of peace. (Ely's Administrator vs. United States, 171 U.S. 220, 43 L. Ed. 142). In the case of American and Ocean Ins. Cos. vs. 356

Bales of Cotton (1 Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall said:

'On such transfer (by cession) of territory, it has never been held that the relations of the inhabitants with each other

undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between

them and the government which has acquired their territory. The same act which transfers their country, transfers the

allegiance of those who remain in it; and the law which may be denominated political, is necessarily changed, although

that which regulates the intercourse and general conduct of individuals, remains in force, until altered by the newly-

created power of the State.'"

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

the previous political relations of the ceded region are totally abrogated."

There appears no enabling or affirmative act that continued the effectivity of the aforestated provision of the Code of Commerce after the change of

sovereignty from Spain to the United States and then to the Republic of the Philippines. Consequently, Article 14 of the Code of Commerce has no legal

and binding effect and cannot apply to the respondent, then Judge of the Court of First Instance, now Associate Justice of the Court of Appeals.

It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of Republic Act No. 3019, otherwise known as the Anti-

Graft and Corrupt Practices Act, which provides that:

"Sec. 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized by existing law,

the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

xxx xxx xxx

"(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he

intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any

interest."

Respondent Judge cannot be held liable under the aforestated paragraph because there is no showing that respondent participated or intervened in his

official capacity in the business or transactions of the Traders Manufacturing and Fishing Industries, Inc. In the case at bar, the business of the

corporation in which respondent participated has obviously no relation or connection with his judicial office. The business of said corporation is not that

kind where respondent intervenes or takes part in his capacity as Judge of the Court of First Instance. As was held in one case involving the application

of Article 216 of the Revised Penal Code which has a similar prohibition on public officers against directly or indirectly becoming interested in any

contract or business in which it is his official duty to intervene, "(I)t is not enough to be a public official to be subject to this crime: it is necessary that by

reason of his office, he has to intervene in said contracts or transactions; and, hence, the official who intervenes in contracts or transactions which have

no relation to his office cannot commit this crime" (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal

Code, p. 1174, Vol. II [1976]).

It does not appear also from the records that the aforesaid corporation gained any undue advantage in its business operations by reason of respondent's

financial involvement in it, or that the corporation benefited in one way or another in any case filed by or against it in court. It is undisputed that there was

no case filed in the different branches of the Court of First Instance of Leyte in which the corporation was either party plaintiff or defendant except Civil

Case No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa O. Bales, et al.," wherein the complainant herein sought to recover Lot 1184-E

from the aforesaid corporation. It must be noted, however, that Civil Case No. 4234 was filed only on November 9 or 11, 1968 and decided on November 2,

1970 by CFI Judge Jose D. Nepomuceno when respondent Judge was no longer connected with the corporation, having disposed of his interest therein

on January 31, 1967.

Furthermore, respondent is not liable under the same paragraph because there is no provision in both the 1935 and 1973 Constitutions of the Philippines,

nor is there an existing law expressly prohibiting members of the Judiciary from engaging or having interest in any lawful business.

It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of 1948, does not contain any prohibition to that effect. As

a matter of fact, under Section 77 of said law, municipal judges may engage in teaching or other vocation not involving the practice of law after office

hours but with the permission of the district judge concerned.

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as heretofore stated, deemed abrogated

automatically upon the transfer of sovereignty from Spain to America, because it is political in nature.

Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by judges of a property in litigation before the court

within whose jurisdiction they perform their duties, cannot apply to respondent Judge because the sale of the lot in question to him took place after the

finality of his decision in Civil Case No. 3010 as well as his two orders approving the project of partition; hence, the property was no longer subject of

litigation.

In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil Service Act of 1959 prohibits an officer or employee in

the civil service from engaging in any private business, vocation, or profession or be connected with any commercial, credit, agricultural or industrial

undertaking without a written permission from the head of department, the same, however, may not fall within the purview of paragraph h, Section 3 of

the Anti-Graft and Corrupt Practices Act because the last portion of said paragraph speaks of a prohibition by the Constitution or law on any public

officer from having any interest in any business and not by a mere administrative rule or regulation. Thus, a violation of the aforesaid rule by any officer

or employee in the civil service, that is, engaging in private business without a written permission from the Department Head may not constitute graft and

corrupt practice as defined by law.

On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil Service Rules, We hold that the Civil Service Act of

1959 (R.A. No. 2260) and the Civil Service Rules promulgated thereunder, particularly Section 12 of Rule XVIII, do not apply to the members of the

Judiciary. Under said Section 12: "No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any

commercial, credit, agricultural or industrial undertaking without a written permission from the Head of Department . . ."

It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by Republic Act No. 296, as amended, otherwise known

as the Judiciary Act of 1948 and by Section 7, Article X, 1973 Constitution.

Under Section 67 of said law, the power to remove or dismiss judges was then vested in the President of the Philippines, not in the Commissioner of Civil

Service, and only on two grounds, namely, serious misconduct and inefficiency, and upon the recommendation of the Supreme Court, which alone is

authorized, upon its own motion, or upon information of the Secretary (now Minister) of Justice to conduct the corresponding investigation. Clearly, the

aforesaid section defines the grounds and prescribes the special procedure for the discipline of judges.

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

personnel of the Judiciary.

It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for . . . violation of the existing Civil Service Law and rules or of

reasonable office regulations, or in the interest of the service, remove any subordinate officer or employee from the service, demote him in rank, suspend

him for not more than one year without pay or fine him in an amount not exceeding six months' salary." Thus, a violation of Section 12 of Rule XVIII is a

ground for disciplinary action against civil service officers and employees.

However, judges cannot be considered as subordinate civil service officers or employees subject to the disciplinary authority of the Commissioner of

Civil Service; for, certainly, the Commissioner is not the head of the Judicial Department to which they belong. The Revised Administrative Code (Section

89) and the Civil Service Law itself state that the Chief Justice is the department head of the Supreme Court (Sec. 20, R.A. No. 2260) [1959]); and under the

1973 Constitution, the Judiciary is the only other or second branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section

12, Rule XVIII cannot be considered as a ground for disciplinary action against judges because to recognize the same as applicable to them, would be

adding another ground for the discipline of judges and, as aforestated, Section 67 of the Judiciary Act recognizes only two grounds for their removal,

namely, serious misconduct and inefficiency.

Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service who has original and exclusive jurisdiction "(T)o

decide, within one hundred twenty days, after submission to it, all administrative cases against permanent officers and employees in the competitive

service, and, except as provided by law, to have final authority to pass upon their removal, separation, and suspension and upon all matters relating to

the conduct, discipline, and efficiency of such officers and employees; and prescribe standards, guidelines and regulations governing the administration

of discipline" (emphasis supplied). There is no question that a judge belong to the non-competitive or unclassified service of the government as a

Presidential appointee and is therefore not covered by the aforesaid provision. WE have already ruled that ". . . in interpreting Section 16(i) of Republic

Act No. 2260, we emphasized that only permanent officers and employees who belong to the classified service come under the exclusive jurisdiction of

the Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA 710, 713 [1965l, Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).

Although the actuation of respondent Judge in engaging in private business by joining the Traders Manufacturing and Fishing Industries, Inc. as a

stockholder and a ranking officer, is not violative of the provisions of Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt

Practices Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated pursuant to the Civil Service Act of 1959, the impropriety of the

same is clearly unquestionable because Canon 25 of the Canons of Judicial Ethics expressly declares that:

"A judge should abstain from making personal investments in enterprises which are apt to be involved in litigation in his court; and,

after his accession to the bench, he should not retain such investments previously made, longer than a period sufficient to enable

him to dispose of them without serious loss. It is desirable that he should, so far as reasonably possible, refrain from all relations

which would normally tend to arouse the suspicion that such relations warp or bias his judgment, or prevent his impartial attitude of

mind in the administration of his judicial duties. . . ."

WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on January 31, 1967 from the aforesaid corporation and

sold their respective shares to third parties, and it appears also that the aforesaid corporation did not in anyway benefit in any case filed by or against it

in court as there was no case filed in the different branches of the Court of First Instance of Leyte from the time of the drafting of the Articles of

Incorporation of the corporation on March 12, 1966, up to its incorporation on January 9, 1967, and the eventual withdrawal of respondent on January 31,

1967 from said corporation. Such disposal or sale by respondent and his wife of their shares in the corporation only 22 days after the in corporation of

the corporation, indicates that respondent realized that early that their interest in the corporation contravenes the aforesaid Canon 25. Respondent Judge

and his wife therefore deserve the commendation for their immediate withdrawal from the firm after its incorporation and before it became involved in any

court litigation.

III

With respect to the third and fourth causes of action, complainant alleged that respondent was guilty of coddling an impostor and acted in disregard of

judicial decorum, and that there was culpable defiance of the law and utter disregard for ethics. WE agree, however, with the recommendation of the

Investigating Justice that respondent Judge be exonerated because the aforesaid causes of action are groundless, and WE quote the pertinent portion of

her report which reads as follows:

"The basis for complainant's third cause of action is the claim that respondent associated and closely fraternized with Dominador

Arigpa Tan who openly and publicly advertised himself as a practising attorney (see Exhs. I, I-1 and J) when in truth and in fact said

Dominador Arigpa Tan does not appear in the Roll of Attorneys and is not a member of the Philippine Bar as certified to in Exh. K.

The "respondent denies knowing that Dominador Arigpa Tan was an 'impostor' and claims that all the time he believed that the latter

was a bona fide member of the bar. I see no reason for disbelieving this assertion of respondent. It has been shown by complainant

that Dominador Arigpa Tan represented himself publicly as an attorney-at-law to the extent of putting up a signboard with his name

and the words 'Attorney-at-Law' (Exh. I and I-1) to indicate his office, and it was but natural for respondent and any person for that

matter to have accepted that statement on its face value.

"Now with respect to the allegation of complainant that respondent is guilty of fraternizing with Dominador Arigpa Tan to the extent

of permitting his wife to be a godmother of Mr. Tan's child at baptism (Exh. M & M-1), that fact even if true did not render respondent

guilty of violating any canon of judicial ethics as long as his friendly relations with Dominador A. Tan and family did not influence his

official actuations as a judge where said persons were concerned. There is no tangible convincing proof that herein respondent gave

any undue privileges in his court to Dominador Arigpa Tan or that the latter benefitted in his practice of law from his personal

relations with respondent, or that he used his influence, if he had any, on the Judges of the other branches of the Court to favor said

Dominador Tan.

"Of course it is highly desirable for a member of the judiciary to refrain as much as possible from maintaining close friendly relations

with practising attorneys and litigants in his court so as to avoid suspicion 'that his social or business relations or friendship

constitute an element in determining his judicial course" (par. 30, Canons of Judicial Ethics), but if a Judge does have social

relations, that in itself would not constitute a ground for disciplinary action unless it be clearly shown that his social relations

beclouded his official actuations with bias and partiality in favor of his friends" (pp. 403-405, rec.).

In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did not violate any law in acquiring by purchase a

parcel of land which was in litigation in his court and in engaging in business by joining a private corporation during his incumbency as judge of the

Court of First Instance of Leyte, he should be reminded to be more discreet in his private and business activities, because his conduct as a member of

the Judiciary must not only be characterized with propriety but must always be above suspicion.

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBY REMINDED TO BE MORE DISCREET IN HIS PRIVATE

AND BUSINESS ACTIVITIES.

SO ORDERED.

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

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

Barredo, J., I vote with Justice Aquino.

Aquino, J., I vote for respondent's unqualified exoneration.

Concepcion, Jr., J., is on leave.Posted by constitutionallaw1_0809 at 8:33 PM

Francisco Vs. House Of Representatives [415 SCRA 44; G.R. No. 160261; 10 Nov 2003]

Sunday, January 18, 2009 Posted by Coffeeholic Writes

Labels: Case Digests, Political Law

Facts: Impeachment proceedings were filed against Supreme Court Chief Justice Hilario Davide. The justiciable controversy poised in front of the Court

was the constitutionality of the subsequent filing of a second complaint to controvert the rules of impeachment provided for by law.

Issue: Whether or Not the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. with the House of Representatives falls

within the one year bar provided in the Constitution and whether the resolution thereof is a political question – has resulted in a political crisis.

Held: In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues which this controversy spawns that this

Court unequivocally pronounces, at the first instance, that the feared resort to extra-constitutional methods of resolving it is neither necessary nor legally

permissible. Both its resolution and protection of the public interest lie in adherence to, not departure from, the Constitution.

In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential truth that the inviolate doctrine of separation

of powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in the discharge by each

of that part of the governmental power assigned to it by the sovereign people.

At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution to temper the official acts of each

of these three branches must be given effect without destroying their indispensable co-equality. There exists no constitutional basis for the contention

that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be

interpreted as a whole and "one section is not to be allowed to defeat another." Both are integral components of the calibrated system of independence

and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution.

When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct and personal. He must be able to show, not

only that the law or any government act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury as a result of its

enforcement, and not merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or is about to be denied

some right or privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act

complained of. In fine, when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal

interest.

In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being deflected to

any improper purpose, or that there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. Before he can invoke the

power of judicial review, however, he must specifically prove that he has sufficient interest in preventing the illegal expenditure of money raised by

taxation and that he would sustain a direct injury as a result of the enforcement of the questioned statute or contract. It is not sufficient that he has

merely a general interest common to all members of the public.

At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be entertained. This Court opts to grant standing to most of

the petitioners, given their allegation that any impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the Chief

Justice will necessarily involve the expenditure of public funds.

As for a legislator, he is allowed to sue to question the validity of any official action which he claims infringes his prerogatives as a legislator. Indeed, a

member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his

office.

The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal reached the floor proposing that "A vote of at

least one-third of all the Members of the House shall be necessary… to initiate impeachment proceedings," this was met by a proposal to delete the line

on the ground that the vote of the House does not initiate impeachment proceeding but rather the filing of a complaint does.

To the argument that only the House of Representatives as a body can initiate impeachment proceedings because Section 3 (1) says "The House of

Representatives shall have the exclusive power to initiate all cases of impeachment," This is a misreading of said provision and is contrary to the

principle of reddendo singula singulis by equating "impeachment cases" with "impeachment proceeding."

Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on

Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of

Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against

the same official within a one year period.

The Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue of whether the impeachment proceedings

initiated against the Chief Justice transgressed the constitutionally imposed one-year time bar rule. Beyond this, it did not go about assuming

jurisdiction where it had none, nor indiscriminately turn justiciable issues out of decidedly political questions. Because it is not at all the business of this

Court to assert judicial dominance over the other two great branches of the government.

No one is above the law or the Constitution. This is a basic precept in any legal system which recognizes equality of all men before the law as essential to

the law's moral authority and that of its agents to secure respect for and obedience to its commands. Perhaps, there is no other government branch or

instrumentality that is most zealous in protecting that principle of legal equality other than the Supreme Court which has discerned its real meaning and

ramifications through its application to numerous cases especially of the high-profile kind in the annals of jurisprudence. The Chief Justice is not above

the law and neither is any other member of this Court. But just because he is the Chief Justice does not imply that he gets to have less in law than

anybody else. The law is solicitous of every individual's rights irrespective of his station in life.

.R. No. 160261 - (Ernesto B. Francisco, Jr., petitioner, vs. The House of Representatives, represented by Speaker Jose de Venecia, The Senate, represented by Senate President Franklin M. Drilon, Representative Gilberto C. Teodoro, Jr. and Representative Felix William B. Fuentebella, respondents).[1]

SEPARATE OPINION

CALLEJO, SR., J.:

I concur with modifications with the encompassing ponencia of Justice Conchita Carpio-Morales. However, I find it imperative to submit this separate opinion to set forth some postulates on some of the cogent issues.

Briefly, the factual antecedents are as follows:

On June 2, 2003, a verified impeachment complaint was filed with the Office of the Secretary General of the House of Representatives by former President Joseph E. Estrada against Chief Justice Hilario G. Davide, Jr. and seven (7) other associate justices of the Court for violation of the Constitution, betrayal of public trust and committing high crimes. The complaint was referred to the Speaker of the House, who had the same included in the Order of Business. Thereafter, the complaint was referred to the Committee on Justice and Human Rights.

On October 13, 2003, the House Committee on Justice included the first impeachment complaint in its order of business. The Committee voted that the complaint was sufficient in form. However, on October 22, 2003, the said House Committee dismissed the first impeachment complaint for insufficiency of substance. The same Committee has not yet transmitted its report to the plenary.

The following day, or on October 23, 2003, a verified impeachment complaint was filed with the Office of the Secretary General of the House by the complainants, Representatives Gilberto C. Teodoro, First District, Tarlac, and Felix William D. Fuentebella, Third District, Camarines Sur, against Chief Justice Hilario G. Davide, Jr., for graft and corruption, betrayal of public trust, culpable violation of the Constitution and failure to maintain good behavior while in office. Attached to the second impeachment complaint was a Resolution of Endorsement/Impeachment signed by at least one-third (1/3) of all the members of the House of Representatives.

On October 24, 2003, the Majority and Minority Leaders of the House of Representatives transmitted to the Executive Director, Plenary Affairs Division of the House of Representatives, the aforesaid Verified Impeachment Complaint and Resolution of Endorsement for its inclusion in the Order of Business, and for the endorsement of the House to the Senate within three days from its inclusion pursuant to Section 15, Rule IV of the 2001 Rules of Procedure on Impeachment Proceedings. The Impeachment Complaint and Resolution of Endorsement were included in the business of the House of Representatives at 2:00 p.m. of October 28, 2003. However, the matter of the transmittal of the Complaint of Impeachment was not resolved because the session was adjourned, to resume at 4:00 p.m. on November 10, 2003.

On October 27, 2003, Ernesto B. Francisco, Jr. filed his petition for certiorari and prohibition for the nullification of the October 23, 2003 Impeachment Complaint with a plea for injunctive relief. The Integrated Bar of the Philippines filed a similar petition for the nullification of Sections 16 and 17 of Rule V of the 2001 House Rules of Procedure in Impeachment Proceedings. The petitioners Congressmen in G.R. No. 160295 also manifested to the Court and prayed during the hearing on November 6, 2003 that Rule V of the 2001 Rules of Procedure on Impeachment Proceedings be declared unconstitutional. Similar petitions were also filed with the Court by other parties against the same Respondents with the Court.

In their Manifestation, Respondents Speaker of the House, et al., urged the Court to dismiss the petitions on the ground that the Court has no jurisdiction over the subject matter of the petition and the issues raised therein. They assert that the Court cannot prohibit or enjoin the House of Representatives, an independent and co-equal branch of the government, from performing its constitutionally mandated duty to initiate impeachment cases. They submit that the impeachment proceedings in the House is “nonjusticiable,” falling within the category of “political questions,” and, therefore, beyond the reach of this Court to rule upon. They counter that the October 23, 2003 Complaint was the first complaint for Impeachment filed against Chief Justice Hilario G. Davide, Jr., the complaint for Impeachment filed by former President Joseph Ejercito Estrada having been deemed uninitiated. In its Manifestation to the Court, the respondent Senate of the Philippines asserts that: (a) the petitions are premature because the Articles of Impeachment have yet to be transmitted to the Senate by the House of Representatives; and (b) the issues raised in the petition pertain exclusively to the proceedings in the House of Representatives.

In his Comment on the petitions, Respondent-Intervenor Senator Aquilino Q. Pimentel, Jr. contends that the Court has no jurisdiction to resolve the legality of the October 23, 2003 Complaint/Articles of Impeachment, as the said issue involves a political question, the resolution of which is beyond the jurisdiction of the Court. It is the Senate, sitting as an Impeachment Court, that is competent to resolve the issue of whether the Complaint of Impeachment filed on October 23, 2003 was filed within the one year time-bar. The Senate, sitting as an impeachment tribunal as sole power to try and decide an impeachment case, is according to the Senator, beyond the reach of the Court to decide.

The threshold issues raised by the parties may be synthesized, thus: (a) whether the Petitioners have locus standi; (b) whether the Court has jurisdiction over the subject matter of the petitions and of the issues; (c) if in the affirmative, whether the petitions are premature; (d) whether judicial restraint should be exercised by the Court; (e) whether Sections 16 and 17 of Rule V of the House Rules of Procedure in Impeachment Cases are unconstitutional; and (f) whether the October 23, 2003 Complaint of Impeachment against the Chief Justice is time-barred.

On the Issue of Locus Standiof the Petitioners

I am in full accord with the ratiocinations of the ponente.

The Court Has Jurisdiction overThe Respondents and the SubjectMatter of the Petitions

In their Special Appearance and/or Manifestation, Respondents Speaker Jose de Venecia, et al. assert that the Court has no jurisdiction over the subject matter of the petitions and that it has no jurisdiction to bar, enjoin and prohibit the Respondent House of Representatives at any time from performing its constitutional mandate to initiate impeachment cases and to enjoin the Senate from trying the same. The Respondents contend that under Section 3(1), Article VI of the Constitution, the House of Representatives shall have the exclusive power to initiate all cases of impeachment. For his part, the Respondent Intervenor Senator Aquilino Q. Pimentel, Jr. avers that under Section 6, Article XI of the Constitution, the Senate shall have the sole power to try and decide all cases of impeachment and the Court is bereft of jurisdiction to interfere in the trial and decision of the complaint against the Chief Justice. The Respondents cite the ruling of the United States Supreme Court in Walter Nixon v. United States.[2] The Respondent Speaker Jose de Venecia, et al., also cited the Commentary of Michael Gerhart on the said ruling of the United States Supreme Court that even in a case involving a violation of explicit constitutional restraint, judicial intervention would undermine impeachment effectiveness as a check on the executive, and would constitute judicial abuse of power; and that the judicial involvement in impeachment proceedings even if only for purposes of judicial review is counterintuitive because it would eviscerate the important constitutional check placed on the judiciary by the Framers. It is also contended that opening the door of judicial review to the procedures used by the Senate in trying impeachments would expose the political life of the country to months, or perhaps years of chaos. Furthermore, it is averred that judicial review of the Senate’s trial would introduce the same risks of bias as would participation in the trial itself.

I find the contentions of the Respondents to be without merit.

By the jurisdiction of the Court over the subject matter is meant the nature of the cause of action and of the relief sought. This is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred. [3] It is axiomatic that jurisdiction is conferred by the Constitution and by the laws in force at the time of the commencement of the action. [4]

In the petitions at bar, as can be gleaned from the averments therein, the petitioners sought the issuance of the writs of certiorari, prohibition and injunction against the Respondents, on their claim that the Respondent House of Representatives violated Section 3(5), Article XI of the Constitution when it approved and promulgated on November 28, 2001 Sections 16 and 17, Rule V of the 2001 House Rules of Procedure in Impeachment Proceedings.

The Petitioners also averred in their petitions that the initiation by the Respondents Congressmen Gilbert C. Teodoro and Felix William D. Fuentebella of the impeachment case against Chief Justice Hilario G. Davide, Jr. on October 23, 2003 via a complaint for impeachment filed is barred by the one-year time line under Section 3(5), Article XI of the Constitution.

They further assert that the Respondent House of Representatives committed a grave abuse of its discretion amounting to lack or excess of jurisdiction in giving due course to the October 23, 2003 Complaint of Impeachment and in insisting on transmitting the same to the Respondent Senate.

Under Section 1, Article VIII of the Constitution, “judicial power is vested in the Supreme Court and in such lower courts as may be established by law. The judicial power of the Court includes the power to settle controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” In Estrada v. Desierto,[5] this Court held that with the new provision in the Constitution, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. The Constitution is the supreme law on all governmental agencies, including the House of Representatives and the Senate.

Under Section 4(2), Article VIII of the Constitution, the Supreme Court is vested with jurisdiction over cases involving the constitutionality, application and operation of government rules and regulations, including the constitutionality, application and operation of rules of the House of Representatives, as well as the Senate.[6] It is competent and proper for the Court to consider whether the proceedings in Congress are in conformity with the Constitution and the law because living under the Constitution, no branch or department of the government is supreme; and it is the duty of the judiciary to determine cases regularly brought before them, whether the powers of any branch of the government and even those of the legislative enactment of laws and rules have been exercised in conformity with the Constitution; and if they have not, to treat their acts as null and void. [7] Under Section 5, Article VIII of the Constitution, the Court has exclusive jurisdiction over petitions for certiorari and prohibition. The House of Representatives may have the sole power to initiate impeachment cases, and the Senate the sole power to try and decide the said cases, but the exercise of such powers must be in conformity with and not in derogation of the Constitution.

The Respondents cannot find refuge in the ruling of the United States Supreme Court in Walter Nixon v. United States[8] because the United States Constitution does not contain any provision akin to that in Paragraph 1, Article VIII of the Constitution. The Nixon case involved the issue of whether Senate Rule XI violated Impeachment Trial Clause Articles 1, 3, cl. 6, which provides that the Senate shall have the power to try all impeachment cases. The subject matter in the instant petitions involve the constitutionality of Sections 16 and 17, Rule V of the 2001 House Rules of Procedures in Impeachment Proceedings and the issue of whether the October 23, 2003 Complaint of Impeachment is time-barred under Section 3(5), Article XI of the Constitution. Besides, unlike in the instant petitions, the U.S. Supreme Court ruled in Nixon that “there is no separate provision of the Constitution that could be defeated by allowing the Senate final authority to determine the meaning of the word ‘try’ in the Impeachment Trial Clause.” The Court went on to emphasize that:

We agree with Nixon that [506 U.S. 224, 238] courts possess power to review either legislative or executive action that transgresses identifiable textual limits. As we have made clear, “whether the action of [either the Legislative or Executive Branch] exceeds whatever authority has been committed is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution.”

The Court has jurisdiction

over the issues

The issue of whether or not this Court has jurisdiction over the issues has reference to the question of whether the issues are justiciable, more specifically whether the issues involve political questions. The resolution of the issues involves the construction of the word “initiate.” This, in turn, involves an interpretation of Section 3(5), Article XI of the Constitution, in relation to Sections 3(1) and 3(2) thereof, which read:

Sec. 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

The construction of the word “initiate” is determinative of the resolution of the issues of whether Sections 16 and 17, Rule V of the 2001 House Rules of Procedure in Impeachment Proceedings violated Section 3(5), Article XI of the Constitution or not; and whether the October 23, 2003 Complaint of Impeachment is a violation of the proscription in Section 3(5), Article XI of the Constitution against impeachment proceedings being initiated against the same Respondent more than once within a period of one year. The issue as to the construction of Rule V of the 2001 House Rules of Procedure affects a person other than the Members of the House of Representatives, namely, Chief Justice Hilario G. Davide, Jr. These questions are of necessity within the jurisdiction of the Court to resolve. As Justice Brandeis said in United States v. George Otis Smith,[9] as to the construction to be given to the rules affecting persons other than members of the Senate, the question presented is of necessity a judicial one. In Santiago v. Sandiganbayan,[10] this Court held that it is an impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial intervention. In Integrated Bar of the Philippines v. Zamora,[11] this Court held that when the grant of power is qualified, conditional or are subject to limitations, the issue of whether the proscribed limitations have been met or the limitations respected, is justiciable – the problem being one of legality or validity, not its wisdom. Moreover, the jurisdiction to determine constitutional boundaries has been given to this Court. Even in Nixon v. Unites States,[12] the Supreme Court of the Unites States held that whether the action of the Legislative exceeds whatever authority has been committed is itself a delicate exercise in constitutional interpretation, and is the responsibility of the Supreme Court as the ultimate interpreter of the Constitution.

On the prematurity of the petition andthe need for Judicial Restraint.

There is no doubt that the petitions at bar were seasonably filed against the respondents Speaker Jose de Venecia and his co-respondents. In Aquilino Pimentel Jr. v. Aguirre,[13] this Court ruled that upon the mere enactment of the questioned law or the approval of the challenged action, the dispute is said to have ripened into a judicial controversy even without any other overt act. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken judicial duty. In this case, the respondents had approved and implemented Sections 16 and 17, Rule V of the 2001 of the Rules of Procedure, etc. and had taken cognizance of and acted on the October 23, 2003 complaint of impeachment; the respondents are bent on transmitting the same to the respondent Senate. Inscrutably, therefore, the petitions at bar were seasonably filed against said respondents. However, I agree with the respondent Senate that the petitions were premature, the issues before the Court being those that relate solely to the proceedings in the House of Representatives before the complaint of impeachment is transmitted by the House of Representatives to the Senate.

On the issue of judicial self-restraint, Amici Curiae Dean Raul Pangalangan and Dean Pacifico Agabin presented two variant aspects: Dean Raul Pangalangan suggests that the Court orders a suspension of the proceedings in this Court and allow the complainants to withdraw their complaints and the House of Representatives to rectify Rule V of the 2001 House Rules of Procedure. Dean Pacifico Agabin suggests that the Court deny due course and dismiss the petitions to enable the Senate to resolve the issues in the instant cases. Their proposals prescind from the duty of the Court under Section 1, Article VIII of the Constitution to resolve the issues in these cases. The suggestions of the amici curiae relate to the principles of exhaustion of administrative remedies and the doctrine of primary jurisdiction.

I find the suggestions of the amici curiae unacceptable.

First. The complainants and the endorsers of their complaint and even the House of Representatives through the Respondent Speaker Jose de Venecia are bent on transmitting the impeachment complaint to the Senate without delay.

Second. The courts should take cognizance of and resolve an action involving issues within the competence of a tribunal of special competence without the need of the latter having to resolve such issue where, as in this case, Respondent Speaker Jose de Venecia and his co-respondents acted with grave abuse of discretion, arbitrariness and capriciousness is manifest.[14]

Third. The issue of whether or not the October 23, 2003 complaint of impeachment is time-barred is not the only issue raised in the petitions at bar. As important, if not more important than the said issue, is the constitutionality of Sections 16 and 17, Rule V of the 2001 House Rules of Procedure. In fact, the resolution of the question of whether or not the October 23, 2003 complaint for impeachment is time-barred is anchored on and is inextricably

interrelated to the resolution of this issue. Furthermore, the construction by the Court of the word “initiate” in Sections 3(1) and (5) in relation to Section 3(3), Article XI of the Constitution is decisive of both issues.

Fourth. The Senate has no jurisdiction to resolve the issue of the constitutionality of Sections 16 and 17, Rule V of the 2001 House Rules of Procedure, in the same manner that the House of Representatives has no jurisdiction to rule on the constitutionality of the Impeachment Rules of the Senate. The Senate and the House of Representatives are co-equal. I share the view of Justice Isagani Cruz in his concurring opinion in Fernandez v. Torres[15] that an unconstitutional measure should be slain on sight. An illegal act should not be reprieved by procedural impediments to delay its inevitable annulment. If the Court resolves the constitutionality of Rule V of the 2001 Rules of Procedure, and leaves the issue of whether the October 23, 2003 Complaint of Impeachment to be resolved by the Senate, this will promote multiplicity of suits and may give rise to the possibility that the Court and the Senate would reach conflicting decisions. Besides, in Daza v. Singson[16] this Court held that the transcendental importance to the public, strong reasons of public policy, as well as the character of the situation that confronts the nation and polarizes the people are exceptional circumstances demanding the prompt and definite resolution of the issues raised before the Court.

Fifth. The doctrine of primary jurisdiction comes into play in the Senate only upon the transmittal of the impeachment complaint to it.

Sixth. The resolution of whether the October 23, 2003 Complaint of Impeachment is time-barred does not require the application of a special skill or technical expertise on the part of the Senate.

Sections 16 and 17, Rule V of the2001 Rules of Procedure, etc.is unconstitutional

The October 23, 2003 Complaintof impeachment is time-barred

The petitioners contend that Sections 16 and 17, Rule V of the 2001 House Rules of Procedure construing Section 3(5), Article XI is unconstitutional. Respondent Speaker Jose G. de Venecia and his co-respondents contend that the June 2, 2003 Complaint for Impeachment filed by former President Joseph E. Estrada against Chief Justice Hilario Davide, Jr., and seven other Justices of the Supreme Court “did not reach first base and was never initiated by the House of Representatives, and, in fact, the committee report has yet to be filed and acted upon by the House of Representatives.” The respondents further assert that the only complaint for impeachment officially initiated by the House of Representatives is the October 23, 2003 Complaint filed by Congressmen Gilberto Teodoro and Felix William Fuentebella. The respondents finally contend that their interpretation of Rule V of the 2001 Rules of Procedure in relation to Sections 3(4) and 3(5), Article XI of the Constitution is the only rational and reasonable interpretation that can be given, otherwise, the extraordinary remedy of impeachment will never be effectively carried out because impeachable officials can conveniently allow or manipulate the filing of bogus complaints against them every year to foreclose this remedy. The respondents cite the commentary of Fr. Joaquin Bernas, one of the amici curiae of the Court in his book, “The 1987 Constitution of the Republic of the Philippines, A Commentary, 1996 ed., p. 1989.”

The submissions of the respondents do not hold water.

Section 3, Article XI of the Constitution reads:

SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

(2) A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

(3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

(6) The Senate shall have the sole 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, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment according to law.

(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

There are two separate and distinct proceedings undertaken in impeachment cases. The first is that undertaken in the House of Representatives, which by express provision of the Constitution, is given the authority to determine the sufficiency in form and substance of the complaint for impeachment, the existence of probable cause, and to initiate the articles of impeachment in the Senate. The second is the trial undertaken in the Senate. The authority to initiate an impeachment case is lodged solely in the House of Representatives, while the authority to try and decide an impeachment case is lodged solely in the Senate. The two proceedings are independent of and separate from the other. This split authority avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevelancy of a factious spirit in either of those branches.[17]

It must be noted that the word “initiate” is twice used in Section 3; first in paragraph 1, and again in paragraph 5. The verb “initiate” in paragraph 1 is followed by the phrase “all cases of impeachment,” while the word “initiated” in paragraph 5 of the Section is preceded by the words “no impeachment proceedings shall be.” On the other hand, the word “file” or “filed” is used in paragraphs 2 and 4 of Section 3.

There is a clear distinction between the words “file” and the word “initiate.” Under the Rules of Civil Procedure, complaints are filed when the same are delivered into the custody of the clerk of court or the judge either by personal delivery or registered mail and the payment of the docket and other fees therefor. In criminal cases, the information or criminal complaint is considered filed when it is delivered with the court whether for purposes of preliminary investigation or for trial as the case may be.

Distinction must be made between the phrase “the case” in Section 3(1) from the word “proceedings” in Section 3(5). “The case” refers to an action commenced or initiated in the Senate by the transmittal of the articles of impeachment or the complaint of impeachment by the House of Representatives for trial. The word “proceeding” means “the regular and orderly progression of a lawsuit including all acts and events between the time of commencement and the entry of judgment; an act or step that is part of a larger action; an act done by the authority or direction of the court, express or implied; it is more comprehensive than the word “action” but it may include in its general sense all the steps taken or measures adopted in the prosecution or defense of an action including the pleadings and judgment. [18] The word “initiate” means “to begin with or get going; make a beginning; perform or facilitate the first action.”[19]

Based on the foregoing definitions, the phrase “initiate all cases of impeachment” in Section 3(1) refers to the commencement of impeachment cases by the House of Representatives through the transmittal of the complaint for impeachment or articles of impeachment to the Senate for trial and decision. The word “initiated” in Section 3(5), on the other hand, refers to the filing of the complaint for impeachment with the office of the Secretary General of the House of Representatives, either by a verified complaint by any member of the House of Representatives or by any citizen upon a resolution of endorsement by any member thereof, and referred to the committee of justice and human rights for action, or by the filing of a verified complaint or resolution of impeachment by at least one-third of all members of the House, which complaint shall constitute the Article of Impeachment. This is the equivalent of a complaint in civil procedure or criminal complaint or information in criminal procedure.

According to amicus curiae Fr. Joaquin Bernas, the referral by the House of Representatives is the initiating step which triggers the series of steps that follow in the House of Representatives. The submission of Fr. Joaquin Bernas is shared by amicus curiae Justice Florenz D. Regalado, who, aside from being an eminent authority on Remedial Law, was also a member of the Constitutional Commission. During the hearing of this petition on November 5, 2003, he stated:

RET. JUSTICE REGALADO:

The point of filing does not mean that physical act of filing. If the petition/complaint is filed and no further action was taken on it then it dies a natural death. When we say initiation of impeachment proceedings where in the Court or the House of Representatives has taken judicial cognizance by the referral to the corresponding committees should be understood as part of the filing and that is why it was then. The problem here arose in that based on the wordings of Article 11, this House of Representatives is, promulgated pursuant to the power granted to them, the rules, Rule 2, Sections 2 and 3, on December 15, 1998 following the wording of the Constitution. But then, on November 28, 2001 they promulgated Rule 5, Section 16 and 17, this time requiring the vote of 1/3 for the purpose of initiating the proceeding obliviously possibly of the fact that the Constitution as worded and amended by the Maambong suggestion or advice was that it was it is initiated from the moment of filing. The reason given and the justification given for that change was that it would enable the, somebody in collusion with the one who is going to be impeached to file what they call, what one petitioner calls here a “bogus” complaint for impeachment and thereby give the party there in effect immunity for one year from the filing of an impeachment case, which is meritorious. Now, number 1, I do not agree with that explanation because that is against the Constitution. Strictly against the Constitution, that was a grave abuse of discretion to change it. And further more, Second, that so-called problem about somebody coming in to file a “bogus” impeachment complaint just to save the respondent for one year from another complaint is not beyond solution. The mere fact that a “bogus” or insufficient or meritorious complaint was deliberately resorted to in order to illegally avail of the one year period is the filing of a sham pleading which has not produce any effect even in the Rules of Court we have proceedings, we have provisions about sham pleadings, and for that matter the Court can even motu proprio dismiss that initiatory pleading and here the House of Representatives I am sure could also dismiss a sham bogus or sham complaint for impeachment. Now, on the matter of a problem therein because the rules must always comply with the Constitution and it must be subject to Constitutional sufficiency. The political, the question of the sole power of the Senate to try and decide, will lie as obvious the matter of prematurity. Well, as I said this is not premature, although I understand that Senate President Drilon pointed out that it was premature to sent him a copy or resolution inviting them to observe to avoid any act which would render academic wherein in the first place we are only on the first stage here. This Court has not yet acquired jurisdiction to try the case on the merits, precisely the Court stated that the petition are not yet being given due course, so they might, but at any rate, it is not premature. … the inevitable result is not if the complaint with the votes are submitted to the Senate, the Senate has no other recourse but to actually try the case. [20]

The Rules of Procedure adverted to by the Justice Florenz D. Regalado is Sections 16 and 17, Rule V which reads:

Sec. 16. Impeachment Proceedings Deemed Initiated.— In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a resolution or endorsement against an impeachable officer, impeachment proceedings against such official are deemed inititated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance or on the date the house votes to overturn or affirm the finding of the said committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance.

In cases where a verified complaint or a resolution of impeachment if filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General.

Sec. 17. Bar Against Initiation of Impeachment Proceedings.— Within a period of one (1) year from the date of impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official.

The House of Representatives distorted and ignored the plain words of Section 3(1), Article XI of the Constitution when it provided in Section 16, Rule V that a complaint of impeachment is “deemed initiated” in the House of Representatives “on the day the committee of justice finds that the said verified complaint and/or resolution against such official, as the case may be, is sufficient in substance or on the date the House votes to overturn or affirm the finding of the said committee that the verified complaint and/or resolution, as the case may, be is not sufficient in substance.” Consequently, it also distorted the computation of the one year period time bar under Section 3(5), Article XI of the Constitution to begin only “on the day this committee on justice finds that the verified complaint and/or resolution against such official is sufficient in substance or on the date the house votes to overturn or affirm the finding of the said committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance.” Since Rule V of the 2001 Rules of Procedure is contrary to the Constitution, the said rule is void. Resultantly, the complaint for impeachment against seven Justices of this Court filed by former President Joseph Ejercito Estrada with the office of the Secretary General of the House of Representatives was initiated within the context of Section 3(5), Article XI of the Constitution. The complaint was filed on June 2, 2003 and referred to the House Committee on Justice and Human Rights shortly thereafter. However, Congressmen Gilberto Teodoro and Felix William Fuentebella initiated impeachment proceedings against Chief Justice Hilario G. Davide, Jr., with the Resolution of Endorsement of the Complaint for Impeachment by more than one-third of the members of the House of Representatives on October 23, 2003 well within one year from the initiation of the June 2, 2003 of former President Joseph E. Estrada. Irrefragably then, the October 23, 2003 complaint for impeachment filed by Congessmen Gilberto C. Teodoro, Jr. and Felix William D. Fuentebella is a second complaint for impeachment, which, under Section 3(5), Article XI of the Constitution, is proscribed.

IN THE LIGHT OF ALL THE FOREGOING, I vote to DENY DUE COURSE and to DISMISS all the petitions against the respondent Senate of the Philippines; and to DENY DUE COURSE and DISMISS the petition in G.R. No. 160397; and to give due course and grant the rest of the petitions against the respondent Speaker Jose G. de Venecia and his co-respondents.

Accordingly, Rule V of the 2001 House Rules of Procedure in Impeachment Proceedings which was approved by the respondent House of Representatives on November 28, 2001 is UNCONSTITUTIONAL. The complaint of impeachment filed by the respondents Representatives Gilberto C. Teodoro, Jr. and Felix William G. Fuentebella on October 22, 2003 is barred under Article XI, Section 3(5) of the Constitution.

Thus, the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on November 28, 2001 are

unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr is barred under paragraph 5, section 3

of Article XI of the Constitution.

Alih et., al., vs. Castro, 151 SCRA 279 (1987)

MAJOR GENERAL DELFIN C. CASTRO, IN HIS CAPACITY AS COMMANDER SOUTHCOM AND REGIONAL UNIFIED COMMAND, REGION IX, ZAMBOANGA

CITY, COLONEL ERNESTO CALUPIG, IN HIS CAPACITY AS COMMANDING OFFICER OF THE SPECIAL FORCES GROUP (AIRBORNE) AND INTERNAL

DEFENSE COMMAND, OTHERWISE KNOWN AS IdC MAJOR ARNOLD BLANCO IN HIS CAPACITY AS COMMANDING OFFICER OF THE PHILIPPINE

MARINES AND 1ST LIEUTENANT DARWIN GUERRA IN HIS CAPACITY AS ACTS SUPERVISOR, INTERNAL DEFENSE COMMAND, ARMED FORCES OF

THE PHILIPPINES, respondents.

CRUZ, J.:On November 25, 1984, a contingent of more than two hundred Philippine marines and elements of the home defense forces raided the

compound occupied by the petitioners at Gov. Alvarez street, Zamboanga City, in search of loose firearms, ammunition and other explosives. 1

Cruz, J.:

On November 25, 1984, a contingent of more than two hundred Philippine marines and elements of the home defense forces raided the compound

occupied by the petitioners at Gov. Alvarez street, Zamboanga City, in search of loose firearms, ammunition and other explosives. 1

The military operation was commonly known and dreaded as a “zona,” which was not unlike the feared practice of the kempeitai during the Japanese

Occupation of rounding up the people in a locality, arresting the persons fingered by a hooded informer, and executing them outright (although the last

part is not included in the modern refinement).

The initial reaction of the people inside the compound was to resist the invasion with a burst of gunfire. No one was hurt as presumably the purpose was

merely to warn the intruders and deter them from entering. Unfortunately, as might be expected in incidents like this, the situation aggravated soon

enough. The soldiers returned fire and a bloody shoot-out ensued, resulting in a number of casualties. 2

The besieged compound surrendered the following morning, and sixteen male occupants were arrested, later to be finger-printed, paraffin-tested and

photographed over their objection. The military also inventoried and confiscated nine M16 rifles, one M14 rifle, nine rifle grenades, and several rounds of

ammunition found in the premises. 3

On December 21, 1984, the petitioners came to this Court in a petition for prohibition and mandamuswith preliminary injunction and restraining order.

Their purpose was to recover the articles seized from them, to prevent these from being used as evidence against them, and to challenge their finger-

printing, photographing and paraffin-testing as violative of their right against self-incrimination. 4

The Court, treating the petition as an injunction suit with a prayer for the return of the articles alleged to have been illegally seized, referred it for hearing

to Judge Omar U. Amin of the regional trial court, Zamboanga City. 5 After receiving the testimonial and documentary evidence of the parties, he

submitted the report and recommendations on which this opinion is based. 6

The petitioners demand the return of the arms and ammunition on the ground that they were taken without a search warrant as required by the Bill of

Rights. This is confirmed by the said report and in fact admitted by the respondents, “but with avoidance. 7

Article IV, Section 3, of the 1973 Constitution, which was in force at the time of the incident in question, provided as follows:

Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature

and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the

judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he

may produce, and particularly describing the place to be searched, and the persons or things to be seized.

It was also declared in Article IV, Section 4(2) that-

Sec. 4(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

The respondents, while admitting the absence of the required such warrant, sought to justify their act on the ground that they were acting under superior

orders. 8 There was also the suggestion that the measure was necessary because of the aggravation of the peace and order problem generated by the

assassination of Mayor Cesar Climaco. 9

Superior orders” cannot, of course, countermand the Constitution. The fact that the petitioners were suspected of the Climaco killing did not excuse the

constitutional short-cuts the respondents took. As eloquently affirmed by the U.S. Supreme Court in Ex parte Milligan: 10

The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and

under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can

be suspended during any of the great exigencies of government.

The precarious state of lawlessness in Zamboanga City at the time in question certainly did not excuse the non-observance of the constitutional guaranty

against unreasonable searches and seizures. There was no state of hostilities in the area to justify, assuming it could, the repressions committed therein

against the petitioners.

It is so easy to say that the petitioners were outlaws and deserved the arbitrary treatment they received to take them into custody; but that is a criminal

argument. It is also fallacious. Its obvious flaw lies in the conclusion that the petitioners were unquestionably guilty on the strength alone of

unsubstantiated reports that they were stockpiling weapons.

The record does not disclose that the petitioners were wanted criminals or fugitives from justice. At the time of the “zona,” they were merely suspected of

the mayor’s slaying and had not in fact even been investigated for it. As mere suspects, they were presumed innocent and not guilty as summarily

pronounced by the military.

Indeed, even if were assumed for the sake of argument that they were guilty, they would not have been any less entitled to the protection of the

Constitution, which covers both the innocent and the guilty. This is not to say, of course, that the Constitution coddles criminals. What it does simply

signify is that, lacking the shield of innocence, the guilty need the armor of the Constitution, to protect them, not from a deserved sentence, but from

arbitrary punishment. Every person is entitled to due process. It is no exaggeration that the basest criminal, ranged against the rest of the people who

would condemn him outright, is still, under the Bill of Rights, a majority of one.

If the respondents did not actually disdain the Constitution when they made their illegal raid, they certainly gave every appearance of doing so. This is

truly regrettable for it was incumbent on them, especially during those tense and tindery times, to encourage rather than undermine respect for the law,

which it was their duty to uphold.

In acting as they did, they also defied the precept that “civilian authority is at all times supreme over the military” so clearly proclaimed in the 1973

Constitution. 11 In the instant case, the respondents simply by-passed the civil courts, which had the authority to determine whether or not there was

probable cause to search the petitioner’s premises. Instead, they proceeded to make the raid without a search warrant on their own unauthorized

determination of the petitioner’s guilt.

The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They knew where the petitioners were. They had every

opportunity to get a search warrant before making the raid. If they were worried that the weapons inside the compound would be spirited away, they

could have surrounded the premises in the meantime, as a preventive measure. There was absolutely no reason at all why they should disregard the

orderly processes required by the Constitution and instead insist on arbitrarily forcing their way into the petitioner’s premises with all the menace of a

military invasion.

Conceding that the search was truly warrantless, might not the search and seizure be nonetheless considered valid because it was incidental to a legal

arrest? Surely not. If all the law enforcement authorities have to do is force their way into any house and then pick up anything they see there on the

ground that the occupants are resisting arrest, then we might as well delete the Bill of Rights as a fussy redundancy.

When the respondents could have easily obtained a search warrant from any of the TEN civil courts then open and functioning in Zamboanga City, 12

they instead simply barged into the beleaguered premises on the verbal order of their superior officers. One cannot just force his way into any man’s

house on the illegal orders of a superior, however lofty his rank. Indeed, even the humblest hovel is protected from official intrusion because of the

ancient rule, revered in all free regimes, that a man’s house is his castle.

It may be frail; its roof may shake; the wind may enter; the rain may enter. But the King of England may not enter. All the forces of the Crown dare not

cross the threshold of the ruined tenement. 13

If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to be committed, being committed, or just

committed, what was that crime? There is no allegation in the record of such a justification. Parenthetically, it may be observed that under the Revised

Rule 113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as stressed in the recent case of People v.

Burgos. 14

If follows that as the search of the petitioners’ premises was violative of the Constitution, all the firearms and ammunition taken from the raided

compound are inadmissible in evidence in any of the proceedings against the petitioners. These articles are “fruits of the poisonous tree. 15 As Judge

Learned Hand observed, “Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will the wrong

be repressed. 16 Pending determination of the legality of such articles, however, they shall remain in custodia legis, subject to such appropriate

disposition as the corresponding courts may decide. 17

The objection to the photographing, fingerprinting and paraffin-testing of the petitioners deserves slight comment. The prohibition against self-

incrimination applies to testimonial compulsion only. As Justice Holmes put it in Holt v. United States, 18 “The prohibition of compelling a man in a

criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an

exclusion of his body as evidence when it may be material.”

The fearful days of hamleting salvaging, “zona” and other dreaded operations should remain in the past, banished with the secret marshals and their

covert license to kill without trial. We must be done with lawlessness in the name of law enforcement. Those who are supposed to uphold the law must

not be the first to violate it. As Chief Justice Claudio Teehankee stressed in his concurring opinion in Lacanilao v. De Leon, 19 “It is time that the martial

law regime’s legacy of the law of force be discarded and that there be a return to the force and rule of law.”

All of us must exert efforts to make our country truly free and democratic, where every individual is entitled to the full protection of the Constitution and

the Bill of Rights can stand as a stolid sentinel for all, the innocent as well as the guilty, including the basest of criminals.

WHEREFORE, the search of the petitioners’ premises on November 25, 1984, is hereby declared ILLEGAL and all the articles seized as a result thereof are

inadmissible in evidence against the petitioners in any proceedings. However, the said articles shall remain in custodia legis pending the outcome of the

criminal cases that have been or may later be filed against the petitioners.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concurt

Manila Prince Hotel vs. GSIS, G.R. 122156, Feb. 3, 1997

ANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents.

D E C I S I O N

BELLOSILLO, J.:

The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and concessions covering the national economy and patrimony, the State shall give preference to qualified Filipinos ,[1] is invoked by petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation (MHC) which owns the historic Manila Hotel. Opposing, respondents maintain that the provision is not self-executing but requires an implementing legislation for its enforcement. Corollarily, they ask whether the 51% shares form part of the national economy and patrimony covered by the protective mantle of the Constitution.

The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the privatization program of the Philippine Government under Proclamation No. 50 dated 8 December 1986, decided to sell through public bidding 30% to 51% of the issued and outstanding shares of respondent MHC. The winning bidder, or the eventual “strategic partner,” is to provide management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel .[2] In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner.

Pertinent provisions of the bidding rules prepared by respondent GSIS state -

I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC -

1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS will instead offer the Block of Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management Contract, International Marketing/Reservation System Contract or other type of contract specified by the Highest Bidder in its strategic plan for the Manila Hotel x x x x

b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS x x x x

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER -

The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions are met:

a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995 (reset to November 3, 1995); and

b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/ OGCC (Office of the Government Corporate Counsel) are obtained.” [3]

Pending the declaration of Renong Berhard as the winning bidder/strategic partner and the execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per share tendered by Renong Berhad. [4] In a subsequent letter dated 10 October 1995 petitioner sent a manager’s check issued by Philtrust Bank for Thirty-three Million Pesos ( P33,000,000.00) as Bid Security to match the bid of the Malaysian Group, Messrs. Renong Berhad x x x x[5] which respondent GSIS refused to accept.

On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the matching bid and that the sale of 51% of the MHC may be hastened by respondent GSIS and consummated with Renong Berhad, petitioner came to this Court on prohibition and mandamus. On 18 October 1995 the Court issued a temporary restraining order enjoining respondents from perfecting and consummating the sale to the Malaysian firm.

On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by the First Division. The case was then set for oral arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici curiae.

In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits that the Manila Hotel has been identified with the Filipino nation and has practically become a historical monument which reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier generation of Filipinos who believed in the nobility and sacredness of independence and its power and capacity to release the full potential of the Filipino people. To all intents and purposes, it has become a part of the national patrimony.[6] Petitioner also argues that since 51% of the shares of the MHC carries with it the ownership of the business of the hotel which is owned by respondent GSIS, a government-owned and controlled corporation, the hotel business of respondent GSIS being a part of the tourism industry is unquestionably a part of the national economy. Thus, any transaction involving 51% of the shares of stock of the MHC is clearly covered by the term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies.[7]

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its business also unquestionably part of the national economy petitioner should be preferred after it has matched the bid offer of the Malaysian firm. For the bidding rules mandate that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share.[8]

Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 Constitution is merely a statement of principle and policy since it is not a self-executing provision and requires implementing legislation(s) x x x x Thus, for the said provision to operate, there must be existing laws “to lay down conditions under which business may be done.”[9]

Second, granting that this provision is self-executing, Manila Hotel does not fall under the term national patrimony which only refers to lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner speaks of the guests who have slept in the hotel and the events that have transpired therein which make the hotel historic, these alone do not make the hotel fall under the patrimony of the nation. What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS which possesses a personality of its own separate and distinct from the Philippines as a State.

Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision invoked is still inapplicable since what is being sold is only 51% of the outstanding shares of the corporation, not the hotel building nor the land upon which the building stands. Certainly, 51% of the equity of the MHC cannot be considered part of thenational patrimony. Moreover, if the disposition of the shares of the MHC is really contrary to the Constitution, petitioner should have questioned it right from the beginning and not after it had lost in the bidding.

Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if for any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share, is misplaced. Respondents postulate that the privilege of submitting a matching bid has not yet arisen since it only takes place if for any reason, the Highest Bidder cannot be awarded the Block of Shares . Thus the submission by petitioner of a matching bid is premature since Renong Berhad could still very well be awarded the block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid had not yet taken place.

Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent GSIS did not exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its discretion it was not so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. Similarly, the petition for mandamus should fail as petitioner has no clear legal right to what it demands and respondents do not have an imperative duty to perform the act required of them by petitioner.

We now resolve. A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. [10] It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other laws must conform and in accordance with which all private rights must be determined and all public authority administered. [11]Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.

Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government providing for the different departments of the governmental machinery and securing certain fundamental and inalienable rights of citizens. [12] A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and construction of its terms, and there is no language indicating that the subject is referred to the legislature for action.[13]

As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments, and the function of constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law.[14] This can be cataclysmic. That is why the prevailing view is, as it has always been, that -

x x x x in case of doubt, the Constitution should be considered self-executing rather than non-self-executing x x x x Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine

when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute.[15]

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-executing, as they quote from discussions on the floor of the 1986 Constitutional Commission -

MR. RODRIGO. Madam President, I am asking this question as the Chairman of the Committee on Style. If the wording of “PREFERENCE” is given to QUALIFIED FILIPINOS,” can it be understood as a preference to qualified Filipinos vis-a-vis Filipinos who are not qualified. So, why do we not make it clear? To qualified Filipinos as against aliens?

THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the word “QUALIFIED?”

MR. RODRIGO. No, no, but say definitely “TO QUALIFIED FILIPINOS” as against whom? As against aliens or over aliens ?

MR. NOLLEDO. Madam President, I think that is understood. We use the word “QUALIFIED” because the existing laws or prospective laws will always lay down conditions under which business may be done. For example, qualifications on capital, qualifications on the setting up of other financial structures, et cetera (underscoring supplied by respondents).

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO. Yes.[16]

Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear that it is non-self-executing but simply for purposes of style. But, certainly, the legislature is not precluded from enacting further laws to enforce the constitutional provision so long as the contemplated statute squares with the Constitution. Minor details may be left to the legislature without impairing the self-executing nature of constitutional provisions.

In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of powers directly granted by the constitution, further the operation of such a provision, prescribe a practice to be used for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination thereof, or place reasonable safeguards around the exercise of the right. The mere fact that legislation may supplement and add to or prescribe a penalty for the violation of a self-executing constitutional provision does not render such a provision ineffective in the absence of such legislation. The omission from a constitution of any express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended to be self-executing. The rule is that a self-executing provision of the constitution does not necessarily exhaust legislative power on the subject, but any legislation must be in harmony with the constitution, further the exercise of constitutional right and make it more available.[17] Subsequent legislation however does not necessarily mean that the subject constitutional provision is not, by itself, fully enforceable.

Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied from the tenor of the first and third paragraphs of the same section which undoubtedly are not self-executing. [18] The argument is flawed. If the first and third paragraphs are not self-executing because Congress is still to enact measures to encourage the formation and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs legislation to regulate and exercise authority over foreign investments within its national jurisdiction, as in the third paragraph, then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by its language require any legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and concessions covering the national economy and patrimony. A constitutional provision may be self-executing in one part and non-self-executing in another. [19]

Even the cases cited by respondents holding that certain constitutional provisions are merely statements of principles and policies, which are basically not self-executing and only placed in the Constitution as moral incentives to legislation, not as judicially enforceable rights - are simply not in point. Basco v. Philippine Amusements and Gaming Corporation[20] speaks of constitutional provisions on personal dignity,[21] the sanctity of family life,[22] the vital role of the youth in nation-building,[23] the promotion of social justice,[24]and the values of education.[25] Tolentino v. Secretary of Finance[26] refers to constitutional provisions on social justice and human rights [27] and on education.[28] Lastly, Kilosbayan, Inc. v. Morato[29] cites provisions on the promotion of general welfare,[30] the sanctity of family life,[31] the vital role of the youth in nation-building[32] and the promotion of total human liberation and development.[33] A reading of these provisions indeed clearly shows that they are not judicially enforceable constitutional rights but merely guidelines for legislation. The very terms of the provisions manifest that they are only principles upon which legislations must be based. Res ipsa loquitur.

On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement. From its very words the provision does not require any legislation to put it in operation. It is per se judicially enforceable. When our Constitution mandates that [i]n the grant of rights, privileges, and concessions covering national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that - qualified Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified circumstances an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject; consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself by its own inherent potency and puissance, and from which all legislations must take their bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.

As regards our national patrimony, a member of the 1986 Constitutional Commission[34] explains -

The patrimony of the Nation that should be conserved and developed refers not only to our rich natural resources but also to the cultural heritage of our race. It also refers to our intelligence in arts, sciences and letters. Therefore, we should develop not only our lands, forests, mines and other natural resources but also the mental ability or faculty of our people.

We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage.[35] When the Constitution speaks of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well used the term natural resources, but also to the cultural heritage of the Filipinos.

Manila Hotel has become a landmark - a living testimonial of Philippine heritage. While it was restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly Filipino. Formerly a concourse for the elite, it has since then become the venue of various significant events

which have shaped Philippine history. It was called the Cultural Center of the 1930’s. It was the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official Guest House of the Philippine Government it plays host to dignitaries and official visitors who are accorded the traditional Philippine hospitality.[36]

The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of a City.[37] During World War II the hotel was converted by the Japanese Military Administration into a military headquarters. When the American forces returned to recapture Manila the hotel was selected by the Japanese together with Intramuros as the two (2) places for their final stand. Thereafter, in the 1950’s and 1960’s, the hotel became the center of political activities, playing host to almost every political convention. In 1970 the hotel reopened after a renovation and reaped numerous international recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a failed coup d’ etat where an aspirant for vice-president was “proclaimed” President of the Philippine Republic.

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the MHC comes within the purview of the constitutional shelter for it comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will have actual control and management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents’ claim that the Filipino First Policy provision is not applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel building nor the land upon which the building stands.[38]

The argument is pure sophistry. The term qualified Filipinos as used in our Constitution also includes corporations at least 60% of which is owned by Filipinos. This is very clear from the proceedings of the 1986 Constitutional Commission -

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the amendment would consist in substituting the words “QUALIFIED FILIPINOS” with the following: “CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH CITIZENS.”

x x x x

MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to raise a question. Suppose it is a corporation that is 80-percent Filipino, do we not give it preference?

MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a corporation wholly owned by Filipino citizens?

MR. MONSOD. At least 60 percent, Madam President.

MR. DAVIDE. Is that the intention?

MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference should only be 100-percent Filipino.

MR. DAVIDE. I want to get that meaning clear because “QUALIFIED FILIPINOS” may refer only to individuals and not to juridical personalities or entities.

MR. MONSOD. We agree, Madam President.[39]

x x x x

MR. RODRIGO. Before we vote, may I request that the amendment be read again.

MR. NOLLEDO. The amendment will read: “IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS.” And the word “Filipinos” here, as intended by the proponents, will include not only individual Filipinos but also Filipino-controlled entities or entities fully-controlled by Filipinos.[40]

The phrase preference to qualified Filipinos was explained thus -

MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please restate his amendment so that I can ask a question.

MR. NOLLEDO. “IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS.”

MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified and a Filipino enterprise is also qualified, will the Filipino enterprise still be given a preference?

MR. NOLLEDO. Obviously.

MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise, will the Filipino still be preferred?

MR. NOLLEDO. The answer is “yes.”

MR. FOZ. Thank you.[41]

Expounding further on the Filipino First Policy provision Commissioner Nolledo continues –

MR. NOLLEDO. Yes, Madam President. Instead of “MUST,” it will be “SHALL - THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS.” This embodies the so-called “Filipino First” policy. That means that Filipinos should be given preference in the grant of concessions, privileges and rights covering the national patrimony.[42]

The exchange of views in the sessions of the Constitutional Commission regarding the subject provision was still further clarified by Commissioner Nolledo[43] -

Paragraph 2 of Section 10 explicitly mandates the “Pro-Filipino” bias in all economic concerns. It is better known as the FILIPINO FIRST Policy x x x x This provision was never found in previous Constitutions x x x x

The term “qualified Filipinos” simply means that preference shall be given to those citizens who can make a viable contribution to the common good, because of credible competence and efficiency. It certainly does NOT mandate the pampering and preferential treatment to Filipino citizens or organizations that are incompetent or inefficient, since such an indiscriminate preference would be counterproductive and inimical to the common good.

In the granting of economic rights, privileges, and concessions, when a choice has to be made between a “qualified foreigner” and a “qualified Filipino,” the latter shall be chosen over the former.”

Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS and selected as one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance with its own guidelines so that the sole inference here is that petitioner has been found to be possessed of proven management expertise in the hotel industry, or it has significant equity ownership in another hotel company, or it has an overall management and marketing proficiency to successfully operate the Manila Hotel.[44]

The penchant to try to whittle away the mandate of the Constitution by arguing that the subject provision is not self-executory and requires implementing legislation is quite disturbing. The attempt to violate a clear constitutional provision - by the government itself - is only too distressing. To adopt such a line of reasoning is to renounce the duty to ensure faithfulness to the Constitution. For, even some of the provisions of the Constitution which evidently need implementing legislation have juridical life of their own and can be the source of a judicial remedy. We cannot simply afford the government a defense that arises out of the failure to enact further enabling, implementing or guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt -

The executive department has a constitutional duty to implement laws, including the Constitution, even before Congress acts - provided that there are discoverable legal standards for executive action. When the executive acts, it must be guided by its own understanding of the constitutional command and of applicable laws. The responsibility for reading and understanding the Constitution and the laws is not the sole prerogative of Congress. If it were, the executive would have to ask Congress, or perhaps the Court, for an interpretation every time the executive is confronted by a constitutional command. That is not how constitutional government operates.[45]

Respondents further argue that the constitutional provision is addressed to the State, not to respondent GSIS which by itself possesses a separate and distinct personality. This argument again is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with the prior approval of the State acting through respondent Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents GSIS and MHC a “state action.” In constitutional jurisprudence, the acts of persons distinct from the government are considered “state action” covered by the Constitution (1) when the activity it engages in is a “public function;” (2) when the government is so significantly involved with the private actor as to make the government responsible for his action; and, (3) when the government has approved or authorized the action. It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third categories of “state action.” Without doubt therefore the transaction, although entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to the constitutional command.[46]

When the Constitution addresses the State it refers not only to the people but also to the government as elements of the State. After all, government is composed of three (3) divisions of power - legislative, executive and judicial. Accordingly, a constitutional mandate directed to the State is correspondingly directed to the three (3) branches of government. It is undeniable that in this case the subject constitutional injunction is addressed among others to the Executive Department and respondent GSIS, a government instrumentality deriving its authority from the State.

It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder. The bidding rules expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and executed the necessary contracts, and secured the requisite approvals. Since the Filipino First Policy provision of the Constitution bestows preference on qualified Filipinos the mere tending of the highest bid is not an assurance that the highest bidder will be declared the winning bidder. Resultantly, respondents are not bound to make the award yet, nor are they under obligation to enter into one with the highest bidder. For in choosing the awardee respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to be known to all the bidders and other interested parties.

Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should be, impliedly written in the bidding rules issued by respondent GSIS, lest the bidding rules be nullified for being violative of the Constitution. It is a basic principle in constitutional law that all laws and contracts must conform with the fundamental law of the land. Those which violate the Constitution lose their reason for being.

Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of price per share.[47] Certainly, the constitutional mandate itself is reason enough not to award the block of shares immediately to the foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In fact, we cannot conceive of a stronger reason than the constitutional injunction itself.

In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of rights, privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat is omnipresent to be simply disregarded. To ignore it would be to sanction a perilous skirting of the basic law.

This Court does not discount the apprehension that this policy may discourage foreign investors. But the Constitution and laws of the Philippines are understood to be always open to public scrutiny. These are given factors which investors must consider when venturing into business in a foreign jurisdiction. Any person therefore desiring to do business in the Philippines or with any of its agencies or instrumentalities is presumed to know his rights and obligations under the Constitution and the laws of the forum.

The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad since petitioner was well aware from the beginning that a foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign entity. In

the case before us, while petitioner was already preferred at the inception of the bidding because of the constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the foreign firm and the apparent disregard by respondent GSIS of petitioner’s matching bid did the latter have a cause of action.

Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award has been finally made. To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the bid of the foreign group is to insist that government be treated as any other ordinary market player, and bound by its mistakes or gross errors of judgment, regardless of the consequences to the Filipino people. The miscomprehension of the Constitution is regrettable. Thus we would rather remedy the indiscretion while there is still an opportunity to do so than let the government develop the habit of forgetting that the Constitution lays down the basic conditions and parameters for its actions.

Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding rules, respondent GSIS is left with no alternative but to award to petitioner the block of shares of MHC and to execute the necessary agreements and documents to effect the sale in accordance not only with the bidding guidelines and procedures but with the Constitution as well. The refusal of respondent GSIS to execute the corresponding documents with petitioner as provided in the bidding rules after the latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of discretion.

The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this Court to impede and diminish, much less undermine, the influx of foreign investments. Far from it, the Court encourages and welcomes more business opportunities but avowedly sanctions the preference for Filipinos whenever such preference is ordained by the Constitution. The position of the Court on this matter could have not been more appropriately articulated by Chief Justice Narvasa -

As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that of the legislature or the executive about the wisdom and feasibility of legislation economic in nature, the Supreme Court has not been spared criticism for decisions perceived as obstacles to economic progress and development x x x x in connection with a temporary injunction issued by the Court’s First Division against the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements were published in a major daily to the effect that that injunction “again demonstrates that the Philippine legal system can be a major obstacle to doing business here.”

Let it be stated for the record once again that while it is no business of the Court to intervene in contracts of the kind referred to or set itself up as the judge of whether they are viable or attainable, it is its bounden duty to make sure that they do not violate the Constitution or the laws, or are not adopted or implemented with grave abuse of discretion amounting to lack or excess of jurisdiction. It will never shirk that duty, no matter how buffeted by winds of unfair and ill-informed criticism.[48]

Privatization of a business asset for purposes of enhancing its business viability and preventing further losses, regardless of the character of the asset, should not take precedence over non-material values. A commercial, nay even a budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution enshrines higher and nobler non-material values. Indeed, the Court will always defer to the Constitution in the proper governance of a free society; after all, there is nothing sosacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved.[49]

Nationalism is inherent in the very concept of the Philippines being a democratic and republican state, with sovereignty residing in the Filipino people and from whom all government authority emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-state can have no higher purpose. Any interpretation of any constitutional provision must adhere to such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot override the demands of nationalism.[50]

The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the highest bidder solely for the sake of privatization. We are not talking about an ordinary piece of property in a commercial district. We are talking about a historic relic that has hosted many of the most important events in the short history of the Philippines as a nation. We are talking about a hotel where heads of states would prefer to be housed as a strong manifestation of their desire to cloak the dignity of the highest state function to their official visits to the Philippines. Thus the Manila Hotel has played and continues to play a significant role as an authentic repository of twentieth century Philippine history and culture. In this sense, it has become truly a reflection of the Filipino soul - a place with a history of grandeur; a most historical setting that has played a part in the shaping of a country.[51]

This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the historical landmark - this Grand Old Dame of hotels in Asia - to a total stranger. For, indeed, the conveyance of this epic exponent of the Filipino psyche to alien hands cannot be less than mephistophelian for it is, in whatever manner viewed, a veritable alienation of a nation’s soul for some pieces of foreign silver. And so we ask: What advantage, which cannot be equally drawn from a qualified Filipino, can be gained by the Filipinos if Manila Hotel - and all that it stands for - is sold to a non-Filipino? How much of national pride will vanish if the nation’s cultural heritage is entrusted to a foreign entity? On the other hand, how much dignity will be preserved and realized if the national patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is the plain and simple meaning of the Filipino First Policy provision of the Philippine Constitution. And this Court, heeding the clarion call of the Constitution and accepting the duty of being the elderly watchman of the nation, will continue to respect and protect the sanctity of the Constitution.

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to CEASE and DESIST from selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the Manila Hotel Corporation at P44.00 per share and thereafter to execute the necessary agreements and documents to effect the sale, to issue the necessary clearances and to do such other acts and deeds as may be necessary for the purpose.

SO ORDERED.

Regalado, Davide, Jr., Romero, Kapunan, Francisco, and Hermosisima, Jr., JJ, concur.Narvasa, C.J., (Chairman), and Melo, J., joins J. Puno in his dissent.Padilla, J., see concurring opinion.Vitug, J., see separate concurring opinion

Mendoza, J., see concurring opinionTorres, J., with separate opinionPuno, J., see dissent.Panganiban J., with separate dissenting opinion.

[1] See Sec. 10, par. 2, Art. XII, 1987 Constitution.

[2] Par. I. Introduction and Highlights, Guidelines and Procedures: Second Prequalifications and Public Bidding of the MHC Privatization; Annex “A”, Consolidated Reply to Comments of Respondents; Rollo, p.142.

[3] Par. V. Guidelines for the Public Bidding, Id., pp. 153-154.

[4] Annex “A”, Petition for Prohibition and Mandamus with Temporary Restraining Order; Rollo, pp.13-14.

[5] Annex “B,” Petition for Prohibition and Mandamus with Temporary Restraining Order; Id., p.15.

[6] Petition for Prohibition and Mandamus with Temporary Restraining Order, pp. 5-6; Id., pp.6-7.

[7] Consolidated Reply to Comments of Respondents, p. 17; Id., p.133.

[8] Par. V. J. 1,Guidelines for Public Bidding, Guidelines and Procedures: Second Prequalifications and Public Bidding of the MHC Privatization, Annex “A,” Consolidated Reply to Comments of Respondents; Id., p. 154.

[9] Respondents’ Joint Comment with Urgent Motion to Lift Temporary Restraining Order, p.9; Rollo, p. 44.

[10] Marbury v. Madison, 5 U.S. 138 (1803).

[11] 11 Am Jur. 606.

[12] 16 Am Jur. 2d 281.

[13] Id., p. 282.

[14] See Note 12.

[15] Cruz, Isagani A., Constitutional Law, 1993 ed., pp. 8-10.

[16] Record of the Constitutional Commission, Vol. 3, 22 August 1986, p. 608.

[17] 16 Am Jur 2d 283-284.

[18] Sec. 10, first par., reads: The Congress shall, upon recommendation of the economic and planning agency, when the national interest dictates, reserve to citizens of the Philippines or to corporations or associations at least sixty per centum of whose capital is owned by such citizens, or such higher percentage as Congress may prescribe, certain areas of investments. The Congress shall enact measures that will encourage the formation and operation of enterprises whose capital is wholly owned by Filipinos.

Sec. 10, third par., reads: The State shall regulate and exercise authority over foreign investments within its national jurisdiction and in accordance with its national goals and priorities.

[19] State ex rel. Miller v. O’Malley, 342 Mo 641, 117 SW2d 319.

[20] G.R. No. 91649, 14 May 1991, 197 SCRA 52.

[21] Sec. 11, Art. II (Declaration of Principles and State Policies), provides that [t]he State values the dignity of every human person and guarantees full respect for human rights.

[22] Sec. 12, Art. II, provides that [t]he State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the government.

[23] Sec. 13, Art. II, provides that [t]he State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcate in the youth patriotism and nationalism, and encourage their involvement in public and civic affairs.

[24] Sec. 1, Art. XIII (Social Justice and Human Rights), provides that [t]he Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments.

Sec. 2, Art. XIII, provides that [t]he promotion of social justice shall include the commitment to create economic opportunities based on freedom of initiative and self-reliance.

[25] Sec. 2, Art. XIV (Education, Science and Technology, Arts, Culture, and Sports), provides that [t]he State shall:

(1) Establish, maintain, and support a complete, adequate, and integrated system of education relevant to the needs of the people and society;

(2) Establish and maintain a system of free public education in the elementary and high school levels. Without limiting the natural right of parents to rear their children, elementary education is compulsory for all children of school age;(3) Establish and maintain a system of scholarship grants, student loan programs, subsidies, and other incentives which shall be available to deserving students in both public and private schools, especially to the underprivileged;(4) Encourage non-formal, informal, and indigenous learning, independent, and out-of-school study programs particularly those that respond to community needs; and

(5) Provide adult citizens, the disabled, and out-of-school youth with training in civics, vocational efficiency, and other skills.

[26] G.R. No. 115455, 25 August 1994, 235 SCRA 630.

[27] See Note 25.

[28] Sec. 1, Art. XIV, provides that [t]he State shall protect and promote the right of all citizens to quality education at all levels of education and shall take appropriate steps to make such education accessible to all.

[29] G.R. No. 118910, 17 July 1995.

[30] Sec. 5, Art. II (Declaration of Principles and State Policies), provides that [t]he maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.

[31] See Note 23.

[32] See Note 24.

[33] Sec. 17, Art. II, provides that [t]he State shall give priority to education, science and technology, arts, culture, and sports to foster patriotism and nationalism, accelerate social progress, and promote total human liberation and development.

[34] Nolledo, Jose N., The New Constitution of the Philippines Annotated, 1990 ed., p. 72.

[35] Webster’s Third New International Dictionary, 1986 ed., p. 1656.

[36] The guest list of the Manila Hotel includes Gen. Douglas MacArthur, the Duke of Windsor, President Richard Nixon of U.S.A., Emperor Akihito of Japan, President Dwight Eisenhower of U.S.A, President Nguyen Van Thieu of Vietnam, President Park Chung Hee of Korea, Prime Minister Richard Holt of Australia, Prime Minister Keith Holyoake of New Zealand, President Lyndon Johnson of U.S.A., President Jose Lopez Portillo of Mexico, Princess Margaret of England, Prime Minister Malcolm Fraser of Australia, Prime Minister Yasuhiro Nakasone of Japan, Prime Minister Pierre Elliot Trudeau of Canada, President Raul Alfonsin of Argentina, President Felipe Gonzalez of Spain, Prime Minister Noboru Takeshita of Japan, Prime Minister Hussain Muhammad Ershad of Bangladesh, Prime Minister Bob Hawke of Australia, Prime Minister Yasuhiro Nakasone of Japan, Premier Li Peng of China, Sultan Hassanal Bolkiah of Brunei, President Ramaswami Venkataraman of India, Prime Minister Go Chok Tong of Singapore, Prime Minister Enrique Silva Cimma of Chile, Princess Chulaborn and Mahacharri Sirindhorn of Thailand, Prime Minister Tomiichi Murayama of Japan, Sultan Azlan Shah and Raja Permaisuri Agong of Malaysia, President Kim Young Sam of Korea, Princess Infanta Elena of Spain, President William Clinton of U.S.A., Prime Minister Mahathir Mohamad of Malaysia, King Juan Carlos I and Queen Sofia of Spain, President Carlos Saul Menem of Argentina, Prime Ministers Chatichai Choonhavan and Prem Tinsulanonda of Thailand, Prime Minister Benazir Bhutto of Pakistan, President Vaclav Havel of Czech Republic, Gen. Norman Schwarzkopf of U.S.A., President Ernesto Perez Balladares of Panama, Prime Minister Adolfas Slezevicius of Lithuania, President Akbar Hashemi Rafsanjani of Iran, President Askar Akayev of Kyrgyztan, President Ong Teng Cheong of Singapore, President Frei Ruiz Tagle of Chile, President Le Duc Anh of Vietnam, and Prime Minister Julius Chan of Papua New Guinea, see Memorandum for Petitioner, pp. 16-19.

Gonzales vs. Comelec, 21 SCRA 774 (1968)

Facts: The case is an original action for prohibition, with preliminary injunction.

The main facts are not disputed. On March 16, 1967, the Senate and the House of Representatives passed the following resolutions:

1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of the Constitution of the Philippines, be amended so as to increase

the membership of the House of Representatives from a maximum of 120, as provided in the present Constitution, to a maximum of 180, to be

apportioned among the several provinces as nearly as may be according to the number of their respective inhabitants, although each province shall

have, at least, one (1) member;

2. R. B. H. No. 2, calling a convention to propose amendments to saidConstitution, the convention to be composed of two (2) elective delegates from each

representative district, to be "elected in thegeneral elections to be held on the second Tuesday of November, 1971;" and

3. R. B. H. No. 3, proposing that Section 16, Article VI, of the sameConstitution, be amended so as to authorize Senators and members of the House of

Representatives to become delegates to the aforementioned constitutional convention, without forfeiting their respective seats in Congress.

Subsequently, Congress passed a bill, which, upon approval by the President, on June 17, 1967, became Republic Act No. 4913, providing that the

amendments to the Constitution proposed in the aforementioned Resolutions No. 1 and 3 be submitted, for approval by the people, at the general

elections which shall be held on November 14, 1967.

Issue: Whether or Not a Resolution of Congress, acting as a constituent assembly, violates the Constitution.

Held: Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and R. B. H. Nos. 1 and 3 unconstitutional and invalid, the

petitions in these two (2) cases must be, as they are hereby, dismiss and the writs therein prayed for denied, without special pronouncement as to costs.

It is so ordered.

As a consequence, the title of a de facto officer cannot be assailed collaterally. It may not be contested except directly, by quo warranto proceedings.

Neither may the validity of his acts be questioned uponthe ground that he is merely a de facto officer. And the reasons are obvious: (1) it would be an

indirect inquiry into the title to the office; and (2) the acts of a de facto officer, if within the competence of his office, are valid, insofar as the public is

concerned.

"The judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several

departments and among the integral or constituent units thereof."

Article XV of the Constitution provides:

. . . The Congress in joint session assembled, by a vote of three-fourths of all the Members of the Senate and of the House of Representatives voting

separately, may propose amendments to thisConstitution or call a contention for that purpose. Such amendments shall be valid as part of

this Constitution when approved by a majority of the votes cast at an election at which the amendments are submitted to the people for their ratification.

From our viewpoint, the provisions of Article XV of the Constitution are satisfied so long as the electorate knows that R. B. H. No. 3 permits Congressmen

to retain their seats as legislators, even if they should run for and assume the functions of delegates to the Convention.

DEFENSOR-SANTIAGO vs. COMELEC(G.R. No. 127325 - March 19, 1997)Facts:P r i v a t e r e s p o n d e n t A t t y . J e s u s D e l f i n , p r e s i d e n t o f P e o p l e ’ s I n i t i a t i v e f o r R e f o r m s , Modernization and Action (PIRMA), filed with COMELEC a petition to amend the constitution to liftthe term limits of elective officials, through People’s Initiative. He

based this petition on Article XVII,Sec. 2 of the 1987 Constitution, which provides for the r ight of the people to exercise the power todirectly propose amendments to the Constitution. Subsequently the COMELEC issued an order directing the publication of

the petit ion and of the notice of hearing and thereafter set the case for hearing. At the hearing, Senator Roco, the IBP, Demokrasya-Ipagtanggol ang Konstitusyon, PublicInterest Law Center, and Laban ng Demokratikong Pil ipino appeared as intervenors-

oppositors.Senator Roco filed a motion to dismiss the Delfin petition on the ground that one which is cognizableby the COMELEC. The petit ioners herein Senator Santiago, Alexander Padil la, and Isabel Ongpinfi led this civi l action for prohibit ion under Rule 65 of the Rules of Court against COMELEC and theDelfin petition rising the several arguments, such as the following: (1) The constitutional

provision onp e o p l e ’ s i n i t i a t i v e t o a m e n d t h e c o n s t i t u t i o n c a n o n l y b e i m p l e m e n t e d b y l a w t o b e p a s s e d b y Congress. No such law has been passed; (2) The people’s initiative is limited to amendments to theConstitution, not to revision thereof.

Lift ing of the term l imits constitutes a revision, therefore i t is outside the power of people’s initiative. The Supreme Court granted the Motions for Intervention.

Issues:(1) Whether or not Sec. 2, Art. XVII of the 1987 Constitution is a self-executing provision.(2) Whether or not COMELEC Resolution No. 2300

regarding the conduct of init iat ive on amendments to the Constitution is valid, considering the absence in the law of specific provisions onthe conduct of such initiative.(3) Whether the l i f t ing of term l imits of elective off icials would constitute a revision or an amendment of the

Constitution.Held:

S e c . 2 , A r t X V I I o f t h e C o n s t i t u t i o n i s n o t s e l f e x e c u t o r y , t h u s , w i t h o u t i m p l e m e n t i n g legislation the same cannot operate. Although the Constitution has recognized or granted the right,the people cannot exercise it if Congress does not provide for its

implementation.The portion of COMELEC Resolution No. 2300 which prescribes rules and regulations on theconduct of initiative on amendments to the Constitution, is void. It has been an established rule

thatw h a t h a s b e e n d e l e g a t e d , c a n n o t b e d e l e g a t e d ( p o t e s t a s d e l e g a t a n o n d e l e g a r i p o t e s t ) . T h e delegation of the power to the COMELEC being invalid, the latter cannot validly promulgate rules and regulations to implement the exercise of the right to people’s initiative.T h e l i f t i n g o f t h e t e r m l i m i t s w a s h e l d t o b e t h a t o f a r e v i s i o n , a s i t w o u l d a f f e c t o t h e r provisions of the Constitution such as the synchronization of elections, the constitutional guaranteeof equal access to opportunit ies for public service, and prohibit ing polit ical dynasties. A revision cannot be done by initiative. However, considering the Court’s decision in the above Issue, the

issueof whether or not the petition is a revision or amendment has become academic

D E C I S I O N

DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules of Court is the right of the people to directly propose amendments to the Constitution through the system of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special attention, as this system of initiative was unknown to the people of this country, except perhaps to a few scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself, through the original proponent [1] and the main sponsor[2] of the proposed Article on Amendments or Revision of the Constitution, characterized this system as “innovative”. [3] Indeed it is, for both under the 1935 and 1973 Constitutions, only two methods of proposing amendments to, or revision of, the Constitution were recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by a constitutional convention. [4] For this and the other reasons hereafter discussed, we resolved to give due course to this petition.

On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission on Elections (hereafter, COMELEC) a “Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by People’s Initiative” (hereafter, Delfin Petition) [5] wherein Delfin asked the COMELEC for an order

1. Fixing the time and dates for signature gathering all over the country;

2. Causing the necessary publications of said Order and the attached “Petition for Initiative on the 1987 Constitution, in newspapers of general and local circulation;

3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners and volunteers, in establishing signing stations at the time and on the dates designated for the purpose.

Delfin alleged in his petition that he is a founding member of the Movement for People’s Initiative, [6] a group of citizens desirous to avail of the system intended to institutionalize people power; that he and the members of the Movement and other volunteers intend to exercise the power to directly propose amendments to the Constitution granted under Section 2, Article XVII of the Constitution; that the exercise of that power shall be conducted in proceedings under the control and supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300, signature stations shall be established all over the country, with the assistance of municipal election registrars, who shall verify the signatures affixed by individual signatories; that before the Movement and other volunteers can gather signatures, it is necessary that the time and dates to be designated for the purpose be first fixed in an order to be issued by the COMELEC; and that to adequately inform the people of the electoral process involved, it is likewise necessary that the said order, as well as the Petition on which the signatures shall be affixed, be published in newspapers of general and local circulation, under the control and supervision of the COMELEC.

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of Article VI, [7] Section 4 of Article VII,[8] and Section 8 of Article X[9] of the Constitution. Attached to the petition is a copy of a “Petition for Initiative on the 1987 Constitution” [10] embodying the proposed amendments which consist in the deletion from the aforecited sections of the provisions concerning term limits, and with the following proposition:

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?

According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is signed by at least twelve per cent of the total number of registered voters in the country it will be formally filed with the COMELEC.

Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037 (INITIATIVE), the COMELEC, through its Chairman, issued an Order[11] (a) directing Delfin “to cause the publication of the petition, together with the attached Petition for Initiative on the 1987 Constitution (including the proposal, proposed constitutional amendment, and the signature form), and the notice of hearing in three (3) daily newspapers of general circulation at his own expense” not later than 9 December 1996; and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m.

At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty. Pete Q. Quadra; representatives of the People’s Initiative for Reforms, Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers; and representatives of, or counsel for, the Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino (LABAN).[12] Senator Roco, on that same day, filed a Motion to Dismiss the Delfin Petition on the ground that it is not the initiatory petition properly cognizable by the COMELEC.

After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their “memoranda and/or oppositions/memoranda” within five days.[13]

On 18 December 1996, the petitioners herein -- Senator Miriam Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin -- filed this special civil action for prohibition raising the following arguments:

(1) The constitutional provision on people’s initiative to amend the Constitution can only be implemented by law to be passed by Congress. No such law has been passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating Constitutional Amendments by People’s Initiative, which petitioner Senator Santiago filed on 24 November 1995, is still pending before the Senate Committee on Constitutional Amendments.

(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on the Constitution, on statutes, and on local legislation. However, it failed to provide any subtitle on initiative on the Constitution, unlike in the other modes of initiative, which are specifically provided for in Subtitle II and Subtitle III. This deliberate omission indicates that the matter of people’s initiative to amend the Constitution was left to some future law. Former Senator Arturo Tolentino stressed this deficiency in the law in his privilege speech delivered before the Senate in 1994: “There is not a single word in that law which can be considered as implementing [the provision on constitutional initiative]. Such implementing provisions have been obviously left to a separate law.”

(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print media. This indicates that the Act covers only laws and not constitutional amendments because the latter take effect only upon ratification and not after publication.

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern “the conduct of initiative on the Constitution and initiative and referendum on national and local laws, is ultra vires insofar asinitiative on amendments to the Constitution is concerned, since the COMELEC has no power to provide rules and regulations for the exercise of the right of initiative to amend the Constitution. Only Congress is authorized by the Constitution to pass the implementing law.

(5)The people’s initiative is limited to amendments to the Constitution, not to revision thereof. Extending or lifting of term limits constitutes a revision and is, therefore, outside the power of the people’s initiative.

(6) Finally, Congress has not yet appropriated funds for people’s initiative; neither the COMELEC nor any other government department, agency, or office has realigned funds for the purpose.

To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the event the COMELEC grants the Delfin Petition, the people’s initiative spearheaded by PIRMA would entail expenses to the national treasury for general re-registration of voters amounting to at least P180 million, not to mention the millions of additional pesos in expenses which would be incurred in the conduct of the initiative itself. Hence, the transcendental importance to the public and the nation of the issues raised demands that this petition for prohibition be settled promptly and definitely, brushing aside technicalities of procedure and calling for the admission of a taxpayer’s and legislator’s suit. [14] Besides, there is no other plain, speedy, and adequate remedy in the ordinary course of law.

On 19 December 1996, this Court (a) required the respondents to comment on the petition within a non-extendible period of ten days from notice; and (b) issued a temporary restraining order, effective immediately and continuing until further orders, enjoining public respondent COMELEC from proceeding with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from conducting a signature drive for people’s initiative to amend the Constitution.

On 2 January 1997, private respondents, through Atty Quadra, filed their Comment[15] on the petition. They argue therein that:

1. IT IS NOT TRUE THAT “IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)” IF THE “COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC.”

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571, 200.00;

3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND “TO SUPERVISE CLOSELY” PURSUANT TO ITS “INITIATORY JURISDICTION” UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416;

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO’S SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: “THE COMMISSION ON ELECTIONS CAN DO NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS.”

6. EVEN SENATOR DEFENSOR-SANTIAGO’S SENATE BILL NO. 1290 CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER TO “PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT.” (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A “REVISION” OF THE CONSTITUTION. IT IS ONLY AN AMENDMENT. “AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED.” (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).

Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment [16] which starts off with an assertion that the instant petition is a “knee-jerk reaction to a draft ‘Petition for Initiative on the 1987 Constitution’ ... which is not formally filed yet.” What he filed on 6 December 1996 was an “Initiatory Pleading” or “Initiatory Petition,” which was legally necessary to start the signature campaign to amend the Constitution or to put the movement to gather signatures under COMELEC power and function. On the substantive allegations of the petitioners, Delfin maintains as follows:

(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the conduct of initiative to amend the Constitution. The absence therein of a subtitle for such initiative is not fatal, since subtitles are not requirements for the validity or sufficiency of laws.

(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to amend the Constitution approved by the majority of the votes cast in the plebiscite shall become effective as of the day of the plebiscite.

(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a) Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which empowers the COMELEC to promulgate such rules and regulations as may be necessary to carry out the purposes of the Act.

(4) The proposed initiative does not involve a revision of, but mere amendment to, the Constitution because it seeks to alter only a few specific provisions of the Constitution, or more specifically, only those which lay term limits. It does not seek to reexamine or overhaul the entire document.

As to the public expenditures for registration of voters, Delfin considers petitioners’ estimate of P180 million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite it will be simultaneous with the 1997 Barangay Elections. In any event, fund requirements for initiative will be a priority government expense because it will be for the exercise of the sovereign power of the people.

In the Comment[17] for the public respondent COMELEC, filed also on 2 January 1997, the Office of the Solicitor General contends that:

(1) R.A. No. 6735 deals with, inter alia, people’s initiative to amend the Constitution. Its Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees that power; and its Section 3, which enumerates the three systems of initiative, includes initiative on the Constitution and defines the same as the power to propose amendments to the Constitution. Likewise, its Section 5 repeatedly mentionsinitiative on the Constitution.

(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735 because, being national in scope, that system of initiative is deemed included in the subtitle on National Initiative and Referendum; and Senator Tolentino simply overlooked pertinent provisions of the law when he claimed that nothing therein was provided for initiative on the Constitution.

(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does not deal with initiative on the Constitution.

(4) Extension of term limits of elected officials constitutes a mere amendment to the Constitution, not a revision thereof.

(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735 and under the Omnibus Election Code. The rule-making power of the COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan Authority vs. COMELEC .

On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted the aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private respondents through Atty. Quadra, as well as the latter’s Manifestation stating that he is the counsel for private respondents Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed him to file his Petition in Intervention not later than 20 January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.m.

On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the motion was their Petition in Intervention, which was later replaced by an Amended Petition in Intervention wherein they contend that:

(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the Constitution because, in the words of Fr. Joaquin Bernas, S.J.,[18] it would involve a change from a political philosophy that rejects unlimited tenure to one that accepts unlimited tenure; and although the change might appear to be an isolated one, it can affect other provisions, such as, on synchronization of elections and on the State policy of guaranteeing equal access to opportunities for public service and prohibiting political dynasties.[19] A revision cannot be done by initiative which, by express provision of Section 2 of Article XVII of the Constitution, is limited to amendments.

(2) The prohibition against reelection of the President and the limits provided for all other national and local elective officials are based on the philosophy of governance, “to open up the political arena to as many as there are Filipinos qualified to handle the demands of leadership, to break the concentration of political and economic powers in the hands of a few, and to promote effective proper empowerment for participation in policy and decision-making for the common good”; hence, to remove the term limits is to negate and nullify the noble vision of the 1987 Constitution.

(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a conflict-of-interest situation. Initiative is intended as a fallback position that may be availed of by the people only if they are dissatisfied with the performance of their elective officials, but not as a premium for good performance.[20]

(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that implements the people’s initiative on amendments to the Constitution. It fails to state (a) the proper parties who may file the petition, (b) the appropriate agency before whom the petition is to be filed, (c) the contents of the petition, (d) the publication of the same, (e) the ways and means of gathering the signatures of the voters nationwide and 3% per legislative district, (f) the proper parties who may oppose or question the veracity of the signatures, (g) the role of the COMELEC in the verification of the signatures and the sufficiency of the petition, (h) the appeal from any decision of the COMELEC, (I) the holding of a plebiscite, and (g) the appropriation of funds for such people’s initiative. Accordingly, there being no enabling law, the COMELEC has no jurisdiction to hear Delfin’s petition.

(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC Resolution No. 2300, since the COMELEC is without authority to legislate the procedure for a people’s initiative under Section 2 of Article XVII of the Constitution. That function exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not constitute a legal basis for the Resolution, as the former does not set a sufficient standard for a valid delegation of power.

On 20 January 1997, Senator Raul Roco filed his Petition in Intervention. [21] He avers that R.A. No. 6735 is the enabling law that implements the people’s right to initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He likewise submits that the COMELEC was empowered under Section 20 of that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he contends that the respondent Commission is without jurisdiction to take cognizance of the Delfin Petition and to order its publication because the said petition is not the initiatory pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the Constitution is the filing of a petition for initiative which is signed by the required number of registered voters. He also submits that the proponents of a constitutional amendment cannot avail of the authority and resources of the COMELEC to assist them is securing the required number of signatures, as the COMELEC’s role in an initiative on the Constitution is limited to the determination of the sufficiency of the initiative petition and the call and supervision of a plebiscite, if warranted.

On 20 January 1997, LABAN filed a Motion for Leave to Intervene.

The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention raising the following arguments:

(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of the 1987 Constitution.

(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on the initiative to amend the Constitution.

(3) The Petition for Initiative suffers from a fatal defect in that it does not have the required number of signatures.

(4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by Congress or a constitutional convention. [22]

On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco and of the IBP; (c) requiring the respondents to file within a nonextendible period of five days their Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring LABAN to file its Petition in Intervention within a nonextendible period of three days from notice, and the respondents to comment thereon within a nonextendible period of five days from receipt of the said Petition in Intervention.

At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which the Court formulated in light of the allegations and arguments raised in the pleadings so far filed:

1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor, was intended to include or cover initiative on amendments to the Constitution; and if so, whether the Act, as worded, adequately covers such initiative.

2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum on National and Local Laws) regarding the conduct of initiative on amendments to the Constitution is valid, considering the absence in the law of specific provisions on the conduct of such initiative.

3. Whether the lifting of term limits of elective national and local officials, as proposed in the draft “Petition for Initiative on the 1987 Constitution,” would constitute a revision of, or an amendment to, the Constitution.

4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely intended to obtain an order (a) fixing the time and dates for signature gathering; (b) instructing municipal election officers to assist Delfin's movement and volunteers in establishing signature stations; and (c) directing or causing the publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987 Constitution.

5. Whether it is proper for the Supreme Court to take cognizance of the petition when there is a pending case before the COMELEC.

After hearing them on the issues, we required the parties to submit simultaneously their respective memoranda within twenty days and requested intervenor Senator Roco to submit copies of the deliberations on House Bill No. 21505.

On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and arguments in the main Petition. It further submits that the COMELEC should have dismissed the Delfin Petition for failure to state a sufficient cause of action and that the Commission’s failure or refusal to do so constituted grave abuse of discretion amounting to lack of jurisdiction.

On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of the House of Representatives relating to the deliberations of House Bill No. 21505, as well as the transcripts of stenographic notes on the proceedings of the Bicameral Conference Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.

Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP.[23] The parties thereafter filed, in due time, their separate memoranda.[24]

As we stated in the beginning, we resolved to give due course to this special civil action.

For a more logical discussion of the formulated issues, we shall first take up the fifth issue which appears to pose a prejudicial procedural question.

I

THE INSTANT PETITION IS VIABLE DESPITE THE

PENDENCY IN THE COMELEC OF THE DELFINPETITION.

Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when there is a pending case before the COMELEC. The petitioners provide an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private respondent Delfin. This being so, it becomes imperative to stop the Comelec from proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition for prohibition is the proper remedy.

29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. (People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of the highly divisive and adverse environmental consequences on the body politic of the questioned Comelec order. The consequent climate of legal confusion and political instability begs for judicial statesmanship.

30. In the final analysis, when the system of constitutional law is threatened by the political ambitions of man, only the Supreme Court can save a nation in peril and uphold the paramount majesty of the Constitution.[25]

It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition on the ground that the COMELEC has no jurisdiction or authority to entertain the petition.[26] The COMELEC made no ruling thereon evidently because after having heard the arguments of Delfin and the oppositors at the hearing on 12 December 1996, it required them to submit within five days their memoranda or oppositions/memoranda.[27] Earlier, or specifically on 6 December 1996, it practically gave due course to the Delfin Petition by ordering Delfin to cause the publication of the petition, together with the attached Petition for Initiative, the signature form, and the notice of hearing; and by setting the case for hearing. The COMELEC’s failure to act on Roco’s motion to dismiss and its insistence to hold on to the petition rendered ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which provides:

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

It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin Petition because the said petition is not supported by the required minimum number of signatures of registered voters. LABAN also asserts that the COMELEC gravely abused its discretion in refusing to dismiss the Delfin Petition, which does not contain the required number of signatures. In light of these claims, the instant case may likewise be treated as a special civil action for certiorari under Section I of Rule 65 of the Rules of Court.

In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside technicalities of procedure in cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr.:[28]

A party’s standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance of issues raised. In the landmark Emergency Powers Cases, this Court brushed aside this technicality because the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEMOF INITIATIVE ON AMENDMENTS TO THE

CONSTITUTION, BUT IS, UNFORTUNATELY,INADEQUATE TO COVER THAT SYSTEM.

Section 2 of Article XVII of the Constitution provides:

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

This provision is not self-executory. In his book,[29] Joaquin Bernas, a member of the 1986 Constitutional Commission, stated:

Without implementing legislation Section 2 cannot operate. Thus, although this mode of amending the Constitution is a mode of amendment which bypasses congressional action, in the last analysis it still is dependent on congressional action.

Bluntly stated, the right of the people to directly propose amendments to the Constitution through the system of initiative would remain entombed in the cold niche of the Constitution until Congress provides for its implementation. Stated otherwise, while the Constitution has recognized or granted that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its implementation.

This system of initiative was originally included in Section 1 of the draft Article on Amendment or Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986 Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). [30] That section reads as follows:

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed:

(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article ____ Section ____ of the Constitution. [31]

After several interpellations, but before the period of amendments, the Committee submitted a new formulation of the concept of initiative which it denominated as Section 2; thus:

MR. SUAREZ. Thank you, Madam President. May we respectfully call attention of the Members of the Commission that pursuant to the mandate given to us last night, we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing the matter of initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I quote Section 2:

“The people may, after five years from the date of the last plebiscite held, directly propose amendments to this Constitution thru initiative upon petition of at least ten percent of the registered voters.”

This completes the blanks appearing in the original Committee Report No. 7.[32]

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the legislature. Thus:

FR. BERNAS. Madam President, just two simple, clarificatory questions.

First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there are no details in the provision on how to carry this out. Do we understand, therefore, that we are leaving this matter to the legislature?

MR. SUAREZ. That is right, Madam President.

FR. BERNAS. And do we also understand, therefore, that for as long as the legislature does not pass the necessary implementing law on this, this will not operate?

MR. SUAREZ. That matter was also taken up during the committee hearing, especially with respect to the budget appropriations which would have to be legislated so that the plebiscite could be called. We deemed it best that this matter be left to the legislature. The Gentleman is right. In any event, as envisioned, no amendment through the power of initiative can be called until after five years from the date of the ratification of this Constitution. Therefore, the first amendment that could be proposed through the exercise of this initiative power would be after five years. It is reasonably expected that within that five-year period, the National Assembly can come up with the appropriate rules governing the exercise of this power.

FR. BERNAS. Since the matter is left to the legislature - the details on how this is to be carried out - is it possible that, in effect, what will be presented to the people for ratification is the work of the legislature rather than of the people? Does this provision exclude that possibility?

MR. SUAREZ. No, it does not exclude that possibility because even the legislature itself as a body could propose that amendment, maybe individually or collectively, if it fails to muster the three-fourths vote in order to constitute itself as a constituent assembly and submit that proposal to the people for ratification through the process of an initiative.

x x x

MS. AQUINO. Do I understand from the sponsor that the intention in the proposal is to vest constituent power in the people to amend the Constitution?

MR. SUAREZ. That is absolutely correct, Madam President.

MS. AQUINO. I fully concur with the underlying precept of the proposal in terms of institutionalizing popular participation in the drafting of the Constitution or in the amendment thereof, but I would have a lot of difficulties in terms of accepting the draft of Section 2, as written. Would the sponsor agree with me that in the hierarchy of legal mandate, constituent power has primacy over all other legal mandates?

MR. SUAREZ. The Commissioner is right, Madam President.

MS. AQUINO. And would the sponsor agree with me that in the hierarchy of legal values, the Constitution is source of all legal mandates and that therefore we require a great deal of circumspection in the drafting and in the amendments of the Constitution?

MR. SUAREZ. That proposition is nondebatable.

MS. AQUINO. Such that in order to underscore the primacy of constituent power we have a separate article in the constitution that would specifically cover the process and the modes of amending the Constitution?

MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to again concede to the legislature the process or the requirement of determining the mechanics of amending the Constitution by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be placed in the hands of the National Assembly, not unless we can incorporate into this provision the mechanics that would adequately cover all the conceivable situations.[33]

It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to AMEND -- not to REVISE -- the Constitution; thus:

MR. SUAREZ. ... This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this system of initiative should not extend to the revision of the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision.[34]

x x x

MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the Article on Amendment. Would the sponsor be amenable to accepting an amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of setting it up as another separate section as if it were a self-executing provision?

MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the Committee.

MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process of revision; whereas the process of initiation to amend, which is given to the public, would only apply to amendments?

MR. SUAREZ.That is right. Those were the terms envisioned in the Committee.[35]

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:

MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2 with the following:

x x x

MR. DAVIDE. Madam President, I have modified the proposed amendment after taking into account the modifications submitted by the sponsor himself and the honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and Romulo. The modified amendment in substitution of the proposed Section 2 will now read as follows: "SECTION 2. -- AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.

MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of the sense contained in Section 2 of our completed Committee Report No. 7, we accept the proposed amendment.[36]

The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it was a legislative act which must implement the exercise of the right. Thus:

MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature to set forth certain procedures to carry out the initiative...?

MR. DAVIDE. It can.

x x x

MR. ROMULO. But the Commissioner’s amendment does not prevent the legislature from asking another body to set the proposition in proper form.

MR. DAVIDE. The Commissioner is correct. In other words, the implementation of this particular right would be subject to legislation, provided the legislature cannot determine anymore the percentage of the requirement.

MR. ROMULO. But the procedures, including the determination of the proper form for submission to the people, may be subject to legislation.

MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In other words, none of the procedures to be proposed by the legislative body must diminish or impair the right conceded here.

MR. ROMULO. In that provision of the Constitution can the procedures which I have discussed be legislated?

MR. DAVIDE. Yes.[37]

Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to AMENDMENTS to -- NOT REVISION of -- the Constitution. Thus:

MR. DAVIDE. With pleasure, Madam President.

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendment." Does it not cover the word "revision" as defined by Commissioner Padilla when he made the distinction between the words "amendments" and "revision"?

MR. DAVIDE. No, it does not, because "amendments" and "revision" should be covered by Section 1. So insofar as initiative is concerned, it can only relate to "amendments" not "revision."[38]

Commissioner Davide further emphasized that the process of proposing amendments through initiative must be more rigorous and difficult than the initiative on legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this proposal, what is involved is an amendment to the Constitution. To amend a Constitution would ordinarily require a proposal by the National Assembly by a vote of three-fourths; and to call a constitutional convention would require a higher number. Moreover, just to submit the issue of calling a constitutional convention, a majority of the National Assembly is required, the import being that the process of amendment must be made more rigorous and difficult than probably initiating an ordinary legislation or putting an end to a law proposed by the National Assembly by way of a referendum. I cannot agree to reducing the requirement approved by the Committee on the Legislative because it would require another voting by the Committee, and the voting as precisely based on a requirement of 10 percent. Perhaps, I might present such a proposal, by way of an amendment, when the Commission shall take up the Article on the Legislative or on the National Assembly on plenary sessions. [39]

The Davide modified amendments to Section 2 were subjected to amendments, and the final version, which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:

MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads as follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT. [40]

The entire proposed Article on Amendments or Revisions was approved on second reading on 9 July 1986. [41] Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to introduce an amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the Article was again approved on Second and Third Readings on 1 August 1986.[42]

However, the Committee on Style recommended that the approved Section 2 be amended by changing “percent” to “per centum” and “thereof” to “therein” and deleting the phrase “by law” in the second paragraph so that said paragraph reads: The Congress[43] shall provide for the implementation of the exercise of this right.[44] This amendment was approved and is the text of the present second paragraph of Section 2.

The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section 2 of Article XVII of the Constitution is not self-executory.

Has Congress “provided” for the implementation of the exercise of this right? Those who answer the question in the affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No. 6735.

There is, of course, no other better way for Congress to implement the exercise of the right than through the passage of a statute or legislative act. This is the essence or rationale of the last minute amendment by the Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII then reading:

The Congress[45] shall by law provide for the implementation of the exercise of this right.

with

The Congress shall provide for the implementation of the exercise of this right.

This substitute amendment was an investiture on Congress of a power to provide for the rules implementing the exercise of the right. The “rules” means “the details on how [the right] is to be carried out.”[46]

We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was prepared by the Committee on Suffrage and Electoral Reforms of the House of Representatives on the basis of two House Bills referred to it, viz., (a) House Bill No. 497,[47] which dealt with the initiative and referendum mentioned in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, [48] which dealt with the subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of Article X (Local Government) and initiative provided for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17[49] solely dealt with initiative and referendum concerning ordinances or resolutions of local government units. The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8 June 1989 by the Senate[50] and by the House of Representatives.[51] This approved bill is now R.A. No. 6735.

But is R.A. No. 6735 a full compliance with the power and duty of Congress to “provide for the implementation of the exercise of the right?”

A careful scrutiny of the Act yields a negative answer.

First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an initiative on amendments to the Constitution. The said section reads:

SECTION 2. Statement and Policy. -- The power of the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (Underscoring supplied).

The inclusion of the word “Constitution” therein was a delayed afterthought. That word is neither germane nor relevant to said section, which exclusively relates to initiative and referendum on national laws and local laws, ordinances, and resolutions. That section is silent as to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is confined only to proposals to AMEND. The people are not accorded the power to “directly propose, enact, approve, or reject, in whole or in part, the Constitution” through the system of initiative. They can only do so with respect to “laws, ordinances, or resolutions.”

The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and appropriately used the phrases “propose and enact,” “approve or reject” and “in whole or in part.”[52]

Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to the Constitution and mentions it as one of the three systems of initiative, and that Section 5 (Requirements) restates the constitutional requirements as to the percentage of the registered voters who must submit the proposal. But unlike in the case of the other systems of initiative, the Act does not provide for the contents of a petition for initiative on the Constitution. Section 5, paragraph (c) requires, among other things, statement of theproposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be. It does not include, as among the contents of the petition, the provisions of the Constitution sought to be amended, in the case of initiative on the Constitution. Said paragraph (c) reads in full as follows:

(c) The petition shall state the following:

c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;

c.4 that it is not one of the exceptions provided therein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition is not more than one hundred (100) words which shall be legibly written or printed at the top of every page of the petition. (Underscoring supplied).

The use of the clause “proposed laws sought to be enacted, approved or rejected, amended or repealed” only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on amendments to the Constitution.

Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle therefor, considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose amendments to the Constitution is far more important than the initiative on national and local laws.

We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under the subtitle on National Initiative and Referendum because it is national in scope. Our reading of Subtitle II (National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the classification is not based on the scope of the initiative involved, but on its nature and character. It is “national initiative,” if what is proposed to be adopted or enacted is a national law, or a law which only Congress can pass. It is “local initiative” if what is proposed to be adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the governments of the autonomous regions, provinces, cities, municipalities, and barangays can pass. This classification of initiative into national and local is actually based on Section 3 of the Act, which we quote for emphasis and clearer understanding:

SEC. 3. Definition of terms --

x x x

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

a.1 Initiative on the Constitution which refers to a petition proposing amendments to the Constitution;

a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or ordinance. (Underscoring supplied).

Hence, to complete the classification under subtitles there should have been a subtitle on initiative on amendments to the Constitution. [53]

A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9, which reads:

(b) The proposition in an initiative on the Constitution approved by the majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite.

(c) A national or local initiative proposition approved by majority of the votes cast in an election called for the purpose shall become effective fifteen (15) days after certification and proclamation of the Commission. (Underscoring supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of local governments; thus:

SEC. 11. Indirect Initiative. -- Any duly accredited people’s organization, as defined by law, may file a petition for indirect initiative with the House of Representatives, and other legislative bodies....

and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of sufficiency or insufficiency of the petition for initiative or referendum, which could be petitions for both national and local initiative and referendum.

Upon the other hand, Section 18 on “Authority of Courts” under subtitle III on Local Initiative and Referendum is misplaced, [54] since the provision therein applies to both national and local initiative and referendum. It reads:

SEC. 18. Authority of Courts. -- Nothing in this Act shall prevent or preclude the proper courts from declaring null and void any proposition approved pursuant to this Act for violation of the Constitution or want of capacity of the local legislative body to enact the said measure.

Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the implementation of initiative and referendum on national and local legislation thereby giving them special attention, it failed, rather intentionally, to do so on the system of initiative on amendments to the Constitution. Anent the initiative on national legislation, the Act provides for the following:

(a) The required percentage of registered voters to sign the petition and the contents of the petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of votes for its approval;

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation in the Philippines; and

(f) The effects of the approval or rejection of the proposition.[55]

As regards local initiative, the Act provides for the following:

(a) The preliminary requirement as to the number of signatures of registered voters for the petition;

(b) The submission of the petition to the local legislative body concerned;

(c) The effect of the legislative body’s failure to favorably act thereon, and the invocation of the power of initiative as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;

(f) The persons before whom the petition shall be signed;

(g) The issuance of a certification by the COMELEC through its official in the local government unit concerned as to whether the required number of signatures have been obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for their approval, which must be within the period specified therein;

(i) The issuance of a certification of the result;

(j) The date of effectivity of the approved proposition;

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies.[56]

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twenty-three sections, merely (a) mentions, the word “Constitution” in Section 2; (b) defines “initiative on the Constitution” and includes it in the enumeration of the three systems of initiative in Section 3; (c) speaks of “plebiscite” as the process by which the proposition in an initiative on the Constitution may be approved or rejected by the people; (d) reiterates the constitutional requirements as to the number of voters who should sign the petition; and (e) provides for the date of effectivity of the approved proposition.

There was, therefore, an obvious downgrading of the more important or the paramount system of initiative. R.A. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to the Constitution by merely paying it a reluctant lip service. [57]

The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by “empowering” the COMELEC “to promulgate such rules and regulations as may be necessary to carry out the purposes of [the] Act. [58]

The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas delegata non delegari potest.[59] The recognized exceptions to the rule are as follows:

(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;

(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies.[60]

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules and regulations is a form of delegation of legislative authority under no. 5 above. However, in every case of permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard -- the limits of which are sufficiently determinate and determinable -- to which the delegate must conform in the performance of his functions.[61] A sufficient standard is one which defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected.[62]

Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC is then invalid.

III

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE CONSTITUTION, IS VOID.

It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the exercise of the right of the people to directly propose amendments to the Constitution through the system of initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELEC’s power under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred to therein are those

promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where subordinate legislation is authorized and which satisfies the “completeness” and the “sufficient standard” tests.

IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN ENTERTAINING THE DELFIN PETITION.

Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to implement the right to initiate constitutional amendments, or that it has validly vested upon the COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition.

Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative on the Constitution must be signed by at least 12% of the total number of registered voters of which every legislative district is represented by at least 3% of the registered voters therein. The Delfin Petition does not contain signatures of the required number of voters. Delfin himself admits that he has not yet gathered signatures and that the purpose of his petition is primarily to obtain assistance in his drive to gather signatures. Without the required signatures, the petition cannot be deemed validly initiated.

The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is the initiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe the form of the petition;[63] (2) to issue through its Election Records and Statistics Office a certificate on the total number of registered voters in each legislative district;[64] (3) to assist, through its election registrars, in the establishment of signature stations; [65] and (4) to verify, through its election registrars, the signatures on the basis of the registry list of voters, voters’ affidavits, and voters’ identification cards used in the immediately preceding election.[66]

Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The latter knew that the petition does not fall under any of the actions or proceedings under the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not assign to the petition a docket number. Hence, the said petition was merely entered as UND, meaning, undocketed. That petition was nothing more than a mere scrap of paper, which should not have been dignified by the Order of 6 December 1996, the hearing on 12 December 1996, and the order directing Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse of discretion and merely wasted its time, energy, and resources.

The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of the elective national and local officials is an amendment to, and not arevision of, the Constitution is rendered unnecessary, if not academic.

CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments on the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer in complying with the constitutional mandate to provide for the implementation of the right of the people under that system.

WHEREFORE, judgment is hreby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolutions No. 2300 of the Commission on Elections prescribing rules and regulations on the conduct of initiative or amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission on Elections, but is LIFTED against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo,Kapunan, Hermosisima, Jr. and Torres Jr., JJ., concur.Padilla, J., took no part; related to a co-petitioner and co-counsel of the petitioners.Melo and Mendoza, JJ., joins the separate, concurring opinions of Justices Puno, Francisco and Panganiban.Puno, Vitug, , Francisco and Panganiban, JJ., has separate opinions.

[1] Commissioner Blas Ople.

[2] Commissioner Jose Suarez.

[3] I Record of the Constitutional Commission, 371, 378.

[4] Section 1, Article XV of the 1935 Constitution and Section 1(1), Article XVI of the 1973 Constitution.

[5] Annex “A” of Petition, Rollo, 15.

[6] Later identified as the People’s Initiative for Reforms, Modernization and Action, or PIRMA for brevity.

[7] These sections read:

SEC. 4. The term of office of the Senators shall be six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next following their election.

No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

x x x

SEC. 7. The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election.

No Member of the House of Representatives shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

[8] The section reads:

SEC. 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date six years thereafter. The President shall not be eligible for any reelection. No person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time.

No Vice-President shall serve for more than two successive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of the service for the full term for which he was elected.

[9] The section reads:

SEC. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

[10] Rollo, 19.

[11] Annex “B” of Petition, Rollo, 25.

[12] Order of 12 December 1996, Annex “B-1” of Petition, Rollo, 27.

[13] Id.

[14] Citing Araneta v. Dinglasan, 84 Phil. 368 [1949]; Sanidad v. COMELEC, 73 SCRA 333 [1976].

[15] Rollo, 68.

[16] Rollo, 100.

[17] Rollo, 130.

[18] A Member of the 1986 Constitutional Commission.

[19] Section 26, Article II, Constitution.

[20] Citing Commissioner Ople of the Constitutional Commission, I Record of the Constitutional Commission, 405.

[21] Rollo, 239.

[22] Rollo, 304.

[23] Rollo, 568.

[24] These were submitted on the following dates:

(a) Private respondent Delfin - 31 January 1997 (Rollo, 429);(b) Private respondents Alberto and Carmen Pedrosa - 10 February 1997 (Id., 446);(c) Petitioners - 12 February 1997 (Id., 585);(d) IBP - 12 February 1997 (Id., 476);(e) Senator Roco - 12 February 1997 (Id., 606);(f) DIK and MABINI - 12 February 1997 (Id., 465);(g) COMELEC - 12 February 1997 (Id., 489);

(h) LABAN - 13 February 1997 (Id., 553).

[25] Rollo, 594.

[26] Annex “D” of Roco’s Motion for Intervention in this case, Rollo, 184.

[27] Rollo, 28.

[28] 232 SCRA 110, 134 [1994].

[29] II The Constitution of the Republic of the Philippines, A Commentary 571 [1988].

[30] I Record of the Constitutional Commission 370-371.

[31] Id., 371.

[32] Id., 386.

[33] Id., 391-392. (Underscoring supplied for emphasis).

[34] Id., 386.

[35] Id., 392.

[36] Id., 398-399.

[37] Id., 399. Underscoring supplied.

[38] Id., 402-403.

[39] Id., 401-402.

[40] Id., 410.

[41] Id., 412.

[42] II Record of the Constitutional Commission 559-560.

[43] The Congress originally appeared as The National Assembly. The change came about as a logical consequence of the amended Committee Report No. 22 of the Committee on Legislative which changed The National Assembly to "The Congress of the Philippines" in view of the approval of the amendment to adopt the bicameral system (II Record of the Constitutional Commission 102-105). The proposed new Article on the Legislative Department was, after various amendments approved on Second and Third Readings on 9 October 1986 (Id., 702-703).

[44] V Record of the Constitutional Commission 806.

[45] See footnote No. 42.

[46] As stated by Commissioner Bernas in his interpellation of Commissioner Suarez, footnote 28.

[47] Entitled "Initiative and Referendum Act of 1987,” introduced by then Congressmen Raul Roco, Raul del Mar and Narciso Monfort.

[48] Entitled “An Act Implementing the Constitutional Provisions on Initiative and Referendum and for Other Purposes,” introduced by Congressmen Salvador Escudero.

[49] Entitled “An Act Providing for a System of Initiative and Referendum, and the Exceptions Therefrom, Whereby People in Local Government Units Can Directly Propose and Enact Resolutions and Ordinances or Approve or Reject Any Ordinance or Resolution Passed By the Local Legislative Body,” introduced by Senators Gonzales, Romulo, Pimentel, Jr., and Lina, Jr.

[50] IV Record of the Senate, No. 143, pp. 1509-1510.

[51] VIII Journal and Record of the House of Representatives, 957-961.

[52] That section reads:

Section 1. Statement of Policy. The power of the people under a system of initiative and referendum to directly propose and enact resolutions and ordinances or approve or reject, in whole or in part, any ordinance or resolution passed by any local legislative body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed.

[53] It must be pointed out that Senate Bill No. 17 and House Bill No. 21505, as approved on Third Reading, did not contain any subtitles.

[54] If some confusion attended the preparation of the subtitles resulting in the leaving out of the more important and paramount system of initiative on amendments to the Constitution, it was because there was in the Bicameral Conference Committee an initial agreement for the Senate panel to draft that portion on local initiative and for the House of Representatives panel to draft that portion covering national initiative and initiative on the Constitution; eventually, however, the Members thereof agreed to leave the drafting of the consolidated bill to their staff. Thus:

CHAIRMAN GONZALES.

... All right, and we can agree, we can agree. So ang mangyayari dito, ang magiging basic nito, let us not discuss anymore kung alin ang magiging basic bill, ano, whether it is the Senate Bill or whether it is the House Bill. Logically it should be ours sapagkat una iyong sa amin, eh. It is one of the first bills approved by the Senate kaya ang number niyan, makikita mo, 17, eh. Huwag na nating pag-usapan. Now, if you insist, really iyong features ng national at saka constitutional, okay. Pero gagawin na nating consolidation of both bills. (TSN, proceedings of the Bicameral Conference Committee on 6 June 1989 submitted by Nora, R, pp. I-4 - I-5).

x x x

HON. ROCO. So how do we proceed from this? The staff will consolidate.

HON. GONZALES. Gumawa lang ng isang draft. Submit it to the Chairman, kami na ang bahalang magconsult sa aming mga members na kung okay,

HON. ROCO. Within today?

HON. GONZALES. Within today and early tomorrow. Hanggang Huwebes lang tayo, eh.

HON. AQUINO. Kinakailangang palusutin natin ito. Kung mabigyan tayo ng kopya bukas and you are not objecting naman kayo naman ganoon din.

HON. ROCO. Editing na lang because on a physical consolidation nga ito, eh. Yung mga provisions naman namin wala sa inyo. (TSN, proceedings of Bicameral Conference Committee of 6 June 1989, submitted by E.S. Bongon, pp. III-4 - III-5).

[55] Sec. 5(a & c), Sec. 8, Section 9(a).

[56] Sections 13, 14, 15 and 16.

[57] It would thus appear that the Senate’s “cautious approach” in the implementation of the system of initiative as a mode of proposing amendments to the Constitution, as expressed by Senator Gonzales in the course of his sponsorship of Senate Bill No. 17 in the Bicameral Conference Committee meeting and in his sponsorship of the Committee’s Report, might have insidiously haunted the preparation of the consolidated version of Senate Bill No. 17 and House Bill No. 21505. In the first he said:

Senate Bill No. 17 recognizes the initiatives and referendum are recent innovations in our political system. And recognizing that, it has adopted a cautious approach by: first, allowing them only when the local legislative body had refused to act; second, not more frequently than once a year; and, third, limiting them to the national level. (I Record of the Senate, No. 33, p. 871).

x x x

First, as I have said Mr. President, and I am saying for the nth time, that we are introducing a novel and new system in politics. We have to adopt first a cautious approach. We feel it is prudent and wise at this point in time, to limit those powers that may be the subject of initiatives and referendum to those exercisable or within the authority of the local government units. (Id., p. 880).

In the second he stated:

But at any rate, as I have said, because this is new in our political system, the Senate decided on a more cautious approach and limiting it only to the local general units. (TSN of the proceedings of the Bicameral Conference Committee on 6 June 1989, submitted by stenographer Nora R., pp. I-2 to I-3).

In the last he declared:

The initiatives and referendum are new tools of democracy; therefore, we have decided to be cautious in our approach. Hence, 1) we limited initiative and referendum to the local government units; 2) that initiative can only be exercised if the local legislative cannot be exercised more frequently that once every year. (IV Records of the Senate, No. 143, pp. 15-9-1510).

[58] Section 20, R.A. No. 6735.

Angara vs. Electoral CommissionFacts: ....

(1) That in the 1935 election Angara and the respondents, Pedro Ynsua, MiguelCastillo and Dionisio Mayor, were candidates voted for the position of member of the NationalAssembly for the first district of the Province of Tayabas; Angara was proclaimed as winner andtook his oath of office; that

Pedro Ynsua, filed a "Motion of Protest" against the election of Jose A. Angarathat Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of itsconstitutional prerogative to prescribe the period during

which protests against the election of its members should be presented; (b) that the aforesaid resolution has for its object, and is theaccepted formula for, the limitation of said period; and (c) that the protest in question was filedout of the prescribed period;

Issues:1. W/N

the Supreme Court has jurisdiction over the Electoral Commission2.

Has the said Electoral Commission acted without or in excess of its jurisdiction inassuming to take cognizance of the protest filed against the election of the herein petitionernotwithstanding the previous confirmation of such election by resoluti2on of the NationalAssembly?HELD:

(a) That the government established by the Constitution follows fundamentally thetheory of separation of powers into the legislative, the executive and the judicial.(b) That the system of checks and balances and the overlapping of functions and dutiesoften makes difficult the delimitation of the powers

granted.(c) That in cases of conflict between the several departments and among the agenciesthereof, the judiciary, with the Supreme Court as the final arbiter, is the only constitutionalmechanism devised finally to resolve the conflict and allocate constitutional boundaries.

(d) That judicial supremacy is but the power of judicial review in actual and appropriatecases and controversies, and is thepower and duty

That the Electoral Commission is the sole judge of all contests relating to the election,returns and qualifications of members of the National Assembly.(g) That under the organic law prevailing before the present Constitution went into effect,each house of the legislature was respectively the sole judge of

the elections, returns, andqualifications of their elective members.(h) That the present Constitution has transferred all the powers previously exercised by thelegislature with respect to contests relating to the election,

returns and qualifications of itsmembers, to the Electoral Commission.(i) That such transfer of power from the legislature to the Electoral Commission was full,clear and complete, and carried with it ex necesitate rei the

implied power inter alia toprescribe the rules and regulations as to the time and manner of filing protests.(j) That the avowed purpose in creating the Electoral Commission was to have anindependent constitutional organ pass upon all contests relating to the election, returns andqualifications of members of the National Assembly, devoid of partisan influence orconsideration, which object would be frustrated

if the National Assembly were to retain thepower to prescribe rules and regulations regarding the manner of conducting said contests.(k) That section 4 of article VI of the Constitution repealed not only section 18 of the JonesLaw making each house of the Philippine Legislature

respectively the sole judge of theelections, returns and qualifications of its elective members, but also section 478 of Act No.3387 empowering each house to prescribe by resolution the time and manner of filing contestsagainst the election of its members, the time and manner of notifying the adverse

party,andbond or bonds, to be required, if any, and to fix the costs and expenses of contest.(l) That confirmation by the National Assembly of the election of any member, irrespectiveof whether his election is contested or not, is not essential

before such member-elect maydischarge the duties and enjoy the privileges of a member of the National Assembly.(m)

That confirmation by the National Assembly of the election of any member againstwhom no protest had been filed prior to said confirmation, does not and cannot deprive theElectoral Commission of its incidental power to prescribe the time within which protestagainst the election of any member of the National

Assembly should be filed.We hold, therefore, that the Electoral Commission was acting within the legitimate exerciseof its constitutional prerogative in assuming to take cognizance of the protest filed by therespondent Pedro Ynsua against the election of the herein petitioner Jose A. Angara, and thatthe resolution of the

National Assembly of December 3, 1935 can not in any manner toll th

to see that no one branch or agency of thegovernment transcends the Constitution, which is the source of all authority.(e) That the Electoral Commission is an independent constitutional creation with specificpowers and functions to execute and perform, closer for

purposes of classification to thelegislative than to any of the other two departments of the governmenttime for filing protests against the election, returns and qualifications of members of theNational Assembly, nor prevent the filing of a protest within such

time as the rules of theElectoral Commission might prescribe.Ratio:Upon principle, reason and authority, we are clearly of the opinion that upon the admitted factsof the present case, t

his court has jurisdiction over the Electoral Commission and the subjectmatter of the present controversy for the purpose of determining the character, scope andextent of the constitutional grant to the Electoral Commission as "the sole judge of allcontests relating to the election, returns and

qualifications of the members of the NationalAssembly."Were we to decline to take cognizance of the controversy, who will determine the conflict? And if the conflict were left undecided and undetermined,

would not a void be thus created in our constitutional system which may in the long run prove destructive of the entire framework? The separation of powers is a fundamental principle in our system of government. It obtainsnot through express provision but by actual division in our

Constitution. Each department of thegovernment has exclusive cognizance of matters within its jurisdiction, and is supreme withinits own sphere. But it does not follow from the fact that the three powers are to be keptseparate and distinct that the Constitution intended them to be absolutely unrestrained andindependent of each other. The Constitution has provided for an elaborate system of checksand balances to secure coordination in the workings of

the various departments of thegovernment.The Constitution is a definition of the powers of government

. Who is to determine the nature,scope and extent of such powers? The Constitution itself has provided for the instrumentalityof the judiciary as the rational way. And when the judiciary mediates to allocate constitutionalboundaries, it does not assert any superiority over the other departments; it does

not in realitynullify or invalidate an act of the legislature,but only asserts the solemn and sacred obligationassigned to it by the Constitution to determine conflicting claims of authority under the

Constitution and to establish for the parties in an actual controversy the rights which thatinstrument secures and guarantees to them

G.R. No. L-45081 July 15, 1936

JOSE A. ANGARA, petitioner, vs.THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C. MAYOR,respondents.

Godofredo Reyes for petitioner.Office of the Solicitor General Hilado for respondent Electoral Commission.Pedro Ynsua in his own behalf.No appearance for other respondents.

LAUREL, J.:

This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of a writ of prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from taking further cognizance of the protest filed by Pedro Ynsua, another respondent, against the election of said petitioner as member of the National Assembly for the first assembly district of the Province of Tayabas.

The facts of this case as they appear in the petition and as admitted by the respondents are as follows:

(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the respondents, Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for the position of member of the National Assembly for the first district of the Province of Tayabas;

(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as member-elect of the National Assembly for the said district, for having received the most number of votes;

(3) That on November 15, 1935, the petitioner took his oath of office;

(4) That on December 3, 1935, the National Assembly in session assembled, passed the following resolution:

[No. 8]

RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.

Se resuelve: Que las actas de eleccion de los Diputados contra quienes no se hubiere presentado debidamente una protesta antes de la adopcion de la presente resolucion sean, como por la presente, son aprobadas y confirmadas.

Adoptada, 3 de diciembre, 1935.

(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral Commission a "Motion of Protest" against the election of the herein petitioner, Jose A. Angara, being the only protest filed after the passage of Resolutions No. 8 aforequoted, and praying, among other-things, that said respondent be declared elected member of the National Assembly for the first district of Tayabas, or that the election of said position be nullified;

(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6 of which provides:

6. La Comision no considerara ninguna protesta que no se haya presentado en o antes de este dia.

(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the respondents in the aforesaid protest, filed before the Electoral Commission a "Motion to Dismiss the Protest", alleging (a) that Resolution No. 8 of Dismiss the Protest", alleging (a) that Resolution No. 8 of the National Assembly was adopted in the legitimate exercise of its constitutional prerogative to prescribe the period during which protests against the election of its members should be presented; (b) that the aforesaid resolution has for its object, and is the accepted formula for, the limitation of said period; and (c) that the protest in question was filed out of the prescribed period;

(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the Motion of Dismissal" alleging that there is no legal or constitutional provision barring the presentation of a protest against the election of a member of the National Assembly after confirmation;

(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the aforesaid "Answer to the Motion of Dismissal";

(10) That the case being submitted for decision, the Electoral Commission promulgated a resolution on January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest."

The application of the petitioner sets forth the following grounds for the issuance of the writ prayed for:

(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely as regards the merits of contested elections to the National Assembly;

(b) That the Constitution excludes from said jurisdiction the power to regulate the proceedings of said election contests, which power has been reserved to the Legislative Department of the Government or the National Assembly;

(c) That like the Supreme Court and other courts created in pursuance of the Constitution, whose exclusive jurisdiction relates solely to deciding the merits of controversies submitted to them for decision and to matters involving their internal organization, the Electoral Commission can regulate its proceedings only if the National Assembly has not availed of its primary power to so regulate such proceedings;

(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be respected and obeyed;

(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the United States) as well as under section 1 and 3 (should be sections 1 and 2) of article VIII of the Constitution, this Supreme Court has jurisdiction to pass upon the fundamental question herein raised because it involves an interpretation of the Constitution of the Philippines.

On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the respondent Electoral Commission interposing the following special defenses:

(a) That the Electoral Commission has been created by the Constitution as an instrumentality of the Legislative Department invested with the jurisdiction to decide "all contests relating to the election, returns, and qualifications of the members of the National Assembly"; that in adopting its resolution of December 9, 1935, fixing this date as the last day for the presentation of protests against the election of any member of the National Assembly, it acted within its jurisdiction and in the legitimate exercise of the implied powers granted it by the Constitution to adopt the rules and regulations essential to carry out the power and functions conferred upon the same by the fundamental law; that in adopting its resolution of January 23, 1936, overruling the motion of the petitioner to dismiss the election protest in question, and declaring itself with jurisdiction to take cognizance of said protest, it acted in the legitimate exercise of its quasi-judicial functions a an instrumentality of the Legislative Department of the Commonwealth Government, and hence said act is beyond the judicial cognizance or control of the Supreme Court;

(b) That the resolution of the National Assembly of December 3, 1935, confirming the election of the members of the National Assembly against whom no protest had thus far been filed, could not and did not deprive the electoral Commission of its jurisdiction to take cognizance of election protests filed within the time that might be set by its own rules:

(c) That the Electoral Commission is a body invested with quasi-judicial functions, created by the Constitution as an instrumentality of the Legislative Department, and is not an "inferior tribunal, or corporation, or board, or person" within the purview of section 226 and 516 of the Code of Civil Procedure, against which prohibition would lie.

The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March 2, 1936, setting forth the following as his special defense:

(a) That at the time of the approval of the rules of the Electoral Commission on December 9, 1935, there was no existing law fixing the period within which protests against the election of members of the National Assembly should be filed; that in fixing December 9, 1935, as the last day for the filing of protests against the election of members of the National Assembly, the Electoral Commission was exercising a power impliedly conferred upon it by the Constitution, by reason of its quasi-judicial attributes;

(b) That said respondent presented his motion of protest before the Electoral Commission on December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral Commission;

(c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by said respondent and over the parties thereto, and the resolution of the Electoral Commission of January 23, 1936, denying petitioner's motion to dismiss said protest was an act within the jurisdiction of the said commission, and is not reviewable by means of a writ of prohibition;

(d) That neither the law nor the Constitution requires confirmation by the National Assembly of the election of its members, and that such confirmation does not operate to limit the period within which protests should be filed as to deprive the Electoral Commission of jurisdiction over protest filed subsequent thereto;

(e) That the Electoral Commission is an independent entity created by the Constitution, endowed with quasi-judicial functions, whose decision are final and unappealable;

( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal, corporation, board or person, within the terms of sections 226 and 516 of the Code of Civil Procedure; and that neither under the provisions of sections 1 and 2 of article II (should be article VIII) of the Constitution and paragraph 13 of section 1 of the Ordinance appended thereto could it be subject in the exercise of its quasi-judicial functions to a writ of prohibition from the Supreme Court;

(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the united States) has no application to the case at bar.

The case was argued before us on March 13, 1936. Before it was submitted for decision, the petitioner prayed for the issuance of a preliminary writ of injunction against the respondent Electoral Commission which petition was denied "without passing upon the merits of the case" by resolution of this court of March 21, 1936.

There was no appearance for the other respondents.

The issues to be decided in the case at bar may be reduced to the following two principal propositions:

1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter of the controversy upon the foregoing related facts, and in the affirmative,

2. Has the said Electoral Commission acted without or in excess of its jurisdiction in assuming to the cognizance of the protest filed the election of the herein petitioner notwithstanding the previous confirmation of such election by resolution of the National Assembly?

We could perhaps dispose of this case by passing directly upon the merits of the controversy. However, the question of jurisdiction having been presented, we do not feel justified in evading the issue. Being a case primæ impressionis, it would hardly be consistent with our sense of duty to overlook the broader aspect of the question and leave it undecided. Neither would we be doing justice to the industry and vehemence of counsel were we not to pass upon the question of jurisdiction squarely presented to our consideration.

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly. The President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointments of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the

Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it was within the power of our people, acting through their delegates to so provide, that instrument which is the expression of their sovereignty however limited, has established a republican government intended to operate and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitation and restrictions embodied in our Constitution are real as they should be in any living constitution. In the United States where no express constitutional grant is found in their constitution, the possession of this moderating power of the courts, not to speak of its historical origin and development there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of our constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even then, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the governments of the government.

But much as we might postulate on the internal checks of power provided in our Constitution, it ought not the less to be remembered that, in the language of James Madison, the system itself is not "the chief palladium of constitutional liberty . . . the people who are authors of this blessing must also be its guardians . . . their eyes must be ever ready to mark, their voice to pronounce . . . aggression on the authority of their constitution." In the Last and ultimate analysis, then, must the success of our government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than in consultation rooms and court chambers.

In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed the election of the herein petitioner to the said body. On the other hand, the Electoral Commission has by resolution adopted on December 9, 1935, fixed said date as the last day for the filing of protests against the election, returns and qualifications of members of the National Assembly, notwithstanding the previous confirmation made by the National Assembly as aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the effect of cutting off the power of the Electoral Commission to entertain protests against the election, returns and qualifications of members of the National Assembly, submitted after December 3, 1935, then the resolution of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect. But, if, as contended by the respondents, the Electoral Commission has the sole power of regulating its proceedings to the exclusion of the National Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed said date as the last day for filing protests against the election, returns and qualifications of members of the National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature between the National Assembly on the one hand, and the Electoral Commission on the other. From the very nature of the republican government established in our country in the light of American experience and of our own, upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries. The Electoral Commission, as we shall have occasion to refer hereafter, is a constitutional organ, created for a specific purpose, namely to determine all contests relating to the election, returns and qualifications of the members of the National Assembly. Although the Electoral Commission may not be interfered with, when and while acting within the limits of its authority, it does not follow that it is beyond the reach of the constitutional mechanism adopted by the people and that it is not subject to constitutional restrictions. The Electoral Commission is not a separate department of the government, and even if it were, conflicting claims of authority under the fundamental law between department powers and agencies of the government are necessarily determined by the judiciary in justifiable and appropriate cases. Discarding the English type and other European types of constitutional government, the framers of our constitution adopted the American type where the written constitution is interpreted and given effect by the judicial department. In some countries which have declined to follow the American example, provisions have been inserted in their constitutions prohibiting the courts from exercising the power to interpret the fundamental law. This is taken as a recognition of what otherwise would be the rule that in the absence of direct prohibition courts are bound to assume what is logically their function. For instance, the Constitution of Poland of 1921, expressly provides that courts shall have no power to examine the validity of statutes (art. 81, chap. IV). The former Austrian Constitution contained a similar declaration. In countries whose constitutions are silent in this respect, courts have assumed this power. This is true in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to constitutional Charter of the Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123, Title IX, Constitutional of the Republic of 1931) especial constitutional courts are established to pass upon the validity of ordinary laws. In our case, the nature of the present controversy shows the necessity of a final constitutional arbiter to determine the conflict of authority between two agencies created by the Constitution. Were we to decline to take cognizance of the controversy, who will determine the conflict? And if the conflict were left undecided and undetermined, would not a void be thus created in our constitutional system which may be in the long run prove destructive of the entire framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional system. Upon principle, reason and authority, we are clearly of the opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral Commission and the subject mater of the present controversy for the purpose of determining the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly."

Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second proposition and determine whether the Electoral Commission has acted without or in excess of its jurisdiction in adopting its resolution of December 9, 1935, and in assuming to take cognizance of the protest filed against the election of the herein petitioner notwithstanding the previous confirmation thereof by the National Assembly on December 3, 1935. As able counsel for the petitioner has pointed out, the issue hinges on the interpretation of section 4 of Article VI of the Constitution which provides:

"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in the Commission shall be its Chairman. The Electoral Commission shall be the sole judge of all contests relating to the election, returns and qualifications of the members of the National Assembly." It is imperative, therefore, that we delve into the origin and history of this constitutional provision and inquire into the intention of its framers and the people who adopted it so that we may properly appreciate its full meaning, import and significance.

The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5) laying down the rule that "the assembly shall be the judge of the elections, returns, and qualifications of its members", was taken from clause 1 of section 5, Article I of the Constitution of the United States providing that "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, . . . ." The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this provision by the insertion of the word "sole" as follows: "That the Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of their elective members . . ." apparently in order to emphasize the exclusive the Legislative over the particular case s therein specified. This court has had occasion to characterize this grant of power to the Philippine Senate and House of Representatives, respectively, as "full, clear and complete" (Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)

The first step towards the creation of an independent tribunal for the purpose of deciding contested elections to the legislature was taken by the sub-committee of five appointed by the Committee on Constitutional Guarantees of the Constitutional Convention, which sub-committee submitted a report on August 30, 1934, recommending the creation of a Tribunal of Constitutional Security empowered to hear legislature but also against the election of executive officers for whose election the vote of the whole nation is required, as well as to initiate impeachment proceedings against specified executive and judicial officer. For the purpose of hearing legislative protests, the tribunal was to be composed of three justices designated by the Supreme Court and six members of the house of the legislature to which the contest corresponds, three members to be designed by the majority party and three by the minority, to be presided over by the Senior Justice unless the Chief Justice is also a member in which case the latter shall preside. The foregoing proposal was submitted by the Committee on Constitutional Guarantees to the Convention on September 15, 1934, with slight modifications consisting in the reduction of the legislative representation to four members, that is, two senators to be designated one each from the two major parties in the Senate and two representatives to be designated one each from the two major parties in the House of Representatives, and in awarding representation to the executive department in the persons of two representatives to be designated by the President.

Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the Convention on September 24, 1934 subsection 5, section 5, of the proposed Article on the Legislative Department, reads as follows:

The elections, returns and qualifications of the members of either house and all cases contesting the election of any of their members shall be judged by an Electoral Commission, constituted, as to each House, by three members elected by the members of the party having the largest number of votes therein, three elected by the members of the party having the second largest number of votes, and as to its Chairman, one Justice of the Supreme Court designated by the Chief Justice.

The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as proposed by the Committee on Constitutional Guarantees which was probably inspired by the Spanish plan (art. 121, Constitution of the Spanish Republic of 1931), was soon abandoned in favor of the proposition of the Committee on Legislative Power to create a similar body with reduced powers and with specific and limited jurisdiction, to be designated as a Electoral Commission. The Sponsorship Committee modified the proposal of the Committee on Legislative Power with respect to the composition of the Electoral Commission and made further changes in phraseology to suit the project of adopting a unicameral instead of a bicameral legislature. The draft as finally submitted to the Convention on October 26, 1934, reads as follows:

(6) The elections, returns and qualifications of the Members of the National Assembly and all cases contesting the election of any of its Members shall be judged by an Electoral Commission, composed of three members elected by the party having the largest number of votes in the National Assembly, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said justices.

During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others, proposing to strike out the whole subsection of the foregoing draft and inserting in lieu thereof the following: "The National Assembly shall be the soled and exclusive judge of the elections, returns, and qualifications of the Members", the following illuminating remarks were made on the floor of the Convention in its session of December 4, 1934, as to the scope of the said draft:

x x x x x x x x x

Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the first four lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and qualifications of the Members of the National Assembly and all cases contesting the election of any of its Members shall be judged by an Electoral Commission, . . ." I should like to ask from the gentleman from Capiz whether the election and qualification of the member whose elections is not contested shall also be judged by the Electoral Commission.

Mr. ROXAS. If there is no question about the election of the members, there is nothing to be judged; that is why the word "judge" is used to indicate a controversy. If there is no question about the election of a member, there is nothing to be submitted to the Electoral Commission and there is nothing to be determined.

Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm also the election of those whose election is not contested?

Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the House of Representatives confirming the election of its members is just a matter of the rules of the assembly. It is not constitutional. It is not necessary. After a man files his credentials that he has been elected, that is sufficient, unless his election is contested.

Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for purposes of the auditor, in the matter of election of a member to a legislative body, because he will not authorize his pay.

Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected? What happens with regards to the councilors of a municipality? Does anybody confirm their election? The municipal council does this: it makes a canvass and proclaims — in this case the municipal council proclaims who has been elected, and it ends there, unless there is a contest. It is the same case; there is no need on the part of the Electoral Commission unless there is a contest. The first clause refers to the case referred to by the gentleman from Cavite where one person tries to be elected in place of another who was declared elected. From example, in a case when the residence of the man who has been elected is in question, or in case the citizenship of the man who has been elected is in question.

However, if the assembly desires to annul the power of the commission, it may do so by certain maneuvers upon its first meeting when the returns are submitted to the assembly. The purpose is to give to the Electoral Commission all the powers exercised by the assembly referring to the elections, returns and qualifications of the members. When there is no contest, there is nothing to be judged.

Mr. VENTURA. Then it should be eliminated.

Mr. ROXAS. But that is a different matter, I think Mr. Delegate.

Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman from Ilocos Norte when I arose a while ago. However I want to ask more questions from the delegate from Capiz. This paragraph 6 on page 11 of the draft cites cases contesting the election as separate from the first part of the sections which refers to elections, returns and qualifications.

Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are already included in the phrase "the elections, returns and qualifications." This phrase "and contested elections" was inserted merely for the sake of clarity.

Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance, refuse to confirm the elections of the members."

Mr. ROXAS. I do not think so, unless there is a protest.

Mr. LABRADOR. Mr. President, will the gentleman yield?

THE PRESIDENT. The gentleman may yield, if he so desires.

Mr. ROXAS. Willingly.

Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is granted to the assembly, the assembly on its own motion does not have the right to contest the election and qualification of its members?

Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is, even if two-thirds of the assembly believe that a member has not the qualifications provided by law, they cannot remove him for that reason.

Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral Commission.

Mr. ROXAS. By the assembly for misconduct.

Mr. LABRADOR. I mean with respect to the qualifications of the members.

Mr. ROXAS. Yes, by the Electoral Commission.

Mr. LABRADOR. So that under this draft, no member of the assembly has the right to question the eligibility of its members?

Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral Commission and make the question before the Electoral Commission.

Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is contested or not contested.

Mr. ROXAS. Yes, sir: that is the purpose.

Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has power and authority to pass upon the qualifications of the members of the National Assembly even though that question has not been raised.

Mr. ROXAS. I have just said that they have no power, because they can only judge.

In the same session, the first clause of the aforesaid draft reading "The election, returns and qualifications of the members of the National Assembly and" was eliminated by the Sponsorship Committee in response to an amendment introduced by Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In explaining the difference between the original draft and the draft as amended, Delegate Roxas speaking for the Sponsorship Committee said:

x x x x x x x x x

Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la objecion apuntada por varios Delegados al efecto de que la primera clausula del draft que dice: "The elections, returns and qualifications of the members of the National Assembly" parece que da a la Comision Electoral la facultad de determinar tambien la eleccion de los miembros que no ha sido protestados y para obviar esa dificultad, creemos que la enmienda tien razon en ese sentido, si enmendamos el draft, de tal modo que se lea como sigue: "All cases contesting the election", de modo que los jueces de la Comision Electoral se limitaran solamente a los casos en que haya habido protesta contra las actas." Before the amendment of Delegate Labrador was voted upon the following interpellation also took place:

El Sr. CONEJERO. Antes de votarse la enmienda, quisiera

El Sr. PRESIDENTE. ¿Que dice el Comite?

El Sr. ROXAS. Con mucho gusto.

El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a la minoria y tres a la Corte Suprema, ¿no cree Su Señoria que esto equivale practicamente a dejar el asunto a los miembros del Tribunal Supremo?

El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa forma, tanto los miembros de la mayoria como los de la minoria asi como los miembros de la Corte Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es suficiente para dar el triunfo.

El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos hacer que tanto los de la mayoria como los de la minoria prescindieran del partidismo?

El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.

x x x x x x x x x

The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power to decide contests relating to the election, returns and qualifications of members of the National Assembly to the National Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six (56).

In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing the representation of the minority party and the Supreme Court in the Electoral Commission to two members each, so as to accord more representation to the majority party. The Convention rejected this amendment by a vote of seventy-six (76) against forty-six (46), thus maintaining the non-partisan character of the commission.

As approved on January 31, 1935, the draft was made to read as follows:

(6) All cases contesting the elections, returns and qualifications of the Members of the National Assembly shall be judged by an Electoral Commission, composed of three members elected by the party having the largest number of votes in the National Assembly, three elected by the members of the party having the second largest number of votes, and three justices of the Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said justices.

The Style Committee to which the draft was submitted revised it as follows:

SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme Court designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be nominated by the party having the largest number of votes, and three by the party having the second largest number of votes therein. The senior Justice in the Commission shall be its chairman. The Electoral Commission shall be the sole judge of the election, returns, and qualifications of the Members of the National Assembly.

When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee, through President Recto, to effectuate the original intention of the Convention, agreed to insert the phrase "All contests relating to" between the phrase "judge of" and the words "the elections", which was accordingly accepted by the Convention.

The transfer of the power of determining the election, returns and qualifications of the members of the legislature long lodged in the legislative body, to an independent, impartial and non-partisan tribunal, is by no means a mere experiment in the science of government.

Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58), gives a vivid account of the "scandalously notorious" canvassing of votes by political parties in the disposition of contests by the House of Commons in the following passages which are partly quoted by the petitioner in his printed memorandum of March 14, 1936:

153. From the time when the commons established their right to be the exclusive judges of the elections, returns, and qualifications of their members, until the year 1770, two modes of proceeding prevailed, in the determination of controverted elections, and rights of membership. One of the standing committees appointed at the commencement of each session, was denominated the committee of privileges and elections, whose functions was to hear and investigate all questions of this description which might be referred to them, and to report their proceedings, with their opinion thereupon, to the house, from time to time. When an election petition was referred to this committee they heard the parties and their witnesses and other evidence, and made a report of all the evidence, together with their opinion thereupon, in the form of resolutions, which were considered and agreed or disagreed to by the house. The other mode of proceeding was by a hearing at the bar of the house itself. When this court was adopted, the case was heard and decided by the house, in substantially the same manner as by a committee. The committee of privileges and elections although a select committee. The committee of privileges and elections although a select committee was usually what is called an open one; that is to say, in order to constitute the committee, a quorum of the members named was required to be present, but all the members of the house were at liberty to attend the committee and vote if they pleased.

154. With the growth of political parties in parliament questions relating to the right of membership gradually assumed a political character; so that for many years previous to the year 1770, controverted elections had been tried and determined by the house of commons, as mere party questions, upon which the strength of contending factions might be tested. Thus, for Example, in 1741, Sir Robert Walpole, after repeated attacks upon his government, resigned his office in consequence of an adverse vote upon the Chippenham election. Mr. Hatsell remarks, of the trial of election cases, as conducted under this system, that "Every principle of decency and justice were notoriously and openly prostituted, from whence the younger part of the house were insensibly, but too successfully, induced to adopt the same licentious conduct in more serious matters, and in questions of higher importance to the public welfare." Mr. George Grenville, a distinguished member of the house of commons, undertook to propose a remedy for the evil, and, on the 7th of March, 1770, obtained the unanimous leave of the house to bring in a bill, "to regulate the trial of controverted elections, or returns of members to serve in parliament." In his speech to explain his plan, on the motion for leave, Mr. Grenville alluded to the existing practice in the following terms: "Instead of trusting to the merits of their respective causes, the principal dependence of both parties is their private interest among us; and it is scandalously notorious that we are as earnestly canvassed to attend in favor of the opposite sides, as if we were wholly self-elective, and not bound to act by the principles of justice, but by the discretionary impulse of our own inclinations; nay, it is well known, that in every contested election, many members of this house, who are ultimately to judge in a kind of judicial capacity between the competitors, enlist themselves as parties in the contention, and take upon themselves the partial management of the very business, upon which they should determine with the strictest impartiality."

155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill which met with the approbation of both houses, and received the royal assent on the 12th of April, 1770. This was the celebrated law since known by the name of the Grenville Act; of which Mr. Hatsell declares, that it "was one of the nobles works, for the honor of the house of commons, and the security of the constitution, that was ever devised by any minister or statesman." It is probable, that the magnitude of the evil, or the apparent success of the remedy, may have led many of the contemporaries of the measure to the information of a judgement, which was not acquiesced in by some of the leading statesmen of the day, and has not been entirely confirmed by subsequent experience. The bill was objected to by Lord North, Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr. Dyson, who had been clerk of the house, and Mr. Charles James Fox, chiefly on the ground, that the introduction of the new system was an essential alteration of the constitution of parliament, and a total abrogation of one of the most important rights and jurisdictions of the house of commons.

As early as 1868, the House of Commons in England solved the problem of insuring the non-partisan settlement of the controverted elections of its members by abdicating its prerogative to two judges of the King's Bench of the High Court of Justice selected from a rota in accordance with rules of court made for the purpose. Having proved successful, the practice has become imbedded in English jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests which were originally heard by the Committee of the House of Commons, are since 1922 tried in the courts. Likewise, in the Commonwealth of Australia, election contests which were originally determined by each house, are since 1922 tried in the High Court. In Hungary, the organic law provides that all protests against the election of members of the Upper House of the Diet are to be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution of Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of Danzig of May 13, 1922 (art. 10) vest the authority to decide contested elections to the Diet or National Assembly in the Supreme Court. For the purpose of deciding legislative contests, the Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of the Czechoslovak Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of June 2, 1927 (art. 43), all provide for an Electoral Commission.

The creation of an Electoral Commission whose membership is recruited both from the legislature and the judiciary is by no means unknown in the United States. In the presidential elections of 1876 there was a dispute as to the number of electoral votes received by each of the two opposing candidates. As the Constitution made no adequate provision for such a contingency, Congress passed a law on January 29, 1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a special Electoral Commission composed of five members elected by the Senate, five members elected by the House of Representatives, and five justices of the Supreme Court, the fifth justice to be selected by the four designated in the Act. The decision of the commission was to be binding unless rejected by the two houses voting separately. Although there is not much of a moral lesson to be derived from the experience of America in this regard, judging from the observations of Justice Field, who was a member of that body on the part of the Supreme Court (Countryman, the Supreme Court of the United States and its Appellate Power under the Constitution [Albany, 1913] — Relentless Partisanship of Electoral Commission, p. 25 et seq.), the experiment has at least abiding historical interest.

The members of the Constitutional Convention who framed our fundamental law were in their majority men mature in years and experience. To be sure, many of them were familiar with the history and political development of other countries of the world. When , therefore, they deemed it wise to create an Electoral Commission as a constitutional organ and invested it with the exclusive function of passing upon and determining the election, returns and

qualifications of the members of the National Assembly, they must have done so not only in the light of their own experience but also having in view the experience of other enlightened peoples of the world. The creation of the Electoral Commission was designed to remedy certain evils of which the framers of our Constitution were cognizant. Notwithstanding the vigorous opposition of some members of the Convention to its creation, the plan, as hereinabove stated, was approved by that body by a vote of 98 against 58. All that can be said now is that, upon the approval of the constitutional the creation of the Electoral Commission is the expression of the wisdom and "ultimate justice of the people". (Abraham Lincoln, First Inaugural Address, March 4, 1861.)

From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer in its totality all the powers previously exercised by the legislature in matters pertaining to contested elections of its members, to an independent and impartial tribunal. It was not so much the knowledge and appreciation of contemporary constitutional precedents, however, as the long-felt need of determining legislative contests devoid of partisan considerations which prompted the people, acting through their delegates to the Convention, to provide for this body known as the Electoral Commission. With this end in view, a composite body in which both the majority and minority parties are equally represented to off-set partisan influence in its deliberations was created, and further endowed with judicial temper by including in its membership three justices of the Supreme Court.

The Electoral Commission is a constitutional creation, invested with the necessary authority in the performance and execution of the limited and specific function assigned to it by the Constitution. Although it is not a power in our tripartite scheme of government, it is, to all intents and purposes, when acting within the limits of its authority, an independent organ. It is, to be sure, closer to the legislative department than to any other. The location of the provision (section 4) creating the Electoral Commission under Article VI entitled "Legislative Department" of our Constitution is very indicative. Its compositions is also significant in that it is constituted by a majority of members of the legislature. But it is a body separate from and independent of the legislature.

The grant of power to the Electoral Commission to judge all contests relating to the election, returns and qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had remained originally in the legislature. The express lodging of that power in the Electoral Commission is an implied denial of the exercise of that power by the National Assembly. And this is as effective a restriction upon the legislative power as an express prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1; State vs.Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power claimed in behalf of the National Assembly that said body may regulate the proceedings of the Electoral Commission and cut off the power of the commission to lay down the period within which protests should be filed, the grant of power to the commission would be ineffective. The Electoral Commission in such case would be invested with the power to determine contested cases involving the election, returns and qualifications of the members of the National Assembly but subject at all times to the regulative power of the National Assembly. Not only would the purpose of the framers of our Constitution of totally transferring this authority from the legislative body be frustrated, but a dual authority would be created with the resultant inevitable clash of powers from time to time. A sad spectacle would then be presented of the Electoral Commission retaining the bare authority of taking cognizance of cases referred to, but in reality without the necessary means to render that authority effective whenever and whenever the National Assembly has chosen to act, a situation worse than that intended to be remedied by the framers of our Constitution. The power to regulate on the part of the National Assembly in procedural matters will inevitably lead to the ultimate control by the Assembly of the entire proceedings of the Electoral Commission, and, by indirection, to the entire abrogation of the constitutional grant. It is obvious that this result should not be permitted.

We are not insensible to the impassioned argument or the learned counsel for the petitioner regarding the importance and necessity of respecting the dignity and independence of the national Assembly as a coordinate department of the government and of according validity to its acts, to avoid what he characterized would be practically an unlimited power of the commission in the admission of protests against members of the National Assembly. But as we have pointed out hereinabove, the creation of the Electoral Commission carried with it ex necesitate rei the power regulative in character to limit the time with which protests intrusted to its cognizance should be filed. It is a settled rule of construction that where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred (Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any further constitutional provision relating to the procedure to be followed in filing protests before the Electoral Commission, therefore, the incidental power to promulgate such rules necessary for the proper exercise of its exclusive power to judge all contests relating to the election, returns and qualifications of members of the National Assembly, must be deemed by necessary implication to have been lodged also in the Electoral Commission.

It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may abuse its regulative authority by admitting protests beyond any reasonable time, to the disturbance of the tranquillity and peace of mind of the members of the National Assembly. But the possibility of abuse is not argument against the concession of the power as there is no power that is not susceptible of abuse. In the second place, if any mistake has been committed in the creation of an Electoral Commission and in investing it with exclusive jurisdiction in all cases relating to the election, returns, and qualifications of members of the National Assembly, the remedy is political, not judicial, and must be sought through the ordinary processes of democracy. All the possible abuses of the government are not intended to be corrected by the judiciary. We believe, however, that the people in creating the Electoral Commission reposed as much confidence in this body in the exclusive determination of the specified cases assigned to it, as they have given to the Supreme Court in the proper cases entrusted to it for decision. All the agencies of the government were designed by the Constitution to achieve specific purposes, and each constitutional organ working within its own particular sphere of discretionary action must be deemed to be animated with the same zeal and honesty in accomplishing the great ends for which they were created by the sovereign will. That the actuations of these constitutional agencies might leave much to be desired in given instances, is inherent in the perfection of human institutions. In the third place, from the fact that the Electoral Commission may not be interfered with in the exercise of its legitimate power, it does not follow that its acts, however illegal or unconstitutional, may not be challenge in appropriate cases over which the courts may exercise jurisdiction.

But independently of the legal and constitutional aspects of the present case, there are considerations of equitable character that should not be overlooked in the appreciation of the intrinsic merits of the controversy. The Commonwealth Government was inaugurated on November 15, 1935, on which date the Constitution, except as to the provisions mentioned in section 6 of Article XV thereof, went into effect. The new National Assembly convened on November 25th of that year, and the resolution confirming the election of the petitioner, Jose A. Angara was approved by that body on December 3, 1935. The protest by the herein respondent Pedro Ynsua against the election of the petitioner was filed on December 9 of the same year. The pleadings do not show when the Electoral Commission was formally organized but it does appear that on December 9, 1935, the Electoral Commission met for the first time and approved a resolution fixing said date as the last day for the filing of election protest. When, therefore, the National Assembly passed its resolution of December 3, 1935, confirming the election of the petitioner to the National Assembly, the Electoral Commission had not yet met; neither does it appear that said body had actually been organized. As a mater of fact, according to certified copies of official records on file in the archives division of the National Assembly attached to the record of this case upon the petition of the petitioner, the three justices of the Supreme Court

the six members of the National Assembly constituting the Electoral Commission were respectively designated only on December 4 and 6, 1935. If Resolution No. 8 of the National Assembly confirming non-protested elections of members of the National Assembly had the effect of limiting or tolling the time for the presentation of protests, the result would be that the National Assembly — on the hypothesis that it still retained the incidental power of regulation in such cases — had already barred the presentation of protests before the Electoral Commission had had time to organize itself and deliberate on the mode and method to be followed in a matter entrusted to its exclusive jurisdiction by the Constitution. This result was not and could not have been contemplated, and should be avoided.

From another angle, Resolution No. 8 of the National Assembly confirming the election of members against whom no protests had been filed at the time of its passage on December 3, 1935, can not be construed as a limitation upon the time for the initiation of election contests. While there might have been good reason for the legislative practice of confirmation of the election of members of the legislature at the time when the power to decide election contests was still lodged in the legislature, confirmation alone by the legislature cannot be construed as depriving the Electoral Commission of the authority incidental to its constitutional power to be "the sole judge of all contest relating to the election, returns, and qualifications of the members of the National Assembly", to fix the time for the filing of said election protests. Confirmation by the National Assembly of the returns of its members against whose election no protests have been filed is, to all legal purposes, unnecessary. As contended by the Electoral Commission in its resolution of January 23, 1936, overruling the motion of the herein petitioner to dismiss the protest filed by the respondent Pedro Ynsua, confirmation of the election of any member is not required by the Constitution before he can discharge his duties as such member. As a matter of fact, certification by the proper provincial board of canvassers is sufficient to entitle a member-elect to a seat in the national Assembly and to render him eligible to any office in said body (No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935).

Under the practice prevailing both in the English House of Commons and in the Congress of the United States, confirmation is neither necessary in order to entitle a member-elect to take his seat. The return of the proper election officers is sufficient, and the member-elect presenting such return begins to enjoy the privileges of a member from the time that he takes his oath of office (Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is in order only in cases of contested elections where the decision is adverse to the claims of the protestant. In England, the judges' decision or report in controverted elections is certified to the Speaker of the House of Commons, and the House, upon being informed of such certificate or report by the Speaker, is required to enter the same upon the Journals, and to give such directions for confirming or altering the return, or for the issue of a writ for a new election, or for carrying into execution the determination as circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the United States, it is believed, the order or decision of the particular house itself is generally regarded as sufficient, without any actual alternation or amendment of the return (Cushing, Law and Practice of Legislative Assemblies, 9th ed., sec. 166).

Under the practice prevailing when the Jones Law was still in force, each house of the Philippine Legislature fixed the time when protests against the election of any of its members should be filed. This was expressly authorized by section 18 of the Jones Law making each house the sole judge of the election, return and qualifications of its members, as well as by a law (sec. 478, Act No. 3387) empowering each house to respectively prescribe by resolution the time and manner of filing contest in the election of member of said bodies. As a matter of formality, after the time fixed by its rules for the filing of protests had already expired, each house passed a resolution confirming or approving the returns of such members against whose election no protests had been filed within the prescribed time. This was interpreted as cutting off the filing of further protests against the election of those members not theretofore contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature, Record — First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record — First Period, pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record — First Period, pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record — First Period, vol. III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the Jones Law. Act No. 3387, section 478, must be deemed to have been impliedly abrogated also, for the reason that with the power to determine all contest relating to the election, returns and qualifications of members of the National Assembly, is inseparably linked the authority to prescribe regulations for the exercise of that power. There was thus no law nor constitutional provisions which authorized the National Assembly to fix, as it is alleged to have fixed on December 3, 1935, the time for the filing of contests against the election of its members. And what the National Assembly could not do directly, it could not do by indirection through the medium of confirmation.

Summarizing, we conclude:

(a) That the government established by the Constitution follows fundamentally the theory of separation of power into the legislative, the executive and the judicial.

(b) That the system of checks and balances and the overlapping of functions and duties often makes difficult the delimitation of the powers granted.

(c) That in cases of conflict between the several departments and among the agencies thereof, the judiciary, with the Supreme Court as the final arbiter, is the only constitutional mechanism devised finally to resolve the conflict and allocate constitutional boundaries.

(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases and controversies, and is the power and duty to see that no one branch or agency of the government transcends the Constitution, which is the source of all authority.

(e) That the Electoral Commission is an independent constitutional creation with specific powers and functions to execute and perform, closer for purposes of classification to the legislative than to any of the other two departments of the governments.

(f ) That the Electoral Commission is the sole judge of all contests relating to the election, returns and qualifications of members of the National Assembly.

(g) That under the organic law prevailing before the present Constitution went into effect, each house of the legislature was respectively the sole judge of the elections, returns, and qualifications of their elective members.

(h) That the present Constitution has transferred all the powers previously exercised by the legislature with respect to contests relating to the elections, returns and qualifications of its members, to the Electoral Commission.

(i) That such transfer of power from the legislature to the Electoral Commission was full, clear and complete, and carried with it ex necesitate rei the implied power inter alia to prescribe the rules and regulations as to the time and manner of filing protests.

( j) That the avowed purpose in creating the Electoral Commission was to have an independent constitutional organ pass upon all contests relating to the election, returns and qualifications of members of the National Assembly, devoid of partisan influence or consideration, which object would be frustrated if the National Assembly were to retain the power to prescribe rules and regulations regarding the manner of conducting said contests.

(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones Law making each house of the Philippine Legislature respectively the sole judge of the elections, returns and qualifications of its elective members, but also section 478 of Act No. 3387 empowering each house to prescribe by resolution the time and manner of filing contests against the election of its members, the time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and to fix the costs and expenses of contest.

(l) That confirmation by the National Assembly of the election is contested or not, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly.

(m) That confirmation by the National Assembly of the election of any member against whom no protest had been filed prior to said confirmation, does not and cannot deprive the Electoral Commission of its incidental power to prescribe the time within which protests against the election of any member of the National Assembly should be filed.

We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its constitutional prerogative in assuming to take cognizance of the protest filed by the respondent Pedro Ynsua against the election of the herein petitioner Jose A. Angara, and that the resolution of the National Assembly of December 3, 1935 can not in any manner toll the time for filing protests against the elections, returns and qualifications of members of the National Assembly, nor prevent the filing of a protest within such time as the rules of the Electoral Commission might prescribe.

In view of the conclusion reached by us relative to the character of the Electoral Commission as a constitutional creation and as to the scope and extent of its authority under the facts of the present controversy, we deem it unnecessary to determine whether the Electoral Commission is an inferior tribunal, corporation, board or person within the purview of sections 226 and 516 of the Code of Civil Procedure.

The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs against the petitioner. So ordered.

Avanceña, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.

Separate Opinions

ABAD SANTOS, J., concurring:

I concur in the result and in most of the views so ably expressed in the preceding opinion. I am, however, constrained to withhold my assent to certain conclusions therein advanced.

The power vested in the Electoral Commission by the Constitution of judging of all contests relating to the election, returns, and qualifications of the members of the National Assembly, is judicial in nature. (Thomas vs. Loney, 134 U.S., 372; 33 Law. ed., 949, 951.) On the other hand, the power to regulate the time in which notice of a contested election may be given, is legislative in character. (M'Elmoyle vs. Cohen, 13 Pet., 312; 10 Law. ed., 177; Missouri vs. Illinois, 200 U. S. 496; 50 Law. ed., 572.)

It has been correctly stated that the government established by the Constitution follows fundamentally the theory of the separation of powers into legislative, executive, and judicial. Legislative power is vested in the National Assembly. (Article VI, sec. 1.) In the absence of any clear constitutional provision to the contrary, the power to regulate the time in which notice of a contested election may be given, must be deemed to be included in the grant of legislative power to the National Assembly.

The Constitution of the United States contains a provision similar to the that found in Article VI, section 4, of the Constitution of the Philippines. Article I, section 5, of the Constitution of the United States provides that each house of the Congress shall be the judge of the elections, returns, and qualifications of its own members. Notwithstanding this provision, the Congress has assumed the power to regulate the time in which notice of a contested election may be given. Thus section 201, Title 2, of the United States Code Annotated prescribes:

Whenever any person intends to contest an election of any Member of the House of Representatives of the United States, he shall, within thirty days after the result of such election shall have been determined by the officer or board of canvassers authorized by law to determine the same, give notice, in writing, to the Member whose seat he designs to contest, of his intention to contest the same, and, in such notice, shall specify particularly the grounds upon which he relies in the contest. (R. S., par. 105.)

The Philippine Autonomy Act, otherwise known as the Jones Law, also contained a provision to the effect that the Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns, and qualifications of their elective members. Notwithstanding this provision, the Philippine Legislature passed the Election Law, section 478 of which reads as follows:

The Senate and the House of Representatives shall by resolution respectively prescribe the time and manner of filing contest in the election of members of said bodies, the time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and shall fix the costs and expenses of contest which may be paid from their respective funds.

The purpose sought to be attained by the creation of the Electoral Commission was not to erect a body that would be above the law, but to raise legislative elections contests from the category of political to that of justiciable questions. The purpose was not to place the commission beyond the reach of the law, but to insure the determination of such contests with the due process of law.

Section 478 of the Election Law was in force at the time of the adoption of the Constitution, Article XV, section 2, of which provides that —

All laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this Constitution, until amended, altered, modified, or repealed by the National Assembly, and all references in such laws to the Government or officials of the Philippine Islands shall be construed, in so far as applicable, to refer to the Government and corresponding officials under this Constitution.

The manifest purpose of this constitutional provision was to insure the orderly processes of government, and to prevent any hiatus in its operations after the inauguration of the Commonwealth of the Philippines. It was thus provided that all laws of the Philippine Islands shall remain operative even after the inauguration of the Commonwealth of the Philippines, unless inconsistent with the Constitution, and that all references in such laws to the government or officials of the Philippine Islands shall be construed, in so far as applicable, to refer to the government and corresponding officials under the Constitution. It would seem to be consistent not only with the spirit but the letter of the Constitution to hold that section 478 of the Election Law remains operative and should now be construed to refer to the Electoral Commission, which, in so far as the power to judge election contests is concerned, corresponds to either the Senate or the House of Representative under the former regime. It is important to observe in this connection that said section 478 of the Election Law vested the power to regulate the time and manner in which notice of a contested election may be given, not in the Philippine Legislature but in the Senate and House of Representatives singly. In other words, the authority to prescribe the time and manner of filing contests in the elections of members of the Philippine Legislature was by statute lodged separately in the bodies clothed with power to decide such contests. Construing section 478 of the Election Law to refer to the National Assembly, as required by Article XV, section 2, of the Constitution, it seems reasonable to conclude that the authority to prescribe the time and manner of filing contests in the election of members of the National Assembly is vested in the Electoral Commission, which is now the body clothed with power to decide such contests.

In the light of what has been said, the resolution of the National Assembly of December 3, 1935, could not have the effect of barring the right of the respondent Pedro Ynsua to contest the election of the petitioner. By the same token, the Electoral Commission was authorized by law to adopt its resolution of December 9, 1935, which fixed the time with in which written contests must be filed with the commission.

Having been filed within the time fixed by its resolutions, the Electoral Commission has jurisdiction to hear and determine the contest filed by the respondent Pedro Ynsua against the petitioner Jose A. Angara.

Lambino Vs comelec

On 15 February 2006, the group of Raul Lambino and Erico Aumentado (“Lambino Group”) commenced gathering signatures for an initiative petition to

change the 1987 Constitution. On 25 August 2006, the Lambino Group filed a petition with the Commission on Elections (COMELEC) to hold a plebiscite

that will ratify their initiative petition under Section 5(b) and (c) and Section 7 of Republic Act No. 6735 or the Initiative and Referendum Act. The proposed

changes under the petition will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of government.

The Lambino Group claims that: (a) their petition had the support of 6,327,952 individuals constituting at least 12% of all registered voters, with each

legislative district represented by at least 3% of its registered voters; and (b) COMELEC election registrars had verified the signatures of the 6.3 million

individuals.

The COMELEC, however, denied due course to the petition for lack of an enabling law governing initiative petitions to amend the Constitution, pursuant

to the Supreme Court’s ruling in Santiago vs. Commission on Elections. The Lambino Group elevated the matter to the Supreme Court, which also

threw out the petition.

1. The initiative petition does not comply with Section 2, Article XVII of the Constitution on direct proposal by the people

Section 2, Article XVII of the Constitution is the governing provision that allows a people’s initiative to propose amendments to the Constitution.

While this provision does not expressly state that the petition must set forth the full text of the proposed amendments, the deliberations of the framers of

our Constitution clearly show that: (a) the framers intended to adopt the relevant American jurisprudence on peoples initiative; and (b) in particular, the

people must first see the full text of the proposed amendments before they sign, and that the people must sign on a petition containing such full text.

The essence of amendments “directly proposed by the people through initiative upon a petition” is that the entire proposal on its face is a petition by the

people. This means two essential elements must be present.

First, the people must author and thus sign the entire proposal. No agent or representative can sign on their behalf.

Second, as an initiative upon a petition, the proposal must be embodied in a petition.

These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their assent by signing

such complete proposal in a petition. The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so

attached, the petition must state the fact of such attachment. This is an assurance that every one of the several millions of signatories to the petition had

seen the full text of the proposed amendments before – not after – signing.

Moreover, “an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed” and failure to do so is

“deceptive and misleading” which renders the initiative void.

In the case of the Lambino Group’s petition, there’s not a single word, phrase, or sentence of text of the proposed changes in the signature sheet. Neither

does the signature sheet state that the text of the proposed changes is attached to it. The signature sheet merely asks a question whether the people

approve a shift from the Bicameral-Presidential to the Unicameral- Parliamentary system of government. The signature sheet does not show to the people

the draft of the proposed changes before they are asked to sign the signature sheet. This omission is fatal.

An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is most likely a

deception, and can operate as a gigantic fraud on the people. That’s why the Constitution requires that an initiative must be “directly proposed by the

people x x x in a petition” – meaning that the people must sign on a petition that contains the full text of the proposed amendments. On so vital an issue

as amending the nation’s fundamental law, the writing of the text of the proposed amendments cannot be hidden from the people under a general or

special power of attorney to unnamed, faceless, and unelected individuals.

2. The initiative violates Section 2, Article XVII of the Constitution disallowing revision through initiatives

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon three-fourths vote of all its

Members. The second mode is through a constitutional convention. The third mode is through a people’s initiative.

Section 1 of Article XVII, referring to the first and second modes, applies to “any amendment to, or revision of, this Constitution.” In contrast, Section 2 of

Article XVII, referring to the third mode, applies only to “amendments to this Constitution.” This distinction was intentional as shown by the deliberations

of the Constitutional Commission. A people’s initiative to change the Constitution applies only to an amendment of the Constitution and not to its

revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution.

Does the Lambino Group’s initiative constitute an amendment or revision of the Constitution? Yes. By any legal test and under any jurisdiction, a shift

from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving the abolition of the Office of the President and the abolition of one

chamber of Congress, is beyond doubt a revision, not a mere amendment.

Courts have long recognized the distinction between an amendment and a revision of a constitution. Revision broadly implies a change that alters a

basic principle in the constitution, like altering the principle of separation of powers or the system of checks-and-balances. There is also revision if the

change alters the substantial entirety of the constitution, as when the change affects substantial provisions of the constitution. On the other hand,

amendment broadly refers to a change that adds, reduces, or deletes without altering the basic principle involved. Revision generally affects several

provisions of the constitution, while amendment generally affects only the specific provision being amended.

Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the change may

generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18 years to 15 years is an amendment

and not a revision. Similarly, a change reducing Filipino ownership of mass media companies from 100% to 60% is an amendment and not a revision.

Also, a change requiring a college degree as an additional qualification for election to the Presidency is an amendment and not a revision.

The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific provision being amended.

These changes do not also affect the structure of government or the system of checks-and-balances among or within the three branches.

However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence of the Constitution

may be a revision and not an amendment. For example, the substitution of the word “republican” with “monarchic” or “theocratic” in Section 1, Article

II of the Constitution radically overhauls the entire structure of government and the fundamental ideological basis of the Constitution. Thus, each specific

change will have to be examined case-by-case, depending on how it affects other provisions, as well as how it affects the structure of government, the

carefully crafted system of checks-and-balances, and the underlying ideological basis of the existing Constitution.

Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded proceedings is best

suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered principles with those that remain

unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or constitutional conventions to undertake revisions.

On the other hand, constitutions allow people’s initiatives, which do not have fixed and identifiable deliberative bodies or recorded proceedings, to

undertake only amendments and not revisions.

In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts have developed a

two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed change is so extensive in its provisions as to

change directly the substantial entirety of the constitution by the deletion or alteration of numerous existing provisions. The court examines only the

number of provisions affected and does not consider the degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the change will

“accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision.†� Whether there is an alteration in

the structure of government is a proper subject of inquiry. Thus, “a change in the nature of [the] basic governmental plan� includes change in its

fundamental framework or the fundamental powers of its Branches. � A change in the nature of the basic governmental plan also includes changes that

jeopardize the traditional form of government and the system of check and balances. �

Under both the quantitative and qualitative tests, the Lambino Group initiative is a revision and not merely an amendment. Quantitatively, the Lambino

Group proposed changes overhaul two articles – Article VI on the Legislature andArticle VII on the Executive – affecting a total of 105 provisions in the

entire Constitution. Qualitatively, the proposed changes alter substantially the basic plan of government, from presidential to parliamentary, and from a

bicameral to a unicameral legislature.

A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government in the present

Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present Bicameral-Presidential system to a

Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and executive branches is a radical change in the structure of

government. The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus constitutes a

revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-balances within the legislature

and constitutes a revision of the Constitution.

The Lambino Group theorizes that the difference between “amendment†� and “revision� is only one of procedure, not of substance. The Lambino

Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are called “revisions†� because

members of the deliberative body work full-time on the changes. The same substantive changes, when proposed through an initiative, are called

“amendments†� because the changes are made by ordinary people who do not make an “occupation, profession, or vocation� out of such

endeavor. The SC, however, ruled that the express intent of the framers and the plain language of the Constitution contradict the Lambino Group’s

theory. Where the intent of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical

intent and language.

3. A revisit of Santiago vs. COMELEC is not necessary

The petition failed to comply with the basic requirements of Section 2, Article XVII of the Constitution on the conduct and scope of a peoples initiative to

amend the Constitution. There is, therefore, no need to revisit this Courts ruling in Santiago declaring RA 6735 incomplete, inadequate or wanting in

essential terms and conditions � to cover the system of initiative to amend the Constitution. An affirmation or reversal of Santiago will not change the

outcome of the present petition. It settled that courts will not pass upon the constitutionality of a statute if the case can be resolved on some other

grounds.

Even assuming that RA 6735 is valid, this will not change the result here because the present petition violates Section 2, Article XVII of the Constitution,

which provision must first be complied with even before complying with RA 6735. Worse, the petition violates the following provisions of RA 6735:

a. Section 5(b), requiring that the people must sign the petition as signatories. The 6.3 million signatories did not sign the petition or the amended petition

filed with the COMELEC. Only Attys. Lambino, Donato and Agra signed the petition and amended petition.

b. Section 10(a), providing that no petition embracing more than one subject shall be submitted to the electorate. The proposed Section 4(4) of the

Transitory Provisions, mandating the interim Parliament to propose further amendments or revisions to the Constitution, is a subject matter totally

unrelated to the shift in the form of government.

Lacson v. Perez, G.R. No. 147780, May 10, 2001

Facts: President Macapagal-Arroyo declared a State of Rebellion(Proclamation No. 38) on May 1, 2001 as well as General Order No. 1 ordering the AFP and the

PNP to suppress the rebellion in the NCR. Warrantless arrests of several alleged leaders and promoters of the “rebellion” were thereafter effected. Petitioner filed for

prohibition, injunction, mandamus and habeas corpus with an application for the issuance of temporary restraining order and/or writ of preliminary injunction.

Petitioners assail the declaration of Proc. No. 38 and the warrantless arrests allegedly effected by virtue thereof. Petitioners furthermore pray that the appropriate

court, wherein the information against them were filed, would desist arraignment and trial until this instant petition is resolved. They also contend that they are

allegedly faced with impending warrantless arrests and unlawful restraint being that hold departure orders were issued against them.

Issue: Whether or Not Proclamation No. 38 is valid, along with the warrantless arrests and hold departure orders allegedly effected by the same.

Held: President Macapagal-Arroyo ordered the lifting of Proc. No. 38 on May 6, 2006, accordingly the instant petition has been rendered moot and academic.

Respondents have declared that the Justice Department and the police authorities intend to obtain regular warrants of arrests from the courts for all acts committed

prior to and until May 1, 2001. Under Section 5, Rule 113 of the Rules of Court, authorities may only resort to warrantless arrests of persons suspected of rebellion in

suppressing the rebellion if the circumstances so warrant, thus the warrantless arrests are not based on Proc. No. 38. Petitioner’s prayer for mandamus and

prohibition is improper at this time because an individual warrantlessly arrested has adequateremedies in law: Rule 112 of the Rules of Court, providing for

preliminary investigation, Article 125 of the Revised Penal Code, providing for the period in which a warrantlessly arrested person must be delivered to the proper

judicial authorities, otherwise the officer responsible for such may be penalized for the delay of the same. If thedetention should have no legal ground, the arresting

officer can be charged with arbitrary detention, not prejudicial to claim of damages under Article 32 of the Civil Code. Petitioners were neither assailing the validity of

the subject hold departure orders, nor were they expressing any intention to leave the country in the near future. To declare the hold departure orders null and void

ab initio must be made in the proper proceedings initiated for that purpose. Petitioners’ prayer for relief regarding their alleged impending warrantless arrests is

premature being that no complaints have been filed against them for any crime, furthermore, the writ of habeas corpus is uncalled for since its purpose is to relieve

unlawful restraint which Petitioners are not subjected to.

Petition is dismissed. Respondents, consistent and congruent with their undertaking earlier adverted to, together with their agents, representatives, and all persons

acting in their behalf, are hereby enjoined from arresting Petitioners without the required judicial warrants for all acts committed in relation to or in connection with the

May 1, 2001 siege of Malacañang.

EN BANC

G.R. No. 147780 May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs.SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents.

----------------------------------------

G.R. No. 147781 May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner, vs.ANGELO REYES, Secretary of National Defense, ET AL., respondents.

----------------------------------------

G.R. No. 147799 May 10, 2001

RONALDO A. LUMBAO, petitioner, vs.SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents.

----------------------------------------

G.R. No. 147810 May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs.THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents.

R E S O L U T I O N

MELO, J.:

On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons" assaulting and attempting to break into Malacañang, issued Proclamation No. 38 declaring that there was a state of rebellion in the National Capital Region. She likewise issued General Order No. 1 directing the Armed Forces of the Philippines and the Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and promoters of the "rebellion" were thereafter effected.

Aggrieved by the warrantless arrests, and the declaration of a "state of rebellion," which allegedly gave a semblance of legality to the arrests, the following four related petitions were filed before the Court –

(1) G. R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an urgent application for the issuance of temporary restraining order and/or writ of preliminary injunction) filed by Panfilio M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2) G. R. No. 147781 for mandamus and/or review of the factual basis for the suspension of the privilege of the writ of habeas corpus, with prayer for the suspension of the privilege of the writ of habeas corpus, with prayer for a temporary restraining order filed by Miriam Defensor-Santiago; (3) G. R. No. 147799 for prohibition and injunction with prayer for a writ of preliminary injunction and/or restraining order filed by Ronaldo A. Lumbao; and (4) G. R. No. 147810 for certiorari and prohibition filed by the political partyLaban ng Demokratikong Pilipino.

All the foregoing petitions assail the declaration of a state of rebellion by President Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact and in law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of a "state of rebellion" in Metro Manila. Accordingly, the instant petitions have been rendered moot and academic. As to petitioners' claim that the proclamation of a "state of rebellion" is being used by the authorities to justify warrantless arrests, the Secretary of Justice denies that it has issued a particular order to arrest specific persons in connection with the "rebellion." He states that what is extant are general instructions to law enforcement officers and military agencies to implement Proclamation No. 38. Indeed, as stated in respondents' Joint Comments:

[I]t is already the declared intention of the Justice Department and police authorities to obtain regular warrants of arrests from the courts for all acts committed prior to and until May 1, 2001 which means that preliminary investigations will henceforth be conducted.

(Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No. 147799, p. 16; G.R. No. 147810, p. 24)

With this declaration, petitioners' apprehensions as to warrantless arrests should be laid to rest.

In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a "state of rebellion."

Moreover, petitioners' contention in G. R. No. 147780 (Lacson Petition), 147781 (Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being arrested without warrant do not justify their resort to the extraordinary remedies of mandamus and prohibition, since an individual subjected to warrantless arrest is not without adequate remedies in the ordinary course of law. Such an individual may ask for a preliminary investigation under Rule 112 of the Rules of Court, where he may adduce evidence in his defense, or he may submit himself to inquest proceedings to determine whether or not he should remain under custody and correspondingly be charged in court. Further, a person subject of a warrantless arrest must be delivered to the proper judicial authorities within the periods provided in Article 125 of the Revised Penal Code, otherwise the arresting officer could be held liable for delay in the delivery of detained persons. Should the detention be without legal ground, the person arrested can charge the arresting officer with arbitrary detention. All this is without prejudice to his filing an action for damages against the arresting officer under Article 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies which they can avail themselves of, thereby making the prayer for prohibition and mandamus improper at this time (Section 2 and 3, Rule 65, Rules of Court).1âwphi1.nêt

Aside from the foregoing reasons, several considerations likewise inevitably call for the dismissal of the petitions at bar.

G.R. No. 147780

In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino, and mancao pray that the "appropriate court before whom the informations against petitioners are filed be directed to desist from arraigning and proceeding with the trial of the case, until the instant petition is finally resolved." This relief is clearly premature considering that as of this date, no complaints or charges have been filed against any of the petitioners for any crime. And in the event that the same are later filed, this Court cannot enjoin criminal prosecution conducted in accordance with the Rules of Court, for by that time any arrest would have been in pursuant of a duly issued warrant.

As regards petitioners' prayer that the hold departure orders issued against them be declared null and void ab initio, it is to be noted that petitioners are not directly assailing the validity of the subject hold departure orders in their petition. They are not even expressing intention to leave the country in the near future. The prayer to set aside the same must be made in proper proceedings initiated for that purpose.

Anent petitioners' allegations ex abundante ad cautelam in support of their application for the issuance of a writ of habeas corpus, it is manifest that the writ is not called for since its purpose is to relieve petitioners from unlawful restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which remains speculative up to this very day.

G.R. No. 147781

The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus. It is basic in matters relating to petitions for mandamus that the legal right of the petitioner to the performance of a particular act which is sought to be compelled must be clear and complete. Mandamus will not issue unless the right to relief is clear at the time of the award (Palileo v. Ruiz Castro, 85 Phil. 272). Up to the present time, petitioner Defensor Santiago has not shown that she is in imminent danger of being arrested without a warrant. In point of fact, the authorities have categorically stated that petitioner will not be arrested without a warrant.

G.R. No. 147799

Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP), for his part, argues that the declaration of a "state of rebellion" is violative of the doctrine of separation of powers, being an encroachment on the domain of the judiciary which has the constitutional prerogative to "determine or interpret" what took place on May 1, 2001, and that the declaration of a state of rebellion cannot be an exception to the general rule on the allocation of the governmental powers.

We disagree. To be sure, Section 18, Article VII of the Constitution expressly provides that "[t]he President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion…" Thus, we held inIntegrated Bar of the Philippines v. Hon. Zamora, (G.R. No. 141284, August 15, 2000):

x x x The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof.

On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. x x x

(at pp.22-23)

The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of this power. However, this is no longer feasible at this time, Proclamation No. 38 having been lifted.

G.R. No. 147810

Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest. The rule requires that a party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision so as to warrant an invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers in his behalf (KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here, petitioner has not demonstrated any injury to itself which would justify resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders,

members, and supporters are being threatened with warrantless arrest and detention for the crime of rebellion. Every action must be brought in the name of the party whose legal right has been invaded or infringed, or whose legal right is under imminent threat of invasion or infringement.

At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that its right to freedom of expression and freedom of assembly is affected by the declaration of a "state of rebellion" and that said proclamation is invalid for being contrary to the Constitution.

However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not having jurisdiction in the first instance over such a petition. Section 5[1], Article VIII of the Constitution limits the original jurisdiction of the Court to cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in G.R. No. 147780, 147781, and 147799, respondents, consistent and congruent with their undertaking earlier adverted to, together with their agents, representatives, and all persons acting for and in their behalf, are hereby enjoined from arresting petitioners therein without the required judicial warrant for all acts committed in relation to or in connection with the may 1, 2001 siege of Malacañang.

SO ORDERED.

Defunis v. Odegaard, 416 U.S. 312 (1974)

Summary of DeFunis v. Odegaard, 416 U.S. 312, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974).Facts

Petitioner DeFunis, a white applicant to the University of Washington law school, sued the Board of Regents of the University of Washington in state court after he was denied admission. DeFunis alleged that the law school discriminated against applicants of certain races and ethnicities, including whites, by admitting minority applicants with significantly lower undergraduate grades and LSAT scores. DeFunis maintained that his rejection was predicated on racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment.

The District Court granted DeFunis injunctive relief and ordered the law school to admit him. When DeFunis was in his second year of law school, the Supreme Court of Washington reversed, holding that the admissions policy was not unconstitutional. The Supreme Court of the United States granted DeFunis’ petition for a writ of certiorari and stayed the judgment of the Supreme Court of Washington pending final disposition of the case.

The case came before the Supreme Court of the United States for a full hearing when DeFunis was in his final year of law school. Although the law school assured that it would allow DeFunis to graduate regardless of the Court’s decision, both parties contended that mootness did not exist to block formal adjudication of the matter.

Issue

Can a case be adjudicated when subject matter jurisdiction is lacking due to mootness, if adjudication of the suit would resolve an important social issue?Holding and Rule

No. When a federal court’s determination of a legal issue is no longer necessary to compel the result originally sought, the case is moot and federal courts

lack the power to hear it.

The constitutional basis of the mootness doctrine is found in Article III of the Constitution which requires the existence of a case or controversy. Thus, a real and live controversy must exist at every stage of review.

The court held that when the original controversy has disappeared prior to development of the suit, it is deemed moot and a trial must not proceed for lack of subject matter jurisdiction. That a matter deemed moot leaves an important social issue unresolved is of no consequence.

Dissent (Douglas)

Due to the social significance of the issue involved in this case, this matter should be adjudicated despite its apparent mootness.

Dissent (Brennan)

Because of the social significance of the issue involved in this case, failure to adjudicate this matter now will only result in a future duplication of the court effort.

See Brown v. Board of Education for a constitutional law case brief involving an issue of race based discrimination in which the Supreme Court held that segregation is unconstitutional for violating the Equal Protection Clause of the Fourteenth Amendment.

Acop vs guigona

FIRST DIVISION

[G.R. No. 134855. July 2, 2002]

CHIEF SUPT. ROMEO M. ACOP and SR. SUPT. FRANCISCO G. ZUBIA, JR., petitioners-appellants, v. HON. TEOFISTO T. GUINGONA, JR., in his capacity as Secretary of the Department of Justice, and SENIOR STATE PROSECUTOR JUDE ROMANO, in his capacity as the Director of the Government's

Witness Protection Program; SPO2 EDUARDO DELOS REYES and SPO2 CORAZON DELA CRUZ, respondents-appellees.

R E S O L U T I O N

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court filed by Chief Supt. Romeo M. Acop and Sr. Supt. Francisco G. Zubia seeking to reverse and set aside the Decision dated July 30, 1998 of the Regional Trial Court of Quezon City (Branch 89) which dismissed this petition for injunction.

The factual antecedents leading to the present petition are as follows:

On May 18, 1995, eleven (11) suspected members of the criminal group known as the Kuratong Baleleng gang were killed along Commonwealth Avenue in Quezon City in an alleged shootout with the Anti-Bank Robbery Intelligence Task Group of the Philippine National Police (PNP).

SPO2 Eduardo delos Reyes, a member of the Criminal Investigation Command (CIC) of the PNP and who was one of the officers assigned to conduct an investigation of the May 18, 1995 incident, made a public disclosure of his findings that there was no shootout and the eleven suspected members of the Kuratong Baleleng gang were instead summarily executed. SPO2 Corazon dela Cruz, also a member of the CIC, made the same statement corroborating the claim of SPO2 delos Reyes.

The Senate conducted hearings to determine the circumstances surrounding the subject incident. SPO2 delos Reyes and SPO2 dela Cruz testified before the Senate hearings. On June 2, 1995, former Senator Raul Roco, who was then the Chairman of the Senate Committee on Justice and Human Rights, recommended that SPO2 delos Reyes and SPO2 dela Cruz be admitted to the government's Witness Protection, Security and Benefit Program. Accordingly, SPO2 delos Reyes and SPO2 dela Cruz were admitted into the said Program.

On March 12, 1996, herein petitioners, in their capacity as taxpayers, but who are among the PNP officers implicated in the alleged rubout, filed before the court a quo a petition for injunction with prayer for temporary restraining order questioning the legality of the admission of SPO2 delos Reyes and SPO2 dela Cruz into the Program. Petitioners contend that under Section 3(d) of R.A. No. 6981, law enforcement officers, like SPO2 delos Reyes and SPO2 dela Cruz, are disqualified from being admitted into the witness protection program even though they may be testifying against other law enforcement officers.

On July 30, 1998, the trial court rendered the herein assailed decision.

Hence, the petition anchored on a sole assignment of error, to wit:

"THE COURT A QUO ERRED IN RULING THAT RESPONDENTS SPO2 EDUARDO DELOS REYES AND SPO2 CORAZON DELA CRUZ ARE QUALIFIED TO BE ADMITTED INTO THE WITNESS PROTECTION PROGRAM DESPITE THEIR CLEAR DISQUALIFICATION FROM THE PROGRAM UNDER SECTION 3(D) OF REPUBLIC ACT NO. 6981, OTHERWISE KNOWN AS THE 'WITNESS PROTECTION, SECURITY AND BENEFIT ACT'."

Petitioners pray that the decision of the RTC be reversed and set aside and instead -

"a) An Injunction be issued enjoining the Department of Justice from continuing to provide the benefits accruing under the Witness Protection Program to respondents SPO2 delos Reyes and SPO2 dela Cruz;

"b) Order the immediate discharge of respondents SPO2 delos Reyes and SPO2 dela Cruz from WPP and for the latter to be ordered to cease and desist from accepting the benefits of the WPP; and

"c) Order respondents SPO2 delos Reyes and SPO2 dela Cruz to return whatever monetary benefits they have received from the government as a consequence of their wrongful and illegal admission into the WPP."[1

In its Comment, the Office of the Solicitor General (OSG) claims that the petition lacks merit and that the same has been rendered moot and academic because the coverage of SPO2 delos Reyes and SPO2 dela Cruz under the Program was already terminated on December 3, 1997 and August 23, 1998, respectively, as evidenced by the letter of the Director of the Program addressed to the OSG, dated February 10, 1999.[2 In their comment, private respondents SPO2 delos Reyes and SPO2 dela Cruz agree with the OSG.

Indeed, prayers a) and b) above had been rendered moot and academic by reason of the release of SPO2 delos Reyes and SPO2 dela Cruz from the coverage of the Program. However, we find it necessary to resolve the merits of the principal issue raised for a proper disposition of prayer c) and for future guidance of both bench and bar as to the application of Sections 3(d) and 4 of R.A. No. 6981. As we have ruled in Alunan III vs. Mirasol,[3 and Viola vs. Alunan III,[4 "courts will decide a question otherwise moot and academic if it is 'capable of repetition, yet evading review.'"

Petitioners' main contention is that Section 3 of R.A. No. 6981 lays down the basic qualifications a person must possess in order to be admitted into the Program and that Section 4 of the same statute is not an exception to Section 3 but, it simply adds requirements for witnesses before they may become eligible for admission into the Program in case of legislative investigations.

We do not agree.

Section 3(d) provides:

Sec. 3. Admission into the Program. - Any person who has witnessed or has knowledge or information on the commission of a crime and has testified or is testifying or about to testify before any judicial or quasi-judicial body, or before any investigating authority, may be admitted into the Program: Provided, That:

x x x

(d) he is not a law enforcement officer, even if he would be testifying against the other law enforcement officers. In such a case, only the immediate members of his family may avail themselves of the protection provided for under this Act.

Section 4 provides:

Sec. 4. Witness in Legislative Investigations. - In case of legislative investigations in aid of legislation, a witness, with his express consent, may be admitted into the Program upon the recommendation of the legislative committee where his testimony is needed when in its judgment there is pressing necessity therefor: Provided, That such recommendation is approved by the President of the Senate or the Speaker of the House of Representatives, as the case may be.

A careful reading of Sections 3 and 4 readily shows that these are distinct and independent provisions. It is true that the proviso in Section 3(d) disqualifies law enforcement officers from being admitted into the Program when they "testify before any judicial or quasi-judicial body, or before any investigating authority." This is the general rule. However, Section 4 provides for a specific and separate situation where a witness testifies before a legislative investigation. An investigation by a legislative committee does not fall under the category of "any investigating authority" referred to in Section 3. Section 4 contains only a proviso that the witness' admission to the Program must be recommended by the legislative committee when in its judgment there is a pressing necessity therefor and said recommendation is approved by the President of the Senate or the Speaker of the House of Representatives, as the case may be. Section 4 does not contain any proviso similar to Sec. 3(d) as quoted above, nor does Section 4 refer to the application of the proviso under Section 3. In other words, Section 4 did not make any qualification or distinction.

It is basic under the law on statutory construction that where the law does not distinguish, courts should not distinguish.[5 The operation of a proviso is usually and properly confined to the clause or distinct portion of the enactment which immediately precedes it or to which it pertains, and does not extend to or qualify other sections or portions of the statute, unless the legislative intent that it shall so operate is clearly disclosed.[6

In the present case, it is clear that the legislative intent that the proviso under Section 3(d) of R.A. No. 6981 does not apply to Section 4. The trial court did not err in concluding that if the framers of the law intended otherwise, they could have easily placed the same proviso of Section 3(d) or referred to it under Section 4. Hence, in the absence of a clear proviso or reference to Section 3(d), a witness in a legislative investigation whether or not he is a law enforcement officer, may be admitted into the Program subject only to the requirements provided for under Section 4. It is not disputed that the Senate Committee on Justice and Human Rights, chaired by then Senator Raul Roco, had recommended the admission of SPO2 delos Reyes and dela Cruz into the Program and was duly indorsed by then Senate President Edgardo J. Angara.

WHEREFORE, we DENY DUE COURSE to the petition and AFFIRM the assailed decision.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Vitug, Kapunan, and Ynares-Santiago, JJ., concur.

Sanlakas vs exec

Facts: During the wee hours of July 27, 2003, some three-hundred junior officers and enlisted men of the AFP, acting upon instigation, command and direction of known and unknown leaders have seized the Oakwood Building in Makati. Publicly, they complained of the corruption in the AFP and declared their withdrawal of support for the government, demanding the resignation of the President, Secretary of Defense and the PNP Chief. These acts constitute a violation of Article134 of the Revised Penal Code, and by virtue of Proclamation No. 427 and General Order No. 4, the Philippines was declared under the State of Rebellion. Negotiations took place and the officers went back to their barracks in the evening of the same day. On August 1, 2003, both the Proclamation and General Orders were lifted, and Proclamation No. 435, declaring the Cessation of the State ofRebellion was issued.

In the interim, however, the following petitions were filed: (1) SANLAKAS AND PARTIDO NG MANGGAGAWA VS. EXECUTIVE SECRETARY, petitioners contending that Sec. 18 Article VII of theConstitution does not require the declaration of a state of rebellion to call out the AFP, and that there is no factual basis for such proclamation. (2)SJS Officers/Members v. Hon. Executive Secretary, et al, petitioners contending that the proclamation is a circumvention ofthe report requirement under the same Section 18, Article VII, commanding the President to submit a report to Congress within 48 hours from the proclamation of martial law. Finally, they contend that the presidential issuances cannot be construed as an exercise ofemergency powers as Congress has not delegated any such power to the President. (3) Rep. Suplico et al. v. President Macapagal-Arroyo and Executive Secretary Romulo, petitioners contending that there was usurpation of the power of Congress granted by Section 23 (2), ArticleVI of the Constitution. (4) Pimentel v. Romulo, et al, petitioner fears that the declaration of a state of rebellion "opens the door to the unconstitutional implementation of warrantless arrests" for the crime of rebellion.

Issues:

(1) Whether or Not Proclamation No. 427 and General Order No. 4 are constitutional?

(2) Whether or Not the petitioners have a legal standing or locus standi to bring suit?

Held: The Court rendered that the both the Proclamation No. 427 and General Order No. 4 are constitutional. Section 18, Article VII does not expressly prohibit declaring state or rebellion. The President in addition to its Commander-in-Chief Powers is conferred by theConstitution executive powers. It is not disputed that the President has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such power. While the Court may examine whether the power was exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of the petitioners here have, by way of proof, supported their assertion that the President acted without factual basis. The issue of the circumvention of the report is of no merit as there was no indication that military tribunals have replaced civil courts or that military authorities have taken over the functions of Civil Courts. The issue of usurpation of the legislative power of the Congress is of no moment since the President, in declaring a state ofrebellion and in calling out the armed forces, was merely exercising a wedding of her Chief Executive and Commander-in-Chief powers. These are purely executive powers, vested on the President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers contemplated by Section 23 (2), Article VI. The fear on warrantless arrest is unreasonable, since any person may be subject to this whether there is rebellion or not as this is a crime punishable under the Revised Penal Code, and as long as a valid warrantless arrest is present.

Legal standing or locus standi has been defined as a personal and substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist of the question of standing is whether a party alleges "such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens thepresentation of Issue upon which the court depends for illumination of difficult constitutional questions. Based on the foregoing, petitioners Sanlakas and PM, and SJS Officers/Members have no legal standing to sue. Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of Congress, have standing to challenge the subjectissuances. It sustained its decision in Philippine ConstitutionAssociation v. Enriquez, that the extent the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution.

Tanada vs tuvera

TAÑADA v. TUVERA [136 SCRA 27 (1985)]Nature: Petition to review the decision of the Executive Assistant to thePresident.Facts: Invoking the people’s right to be informed on matters of public concern, aright recognized in Section 6, Article IV of the 1973 constitution, petitionersseek a writ of mandamus to compel respondent public officials to publish, and/orcause the publication in the Official Gazette, of various presidential decrees,letters of instructions, general orders, proclamations, executive orders, letterof implementation and administrative orders. The respondents would have this casedismissed on the ground that petitioners have no legal

personality to bring thispetition. Petitioners maintain that since the subject of the petition concerns apublic right and its object is to compel public duty, they need not show anyspecific interest. Respondents further contend that publication in the OG is not asine qua non requirement for the effectivity of laws where the laws

themselvesprovide for their own effectivity dates.Issue: WON publication in the Official Gazatte is an indispensable requirement forthe effectivity of the PDs, LOIs, general orders, EOs, etc. where laws themselvesprovide for their own effectivity dates.Held: Yes. It is the people’s right to be informed on matters of public concern

&corollarily access to official records, & to documents & papers pertaining toofficial acts, transactions, or decisions, shall be afforded the citizens subjectto such limitation as may be provided by law (§6 AIV, 1973 Constitution). Laws, tobe valid & enforceable, must be published in the OG or otherwise effectivelypromulgated.

The fact that a PD or LOI states its date of effectivity does notpreclude their publication in the OG as they constitute important legislativeacts. The publication of presidential issuances “of public nature” or “of generalapplicability” is a requirement of due process. Before a person may be bound bylaw, he must first be officially informed of its contents.Judgment: Respondents ordered to publish in Official Gazette all unpublishedpresidential issuances of general application, and unless so

published shall haveno binding force and effect.Impt Point: It illustrates how decrees & issuances issued by one man—Marcos—are infact laws of gen’l application & provide for penalties. The constitution affordedMarcos both executive & legislative powers.The generality of law (CC A14) will never work w/o constructive notice. The rulingof this case provides the publication constitutes the necessary constructivenotice & is thus the cure for ignorance as an excuse.Ignorance will not even

mitigate the crime

TAÑADA VS. TUVERA136 SCRA 27 (April 24, 1985)

FACTS:

Invoking the right of the people to be informed on matters of public concern as well as the principle that laws to be valid and enforceable must be published in the Official Gazette, petitioners filed for writ of mandamus to compel respondent public officials to publish and/or cause to publish various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letters of implementations and administrative orders.

The Solicitor General, representing the respondents, moved for the dismissal of the case, contending that petitioners have no legal personality to bring the instant petition.

ISSUE:

Whether or not publication in the Official Gazette is required before any law or statute becomes valid and enforceable.

HELD:

Art. 2 of the Civil Code does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. The clear object of this provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim ignoratia legis nominem excusat. It would be the height of injustive to punish or otherwise burden a citizen for the transgression of a law which he had no notice whatsoever, not even a constructive one. The very first clause of Section 1 of CA 638 reads: there shall be published in the Official Gazette…. The word “shall” therein imposes upon respondent officials an imperative duty. That duty must be enforced if the constitutional right of the people to be informed on matter of public concern is to be given substance and validity.

The publication of presidential issuances of public nature or of general applicability is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. The Court declared that presidential issuances of general application which have not been published have no force and effect.

TAÑADA VS. TUVERA146 SCRA 446 (December 29, 1986)

FACTS:

This is a motion for reconsideration of the decision promulgated on April 24, 1985. Respondent argued that while publication was necessary as a rule, it was not so when it was “otherwise” as when the decrees themselves declared that they were to become effective immediately upon their approval.

ISSUES:

1. Whether or not a distinction be made between laws of general applicability and laws which are not as to their publication;

2. Whether or not a publication shall be made in publications of general circulation. HELD:

The clause “unless it is otherwise provided” refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective immediately upon approval, or in any other date, without its previous publication.

“Laws” should refer to all laws and not only to those of general application, for strictly speaking, all laws relate to the people in general albeit there are some that do not apply to them directly. A law without any bearing on the public would be invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the legislature. To be valid, the law must invariably affect the public interest eve if it might be directly applicable only to one individual, or some of the people only, and not to the public as a whole. All statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin 15 days after publication unless a different effectivity date is fixed by the legislature.

Publication must be in full or it is no publication at all, since its purpose is to inform the public of the content of the law.

Article 2 of the Civil Code provides that publication of laws must be made in the Official Gazette, and not elsewhere, as a requirement for their effectivity. The Supreme Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if it finds it impractical.

The publication must be made forthwith, or at least as soon as possible.

J. Cruz:

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people. The furtive law is like a scabbarded saber that cannot faint, parry or cut unless the naked blade is drawn.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-63915 April 24, 1985

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,

vs.HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders.

Specifically, the publication of the following presidential issuances is sought:

a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.

b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.

c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.

e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.

f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123.

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.

The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:

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

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show any specific interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case.

Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready access to the legislative records—no such publicity accompanies the law-making process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad. 5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects-with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or enforced by the government. InPesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect.

SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.

Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of publication in the Official Gazette for unpublished "presidential issuances" to have binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if made to apply adversely to a party who is not even aware of the existence of any legislative or executive act having the force and effect of law. My point is that such publication required need not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to do so

would in all cases and under all circumstances result in a statute, presidential decree or any other executive act of the same category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional question. Such a pronouncement would lend itself to the interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of their existence could have conducted themselves in accordance with their provisions. If no legal consequences could attach due to lack of publication in the Official Gazette, then serious problems could arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where such presidential decree or executive act is made the basis of a criminal prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the police power, the non-impairment clause of the Constitution may not always be successfully invoked. There must still be that process of balancing to determine whether or not it could in such a case be tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is essential to the effectivity of a legislative or executive act of a general application. I am not in agreement with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A later legislative or executive act which has the force and effect of law can legally provide for a different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and executive acts not thus previously published in the Official Gazette would be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of equal application to all similarly circumstances and not subject to arbitrary change but only under certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that a reasonable opportunity to be informed must be afforded to the people who are commanded to obey before they can be punished for its violation, 1 citing the settled principle based on due process enunciated in earlier cases that "before the public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the people officially and specially informed of said contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the public and official repository where they are duly published) that "Ignorance of the law excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been duly published pursuant to the basic constitutional requirements of due process. The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its publication which is the period generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be published. What I would like to state in connection with that proposition is that when a date of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of laws in the Official Gazetterequired by any statute as a prerequisite for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the Official Gazette, among them, "important legislative acts and resolutions of a public nature of the Congress of the Philippines" and "all executive and administrative orders and proclamations, except such as have no general applicability." It is noteworthy that not all legislative acts are required to be published in the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. A law, especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is the Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or general applicability ineffective, until due publication thereof.

Separate Opinions

FERNANDO, C.J., concurring (with qualification):

There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of publication in the Official Gazette for unpublished "presidential issuances" to have binding force and effect.

I shall explain why.

1. It is of course true that without the requisite publication, a due process question would arise if made to apply adversely to a party who is not even aware of the existence of any legislative or executive act having the force and effect of law. My point is that such publication required need not be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and under all circumstances result in a statute, presidential decree or any other executive act of the same category being bereft of any binding

force and effect. To so hold would, for me, raise a constitutional question. Such a pronouncement would lend itself to the interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what is required for any statute or presidential act to be impressed with binding force or effectivity.

2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. 1 I am likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette. 2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure once published therein there is the ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of past presidential decrees or executive acts not so published. For prior thereto, it could be that parties aware of their existence could have conducted themselves in accordance with their provisions. If no legal consequences could attach due to lack of publication in the Official Gazette, then serious problems could arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where such presidential decree or executive act is made the basis of a criminal prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though, retroactivity as such is not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the police power, the non-impairment clause of the Constitution may not always be successfully invoked. There must still be that process of balancing to determine whether or not it could in such a case be tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional application. That is as far as it goes.

4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is essential to the effectivity of a legislative or executive act of a general application. I am not in agreement with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A later legislative or executive act which has the force and effect of law can legally provide for a different rule.

5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential decrees and executive acts not thus previously published in the Official Gazette would be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement.

I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate opinion.

Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of equal application to all similarly circumstances and not subject to arbitrary change but only under certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play and justice that a reasonable opportunity to be informed must be afforded to the people who are commanded to obey before they can be punished for its violation, 1 citing the settled principle based on due process enunciated in earlier cases that "before the public is bound by its contents, especially its penal provisions, a law, regulation or circular must first be published and the people officially and specially informed of said contents and its penalties.

Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the public and official repository where they are duly published) that "Ignorance of the law excuses no one from compliance therewith.

Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a law that has been duly published pursuant to the basic constitutional requirements of due process. The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect [only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading that "most laws or decrees specify the date of their effectivity and for this reason, publication in the Official Gazette is not necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable and essential requirement of prior publication in the Official Gazette by the simple expedient of providing for immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days following its publication which is the period generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to be published. What I would like to state in connection with that proposition is that when a date of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of laws in the Official Gazetterequired by any statute as a prerequisite for their effectivity, if said laws already provide for their effectivity date.

Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published elsewhere than in the Official Gazette.

Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the Official Gazette, among them, "important legislative acts and resolutions of a public nature of the Congress of the Philippines" and "all executive and administrative orders and proclamations, except such as have no general applicability." It is noteworthy that not all legislative acts are required to be published in the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal and stand on the same footing. A law, especially an earlier one of general application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is the Constitution, can assume that role.

In fine, I concur in the majority decision to the extent that it requires notice before laws become effective, for no person should be bound by a law without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette.

Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication being in the Official Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or general applicability ineffective, until due publication thereof.

Footnotes

1 Section 6. The right of the people to information on matters of public concern shag be recognized, access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, shag be afforded the citizens subject to such limitation as may be provided by law.

2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aidanese, 45 Phil. 345; Almario vs. City Mayor, 16 SCRA 151;Parting vs. San Jose Petroleum, 18 SCRA 924; Dumlao vs. Comelec, 95 SCRA 392.

3 16 Phil. 366, 378.

4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81 Phil. 486; Republic of the Philippines vs. Encamacion, 87 Phil. 843; Philippine Blooming Mills, Inc. vs. Social Security System, 17 SCRA 1077; Askay vs. Cosalan, 46 Phil. 179.

5 1 Manresa, Codigo Civil 7th Ed., p. 146.

6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of Education, et al., 110 Phil. 150.

7 82 SCRA 30, dissenting opinion.

8 308 U.S. 371, 374.

9 93 Phil.. 68,.

10 The report was prepared by the Clerk of Court after Acting Director Florendo S. Pablo Jr. of the Government Printing Office, failed to respond to her letter-request regarding the respective dates of publication in the Official Gazette of the presidential issuances listed therein. No report has been submitted by the Clerk of Court as to the publication or non-publication of other presidential issuances.

11 129 SCRA 174.

Fernando, CJ.:

1 Separate Opinion of Justice Plana, first paragraph. He mentioned in tills connection Article 7, Sec. 21 of the Wisconsin Constitution and State ex rel. White v. Grand Superior Ct., 71 ALR 1354, citing the Constitution of Indiana, U.S.A

2 Ibid, closing paragraph.

3 Learned Hand, The Spirit of Liberty 104 (1960).

4 Cardozo, The Growth of the Law, 3 (1924).

5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111 SCRA 433.

6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172.

Teehankee, J.:

1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late Chief Justice Paras.

2 Notes in brackets supplied.

3 Respondents: comment, pp. 14-15.

Plana, J.:

* See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall provide publication of all statute laws ... and no general law shall be in force until published." See also S ate ex rel. White vs. Grand Superior Ct., 71 ALR 1354, citing Constitution of Indiana, U.S.A.

 D E C I S I O N

 

CORONA, J.:

 

 

        In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Vivencio V. Jumamil seeks to

reverse the decision of the Court of Appeals dated July 24, 2000 [1] in CA-G.R. CV No. 35082, the dispositive portion of

which read:

 

        With the foregoing, the assailed Decision of Branch 4, Regional Trial Court of Panabo Davao dated 26 November 1990 in Sp. Civil Action No. 89-1 is hereby AFFIRMED.[2]

 

The Regional Trial Court dismissed petitioner’s petition for declaratory relief with prayer for preliminary injunction and

writ of restraining order, and ordered the petitioner to pay attorney’s fees in the amount of P1,000 to each of the 57

private respondents.[3] 

 

The factual antecedents follow.

 

In 1989, petitioner Jumamil[4] filed before the Regional Trial Court (RTC) of Panabo, Davao del Norte a petition

for declaratory relief with prayer for preliminary injunction and writ of restraining order against public respondents

Mayor Jose J. Cafe and the members of the Sangguniang Bayan of Panabo, Davao del Norte.  He questioned the

constitutionality of  Municipal  Resolution  No. 7,  Series  of  1989  (Resolution No. 7).

 

Resolution  No. 7,  enacting  Appropriation  Ordinance  No. 111, provided for an initial appropriation

of P765,000 for the construction of stalls around a proposed terminal fronting the Panabo Public Market [5] which was

destroyed by fire. 

 

Subsequently, the petition was amended due to the passage of Resolution No. 49, series of 1989 (Resolution

No. 49), denominated as Ordinance No. 10, appropriating a further amount of P1,515,000 for the construction of

additional stalls in the same public market.[6]  

 

Prior to the passage of these resolutions, respondent Mayor Cafe had already entered into contracts with those

who advanced and deposited (with the municipal treasurer) from their personal funds the sum of P40,000 each.  Some

of the parties were close friends and/or relatives of the public respondents. [7] The construction of the stalls which

petitioner sought to stop through the preliminary injunction in the RTC was nevertheless finished, rendering the prayer

therefor moot and academic. The leases of the stalls were then awarded by public raffle which, however, was limited

to those who had deposited P40,000 each.[8] Thus, the petition was amended anew to include the 57 awardees of the

stalls as private respondents.[9] 

 

        Petitioner alleges that Resolution Nos. 7 and 49 were unconstitutional because they were:

 

…passed for the business, occupation, enjoyment and benefit of private respondents who deposited the amount of P40,000.00 for each stall, and with whom also the mayor had a prior contract to award the would be constructed stalls to all private respondents.… As admitted by public respondents some of the private respondents are close friends and/or relatives of some of the public respondents which makes the questioned acts discriminatory.   The questioned resolutions and ordinances did not provide for any notice of publication that the special privilege and unwarranted benefits conferred on the private respondents maybe (sic) availed of by anybody who can deposit the amount of P40,000.00.[10]

 

Neither was there any prior notice or publication pertaining to contracts entered into by public and private respondents for the construction of stalls to be awarded to private respondents that the same can be availed of by anybody willing to deposit P40,000.00.[11]

 

 

In this petition, petitioner prays for the reversal of the decision of the Court of Appeals (CA) and a declaration

of the unconstitutionality, illegality and nullity of the questioned resolutions/ordinances and lease contracts entered

into by the public and private respondents;  for the declaration of the illegality of the award of the stalls during the

pendency of this action and for the re-raffling and award of the stalls in a manner that is fair and just to all interested

applicants;[12] for the issuance of an order to the local government to admit any and all interested persons who can

deposit the amount of P40,000 for a stall and to order a re-raffling for the award of the stalls to the winners of the re-

raffle; for the nullification of the award of attorney’s fees to private respondents on the ground that it was erroneous

and unmeritorious; and for the award of damages in favor of petitioner in the form of attorney’s fees.[13]

 

At the outset, we must point out that the issue of the constitutionality of the questioned resolutions was never

ruled upon by both the RTC and the CA.

 

        It appears that on May 21, 1990, both parties agreed [14] to await the decision in CA G.R. SP No. 20424, [15] which

involved similar facts, issues and parties.  The RTC, consequently, deferred the resolution of the pending petition.  The

appellate court eventually rendered its decision in that case finding that the petitioners were not entitled to the

declaratory relief prayed for as they had no legal interest in the controversy.  Upon elevation to the Supreme Court as

UDK Case No. 9948, the petition for review on certiorari was denied for being insufficient in form and substance.  [16]

 

The RTC, after receipt of the entry of the SC judgment,[17] dismissed the pending petition on November 26,

1990.  It adopted the ruling in CA G.R. SP No. 20424:   

x x x                 x x x                 x x x

 

            We find petitioners’ aforesaid submission utterly devoid of merit.  It is, to say the least, questionable whether or not a special civil action for declaratory relief can be filed in relation to a contract by persons who are not parties thereto.  Under Sec. 1 of Rule 64 of the Rules of Court, any person interested under a deed, will, contract, or other written instruments may bring an action to determine any question of the contract, or validly arising under the instrument for a declaratory (sic) of his rights or duties thereunder.  Since contracts take effect only between the parties (Art. 1311) it is quite plain that one who is not a party to a contract can not have the interest in it that the rule requires as a basis for declaratory reliefs  (PLUM vs. Santos, 45 SCRA 147).

 

            Following this ruling, the petitioners were not parties in the agreement for the award of the market stalls by the public respondents, in the public market of Panabo, Davao, and since the petitioners were not parties to the award of the market stalls and whose rights are never affected by merely stating that they are taxpayers, they have no legal interest in the controversy and they are not, therefore, entitled to bring an action for declaratory relief. [18]

 

WHEREFORE, the petition of the petitioners as taxpayers being without merit and not in consonance with law, is hereby ordered DISMISSED.

 As to the counterclaim for damages, the same not having been actually and fully proven, the Court gives no

award as to the same.  It is not amiss to state here that the petitioners agreed to be bound by the outcome of Special Civil Case No. 89-10. 

 However, for unnecessarily dragging into Court the fifty-seven (57) private respondents who are bonafide

businessmen and stall holders in the public market of Panabo, it is fitting and proper for the petitioners to be ordered payment of attorney’s fees.

 Accordingly, the herein petitioners are ordered to pay ONE THOUSAND (P1,000.00) PESOS EACH to the

57 private respondents, as attorney’s fees, jointly and severally, and for them to pay the costs of this suit. SO ORDERED.[19]

 

From this adverse decision, petitioner again appealed to the Court of Appeals in CA-G.R. CV No. 35082 which is

now before us for review.

 

The appellate court, yet again, affirmed the RTC decision and held that:

 

Res judicata does not set in a case dismissed for lack of capacity to sue, because there has been no determination on the merits.  Neither does the law of the case apply.  However, the court a quo took judicial notice of the fact that petitioners agreed to be bound by the outcome of Special Civil Case No. 89-10.  Allegans contraria non est audiendus.  (He is not to be heard who alleges things contradictory to each other.)  It must be here observed that petitioners-appellants were the ones who manifested that it would be practical to await the decision of the Supreme Court in their petition for certiorari, for after all the facts, circumstances and issues in that case, are exactly the same as in the case that is here appealed.  Granting that they may evade such assumption, a careful evaluation of the case

would lead Us to the same conclusion: that the case for declaratory relief is dismissible.   As enumerated by Justice Regalado in his “Remedial Law Compendium”, the requisites of an action for declaratory relief are:

 

(a)      The subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order or regulation, or ordinance;

 

(b)      The terms of said documents and the validity thereof are doubtful and require judicial construction;

 

(c)       There must have been no breach of the documents in question;

 

(d)      There must be an actual justiciable controversy or the “ripening seeds” of one between persons whose interests are adverse;

 

(e)      The issue must be ripe for judicial determination; and

 

(f)         Adequate relief is not available through other means or other forms of action or proceeding.

 

In Tolentino vs. Board of Accountancy, et al, 90 Phil. 83, 88, the Supreme Court ratiocinated the requisites of justiciability of an action for declaratory relief by saying that the court must be “satisfied that an actual controversy, or the ripening seeds of one, exists between parties, all of whom are sui juris and before the court, and that the declaration sought will be a practical help in ending the controversy.”

 

The petition must show “an active antagonistic assertion of a legal right on one side and a denial thereof on the other concerning a real, and not a mere theoretical question or issue.  The question is whether the facts alleged a substantial controversy between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory relief.  In GSISEA and GSISSU vs. Hon. Alvendia etc. and GSIS, 108 Phil. 505, the Supreme Court ruled a declaratory relief improper or unnecessary when it appears to be a moot case, since it seeks to get a judgment on a pretended controversy, when in reality there is none. In Kawasaki Port Service Corporation vs. Amores, 199 SCRA 230, citing Dy Poco vs. Commissioner of Immigration, et al., 16 SCRA 618, the rule was stated: “where a declaratory judgment as to a disputed fact would be determinative of issues rather than a construction of definite stated rights, statuses and other relations, commonly expressed in a written instrument, the case is not one for declaratory judgment.”

 

Indeed, in its true light, the present petition for declaratory relief seems to be no more than a request for an advisory opinion to which courts in this and other jurisdiction have cast a definite aversion. The ordinances being assailed are appropriation ordinances. The passage of the ordinances were pursuant to the public purpose of constructing market stalls. For the exercise of judicial review, the governmental act being challenged must have had an adverse effect on the person challenging it, and the person challenging the act, must have “standing” to challenge, i.e., in the categorical and succinct language of Justice Laurel, he must have a “personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement.” Standing is a special concern in constitutional law because in some cases suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence the question in standing is whether such parties have “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court largely depends for illumination of difficult constitutional questions.

 

A careful analysis of the records of the case at bar would disclose that petitioners-appellants have suffered no wrong under the terms of the ordinances being assailed – and, naturally need no relief in the form they now seek to obtain.  Judicial exercise cannot be exercised in vacuo.  The policy of the courts is to avoid ruling on a constitutional question and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary.  To doubt is to sustain.  The issue is not the ordinances themselves, but the award of the market stalls to the private respondents on the strength of the contracts individually executed by them with Mayor Cafe.  To reiterate, a person who is not a party to a contract cannot file a petition for declaratory relief and seek judicial interpretation of such contract (Atlas Consolidated Mining Corp. vs. Court of Appeals, 182 SCRA 166).  Not having established their locus standi, we see no error committed by the court a quo warranting reversal of the appealed decision.

 

With the foregoing, the assailed Decision of Branch 4, Regional Trial Court of Panabo Davao dated 26 November 1990 in Sp. Civil Action No. 89-1 is hereby AFFIRMED.

 

SO ORDERED.[20]

 

Thus, both the RTC and the CA dismissed the case on the ground of petitioner’s lack of legal standing and

the parties’ agreement to be bound by the decision in CA G.R. SP. No. 20424.

The issues to be resolved are the following: 

(1)   whether the parties were bound by the outcome in CA G.R. SP. No. 20424;

(2)   whether petitioner had the legal standing to bring the petition for declaratory relief;

(3) whether Resolution Nos. 7 and 49 were unconstitutional; and 

(4)   whether  petitioner   should   be   held   liable  for  damages. 

LOCUS   STANDI   AND  THE

CONSTITUTIONALITY ISSUE

 

We will first consider the second issue. The petition for declaratory relief challenged the constitutionality of

the subject resolutions. There is an unbending rule that courts will not assume jurisdiction over a constitutional

question unless the following requisites are satisfied: (1) there must be an actual case calling for the exercise of

judicial review; (2) the question before the Court must be ripe for adjudication;  (3)  the  person  challenging  the 

validity  of  the act must have standing to do so; (4) the question of constitutionality must have been raised at the

earliest opportunity,  and (5) the issue of constitutionality must be the very lis motaof the case.[21]

Legal standing or locus standi is a party’s personal and substantial interest in a case such that he has

sustained or will sustain direct injury as a result of the governmental act being challenged.   It calls for more than just a

generalized grievance. The term “interest” means a material interest, an interest in issue affected by the decree, as

distinguished from mere interest in the question involved, or a mere incidental interest.[22] Unless a person’s

constitutional rights are adversely affected by the statute or ordinance, he has no legal standing.

 

The CA held that petitioner had no standing to challenge the two resolutions/ordinances because he

suffered no wrong under their terms.  It also concluded that “the issue (was) not the ordinances themselves but

the award of the market stalls to the private respondents on the strength of the contracts individually executed by

them with Mayor Cafe.”  Consequently, it ruled that petitioner, who was not a party to the lease contracts, had no

standing to file the petition for declaratory relief and seek judicial interpretation of the agreements. 

We do not agree.  Petitioner brought the petition in his capacity as taxpayer of the Municipality of Panabo,

Davao del Norte[23]and not in his personal capacity.  He was questioning the official acts of the public respondents in

passing the ordinances and entering into the lease contracts with private respondents.  A taxpayer need not be a party

to the contract to challenge its validity.[24] Atlas Consolidated Mining & Development Corporation v. Court of

Appeals[25] cited by the CA does not apply because it involved contracts between two private parties.

 

Parties suing as taxpayers must specifically prove sufficient  interest   in   preventing  the  illegal  expenditure 

of

money raised by taxation.[26]  The expenditure of public funds by an officer of the State for the purpose of executing an

unconstitutional   act   constitutes   a  misapplication  of  such

 

funds.[27] The resolutions being assailed were appropriations ordinances. Petitioner alleged that these ordinances were

“passed for the business, occupation, enjoyment and benefit of private respondents” [28] (that is, allegedly for the

private benefit of respondents) because even before they were passed, respondent Mayor Cafe and private

respondents had already entered into lease contracts for the construction and award of the market stalls. [29] Private

respondents admitted they deposited P40,000 each with the municipal treasurer, which amounts were made available

to the municipality during the construction of the stalls. The deposits, however, were needed to ensure the speedy

completion of the stalls after the public market was gutted by a series of fires. [30]  Thus, the award of the stalls was

necessarily limited only to those who advanced their personal funds for their construction.[31]

 

Petitioner did not seasonably allege his interest in preventing the illegal expenditure of public funds or the

specific injury to him as a result of the enforcement of the questioned resolutions and contracts.  It was only in the

“Remark to Comment” he filed in this Court did he first assert that “he (was) willing to engage in business and (was)

interested to occupy a market stall.”[32]  Such claim was obviously an afterthought.

 

Be that as it may, we have on several occasions relaxed the application of these rules on legal standing:

 

In not a few cases, the Court has liberalized the locus standi requirement when a petition raises an issue of transcendental significance or paramount importance to the people.  Recently, after holding that the IBP had no locus standi to bring the suit, the Court in IBP v. Zamora nevertheless entertained the Petition therein. It noted that "the IBP has advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight as precedents."[33]

 

― o O o ―

 

Objections to a taxpayer's suit for lack of sufficient personality, standing or interest are procedural matters. Considering the importance to the public of a suit assailing the constitutionality of a tax law, and in keeping with the Court's duty, specially explicated in the 1987 Constitution, to determine whether or not the other branches of the Government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Supreme Court may brush aside technicalities of procedure and take cognizance of the suit.[34]

                                  ― o O o ―

 

There being no doctrinal definition of transcendental importance, the following determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of any other party with a more direct and specific interest in raising the questions being raised.[35]

 

 

But, even if we disregard petitioner’s lack of legal standing, this petition must still fail. The subject

resolutions/ordinances appropriated a total of P2,280,000 for the construction of the public market stalls. Petitioner

alleges that these ordinances were discriminatory because, even prior to their enactment, a decision had already been

made to award the market stalls to the private respondents who deposited P40,000 each and who were either friends

or relatives of the public respondents. Petitioner asserts that “there (was) no publication or invitation to the public that

this contract (was) available to all who (were) interested to own a stall and (were) willing to

deposit P40,000.”[36] Respondents, however, counter that the “public respondents’ act of entering into this agreement

was authorized by the Sangguniang Bayan of Panabo per Resolution No. 180 dated October 10, 1988” [37] and that “all

the people interested were invited to participate in investing their savings.”[38] 

 

We note that the foregoing was a disputed fact which the courts below did not resolve because the case was

dismissed on the basis of petitioner’s lack of legal standing. Nevertheless, petitioner failed to prove the subject

ordinances and agreements to be discriminatory. Considering that he was asking this Court to nullify the acts of the

local political department of Panabo, Davao del Norte, he should have clearly established that such ordinances

operated unfairly against those who were not notified and who were thus not given the opportunity to make their

deposits. His unsubstantiated allegation that the public was not notified did not suffice.  Furthermore, there was the

time-honored presumption of regularity of official duty, absent any showing to the contrary. [39]  And this is not to

mention that:

 

The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the political departments are valid, absent a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers. This means that the measure had first been carefully studied by the legislative and executive departments and found to be in accord with the Constitution before it was finally enacted and approved.[40]

 

 

Therefore,  since   petitioner   had   no   locus   standi   to

question the ordinances, there is no need for us to discuss the constitutionality of said enactments.

 

WERE THE PARTIES BOUND BY THE

OUTCOME IN CA G.R. SP. NO. 20424?

 

 

 Adverting to the first issue, we observe that petitioner was the one who wanted the parties to await the

decision of the Supreme Court in UDK Case No. 9948 since the facts and issues in that case were similar to this.  

Petitioner, having expressly agreed to be bound by our decision in the aforementioned case, should be reined in by the

dismissal order we issued, now final and executory.  In addition to the fact that nothing prohibits parties from

committing to be bound by the results of another case,  courts may take judicial notice of a judgment in another case

as long as the parties give

 

 

their consent or do not object.[41]  As opined by Justice Edgardo L. Paras:

 

A court will take judicial notice of its own acts and records in the same case, of facts established in prior proceedings in the same case, of the authenticity of its own records of another case between the same parties, of the files of related cases in the same court, and of public records on file in the same court. In addition, judicial notice will be taken of the record, pleadings or judgment of a case in another court between the same parties or involving one of the same parties, as well as of the record of another case between different parties in the same court. [42]

 

DAMAGES

       

        Finally, on the issue of damages, petitioner asserts that he impleaded the 57 respondents in good faith since the

award of the stalls to them was made during the pendency of the action. [43] Private respondents refute this assertion

and argue that petitioner filed this action in bad faith and with the intention of harassing them inasmuch as he had

already filed CA G.R. SP. No. 20424 even before then. [44]  The RTC, affirmed by the CA, held that petitioner should pay

attorney’s fees “for unnecessarily dragging into Court the 57 private respondents who (were) bonafide businessmen

and stall holders in the public market of Panabo.”[45] 

 

We do not agree that petitioner should be held liable for damages.  It is not sound public policy to put a

premium on the right to litigate where such right is exercised in good faith, albeit erroneously. [46]  The alleged bad faith

of petitioner was never established.  The special circumstances in Article 2208 of the Civil Code justifying the award of

attorney’s fees are not present in this case.

 

WHEREFORE, the decision of the Court of Appeals in CA-G.R. CV No. 35082 is hereby AFFIRMED with

the MODIFICATIONthat the award of attorney's fees to private respondents is deleted.

 

Costs against petitioner.

 

SO ORDERED.

 

 

RENATO C. CORONAAssociate Justice

 

W E  C O N C U R:

 

 

ARTEMIO V. PANGANIBAN

Associate Justice

Chairman

 

 

 

ANGELINA SANDOVAL-GUTIERREZAssociate Justice

    CONCHITA CARPIO MORALESAssociate Justice

 

 

 

CANCIO C. GARCIA

Associate Justice

 

A T T E S T A T I O N

 

        I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

ARTEMIO V. PANGANIBANAssociate Justice

Chairman, Third Division

 

C E R T I F I C A T I O N

 

        Pursuant to Article VIII, Section 13 of the Constitution and the Division Chairman’s Attestation, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

 

 

 

HILARIO G. DAVIDE, JR.

Chief Justice

Ople vs Torres[G.R. No. 127685.  July 23, 1998]

293 SCRA 141

Full text here: http://sc.judiciary.gov.ph/jurisprudence/1998/jul1998/127685.htm

 

TOPIC: Search and Seizure

FACTS: Petitioner Senator Blas F. Ople assailed the constitutionality of the Administrative Order No. 308 entitled “Adoption of Computerized Identification Reference System” on the following grounds:

1.) The administrative order issued by the executive is deemed to be a law and not a mere administrative order thus it is a usurpation of legislative power of the congress to make laws, and

2.) It impermissibly intrudes the citizen’s constitutional right of privacy.

ISSUE: Is the Administrative Order No. 308 unconstitutional based on the grounds raised?

HELD: Yes, it is unconstitutional based on both grounds. An administrative order must be in harmony with the law with the sole purpose of implementing the law and carrying out the legislative policy but the A.O. No. 308 involves a subject that is not appropriate to be covered by an administrative order. The A.O. 308 affects the some rights of the citizen of the Philippines and therefore must be covered by a law by which the congress must enact and not just by an administrative order.

The Administrative Order also violates the constitutional right to privacy because its scope is too broad and vague that will put people’s right to privacy in clear and present danger if implemented. The A.O. 308 also lacks of proper safeguards for protecting the information that will be gathered from people through biometrics and other means. Thus, A.O. No. 308 may interfere with the individual’s liberty of abode and travel by enabling authorities to track down his movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against self-incrimination; it may pave the way for “fishing expeditions” by government authorities and evade the right against unreasonable searches and seizures.

THE A.O.:

“ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services on social security and reduce, if not totally eradicate, fraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government instrumentalities is required to achieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me  by law,  do hereby direct the following:

SECTION 1.  Establishment of a National Computerized Identification Reference System.  A decentralized Identification Reference System among the key basic services and social security providers is hereby established.

SEC. 2  Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive Secretary, with the following as members:

Head,  Presidential Management Staff

Secretary, National Economic Development Authority

Secretary, Department of the Interior and

Local Government

Secretary, Department of Health

Administrator,  Government Service Insurance

System,

Administrator, Social Security System, Administrator, National Statistics  Office Managing Director, National Computer Center.

SEC. 3.  Secretariat.  The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as such shall provide administrative and technical support to the IACC.

SEC. 4.  Linkage Among Agencies.  The Population Reference Number (PRN) generated by the NSO shall serve as the common reference number to establish a linkage among  concerned agencies.  The IACC Secretariat shall coordinate with the different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology and in computer application designs of their respective systems.

SEC. 5.  Conduct of Information Dissemination Campaign.  The Office of the Press Secretary, in coordination with the National Statistics Office,  the GSIS and SSS as lead agencies and other concerned agencies shall undertake a massive tri-media information dissemination campaign to educate and raise public awareness on the importance and use of the PRN and the Social Security Identification Reference.

SEC. 6.  Funding.  The funds necessary for the implementation of the system shall be sourced from the respective budgets of the concerned agencies.

SEC. 7.  Submission of Regular Reports.   The NSO, GSIS and SSS shall submit regular reports to the Office of the President, through the IACC, on the status of implementation of this undertaking.

SEC. 8.  Effectivity.  This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our Lord,  Nineteen Hundred and Ninety-Six.

(SGD.) FIDEL V. RAMOS”

LAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL COMPUTER CENTERand CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.

D E C I S I O N

PUNO, J.:

The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the shrinking of the right to privacy, which the revered Mr. Justice Brandeis considered as "the most comprehensive  of rights and the right  most valued by civilized men."[1] Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled "Adoption of a National Computerized Identification Reference System" on two important constitutional grounds, viz: one, it is a usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our citizenry's protected zone of privacy.  We grant the petition for the rights sought to be vindicated by the petitioner need stronger barriers against further erosion. 

A.O. No.  308 was issued by President Fidel V. Ramos on December 12, 1996 and reads as follows:

"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic services on social security and reduce, if not totally eradicate, fraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic services and social security providing agencies and other government instrumentalities is required to achieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers vested in me  by law,  do hereby direct the following:

SECTION 1.  Establishment of a National Computerized Identification Reference System.  A decentralized Identification Reference System among the key basic services and social security providers is hereby established.

SEC. 2  Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive Secretary, with the following as members:

Head,  Presidential Management Staff

Secretary, National Economic Development AuthoritySecretary, Department of the Interior and

Local GovernmentSecretary, Department of Health

Administrator,  Government Service InsuranceSystem,

Administrator, Social Security System, Administrator, National Statistics  Office Managing Director, National Computer Center.

SEC. 3.  Secretariat.  The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as such shall provide administrative and technical support to the IACC.

SEC. 4.  Linkage Among Agencies.  The Population Reference Number (PRN) generated by the NSO shall serve as the common reference number to establish a linkage among concerned agencies.  The IACC Secretariat shall coordinate with the different Social Security and Services Agencies to establish the standards in the use of Biometrics Technology and in computer application designs of their respective systems.

SEC. 5.  Conduct of Information Dissemination Campaign.  The Office of the Press Secretary, in coordination with the National Statistics Office,  the GSIS and SSS as lead agencies and other concerned agencies shall undertake a massive tri-media information dissemination campaign to educate and raise public awareness on the importance and use of the PRN and the Social Security Identification Reference.

SEC. 6.  Funding.  The funds necessary for the implementation of the system shall be sourced from the respective budgets of the concerned agencies.

SEC. 7.  Submission of Regular Reports.   The NSO, GSIS and SSS shall submit regular reports to the Office of the President, through the IACC, on the status of implementation of this undertaking.

SEC. 8.  Effectivity.  This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our Lord,  Nineteen Hundred and Ninety-Six.

(SGD.) FIDEL V. RAMOS"

A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January 23, 1997.  On January 24, 1997, petitioner filed the instant petition against respondents, then Executive Secretary Ruben Torres and the heads of the government agencies, who as members of the Inter-Agency Coordinating Committee, are charged with the implementation of A.O. No. 308.  On April 8, 1997, we issued a temporary restraining order enjoining its implementation.

Petitioner contends:

"A.     THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.

B.      THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.

C.      THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION." [2]

Respondents counter-argue:

A.      THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL REVIEW;

B.      A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;

C.      THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE CONCERNED AGENCIES;

D.      A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY. [3]

We now resolve.

I

As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing to sue of the petitioner and the justiciability of the case at bar.  More specifically, respondents aver that petitioner has no legal interest to uphold and that the implementing rules of A.O. No. 308 have yet to be promulgated.

These submissions do not deserve our sympathetic ear.  Petitioner Ople is a distinguished member of our Senate. As a Senator, petitioner is possessed of the requisite standing to bring suit raising the issue that the issuance of A.O. No. 308 is a usurpation of legislative power. [4] As taxpayer and member of the Government Service Insurance System (GSIS), petitioner can also impugn the legality of the misalignment of public funds and the misuse of GSIS funds to implement A.O. No. 308.[5]

The ripeness for adjudication of the petition at bar is not affected by the fact that the implementing rules of A.O. No. 308 have yet to be promulgated.  Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its face.  His action is not premature for the rules yet to be promulgated cannot cure its fatal defects.  Moreover,  the respondents themselves have started the implementation of A.O. No.  308 without waiting for the rules.  As early as January 19, 1997, respondent Social Security System (SSS) caused the publication of a notice to bid for the manufacture of the National Identification (ID) card.[6] Respondent Executive Secretary Torres has publicly announced that representatives from the GSIS and the SSS have completed the guidelines for the national identification system.[7] All signals from the respondents show their unswerving will to implement A.O. No. 308 and we need not wait for the formality of the rules to pass judgment on its constitutionality.  In this light, the dissenters insistence that we tighten the rule on standing is not a commendable stance as its result would be to throttle an important constitutional principle and a fundamental right.

II

We now come to the core issues.  Petitioner claims that A.O. No. 308 is not a mere administrative order but a law and hence, beyond the power of the President to issue .  He alleges that A.O. No. 308 establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign resident, and more particularly, violates their right to privacy.

Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of Congress is understandable.  The blurring of the demarcation line between the power of the Legislature to make laws and the power of the Executive to execute laws will disturb their delicate balance of power and cannot be allowed.   Hence, the exercise by one branch of government of power belonging to another will be given a stricter scrutiny by this Court. 

The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the authority, under the Constitution, to make laws, and to alter and repeal them." [8] The Constitution, as the will of the people in their original, sovereign and unlimited capacity, has vested this power in the Congress of the Philippines.[9] The grant of legislative power to Congress is broad, general and comprehensive.[10] The legislative body possesses plenary power for all purposes of civil government.[11] Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere.[12] In fine,  except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to matters of general concern or common interest.[13]

While Congress is vested with the power to enact laws, the President executes the laws.[14] The executive power is vested in the President.[15] It is generally defined as the power to enforce and administer the laws.[16] It is the power of carrying the laws into practical operation and enforcing their due observance.[17]

As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department.[18] He has control over the executive department, bureaus and offices. This means that he has the authority to assume directly the functions of the executive department, bureau and office, or interfere with the discretion of its officials. [19] Corollary to the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of general peace and public order.  Thus, he is granted administrative power over bureaus and offices under his control to enable him to discharge his duties effectively.[20]

Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs.[21] It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. [22] To this end, he can issue administrative orders, rules and regulations.

Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to be covered by an administrative order.  An administrative order is:

"Sec. 3. Administrative Orders.-- Acts of the President which relate to particular aspects of governmental operation in pursuance of his duties as administrative head shall be promulgated in administrative orders."[23]

An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of government.  It must be in harmony with the law and should be for the sole purpose of  implementing the law and carrying out the legislative policy. [24] We reject the argument that A.O. No. 308 implements the legislative policy of the Administrative Code of 1987.  The Code is a general law  and "incorporates in a unified document the major structural,

functional and procedural principles of governance" [25] and "embodies changes in administrative structures and procedures designed to serve the people." [26] The Code is divided into seven (7) Books:  Book I deals with Sovereignty and General Administration, Book II with the Distribution of Powers of the three branches of Government, Book III on the Office of the President, Book IV  on the Executive Branch, Book V on the Constitutional Commissions, Book VI on National Government Budgeting, and Book VII on Administrative Procedure. These Books contain provisions on the organization, powers and general administration of the executive, legislative and judicial branches of government, the organization and administration of departments, bureaus and offices under the executive branch, the organization and functions of the Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as guidelines for the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both the internal administration of government, i.e, internal organization, personnel and recruitment, supervision and discipline,  and the effects of the functions performed by administrative officials on private individuals or parties outside government.[27]

It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of 1987. It establishes for the first time a National Computerized Identification Reference System.  Such a System requires a delicate adjustment of various contending state policies-- the primacy of national security, the extent of privacy interest against dossier-gathering by government, the choice of policies,  etc.  Indeed, the dissent of Mr. Justice Mendoza states that the A.O. No. 308 involves the all-important freedom of thought.  As said administrative order redefines the parameters of  some basic rights of our citizenry vis-a-vis the State as well as the line that separates the administrative power of the President to make rules and the legislative power of Congress, it ought to be evident that it deals with a subject that should be covered by law.    

Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law because it confers no right, imposes no duty, affords no protection, and creates no office.  Under A.O. No. 308, a citizen cannot transact business with government agencies delivering basic services to the people without the contemplated identification card.  No citizen will refuse to get this identification card for no one can avoid dealing with government.  It is thus clear as daylight that without the ID, a citizen will have difficulty exercising his rights and enjoying his privileges.   Given this reality, the contention that A.O. No. 308 gives no right and imposes no duty cannot stand.

Again, with due respect, the dissenting opinions unduly expand the limits of administrative legislation and consequently erodes the plenary power of Congress to make laws.  This is contrary to the established approach defining the traditional limits of administrative legislation.  As well stated by Fisher:  "x x x Many regulations however, bear directly on the public.  It is here that administrative legislation must be restricted in its scope and application.  Regulations are not supposed to be a substitute for the general policy-making that Congress enacts in the form of a public law.  Although administrative regulations are entitled to respect, the authority to prescribe rules and regulations is not an independent source of power to make laws." [28]

III

Assuming,  arguendo,   that  A.O. No. 308 need not be the subject  of  a law, still it cannot pass  constitutional muster  as  an  administrative  legislation  because facially  it  violates  the  right  to  privacy.  The essence of privacy is the "right to be let alone." [29] In the 1965 case of Griswold v. Connecticut,[30] the United States Supreme Court gave more substance to the right of privacy when it ruled that the right has a constitutional foundation.  It held that there is a right of privacy which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments,[31] viz:

"Specific guarantees in the Bill of Rights have penumbras formed by emanations from these guarantees that help give them life and substance x x x. Various guarantees create

zones of privacy.  The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers `in any house' in time of peace without the consent of the owner is another facet of that privacy.  The Fourth Amendment explicitly affirms the `right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment.  The Ninth Amendment provides: `The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'"  

In the 1968 case of Morfe v. Mutuc,[32] we adopted the Griswold ruling that there is a constitutional right to privacy.  Speaking thru Mr. Justice, later Chief Justice, Enrique Fernando, we held:

"xxx

The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it stressed "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees."  It has wider implications though.  The constitutional right to privacy has come into its own.

So it is likewise in our jurisdiction.  The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection.  The language of Prof. Emerson is particularly apt:  'The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector-- protection, in other words, of the dignity and integrity of the individual--has become increasingly important as modern society has developed. All the forces of a technological age --industrialization, urbanization, and organization-- operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society.'"

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions of our Constitution.[33] It is expressly recognized in Section 3(1) of the Bill of Rights:

"Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law."

Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz:[34]

"Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

x                                       x                                       x.

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

x                                       x                                       x.

Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law shall not be abridged.

Sec. 17. No person shall be compelled to be a witness against himself."

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "[e]very person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts by a person of meddling and prying into the privacy of another.[35] It also holds a public officer or employee or any private individual liable for damages for any violation of the rights and liberties of another person, [36] and recognizes the privacy of letters and other private communications. [37] The Revised Penal Code makes a crime the violation of secrets by an officer,[38] the revelation of trade and industrial secrets, [39] and trespass to dwelling.[40]Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law,[41] the Secrecy of Bank Deposit Act[42] and the Intellectual Property Code.[43] The Rules of Court on privileged communication likewise recognize the privacy of certain information.[44]

Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling state interest and that it is narrowly drawn.  A.O. No. 308 is predicated on two considerations:  (1) the need to provide our citizens and foreigners with the facility to conveniently transact business with basic service and social security providers and other government instrumentalities and (2)  the need to reduce, if not totally eradicate, fraudulent transactions and misrepresentations by persons seeking basic services.  It is debatable whether these interests are compelling enough to warrant the issuance of A.O. No. 308.  But what is not arguable is the broadness, the vagueness, the overbreadth of A.O. No. 308 which if implemented will put our people's right to privacy in clear and present danger.

The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a "common reference number to establish a linkage among concerned agencies" through the use of "Biometrics Technology" and "computer application designs."

Biometry or biometrics is "the science of the application of statistical methods to biological facts; a mathematical analysis of biological data."[45] The term "biometrics" has now evolved into a broad category of technologies which provide precise confirmation of an individual's identity through the use of the individual's own physiological and behavioral characteristics. [46] A physiological characteristic is a relatively stable physical characteristic such as a fingerprint, retinal scan, hand geometry or facial features.  A behavioral characteristic is influenced by the individual's personality and includes voice print, signature and keystroke. [47] Most biometric identification systems use a card or personal identification number (PIN) for initial identification. The biometric measurement is used to verify that the individual holding the card or entering the PIN is the legitimate owner of the card or PIN.[48]

A most common form of biological encoding is finger-scanning where technology scans a fingertip and turns the unique pattern therein into an individual number which is called a biocrypt.  The biocrypt is stored in computer data banks[49] and becomes a means of identifying an individual using a service.  This technology requires one's fingertip to be scanned every time service or access is provided.[50] Another method is the retinal scan. Retinal scan technology employs optical technology to map the capillary pattern of the retina of the eye.  This technology produces a unique print similar to a finger print. [51] Another biometric method is known as the "artificial nose." This device chemically analyzes the unique combination of substances excreted from the skin of people.[52] The latest on the list of biometric achievements is the thermogram.  Scientists have found that by taking pictures of a face using infra-red cameras, a unique heat distribution pattern is seen. The different densities of bone, skin, fat and blood vessels all contribute to the individual's personal "heat signature."[53]

In the last few decades, technology has progressed at a galloping rate.  Some science fictions are now science facts.  Today,  biometrics is no longer limited to the use of fingerprint to identify an individual. It is a new science that uses various technologies in encoding any and all biological characteristics of an individual for  identification.  It is noteworthy that A.O. No. 308 does not state what specific biological characteristics and what particular biometrics technology shall be used to identify people who will seek its coverage.  Considering the banquet of options available to the implementors of A.O. No. 308, the fear that it threatens the right to privacy of our people is not groundless.

A.O. No.  308 should also raise our antennas for a further look will show that it does not state whether encoding of data is limited to biological information alone for identification purposes. In fact, the Solicitor General claims that the adoption of the Identification Reference System will contribute to the "generation of population data for development planning." [54] This is an admission that the PRN will not be used solely for identification but for the generation of other data with remote relation to the avowed purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the government the roving authority to store and retrieve information for a purpose other than the identification of the individual through his PRN.

The potential for misuse of the data to be gathered under A.O. No. 308 cannot be underplayed as the dissenters do.  Pursuant to said administrative order, an individual must present his PRN everytime he deals with a government agency to avail of basic services and security. His transactions with the government agency will necessarily be recorded-- whether it be in the computer or in the documentary file of the agency.  The individual's file may include his transactions for loan availments, income tax returns, statement of assets and liabilities, reimbursements for medication, hospitalization, etc.  The more frequent the use of the PRN, the better the chance of building a huge and formidable information base through the electronic linkage of the files.[55] The data may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist.[56]

We can even  grant, arguendo, that the computer data file will be  limited to the name, address and other basic personal information about the individual. [57] Even that hospitable assumption will not save  A.O. No. 308 from constitutional infirmity for again said order does not tell us in clear and categorical terms how these information gathered shall be handled. It does not provide who shall control and access the data, under what circumstances and for what purpose . These factors are essential to safeguard the privacy and guaranty the integrity of the information. [58] Well to note, the computer linkage gives other government agencies access to the information.  Yet, there are no controls to guard against leakage of information. When the access code of the control programs of the particular computer system is broken, an intruder, without fear of sanction or penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored within the system.[59]

It is plain and  we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered about our people will only be processed for unequivocally specified purposes.[60] The lack of proper safeguards in this regard of A.O. No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to track down his movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against self-incrimination; it may pave the way for "fishing expeditions" by government authorities and evade the right against unreasonable searches and seizures.[61] The possibilities of abuse and misuse of the PRN, biometrics and computer technology  are accentuated when we consider that  the individual lacks control over what can be read or placed on his ID, much less verify the correctness of the data encoded.[62] They threaten the very abuses that the Bill of Rights seeks to prevent.[63]

The ability of a sophisticated data center to generate a comprehensive cradle-to-grave dossier on an individual and transmit it over a national network is one of the most graphic threats of the computer revolution.[64] The computer is capable of producing a comprehensive dossier on individuals out of information given at different times and for varied purposes. [65] It can continue adding to the stored data and keeping the information up to date. Retrieval of stored data is simple. When information of a privileged character finds its way into the computer, it can be extracted together with other data on the subject.[66] Once extracted, the information is putty in the hands of any person.  The end of  privacy begins.

Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss its danger to the right to privacy as  speculative and hypothetical.  Again, we cannot countenance such a laidback posture.  The Court will not be true to its role as the  ultimate guardian of the people's liberty if it would not immediately smother the sparks that endanger their rights but would rather wait for the fire that could consume them.

We reject the argument of the Solicitor General that an individual has a reasonable expectation of privacy with regard to the National ID and the use of biometrics technology as it stands on quicksand.   The reasonableness of a  person's expectation of privacy depends on a two-part test: (1) whether by his conduct, the individual has exhibited an expectation of privacy; and (2) whether this expectation is one that society recognizes as reasonable. [67] The factual circumstances of the case determines the reasonableness of the expectation. [68] However, other factors, such as customs, physical surroundings and practices of a particular activity, may serve to create or diminish this expectation.[69] The use of biometrics and computer technology in A.O. No. 308 does not assure the individual of a reasonable expectation of privacy. [70] As technology advances, the level of reasonably expected privacy decreases.[71] The measure of protection granted by the reasonable expectation diminishes as relevant technology becomes more widely accepted. [72] The security of the computer data file depends not only on the physical inaccessibility of the file but also on the advances in hardware and software computer technology. A.O. No. 308 is so widely drawn that a minimum standard for a reasonable expectation of privacy, regardless of technology used, cannot be inferred from its provisions.

The rules and regulations to be drawn by the IACC cannot remedy this fatal defect. Rules and regulations merely implement the policy of the law or order.  On its face, A.O. No. 308 gives the IACC virtually unfettered discretion to determine the metes and bounds of the ID System.

Nor do our present laws provide adequate safeguards for a  reasonable  expectation  of privacy. Commonwealth Act No. 591 penalizes the disclosure by any person of data furnished by the individual to the NSO with imprisonment and fine.[73] Republic Act No. 1161 prohibits public disclosure of SSS employment records and reports.[74] These laws, however,  apply to records and data with the NSO and the SSS. It is not clear whether they may be applied to data with the other government agencies forming part of the National ID System.  The need to clarify the penal aspect of A.O. No. 308 is another reason why its enactment should be given to Congress.

Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of privacy by using the rational relationship test.[75] He stressed that  the purposes of A.O. No.  308 are:  (1)  to streamline and speed up  the  implementation  of  basic  government  services, (2)  eradicate fraud by avoiding duplication of services, and (3)  generate population data for development planning. He concludes that these purposes justify the incursions into the right to privacy for the means are rationally related to the end.[76]

We are not impressed by the argument.  In Morfe v. Mutuc,[77] we upheld the constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid police power measure. We declared that the law, in compelling a public officer to make an annual report disclosing his assets and liabilities, his sources of income and expenses, did not infringe on the individual's right to privacy. The law was enacted to promote morality in public administration by curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. [78]

The same circumstances do not obtain in the case at bar.  For one, R.A. 3019 is a statute, not an administrative order.  Secondly, R.A. 3019 itself is sufficiently detailed.  The law is clear on what practices were prohibited and penalized, and  it was narrowly drawn to avoid abuses.  In the case at bar, A.O. No. 308 may have been impelled by a worthy purpose, but, it cannot pass constitutional scrutiny for it is not narrowly drawn.  And we now hold that when the integrity of a  fundamental right is at stake, this court will give the challenged law, administrative order, rule or regulation a stricter scrutiny.  It will not do for the authorities to invoke the presumption of regularity in the  performance of official duties.  Nor is it  enough for the authorities to prove that their act is not irrational for a basic right can be diminished, if not defeated, even when the government does not act irrationally.  They must satisfactorily show the presence of compelling state interests and that the law, rule, or regulation is narrowly drawn to preclude abuses.  This approach is demanded by the 1987 Constitution whose entire matrix is designed to protect human rights and to prevent authoritarianism.  In case of doubt, the least we can do is to  lean towards the stance that will not put in danger the rights protected by the Constitution.

The case of Whalen v. Roe[79] cited by the Solicitor General is also off-line. In Whalen, the United States Supreme Court was presented with the question of whether the State of New York could keep a centralized computer record of the names and addresses of all persons who obtained certain drugs pursuant to a doctor's prescription. The New York State Controlled Substances Act of 1972 required physicians to identify patients obtaining prescription drugs enumerated in the statute, i.e., drugs with a recognized medical use but with a potential for abuse, so that the names and addresses of the patients can be recorded in a centralized computer file of the State Department of Health.  The plaintiffs, who were patients and doctors, claimed that some people might decline necessary medication because of their fear that the computerized data may be readily available and open to public disclosure; and that once disclosed, it may stigmatize them as drug addicts. [80] The plaintiffs alleged that the statute invaded a constitutionally protected zone of privacy, i.e, the individual interest in avoiding disclosure of personal matters, and the interest in independence in making certain kinds of important decisions.  The U.S. Supreme Court held that while an individual's interest in avoiding

disclosure of personal matters is an aspect of the right to privacy, the statute did not pose a grievous threat to establish a constitutional violation. The Court found that the statute was necessary to aid in the enforcement of laws designed to minimize the misuse of dangerous drugs. The patient-identification requirement was a product of an orderly and rational legislative decision made upon recommendation by a specially appointed commission which held extensive hearings on the matter. Moreover, the statute was narrowly drawn and contained numerous safeguards against indiscriminate disclosure. The statute laid down the procedure and requirements for the gathering, storage and retrieval of the information. It enumerated who were authorized to access the data. It also prohibited public disclosure of the data by imposing penalties for its violation. In view of these safeguards, the infringement of the patients' right to privacy was justified by a valid exercise of police power.  As we discussed above, A.O. No. 308 lacks these vital safeguards. 

Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se against the use of computers to accumulate, store, process, retrieve and transmit data to improve our bureaucracy. Computers work wonders to achieve the efficiency which both government and private industry seek.  Many information systems in different countries make use of the computer to facilitate important social objectives, such as better law enforcement, faster delivery of public services, more efficient management of credit and insurance programs, improvement of telecommunications and streamlining of financial activities. [81] Used wisely, data stored in the computer could help good administration by making accurate and comprehensive information for those who have to frame policy and make key decisions.[82] The benefits of the computer has  revolutionized information technology. It developed the internet, [83] introduced the concept of cyberspace[84] and the information superhighway where the individual, armed only with his personal computer, may surf and search all kinds and classes of information from libraries and databases connected to the net.

In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy.  The right is not intended to stifle scientific and technological advancements that enhance public service and the common good.  It merely requires that the law be narrowly focused[85] and a compelling interest justify such intrusions.[86] Intrusions into the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions. We reiterate that any law or order that invades individual privacy will be subjected by this Court to strict scrutiny.  The reason for this stance was laid down in Morfe v. Mutuc, to wit:

"The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector-- protection, in other words, of the dignity and integrity of the individual-- has become increasingly important as modern society has developed. All the forces of a technological age-- industrialization, urbanization, and organization-- operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society."[87]

IV

The right to privacy is one of the most threatened rights of man living in a mass society.  The threats emanate from various sources-- governments, journalists, employers, social scientists, etc.[88] In the case at bar, the threat comes from the executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving information about themselves on the pretext that it will facilitate delivery of basic services.  Given the record-keeping

power of the computer, only the indifferent will fail to perceive the danger that  A.O. No. 308 gives the government the power to compile a devastating dossier against unsuspecting citizens.  It is timely to take note of the well-worded warning of Kalvin, Jr., "the disturbing result could be that everyone will live burdened by an unerasable record of his past and his limitations.   In a way, the threat is that because of its record-keeping, the society will have lost its benign capacity to forget."[89] Oblivious to this counsel, the dissents still say we should not be too quick in labelling the right to privacy as a fundamental right.  We close with the statement that the right to privacy was not engraved in our Constitution for flattery.

IN VIEW WHEREOF, the petition is granted and Administrative Order No. 308 entitled "Adoption of a National Computerized Identification Reference System" declared null and void for being unconstitutional.  

SO ORDERED.

 Narvasa, C.J., Melo, and Quisumbing, JJ., joins J. Kapunan and J. Mendoza in their dissents.Regalado, J., in the result.Davide, Jr., in the result; joins J. Panganiban in his separate opinion.Romero, Vitug and Panganiban, JJ., see separate opinion.

       Kapunan, and Mendoza, JJ., see dissenting opinion.       Bellosillo, and Martinez, JJ., concur.      Purisima, J., joins J. Mendoza’s dissent.

[1] Dissenting Opinion of Justice Brandeis in Olmstead v. United States, 277 U.S. 438, 478 [1928].[2] Petition, p. 9, Rollo, p. 11.[3] Comment, pp. 6, 9, 14, 15, Rollo, pp. 65, 68, 73-74.[4] Philconsa v. Enriquez, 235 SCRA 506 [1994]; Guingona v. PCGG, 207 SCRA 659 [1992]; Tolentino v. Commission on Elections, 41 SCRA 702 [1971].[5] Sanidad v. Commission on Elections, 73 SCRA 333 [1976]; Pascual v. Secretary of Public Works, 110 Phil. 331 [1960].[6] "Invitation to Bid," Annex "E" to the Petition, Rollo, p. 50.[7] Annex "B" to Petitioner's Reply, Rollo, p. 144.[8] Government of the Philippine Islands v. Springer, 50 Phil. 259, 276 [1927].[9] Section 1, Article VI, 1987 Constitution[10] Fernando, The Philippine Constitution, pp. 175-176 [1974].[11] Id., at 177; citing the concurring opinion of Justice Laurel in Schneckenburger v. Moran, 63 Phil. 249, 266 [1936].[12] Vera v. Avelino, 77 Phil. 192, 212 [1936].[13] See concurring opinion of Justice Laurel in Schneckenburger v. Moran, supra, at 266-267.[14] Government of the Philippine Islands v. Springer, 50 Phil. 259, 305 [1927].[15] Section 1, Article VII, 1987 Constitution.[16] Cruz, Philippine Political Law, p. 173 [1996].[17] Tanada and Carreon, Political Law of the Philippines, vol. 1, p. 275 [1961].

[18] Section 17, Article VII of the 1987 Constitution provides:

"Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed."[19] Pelaez v. Auditor General, 15 SCRA 569, 583 [1965].[20] Sinco, Philippine Political Law, pp. 234-235 [1962].[21] Id., at 234.[22] Id., at 235.[23] Section 3, Chapter 2, Title I, Book III, Administrative Code of 1987.[24] Cruz, Philippine Administrative Law, p.18 (1991).[25] Third Whereas Clause, Administrative Code of 1987.[26] Fourth Whereas Clause, Administrative Code of 1987.[27] See Cortes, Philippine Administrative Law, pp. 2-5 [1984].[28] Fisher, Constitutional Conflicts Between Congress and the President, 4th ed., pp. 106-107.

[29] Cooley on Torts, Sec. 135, vol. 1, 4th ed., [1932]; see also Warren and Brandeis, "The Right to Privacy," 4 Harvard Law Review 193-220 [1890] - this article greatly influenced the enactment of privacy statutes in the United States (Cortes, I., The Constitutional Foundations of Privacy, p. 15 [1970]).[30] 381 U.S. 479, 14 L. ed. 2d 510 [1965].

[31] AMENDMENT I [1791]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.AMENDMENT III [1791]No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.AMENDMENT IV [1791]The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.AMENDMENT V [1791]No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.x x xAMENDMENT IX [1791]The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[32] 22 SCRA 424, 444-445.[33] Morfe v. Mutuc, 22 SCRA 424, 444 [1968]; Cortes, The Constitutional Foundations of Privacy, p. 18 [1970].[34] Cortes, The Constitutional Foundations of Privacy, p. 18 [1970].

[35] Article 26 of the Civil Code provides:

"Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:(1) Prying into the privacy of another's residence;(2) Meddling with or disturbing the private life or family relations of another;(3) Intriguing to cause another to be alienated from his friends;(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition."[36] Article 32, Civil Code.[37] Article 723, Civil Code.[38] Article 229, Revised Penal Code.[39] Articles 290-292, Revised Penal Code.[40] Article 280, Revised Penal Code.[41] R.A. 4200.[42] R.A. 1405.[43] R.A. 8293.[44] Section 24, Rule 130 [C], Revised Rules on Evidence.[45] "Biometry," Dorland's Illustrated Medical Dictionary, 24th ed. [1965]. "Biometry" or "biometrics" is literally, the measurement of living things; but it is generally used to mean the application of mathematics to biology. The term is now largely obsolete as a biological science since mathematical or statistical work is an integral part of most biological disciplines (The Dictionary of Science [1993]).[46]"Biometric Identification," http://www.afmc.wpafb.af. mil/=organizations/HQ-AFMC/LG/LSO/LOA/bio.html; see also   "Biometrics Explained- Section-1," http://www.ncsa.com/services/consortia/cbdc/sec1.html.[47] Id.[48] Id.[49] Or in microchips of smart cards and magnetic strips of bank cards.[50] "Privacy at Risk, Finger-scanning for Ideology and Profit" [1998], file:///DI/commentary.html[51] "Biometric Identification," http://www.afmc.wpafb.af.mil/organizations/HQ-AFMC/LG/LSO/LOA/bio.html[52] "The Libertarian Library: Facing Up to Biometrics," The Mouse Monitor, The International Journal of Bureau-Rat Control [1998],  http://www.cyberhaven.com/libertarian/biomet.html.

[53] Id.  The thermogram is so accurate that it can tell identical twins apart and cannot be fooled by cosmetic surgery or disguises, including facial hair.[54] "An updated national population register will provide a suitable base for all types of planning and programming of government facilities and services" (Memorandum of the Solicitor General, p. 20, Rollo, p. 210).[55] Simitis, "Reviewing Privacy in an Information Society," University of Pennsylvania Law Review, vol. 135: 707, 717 [March 1985].[56] Sloan, I. Law of Privacy Rights in a Technological Society, p. 6 [1986].[57] Respondent GSIS, through counsel, claims that the basic information shall be limited to the individual's full name, place of birth, date of birth, photograph, signature and thumbmark (Comment of Respondent GSIS, p. 6, Rollo, p. 101).[58] Otani, K. "Information Security in the Network Age," 70 Philippine Law Journal, 1, 9 [1995].[59] Cortes, I., The Constitutional Foundations of Privacy, p. 12 (1970).[60] Simitis, "Reviewing Privacy in an Information Society," University of Pennsylvania Law Review, vol. 135: 707, 740 [March 1987].[61] Ibid., p. 718.[62] The right to control the collection, maintenance, use, and dissemination of data about oneself is called "informational privacy" (Hancock, G., "California's Privacy Act: Controlling Government's Use of Information? 32 Stanford Law Review no. 5, p. 1001 [May 1980]. The right to make personal decisions or conduct personal activities without intrusion, observation or interference is called "autonomy privacy" (Hill v. NCAA, 865 P. 2d 633, 652-654 [Cal. 1994].[63] Hosch, "The Interest in Limiting the Disclosure of Personal Information: A Constitutional Analysis," Vanderbilt Law Review  vol. 36: 139, 142 [Jan. 1983].[64] Miller, "Personal Privacy in the Computer Age, The Challenge of a New Technology in an Information-Oriented Society," 67 Michigan Law Review 1091, 1119 [1969]; see also Cortes, supra, at 13.[65] Cortes, I.  The Constitutional Foundation Foundation of Privacy, p.12 [1970].[66] Id.[67] Rakas v. Illinois, 439 U.S. 128, 143-144 [1978]; see the decision and Justice Harlan's concurring opinion  in Katz v. United States, 389 U.S. 347, 353, 361, 19 L. ed. 2d 576, 583, 587-589 [1967]; see also Southard, "Individual Privacy and Governmental Efficiency:  Technology's Effect on the Government's Ability to Gather, Store, and Distribute Information" (Computer/Law Journal, vol. IX, pp. 359, 367, note 63 [1989]).[68] Kennedy, "Note: Emasculating a State's Constitutional Right to Privacy: The California Supreme Court's Decision in Hill v. NCAA," Temple Law Review, vol. 68: 1497, 1517 [1995].[69] Id.[70] Southard, supra, at 369.[71] Id; see also Laurence H. Tribe, "The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier," Keynote Address at the First Conference on Computers, Freedom and Privacy, at Jim Warren & Computer Professionals for Social Responsibility [1991].[72] As one author has observed, previously, one could take steps to ensure an expectation of privacy in a private place, e.g., locking of doors and closing of curtains. Because advances in surveillance technology have made these precautions meaningless, the expectation of the privacy they offer is no longer justifiable and reasonable-- Southard, supra, at 369.[73] Section 4, Commonwealth Act No. 591 [1940].[74] Sections 24 [c] and 28 [e], R.A. 1161, as amended.[75] Citing Morfe v. Mutuc, 22 SCRA 424, 445 [1968].[76] Comment of the Solicitor General, p. 16, Rollo, p. 75.[77] Op. cit., note 76.[78] Id., at 435.[79] 429 U.S. 589, 51 L ed. 2d 64 [1977].[80] Some of the patients were children whose parents feared would be stigmatized by the State's central filing system.[81] Sloan, Law of Privacy Rights in a Technological Society, p. 4 [1986].[82] Southard, "Individual Privacy and Governmental Efficiency: Technology's Effect on the Government's Ability to Gather, Store, and Distribute Information," IX Computer/Law Journal 359, 360 [1989].[83] The Internet is a decentralized network interconnected by the TCP/IP protocol. The Net was started as a military network ARPANET in 1969 by the US Department of Defense for the purpose of networking main frame computers to prepare against missile weapons. It opened to public research organizations and universities in 1983 and has been interconnected with commercial networks since 1990 (Kazuko Otani, "Information Security in the Network Age," Philippine Law Journal, vol. 70: 1, 2 [1995]).[84] Cyberspace is a place located in no particular geographical location but available to anyone, anywhere in the world, with access to the internet (Darrel Menthe, "Jurisdiction in Cyberspace: A Theory of International Spaces 4 Mich. Tel. Tech. L. Rev. 3 (April  23, 1998),  <http://www. law.umich.edu/ mttlr/volfour/menthe.html>.[85] Southard, supra, at 361-362[86] Id; White v. Davis, 533 P. 2d 222 [Cal. 1975]; City of Sta. Barbara v. Adamson, 610 P. 2d 436 [Cal. 1980]. In his concurring opinion in Whalen v. Roe, Justice Brennan stated that a statute that deprives an individual of his privacy is not unconstitutional only if it was necessary to promote a compelling state interest (429 U.S. 589, 606-607, 51 L. ed. 2d 64, 77- 78).

[87] Morfe v. Mutuc, supra, at 444-445 citing Emerson, "Nine Justices in Search of a Doctrine," 64 Michigan Law Review 219, 229 [1965].[88] See Shils, "Privacy:  Its Constitution and Vicissitudes," Law and Contemporary Problems, vol. 31, pp. 301-303 [1966].[89] Harry Kalvin, Jr., "The Problems of Privacy in the Year 2000," Daedalus, vol. 96, pp. 876-879 [1967].