Compiled Session 1-2

EN BANC
[G.R. No. 174153. October 25, 2006.]
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH

6,327,952 REGISTERED VOTERS , petitioners, vs . THE COMMISSION
ON ELECTIONS , respondent.
ALTERNATIVE LAW GROUPS, INC. , intervenor.
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL

L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and
CARLOS P. MEDINA, JR. , intervenors.
ATTY. PETE QUIRINO QUADRA , intervenor.
BAYAN represented by its Chairperson Dr. Carolina Pagaduan-

Araullo, BAYAN MUNA represented by its Chairperson Dr. Reynaldo
Lesaca, KILUSANG MAYO UNO represented by its Secretary General
Joel Maglunsod, HEAD represented by its Secretary General Dr.
Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented
by Fr. Dionito Cabillas, MIGRANTE represented by its Chairperson
Concepcion Bragas-Regalado, GABRIELA represented by its
Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S
PARTY represented by Sec. Gen. Cristina Palabay, ANAKBAYAN
represented by Chairperson Eleanor de Guzman, LEAGUE OF
FILIPINO STUDENTS represented by Chair Vencer Crisostomo
Palabay, JOJO PINEDA of the League of Concerned Professionals
and Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health
Against Charter Change, DR. REGINALD PAMUGAS of Health Action
for Human Rights , intervenors.
LORETA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA

HONTIVEROS-BARAQUEL , intervenors.
LUWALHATI RIACASA ANTONINO , intervenor.
ARTURO M. DE CASTRO , intervenor.
TRADE UNION CONGRESS OF THE PHILIPPINES , intervenor.
LUWALHATI RICASA ANTONINO , intervenor.
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO

F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M.
BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and
CD Technologies Asia, Inc. 2018 cdasiaonline.com
AMADO GAT INCIONG , intervenors.
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA ,

intervenors.
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION

(PTGWO) and MR. VICTORINO F. BALAIS , intervenors.
SENATE OF THE PHILIPPINES, represented by its President,

MANUEL VILLAR, JR. , intervenor.
SULONG BAYAN MOVEMENT FOUNDATION, INC. , intervenor.
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A.

LAT, ANTONIO L. SALVADOR, and RANDALL TABAYOYONG ,
intervenors.
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU

PROVINCE CHAPTERS , intervenors.
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and

SENATORS SERGIO R. OSMEÑA III, JAMBY MADRIGAL, JINGGOY
ESTRADA, ALFREDO S. LIM and PANFILO LACSON , intervenors.
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO ,

intervenors.
[G.R. No. 174299. October 25, 2006.]
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V.

SAGUISAG , petitioners, vs . COMMISSION ON ELECTIONS, represented
by Chairman BENJAMIN S. ABALOS, SR., and Commissioners
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A.
BRAWNER, RENE V. SARMIENTO NICODEMO T. FERRER, and John
Doe and Peter Doe , respondents.
DECISION
CARPIO , J : p
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the
Commission on Elections ("COMELEC") denying due course to an initiative petition to
amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and
Erico B. Aumentado ("Lambino Group"), with other groups 1 and individuals, commenced
gathering signatures for an initiative petition to change the 1987 Constitution. On 25
August 2006, the Lambino Group led a petition with the COMELEC to hold a plebiscite
that will ratify their initiative petition under Section 5(b) and (c) 2 and Section 7 3 of
Republic Act No. 6735 or the Initiative and Referendum Act ("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952
individuals constituting at least twelve per centum (12%) of all registered voters, with
each legislative district represented by at least three per centum (3%) of its registered
voters. The Lambino Group also claimed that COMELEC election registrars had veri ed
the signatures of the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by
modifying Sections 1-7 of Article VI (Legislative Department) 4 and Sections 1-4 of
Article VII (Executive Department) 5 and by adding Article XVIII entitled "Transitory
Provisions." 6 These proposed changes will shift the present Bicameral-Presidential
system to a Unicameral-Parliamentary form of government. The Lambino Group prayed
that after due publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE
1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE
PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY
SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE
ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group led an Amended Petition with the
COMELEC indicating modi cations in the proposed Article XVIII (Transitory Provisions)
of their initiative. 7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due course to the
Lambino Group's petition for lack of an enabling law governing initiative petitions to
amend the Constitution. The COMELEC invoked this Court's ruling in Santiago v.
Commission on Elections 8 declaring RA 6735 inadequate to implement the initiative
clause on proposals to amend the Constitution. 9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of
certiorari and mandamus to set aside the COMELEC Resolution of 31 August 2006 and
to compel the COMELEC to give due course to their initiative petition. The Lambino
Group contends that the COMELEC committed grave abuse of discretion in denying due
course to their petition since Santiago is not a binding precedent. Alternatively, the
Lambino Group claims that Santiago binds only the parties to that case, and their
petition deserves cognizance as an expression of the "will of the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require
respondent COMELEC Commissioners to show cause why they should not be cited in
contempt for the COMELEC's veri cation of signatures and for "entertaining" the
Lambino Group's petition despite the permanent injunction in Santiago . The Court
treated the Binay Group's petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General joined
causes with the petitioners, urging the Court to grant the petition despite the Santiago
ruling. The Solicitor General proposed that the Court treat RA 6735 and its implementing
rules "as temporary devises to implement the system of initiative."
Various groups and individuals sought intervention, ling pleadings supporting or
opposing the Lambino Group's petition. The supporting intervenors 1 0 uniformly hold the
view that the COMELEC committed grave abuse of discretion in relying on Santiago . On
the other hand, the opposing intervenors 1 1 hold the contrary view and maintain that
Santiago is a binding precedent. The opposing intervenors also challenged (1) the
Lambino Group's standing to le the petition; (2) the validity of the signature gathering
and veri cation process; (3) the Lambino Group's compliance with the minimum
requirement for the percentage of voters supporting an initiative petition under Section
2, Article XVII of the 1987 Constitution; 1 2 (4) the nature of the proposed changes as
revisions and not mere amendments as provided under Section 2, Article XVII of the
1987 Constitution; and (5) the Lambino Group's compliance with the requirement in
Section 10(a) of RA 6735 limiting initiative petitions to only one subject. ACETIa
The Court heard the parties and intervenors in oral arguments on 26 September
2006. After receiving the parties' memoranda, the Court considered the case submitted
for resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with Section 2,
Article XVII of the Constitution on amendments to the Constitution through a
people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735
"incomplete, inadequate or wanting in essential terms and conditions" to
implement the initiative clause on proposals to amend the Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying due
course to the Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements of the
Constitution for conducting a people's initiative. Thus, there is even no need to revisit
Santiago , as the present petition warrants dismissal based alone on the Lambino
Group's glaring failure to comply with the basic requirements of the Constitution. For
following the Court's ruling in Santiago , no grave abuse of discretion is attributable to
the Commission on Elections.
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 constitutional
provision that allows a people's initiative to propose amendments to the Constitution.
This section states:
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. . . . . (Emphasis supplied)
The deliberations of the Constitutional Commission vividly explain the meaning of
an amendment "directly proposed by the people through initiative upon a
petition ," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want
to propose a constitutional amendment. Is the draft of the proposed
constitutional amendment ready to be shown to the people when they
are asked to sign ?
MR. SUAREZ: That can be reasonably assumed , Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and
shown to them before they sign . Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft
shown to them and they are asked whether or not they want to propose
this constitutional amendment .
MR. SUAREZ: As it is envisioned, any Filipino can prepare that
proposal and pass it around for signature . 1 3 (Emphasis supplied)
Clearly, the framers of the Constitution intended that the "draft of the proposed
constitutional amendment " should be "ready and shown " to the people "before "
they sign such proposal. The framers plainly stated that "before they sign there is
already a draft shown to them ." The framers also "envisioned " that the people
should sign on the proposal itself because the proponents must "prepare that
proposal and pass it around for signature ."
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 rst shown to the people who express their assent by signing such
complete proposal in a petition. Thus, an amendment is "directly proposed by the
people through initiative upon a petition" only if the people sign on a petition
that contains the full text of the proposed amendments .
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 signing.
Otherwise, it is physically impossible, given the time constraint, to prove that every one
of the millions of signatories had seen the full text of the proposed amendments before
signing.
The framers of the Constitution directly borrowed 1 4 the concept of people's
initiative from the United States where various State constitutions incorporate an
initiative clause. In almost all States 1 5 which allow initiative petitions, the unbending
requirement is that the people must rst see the full text of the proposed
amendments before they sign to signify their assent, and that the people must
sign on an initiative petition that contains the full text of the proposed
amendments . 1 6
The rationale for this requirement has been repeatedly explained in several
decisions of various courts. Thus, in Capezzuto v. State Ballot Commission , the
Supreme Court of Massachusetts, a rmed by the First Circuit Court of Appeals,
declared:
[A] signature requirement would be meaningless if the person
supplying the signature has not rst seen what it is that he or she is
signing . Further, and more importantly, loose interpretation of the subscription
requirement can pose a signi cant potential for fraud. A person permitted to
describe orally the contents of an initiative petition to a potential signer, without
the signer having actually examined the petition, could easily mislead the signer
by, for example, omitting, downplaying, or even atly misrepresenting, portions of
the petition that might not be to the signer's liking. This danger seems
particularly acute when, in this case, the person giving the description is
the drafter of the petition, who obviously has a vested interest in seeing
that it gets the requisite signatures to qualify for the ballot . 1 7 (Boldfacing
and underscoring supplied)
Likewise, in Kerr v. Bradbury , 1 8 the Court of Appeals of Oregon explained:

The purposes of "full text" provisions that apply to amendments by initiative
commonly are described in similar terms. . . . (The purpose of the full text
requirement is to provide su cient information so that registered voters
can intelligently evaluate whether to sign the initiative petition." ); . . .
(publication of full text of amended constitutional provision required because it is
"essential for the elector to have . . . the section which is proposed to be added to
or subtracted from. If he is to vote intelligently, he must have this knowledge.
Otherwise in many instances he would be required to vote in the dark.") (Emphasis
supplied)
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. 1 9
Section 2, Article XVII of the Constitution does not expressly state that the
petition must set forth the full text of the proposed amendments. However, the
deliberations of the framers of our Constitution clearly show that the framers intended
to adopt the relevant American jurisprudence on people's initiative. In particular, the
deliberations of the Constitutional Commission explicitly reveal that the framers
intended that the people must rst see the full text of the proposed
amendments before they sign, and that the people must sign on a petition
containing such full text . Indeed, Section 5(b) of Republic Act No. 6735, the Initiative
and Referendum Act that the Lambino Group invokes as valid, requires that the people
must sign the "petition . . . as signatories ." cADTSH
The proponents of the initiative secure the signatures from the people. The
proponents secure the signatures in their private capacity and not as public officials. The
proponents are not disinterested parties who can impartially explain the advantages and
disadvantages of the proposed amendments to the people. The proponents present
favorably their proposal to the people and do not present the arguments against their
proposal. The proponents, or their supporters, often pay those who gather the
signatures.
Thus, there is no presumption that the proponents observed the constitutional
requirements in gathering the signatures. The proponents bear the burden of proving
that they complied with the constitutional requirements in gathering the signatures —
that the petition contained, or incorporated by attachment, the full text of the
proposed amendments .
The Lambino Group did not attach to their present petition with this Court a copy
of the paper that the people signed as their initiative petition. The Lambino Group
submitted to this Court a copy of a signature sheet 2 0 after the oral arguments of 26
September 2006 when they led their Memorandum on 11 October 2006. The signature
sheet with this Court during the oral arguments was the signature sheet attached 2 1 to
the opposition in intervention led on 7 September 2006 by intervenor Atty. Pete
Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the signature sheet
attached to the Lambino Group's Memorandum are the same . We reproduce below the
signature sheet in full:
Province: City/Municipality: No. of
Verified
Legislative District: Barangay: Signatures:
PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF
THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE
PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM
OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND
ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY
PROVISIONS FOR THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?"
I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature
herein which shall form part of the petition for initiative to amend the Constitution
signifies my support for the filing thereof.
There is not a single word, phrase, or sentence of text of the Lambino

Group's proposed changes in the signature sheet. Neither does the signature
sheet state that the text of the proposed changes is attached to it . Petitioner
Atty. Raul Lambino admitted this during the oral arguments before this Court on 26
September 2006.

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 . Clearly, the signature
sheet is not the "petition" that the framers of the Constitution envisioned when they
formulated the initiative clause in Section 2, Article XVII of the Constitution.
Petitioner Atty. Lambino, however, explained that during the signature-gathering
from February to August 2006, the Lambino Group circulated, together with the
signature sheets, printed copies of the Lambino Group's draft petition which they later
led on 25 August 2006 with the COMELEC. When asked if his group also circulated the
draft of their amended petition led on 30 August 2006 with the COMELEC, Atty.
Lambino initially replied that they circulated both. However, Atty. Lambino changed his
answer and stated that what his group circulated was the draft of the 30 August 2006
amended petition, not the draft of the 25 August 2006 petition.
The Lambino Group would have this Court believe that they prepared the draft of
the 30 August 2006 amended petition almost seven months earlier in February
2006 when they started gathering signatures. Petitioner Erico B. Aumentado's
"Veri cation/Certi cation" of the 25 August 2006 petition, as well as of the 30 August
2006 amended petition, filed with the COMELEC, states as follows:
I have caused the preparation of the foregoing [Amended] Petition in my
personal capacity as a registered voter, for and on behalf of the Union of
Local Authorities of the Philippines, as shown by ULAP Resolution No.
2006-02 hereto attached , and as representative of the mass of signatories
hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the
present petition. However, the "O cial Website of the Union of Local Authorities of the
Philippines" 2 2 has posted the full text of Resolution No. 2006-02, which provides:
RESOLUTION NO. 2006-02

RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S
CONSULTATIVE COMMISSION ON CHARTER CHANGE THROUGH
PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE
1987 CONSTITUTION
WHEREAS , there is a need for the Union of Local Authorities of the
Philippines (ULAP) to adopt a common stand on the approach to support the
proposals of the People's Consultative Commission on Charter Change;
WHEREAS , ULAP maintains its unquali ed support to the agenda of Her
Excellency President Gloria Macapagal-Arroyo for constitutional reforms as
embodied in the ULAP Joint Declaration for Constitutional Reforms signed by the
members of the ULAP and the majority coalition of the House of Representatives in
Manila Hotel sometime in October 2005;
WHEREAS , the People's Consultative Commission on Charter Change
created by Her Excellency to recommend amendments to the 1987 Constitution
has submitted its final report sometime in December 2005;
WHEREAS , the ULAP is mindful of the current political developments in
Congress which militates against the use of the expeditious form of amending the
1987 Constitution;
WHEREAS , subject to the rati cation of its institutional members and the
failure of Congress to amend the Constitution as a constituent assembly, ULAP
has unanimously agreed to pursue the constitutional reform agenda through
People's Initiative and Referendum without prejudice to other pragmatic means to
pursue the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT
ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF
THE PHILIPPINES (ULAP) SUPPORT THE PORPOSALS (SIC) OF THE
PEOPLE'S CONSULATATIVE (SIC) COMMISSION ON CHARTER CHANGE
THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF
AMENDING THE 1987 CONSTITUTION ;
DONE , during the ULAP National Executive Board special meeting held on
14 January 2006 at the Century Park Hotel, Manila. 2 3 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to

prepare the 25 August 2006 petition, or the 30 August 2006 amended petition, led with
the COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals (sic) of the
Consulatative (sic) Commission on Charter Change through people's initiative and
referendum as a mode of amending the 1987 Constitution." The proposals of the
Consultative Commission 2 4 are vastly different from the proposed changes of the
Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition
filed with the COMELEC.
For example, the proposed revisions of the Consultative Commission affect all
provisions of the existing Constitution, from the Preamble to the Transitory
Provisions . The proposed revisions have profound impact on the Judiciary and the
National Patrimony provisions of the existing Constitution, provisions that the Lambino
Group's proposed changes do not touch. The Lambino Group's proposed changes
purport to affect only Articles VI and VII of the existing Constitution, including the
introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six
months before the ling of the 25 August 2006 petition or the 30 August 2006 amended
petition with the COMELEC. However, ULAP Resolution No. 2006-02 does not establish
that ULAP or the Lambino Group caused the circulation of the draft petition, together
with the signature sheets, six months before the ling with the COMELEC. On the
contrary, ULAP Resolution No. 2006-02 casts grave doubt on the Lambino Group's claim
that they circulated the draft petition together with the signature sheets. ULAP
Resolution No. 2006-02 does not refer at all to the draft petition or to the
Lambino Group's proposed changes .
In their Manifestation explaining their amended petition before the COMELEC, the
Lambino Group declared:
After the Petition was led, Petitioners belatedly realized that the proposed
amendments alleged in the Petition, more speci cally, paragraph 3 of Section 4
and paragraph 2 of Section 5 of the Transitory Provisions were inaccurately stated
and failed to correctly reflect their proposed amendments.AaDSEC
The Lambino Group did not allege that they were amending the petition because the
amended petition was what they had shown to the people during the February to August
2006 signature-gathering. Instead, the Lambino Group alleged that the petition of 25
August 2006 "inaccurately stated and failed to correctly re ect their proposed
amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30
August 2006 amended petition with the COMELEC that they circulated printed copies of
the draft petition together with the signature sheets. Likewise, the Lambino Group did
not allege in their present petition before this Court that they circulated printed copies
of the draft petition together with the signature sheets. The signature sheets do not also
contain any indication that the draft petition is attached to, or circulated with, the
signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that the
Lambino Group rst claimed that they circulated the "petition for initiative led with the
COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not
(sic) fraud, a signer who did not read the measure attached to a
referendum petition cannot question his signature on the ground that he
did not understand the nature of the act ." [82 C.J.S. S128h. Mo. State v.
Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters who signed
the signature sheets circulated together with the petition for initiative
led with the COMELEC below , are presumed to have understood the
proposition contained in the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the petition
for initiative led with the COMELEC " appears an afterthought, made after the
intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province
Chapters) and Atty. Quadra had pointed out that the signature sheets did not contain the
text of the proposed changes. In their Consolidated Reply, the Lambino Group alleged
that they circulated "the petition for initiative " but failed to mention the amended
petition . This contradicts what Atty. Lambino nally stated during the oral arguments
that what they circulated was the draft of the amended petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a
signer who did not read the measure attached to a referendum petition cannot
question his signature on the ground that he did not understand the nature of the act."
The Lambino Group quotes an authority that cites a proposed change attached to
the petition signed by the people . Even the authority the Lambino Group quotes
requires that the proposed change must be attached to the petition. The same authority
the Lambino Group quotes requires the people to sign on the petition itself.
Indeed, it is basic in American jurisprudence that the proposed amendment must
be incorporated with, or attached to, the initiative petition signed by the people. In the
present initiative, the Lambino Group's proposed changes were not incorporated with, or
attached to, the signature sheets. The Lambino Group's citation of Corpus Juris
Secundum pulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from
February to August 2006 during the signature-gathering period, the draft of the petition
or amended petition they led later with the COMELEC. The Lambino Group are less than
candid with this Court in their belated claim that they printed and circulated, together
with the signature sheets, the petition or amended petition. Nevertheless, even
as s um ing the Lambino Group circulated the amended petition during the
signature-gathering period, the Lambino Group admitted circulating only very
limited copies of the petition .
During the oral arguments, Atty. Lambino expressly admitted that they
printed only 100,000 copies of the draft petition they led more than six
months later with the COMELEC . Atty. Lambino added that he also asked other
supporters to print additional copies of the draft petition but he could not state with
certainty how many additional copies the other supporters printed. Atty. Lambino
could only assure this Court of the printing of 100,000 copies because he
himself caused the printing of these 100,000 copies .
Likewise, in the Lambino Group's Memorandum led on 11 October 2006, the
Lambino Group expressly admit that "petitioner Lambino initiated the printing
and reproduction of 100,000 copies of the petition for initiative . . . ." 2 5 This
admission binds the Lambino Group and establishes beyond any doubt that
the Lambino Group failed to show the full text of the proposed changes to the
great majority of the people who signed the signature sheets .
Thus, of the 6.3 million signatories, only 100,000 signatories could have received
with certainty one copy each of the petition, assuming a 100 percent distribution with no
wastage. If Atty. Lambino and company attached one copy of the petition to each
signature sheet, only 100,000 signature sheets could have circulated with the petition.
Each signature sheet contains space for ten signatures. Assuming ten people signed
each of these 100,000 signature sheets with the attached petition, the maximum number
of people who saw the petition before they signed the signature sheets would not
exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible
for all or a great majority of the 6.3 million signatories to have seen the petition before
they signed the signature sheets. The inescapable conclusion is that the Lambino
Group failed to show to the 6.3 million signatories the full text of the
proposed changes . If ever, not more than one million signatories saw the petition
before they signed the signature sheets.
In any event, the Lambino Group's signature sheets do not contain the full text of
the proposed changes, either on the face of the signature sheets, or as attachment with
an indication in the signature sheet of such attachment. Petitioner Atty. Lambino
admitted this during the oral arguments, and this admission binds the
Lambino Group. This fact is also obvious from a mere reading of the signature
sheet. This omission is fatal . The failure to so include the text of the proposed
changes in the signature sheets renders the initiative void for non-compliance with the
constitutional requirement that the amendment must be "directly proposed by the
people through initiative upon a petition ." The signature sheet is not the "petition "
envisioned in the initiative clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature
sheets did not see the full text of the proposed changes before signing. They could not
have known the nature and effect of the proposed changes, among which are:
1. T h e term limits on members of the legislature will be lifted and thus
members of Parliament can be re-elected indefinitely; 2 6
2. The interim Parliament can continue to function inde nitely until its members, who
are almost all the present members of Congress, decide to call for new
parliamentary elections. Thus, the members of the interim Parliament will
determine the expiration of their own term of office ; 2 7
3. Within 45 days from the rati cation of the proposed changes, the interim
Parliament shall convene to propose further amendments or revisions to
the Constitution . 2 8
These three speci c amendments are not stated or even indicated in the Lambino
Group's signature sheets. The people who signed the signature sheets had no idea that
they were proposing these amendments. These three proposed changes are highly
controversial. The people could not have inferred or divined these proposed changes
merely from a reading or rereading of the contents of the signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his group
assured the people during the signature-gathering that the elections for the
regular Parliament would be held during the 2007 local elections if the
proposed changes were rati ed before the 2007 local elections. However, the text of the
proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the
amended petition, states:
Section 5(2). The interim Parliament shall provide for the election of the
members of Parliament, which shall be synchronized and held
simultaneously with the election of all local government o cials . . . . .
(Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held
simultaneously with the 2007 local elections. This section merely requires that the
elections for the regular Parliament shall be held simultaneously with the local elections
without specifying the year .
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed
changes, could have easily written the word "next " before the phrase "election of all local
government o cials." This would have insured that the elections for the regular
Parliament would be held in the next local elections following the rati cation of the
proposed changes. However, the absence of the word "next" allows the interim
Parliament to schedule the elections for the regular Parliament simultaneously with any
future local elections. CDISAc
Thus, the members of the interim Parliament will decide the expiration of their
own term of o ce. This allows incumbent members of the House of Representatives to
hold o ce beyond their current three-year term of o ce, and possibly even beyond the
ve-year term of o ce of regular members of the Parliament. Certainly, this is
contrary to the representations of Atty. Lambino and his group to the 6.3
million people who signed the signature sheets. Atty. Lambino and his group
deceived the 6.3 million signatories, and even the entire nation .
This lucidly shows the absolute need for the people to sign an initiative petition
that contains the full text of the proposed amendments to avoid fraud or
misrepresentation. In the present initiative, the 6.3 million signatories had to rely on the
verbal representations of Atty. Lambino and his group because the signature sheets
did not contain the full text of the proposed changes. The result is a grand deception
on the 6.3 million signatories who were led to believe that the proposed changes would
require the holding in 2007 of elections for the regular Parliament simultaneously with
the local elections.
The Lambino Group's initiative springs another surprise on the people who signed
the signature sheets. The proposed changes mandate the interim Parliament to make
further amendments or revisions to the Constitution. The proposed Section 4(4), Article
XVIII on Transitory Provisions, provides:
Section 4(4). Within forty- ve days from rati cation of these amendments,
the interim Parliament shall convene to propose amendments to, or
revisions of, this Constitution consistent with the principles of local autonomy,
decentralization and a strong bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and
the Court and the people should simply ignore it. Far from being a surplusage, this
provision invalidates the Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the
Bicameral-Presidential to the Unicameral-Parliamentary system. American jurisprudence
on initiatives outlaws this as logrolling — when the initiative petition incorporates an
unrelated subject matter in the same petition. This puts the people in a dilemma since
they can answer only either yes or no to the entire proposition, forcing them to sign a
petition that effectively contains two propositions, one of which they may nd
unacceptable.
Under American jurisprudence, the effect of logrolling is to nullify the entire
proposition and not only the unrelated subject matter. Thus, in Fine v. Firestone , 2 9
the Supreme Court of Florida declared:
Combining multiple propositions into one proposal constitutes
"logrolling," which, if our judicial responsibility is to mean anything, we
cannot permit . The very broadness of the proposed amendment amounts to
logrolling because the electorate cannot know what it is voting on — the
amendment's proponents' simplistic explanation reveals only the tip of the iceberg.
. . . . The ballot must give the electorate fair notice of the proposed amendment
being voted on. . . . . The ballot language in the instant case fails to do that. The
very broadness of the proposal makes it impossible to state what it will affect and
effect and violates the requirement that proposed amendments embrace only one
subject. (Emphasis supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v.
McAlpine , 3 0 the Supreme Court of Alaska warned against "inadvertence, stealth and
fraud" in logrolling:
Whenever a bill becomes law through the initiative process, all of the
problems that the single-subject rule was enacted to prevent are exacerbated.
There is a greater danger of logrolling, or the deliberate intermingling of issues to
increase the likelihood of an initiative's passage, and there is a greater
opportunity for "inadvertence, stealth and fraud" in the enactment-by-
initiative process . The drafters of an initiative operate independently of any
structured or supervised process. They often emphasize particular provisions of
their proposition, while remaining silent on other (more complex or less appealing)
provisions, when communicating to the public. . . . Indeed, initiative promoters
typically use simplistic advertising to present their initiative to potential
petition-signers and eventual voters . Many voters will never read the full text
of the initiative before the election. More importantly, there is no process for
amending or splitting the several provisions in an initiative proposal. These
di culties clearly distinguish the initiative from the legislative process. (Emphasis
supplied)
Thus, the present initiative appears merely a preliminary step for further
amendments or revisions to be undertaken by the interim Parliament as a constituent
assembly. The people who signed the signature sheets could not have known that their
signatures would be used to propose an amendment mandating the interim Parliament
to propose further amendments or revisions to the Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the
interim Parliament to amend or revise again the Constitution within 45 days from
rati cation of the proposed changes, or before the May 2007 elections . In the
absence of the proposed Section 4(4), the interim Parliament has the discretion whether
to amend or revise again the Constitution. With the proposed Section 4(4), the initiative
proponents want the interim Parliament mandated to immediately amend or revise
again the Constitution.
However, the signature sheets do not explain the reason for this rush in amending
or revising again so soon the Constitution. The signature sheets do not also explain what
speci c amendments or revisions the initiative proponents want the interim Parliament
to make, and why there is a need for such further amendments or revisions. The people
are again left in the dark to fathom the nature and effect of the proposed
changes . Certainly, such an initiative is not "directly proposed by the people" because
the people do not even know the nature and effect of the proposed changes.
There is another intriguing provision inserted in the Lambino Group's amended
petition of 30 August 2006. The proposed Section 4(3) of the Transitory Provisions
states:
Section 4(3). Senators whose term of o ce ends in 2010 shall be members
of Parliament until noon of the thirtieth day of June 2010.
After 30 June 2010, not one of the present Senators will remain as member of
Parliament if the interim Parliament does not schedule elections for the regular
Parliament by 30 June 2010. However, there is no counterpart provision for the present
members of the House of Representatives even if their term of o ce will all end on 30
June 2007, three years earlier than that of half of the present Senators. Thus, all the
present members of the House will remain members of the interim Parliament after 30
June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime
Minister exercises all the powers of the President. If the interim Parliament does not
schedule elections for the regular Parliament by 30 June 2010, the Prime Minister will
c o m e only from the present members of the House of Representatives to the
exclusion of the present Senators.
The signature sheets do not explain this discrimination against the Senators. The
6.3 million people who signed the signature sheets could not have known that
their signatures would be used to discriminate against the Senators. They
could not have known that their signatures would be used to limit, after 30
June 2010, the interim Parliament's choice of Prime Minister only to members
of the existing House of Representatives .
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 is why the Constitution requires that
an initiative must be "directly proposed by the people . . . 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.
The Constitution entrusts to the people the power to directly propose
amendments to the Constitution. This Court trusts the wisdom of the people even if the
members of this Court do not personally know the people who sign the petition.
However, this trust emanates from a fundamental assumption: the full text of
the proposed amendment is rst shown to the people before they sign the
petition, not after they have signed the petition .
In short, the Lambino Group's initiative is void and unconstitutional because it
dismally fails to comply with the requirement of Section 2, Article XVII of the
Constitution that the initiative must be "directly proposed by the people through
initiative upon a petition ."
2. The Initiative Violates Section 2, Article XVII of the Constitution
Disallowing Revision through Initiatives
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. Article XVII
of the Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this Constitution may

be proposed by:
(1) The Congress , upon a vote of three-fourths of all its Members, or CcTIDH
(2) A constitutional convention .

proposed by the people through initiative . . . . (Emphasis supplied)
Article XVII of the Constitution speaks of three modes of amending the

Constitution. The rst 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 rst and second modes, applies to "[A ]ny
amendment to, or revision of , this Constitution." In contrast, Section 2 of Article XVII,
referring to the third mode, applies only to "[A ]mendments to this Constitution." This
distinction was intentional as shown by the following deliberations of the
Constitutional Commission:
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the 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 ve 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.
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 be limited to amendments to the Constitution and 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 . . . . .
xxx xxx xxx

MS. AQUINO: [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 clari ed 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 .
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
xxx xxx xxx
MR. MAAMBONG: My rst question: Commissioner Davide's

proposed amendment on line 1 refers to "amendments." Does it not cover
the word "revision" as de ned 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."
MR. MAAMBONG: Thank you. 3 1 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and
wrote , a clear distinction between "amendment" and "revision" of the Constitution. The
framers intended, and wrote , that only Congress or a constitutional convention may
propose revisions to the Constitution. The framers intended, and wrote , that a
people's initiative may propose only amendments to the Constitution. Where the intent
and language of the Constitution clearly withhold from the people the power to propose
revisions to the Constitution, the people cannot propose revisions even as they are
empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United States.
Thus, in McFadden v. Jordan , 3 2 the Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the
Constitution . . . applies only to the proposing and the adopting or
rejecting of 'laws and amendments to the Constitution' and does not
purport to extend to a constitutional revision . . . . . It is thus clear that a
revision of the Constitution may be accomplished only through rati cation by the
people of a revised constitution proposed by a convention called for that purpose
as outlined hereinabove. Consequently if the scope of the proposed initiative
measure (hereinafter termed 'the measure') now before us is so broad that if such
measure became law a substantial revision of our present state Constitution would
be effected, then the measure may not properly be submitted to the electorate until
and unless it is rst agreed upon by a constitutional convention, and the writ
sought by petitioner should issue. . . . . (Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling : 3 3

It is well established that when a constitution speci es the manner in which
it may be amended or revised, it can be altered by those who favor amendments,
revision, or other change only through the use of one of the speci ed means. The
constitution itself recognizes that there is a difference between an amendment and
a revision; and it is obvious from an examination of the measure here in question
that it is not an amendment as that term is generally understood and as it is used
in Article IV, Section 1. The document appears to be based in large part on the
revision of the constitution drafted by the 'Commission for Constitutional Revision'
authorized by the 1961 Legislative Assembly, . . . and submitted to the 1963
Legislative Assembly. It failed to receive in the Assembly the two-third's majority
vote of both houses required by Article XVII, Section 2, and hence failed of
adoption, . . . .
While differing from that document in material respects, the measure
sponsored by the plaintiffs is, nevertheless, a thorough overhauling of the present
constitution . . . .
To call it an amendment is a misnomer.

Whether it be a revision or a new constitution, it is not such a measure as
can be submitted to the people through the initiative. If a revision, it is subject to
the requirements of Article XVII, Section 2(1); if a new constitution, it can only be
proposed at a convention called in the manner provided in Article XVII, Section 1. . .
..
Similarly, in this jurisdiction there can be no dispute that a people's initiative can
only propose amendments to the Constitution since the Constitution itself limits
initiatives to amendments. There can be no deviation from the constitutionally
prescribed modes of revising the Constitution. A popular clamor, even one backed by
6.3 million signatures, cannot justify a deviation from the speci c modes prescribed in
the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364 : 3 4
It is a fundamental principle that a constitution can only be
revised or amended in the manner prescribed by the instrument itself,
and that any attempt to revise a constitution in a manner other than the
one provided in the instrument is almost invariably treated as extra-
constitutional and revolutionary . . . . . "While it is universally conceded that the
people are sovereign and that they have power to adopt a constitution and to
change their own work at will, they must, in doing so, act in an orderly manner and
according to the settled principles of constitutional law. And where the people, in
adopting a constitution, have prescribed the method by which the people may alter
or amend it, an attempt to change the fundamental law in violation of the self-
imposed restrictions, is unconstitutional." . . . . (Emphasis supplied)
This Court, whose members are sworn to defend and protect the Constitution, cannot
shirk from its solemn oath and duty to insure compliance with the clear command of the
Constitution — that a people's initiative may only amend, never revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an amendment or
revision of the Constitution? If the Lambino Group's initiative constitutes a revision, then
the present petition should be dismissed for being outside the scope of Section 2,
Article XVII of the Constitution.
Courts have long recognized the distinction between an amendment and a
revision of a constitution. One of the earliest cases that recognized the distinction
described the fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent and
abiding nature, and the provisions contained therein for its revision indicate
the will of the people that the underlying principles upon which it rests,
as well as the substantial entirety of the instrument , shall be of a like
permanent and abiding nature. On the other hand, the signi cance of the term
"amendment" implies such an addition or change within the lines of the original
instrument as will effect an improvement, or better carry out the purpose for which
it was framed. 3 5 (Emphasis supplied) CDISAc
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.
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." 3 6 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." 3 7 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." 3 8 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." 3 9
Under both the quantitative and qualitative tests, the Lambino Group's initiative is
a revision and not merely an amendment. Quantitatively, the Lambino Group's proposed
changes overhaul two articles — Article VI on the Legislature and Article VII on the
Executive — affecting a total of 105 provisions in the entire Constitution. 4 0 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 O ce 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.
By any legal test and under any jurisdiction , a shift from a Bicameral-
Presidential to a Unicameral-Parliamentary system, involving the abolition of the O ce
of the President and the abolition of one chamber of Congress, is beyond doubt a
revision, not a mere amendment. On the face alone of the Lambino Group's proposed
changes, it is readily apparent that the changes will radically alter the framework of
government as set forth in the Constitution . Father Joaquin Bernas, S.J., a leading
member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few speci c and
separable provisions. The guiding original intention of an amendment is to
improve speci c parts or to add new provisions deemed necessary to meet new
conditions or to suppress speci c portions that may have become obsolete or that
are judged to be dangerous. In revision, however, the guiding original intention and
plan contemplates a re-examination of the entire document, or of provisions of the
document which have over-all implications for the entire document, to determine
how and to what extent they should be altered. Thus, for instance a switch
from the presidential system to a parliamentary system would be a
revision because of its over-all impact on the entire constitutional
structure. So would a switch from a bicameral system to a unicameral
system be because of its effect on other important provisions of the
Constitution . 4 1 (Emphasis supplied)
In Adams v. Gunter , 4 2 an initiative petition proposed the amendment of the

Florida State constitution to shift from a bicameral to a unicameral legislature .
The issue turned on whether the initiative "was defective and unauthorized where [the]
proposed amendment would . . . affect several other provisions of [the] Constitution."
The Supreme Court of Florida, striking down the initiative as outside the scope of the
initiative clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968 Constitution
to provide for a Unicameral Legislature affects not only many other
provisions of the Constitution but provides for a change in the form of
the legislative branch of government , which has been in existence in the
United States Congress and in all of the states of the nation, except one, since the
earliest days. It would be di cult to visualize a more revolutionary
change . The concept of a House and a Senate is basic in the American form of
government. It would not only radically change the whole pattern of
government in this state and tear apart the whole fabric of the
Constitution, but would even affect the physical facilities necessary to
carry on government .
xxx xxx xxx
We conclude with the observation that if such proposed amendment were

adopted by the people at the General Election and if the Legislature at its next
session should fail to submit further amendments to revise and clarify the
numerous inconsistencies and con icts which would result, or if after submission
of appropriate amendments the people should refuse to adopt them, simple chaos
would prevail in the government of this State. The same result would obtain from
an amendment, for instance, of Section 1 of Article V, to provide for only a
Supreme Court and Circuit Courts-and there could be other examples too numerous
to detail. These examples point unerringly to the answer.
The purpose of the long and arduous work of the hundreds of men and
women and many sessions of the Legislature in bringing about the Constitution of
1968 was to eliminate inconsistencies and con icts and to give the State a
workable, accordant, homogenous and up-to-date document. All of this could
disappear very quickly if we were to hold that it could be amended in the manner
proposed in the initiative petition here. 4 3 (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present
petition. The Lambino Group's initiative not only seeks a shift from a bicameral to a
unicameral legislature, it also seeks to merge the executive and legislative departments.
The initiative in Adams did not even touch the executive department.
In Adams , the Supreme Court of Florida enumerated 18 sections of the Florida

Constitution that would be affected by the shift from a bicameral to a unicameral
legislature. In the Lambino Group's present initiative, no less than 105 provisions of
the Constitution would be affected based on the count of Associate Justice Romeo
J. Callejo, Sr. 4 4 There is no doubt that the Lambino Group's present initiative seeks far
more radical changes in the structure of government than the initiative in Adams .
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 . However, 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 .
Thus, the Lambino Group makes the following exposition of their theory in their
Memorandum:
99. With this distinction in mind, we note that the constitutional
provisions expressly provide for both "amendment" and "revision" when it speaks
of legislators and constitutional delegates, while the same provisions expressly
provide only for "amendment" when it speaks of the people. It would seem that the
apparent distinction is based on the actual experience of the people, that on one
hand the common people in general are not expected to work full-time on the
matter of correcting the constitution because that is not their occupation,
profession or vocation; while on the other hand, the legislators and constitutional
convention delegates are expected to work full-time on the same matter because
that is their occupation, profession or vocation. Thus, the difference between
the words "revision" and "amendment" pertain only to the process or
procedure of coming up with the corrections , for purposes of interpreting the
constitutional provisions.
100. Stated otherwise, the difference between "amendment" and

"revision" cannot reasonably be in the substance or extent of the
correction . . . . . (Underlining in the original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional

convention had drafted the same proposed changes that the Lambino Group wrote in
the present initiative, the changes would constitute a revision of the Constitution. Thus,
the Lambino Group concedes that the proposed changes in the present
initiative constitute a revision if Congress or a constitutional convention had
drafted the changes . However, since the Lambino Group as private individuals drafted
the proposed changes, the changes are merely amendments to the Constitution. The
Lambino Group trivializes the serious matter of changing the fundamental law of the
land.
T h e 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. 4 5 Any theory espousing a construction
contrary to such intent and language deserves scant consideration. More so, if such
theory wreaks havoc by creating inconsistencies in the form of government established
in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting
inconsistencies in the Constitution, only exposes the imsiness of the Lambino Group's
position. Any theory advocating that a proposed change involving a radical structural
change in government does not constitute a revision justly deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in
American jurisdictions have attempted to advance without any success. In Lowe v.
Keisling , 4 6 the Supreme Court of Oregon rejected this theory , thus:
Mabon argues that Article XVII, section 2, does not apply to changes to the
constitution proposed by initiative. His theory is that Article XVII, section 2
merely provides a procedure by which the legislature can propose a
revision of the constitution, but it does not affect proposed revisions
initiated by the people . AcaEDC
Plaintiffs argue that the proposed ballot measure constitutes a wholesale

change to the constitution that cannot be enacted through the initiative process.
They assert that the distinction between amendment and revision is determined by
reviewing the scope and subject matter of the proposed enactment, and that
revisions are not limited to "a formal overhauling of the constitution." They argue
that this ballot measure proposes far reaching changes outside the lines of the
original instrument, including profound impacts on existing fundamental rights
and radical restructuring of the government's relationship with a de ned group of
citizens. Plaintiffs assert that, because the proposed ballot measure "will refashion
the most basic principles of Oregon constitutional law," the trial court correctly held
that it violated Article XVII, section 2, and cannot appear on the ballot without the
prior approval of the legislature.
We rst address Mabon's argument that Article XVII, section 2(1), does not
prohibit revisions instituted by initiative. In Holmes v. Appling , . . ., the Supreme
Court concluded that a revision of the constitution may not be accomplished by
initiative, because of the provisions of Article XVII, section 2. After reviewing Article
XVII, section1, relating to proposed amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes

the use of the initiative as a means of amending the Oregon Constitution,
but it contains no similar sanction for its use as a means of revising the
constitution." . . . .
It then reviewed Article XVII, section 2, relating to revisions, and said: "It is
the only section of the constitution which provides the means for constitutional
revision and it excludes the idea that an individual, through the initiative, may place
such a measure before the electorate." . . . .
Accordingly, we reject Mabon's argument that Article XVII, section

2, does not apply to constitutional revisions proposed by initiative .
(Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which negates the express
intent of the framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green for
amendments and at the other end red for revisions. Towards the middle of the
spectrum, colors fuse and di culties arise in determining whether there is an
amendment or revision. The present initiative is indisputably located at the far end of the
red spectrum where revision begins. The present initiative seeks a radical overhaul of the
existing separation of powers among the three co-equal departments of government,
requiring far-reaching amendments in several sections and articles of the Constitution.
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 4 7 is an amendment and not a revision. Similarly, a change reducing
Filipino ownership of mass media companies from 100 percent to 60 percent is an
amendment and not a revision. 4 8 Also, a change requiring a college degree as an additional
qualification for election to the Presidency is an amendment and not a revision. 4 9

The changes in these examples do not entail any modi cation of sections or
articles of the Constitution other than the speci c 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. These three examples are located at the
far green end of the spectrum, opposite the far red end where the revision sought by the
present petition is located.
However, there can be no xed 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 5 0 of the Constitution radically
overhauls the entire structure of government and the fundamental ideological basis of
the Constitution. Thus, each speci c 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 xed and identi able deliberative bodies or recorded proceedings, to
undertake only amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the Transitory
Provisions states:
Section 2. Upon the expiration of the term of the incumbent President
and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI
of the 1987 Constitution which shall hereby be amended and Sections 18 and 24
which shall be deleted, all other Sections of Article VI are hereby retained and
renumbered sequentially as Section 2, ad seriatim up to 26, unless they are
inconsistent with the Parliamentary system of government, in which
case, they shall be amended to conform with a unicameral parliamentary
form of government ; . . . . (Emphasis supplied)
The basic rule in statutory construction is that if a later law is irreconcilably

inconsistent with a prior law, the later law prevails. This rule also applies to construction
of constitutions. However, the Lambino Group's draft of Section 2 of the Transitory
Provisions turns on its head this rule of construction by stating that in case of such
irreconcilable inconsistency, the earlier provision "shall be amended to conform with a
unicameral parliamentary form of government." The effect is to freeze the two
irreconcilable provisions until the earlier one "shall be amended," which requires a future
separate constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner Atty.
Lambino readily conceded during the oral arguments that the requirement of a future
amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the rule of
statutory construction so that the later provision automatically prevails in case of
irreconcilable inconsistency. However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the
Transitory Provisions is not between a provision in Article VI of the 1987 Constitution
and a provision in the proposed changes. The inconsistency is between a provision in
Article VI of the 1987 Constitution and the "Parliamentary system of government ,"
and the inconsistency shall be resolved in favor of a "unicameral parliamentary form
of government."
Now, what "unicameral parliamentary form of government" do the Lambino
Group's proposed changes refer to — the Bangladeshi, Singaporean, Israeli, or New
Zealand models, which are among the few countries with unicameral parliaments? The
proposed changes could not possibly refer to the traditional and well-known
parliamentary forms of government — the British, French, Spanish, German, Italian,
Canadian, Australian, or Malaysian models, which have all bicameral parliaments. Did
the people who signed the signature sheets realize that they were adopting the
Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government?
This drives home the point that the people's initiative is not meant for revisions of
the Constitution but only for amendments. A shift from the present Bicameral-
Presidential to a Unicameral-Parliamentary system requires harmonizing several
provisions in many articles of the Constitution. Revision of the Constitution through a
people's initiative will only result in gross absurdities in the Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's initiative is a
revision and not an amendment. Thus, the present initiative is void and unconstitutional
because it violates Section 2, Article XVII of the Constitution limiting the scope of a
people's initiative to "[A ]mendments to this Constitution ."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the basic
requirements of Section 2, Article XVII of the Constitution on the conduct and scope of a
people's initiative to amend the Constitution. There is no need to revisit this Court's
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
a rmation or reversal of Santiago will not change the outcome of the present petition.
Thus, this Court must decline to revisit Santiago which effectively ruled that RA 6735
does not comply with the requirements of the Constitution to implement the initiative
clause on amendments to the Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute
if the case before the Court can be resolved on some other grounds. Such avoidance is a
logical consequence of the well-settled doctrine that courts will not pass upon the
constitutionality of a statute if the case can be resolved on some other grounds. 5 1
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional
provision on initiatives to amend the Constitution, this will not change the result here
because the present petition violates Section 2, Article XVII of the Constitution. To be a
valid initiative, the present initiative must first comply with Section 2, Article XVII of the
Constitution even before complying with RA 6735. IATSHE
Even then, the present initiative violates Section 5(b) of RA 6735 which requires
that the "petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories ." Section 5(b) of
RA 6735 requires that the people must sign the "petition . . . as signatories ."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the
amended petition of 30 August 2006 led with the COMELEC. Only Atty. Lambino,
Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition
and amended petition as counsels for "Raul L. Lambino and Erico B.
Aumentado, Petitioners." In the COMELEC, the Lambino Group, claiming to act
"together with " the 6.3 million signatories, merely attached the signature sheets to the
petition and amended petition. Thus, the petition and amended petition led with the
COMELEC did not even comply with the basic requirement of RA 6735 that the Lambino
Group claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735
stating, "No petition embracing more than one (1) 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. Since the present initiative embraces more than one subject matter, RA
6735 prohibits submission of the initiative petition to the electorate. Thus, even if RA
6735 is valid, the Lambino Group's initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing
the Lambino Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en banc
merely followed this Court's ruling in Santiago and People's Initiative for Reform,
Modernization and Action (PIRMA) v. COMELEC . 5 2 For following this Court's
ruling, no grave abuse of discretion is attributable to the COMELEC. On this ground
alone, the present petition warrants outright dismissal. Thus, this Court should reiterate
its unanimous ruling in PIRMA :
The Court ruled, rst, by a unanimous vote, that no grave abuse of
discretion could be attributed to the public respondent COMELEC in dismissing the
petition led by PIRMA therein, it appearing that it only complied with the
dispositions in the Decisions of this Court in G.R. No. 127325, promulgated on
March 19, 1997, and its Resolution of June 10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost respect
and obedience of all the citizens of this nation. No one can trivialize the Constitution by
cavalierly amending or revising it in blatant violation of the clearly speci ed modes of
amendment and revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution in
unchartered waters, to be tossed and turned by every dominant political group of the
day. If this Court allows today a cavalier change in the Constitution outside the
constitutionally prescribed modes, tomorrow the new dominant political group that
comes will demand its own set of changes in the same cavalier and unconstitutional
fashion. A revolving-door constitution does not augur well for the rule of law in this
country.
An overwhelming majority — 16,622,111 voters comprising 76.3 percent of
the total votes cast 5 3 — approved our Constitution in a national plebiscite held on 11
February 1987. That approval is the unmistakable voice of the people, the full
expression of the people's sovereign will. That approval included the
prescribed modes for amending or revising the Constitution .
No amount of signatures, not even the 6,327,952 million signatures gathered by
the Lambino Group, can change our Constitution contrary to the speci c modes that the
people, in their sovereign capacity, prescribed when they rati ed the Constitution. The
alternative is an extra-constitutional change, which means subverting the people's
sovereign will and discarding the Constitution . This is one act the Court cannot
and should never do. As the ultimate guardian of the Constitution, this Court is sworn to
perform its solemn duty to defend and protect the Constitution, which embodies the real
sovereign will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the people decide"
cannot override the speci c modes of changing the Constitution as prescribed in the
Constitution itself. Otherwise, the Constitution — the people's fundamental covenant that
provides enduring stability to our society — becomes easily susceptible to manipulative
changes by political groups gathering signatures through false promises. Then, the
Constitution ceases to be the bedrock of the nation's stability.
The Lambino Group claims that their initiative is the "people's voice." However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the veri cation
of their petition with the COMELEC, that "ULAP maintains its unquali ed support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms."
The Lambino Group thus admits that their "people's" initiative is an "unqualified
support to the agenda " of the incumbent President to change the Constitution. This
forewarns the Court to be wary of incantations of "people's voice" or "sovereign will" in
the present initiative.
This Court cannot betray its primordial duty to defend and protect the
Constitution. The Constitution, which embodies the people's sovereign will, is the bible
of this Court. This Court exists to defend and protect the Constitution . To allow
this constitutionally in rm initiative, propelled by deceptively gathered signatures, to
alter basic principles in the Constitution is to allow a desecration of the Constitution. To
allow such alteration and desecration is to lose this Court's raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.

SO ORDERED.
Carpio Morales, J., concurs.
Panganiban, C.J., see separate concurring opinion.
Puno, J., pls. see dissent.
Quisumbing and Ynares-Santiago, JJ., pls. see separate opinion.
Sandoval-Gutierrez, J., pls. see my concurring opinion.
Austria-Martinez, J., also concurs with Justice Callejo, Sr.
Corona, J., see dissenting opinion.
Callejo, Sr., J., please se concurring opinion.
Azcuna, J., concurs in separate opinion.
Tinga, J., see separate opinion.
Chico-Nazario, J., joins the dissenting opinion of J. Puno. Please see separate
opinion.
Garcia, J., joins the dissenting opinion of J. Puno.
Velasco, Jr., J., joins the dissent of J. Puno.
Separate Opinions
PANGANIBAN, C.J., concurring :
Without the rule of law, there can be no

lasting prosperity and certainly no liberty.
Beverley McLachlin 1
Chief Justice of Canada
After a deep re ection on the issues raised and a careful evaluation of the parties'
respective arguments — both oral and written — as well as the enlightened and
enlightening Opinions submitted by my esteemed colleagues, I am fully convinced that
the present Petition must be dismissed.
I write, however, to show that my present disposition is completely consistent
with my previous Opinions and votes on the two extant Supreme Court cases involving
an initiative to change the Constitution.
In my Separate Opinion in Santiago v. Comelec, 2 I opined "that taken together and
interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), Republic
Act 6735 and Comelec Resolution 2300 provide more than su cient authority to
implement, effectuate and realize our people's power to amend the Constitution."
Six months after, in my Separate Opinion in People's Initiative for Reform,
Modernization and Action (PIRMA) v. Comelec , 3 I joined the rest of the members of the
Court in ruling "by a unanimous vote, that no grave abuse of discretion could be
attributed to the Comelec in dismissing the petition led by PIRMA therein," since the
Commission had "only complied" with the Santiago Decision.
I added "that my position upholding the adequacy of RA 6735 and the validity of
Comelec Resolution 2300 will not ipso facto validate the PIRMA petition and
automatically lead to a plebiscite to amend the Constitution. Far from it." I stressed that
PIRMA must show the following, among others :
(1) The proposed change — the lifting of term limits of elective o cials —
"constitute[s] a mere amendment and not a revision of the Constitution."
(2) The "six million signatures are genuine and veri able"; and they "really
belong to quali ed warm bodies comprising at least 12% of the registered voters
nationwide, of which every legislative district is represented by at least 3% of the
registered voters therein."
In both Opinions, I concluded that we must implement "the right thing [initiative] in
the right way at the right time and for the right reason." HICSTa
In the present case, I steadfastly stand by my foregoing Opinions in Santiago and

PIRMA. Tested against them, the present Petition of Raul Lambino and Erico Aumentado
must be DISMISSED. Unfortunately, the right thing is being rushed in the wrong
way and for the wrong reasons . Let me explain.
No Grave Abuse
of Discretion by Comelec
As in PIRMA, I nd no grave abuse of discretion in Comelec's dismissal of the
Lambino Petition. After all, the Commission merely followed the holding in Santiago
permanently enjoining the poll body "from entertaining or taking cognizance of any
petition for initiative on amendments to the Constitution until a su cient law shall have
been validly enacted to provide for the implementation of the system."
Indeed, the Comelec did not violate the Constitution, the laws or any
jurisprudence. 4 Neither can whim, caprice, arbitrariness or personal bias be
attributed to the Commission . 5 Quite the contrary, it prudently followed this Court's
jurisprudence in Santiago and PIRMA. Even assuming arguendo that Comelec erred in
ruling on a very di cult and unsettled question of law, this Court still cannot attribute
grave abuse of discretion to the poll body with respect to that action. 6
The present Lambino Petition is in exactly the same situation as that of PIRMA in
1997. The differences pointed out by Justice Reynato S. Puno are, with due respect,
super cial. It is argued that, unlike the present Lambino Petition, PIRMA did not contain
veri ed signatures. These are distinctions that do not make a difference. Precisely,
Justice Puno is urging a remand, because the veri cation issue is "contentious" and
remains unproven by petitioners. Clearly, both the PIRMA and the Lambino
Petitions contain unveri ed signatures. Therefore, they both deserve the same
treatment: DISMISSAL .
Besides, the only reason given in the unanimous Resolution on PIRMA v. Comelec
was that the Commission had "only complied" with this Court's Decision in Santiago, the
same reason given by Comelec in this case. The Separate Opinions in PIRMA gave no
other reason. No one argued, even remotely, that the PIRMA Petition should
have been dismissed because the signatures were unverified .
To stress, I adhere to my Opinion in PIRMA that, "[b]eing a constitutional
requirement, the number of signatures becomes a condition precedent to the ling of
the petition, and is jurisdictional. 7 Without those signatures, the Comelec shall motu
proprio reject the petition."
So, until and unless Santiago is revisited and changed by this Court or the legal
moorings of the exercise of the right are substantially changed, the Comelec cannot
be faulted for acting in accord with this Court's pronouncements . Respondent
Commission has no discretion, under any guise, to refuse enforcement of any
nal decision of this Court . 8 The refusal of the poll body to act on the Lambino
Petition was its only recourse. Any other mode of action would appear not only
presumptuous, but also contemptuous. It would have constituted de ance of the Court
and would have surely been struck down as grave abuse of discretion and contumacious
disregard of the supremacy of this Court as the final arbiter of justiciable controversies.
Even assuming further that this Court rules, as I believe it should (for the reasons
given in my Opinions in Santiago and PIRMA), that Republic Act 6735 is indeed su cient
to implement an initiative to amend the Constitution, still, no grave abuse of discretion
can be attributed to the Comelec for merely following prevailing jurisprudence extant at
the time it rendered its ruling in question.
Only Amendments,
Not Revisions
I reiterate that only amendments, not revisions, may be the proper subject
of an initiative to change the Constitution. This principle is crystal clear from even a
layperson's reading of the basic law. 9
I submit that changing the system of government from presidential to
parliamentary and the form of the legislature from bicameral to unicameral
contemplates an overhaul of the structure of government . The ponencia has amply
demonstrated that the merger of the legislative and the executive branches under a
unicameral-parliamentary system, "[b]y any legal test and under any jurisdiction," will
"radically alter the framework of government as set forth in the Constitution." Indeed, the
proposed changes have an overall implication on the entire Constitution; they effectively
rewrite its most important and basic provisions. The prolixity and complexity of the
changes cannot be categorized, even by semantic generosity, as "amendments."
In addition, may I say that of the three modes of changing the Constitution,
revisions (or amendments) may be proposed only through the rst two: by Congress or
by a constitutional convention. Under the third mode — people's initiative — only
amendments are allowed. Many of the justices' Opinions have cited the historical,
philosophical and jurisprudential bases of their respective positions. I will not add to the
woes of the reader by reiterating them here.
Su ce it to say that, to me, the practical test to differentiate an amendment from
a revision is found in the Constitution itself: a revision may be done only when the
proposed change can be drafted, de ned, articulated, discussed and agreed
upon after a mature and democratic debate in a deliberative body like
Congress or a Convention . The changes proposed must necessarily be scrutinized, as
their adoption or non-adoption must result from an informed judgment.
Indeed, the constitutional bodies that drafted the 1935, the 1972 and the 1987
Constitutions had to spend many months of purposeful discussions, democratic
debates and rounds of voting before they could agree on the wordings covering the
philosophy, the underlying principles, and the structure of government of our Republic.
Verily, even bills creating or changing the administrative structure of local
governments take several weeks or even months of drafting, reading, and debating
before Congress can approve them. How much more when it comes to constitutional
changes?
A change in the form of government of our country from presidential-bicameral to
parliamentary-unicameral is monumental. Even the initiative proponents admit this fact.
So, why should a revision be rammed down our people's throats without the bene t of
intelligent discussion in a deliberative assembly?
Added to the constitutional mandate barring revisions is the provision of RA 6735
expressly prohibiting petitions for initiative from "embracing more than one subject
matter." 1 0 The present initiative covers at least two subjects: (1) the shift from a
presidential to a parliamentary form of government; and (2) the change from a bicameral
to a unicameral legislature. 1 1 Thus, even under Republic Act 6735 — the law that Justice
Puno and I hold to be sufficient and valid — the Lambino Petition deserves dismissal.
12 Percent and 3 Percent Thresholds
Not Proven by Petitioners
The litmus test of a people's petition for initiative is its ability to muster the
constitutional requirement that it be supported by at least 12 percent of the registered
voters nationwide, of which at least 3 percent of the registered voters in every legislative
district must be represented. As pointed out by Intervenors One Voice, Inc., et al.,
however, records show that there was a failure to meet the minimum percentages
required. 1 2
Even Justice Puno concedes that the 12 percent and 3 percent constitutional
requirements involve "contentious facts," which have not been proven by the Lambino
Petition. Thus, he is urging a remand to the Comelec.
But a remand is both imprudent and futile . It is imprudent because the
Constitution itself mandates the said requisites of an initiative petition. In other words, a
petition that does not show the required percentages is fatally defective and
must be dismissed , as the Delfin Petition was, in Santiago.
Furthermore, as the ponencia had discussed extensively, the present Petition is
void and unconstitutional. It points out that the Petition dismally fails to comply with the
constitutional requirement that an initiative must be directly proposed by the people.
Speci cally, the ponencia has amply established that petitioners were unable to show
that the Lambino Petition contained, or incorporated by attachment, the full text of the
proposed changes.
So, too, a remand is futile. Even if the required percentages are proven
before the Commission, the Petition must still be dismissed for proposing a
revision, not an amendment, in gross violation of the Constitution . At the very
least, it proposes more than one subject, in violation of Republic Act 6735.
Summation
Petitioners plead with this Court to hear the voice of the people because, in the
words of Justice Puno who supports them, the "people's voice is sovereign in a
democracy."
I, too, believe in heeding the people's voice . I reiterate my Separate Opinion
in PIRMA that "initiative is a democratic method of enabling our people to express their
will and chart their history. . . . . I believe that Filipinos have the ability and the capacity to
rise above themselves, to use this right of initiative wisely and maturely, and to choose
what is best for themselves and their posterity." DaScAI
This belief will not, however, automatically and blindly result in an initiative to
change the Constitution, because the present Petition violates the following:
• The Constitution (speci cally Article XVII, which allows only amendments,
not revisions, and requires definite percentages of verified signatures)
• The law (speci cally, Republic Act 6735, which prohibits petitions containing
more than one subject)
• Jurisprudence (speci cally, PIRMA v. Comelec , which dismissed the Petition
then under consideration on the ground that, by following the Santiago ruling,
the Comelec had not gravely abused its discretion).
I submit further that a remand of the Lambino Petition is both imprudent and
futile. More tellingly, it is a cop-out, a hand-washing already discredited 2000 years
ag o . Instead of nger-pointing , I believe we must confront the issues head on,
because the people expect no less from this august and venerable institution of
supreme justice.
Epilogue
At bottom, the issue in this case is simply the Rule of Law . 1 3 Initiative, like
referendum and recall, is a treasured feature of the Filipino constitutional system. It was
born out of our world-admired and often-imitated People Power, but its misuse and
abuse must be resolutely rejected . Democracy must be cherished, but mob rule
vanquished.
The Constitution is a sacred social compact , forged between the government
and the people, between each individual and the rest of the citizenry. Through it, the
people have solemnly expressed their will that all of them shall be governed by laws, and
their rights limited by agreed-upon covenants to promote the common good. If we are
to uphold the Rule of Law and reject the rule of the mob, we must faithfully abide by
the processes the Constitution has ordained in order to bring about a peaceful,
just and humane society . Assuming arguendo that six million people allegedly gave
their assent to the proposed changes in the Constitution, they are nevertheless still
bound by the social covenant — the present Constitution — which was rati ed by a
far greater majority almost twenty years ago. 1 4 I do not denigrate the majesty of the
sovereign will; rather, I elevate our society to the loftiest perch, because our
government must remain as one of laws and not of men .
Upon assuming o ce, each of the justices of the Supreme Court took a solemn
oath to uphold the Constitution. Being the protectors of the fundamental law as the
highest expression of the sovereign will, they must subject to the strictest scrutiny any
attempt to change it, lest it be trivialized and degraded by the assaults of the
mob and of ill-conceived designs . The Court must single-mindedly defend the
Constitution from bogus efforts falsely attributed to the sovereign people.
The judiciary may be the weakest branch of government. Nonetheless, when
ranged against incessant voices from the more powerful branches of government, it
should never cower in submission. On the other hand, I daresay that the same weakness
of the Court becomes its strength when it speaks independently through decisions that
rightfully uphold the supremacy of the Constitution and the Rule of Law . The
strength of the judiciary lies not in its lack of brute power, but in its moral courage to
perform its constitutional duty at all times against all odds. Its might is in its being
right . 1 5
During the past weeks, media out ts have been ablaze with reports and
innuendoes about alleged carrots offered and sticks drawn by those interested in the
outcome of this case. 1 6 There being no judicial proof of these allegations, I shall not
comment on them for the nonce, except to quote the Good Book, which says, "There is
nothing hidden that will not be revealed, and nothing secret that will not be known and
come to light." 1 7
Verily, the Supreme Court is now on the crossroads of history. By its decision, the
Court and each of its members shall be judged by posterity. Ten years, fty years, a
hundred years — or even a thousand years — from now, what the Court did here, and how
each justice opined and voted, will still be talked about, either in shame or in pride.
Indeed, the hand-washing of Pontius Pilate, the abomination of Dred Scott, and the
loathing of Javellana still linger and haunt to this day.
Let not this case fall into the same damnation. Rather, let this Court be known
throughout the nation and the world for its independence, integrity, industry and
intelligence .
WHEREFORE, I vote to DISMISS the Petition.
PUNO, J., dissenting :
"It is a Constitution we are expounding. . . " 1

— Chief Justice John Marshall
The petition at bar is not a ght over molehills. At the crux of the controversy is
the critical understanding of the rst and foremost of our constitutional principles —
"the Philippines is a democratic and republican State. Sovereignty resides in the people
and all government authority emanates from them." 2 Constitutionalism dictates that
this creed must be respected with deeds; our belief in its validity must be backed by
behavior.
This is a Petition for Certiorari and Mandamus to set aside the resolution of
respondent Commission on Elections (COMELEC) dated August 31, 2006, denying due
course to the Petition for Initiative led by petitioners Raul L. Lambino and Erico B.
Aumentado in their own behalf and together with some 6.3 million registered voters
who have a xed their signatures thereon, and praying for the issuance of a writ of
mandamus to compel respondent COMELEC to set the date of the plebiscite for the
rati cation of the proposed amendments to the Constitution in accordance with Section
2, Article XVII of the 1987 Constitution.
First, a ashback of the proceedings of yesteryears . In 1996 , the
Movement for People's Initiative sought to exercise the sovereign people's power to
directly propose amendments to the Constitution through initiative under Section 2,
Article XVII of the 1987 Constitution. Its founding member, Atty. Jesus S. Del n, led
with the COMELEC on December 6, 1996, a "Petition to Amend the Constitution, to Lift
Term Limits of Elective O cials, by People's Initiative" (Del n Petition). It proposed to
amend Sections 4 and 7 of Article VI, Section 4 of Article VII, and Section 8 of Article X
of the 1987 Constitution by deleting the provisions on the term limits for all elective
officials.
The Delfin Petition stated that the Petition for Initiative would rst be submitted
to the people and would be formally led with the COMELEC after it is signed by at least
twelve per cent (12%) of the total number of registered voters in the country. It thus
sought the assistance of the COMELEC in gathering the required signatures by
xing the dates and time therefor and setting up signature stations on the
assigned dates and time . The petition prayed that the COMELEC issue an Order (1)
xing the dates and time for signature gathering all over the country; (2) causing the
publication of said Order and the petition for initiative in newspapers of general and local
circulation; and, (3) instructing the municipal election registrars in all the regions of the
Philippines to assist petitioner and the volunteers in establishing signing stations on the
dates and time designated for the purpose.
The COMELEC conducted a hearing on the Delfin Petition.
On December 18, 1996 , Senator Miriam Defensor Santiago , Alexander Padilla
and Maria Isabel Ongpin led a special civil action for prohibition before this Court,
seeking to restrain the COMELEC from further considering the Del n Petition. They
impleaded as respondents the COMELEC, Del n, and Alberto and Carmen Pedrosa
(Pedrosas) in their capacities as founding members of the People's Initiative for
Reforms, Modernization and Action (PIRMA) which was likewise engaged in
signature gathering to support an initiative to amend the Constitution. They argued that
the constitutional provision on people's initiative may only be implemented by a law
passed by Congress; that no such law has yet been enacted by Congress; that Republic
Act No. 6735 relied upon by Del n does not cover the initiative to amend the
Constitution; and that COMELEC Resolution No. 2300, the implementing rules adopted
by the COMELEC on the conduct of initiative, was ultra vires insofar as the initiative to
amend the Constitution was concerned. The case was docketed as G.R. No. 127325,
entitled Santiago v. Commission on Elections . 3
Pending resolution of the case, the Court issued a temporary restraining order
enjoining the COMELEC from proceeding with the Del n Petition and the Pedrosas from
conducting a signature drive for people's initiative to amend the Constitution.
On March 19, 1997, the Court rendered its decision on the petition for
prohibition . The Court ruled that the constitutional provision granting the people the
power to directly amend the Constitution through initiative is not self-executory. An
enabling law is necessary to implement the exercise of the people's right. Examining the
provisions of R.A. 6735, a majority of eight (8) members of the Court held that
said law was "incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is
concerned," 4 and thus voided portions of COMELEC Resolution No. 2300 prescribing
rules and regulations on the conduct of initiative on amendments to the Constitution. It
was also held that even if R.A. 6735 su ciently covered the initiative to amend the
Constitution and COMELEC Resolution No. 2300 was valid, the Del n Petition should
still be dismissed as it was not the proper initiatory pleading contemplated by
law . Under Section 2, Article VII of the 1987 Constitution and Section 5(b) of R.A. 6735,
a petition for initiative on the Constitution must be signed by at least twelve per cent
(12%) of the total number of registered voters, of which every legislative district is
represented by at least three per cent (3%) of the registered voters therein. The Del n
Petition did not contain signatures of the required number of voters . The
decision stated:
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 to the Constitution until a su cient law shall have been
validly enacted to provide for the implementation of the system. AaSIET
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 esh 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 hereby 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 Resolution 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 against the Commission on Elections, but is LIFTED as against private
respondents. 5
Eight (8) members of the Court , namely, then Associate Justice Hilario G.
Davide, Jr. (ponente), Chief Justice Andres R. Narvasa, and Associate Justices Florenz D.
Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino C.
Hermosisima, Jr. and Justo P. Torres, fully concurred in the majority opinion.
While all the members of the Court who participated in the deliberation 6 agreed
that the Del n Petition should be dismissed for lack of the required signatures, ve (5)
members , namely, Associate Justices Jose A.R. Melo, Reynato S. Puno, Vicente V.
Mendoza, Ricardo J. Francisco and Artemio V. Panganiban, held that R.A. 6735 was
su cient and adequate to implement the people's right to amend the Constitution
through initiative, and that COMELEC Resolution No. 2300 validly provided the details for
the actual exercise of such right. Justice Jose C. Vitug , on the other hand, opined that
the Court should con ne itself to resolving the issue of whether the Del n Petition
su ciently complied with the requirements of the law on initiative, and there was no
need to rule on the adequacy of R.A. 6735 .
The COMELEC, Del n and the Pedrosas led separate motions for
reconsideration of the Court's decision.
After deliberating on the motions for reconsideration, six (6) 7 of the
eight (8) majority members maintained their position that R.A. 6735 was
inadequate to implement the provision on the initiative on amendments to the
Constitution. Justice Torres led an inhibition, while Justice Hermosisima
submitted a Separate Opinion adopting the position of the minority that R.A.
6735 su ciently covers the initiative to amend the Constitution. Hence, of the
thirteen (13) members of the Court who participated in the deliberation, six
(6) members, namely, Chief Justice Narvasa and Associate Justices Regalado,
Davide, Romero, Bellosillo and Kapunan voted to deny the motions for lack of
merit; and six (6) members, namely, Associate Justices Melo, Puno, Mendoza,
Francisco, Hermosisima and Panganiban voted to grant the same. Justice
Vitug maintained his opinion that the matter was not ripe for judicial
adjudication. The motions for reconsideration were therefore denied for lack
of sufficient votes to modify or reverse the decision of March 19, 1997. 8
O n June 23, 1997, PIRMA led with the COMELEC a Petition for Initiative to
Propose Amendments to the Constitution (PIRMA Petition). The PIRMA Petition was
supported by around ve (5) million signatures in compliance with R.A. 6735 and
COMELEC Resolution No. 2300, and prayed that the COMELEC, among others: (1) cause
the publication of the petition in Filipino and English at least twice in newspapers of
general and local circulation; (2) order all election o cers to verify the signatures
collected in support of the petition and submit these to the Commission; and (3) set the
holding of a plebiscite where the following proposition would be submitted to the
people for ratification:
Do you approve amendments to the 1987 Constitution giving the President
the chance to be reelected for another term, similarly with the Vice-President, so
that both the highest o cials of the land can serve for two consecutive terms of
six years each, and also to lift the term limits for all other elective government
o cials, thus giving Filipino voters the freedom of choice, amending for that
purpose, Section 4 of Article VII, Sections 4 and 7 of Article VI and Section 8 of
Article X, respectively?
T h e COMELEC dismissed the PIRMA Petition in view of the permanent

restraining order issued by the Court in Santiago v. COMELEC .
PIRMA led with this Court a Petition for Mandamus and Certiorari seeking to
set aside the COMELEC Resolution dismissing its petition for initiative. PIRMA argued
that the Court's decision on the Del n Petition did not bar the COMELEC from acting on
the PIRMA Petition as said ruling was not de nitive based on the deadlocked voting on
the motions for reconsideration, and because there was no identity of parties and
subject matter between the two petitions. PIRMA also urged the Court to reexamine its
ruling in Santiago v. COMELEC .
The Court dismissed the petition for mandamus and certiorari in its resolution
dated September 23, 1997. It explained:
dispositions in the Decision of this Court in G.R. No. 127325 promulgated on
The Court next considered the question of whether there was need to resolve
the second issue posed by the petitioners, namely, that the Court re-examine its
ruling as regards R.A. 6735. On this issue, the Chief Justice and six (6) other
members of the Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan and
Torres, JJ., voted that there was no need to take it up. Vitug, J., agreed that there
was no need for re-examination of said second issue since the case at bar is not
the proper vehicle for that purpose. Five (5) other members of the Court, namely,
Melo, Puno, Francisco, Hermosisima, and Panganiban, JJ., opined that there was a
need for such a re-examination . . . . 9
In their Separate Opinions, Justice (later Chief Justice) Davide and Justice
Bellosillo stated that the PIRMA petition was dismissed on the ground of res judicata.
Now, almost a decade later, another group, Sigaw ng Bayan , seeks to utilize
anew the system of initiative to amend the Constitution, this time to change the form of
government from bicameral-presidential to unicameral-parliamentary system.
Let us look at the facts of the petition at bar with clear eyes.
O n February 15, 2006, Sigaw ng Bayan , in coordination with Union of Local
Authorities of the Philippines (ULAP ), embarked on a nationwide drive to gather
signatures to support the move to adopt the parliamentary form of government in the
country through charter change. They proposed to amend the Constitution as follows:
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended
to read as follows:
Section 1. (1) The legislative and executive powers shall be
vested in a unicameral Parliament which shall be composed of as many
members as may be provided by law, to be apportioned among the
provinces, representative districts, and cities in accordance with the number
of their respective inhabitants, with at least three hundred thousand
inhabitants per district, and on the basis of a uniform and progressive ratio.
Each district shall comprise, as far as practicable, contiguous, compact and
adjacent territory, and each province must have at least one member.
(2) Each Member of Parliament shall be a natural-born citizen of

the Philippines, at least twenty- ve years old on the day of the election, a
resident of his district for at least one year prior thereto, and shall be elected
by the quali ed voters of his district for a term of ve years without
limitation as to the number thereof, except those under the party-list system
which shall be provided for by law and whose number shall be equal to
twenty per centum of the total membership coming from the parliamentary
districts.
B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution

are hereby amended to read, as follows:
Section 1. There shall be a President who shall be the Head of

State. The executive power shall be exercised by a Prime Minister, with the
assistance of the Cabinet. The Prime Minister shall be elected by a majority
of all the Members of Parliament from among themselves. He shall be
responsible to the Parliament for the program of government.
C. For the purpose of insuring an orderly transition from the
bicameral-Presidential to a unicameral-Parliamentary form of
government, there shall be a new Article XVIII, entitled "Transitory
Provisions," which shall read, as follows:
Section 1. (1) The incumbent President and Vice President shall

serve until the expiration of their term at noon on the thirtieth day of June
2010 and shall continue to exercise their powers under the 1987
Constitution unless impeached by a vote of two thirds of all the members of
the interim parliament.
(2) In case of death, permanent disability, resignation or removal

from o ce of the incumbent President, the incumbent Vice President shall
succeed as President. In case of death, permanent disability, resignation or
removal from o ce of both the incumbent President and Vice President, the
interim Prime Minister shall assume all the powers and responsibilities of
Prime Minister under Article VII as amended.
Section 2. Upon the expiration of the term of the incumbent
President and Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6
and 7 of Article VI of the 1987 Constitution which shall hereby be amended
and Sections 18 and 24 which shall be deleted, all other Sections of Article
VI are hereby retained and renumbered sequentially as Section 2, ad
seriatim up to 26, unless they are inconsistent with the Parliamentary
system of government, in which case, they shall be amended to conform
with a unicameral parliamentary form of government; provided, however,
that any and all references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be changed to read
"Parliament;" that any and all references therein to "Member(s) of Congress,"
"Senator(s)" or "Member(s) of the House of Representatives" shall be
changed to read as "Member(s) of Parliament" and any and all references to
the "President" and/or "Acting President" shall be changed to read "Prime
Minister."IHEaAc
Section 3. Upon the expiration of the term of the incumbent

President and Vice President, with the exception of Sections 1, 2, 3 and 4 of
Article VII of the 1987 Constitution which are hereby amended and Sections
7, 8, 9, 10, 11 and 12 which are hereby deleted, all other Sections of Article
VII shall be retained and renumbered sequentially as Section 2, ad seriatim
up to 14, unless they shall be inconsistent with Section 1 hereof, in which
case they shall be deemed amended so as to conform to a unicameral
Parliamentary System of government; provided, however, that any all
references therein to "Congress," "Senate," "House of Representatives" and
"Houses of Congress" shall be changed to read "Parliament;" that any and
all references therein to "Member(s) of Congress," "Senator(s)" or
"Member(s) of the House of Representatives" shall be changed to read as
"Member(s) of Parliament" and any and all references to the "President" and
or "Acting President" shall be changed to read "Prime Minister."
Section 4. (1) There shall exist, upon the rati cation of these
amendments, an interim Parliament which shall continue until the Members
of the regular Parliament shall have been elected and shall have quali ed. It
shall be composed of the incumbent Members of the Senate and the House
of Representatives and the incumbent Members of the Cabinet who are
heads of executive departments.
(2) The incumbent Vice President shall automatically be a

Member of Parliament until noon of the thirtieth day of June 2010. He shall
also be a member of the cabinet and shall head a ministry. He shall initially
convene the interim Parliament and shall preside over its sessions for the
election of the interim Prime Minister and until the Speaker shall have been
elected by a majority vote of all the members of the interim Parliament from
among themselves.
(3) Senators whose term of o ce ends in 2010 shall be

Members of Parliament until noon of the thirtieth day of June 2010.
(4) Within forty- ve days from rati cation of these amendments,

the interim Parliament shall convene to propose amendments to, or
revisions of, this Constitution consistent with the principles of local
autonomy, decentralization and a strong bureaucracy.
Section 5. (1) The incumbent President, who is the Chief
Executive, shall nominate, from among the members of the interim
Parliament, an interim Prime Minister, who shall be elected by a majority
vote of the members thereof. The interim Prime Minister shall oversee the
various ministries and shall perform such powers and responsibilities as
may be delegated to him by the incumbent President."
(2) The interim Parliament shall provide for the election of the
members of Parliament, which shall be synchronized and held
simultaneously with the election of all local government o cials. The duly
elected Prime Minister shall continue to exercise and perform the powers,
duties and responsibilities of the interim Prime Minister until the expiration
of the term of the incumbent President and Vice President. 1 0
Sigaw ng Bayan prepared signature sheets, on the upper portions of which were
written the abstract of the proposed amendments, to wit:
Abstract : Do you approve of the amendment of Articles VI and VII of the
1987 Constitution, changing the form of government from the present bicameral-
presidential to a unicameral-parliamentary system of government, in order to
achieve greater e ciency, simplicity and economy in government; and providing
an Article XVIII as Transitory Provisions for the orderly shift from one system to
another?
The signature sheets were distributed nationwide to a liated non-government

organizations and volunteers of Sigaw ng Bayan, as well as to the local o cials. Copies
of the draft petition for initiative containing the proposition were also circulated to the
local officials and multi-sectoral groups.
Sigaw ng Bayan alleged that it also held barangay assemblies which culminated
on March 24, 25 and 26, 2006, to inform the people and explain to them the proposed
amendments to the Constitution. Thereafter, they circulated the signature sheets for
signing.
The signature sheets were then submitted to the local election o cers for
verification based on the voters' registration record. Upon completion of the
veri cation process, the respective local election o cers issued certi cations to
attest that the signature sheets have been veri ed. The veri ed signature sheets were
subsequently transmitted to the o ce of Sigaw ng Bayan for the counting of the
signatures.
On August 25, 2006 , herein petitioners Raul L. Lambino and Erico B. Aumentado
led with the COMELEC a Petition for Initiative to Amend the Constitution entitled "In the
Matter of Proposing Amendments to the 1987 Constitution through a People's Initiative:
A Shift from a Bicameral Presidential to a Unicameral Parliamentary Government by
Amending Articles VI and VII; and Providing Transitory Provisions for the Orderly Shift
from the Presidential to the Parliamentary System." They led an Amended Petition on
August 30, 2006 to re ect the text of the proposed amendment that was actually
presented to the people. They alleged that they were filing the petition in their own behalf
and together with some 6.3 million registered voters who have a xed their signatures
on the signature sheets attached thereto. Petitioners appended to the petition signature
sheets bearing the signatures of registered voters which they claimed to have been
veri ed by the respective city or municipal election o cers, and allegedly constituting at
least twelve per cent (12%) of all registered voters in the country, wherein each
legislative district is represented by at least three per cent (3%) of all the registered
voters therein.
As basis for the ling of their petition for initiative, petitioners averred that Section
5 (b) and (c), together with Section 7 of R.A. 6735, provide su cient enabling details for
the people's exercise of the power. Hence, petitioners prayed that the COMELEC issue
an Order:
1. Finding the petition to be su cient pursuant to Section 4, Article XVII of the 1987
Constitution;
2. Directing the publication of the petition in Filipino and English at least twice in
newspapers of general and local circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after
the Certi cation by the COMELEC of the su ciency of the petition, to allow the
Filipino people to express their sovereign will on the proposition.
Several groups led with the COMELEC their respective oppositions to

the petition for initiative , among them ONEVOICE, Inc., Christian S. Monsod, Rene B.
Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina,
Jr.; Alternative Law Groups, Inc., Senate Minority Leader Aquilino Q. Pimentel, Jr.,
Senators Sergio Osmeña III, Jamby A.S. Madrigal, Alfredo S. Lim, Pan lo M. Lacson,
Luisa P. Ejercito-Estrada, and Jinggoy Estrada; Representatives Loretta Ann P. Rosales,
Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; Bayan, Kilusang Mayo Uno,
Ecumenical Bishops Forum, Migrante, Gabriela, Gabriela Women's Party, Anakbayan,
League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs. Darby Santiago and
Reginald Pamugas; Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar,
Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong.
O n August 31, 2006 , the COMELEC denied due course to the Petition for
Initiative. It cited this Court's ruling in Santiago v. COMELEC 1 1 permanently enjoining
the Commission from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a su cient law shall have been validly enacted to
provide for the implementation of the system.
Forthwith, petitioners led with this Court the instant Petition for Certiorari and
Mandamus praying that the Court set aside the August 31, 2006 resolution of the
COMELEC, direct respondent COMELEC to comply with Section 4, Article XVII of the
Constitution, and set the date of the plebiscite. They state the following grounds in
support of the petition:
I.
The Honorable public respondent COMELEC committed grave abuse of

discretion in refusing to take cognizance of, and to give due course to the petition
for initiative, because the cited Santiago ruling of 19 March 1997 cannot be
considered the majority opinion of the Supreme Court en banc, considering that
upon its reconsideration and nal voting on 10 June 1997, no majority vote was
secured to declare Republic Act No. 6735 as inadequate, incomplete and
insufficient in standard.
II.
The 1987 Constitution, Republic Act No. 6735, Republic Act No. 8189 and
existing appropriation of the COMELEC provide for su cient details and authority
for the exercise of people's initiative, thus, existing laws taken together are
adequate and complete.
III.
The Honorable public respondent COMELEC committed grave abuse of

discretion in refusing to take cognizance of, and in refusing to give due course to
the petition for initiative, thereby violating an express constitutional mandate and
disregarding and contravening the will of the people. AEIHCS
A.
Assuming in arguendo that there is no enabling law, respondent

COMELEC cannot ignore the will of the sovereign people and must
accordingly act on the petition for initiative.
1.
The framers of the Constitution intended to give the people the
power to propose amendments and the people themselves are now
giving vibrant life to this constitutional provision.
2.
Prior to the questioned Santiago ruling of 19 March 1997, the

right of the people to exercise the sovereign power of initiative and
recall has been invariably upheld.
3.
The exercise of the initiative to propose amendments is a

political question which shall be determined solely by the sovereign
people.
4.
By signing the signature sheets attached to the petition for
initiative duly veri ed by the election o cers, the people have chosen
to perform this sacred exercise of their sovereign power.

B.
The Santiago ruling of 19 March 1997 is not applicable to the instant

petition for initiative filed by the petitioners.
C.
The permanent injunction issued in Santiago vs. COMELEC only

applies to the Delfin petition.
1.
It is the dispositive portion of the decision and not other

statements in the body of the decision that governs the rights in
controversy.
IV.
The Honorable public respondent failed or neglected to act or perform a

duty mandated by law.
A.
The ministerial duty of the COMELEC is to set the initiative for

plebiscite. 1 2
T h e oppositors-intervenors , ONEVOICE, Inc., Christian S. Monsod, Rene B.

Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina,
Jr.; Alternative Law Groups, Inc.; Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum,
Migrante Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students,
Leonardo San Jose, Jojo Pineda, Dr. Darby Santiago, and Dr. Reginald Pamugas; Senate
Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio Osmeña III, Jamby A.S.
Madrigal, Alfredo S. Lim, Pan lo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy
Estrada; Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia
Hontiveros-Baraquel; and Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D.
Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong moved to
intervene in this case and filed their respective Oppositions/Comments-in-Intervention.
The Philippine Constitution Association, Conrado F. Estrella, Tomas C. Toledo,
Mariano M. Tajon, Froilan M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and
Amado Gat Inciong; the Integrated Bar of the Philippines Cebu City and Cebu Province
Chapters; former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino; and
the Senate of the Philippines, represented by Senate President Manuel Villar, Jr., also
filed their respective motions for intervention and Comments-in-Intervention.
The Trade Union Congress of the Philippines, Sulongbayan Movement Foundation,
Inc., Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya, Philippine Transport and
General Workers Organization, and Victorino F. Balais likewise moved to intervene and
submitted to the Court a Petition-in-Intervention. All interventions and oppositions were
granted by the Court.
T h e oppositors-intervenors essentially submit that the COMELEC did not
commit grave abuse of discretion in denying due course to the petition for initiative as it
merely followed this Court's ruling in Santiago v. COMELEC as a rmed in the case of
PIRMA v. COMELEC , based on the principle of stare decisis; that there is no su cient
law providing for the authority and the details for the exercise of people's initiative to
amend the Constitution; that the proposed changes to the Constitution are actually
revisions, not mere amendments; that the petition for initiative does not meet the
required number of signatories under Section 2, Article XVII of the 1987 Constitution;
that it was not shown that the people have been informed of the proposed amendments
as there was disparity between the proposal presented to them and the proposed
amendments attached to the petition for initiative, if indeed there was; that the
veri cation process was done ex parte, thus rendering dubious the signatures attached
to the petition for initiative; and that petitioners Lambino and Aumentado have no legal
capacity to represent the signatories in the petition for initiative.
T h e O ce of the Solicitor General (OSG) , in compliance with the Court's
resolution of September 5, 2006, led its Comment to the petition. A rming the
position of the petitioners, the OSG prayed that the Court grant the petition at bar and
render judgment: (1) declaring R.A. 6735 as adequate to cover or as reasonably
su cient to implement the system of initiative on amendments to the Constitution and
as having provided su cient standards for subordinate legislation; (2) declaring as valid
the provisions of COMELEC Resolution No. 2300 on the conduct of initiative or
amendments to the Constitution; (3) setting aside the assailed resolution of the
COMELEC for having been rendered with grave abuse of discretion amounting to lack or
excess of jurisdiction; and, (4) directing the COMELEC to grant the petition for initiative
and set the corresponding plebiscite pursuant to R.A. 6735, COMELEC Resolution No.
2300, and other pertinent election laws and regulations.
The COMELEC led its own Comment stating that its resolution denying the
petition for initiative is not tainted with grave abuse of discretion as it merely adhered to
the ruling of this Court in Santiago v. COMELEC which declared that R.A. 6735 does
not adequately implement the constitutional provision on initiative to amend the
Constitution. It invoked the permanent injunction issued by the Court against the
COMELEC from taking cognizance of petitions for initiative on amendments to the
Constitution until a valid enabling law shall have been passed by Congress. It asserted
that the permanent injunction covers not only the Del n Petition, but also all other
petitions involving constitutional initiatives.
On September 26, 2006, the Court heard the case . The parties were required
to argue on the following issues: 1 3
1. Whether petitioners Lambino and Aumentado are proper parties to le the present
Petition in behalf of the more than six million voters who allegedly signed the
proposal to amend the Constitution.
2. Whether the Petitions for Initiative led before the Commission on Elections
complied with Section 2, Article XVII of the Constitution.
3. Whether the Court's decision in Santiago v. COMELEC (G.R. No. 127325, March
19, 1997) bars the present petition.
4. Whether the Court should re-examine the ruling in Santiago v. COMELEC that there
is no su cient law implementing or authorizing the exercise of people's initiative
to amend the Constitution.
5. Assuming R.A. 6735 is su cient, whether the Petitions for Initiative led with the
COMELEC have complied with its provisions.
5.1 Whether the said petitions are sufficient in form and substance.
5.2 Whether the proposed changes embrace more than one subject
matter.
6. Whether the proposed changes constitute an amendment or revision of the
Constitution.
6.1 Whether the proposed changes are the proper subject of an

initiative.
7. Whether the exercise of an initiative to propose amendments to the Constitution is

a political question to be determined solely by the sovereign people.
ESAHca
8. Whether the Commission on Elections committed grave abuse of discretion in

dismissing the Petitions for Initiative filed before it.
With humility, I offer the following views to these issues as profiled:

I
Petitioners Lambino and Aumentado are proper parties to file the
present Petition in behalf of the more than six million voters who
allegedly signed the proposal to amend the Constitution.
Oppositors-intervenors contend that petitioners Lambino and Aumentado are not
the proper parties to le the instant petition as they were not authorized by the
signatories in the petition for initiative.
The argument deserves scant attention. The Constitution requires that the petition
for initiative should be led by at least twelve per cent (12%) of all registered voters, of
which every legislative district must be represented by at least three per cent (3%) of all
the registered voters therein. The petition for initiative led by Lambino and Aumentado
before the COMELEC was accompanied by voluminous signature sheets which prima
facie show the intent of the signatories to support the ling of said petition. Stated
above their signatures in the signature sheets is the following:
. . . My signature herein which shall form part of the petition for initiative to
amend the Constitution signifies my support for the filing thereof. 1 4
There is thus no need for the more than six (6) million signatories to execute separate
documents to authorize petitioners to file the petition for initiative in their behalf.
Neither is it necessary for said signatories to authorize Lambino and Aumentado
to le the petition for certiorari and mandamus before this Court. Rule 65 of the 1997
Rules of Civil Procedure provides who may le a petition for certiorari and mandamus.
Sections 1 and 3 of Rule 65 read:
SECTION 1. Petition for certiorari . — When any tribunal, board or o cer
exercising judicial or quasi-judicial functions has acted without or in excess of his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved thereby may le a veri ed petition
in the proper court . . . . .
SEC. 3. Petition for mandamus . — When any tribunal, corporation,

board, o cer or person unlawfully neglects the performance of an act which the
law speci cally enjoins as a duty resulting from an o ce, trust, or station . . . 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 . . . . .
Thus, any person aggrieved by the act or inaction of the respondent tribunal, board or
o cer may le a petition for certiorari or mandamus before the appropriate court.
Certainly, Lambino and Aumentado, as among the proponents of the petition for initiative
dismissed by the COMELEC, have the standing to file the petition at bar.
II
The doctrine of stare decisis does not bar the reexamination of
Santiago.
The latin phrase stare decisis et non quieta movere means "stand by the thing
and do not disturb the calm." The doctrine started with the English Courts. 1 5
Blackstone observed that at the beginning of the 18th century , "it is an established
rule to abide by former precedents where the same points come again in litigation." 1 6
As the rule evolved, early limits to its application were recognized : (1) it would not
be followed if it were "plainly unreasonable;" (2) where courts of equal authority
developed con icting decisions; and, (3) the binding force of the decision was the
"actual principle or principles necessary for the decision; not the words or reasoning
used to reach the decision." 1 7
The doctrine migrated to the United States. It was recognized by the framers of
the U.S. Constitution. 1 8 According to Hamilton , "strict rules and precedents" are
necessary to prevent "arbitrary discretion in the courts." 1 9 Madison agreed but
stressed that ". . . once the precedent ventures into the realm of altering or
repealing the law, it should be rejected ." 2 0 Prof. Consovoy well noted that Hamilton
and Madison "disagree about the countervailing policy considerations that would allow a
judge to abandon a precedent." 2 1 He added that their ideas "reveal a deep internal
con ict between the concreteness required by the rule of law and the exibility
demanded in error correction. It is this internal con ict that the Supreme Court
has attempted to deal with for over two centuries ." 2 2
Indeed, two centuries of American case law will con rm Prof. Consovoy's
observation although stare decisis developed its own life in the United States. Two
strains of stare decisis have been isolated by legal scholars. 2 3 The rst, known as
vertical stare decisis deals with the duty of lower courts to apply the decisions of
the higher courts to cases involving the same facts. The second, known as horizontal
stare decisis requires that high courts must follow its own precedents . Prof.
Consovoy correctly observes that vertical stare decisis has been viewed as an
obligation , while horizontal stare decisis, has been viewed as a policy , imposing
choice but not a command. 2 4 Indeed, stare decisis is not one of the precepts set in
stone in our Constitution.
It is also instructive to distinguish the two kinds of horizontal stare decisis —
constitutional stare decisis and statutory stare decisis. 2 5 Constitutional stare
decisis involves judicial interpretations of the Constitution while s t at ut o r y stare
decisis involves interpretations of statutes. The distinction is important for courts
enjoy more exibility in refusing to apply stare decisis in constitutional litigations.
Justice Brandeis' view on the binding effect of the doctrine in constitutional litigations
still holds sway today. In soothing prose, Brandeis stated: "St are decisis is not . . . a
universal and inexorable command . The rule of stare decisis is not in exible .
Whether it shall be followed or departed from, is a question entirely within the
discretion of the court , which is again called upon to consider a question once
decided." 2 6 In the same vein, the venerable Justice Frankfurter opined: "the ultimate
touchstone of constitutionality is the Constitution itself and not what we have said
about it ." 2 7 In contrast , the application of stare decisis on judicial interpretation of
statutes is more in exible. As Justice Stevens explains: "after a statute has been
construed, either by this Court or by a consistent course of decision by other federal
judges and agencies, it acquires a meaning that should be as clear as if the judicial gloss
had been drafted by the Congress itself." 2 8 This stance re ects both respect for
Congress' role and the need to preserve the courts' limited resources.
In general, courts follow the stare decisis rule for an ensemble of reasons, 2 9 viz:
(1) it legitimizes judicial institutions; (2) it promotes judicial economy; and, (3) it allows
for predictability. Contrariwise, courts refuse to be bound by the stare decisis rule
where 3 0 (1) its application perpetuates illegitimate and unconstitutional holdings; (2) it
cannot accommodate changing social and political understandings; (3) it leaves the
power to overturn bad constitutional law solely in the hands of Congress; and, (4)
activist judges can dictate the policy for future courts while judges that respect stare
decisis are stuck agreeing with them.
In its 200-year history , the U.S. Supreme Court has refused to follow the stare
decisis rule and reversed its decisions in 192 cases . 3 1 The most famous of these
reversals is Brown v. Board of Education 3 2 which junked Plessy v. Ferguson's 3 3
"separate but equal doctrine." Plessy upheld as constitutional a state law requirement
that races be segregated on public transportation. In Brown , the U.S. Supreme Court,
unanimously held that "separate . . . is inherently unequal ." Thus, by freeing itself
from the shackles of stare decisis, the U.S. Supreme Court freed the colored Americans
from the chains of inequality. In the Philippine setting, this Court has likewise refused to
be straitjacketed by the stare decisis rule in order to promote public welfare. In La
Bugal-B'laan Tribal Association, Inc. v. Ramos , 3 4 we reversed our original ruling
that certain provisions of the Mining Law are unconstitutional. Similarly, in Secretary of
Justice v. Lantion , 3 5 we overturned our rst ruling and held, on motion for
reconsideration, that a private respondent is bereft of the right to notice and hearing
during the evaluation stage of the extradition process.
An examination of decisions on stare decisis in major countries will
show that courts are agreed on the factors that should be considered before
overturning prior rulings. These are workability, reliance, intervening
developments in the law and changes in fact. In addition, courts put in the
balance the following determinants: closeness of the voting, age of the prior
decision and its merits. 3 6
The leading case in deciding whether a court should follow the stare decisis rule
in constitutional litigations is Planned Parenthood v. Casey . 3 7 It established a 4-
pronged test . The court should (1) determine whether the rule has proved to be
intolerable simply in defying practical workability; (2) consider whether the rule is
subject to a kind of reliance that would lend a special hardship to the consequences of
overruling and add inequity to the cost of repudiation; (3) determine whether related
principles of law have so far developed as to have the old rule no more than a
remnant of an abandoned doctrine; and, (4) find out whether facts have so changed or
come to be seen differently, as to have robbed the old rule of signi cant application or
justification.
Following these guidelines, I submit that the stare decisis rule should
not bar the reexamination of Santiago. On the factor of intolerability , the six (6)
justices in Santiago held R.A. 6735 to be insu cient as it provided no standard to guide
COMELEC in issuing its implementing rules. The Santiago ruling that R.A. 6735 is
insu cient but without striking it down as unconstitutional is an intolerable
aberration , the only one of its kind in our planet. It improperly assails the ability of
legislators to write laws. It usurps the exclusive right of legislators to determine how far
laws implementing constitutional mandates should be crafted. It is elementary that
courts cannot dictate on Congress the style of writing good laws, anymore than
Congress can tell courts how to write literate decisions. The doctrine of separation of
powers forbids this Court to invade the exclusive lawmaking domain of Congress for
courts can construe laws but cannot construct them . The end result of the ruling
of the six (6) justices that R.A. 6735 is insu cient is intolerable for it rendered lifeless
the sovereign right of the people to amend the Constitution via an initiative. aSTECA
On the factor of reliance , the ruling of the six (6) justices in Santiago did not
induce any expectation from the people. On the contrary, the ruling smothered the hope
of the people that they could amend the Constitution by direct action. Moreover, reliance
is a non-factor in the case at bar for it is more appropriate to consider in decisions
involving contracts where private rights are adjudicated. The case at bar involves no
private rights but the sovereignty of the people.
On the factor of changes in law and in facts , certain realities on ground
cannot be blinked away. The urgent need to adjust certain provisions of the 1987
Constitution to enable the country to compete in the new millennium is given. The only
point of contention is the mode to effect the change — whether through constituent
assembly, constitutional convention or people's initiative. Petitioners claim that they
have gathered over six (6) million registered voters who want to amend the Constitution
through people's initiative and that their signatures have been veri ed by registrars of
the COMELEC. The six (6) justices who ruled that R.A. 6735 is insu cient to
implement the direct right of the people to amend the Constitution through an
initiative cannot waylay the will of 6.3 million people who are the bearers of
our sovereignty and from whom all government authority emanates . New
developments in our internal and external social, economic, and political settings
demand the reexamination of the Sant iag o case. T h e stare decisis rule is no
reason for this Court to allow the people to step into the future with a
blindfold .
III
A reexamination of R.A. 6735 will show that it is su cient to
implement the people's initiative.
Let us reexamine the validity of the view of the six (6) justices that R.A. 6735 is
insu cient to implement Section 2, Article XVII of the 1987 Constitution allowing
amendments to the Constitution to be directly proposed by the people through initiative.
When laws are challenged as unconstitutional, courts are counseled to
give life to the intent of legislators . In enacting R.A. 6735, it is daylight luminous that
Congress intended the said law to implement the right of the people, thru initiative, to
propose amendments to the Constitution by direct action. This all-important intent is
palpable from the following:
First . The text of R.A. 6735 is replete with references to the right of the people to
initiate changes to the Constitution:
The policy statement declares:
Sec. 2. Statement of 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. (emphasis supplied)
It defines "initiative" as "the power of the people to propose amendments to

the Constitution or to propose and enact legislations through an election called for
the purpose ," and "plebiscite" as "the electoral process by which an initiative on the
Constitution is approved or rejected by the people."
It provides the requirements for a petition for initiative to amend the Constitution,
viz:
(1) That "(a) petition for an initiative on the 1987 Constitution must
have at least twelve per centum (12%) of the total number of registered voters as
signatories, of which every legislative district must be represented by at least three
per centum (3%) of the registered voters therein;" 3 8 and
(2) That "(i)nitiative on the Constitution may be exercised only after ve
(5) years from the rati cation of the 1987 Constitution and only once every ve (5)
years thereafter." 3 9
It xes the effectivity date of the amendment under Section 9(b) which provides
that "(t)he proposition in an initiative on the Constitution approved by a majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite."
Second . The legislative history of R.A. 6735 also reveals the clear intent of the
lawmakers to use it as the instrument to implement people's initiative. No less than
former Chief Justice Hilario G. Davide, Jr. , the ponente in Santiago , concedes: 4 0
We agree that R.A. No. 6735 was, as its history reveals, intended to
cov er initiative to propose amendments to the Constitution . The Act is a
consolidation of House Bill No. 21505 and Senate Bill No. 17 . . . . 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
and by the House of Representatives. This approved bill is now R.A. No. 6735.
Third . The sponsorship speeches by the authors of R.A. 6735 similarly

demonstrate beyond doubt this intent. In his sponsorship remarks, the late Senator
Raul Roco (then a Member of the House of Representatives) emphasized the intent to
make initiative as a mode whereby the people can propose amendments to the
Constitution. We quote his relevant remarks: 4 1
SPONSORSHIP REMAKRS OF REP. ROCO
MR. ROCO. Mr. Speaker, with the permission of the committee, we wish to
speak in support of House Bill No. 497, entitled: INITIATIVE AND REFERENDUM
ACT OF 1987, which later on may be called Initiative and Referendum Act of 1989.
As a background, we want to point out the constitutional basis of this

particular bill. The grant of plenary legislative power upon the Philippine Congress
by the 1935, 1973 and 1987 Constitutions, Mr. Speaker, was based on the principle
that any power deemed to be legislative by usage and tradition is necessarily
possessed by the Philippine Congress unless the Organic Act has lodged it
elsewhere. This was a citation from Veer vs. Avelino (1946).
The presidential system introduced by the 1935 Constitution saw the

application of the principle of separation of powers. While under the parliamentary
system of the 1973 Constitution the principle remained applicable, Amendment 6
or the 1981 amendments to the 1973 Constitution ensured presidential dominance
over the Batasang Pambansa.
Our constitutional history saw the shifting and sharing of legislative power
between the legislature and the executive.
Transcending such changes in the exercise of legislative power is the

declaration in the Philippine Constitution that he Philippines is a Republican State
where sovereignty resides in the people and all government authority emanates
from them.
In a Republic, Mr. Speaker, the power to govern is vested in its citizens

participating through the right of suffrage and indicating thereby their choice of
lawmakers.
Under the 1987 Constitution, lawmaking power is still preserved in

Congress. However, to institutionalize direct action of the people as exempli ed in
the 1986 Revolution, there is a practical recognition of what we refer to as people's
sovereign power. This is the recognition of a system of initiative and referendum.
Section 1, Article VI of the 1987 Constitution provides, and I quote:
The legislative power shall be vested in the Congress of the

Philippines which shall consist of a Senate and House of Representatives,
except to the extent reserved to the people by the provision on initiative and
referendum.
In other words, Mr. Speaker, under the 1987 Constitution, Congress does not
have plenary powers. There is a reserved legislative power given to the people
expressly.
Section 32, the implementing provision of the same article of the

Constitution provides, and I quote:
The Congress shall, as early as possible, provide for a system of

initiative and referendum, and the exceptions therefrom, whereby the people
can directly propose and enact laws or approve or reject any act or law or
part thereof passed by the Congress or local legislative body after the
registration of a petition therefor signed by at least ten per centum of the
total number of registered voters, or which every legislative district must be
represented by at least three per centum of the registered voters thereof.
In other words, Mr. Speaker, in Section 1 of Article VI which describes

legislative power, there are reserved powers given to the people. In Section 32, we
are speci cally told to pass at the soonest possible time a bill on referendum and
initiative. We are speci cally mandated to share the legislative powers of Congress
with the people.
Of course, another applicable provision in the Constitution is Section 2,

Article XVII, Mr. Speaker. Under the provision on amending the Constitution, the
section reads, and I quote:
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 ve
years following the rati cation of this Constitution nor oftener than once
every five years thereafter.
We in Congress therefore, Mr. Speaker, are charged with the duty to
implement the exercise by the people of the right of initiative and referendum.
House Bill No. 21505, as reported out by the Committee on Suffrage and
Electoral Reforms last December 14, 1988, Mr. Speaker, is the response to such a
constitutional duty.
Mr. Speaker, if only to allay apprehensions, allow me to show where

initiative and referendum under Philippine law has occurred.
Mr. Speaker, the system of initiative and referendum is not new. In a very
limited extent, the system is provided for in our Local Government Code today. On
initiative, for instance, Section 99 of the said code vests in the barangay assembly
the power to initiate legislative processes, to hold plebiscites and to hear reports of
the sangguniang barangay. There are variations of initiative and referendum. The
barangay assembly is composed of all persons who have been actual residents of
the barangay for at least six months, who are at least 15 years of age and citizens
of the Philippines. The holding of barangay plebiscites and referendum is also
provided in Sections 100 and 101 of the same Code.
Mr. Speaker, for brevity I will not read the pertinent quotations but will just
submit the same to the Secretary to be incorporated as part of my speech.
To continue, Mr. Speaker these same principles are extensively applied by

the Local Government Code as it is now mandated by the 1987 Constitution. ETCcSa
In other jurisdictions, Mr. Speaker, we have ample examples of initiative and

referendum similar to what is now contained in House Bill No. 21505. As in the
1987 Constitutions and House Bill No. 21505, the various constitutions of the
states in the United States recognize the right of registered voters to initiate the
enactment of any statute or to reject any existing law or parts thereof in a
referendum. These states are Alaska, Alabama, Montana, Massachusetts, Dakota,
Oklahoma, Oregon, and practically all other states.
In certain American states, the kind of laws to which initiative and
referendum applies is also without ay limitation, except for emergency measures,
which is likewise incorporated in Section 7(b) of House Bill No. 21505.
The procedure provided by the House bill — from the ling of the petition,
the requirement of a certain percentage of supporters to present a proposition to
submission to electors — is substantially similar to those of many American laws.
Mr. Speaker, those among us who may have been in the United States, particularly
in California, during election time or last November during the election would have
noticed different propositions posted in the city walls. They were propositions
submitted by the people for incorporation during the voting. These were in the
nature of initiative, Mr. Speaker.
Although an infant then in Philippine political structure, initiative and

referendum is a tried and tested system in other jurisdictions, and House Bill No.
21505 through the various consolidated bills is patterned after American
experience in a great respect.
What does the bill essentially say, Mr. Speaker? Allow me to try to bring our
colleagues slowly through the bill. The bill has basically only 12 sections. The
constitutional Commissioners, Mr. Speaker, saw this system of initiative and
referendum as an instrument which can be used should the legislature show itself
indifferent to the needs of the people. That is why, Mr. Speaker, it may be timely,
since we seem to be amply criticized, as regards our responsiveness, to pass this
bill on referendum and initiative now. While indifference would not be an
appropriate term to use at this time, and surely it is not the case although we are so
criticized, one must note that it is a felt necessity of our times that laws need to be
proposed and adopted at the soonest possible time to spur economic
development, safeguard individual rights and liberties, and share governmental
power with the people.
With the legislative powers of the President gone, we alone, together with
the Senators when they are minded to agree with us, are left with the burden of
enacting the needed legislation.
Let me now bring our colleagues, Mr. Speaker, to the process advocated by
the bill.
First, initiative and referendum, Mr. Speaker, is de ned. Initiative essentially

is what the term connotes. It means that the people, on their own political
judgment, submit fore the consideration and voting of the general electorate a bill
or a piece of legislation.
Under House Bill No. 21505, there are three kinds of initiative. One is an
initiative to amend the Constitution. This can occur once every ve years. Another
is an initiative to amend statutes that we may have approved. Had this bill been an
existing law, Mr. Speaker, it is most likely that an overwhelming majority of the
barangays in the Philippines would have approved by initiative the matter of direct
voting.
The third mode of initiative, Mr. Speaker, refers to a petition proposing to

enact regional, provincial, city, municipal or barangay laws or ordinances. It comes
from the people and it must be submitted directly to the electorate. The bill gives a
de nite procedure and allows the COMELEC to de ne rules and regulations to give
teeth to the power of initiative.
On the other hand, referendum, Mr. Speaker, is the power of the people to
approve or reject something that Congress has already approved.
For instance, Mr. Speaker, when we divide the municipalities or the

barangays into two or three, we must rst get the consent of the people affected
through plebiscite or referendum.
Referendum is a mode of plebiscite, Mr. Speaker. However, referendum can

also be petitioned by the people if, for instance, they do not life the bill on direct
elections and it is approved subsequently by the Senate. If this bill had already
become a law, then the people could petition that a referendum be conducted so
that the acts of Congress can be appropriately approved or rebuffed.
The initial stage, Mr. Speaker, is what we call the petition. As envisioned in
the bill, the initiative comes from the people, from registered voters of the country,
by presenting a proposition so that the people can then submit a petition, which is
a piece of paper that contains the proposition. The proposition in the example I
have been citing is whether there should be direct elections during the barangay
elections. So the petition must be led in the appropriate agency and the
proposition must be clear stated. It can be tedious but that is how an effort to have
direct democracy operates.

Section 4 of the bill gives requirements, Mr. Speaker. It will not be all that
easy to have referendum or initiative petitioned by the people. Under Section 4 of
the committee report, we are given certain limitations. For instance, to exercise the
power of initiative or referendum, at least 10 percent of the total number of
registered voters, of which every legislative district is represented by at least 3
percent of the registered voters thereof, shall sign a petition. These numbers, Mr.
Speaker, are not taken from the air. They are mandated by the Constitution. There
must be a requirement of 10 percent for ordinary laws and 3 percent representing
all districts. The same requirement is mutatis mutandis or appropriately modi ed
and applied to the different sections. So if it is, for instance, a petition on initiative
or referendum for a barangay, there is a 10 percent or a certain number required of
the voters of the barangay. If it is for a district, there is also a certain number
required of all towns of the district that must seek the petition. If it is for a province
then again a certain percentage of the provincial electors is required. All these are
based with reference to the constitutional mandate.
The conduct of the initiative and referendum shall be supervised and shall
be upon the call of the Commission on Elections. However, within a period of 30
days from receipt of the petition, the COMELEC shall determine the su ciency of
the petition, publish the same and set the date of the referendum which shall not
be earlier than 45 days but not later than 90 days from the determination by the
commission of the su ciency of the petition. Why is this so, Mr. Speaker? The
petition must rst be determined by the commission as to its su ciency because
our Constitution requires that no bill can be approved unless it contains one
subject matter. It is conceivable that in the fervor of an initiative or referendum, Mr.
Speaker, there may be more than two topics sought to be approved and that
cannot be allowed. In fact, that is one of the prohibitions under this referendum
and initiative bill. When a matter under initiative or referendum is approved by the
required number of votes, Mr. Speaker, it shall become effective 15 days following
the completion of its publication in the O cial Gazette . Effectively then, Mr.
Speaker, all the bill seeks to do is to enlarge and recognize the legislative powers of
the Filipino people.
Mr. Speaker, I think this Congress, particularly this House, cannot ignore or
cannot be insensitive to the call for initiative and referendum. We should have
done it in 1987 but that is past. Maybe we should have done it in 1988 but that too
had already passed, but it is only February 1989, Mr. Speaker, and we have enough
time this year at least to respond to the need of our people to participate directly in
the work of legislation.
For these reasons, Mr. Speaker, we urge and implore our colleagues to
approve House Bill No. 21505 as incorporated in Committee Report No. 423 of the
Committee on Suffrage and Electoral Reforms.
In closing, Mr. Speaker, I also request that the prepared text of my speech,
together with the footnotes since they contain many references to statutory history
and foreign jurisdiction, be reproduced as part of the Record for future purposes.
Equally unequivocal on the intent of R.A. 6735 is the sponsorship speech of

former Representative Salvador Escudero III , viz: 4 2
SPONSORSHIP REMARKS OF REP. ESCUDERO
MR. ESCUDERO. Thank you, Mr. Speaker.
Mr. Speaker and my dear colleagues: Events in recent years highlighted the
need to heed the clamor of the people for a truly popular democracy. One recalls
the impatience of those who actively participated in the parliament of the streets,
some of whom are now distinguished Members of this Chamber. A substantial
segment of the population feel increasingly that under the system, the people have
the form but not the reality or substance of democracy because of the increasingly
elitist approach of their chosen Representatives to many questions vitally affecting
their lives. There have been complaints, not altogether unfounded, that many
candidates easily forge their campaign promises to the people once elected to
o ce. The 1986 Constitutional Commission deemed it wise and proper to provide
for a means whereby the people can exercise the reserve power to legislate or
propose amendments to the Constitution directly in case their chose
Representatives fail to live up to their expectations. That reserve power known as
initiative is explicitly recognized in three articles and four sections of the 1987
Constitution, namely: Article VI Section 1; the same article, Section 312; Article X,
Section 3; and Article XVII, Section 2. May I request that he explicit provisions of
these three articles and four sections be made part of my sponsorship speech, Mr.
Speaker.
These constitutional provisions are, however, not self-executory. There is a
need for an implementing law that will give meaning and substance to the process
of initiative and referendum which are considered valuable adjuncts to
representative democracy. It is needless to state that this bill when enacted into
law will probably open the door to strong competition of the people, like pressure
groups, vested interests, farmers' group, labor groups, urban dwellers, the urban
poor and the like, with Congress in the field of legislation.
Such probability, however, pales in signi cance when we consider that

through this bill we can hasten the politization of the Filipino which in turn will aid
government in forming an enlightened public opinion, and hopefully produce better
and more responsive and acceptable legislations.
Furthermore, Mr. Speaker, this would give the parliamentarians of the streets
and cause-oriented groups an opportunity to articulate their ideas in a truly
democratic forum, thus, the competition which they will offer to Congress will
hopefully be a healthy one. Anyway, in an atmosphere of competition there are
common interests dear to all Filipinos, and the pursuit of each side's competitive
goals can still take place in an atmosphere of reason and moderation.
Mr. Speaker and my dear colleagues, when the distinguished Gentleman

from Camarines Sur and this Representation led our respective versions of the bill
in 1987, we were hoping that the bill would be approved early enough so that our
people could immediately use the agrarian reform bill as an initial subject matter or
as a take-off point.
However, in view of the very heavy agenda of the Committee on Local

Government, it took sometime before the committee could act on these. But as
they say in Tagalog, huli man daw at magaling ay naihahabol din. The passage of
this bill therefore, my dear colleagues, could be one of our nest hours when we
can set aside our personal and political consideration for the greater good of our
people. I therefore respectfully urge and plead that this bill be immediately
approved.
Thank you, Mr. Speaker.
We cannot dodge the duty to give effect to this intent for the "
[c]ourts have the duty to interpret the law as legislated and when possible, to honor
the clear meaning of statutes as revealed by its language, purpose and history." 4 3
T h e tragedy is that while conceding this intent , the six (6) justices,
nevertheless, ruled 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" for the following reasons: (1) Section 2 of the Act does not suggest an
initiative on amendments to the Constitution; (2) the Act does not provide for the
contents of the petition for initiative on the Constitution; and (3) 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. DCIAST
To say the least, these alleged omissions are too weak a reason to throttle the
right of the sovereign people to amend the Constitution through initiative. R.A. 6735
clearly expressed the legislative policy for the people to propose amendments to the
Constitution by direct action. The fact that the legislature may have omitted certain
details in implementing the people's initiative in R.A. 6735, does not justify the
conclusion that, ergo , the law is insu cient. What were omitted were mere details
a n d not fundamental policies which Congress alone can and has determined.
Implementing details of a law can be delegated to the COMELEC and can be the
subject of its rule-making power. Under Section 2(1), Article IX-C of the Constitution, the
COMELEC has the power to enforce and administer all laws and regulations relative to
the conduct of initiatives. Its rule-making power has long been recognized by this Court.
In ruling R.A. 6735 insu cient but without striking it down as unconstitutional, the six (6)
justices failed to give due recognition to the indefeasible right of the sovereign people to
amend the Constitution.
IV
The proposed constitutional changes, albeit substantial, are mere
amendments and can be undertaken through people's initiative.
Oppositors-intervenors contend that Sections 1 and 2, Article XVII of the 1987
Constitution, only allow the use of people's initiative to amend and not to revise the
Constitution. They theorize that the changes proposed by petitioners are substantial
and thus constitute a revision which cannot be done through people's initiative.
In support of the thesis that the Constitution bars the people from proposing
substantial amendments amounting to revision, the oppositors-intervenors cite the
following deliberations during the Constitutional Commission, viz: 4 4
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.
xxx xxx xxx
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 clari ed 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.
Commissioner (later Chief Justice) Hilario G. Davide, Jr., espoused the same view:
45
MR. DAVIDE. . . . . We are limiting the right of the people, by initiative, to submit a proposal
for amendment only, not for revision, only once every five years . . . .
MR. MAAMBONG. My rst question: Commissioner Davide's proposed amendment on

line 1 refers to "amendment." Does it cover the word "revision" as de ned 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."
Commissioner (now a distinguished Associate Justice of this Court) Adolfo S.

Azcuna also clarified this point 4 6 —
MR. OPLE. To more closely re ect the intent of Section 2, may I suggest that we add to
"Amendments" "OR REVISIONS OF" to read: "Amendments OR REVISION OF this
Constitution."
MR. AZCUNA. I think it was not allowed to revise the Constitution by initiative.
MR. OPLE. How is that again?
MR. AZCUNA. It was not our intention to allow a revision of the Constitution by initiative
but merely by amendments.
MR. BENGZON. Only by amendments.
MR. AZCUNA. I remember that was taken on the floor.
MR. RODRIGO. Yes, just amendments.
The oppositors-intervenors then point out that by their proposals, petitioners will
"change the very system of government from presidential to parliamentary, and the form
of the legislature from bicameral to unicameral," among others. They allegedly seek
other major revisions like the inclusion of a minimum number of inhabitants per district,
a change in the period for a term of a Member of Parliament, the removal of the limits on
the number of terms, the election of a Prime Minister who shall exercise the executive
power, and so on and so forth. 4 7 In sum, oppositors-intervenors submit that "the
proposed changes to the Constitution effect major changes in the political structure and
system, the fundamental powers and duties of the branches of the government, the
political rights of the people, and the modes by which political rights may be exercised."
4 8 They conclude that they are substantial amendments which cannot be done through
people's initiative. In other words, they posit the thesis that only simple but not
substantial amendments can be done through people's initiative .
With due respect, I disagree . To start with, the words "simple " and
"substantial " are not subject to any accurate quantitative or qualitative test. Obviously,
relying on the quantitative test , oppositors-intervenors assert that the amendments
will result in some one hundred (100) changes in the Constitution. Using the same
test , however, it is also arguable that petitioners seek to change basically only two (2)
out of the eighteen (18) articles of the 1987 Constitution, i.e. Article VI (Legislative
Department) and Article VII (Executive Department), together with the complementary
provisions for a smooth transition from a presidential bicameral system to a
parliamentary unicameral structure. The big bulk of the 1987 Constitution will not
be affected including Articles I (National Territory), II (Declaration of Principles and
State Policies), III (Bill of Rights), IV (Citizenship), V (Suffrage), VIII (Judicial Department),
IX (Constitutional Commissions), X (Local Government), XI (Accountability of Public
O cers), XII (National Economy and Patrimony), XIII (Social Justice and Human Rights),
XIV (Education, Science and Technology, Arts, Culture, and Sports), XV (The Family), XVI
(General Provisions), and even XVII (Amendments or Revisions). In ne, we stand on
unsafe ground if we use simple arithmetic to determine whether the proposed
changes are "simple" or "substantial."
Nor can this Court be surefooted if it applies the qualitative test to

determine whether the said changes are "simple " or "substantial " as to amount to a
revision of the Constitution. The well-regarded political scientist, Garner , says that a
good constitution should contain at least three (3) sets of provisions: the constitution
of liberty which sets forth the fundamental rights of the people and imposes certain
limitations on the powers of the government as a means of securing the enjoyment of
these rights; the constitution of government which deals with the framework of
government and its powers, laying down certain rules for its administration and de ning
the electorate; and, the constitution of sovereignty which prescribes the mode or
procedure for amending or revising the constitution. 4 9 It is plain that the proposed
changes will basically affect only the constitution of government . The
constitutions of liberty and sovereignty remain unaffected. Indeed, the proposed
changes will not change the fundamental nature of our state as ". . . a
democratic and republican state." 5 0 It is self-evident that a unicameral-
parliamentary form of government will not make our State any less democratic or any
less republican in character. Hence, neither will the use of the qualitative test
resolve the issue of whether the proposed changes are "simple" or
"substantial."
For this reason and more, our Constitutions did not adopt any quantitative
or qualitative test to determine whether an "amendment" is "simple" or
"substantial." Nor did they provide that "substantial" amendments are beyond
the power of the people to propose to change the Constitution . Instead, our
Constitutions carried the traditional distinction between "amendment" and
"revision," i.e., "amendment" means change, including complex changes while
"revision" means complete change , including the adoption of an entirely new covenant.
The legal dictionaries express this traditional difference between "amendment " and
"revision." Black's Law Dictionary de nes "amendment " as "[a] formal revision or
addition proposed or made to a statute, constitution, pleading, order, or other
instrument; speci cally, a change made by addition, deletion, or correction." 5 1 Black's
also refers to "amendment" as "the process of making such a revision." 5 2 Revision , on
the other hand, is de ned as "[a] reexamination or careful review for correction or
improvement." 5 3 In parliamentary law, it is described as "[a] general and thorough
rewriting of a governing document, in which the entire document is open to
amendment." 5 4 Similarly, Ballentine's Law Dictionary de nes "amendment " — as "[a]
correction or revision of a writing to correct errors or better to state its intended
purpose" 5 5 and "amendment of constitution" as "[a] process of proposing, passing, and
ratifying amendments to the . . . constitution." 5 6 In contrast, "revision ," when applied to
a statute (or constitution), "contemplates the re-examination of the same subject matter
contained in the statute (or constitution), and the substitution of a new, and what is
believed to be, a still more perfect rule." 5 7
One of the most authoritative constitutionalists of his time to whom we owe a lot
of intellectual debt, Dean Vicente G. Sinco , of the University of the Philippines College
of Law, (later President of the U.P. and delegate to the Constitutional Convention of
1971) similarly spelled out the difference between "amendment" and "revision." He
opined: "the revision of a constitution, in its strict sense, refers to a consideration of the
entire constitution and the procedure for effecting such change; while amendment
refers only to particular provisions to be added to or to be altered in a constitution." 5 8
Our people were guided by this traditional distinction when they effected
changes in our 1935 and 1973 Constitutions . In 1940 , the changes to the 1935
Constitution which included the conversion from a unicameral system to a
bicameral structure , the shortening of the tenure of the President and Vice-President
from a six-year term without reelection to a four-year term with one reelection, and the
establishment of the COMELEC, together with the complementary constitutional
provisions to effect the changes, were considered amendments only, not a
revision . ISCaTE
The replacement of the 1935 Constitution by the 1973 Constitution was,

however, considered a revision since the 1973 Constitution was "a completely new
fundamental charter embodying new political, social and economic concepts." 5 9 Among
those adopted under the 1973 Constitution were: the parliamentary system in place of
the presidential system, with the leadership in legislation and administration vested with
the Prime Minister and his Cabinet; the reversion to a single-chambered lawmaking body
instead of the two-chambered, which would be more suitable to a parliamentary system
of government; the enfranchisement of the youth beginning eighteen (18) years of age
instead of twenty-one (21), and the abolition of literacy, property, and other substantial
requirements to widen the basis for the electorate and expand democracy; the
strengthening of the judiciary, the civil service system, and the Commission on Elections;
the complete nationalization of the ownership and management of mass media; the
giving of control to Philippine citizens of all telecommunications; the prohibition against
alien individuals to own educational institutions, and the strengthening of the
government as a whole to improve the conditions of the masses. 6 0
The 1973 Constitution in turn underwent a series of signi cant changes in
1976, 1980, 1981, and 1984. The two signi cant innovations introduced in 1976
were (1) the creation of an interim Batasang Pambansa, in place of the interim National
Assembly, and (2) Amendment No. 6 which conferred on the President the power to
issue decrees, orders, or letters of instruction, whenever the Batasang Pambansa fails to
act adequately on any matter for any reason that in his judgment requires immediate
action, or there is grave emergency or threat or imminence thereof, with such decrees, or
letters of instruction to form part of the law of the land. In 1980 , the retirement age of
seventy (70) for justices and judges was restored. In 1981 , the presidential system with
parliamentary features was installed. The transfer of private land for use as residence to
natural-born citizens who had lost their citizenship was also allowed. Then, in 1984 , the
membership of the Batasang Pambansa was reapportioned by provinces, cities, or
districts in Metro Manila instead of by regions; the O ce of the Vice-President was
created while the executive committee was abolished; and, urban land reform and social
housing programs were strengthened. 6 1 These substantial changes were simply
considered as mere amendments .
I n 1986 , Mrs. Corazon C. Aquino assumed the presidency, and repudiated the
1973 Constitution. She governed under Proclamation No. 3, known as the Freedom
Constitution.
I n February 1987 , the new constitution was rati ed by the people in a
plebiscite and superseded the Provisional or Freedom Constitution. Retired Justice
Isagani Cruz underscored the outstanding features of the 1987 Constitution which
consists of eighteen articles and is excessively long compared to the Constitutions of
1935 and 1973, on which it was largely based. Many of the original provisions of the
1935 Constitution, particularly those pertaining to the legislative and executive
departments, have been restored because of the revival of the bicameral Congress of
the Philippines and the strictly presidential system. The independence of the judiciary
has been strengthened, with new provisions for appointment thereto and an increase in
its authority, which now covers even political questions formerly beyond its jurisdiction.
While many provisions of the 1973 Constitution were retained , like those on the
Constitutional Commissions and local governments, still the new 1987 Constitution
was deemed as a revision of the 1973 Constitution .
It is now contended that this traditional distinction between amendment and
revision was abrogated by the 1987 Constitution. It is urged that Section 1 of Article
XVII gives the power to amend or revise to Congress acting as a constituent assembly,
and to a Constitutional Convention duly called by Congress for the purpose. Section 2 of
the same Article, it is said, limited the people's right to change the Constitution via
initiative through simple amendments . In other words, the people cannot propose
substantial amendments amounting to revision.
With due respect, I do not agree . As aforestated, the oppositors-intervenors
who peddle the above proposition rely on the opinions of some Commissioners
expressed in the course of the debate on how to frame the amendment/revision
provisions of the 1987 Constitution. It is familiar learning , however, that opinions in a
constitutional convention, especially if inconclusive of an issue , are of very limited
value as explaining doubtful phrases, and are an unsafe guide (to the intent of the
people) since the constitution derives its force as a fundamental law, not from the action
of the convention but from the powers (of the people) who have rati ed and adopted it.
6 2 "Debates in the constitutional convention 'are of value as showing the views of the
individual members, and as indicating the reasons for their votes, but they give us no
light as to the views of the large majority who did not talk, much less of the
mass of our fellow citizens whose votes at the polls gave that instrument the force of
fundamental law.'" 6 3 Indeed, a careful perusal of the debates of the
Constitutional Commissioners can likewise lead to the conclusion that there
was no abandonment of the traditional distinction between "amendment" and
"revision." For during the debates, some of the commissioners referred to the
concurring opinion of former Justice Felix Q. Antonio in Javellana v. The Executive
Secretary , 6 4 that stressed the traditional distinction between amendment and
revision , thus: 6 5
MR. SUAREZ: We mentioned the possible use of only one term and that is, "amendment."
However, the Committee nally agreed to use the terms — "amendment" or
"revision" when our attention was called by the honorable Vice-President to the
substantial difference in the connotation and signi cance between the said terms.
As a result of our research, we came up with the observations made in the famous
— or notorious — Javellana doctrine, particularly the decision rendered by
Honorable Justice Makasiar, 6 6 wherein he made the following distinction between
"amendment" and "revision" of an existing Constitution: "Revision" may involve a
rewriting of the whole Constitution. On the other hand, the act of amending a
constitution envisages a change of speci c provisions only. The intention of an
act to amend is not the change of the entire Constitution, but only the improvement
of speci c parts or the addition of provisions deemed essential as a consequence
of new conditions or the elimination of parts already considered obsolete or
unresponsive to the needs of the times.
The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a

completely new fundamental Charter embodying new political, social and
economic concepts.
So, the Committee nally came up with the proposal that these two terms should be
employed in the formulation of the Article governing amendments or revisions to
the new Constitution.
To further explain "revision," former Justice Antonio, in his concurring opinion,

used an analogy — "When a house is completely demolished and another is erected on
the same location, do you have a changed, repaired and altered house, or do you have a
new house? Some of the material contained in the old house may be used again, some of
the rooms may be constructed the same, but this does not alter the fact that you have
altogether another or a new house." 6 7
Hence, it is arguable that when the framers of the 1987 Constitution used the
word "revision," they had in mind the "rewriting of the whole Constitution ," or the
"total overhaul of the Constitution ." Anything less is an "amendment" or just "a
change of speci c provisions only," the intention being "not the change of the entire
Constitution, but only the improvement of speci c parts or the addition of provisions
deemed essential as a consequence of new conditions or the elimination of parts
already considered obsolete or unresponsive to the needs of the times." Under this view,
"substantial" amendments are still "amendments" and thus can be proposed by the
people via an initiative.
As we cannot be guided with certainty by the inconclusive opinions of
the Commissioners on the difference between "simple" and "substantial" amendments
or whether "substantial" amendments amounting to revision are covered by people's
initiative, it behooves us to follow the cardinal rule in interpreting Constitutions , i.e.,
construe them to give effect to the intention of the people who adopted it . The
illustrious Cooley explains its rationale well, viz: 6 8
. . . the constitution does not derive its force from the convention which
framed, but from the people who rati ed it, the intent to be arrived at is that of the
people, and it is not to be supposed that they have looked for any dark or abstruse
meaning in the words employed, but rather that they have accepted them in the
sense most obvious to the common understanding, and rati ed the instrument in
the belief that that was the sense designed to be conveyed. These proceedings
therefore are less conclusive of the proper construction of the instrument than are
legislative proceedings of the proper construction of a statute; since in the latter
case it is the intent of the legislature we seek, while in the former we are
endeavoring to arrive at the intent of the people through the discussion and
deliberations of their representatives. The history of the calling of the convention,
the causes which led to it, and the discussions and issues before the people at the
time of the election of the delegates, will sometimes be quite as instructive and
satisfactory as anything to be gathered form the proceedings of the convention.
Corollarily, a constitution is not to be interpreted on narrow or technical principles,

b u t liberally and on broad general lines, to accomplish the object of its
establishment and carry out the great principles of government — not to
defeat them . 6 9 One of these great principles is the sovereignty of the people.
Let us now determine the intent of the people when they adopted initiative as a
mode to amend the 1987 Constitution. We start with the Declaration of Principles
and State Policies which Sinco describes as "the basic political creed of the nation" 7 0
as it "lays down the policies that government is bound to observe." 7 1 Section 1, Article II
of the 1935 Constitution and Section 1, Article II of the 1973 Constitution, similarly
provide that "the Philippines is a republican state . Sovereignty resides in the people
and all government authority emanates from them." In a republican state, the power
of the sovereign people is exercised and delegated to their representatives .
Thus in Metropolitan Transportation Service v. Paredes , this Court held that "a
republican state, like the Philippines . . . (is) derived from the will of the people
themselves in freely creating a government 'of the people, by the people, and for the
people' — a representative government through which they have agreed to exercise the
powers and discharge the duties of their sovereignty for the common good and general
welfare." 7 2
In both the 1935 and 1973 Constitutions, the sovereign people delegated to
Congress or to a convention , the power to amend or revise our fundamental law.
History informs us how this delegated power to amend or revise the
Constitution was abused particularly during the Marcos regime . The
Constitution was changed several times to satisfy the power requirements of the
regime. Indeed, Amendment No. 6 was passed giving unprecedented legislative
powers to then President Ferdinand E. Marcos. A conspiracy of circumstances from
above and below, however, brought down the Marcos regime through an extra
constitutional revolution , albeit a peaceful one by the people. A main reason for the
people's revolution was the failure of the representatives of the people to
effectuate timely changes in the Constitution either by acting as a constituent
assembly or by calling a constitutional convention . When the representatives of
the people defaulted in using this last peaceful process of constitutional change, the
sovereign people themselves took matters in their own hands . They revolted and
replaced the 1973 Constitution with the 1987 Constitution. aCSDIc
It is signi cant to note that the people modi ed the ideology of the
1987 Constitution as it stressed the power of the people to act directly in
their capacity as sovereign people. Correspondingly, the power of the
legislators to act as representatives of the people in the matter of amending
or revising the Constitution was diminished for the spring cannot rise above
its source . To re ect this signi cant shift, Section 1, Article II of the 1987 Constitution
was reworded . It now reads: "the Philippines is a democratic and republican state.
Sovereignty resides in the people and all government authority emanates from them."
The commissioners of the 1986 Constitutional Commission explained the addition of
the word "democratic," in our first Declaration of Principles, viz:
MR. NOLLEDO. I am putting the word "democratic" because of the provisions that we are
now adopting which are covering consultations with the people. For example, we
have provisions on recall, initiative, the right of the people even to participate in
lawmaking and other instances that recognize the validity of interference by the
people through people's organizations . . . . 7 3
MR. OPLE. . . . . The Committee added the word "democratic" to "republican," and,
therefore, the rst sentence states: "The Philippines is a republican and democratic
state . . . .
May I know from the committee the reason for adding the word "democratic" to
"republican"? The constitutional framers of the 1935 and 1973 Constitutions were
content with "republican." Was this done merely for the sake of emphasis?
MR. NOLLEDO. . . . . "democratic" was added because of the need to emphasize

people power and the many provisions in the Constitution that we have
approved related to recall, people's organizations, initiative and the like,
which recognize the participation of the people in policy-making in
certain circumstances . . . .
MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does meet
a need . . . .
MR. NOLLEDO. According to Commissioner Rosario Braid, "democracy" here is

understood as participatory democracy. 7 4 (emphasis supplied)
The following exchange between Commissioners Rene V. Sarmiento and

Adolfo S. Azcuna is of the same import: 7 5
MR. SARMIENTO. When we speak of republican democratic state, are we referring to
representative democracy?
MR. AZCUNA. That is right.
MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and 1935
Constitutions which used the words "republican state" because "republican state"
would refer to a democratic state where people choose their representatives?
MR. AZCUNA. We wanted to emphasize the participation of the people in government.
MR. SARMIENTO. But even in the concept "republican state," we are stressing the
participation of the people . . . . So the word "republican" will su ce to cover
popular representation.
MR. AZCUNA. Yes, the Commissioner is right. However, the committee felt that in view of
the introduction of the aspects of direct democracy such as initiative,
referendum or recall, it was necessary to emphasize the democratic portion of
republicanism, of representative democracy as well. So, we want to add the
word "democratic" to emphasize that in this new Constitution there are
instances where the people would act directly, and not through their
representatives . (emphasis supplied)
Consistent with the stress on direct democracy , the systems of initiative ,

referendum, and recall were enthroned as polestars in the 1987 Constitution. Thus,
Commissioner Blas F. Ople who introduced the provision on people's initiative said:
76
MR. OPLE. . . . . I think this is just the correct time in history when we should introduce an
innovative mode of proposing amendments to the Constitution, vesting in the
people and their organizations the right to formulate and propose their own
amendments and revisions of the Constitution in a manner that will be
binding upon the government. It is not that I believe this kind of direct action by the
people for amending a constitution will be needed frequently in the future, but it is
good to know that the ultimate reserves of sovereign power still rest
upon the people and that in the exercise of that power, they can propose
amendments or revision to the Constitution . (emphasis supplied)
Commissioner Jose E. Suarez also explained the people's initiative as a safety

valve, as a peaceful way for the people to change their Constitution, by citing our
experiences under the Marcos government, viz: 7 7
MR. SUAREZ. We agree to the di culty in implementing this particular provision, but we
are providing a channel for the expression of the sovereign will of the people
through this initiative system.
MR. BENGZON. Is Section 1, paragraphs (a) and (b), not su cient channel for expression
of the will of the people, particularly in the amendment or revision of the
Constitution?
MR. SUAREZ. Under normal circumstances, yes. But we know what happened during
the 20 years under the Marcos administration. So, if the National
Assembly, in a manner of speaking , is operating under the thumb of the Prime
Minister or the President as the case may be, and the required number of votes
could not be obtained, we would have to provide for a safety valve in order that
the people could ventilate in a very peaceful way their desire for amendment to the
Constitution.
It is very possible that although the people may be pressuring the National
Assembly to constitute itself as a constituent assembly or to call a
constitutional convention, the members thereof would not heed the
people's desire and clamor . So this is a third avenue that we are providing for
the implementation of what is now popularly known as people's power. ( emphasis
supplied)
Commissioner Regalado E. Maambong opined that the people's initiative
could avert a revolution , viz: 7 8
MR. MAAMBONG. . . . . the amending process of the Constitution could actually avert a
revolution by providing a safety valve in bringing about changes in the
Constitution through paci c means. This, in effect, operationalizes what political
law authors call the "prescription of sovereignty." (emphasis supplied)
The end result is Section 2, Article XVII of the 1987 Constitution which expressed the
right of the sovereign people to propose amendments to the Constitution by direct
action or through initiative. To that extent, the delegated power of Congress to
amend or revise the Constitution has to be adjusted downward . Thus, Section 1,
Article VI of the 1987 Constitution has to be reminted and now provides : "The
legislative power shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum ."
Prescinding from these baseline premises, the argument that the people
through initiative cannot propose substantial amendments to change the
Constitution turns sovereignty on its head . At the very least, the submission
constricts the democratic space for the exercise of the direct sovereignty of the
people. It also denigrates the sovereign people who they claim can only be trusted with
the power to propose "simple" but not "substantial" amendments to the Constitution.
According to Sinco , the concept of sovereignty should be strictly understood in its legal
meaning as it was originally developed in law. 7 9 Legal sovereignty, he explained, is "the
possession of unlimited power to make laws . Its possessor is the legal sovereign. It
implies the absence of any other party endowed with legally superior powers and
privileges. It is not subject to law 'for it is the author and source of law.' Legal
sovereignty is thus the equivalent of legal omnipotence ." 8 0
To be sure, sovereignty or popular sovereignty, emphasizes the supremacy of the
people's will over the state which they themselves have created. The state is created by
and subject to the will of the people, who are the source of all political power. Rightly, we
have ruled that "the sovereignty of our people is not a kabalistic principle whose
dimensions are buried in mysticism. Its metes and bounds are familiar to the framers of
our Constitutions. They knew that in its broadest sense, sovereignty is meant to be
supreme, the jus summi imperu, the absolute right to govern." 8 1
James Wilson , regarded by many as the most brilliant, scholarly, and visionary
lawyer in the United States in the 1780s, laid down the rst principles of popular
sovereignty during the Pennsylvania ratifying convention of the 1787 Constitution of the
United States: 8 2
There necessarily exists, in every government, a power from which there is
no appeal, and which, for that reason, may be termed supreme, absolute, and
uncontrollable.
. . . . Perhaps some politician, who has not considered with su cient

accuracy our political systems, would answer that, in our governments, the
supreme power was vested in the constitutions . . . . This opinion approaches a
step nearer to the truth, but does not reach it. The truth is, that in our
governments, the supreme, absolute, and uncontrollable power remains
in the people . As our constitutions are superior to our legislatures, so the people
are superior to our constitutions. Indeed the superiority, in this last instance, is
much greater; for the people possess over our constitution, control in act, as well as
right. (emphasis supplied)
I wish to reiterate that in a democratic and republican state, only the

people is sovereign — not the elected President, not the elected Congress, not this
unelected Court. Indeed, the sovereignty of the people which is indivisible cannot be
reposed in any organ of government. Only its exercise may be delegated to any of
them. In our case, the people delegated to Congress the exercise of the
sovereign power to amend or revise the Constitution . If Congress, as delegate,
can exercise this power to amend or revise the Constitution, can it be argued that the
sovereign people who delegated the power has no power to substantially amend the
Constitution by direct action? If the sovereign people do not have this power to make
substantial amendments to the Constitution, what did it delegate to Congress? How can
the people lack this fraction of a power to substantially amend the Constitution when
by their sovereignty, all power emanates from them? It will take some mumbo jumbo to
argue that the whole is lesser than its part. Let Sinco clinch the point: 8 3
But although possession may not be delegated, the exercise of sovereignty
often is. It is delegated to the organs and agents of the state which constitute its
government, for it is only through this instrumentality that the state ordinarily
functions. However ample and complete this delegation may be, it is
nevertheless subject to withdrawal at any time by the state . On this point
Willoughby says:
Thus, States may concede to colonies almost complete autonomy of

government and reserve to themselves a right to control of so slight and so
negative a character as to make its exercise a rare and improbable
occurrence; yet so long as such right of control is recognized to exist, and
the autonomy of the colonies is conceded to be founded upon a grant and
continuing consent of the mother countries the sovereignty of those mother
countries over them is complete and they are to be considered as
possessing only administrative autonomy and not political independence.
cHaDIA
At the very least, the power to propose substantial amendments to the

Constitution is shared with the people. We should accord the most benign
treatment to the sovereign power of the people to propose substantial
amendments to the Constitution especially when the proposed amendments
will adversely affect the interest of some members of Congress. A contrary
approach will suborn the public weal to private interest and worse, will enable
Congress (the delegate) to frustrate the power of the people to determine
their destiny (the principal).
All told, the teaching of the ages is that constitutional clauses acknowledging
the right of the people to exercise initiative and referendum are liberally and
generously construed in favor of the people . 8 4 Initiative and referendum powers
must be broadly construed to maintain maximum power in the people . 8 5 We
followed this orientation in Subic Bay Metropolitan Authority v. Commission on
Elections . 8 6 There is not an iota of reason to depart from it.
V
The issues at bar are not political questions.
Petitioners submit that "[t]he validity of the exercise of the right of the sovereign
people to amend the Constitution and their will, as expressed by the fact that over six
million registered voters indicated their support of the Petition for Initiative, is a purely
political question which is beyond even the very long arm of this Honorable Court's
power of judicial review. Whether or not the 1987 Constitution should be amended is a
matter which the people and the people alone must resolve in their sovereign capacity."
8 7 They argue that "[t]he power to propose amendments to the Constitution is a right
explicitly bestowed upon the sovereign people. Hence, the determination by the people
to exercise their right to propose amendments under the system of initiative is a
sovereign act and falls squarely within the ambit of a 'political question.'" 8 8
The petitioners cannot be sustained. This issue has long been interred by
Sanidad v. Commission on Elections , viz: 8 9
Political questions are neatly associated with the wisdom, not the legality of
a particular act. Where the vortex of the controversy refers to the legality or validity
of the contested act, that matter is de nitely justiciable or non-political. What is in
the heels of the Court is not the wisdom of the act of the incumbent President in
proposing amendments to the Constitution, but his constitutional authority to
perform such act or to assume the power of a constituent assembly. Whether the
amending process confers on the President that power to propose amendments is
therefore a downright justiciable question. Should the contrary be found, the
actuation of the President would merely be a brutum fulmen. If the Constitution
provides how it may be amended, the judiciary as the interpreter of that
Constitution, can declare whether the procedure followed or the authority assumed
was valid or not.
We cannot accept the view of the Solicitor General, in pursuing his theory of
non-justiciability, that the question of the President's authority to propose
amendments and the regularity of the procedure adopted for submission of the
proposals to the people ultimately lie in the judgment of the latter. A clear
Descartes fallacy of vicious cycle. Is it not that the people themselves, by their
sovereign act, provided for the authority and procedure for the amending process
when they rati ed the present Constitution in 1973? Whether, therefore, that
constitutional provision has been followed or not is indisputably a proper subject
of inquiry, not by the people themselves — of course — who exercise no power of
judicial review, but by the Supreme Court in whom the people themselves vested
that power, a power which includes the competence to determine whether the
constitutional norms for amendments have been observed or not. And, this inquiry
must be done a priori not a posteriori, i.e., before the submission to and rati cation
by the people.
In the instant case, the Constitution sets in black and white the requirements for
the exercise of the people's initiative to amend the Constitution. The amendments must
be proposed by the people "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 ve years following the rati cation of this Constitution
nor oftener than once every ve years thereafter . " 9 0 Compliance with these
requirements is clearly a justiciable and not a political question. Be that as it may, how
the issue will be resolved by the people is addressed to them and to them alone.
VI
Whether the Petition for Initiative led before the COMELEC
complied with Section 2, Article XVII of the Constitution and R.A.
6735 involves contentious issues of fact which should rst be
resolved by the COMELEC.
Oppositors-intervenors impugn the Petition for Initiative as it allegedly lacks the
required number of signatures under Section 2, Article XVII of the Constitution. Said
provision requires that the petition for initiative be supported by at least twelve per cent
(12%) of the total number of registered voters, of which every legislative district must be
represented by at least three per cent (3%) of the registered voters therein. Oppositors-
intervenors contend that no proper veri cation of signatures was done in several
legislative districts. They assert that mere veri cation of the names listed on the
signature sheets without verifying the signatures reduces the signatures submitted for
their respective legislative districts to mere scribbles on a piece of paper.
Oppositor-intervenor ONEVOICE, Inc., submitted to this Court a certi cation dated
August 23, 2006 issued by Atty. Marlon S. Casquejo, Election O cer IV, Third District
and OIC, First and Second District, Davao City, stating that his o ce has not veri ed the
signatures submitted by the proponents of the people's initiative. The certi cation
reads:
This is to CERTIFY that this o ce (First, Second and Third District, Davao
City) HAS NOT VERIFIED the signatures of registered voters as per documents
submitted in this o ce by the proponents of the People's Initiative. Consequently,
NO ELECTION DOCUMENTS AND/OR ORDER ISSUED BY HIGHER
SUPERIORS used as basis for such verification of signatures. 9 1
Senate Minority Leader Aquilino Pimentel, Jr., among others, further clari ed that
although Atty. Casquejo and Reynne Joy B. Bullecer, Acting Election O cer IV, First
District, Davao City, later issued certi cations stating that the O ce of the City Election
O cer has examined the list of individuals appearing in the signature sheets, 9 2 the
certi cations reveal that the o ce had veri ed only the names of the signatories, but not
their signatures. Oppositors-intervenors submit that not only the names of the
signatories should be veri ed, but also their signatures to ensure the identities of the
persons affixing their signatures on the signature sheets.
Oppositor-intervenor Luwalhati Antonino also alleged that petitioners failed to
obtain the signatures of at least three per cent (3%) of the total number of registered
voters in the First Legislative District of South Cotabato. For the First District of South
Cotabato, petitioners submitted 3,182 signatures for General Santos City, 2,186
signatures for Tupi, 3,308 signatures for Tampakan and 10,301 signatures for
Polomolok, or 18,977 signatures out of 359,488 registered voters of said district.
Antonino, however, submitted to this Court a copy of the certi cation by Glory D. Rubio,
Election O cer III, Polomolok, dated May 8, 2006, showing that the signatures from
Polomolok were not veri ed because the Book of Voters for the whole municipality was
in the custody of the Clerk of Court of the Regional Trial Court, Branch 38, Polomolok,
South Cotabato. 9 3 Excluding the signatures from Polomolok from the total number of
signatures from the First District of South Cotabato would yield only a total of 8,676
signatures which falls short of the three per cent (3%) requirement for the district.
Former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino
likewise submitted to this Court a certi cation issued by Atty. Stalin A. Baguio, City
Election O cer IV, Cagayan de Oro City, stating that the list of names appearing on the
signature sheets corresponds to the names of registered voters in the city, thereby
implying that they have not actually verified the signatures. 9 4
The argument against the su ciency of the signatures is further bolstered by
Alternative Law Groups, Inc., which submitted copies of similarly worded certi cations
from the election o cers from Zamboanga del Sur 9 5 and from Compostela Valley. 9 6
Alternative Law Groups, Inc., further assails the regularity of the veri cation process as it
alleged that veri cation in some areas were conducted by Barangay o cials and not by
COMELEC election o cers. It led with this Court copies of certi cations from Sulu and
Sultan Kudarat showing that the veri cation was conducted by local o cials instead of
COMELEC personnel. 9 7
Petitioners, on the other hand, maintain that the veri cation conducted by the
election o cers su ciently complied with the requirements of the Constitution and the
law on initiative.
Contravening the allegations of oppositors-intervenors on the lack of veri cation
in Davao City and in Polomolok, South Cotabato, petitioner Aumentado claimed that the
same election o cers cited by the oppositors-intervenors also issued certi cations
showing that they have veri ed the signatures submitted by the proponents of the
people's initiative. He presented copies of the certi cations issued by Atty. Marlon S.
Casquejo for the Second and Third Legislative Districts of Davao City stating that he
veri ed the signatures of the proponents of the people's initiative. His certi cation for
the Second District states:
This is to CERTIFY that this O ce has examined the list of individuals as
appearing in the Signature Sheets of the Registered Voters of District II, Davao City,
submitted on April 7, 2006 by MR. NONATO BOLOS, Punong Barangay, Centro,
Davao City for veri cation which consists of THIRTY THOUSAND SIX HUNDRED
SIXTY-TWO (30,662) signatures.
Anent thereto, it appears that of the THIRTY THOUSAND SIX HUNDRED

SIXTY-TWO (30,662) individuals, only TWENTY-TWO THOUSAND SIX HUNDRED
SIXTY-EIGHT (22,668) individuals were found to be REGISTERED VOTERS, in the
Computerized List of Voters of SECOND CONGRESSIONAL DISTRICT, DAVAO
CITY. 9 8
It was also shown that Atty. Casquejo had issued a clari catory certi cation regarding
the verification process conducted in Davao City. It reads:
Regarding the veri cation of the signatures of registered voters, this O ce
has previously issued two (2) separate certi cations for the 2nd and 3rd Districts
of Davao City on April 20, 2006 and April 26, 2006, respectively, speci cally
relating to the voters who supported the people's initiative. It was stated therein
that the names submitted, comprising 22,668 individual voters in the 2nd District
and 18,469 individual voters in the 3rd District, were found [to] be registered voters
of the respective districts mentioned as veri ed by this O ce based on the
Computerized List of Voters. aESIDH
It must be clari ed that the August 23, 2006 Certi cation was issued in error
and by mistake for the reason that the signature veri cation has not been fully
completed as of that date.
I hereby CERTIFY that this O ce has examined the signatures of the voters
as appearing in the signature sheets and has compared these with the signatures
appearing in the book of voters and computerized list of voters . . . 9 9
Petitioner Aumentado also submitted a copy of the certi cation dated May 8, 2006
issued by Polomolok Election O cer Glory D. Rubio to support their claim that said
officer had conducted a verification of signatures in said area. The certification states:
This is to certify further, that the total 68,359 registered voters of this
municipality, as of the May 10, 2004 elections, 10,804 names with signatures were
submitted for veri cation and out of which 10,301 were found to be legitimate
voters as per o cial list of registered voters, which is equivalent to 15.07% of the
total number of registered voters of this Municipality. 1 0 0
In addition to the lack of proper veri cation of the signatures in numerous

legislative districts, allegations of fraud and irregularities in the collection of signatures
in Makati City were cited by Senator Pimentel, among others, to wit:
(1) No notice was given to the public, for the bene t of those who may
be concerned, by the Makati COMELEC O ce that signature sheets have already
been submitted to it for "veri cation." The camp of Mayor Binay was able to
witness the "verification process" only because of their pro-active stance;
(2) In District 1, the proponents of charter change submitted 43,405

signatures for veri cation. 36,219 alleged voters' signatures (83% of the number of
signatures submitted) were rejected outright. 7,186 signatures allegedly "passed"
COMELEC's initial scrutiny. However, upon examination of the signature sheets by
Atty. Mar-len Abigail Binay, the said 7,186 signatures could not be accounted for.
Atty. Binay manually counted 2,793 signatures marked with the word "OK" and
3,443 signatures marked with a check, giving only 6,236 "apparently veri ed
signatures." Before the COMELEC o cer issued the Certi cation, Atty. Binay
already submitted to the said o ce not less than 55 letters of "signature
withdrawal," but no action was ever taken thereon;
(3) In District 2, 29,411 signatures were submitted for veri cation.

23,521 alleged voters' signatures (80% of those submitted) were rejected outright.
Of the 5,890 signatures which allegedly passed the COMELEC's initial scrutiny,
some more will surely fail upon closer examination;
(4) In the absence of clear, transparent, and uniform rules the COMELEC
personnel did not know how to treat the objections and other observations coming
from the camp of Mayor Binay. The oppositors too did not know where to go for
their remedy when the COMELEC personnel merely "listened" to their objections
and other observations. As mentioned earlier, the COMELEC personnel did not even
know what to do with the many "letters of signature withdrawal" submitted to it;
(5) Signatures of people long dead, in prison, abroad, and other

forgeries appear on the Sigaw ng Bayan Signature Sheets. There is even a 15-year
old alleged signatory;
(6) There are Signature Sheets obviously signed by one person;
(7) A Calara M. Roberto and a Roberto M. Calara both allegedly signed

the Signature Sheets. 1 0 1
Also, there are allegations that many of the signatories did not understand what
they have signed as they were merely misled into signing the signature sheets. Opposed
to these allegations are rulings that a person who a xes his signature on a document
raises the presumption that the person so signing has knowledge of what the document
contains. Courts have recognized that there is great value in the stability of records, so
to speak, that no one should commit herself or himself to something in writing unless
she or he is fully aware and cognizant of the effect it may have upon her on him. 1 0 2 In
the same vein, we have held that a person is presumed to have knowledge of the
contents of a document he has signed. 1 0 3 But as this Court is not a trier of facts, it
cannot resolve the issue.
In sum, the issue of whether the petitioners have complied with the constitutional
requirement that the petition for initiative be signed by at least twelve per cent (12%) of
the total number of registered voters, of which every legislative district must be
represented by at least three per cent (3%) of the registered voters therein, involves
contentious facts. Its resolution will require presentation of evidence and
their calibration by the COMELEC according to its rules . During the oral argument
on this case, the COMELEC , through Director Alioden Dalaig of its Law Department,
admitted that it has not examined the documents submitted by the petitioners in
support of the petition for initiative, as well as the documents led by the oppositors to
buttress their claim that the required number of signatures has not been met. The
exchanges during the oral argument likewise clearly show the need for further
clarification and presentation of evidence to prove certain material facts. 1 0 4
The only basis used by the COMELEC to dismiss the petition for initiative was
this Court's ruling in Santiago v. COMELEC that R.A. 6735 was insu cient. It has yet
to rule on the su ciency of the form and substance of the petition . I
respectfully submit that this issue should be properly litigated before the
COMELEC where both parties will be given full opportunity to prove their allegations.
For the same reasons, the su ciency of the Petition for Initiative and its
compliance with the requirements of R.A. 6735 on initiative and its implementing
rules is a question that should be resolved by the COMELEC at the rst instance, as it is
the body that is mandated by the Constitution to administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum and recall. 1 0 5
VII
COMELEC gravely abused its discretion when it denied due course
to the Lambino and Aumentado petition.
In denying due course to the Lambino and Aumentado petition, COMELEC relied
on this Court's ruling in Santiago permanently enjoining it from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution until a
su cient law shall have been validly enacted to provide for the implementation of the
system.
Again, I respectfully submit that COMELEC's reliance on Santiago constitutes
grave abuse of discretion amounting to lack of jurisdiction. The Santiago case did not
establish the rm doctrine that R.A. 6735 is not a su cient law to implement the
constitutional provision allowing people's initiative to amend the Constitution. To
recapitulate, the records show that in the original decision, eight (8) justices 1 0 6
voted that R.A. 6735 was not a su cient law; ve (5) justices 1 0 7 voted that said law
was su cient; and one (1) justice 1 0 8 abstained from voting on the issue holding that
unless and until a proper initiatory pleading is led, the said issue is not ripe for
adjudication. 1 0 9
Within the reglementary period, the respondents led their motion for
reconsideration. On June 10, 1997, the Court denied the motion. Only thirteen (13)
justices resolved the motion for Justice Torres inhibited himself. 1 1 0 Of the original
majority of eight (8) justices, only six (6) reiterated their ruling that R.A. 6735
was an insu cient law . Justice Hermosisima, originally part of the majority of eight
(8) justices, changed his vote and joined the minority of ve (5) justices. He opined
without any equivocation that R.A. 6735 was a sufficient law, thus:
It is one thing to utter a happy phrase from a protected cluster; another to
think under re — to think for action upon which great interests depend." So said
Justice Oliver Wendell Holmes, and so I am guided as I reconsider my concurrence
to the holding of the majority that "R.A. No. 6735 is inadequate to cover the system
of initiative on amendments to the Constitution and to have failed to provide
su cient standard for subordinate legislation" and now to interpose my dissent
thereto.
xxx xxx xxx
WHEREFORE, I vote to dismiss the Delfin petition.
I vote, however, to declare R.A. No. 6735 as adequately providing

the legal basis for the exercise by the people of their right to amend the
Constitution through initiative proceedings and to uphold the validity of
COMELEC Resolution No. 2300 insofar as it does not sanction the ling of the
initiatory petition for initiative proceedings to amend the Constitution without the
required names and/or signatures of at least 12% of all the registered voters, of
which every legislative district must be represented by at least 3% of the registered
voters therein. (emphasis supplied)
Justice Vitug remained steadfast in refusing to rule on the su ciency of R.A. 6735. In
ne, the final vote on whether R.A. 6735 is a su cient law was 6-6 with one (1) justice
inhibiting himself and another justice refusing to rule on the ground that the issue was
not ripe for adjudication.
It ought to be beyond debate that the six (6) justices who voted that R.A.
6735 is an insu cient law failed to establish a doctrine that could serve as a
precedent . Under any alchemy of law, a deadlocked vote of six (6) is not a
majority and a non-majority cannot write a rule with precedential value . The
opinion of the late Justice Ricardo J. Francisco is instructive, viz:
As it stands, of the thirteen justices who took part in the deliberations on the
issue of whether the motion for reconsideration of the March 19, 1997 decision
should be granted or not, only the following justices sided with Mr. Justice Davide,
namely: Chief Justice Narvasa, and Justices Regalado, Romero, Bellosillo and
Kapunan. Justices Melo, Puno, Mendoza, Hermosisima, Panganiban and the
undersigned voted to grant the motion; while Justice Vitug "maintained his opinion
that the matter was not ripe for judicial adjudication." In other words, only ve, out
of the other twelve justices, joined Mr. Justice Davide's June 10, 1997 ponencia
nding R.A. No. 6735 unconstitutional for its failure to pass the so called
"completeness and su ciency standards" tests. The "concurrence of a majority of
the members who actually took part in the deliberations" which Article VII, Section
4(2) of the Constitution requires to declare a law unconstitutional was, beyond
dispute, not complied with. And even assuming, for the sake of argument, that the
constitutional requirement on the concurrence of the "majority" was initially
reached in the March 19, 1997 ponencia, the same is inconclusive as it was still
open for review by way of a motion for reconsideration. It was only on June 10,
1997 that the constitutionality of R.A. No. 6735 was settled with nality, sans the
constitutionally required "majority." The Court's declaration, therefore, is manifestly
grafted with in rmity and wanting in force necessitating, in my view, the
reexamination of the Court's decision in G.R. No. 127325. It behooves the Court
"not to tarry any longer" nor waste this opportunity accorded by this new petition
(G.R. No. 129754) to relieve the Court's pronouncement from constitutional
infirmity.
The jurisprudence that an equally divided Court can never set a

precedent is well-settled . Thus, in the United States, an a rmance in the Federal
Supreme Court upon equal division of opinion is not an authority for the
determination of other cases, either in that Court or in the inferior federal courts. In Neil
v. Biggers , 1 1 1 which was a habeas corpus state proceeding by a state prisoner, the
U.S. Supreme Court held that its equally divided a rmance of petitioner's state
court conviction was not an "actual adjudication" barring subsequent consideration by
the district court on habeas corpus. In discussing the non-binding effect of an equal
division ruling , the Court reviewed the history of cases explicating the disposition
"affirmed by an equally divided Court:"
In this light, we review our cases explicating the disposition "a rmed by an
equally divided Court." On what was apparently the rst occasion of an equal
division, The Antelope, 10 Wheat, 66, 6 L. Ed. 268 (1825) , the Court simply
a rmed on the point of division without much discussion. Id., at 126-127 . Faced
with a similar division during the next Term, the Court again a rmed, Chief
Justice Marshall explaining that "the principles of law which have been argued,
cannot be settled; but the judgment is a rmed, the court being divided in opinion
upon it." Etting v. Bank of United States, 11 Wheat. 59, 78, 6 L. Ed. 419
(1826) . As was later elaborated in such cases, it is the appellant or petitioner who
asks the Court to overturn a lower court's decree. "If the judges are divided, the
reversal cannot be had, for no order can be made. The judgment of the court below,
therefore, stands in full force. It is indeed, the settled practice in such case to enter
a judgment of a rmance; but this is only the most convenient mode of expressing
the fact that the cause is nally disposed of in conformity with the action of the
court below, and that that court can proceed to enforce its judgment. The legal
effect would be the same if the appeal, or writ of error, were dismissed." Durant v.
Essex Co., 7 Wall. 107, 112, 19 L. Ed. 154 (1869) . Nor is an a rmance by an
equally divided Court entitled to precedential weight. Ohio ex rel. Eaton v. Price,
364 U.S. 263, 264, 80 S. Ct. 1463, 1464, 4 L. Ed. 2d 1708 (1960). . . . "
This doctrine established in Neil has not been overturned and has been cited
with approval in a number of subsequent cases, 1 1 2 and has been applied in various
state jurisdictions . DaHSIT
In the case of In the Matter of the Adoption of Erin G., a Minor Child , 1 1 3
wherein a putative father sought to set aside a decree granting petition for adoption of
an Indian child on grounds of noncompliance with the requirements of Indian Child
Welfare Act (ICWA), the Supreme Court of Alaska held that its decision in In re
Adoption of T.N.F. (T.N.F.) , 1 1 4 which lacked majority opinion supporting
holding that an action such as the putative father's would be governed by the state's
one-year statute of limitations, was not entitled to stare decisis effect. In T.N.F., a
majority of the justices sitting did not agree on a common rationale , as two of
four participating justices agreed that the state's one-year statute of limitations applied,
one justice concurred in the result only, and one justice dissented. There was no
"narrower" reasoning agreed upon by all three a rming justices. The concurring justice
expressed no opinion on the statute of limitations issue, and in agreeing with the result,
he reasoned that ICWA did not give the plaintiff standing to sue. 1 1 5 The two-justice
plurality, though agreeing that the state's one-year statute of limitations applied,
speci cally disagreed with the concurring justice on the standing issue. 1 1 6 Because a
majority of the participating justices in T.N.F. did not agree on any one ground for
affirmance, it was not accorded stare decisis effect by the state Supreme Court.
T h e Supreme Court of Michigan likewise ruled that the doctrine of stare
decisis does not apply to plurality decisions in which no majority of the justices
participating agree to the reasoning and as such are not authoritative interpretations
binding on the Supreme Court. 1 1 7
In State ex rel. Landis v. Williams , 1 1 8 the Supreme Court of Florida , in an
equally divided opinion on the matter, 1 1 9 held that chapter 15938, Acts of 1933 must
be allowed to stand, dismissing a quo warranto suit without prejudice. The Court held:
In a cause of original jurisdiction in this court a statute cannot be declared
unconstitutional nor its enforcement nor operation judicially interfered with, except
by the concurrence of a majority of the members of the Supreme Court sitting in
the cause wherein the constitutionality of the statute is brought in question or
judicial relief sought against its enforcement. Section 4 of Article 5, state
Constitution.
Therefore in this case the concurrence of a majority of the members of this

court in holding unconstitutional said chapter 15938, supra, not having been had, it
follows that the statute in controversy must be allowed to stand and accordingly
be permitted to be enforced as a presumptively valid act of the Legislature, and
that this proceeding in quo warranto must be dismissed without prejudice.
Spencer v. Hunt (Fla.) 147 So. 282 . This decision is not to be regarded as a
judicial precedent on the question of constitutional law involved concerning the
constitutionality vel non of chapter 15938. State ex rel. Hampton v. McClung,
47 Fla. 224, 37 So. 51 .
Quo warranto proceeding dismissed without prejudice by equal division of

the court on question of constitutionality of statute involved.
In U.S. v. Pink , 1 2 0 the Court held that the a rmance by the U.S. Supreme Court
by an equally divided vote of a decision of the New York Court of Appeals that
property of a New York branch of a Russian insurance company was outside the scope
of the Russian Soviet government's decrees terminating existence of insurance
companies in Russia and seizing their assets, while conclusive and binding upon the
parties as respects the controversy in that action, did not constitute an authoritative
"precedent."
I n Berlin v. E.C. Publications, Inc. , 1 2 1 the U.S. Court of Appeals Second
Circuit , in holding that printed lyrics which had the same meter as plaintiffs' lyrics, but
which were in form a parody of the latter, did not constitute infringement of plaintiffs'
copyrights, ruled that the prior case of Benny v. Loew's, Inc. , 1 2 2 which was affirmed
by an equally divided court, was not binding upon it, viz:
Under the precedents of this court, and, as seems justi ed by reason as well
as by authority, an a rmance by an equally divided court is as between the
parties, a conclusive determination and adjudication of the matter adjudged; but
the principles of law involved not having been agreed upon by a majority of the
court sitting prevents the case from becoming an authority for the determination of
other cases, either in this or in inferior courts. 1 2 3
I n Perlman v. First National Bank of Chicago , 1 2 4 the Supreme Court of

Illinois dismissed the appeal as it was unable to reach a decision because two judges
recused themselves and the remaining members of the Court were so divided, it was
impossible to secure the concurrence of four judges as is constitutionally required. The
Court followed the procedure employed by the U.S. Supreme Court when the
Justices of that Court are equally divided , i.e. a rm the judgment of the court that
was before it for review. The a rmance is a conclusive determination and adjudication
as between the parties to the immediate case, it is not authority for the determination of
other cases, either in the Supreme Court or in any other court. It is not "entitled to
precedential weight." The legal effect of such an a rmance is the same as if the appeal
was dismissed. 1 2 5
The same rule is settled in the English Courts . Under English precedents, 1 2 6 an
a rmance by an equally divided Court is, as between the parties, a conclusive
determination and adjudication of the matter adjudged; but the principles of law involved
not having been agreed upon by a majority of the court sitting prevents the case from
becoming an authority for the determination of other cases, either in that or in inferior
courts.
After a tour of these cases, we can safely conclude that the prevailing doctrine
is that, the a rmance by an equally divided court merely disposes of the
present controversy as between the parties and settles no issue of law ; the
a rmance leaves unsettled the principle of law presented by the case and is not
entitled to precedential weight or value . In other words, the decision only has res
judicata and not stare decisis effect. It is not conclusive and binding upon other
parties as respects the controversies in other actions .
Let us now examine the patent differences between the petition at bar and the
Del n Petition in the Santiago case which will prevent the Santiago ruling from
binding the present petitioners. To start with, the parties are different. More importantly,
the Delfin Petition did not contain the signatures of the required number of registered
voters under the Constitution: the requirement that twelve per cent (12%) of all the
registered voters in the country wherein each legislative district is represented by at
least three per cent (3%) of all the registered voters therein was not complied with. For
this reason, we ruled unanimously that it was not the initiatory petition which the
COMELEC could properly take cognizance of. In contrast , the present petition appears
to be accompanied by the signatures of the required number of registered voters. Thus,
while the Del n Petition prayed that an Order be issued xing the time and dates for
signature gathering all over the country, the Lambino and Aumentado petition, prayed for
the calling of a plebiscite to allow the Filipino people to express their sovereign will on
the proposition. COMELEC cannot close its eyes to these material differences.
Plainly, the COMELEC committed grave abuse of discretion amounting to lack of
jurisdiction in denying due course to the Lambino and Aumentado petition on the basis
of its mistaken notion that Santiago established the doctrine that R.A. 6735 was an
insu cient law. As aforestressed, that ruling of six (6) justices who do not represent the
majority lacks precedential status and is non-binding on the present petitioners.
The Court's dismissal of the PIRMA petition is of no moment. Su ce it to say that
we dismissed the PIRMA petition on the principle of res judicata . This was stressed by
former Chief Justice Hilario G. Davide Jr., viz:
The following are my reasons as to why this petition must be summarily
dismissed:
First , it is barred by res judicata . No one aware of the pleadings led

here and in Santiago v. COMELEC (G.R. No. 127325, 19 March 1997) may plead
ignorance of the fact that the former is substantially identical to the latter, except
for the reversal of the roles played by the principal parties and inclusion of
additional, yet not indispensable, parties in the present petition. But plainly, the
same issues and reliefs are raised and prayed for in both cases.
The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM,

MODERNIZATION, AND ACTION (PIRMA) and spouses ALBERTO PEDROSA and
CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-pro t
organization duly organized and existing under Philippine laws with o ce address
at Suite 403, Fedman Suites, 199 Salcedo Street, Legaspi Village, Makati City," with
"ALBERTO PEDROSA and CARMEN PEDROSA" as among its "officers." In Santiago,
the PEDROSAS were made respondents as founding members of PIRMA which, as
alleged in the body of the petition therein, "proposes to undertake the signature
drive for a people's initiative to amend the Constitution." In Santiago then, the
PEDROSAS were sued in their capacity as founding members of PIRMA.
The decision in Santiago speci cally declared that PIRMA was duly
represented at the hearing of the Del n petition in the COMELEC. In short, PIRMA
was intervenor-petitioner therein. Delfin alleged in his petition that he was a
founding member of the Movement for People's Initiative, and under footnote no. 6
of the decision, it was noted that said movement was "[l]ater identi ed as the
People's Initiative for Reforms, Modernization and Action, or PIRMA for brevity." In
their Comment to the petition in Santiago, the PEDROSAS did not deny that they
were founding members of PIRMA, and by their arguments, demonstrated beyond
a shadow of a doubt that they had joined Delfin or his cause.
No amount of semantics may then shield herein petitioners PIRMA and the
PEDROSAS, as well as the others joining them, from the operation of the principle
of res judicata, which needs no further elaboration. (emphasis supplied)
Justice Josue N. Bellosillo adds :

The essential requisites of res judicata are: (1) the former judgment must be
nal; (2) it must have been rendered by a court having jurisdiction over the subject
matter and the parties; (3) it must be a judgment on the merits; and (4) there must
be between the rst and second actions identity of parties, identity of subject
matter, and identity of causes of action. 1 2 7
Applying these principles in the instant case, we hold that all the elements
of res judicata are present. For sure, our Decision in Santiago v. COMELEC, which
was promulgated on 19 March 1997, and the motions for reconsideration thereof
denied with nality on 10 June 1997, is undoubtedly nal. The said Decision was
rendered by this Court which had jurisdiction over the petition for prohibition under
Rule 65. Our judgment therein was on the merits, i.e., rendered only after
considering the evidence presented by the parties as well as their arguments in
support of their respective claims and defenses. And, as between Santiago v.
COMELEC case and COMELEC Special Matter No. 97-001 subject of the present
petition, there is identity of parties, subject matter and causes of action.
Petitioners contend that the parties in Santiago v. COMELEC are not

identical to the parties in the instant case as some of the petitioners in the latter
case were not parties to the former case. However, a perusal of the records reveals
that the parties in Santiago v. COMELEC included the COMELEC, Atty. Jesus S.
Del n, spouses Alberto and Carmen Pedrosa, in their capacities as founding
members of PIRMA, as well as Atty. Pete Quirino-Quadra, another founding
member of PIRMA, representing PIRMA, as respondents. In the instant case, Atty.
Del n was never removed, and the spouses Alberto and Carmen Pedrosa were
joined by several others who were made parties to the petition. In other words, what
petitioners did was to make it appear that the PIRMA Petition was led by an
entirely separate and distinct group by removing some of the parties involved in
Santiago v. COMELEC and adding new parties. But as we said in Geralde v. Sabido
128 —
A party may not evade the application of the rule of res judicata by
simply including additional parties in the subsequent case or by not
including as parties in the later case persons who were parties in the
previous suit. The joining of new parties does not remove the case from the
operation of the rule on res judicata if the party against whom the judgment
is offered in evidence was a party in the rst action; otherwise, the parties
might renew the litigation by simply joining new parties.
DaAETS
The fact that some persons or entities joined as parties in the PIRMA
petition but were not parties in Santiago v. COMELEC does not affect the operation
of the prior judgment against those parties to the PIRMA Petition who were
likewise parties in Santiago v. COMELEC, as they are bound by such prior
judgment.
Needless to state, the dismissal of the PIRMA petition which was based on res
judicata binds only PIRMA but not the petitioners.
VIII
Finally, let the people speak.
"It is a Constitution we are expounding" solemnly intoned the great Chief
Justice John Marshall of the United States in the 1819 case of M'cCulloch v.
Maryland . 1 2 9 Our Constitution is not a mere collection of slogans. Every syllable of our
Constitution is suffused with signi cance and requires our full fealty. Indeed, the rule of
law will wither if we allow the commands of our Constitution to underrule us.
The first principle enthroned by blood in our Constitution is the sovereignty of
the people . We ought to be concerned with this rst principle, i.e., the inherent right of
the sovereign people to decide whether to amend the Constitution. Stripped of its
abstractions, democracy is all about who has the sovereign right to make decisions for
the people and our Constitution clearly and categorically says it is no other than the
people themselves from whom all government authority emanates. This right of the
people to make decisions is the essence of sovereignty, and it cannot receive
any minimalist interpretation from this Court . If there is any principle in the
Constitution that cannot be diluted and is non-negotiable, it is this sovereign right of the
people to decide.
This Court should always be in lockstep with the people in the exercise
of their sovereignty . Let them who will diminish or destroy the sovereign right of the
people to decide be warned. Let not their sovereignty be diminished by those who
belittle their brains to comprehend changes in the Constitution as if the people
themselves are not the source and author of our Constitution. Let not their sovereignty
be destroyed by the masters of manipulation who misrepresent themselves as the
spokesmen of the people.
Be it remembered that a petition for people's initiative that complies with the
requirement that it "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" is but the rst step in a long journey towards the amendment of the
Constitution. Lest it be missed, the case at bar involves but a proposal to amend the
Constitution. The proposal will still be debated by the people and at this time, there
is yet no fail-safe method of telling what will be the result of the debate. There will still be
a last step to the process of amendment which is the rati cation of the proposal by a
majority of the people in a plebiscite called for the purpose. Only when the
proposal is approved by a majority of the people in the plebiscite will it
become an amendment to the Constitution. All the way, we cannot tie the
tongues of the people. It is the people who decide for the people are not an
obscure footnote in our Constitution .
The people's voice is sovereign in a democracy. Let us hear them. Let us
heed them. Let us not only sing paens to the people's sovereignty. Yes, it is
neither too soon nor too late to let the people speak.
IN VIEW WHEREOF, I vote to REVERSE and SET ASIDE the resolution of the
Commission on Elections dated August 31, 2006, denying due course to the Petition for
Initiative led by Raul L. Lambino and Erico B. Aumentado in their own behalf and
together with some 6.3 million registered voters who a xed their signatures thereon
and to REMAND the petition at bar to the Commission on Elections for further
proceedings.
QUISUMBING , J.:
1. With due respect to the main opinion written by J. Antonio T. Carpio, and the
dissent of J. Reynato S. Puno, I view the matter before us in this petition as one mainly
involving a complex political question. 1 While admittedly the present Constitution lays
down certain numerical requirements for the conduct of a People's Initiative, such as the
percentages of signatures — being 12% of the total number of registered voters,
provided each legislative district is represented by at least 3% — they are not the main
points of controversy. Stated in simple terms, what this Court must decide is whether
the Commission on Elections gravely abused its discretion when it denied the petition to
submit the proposed changes to the Constitution directly to the vote of the sovereign
people in a plebiscite. Technical questions, e.g. whether petitioners should have led a
Motion for Reconsideration before coming to us, are of no moment in the face of the
transcendental issue at hand. What deserve our full attention are the issues concerning
the applicable rules as well as statutory and constitutional limitations on the conduct of
the People's Initiative.
2. It must be stressed that no less than the present Constitution itself
empowers the people to "directly" propose amendments through their own "initiative."
The subject of the instant petition is by way of exercising that initiative in order to
change our form of government from presidential to parliamentary. Much has been
written about the fulsome powers of the people in a democracy. But the most basic
concerns the idea that sovereignty resides in the people and that all government
authority emanates from them. Clearly, by the power of popular initiative, the people
have the sovereign right to change the present Constitution. Whether the initial moves
are done by a Constitutional Convention, a Constitutional Assembly, or a People's
Initiative, in the end every amendment — however insubstantial or radical — must be
submitted to a plebiscite. Thus, it is the ultimate will of the people expressed in the
ballot, that matters. 2
3. I cannot fault the COMELEC, frankly, for turning down the petition of
Messrs. Lambino, et al. For the COMELEC was just relying on precedents, with the
common understanding that, pursuant to the cases of Santiago v. COMELEC 3 and
PIRMA v. COMELEC , 4 the COMELEC had been permanently enjoined from entertaining
any petition for a people's initiative to amend the Constitution by no less than this Court.
In denying due course below to Messrs. Lambino and Aumentado's petition, I could not
hold the COMELEC liable for grave abuse of discretion when they merely relied on this
Court's unequivocal rulings. Of course, the Santiago and the PIRMA decisions could be
reviewed and reversed by this Court, as J. Reynato S. Puno submits now. But until the
Court does so, the COMELEC was duty bound to respect and obey this Court's mandate,
for the rule of law to prevail.
4. Lastly, I see no objection to the remand to the COMELEC of the petition of
Messrs. Lambino and Aumentado and 6.327 million voters, for further examination of
the factual requisites before a plebiscite is conducted. On page 4 of the assailed
Resolution of the respondent dated August 31, 2006, the COMELEC tentatively
expressed its view that "even if the signatures in the instant Petition appear to meet the
required minimum per centum of the total number of registered voters", the COMELEC
could not give the Petition due course because of our view that R.A. No. 6735 was
inadequate. That, however, is now refuted by Mr. Justice Puno's scholarly ponencia. Now
that we have revisited the Santiago v. COMELEC decision, there is only one clear task for
COMELEC. In my view, the only doable option left for the COMELEC, once factual issues
are heard and resolved, is to give due course to the petition for the initiative to amend
our Constitution so that the sovereign people can vote on whether a parliamentary
system of government should replace the present presidential system.
5. I am therefore in favor of letting the sovereign people speak on their choice
of the form of government as a political question soonest. (This I say without fear of
media opinion that our judicial independence has been tainted or imperiled, for it is not.)
Thus I vote for the remand of the petition. Thereafter, as prayed for, COMELEC should
forthwith certify the Petition as su cient in form and substance and call for the holding
of a plebiscite within the period mandated by the basic law, not earlier than sixty nor
later than ninety days from said certi cation. Only a credible plebiscite itself, conducted
peacefully and honestly, can bring closure to the instant political controversy.
YNARES-SANTIAGO , J.:
I agree with the ponencia of our esteemed colleague, Justice Reynato Puno, that
the Court's ruling in Santiago v. COMELEC 1 is not a binding precedent. However, it is my
position that even if Santiago were reversed and Republic Act No. 6735 (R.A. 6735) be
held as su cient law for the purpose of people's initiative to amend the Constitution, the
petition for initiative in this case must nonetheless be dismissed.
There is absolutely no showing here that petitioners complied with R.A. 6735, even
as they blindly invoke the said law to justify their alleged people's initiative. Section 5(b)
of R.A. 6735 requires that "[a] petition for an initiative on the 1987 Constitution must
have at least twelve per centum (12%) of the total number of registered voters as
signatories , of which every legislative district must be represented by at least three per
centum (3%) of the registered voters therein." On the other hand, Section 5(c) 2 of the
same law requires that the petition should state, among others, the proposition 3 or the
"contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed." If we were to apply Section 5(c) to an initiative to amend the
Constitution, as petitioners submit, the petition for initiative signed by the required
number of voters should incorporate therein a text of the proposed changes to the
Constitution. However, such requirement was not followed in the case at bar.
During the oral arguments, petitioner Lambino admitted that they printed a mere
100,000 copies of the text of the proposed changes to the Constitution. According to
him, these were subsequently distributed to their agents all over the country, for
attachment to the sheets of paper on which the signatures were to be a xed. Upon
being asked, however, if he in fact knew whether the text was actually attached to the
signature sheets which were distributed for signing, he said that he merely assumed
that they were. In other words, he could not tell the Court for certain whether their
representatives complied with this requirement.
The petition led with the COMELEC, as well as that which was shown to this
Court, indubitably establish that the full text of the proposed changes was not attached
to the signature sheets. All that the signature sheets contained was the general
proposition and abstract, which falls short of the full text requirement of R.A. 6735. IEaHSD
The necessity of setting forth the text of the proposed constitutional changes in
the petition for initiative to be signed by the people cannot be seriously disputed. To
begin with, Article XVII, Section 2 of the Constitution unequivocally states that "
[a]mendments 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." Evidently, for the people to propose
amendments to the Constitution, they must, in the rst instance, know exactly what they
are proposing. It is not enough that they merely possess a general idea of the proposed
changes, as the Constitution speaks of a "direct" proposal by the people.
Although the framers of the Constitution left the matter of implementing the
constitutional right of initiative to Congress, it might be noted that they themselves
reasonably assumed that the draft of the proposed constitutional amendments would
be shown to the people during the process of signature gathering. Thus —
MR. RODRIGO. Section 2 of the complete committee report provides: "upon
petition of at least 10 percent of the registered voters." How will we determine that
10 percent has been achieved? How will the voters manifest their desire, is it by
signature?
MR. SUAREZ. Yes, by signatures.
MR. RODRIGO. Let us look at the mechanics. Let us say some voters want
to propose a constitutional amendment. Is the draft of the proposed constitutional
amendment ready to be shown to the people when they are asked to sign?
MR. SUAREZ. That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready and shown
to them before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President. 4
It may thus be logically assumed that even without Section 5(c) of R.A. 6735, the full text
of the proposed changes must necessarily be stated in or attached to the initiative
petition. The signatories to the petition must be given an opportunity to fully
comprehend the meaning and effect of the proposed changes to enable them to make a
free, intelligent and well-informed choice on the matter.
Needless to say, the requirement of setting forth the complete text of the
proposed changes in the petition for initiative is a safeguard against fraud and
deception. If the whole text of the proposed changes is contained in or attached to the
petition, intercalations and riders may be duly avoided. Only then can we be assured that
the proposed changes are truly of the people and that the signatories have been fully
apprised of its implications.
If a statutory provision is essential to guard against fraud, corruption or deception
in the initiative and referendum process, such provision must be viewed as an
indispensable requirement and failure to substantially comply therewith is fatal. 5 The
failure of petitioners in this case to comply with the full text requirement resultantly
rendered their petition for initiative fatally defective.
The petition for initiative is likewise irretrievably in rm because it violates the one
subject rule under Section 10(a) of R.A. 6735:
SEC. 10. Prohibited Measures. — The following cannot be the subject of
an initiative or referendum petition:
(a) No petition embracing more than one subject shall be submitted to

the electorate; . . .
The one subject rule, as relating to an initiative to amend the Constitution, has the same
object and purpose as the one subject-one bill rule embodied in Article VI, Section 26(1)
6 of the Constitution. 7 To elaborate, the one subject-one bill rule was designed to do
away with the practice of inserting two or more unrelated provisions in one bill, so that
those favoring one provision would be compelled to adopt the others. By this process of
log-rolling, the adoption of both provisions could be accomplished and ensured, when
neither, if standing alone, could succeed on its own merits.

As applied to the initiative process, the one subject rule is essentially designed to
prevent surprise and fraud on the electorate. It is meant to safeguard the integrity of the
initiative process by ensuring that no unrelated riders are concealed within the terms of
the proposed amendment. This in turn guarantees that the signatories are fully aware of
the nature, scope and purpose of the proposed amendment.
Petitioners insist that the proposed changes embodied in their petition for
initiative relate only to one subject matter, that is — the shift from presidential to a
parliamentary system of government. According to petitioners, all of the other proposed
changes are merely incidental to this main proposal and are reasonably germane and
necessary thereto. 8 An examination of the text of the proposed changes reveals,
however, that this is not the case.
The proposed changes to the Constitution cover other subjects that are beyond
the main proposal espoused by the petitioners. Apart from a shift from the presidential
to a parliamentary form of government, the proposed changes include the abolition of
one House of Congress, 9 and the convening of a constituent assembly to propose
additional amendments to the Constitution. 1 0 Also included within its terms is an
omnibus declaration that those constitutional provisions under Articles VI and VII, which
are inconsistent with the unicameral-parliamentary form of government, shall be deemed
amended to conform thereto.
It is not di cult to see that while the proposed changes appear to relate only to a
shift in the form of government, it actually seeks to affect other subjects that are not
reasonably germane to the constitutional alteration that is purportedly sought. For one, a
shift to a parliamentary system of government does not necessarily result in the
adoption of a unicameral legislature. A parliamentary system can exist in many different
"hybrid" forms of government, which may or may not embrace unicameralism. 1 1 In other
words, the shift from presidential to parliamentary structure and from a bicameral to a
unicameral legislature is neither the cause nor effect of the other.
I also fail to see the relation of convening a constituent assembly with the
proposed change in our system of government. As a subject matter, the convening of a
constituent assembly to amend the Constitution presents a range of issues that is far
removed from the subject of a shift in government. Besides, the constituent assembly is
supposed to convene and propose amendments to the Constitution after the proposed
change in the system of government has already taken place. This only goes to show
that the convening of the constituent assembly is not necessary to effectuate a change
to a parliamentary system of government.
The omnibus statement that all provisions under Articles VI and VII which are
inconsistent with a unicameral-parliamentary system of government shall be deemed
amended is equally bothersome. The statement does not specify what these
inconsistencies and amendments may be, such that everyone is left to guess the
provisions that could eventually be affected by the proposed changes. The subject and
scope of these automatic amendments cannot even be spelled out with certainty. There
is thus no reasonable measure of its impact on the other constitutional provisions.
The foregoing proposed changes cannot be the subject of a people's initiative
under Section 2, Article XVII of the Constitution. Taken together, the proposed changes
indicate that the intendment is not simply to effect substantial amendments to the
Constitution, but a revision thereof. The distinction between an amendment and revision
was explained by Dean Vicente G. Sinco, as follows:
"Strictly speaking, the act of revising a constitution involves alterations of
different portions of the entire document. It may result in the rewriting either of the
whole constitution, or the greater portion of it, or perhaps only some of its
important provisions. But whatever results the revision may produce, the factor
that characterizes it as an act of revision is the original intention and plan
authorized to be carried out. That intention and plan must contemplate a
consideration of all the provisions of the constitution to determine which one
should be altered or suppressed or whether the whole document should be
replaced with an entirely new one.
The act of amending a constitution, on the other hand, envisages a change

of only a few speci c provisions. The intention of an act to amend is not to
consider the advisability of changing the entire constitution or of considering that
possibility. The intention rather is to improve speci c parts of the existing
constitution or to add to it provisions deemed essential on account of changed
conditions or to suppress portions of it that seem obsolete, or dangerous, or
misleading in their effect." 1 2
The foregoing traditional exposition of the difference between amendment and

revision has indeed guided us throughout our constitutional history. However, the
distinction between the two terms is not, to my mind, as signi cant in the context of our
past constitutions, as it should be now under the 1987 Constitution. The reason for this
is apparent. Under our past constitutions, it was Congress alone, acting either as a
constituent assembly or by calling out a constitutional convention, that exercised
authority to either amend or revise the Constitution through the procedures therein
described. Although the distinction between the two terms was theoretically recognized
under both the 1935 and 1973 Constitutions, the need to highlight the difference was
not as material because it was only Congress that could effect constitutional changes
by choosing between the two modalities.
However, it is different now under the 1987 Constitution. Apart from providing for
the two modes of either Congress constituting itself as a constituent assembly or
calling out for a constitutional convention, a third mode was introduced for proposing
changes to the Constitution. This mode refers to the people's right to propose
amendments to the fundamental law through the filing of a petition for initiative.
Otherwise stated, our experience of what constitutes amendment or revision
under the past constitutions is not determinative of what the two terms mean now, as
related to the exercise of the right to propose either amendments or revision. The
changes introduced to both the Constitutions of 1935 and 1973 could have indeed been
deemed an amendment or revision, but the authority for effecting either would
never have been questioned since the same belonged solely to Congress . In
contrast, the 1987 Constitution clearly limits the right of the people to directly propose
constitutional changes to amendments only. We must consequently not be swayed by
examples of constitutional changes effected prior to the present fundamental law, in
determining whether such changes are revisory or amendatory in nature.
In this regard, it should be noted that the distinction laid down by Justice Felix Q.
Antonio inJavellana v. Executive Secretary 1 3 related to the procedure to be followed
in ratifying a completely new charter proposed by a constitutional convention. The
authority or right of the constitutional convention itself to effect such a revision was not
put in issue in that case. As far as determining what constitutes "amendments" for the
purpose of a people's initiative, therefore, we have neither relevant precedent nor prior
experience. We must thus con ne ourselves to Dean Sinco's basic articulation of the two
terms. AECIaD

It is clear from Dean Sinco's explanation that a revision may either be of the whole
or only part of the Constitution. The part need not be a substantial part as a change may
qualify as a revision even if it only involves some of the important provisions. For as long
as the intention and plan to be carried out contemplate a consideration of all the
provisions of the Constitution "to determine which should be altered or suppressed, or
whether the whole document should be replaced with an entirely new one," the proposed
change may be deemed a revision and not merely an amendment.
Thus, it is not by the sheer number alone of the proposed changes that the same
may be considered as either an amendment or revision. In so determining, another
overriding factor is the "original intention and plan authorized to be carried out" by the
proposed changes. If the same relates to a re-examination of the entire document to see
which provisions remain relevant or if it has far-reaching effects on the entire document,
then the same constitutes a revision and not a mere amendment of the Constitution.
From the foregoing, it is readily apparent that a combination of the quantitative
and qualitative test is necessary in assessing what may be considered as an amendment
or revision. It is not enough that we focus simply on the physical scope of the proposed
changes, but also consider what it means in relation to the entire document. No clear
demarcation line can be drawn to distinguish the two terms and each circumstance
must be judged on the basis of its own peculiar conditions. The determination lies in
assessing the impact that the proposed changes may have on the entire instrument, and
not simply on an arithmetical appraisal of the speci c provisions which it seeks to
affect.
I n McFadden v. Jordan , 1 4 the California Supreme Court laid down the
groundwork for the combination of quantitative and qualitative assessment of proposed
constitutional changes, in order to determine whether the same is revisory or merely
amendatory. In that case, the McFadden court found the proposed changes extensive
since at least 15 of the 25 articles contained in the California Constitution would either
be repealed in their entirety or substantially altered, and four new topics would be
introduced. However, it went on to consider the qualitative effects that the proposed
initiative measure would have on California's basic plan of government. It observed that
the proposal would alter the checks and balances inherent in such plan , by
delegating far-reaching and mixed powers to an independent commission created under
the proposed measure. Consequently, the proposal in McFadden was not only deemed
as broad and numerous in physical scope, but was also held as having a substantive
effect on the fundamental governmental plan of the State of California.
The dual aspect of the amendment/revision analysis was reiterated by the

California Supreme Court in Raven v. Deukmeijan . 1 5 Proposition 115, as the initiative
in that case was called, would vest in the United States Supreme Court all judicial
interpretative powers of the California courts over fundamental criminal defense rights
in that state. It was observed that although quantitatively, the proposition did "not seem
so extensive as to change directly the substantial entirety of the Constitution by the
deletion or alteration of numerous existing provisions," the same, nonetheless, "would
substantially alter the substance and integrity of the state Constitution as a document of
independent force and effect." Quoting Amador Valley Joint Union High School
District v. State Board of Equalization , 1 6 the Raven court said:
". . . apart from a measure effecting widespread deletions, additions and
amendments involving many constitutional articles, 'even a relatively simple
enactment may accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision also. . . [A]n enactment which
purported to vest all judicial power in the Legislature would amount to a revision
without regard either to the length or complexity of the measure or the number of
existing articles or sections affected by such change.'" (Underscoring supplied and
citations omitted)
Thus, in resolving the amendment/revision issue, the California Court examines both the
quantitative and qualitative effects of a proposed measure on its constitutional scheme.
Substantial changes in either respect could amount to a revision. 1 7
I am persuaded that we can approach the present issue in the same manner. The
experience of the courts in California is not far removed from the standards expounded
on by Dean Sinco when he set out to differentiate between amendment and revision. It is
actually consistent, not only with our traditional concept of the two terms, but also with
the mindset of our constitutional framers when they referred to the disquisition of
Justice Antonio in Javellana . 1 8 We must thus consider whether the proposed changes
in this case affect our Constitution in both its substantial physical entirety and in its
basic plan of government.
The question posed is: do the proposed changes, regardless of whether
these are simple or substantial, amount to a revision as to be excluded from
the people's right to directly propose amendments to the fundamental law?
As indicated earlier, we may apply the quantitative/qualitative test in determining
the nature of the proposed changes. These tests are consistent with Dean Sinco's
traditional concept of amendment and revision when he explains that, quantitatively,
revision "may result in the rewriting either of the whole constitution, or the greater part of
it, or perhaps only some of its provisions." In any case, he continues, "the factor that
characterizes it as an act of revision is the original intention and plan authorized to be
carried out." Unmistakably, the latter statement refers to the qualitative effect of the
proposed changes.
It may thus be conceded that, quantitatively , the changes espoused by the
proponents in this case will affect only two (2) out of the eighteen (18) articles of the
1987 Constitution, namely, Article VI (Legislative Department) and Article VII (Executive
Department), as well as provisions that will ensure the smooth transition from a
presidential-bicameral system to a parliamentary-unicameral structure of government.
The quantitative effect of the proposed changes is neither broad nor extensive and will
not affect the substantial entirety of the 1987 Constitution.
However, it is my opinion that the proposed changes will have serious qualitative
consequences on the Constitution. The initiative petition, if successful, will undoubtedly
alter, not only our basic governmental plan, but also rede ne our rights as citizens in
relation to government. The proposed changes will set into motion a ripple effect that
will strike at the very foundation of our basic constitutional plan. It is therefore an
impermissible constitutional revision that may not be effected through a people's
initiative.
Petitioners' main proposal pertains to the shifting of our form of government from
the presidential to the parliamentary system. An examination of their proposal reveals
that there will be a fusion of the executive and legislative departments into one
parliament that will be elected on the basis of proportional representation. No term
limits are set for the members of parliament except for those elected under the party-list
system whose terms and number shall be provided by law. There will be a President who
shall be the head of state, but the head of government is the Prime Minister. The latter
and his cabinet shall be elected from among the members of parliament and shall be
responsible to parliament for the program of government.
The preceding proposal indicates that, under the proposed system, the executive
and legislature shall be one and the same, such that parliament will be the paramount
governing institution. What this implies is that there will be no separation between the
law-making and enforcement powers of the state, that are traditionally delineated
between the executive and legislature in a presidential form of government. Necessarily,
the checks and balances inherent in the fundamental plan of our U.S.-style presidential
system will be eliminated. The workings of government shall instead be controlled by
the internal political dynamics prevailing in the parliament.
Our present governmental system is built on the separation of powers among the
three branches of government. The legislature is generally limited to the enactment of
laws, the executive to the enforcement of laws and the judiciary to the application of
laws. This separation is intended to prevent a concentration of authority in one person or
group that might lead to an irreversible error or abuse in its exercise to the detriment of
our republican institutions. In the words of Justice Laurel, the doctrine of separation of
powers is intended to secure action, to forestall overaction, to prevent despotism and
obtain efficiency. 1 9
In the proposed parliamentary system, there is an obvious lack of formal
institutional checks on the legislative and executive powers of the state, since both the
Prime Minister and the members of his cabinet are drawn from parliament. There are no
effective limits to what the Prime Minister and parliament can do, except the will of the
parliamentary majority. This goes against the central principle of our present
constitutional scheme that distributes the powers of government and provides for
counteraction among the three branches. Although both the presidential and
parliamentary systems are theoretically consistent with constitutional democracy, the
underlying tenets and resulting governmental framework are nonetheless radically
different.
Consequently, the shift from presidential to parliamentary form of government
cannot be regarded as anything but a drastic change. It will require a total overhaul of
our governmental structure and involve a re-orientation in the cardinal doctrines that
govern our constitutional set-up. As explained by Fr. Joaquin Bernas, S.J., a switch from
the presidential system to a parliamentary system would be a revision because of its
over-all impact on the entire constitutional structure. 2 0 It cannot, by any standard, be
deemed as a mere constitutional amendment.
plan contemplates a re-examination of the entire document, or of provisions of the
document which have over-all implications for the entire document, to determine
how and to what extent they should be altered. 2 1 (Underscoring supplied)
The inclusion of a proposal to convene a constituent assembly likewise shows the

intention of the proponents to effect even more far-reaching changes in our fundamental
law. If the original intent were to simply shift the form of government to the
parliamentary system, then there would have been no need for the calling out of a
constituent assembly to propose further amendments to the Constitution. It should be
noted that, once convened, a constituent assembly can do away and replace any
constitutional provision which may not even have a bearing on the shift to a
parliamentary system of government. The inclusion of such a proposal reveals the
proponents' plan to consider all provisions of the constitution, either to determine which
of its provisions should be altered or suppressed or whether the whole document
should be replaced with an entirely new one.
Consequently, it is not true that only Articles VI and VII are covered by the alleged
people's initiative. The proposal to convene a constituent assembly, which by its
terms is mandatory , will practically jeopardize the future of the entire Constitution and
place it on shaky grounds. The plan of the proponents, as re ected in their proposed
changes, goes beyond the shifting of government from the presidential to the
parliamentary system. Indeed, it could even extend to the "fundamental nature of our
state as a democratic and republican state."
To say that the proposed changes will affect only the constitution of government
is therefore a fallacy. To repeat, the combined effect of the proposed changes to
Articles VI and VII and those pertaining to the Transitory Provisions under Article XVIII
indubitably establish the intent and plan of the proponents to possibly affect even the
constitutions of liberty and sovereignty. Indeed, no valid reason exists for authorizing
further amendments or revisions to the Constitution if the intention of the proposed
changes is truly what it purports to be. TECIHD
There is no question here that only amendments to the Constitution may be

undertaken through a people's initiative and not a revision, as textually re ected in the
Constitution itself. This conclusion is inevitable especially from a comparative
examination of Section 2 in relation to Sections 1 and 4 of Article XVII, which state:
SECTION 1. Any amendment to, or revision of, this Constitution may be
proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members; or
(2) A constitutional convention.

SECTION 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 ve years following
the rati cation of this Constitution nor oftener than once every ve years
thereafter.
The Congress shall provide for the implementation of the exercise of this
right.
xxx xxx xxx
SECTION 4. Any amendment to, or revision of, this Constitution under

Section 1 hereof shall be valid when rati ed by a majority of the votes cast in a
plebiscite which shall be held not earlier than sixty days nor later than ninety days
after the approval of such amendment or revision.
Any amendment under Section 2 hereof shall be valid when rati ed by a

majority of the votes cast in a plebiscite which shall be held not earlier than sixty
days nor later than ninety days after the certi cation by the Commission of
Elections of the sufficiency of the petition. (Underscoring supplied)
It is clear that the right of the people to directly propose changes to the
Constitution is limited to amendments and does not include a revision thereof.
Otherwise, it would have been unnecessary to provide for Section 2 to distinguish its
scope from the rights vested in Congress under Section 1. The latter lucidly states that
Congress may propose both amendments and a revision of the Constitution by either
convening a constituent assembly or calling for a constitutional convention. Section 2,
on the other hand, textually commits to the people the right to propose only
amendments by direct action.
To hold, therefore, that Section 2 allows substantial amendments
amounting to revision obliterates the clear distinction in scope between
Sections 1 and 2 . The intention, as may be seen from a cursory perusal of the above
provisions, is to provide differing elds of application for the three modes of effecting
changes to the Constitution. We need not even delve into the intent of the constitutional
framers to see that the distinction in scope is de nitely marked. We should thus apply
these provisions with a discerning regard for this distinction. Again, McFadden 2 2 is
instructive:
". . . The differentiation required is not merely between two words; more
accurately it is between two procedures and between their respective elds of
application. Each procedure, if we follow elementary principles of statutory
construction, must be understood to have a substantial eld of application, not to
be . . . a mere alternative procedure in the same eld. Each of the two words, then,
must be understood to denote, respectively, not only a procedure but also a eld of
application appropriate to its procedure. The people of this state have spoken; they
made it clear when they adopted article XVIII and made amendment relatively
simple but provided the formidable bulwark of a constitutional convention as a
protection against improvident or hasty (or any other) revision, that they
understood that there was a real difference between amendment and revision. We
nd nothing whatsoever in the language of the initiative amendment of 1911 (art.
IV, § 1) to effect a breaking down of that difference. On the contrary, the distinction
appears to be . . . scrupulously preserved by the express declaration in the
amendment . . . that the power to propose and vote on "amendments to the
Constitution" is reserved directly to the people in initiative proceedings, while
leaving unmentioned the power and the procedure relative to constitutional
revision, which revisional power and procedure, it will be remembered, had already
been speci cally treated in section 2 of article XVIII. Intervenors' contention — that
any change less than a total one is but amendatory — would reduce to the rubble
of absurdity the bulwark so carefully erected and preserved. Each situation
involving the question of amendment, as contrasted with revision, of the
Constitution must, we think, be resolved upon its own facts."
Thus, our people too have spoken when they overwhelmingly rati ed the 1987
Constitution, with the provisions on amendments and revisions under Article XVII. The
voice and will of our people cannot be any clearer when they limited people's initiative to
mere amendments of the fundamental law and excluded revisions in its scope. In this
regard, the task of the Court is to give effect to the people's voice, as expressed
unequivocally through the Constitution.
Article XVII on amendments and revisions is called a "constitution of sovereignty"
because it defines the constitutional meaning of "sovereignty of the people." It is through
these provisions that the sovereign people have allowed the expression of their
sovereign will and have canalized their powers which would otherwise be plenary. By
approving these provisions, the sovereign people have decided to limit themselves and
future generations in the exercise of their sovereign power. 2 3 They are thus bound by
the constitution and are powerless, whatever their numbers, to change or thwart its
mandates, except through the means prescribed by the Constitution itself. 2 4
It is thus misplaced to argue that the people may propose revisions to the
Constitution through people's initiative because their representatives, whose power is
merely delegated, may do so. While Section 1 of Article XVII may be considered
as a provision delegating the sovereign powers of amendment and revision to
Congress, Section 2, in contrast, is a self-limitation on that sovereign power . In
the words of Cooley:
. . . Although by their constitutions the people have delegated the exercise of
sovereign powers to the several departments, they have not thereby divested
themselves of the sovereignty. They retain in their own hands, so far as they have
thought it needful to do so, a power to control the governments they create, and the
three departments are responsible to and subject to be ordered, directed, changed
or abolished by them. But this control and direction must be exercised in the
legitimate mode previously agreed upon. The voice of the people, acting in their
sovereign capacity, can be of legal force only when expressed at the times and
under the conditions which they themselves have prescribed and pointed out by
the Constitution, or which, consistently with the Constitution, have been prescribed
and pointed out for them by statute; and if by any portion of the people, however
large, an attempt should be made to interfere with the regular working of the
agencies of government at any other time or in any other mode than as allowed by
existing law, either constitutional or statutory, it would be revolutionary in
character, and must be resisted and repressed by the o cers who, for the time
being, represent legitimate government. 2 5 (Underscoring supplied)
Consequently, there is here no case of "the spring rising above its source." Nor is it
one where the people's sovereign power has been relegated to a lesser plane than that
of Congress. In choosing to exercise self-limitation, there is no absence or lack of even a
fraction of the sovereign power of the people since self-limitation itself is an
expression of that sovereign power . The people have chosen to delegate and limit
their sovereign power by virtue of the Constitution and are bound by the parameters that
they themselves have ordained. Otherwise, if the people choose to defy their self-
imposed constitutional restraints, we will be faced with a revolutionary situation. 2 6
It has repeatedly been emphasized that ours is a democratic and republican
state. 2 7 Even as we a rm, however, that aspect of direct democracy, we should not
forget that, rst and foremost, we are a constitutional democracy. To uphold direct
democracy at the expense of the fundamental law is to sanction, not a constitutional, but
an extra-constitutional recourse. This is clearly beyond the powers of the Court who, by
sovereign mandate, is the guardian and keeper of the Constitution.
IN VIEW OF THE FOREGOING, I vote to DISMISS the petition in G.R. No. 174153.
SANDOVAL-GUTIERREZ , J., concurring:
Vox populi vox Dei — the voice of the people is the voice of God. Caution should be
exercised in choosing one's battlecry, lest it does more harm than good to one's cause.
In its original context, the complete version of this Latin phrase means exactly the
opposite of what it is frequently taken to mean. It originated from a holy man, the monk
Alcuin, who advised Charlemagne, "nec audiendi qui solent dicere vox populi vox Dei
quum tumultuositas vulgi semper insaniae proxima sit," meaning, "And those people
should not be listened to who keep on saying, 'The voice of the people is the
voice of God,' since the riotousness of the crowd is always very close to
madness ." 1 Perhaps, it is by providence that the true meaning of the Latin phrase is
revealed upon petitioners and their allies — that they may re ect upon the sincerity and
authenticity of their "people's initiative ."
History has been a witness to countless iniquities committed in the name of God.
Wars were waged, despotism tolerated and oppressions justi ed — all these transpired
as man boasted of God's imprimatur. Today, petitioners and their allies hum the same
rallying call, convincing this Court that the people's initiative is the "voice of the
people " and, therefore, the "voice of God ." After a thorough consideration of the
petitions, I have come to realize that man, with his ingenuity and arrogance, has
perfected the craft of imitating the voice of God. It is against this kind of genius that the
Court must guard itself.
The facts of the case are undisputed.

In 1996, the Movement for People's Initiative sought to exercise the power of
initiative under Section 2, Article XVII of the Constitution which reads:
Section 2 . Amendments to this Constitution may likewise be directly
must be represented by at least three per centumof the registered voters therein. No
amendment under this section shall be authorized within ve 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.
The exercise was thwarted by a petition for prohibition led with this Court by
Senator Miriam Defensor Santiago, et al., entitled "Miriam Defensor Santiago, Alexander
Padilla and Maria Isabel Ongpin, petitioners, v. Commission on Elections (COMELEC),
Jesus Del n, Alberto Pedrosa and Carmen Pedrosa, in their capacities as founding
members of the People's Initiative for Reforms, Modernization and Action (PIRMA),
respondents." 2 The case was docketed as G.R. No. 127325. On March 19, 1997, this
Court rendered its Decision in favor of petitioners, holding that Republic Act No. 6735
(R.A. No. 6735), An Act Providing for a System of Initiative and Referendum and
Appropriating Funds Therefor, is "incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution
is concerned ." A majority of eight (8) Justices fully concurred with this ruling, while ve
(5) subscribed to the opposite view. One (1) opined that there is no need to rule on the
adequacy of R.A. No. 6735.
On motion for reconsideration, two (2) of the eight (8) Justices reconsidered their
positions. One (1) led an inhibition and the other one (1) joined the minority opinion. As
a consequence, of the thirteen (13) Justices who participated in the deliberation, six (6)
voted in favor of the majority opinion, while the other six (6) voted in favor of the minority
opinion. 3
A few months thereafter, or on September 23, 1997, the Court dismissed a similar
case, entitledPeople's Initiative for Reform, Modernization and Action (PIRMA) v.
Commission on Elections 4 on the ground that the COMELEC did not commit grave
abuse of discretion when it dismissed PIRMA's Petition for Initiative to Propose
Amendments to the Constitution "it appearing that that it only complied with the
dispositions in the Decision of the Court in G.R. no. 127325 ( Santiago v.
COMELEC ) promulgated on March 19, 1997, and its Resolution of June 10,
1997 ." Seven (7) Justices voted that there was no need to re-examine its ruling, as
regards the issue of the su ciency of R.A. No. 6735. Another Justice concurred, but on
the different premise that the case at bar is not the proper vehicle for such re-
examination. Five (5) Justice opined otherwise.
This time, another group known as Sigaw ng Bayan, in coordination with the Union
of Local Authorities of the Philippines (ULAP), have gathered signatures in support of the
proposed amendments to the Constitution, which entail a change in the form of
government from bicameral-presidential to unicameral-parliamentary , thus:
to read as follows:
Section 1. (1) The legislative and executive powers shall be vested in a

unicameral Parliament which shall be composed of as many members as may be
provided by law, to be apportioned among the provinces, representative districts,
and cities in accordance with the number of their respective inhabitants, with at
least three hundred thousand inhabitants per district, and on the basis of a uniform
and progressive ratio. Each district shall comprise, as far as practicable,
contiguous, compact and adjacent territory, and each province must have at least
one member.
(2) Each Member of Parliament shall be a natural-born citizen of the

Philippines, at least twenty- ve years old on the day of the election, a resident of
his district for at least one year prior thereto, and shall be elected by the quali ed
voters of his district for a term of ve years without limitation as to the number
thereof, except those under the party-list system which shall be provided for by law
and whose number shall be equal to twenty per centum of the total membership
coming from the parliamentary districts.
Section 1. There shall be a President who shall be the Head of State. The
executive power shall be exercised by a Prime Minister, with the assistance of the
Cabinet. The Prime Minister shall be elected by a majority of all the Members of
Parliament from among themselves. He shall be responsible to the Parliament for
the program of government.

Provisions," which shall read, as follows:
Section 1. (1) The incumbent President and Vice President shall serve until
the expiration of their term at noon on the thirtieth day of June 2010 and shall
continue to exercise their powers under the 1987 Constitution unless impeached by
a vote of two thirds of all the members of the interim parliament.
(2) In case of death, permanent disability, resignation or removal from

o ce of the incumbent President, the incumbent Vice President shall succeed as
President. In case of death, permanent disability, resignation or removal from
o ce of both the incumbent President and Vice President, the interim Prime
Minister shall assume all the powers and responsibilities of Prime Minister under
Article VII as amended.
renumbered sequentially as Section 2, ad seriatium up to 26, unless they are
inconsistent with the Parliamentary system of government, in which case, they
shall be amended to conform with a unicameral parliamentary form of
government; provided, however, that any and all references therein to "Congress,"
"Senate," "House of Representatives" and "Houses of Congress" shall be changed
to read "Parliament;" that any and all references therein to "Member(s) of
Congress," "Senator(s)" or "Member(s) of Parliament" and any and all references to
the "President" and/or "Acting President" shall be changed to read "Prime Minister."
and Vice President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the
1987 Constitution which are hereby be amended and Sections 7, 8, 9, 10, 11 and 12
which are hereby deleted, all other Sections of Article VII shall be retained and
renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be
inconsistent with Section 1 hereof, in which case they shall be deemed amended
so as to conform to a unicameral Parliamentary System of government; provided,
however, that any and all references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be changed to read "Parliament;"
that any and all references therein to "Member(s) of Congress," "Senator(s)" or
"Member(s) of the House of Representatives" shall be changed to read as
"Member(s) of Parliament" and any and all references to the "President" and/or
"Acting President" shall be changed to read "Prime Minister."
Section 4. (1) There shall exist, upon the rati cation of these amendments,
an interim Parliament which shall continue until the Members of the regular
Parliament shall have been elected and shall have quali ed. It shall be composed
of the incumbent Members of the Senate and the House of Representatives and
the incumbent Members of the Cabinet who are heads of executive departments.
IaHCAD
(2) The incumbent Vice President shall automatically be a Member of

Parliament until noon of the thirtieth day of June 2010. He shall also be a member
of the cabinet and shall head a ministry. He shall initially convene the interim
Parliament and shall preside over its sessions for the election of the interim Prime
Minister and until the Speaker shall have been elected by a majority vote of all the
members of the interim Parliament from among themselves.
(3) Senators whose term of o ce ends in 2010 shall be Members of

Parliament until noon of the thirtieth day of June 2010.
(4) Within forty- ve days from rati cation of these amendments, the
interim Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and
a strong bureaucracy.
Section 5. (1) The incumbent President, who is the Chief Executive, shall
nominate, from among the members of the interim Parliament, an interim Prime
Minister, who shall be elected by a majority vote of the members thereof. The
interim Prime Minister shall oversee the various ministries and shall perform such
powers and responsibilities as may be delegated to him by the incumbent
President."
(2) The interim Parliament shall provide for the election of the members
of Parliament which shall be synchronized and held simultaneously with the
election of all local government o cials. The duty elected Prime Minister shall
continue to exercise and perform the powers, duties and responsibilities of the
interim Prime Minister until the expiration of the term of the incumbent President
and Vice President.
Sigaw ng Bayan prepared signature sheets, and written on its upper right hand
portion is the abstract of the proposed amendments, quoted as follows:
Abstract : Do you approve of the amendment of Article VI and VII of
the 1987 Constitution, changing the form of government from the
present bicameral-presidential to a unicameral-parliamentary system of
government, in order to achieve greater e ciency, simplicity and
economy in government; and providing an Article XVIII as Transitory
Provisions for the orderly shift from one system to another?
On August 25, 2006, Raul L. Lambino and Enrico B. Aumentado, herein petitioners,
filed with the COMELEC a Petition for Initiative to Amend the Constitution. 5 Five (5) days
thereafter, they filed an Amended Petition alleging that they are filing the petition in their
own behalf and together with some 6.3 million registered voters who have
a xed their signatures on the signature sheets attached thereto . They claimed
that the signatures of registered voters appearing on the signature sheets, constituting
at least twelve per cent (12%) of all registered voters in the country, wherein each
legislative district is represented by at least three per cent (3%) of all the registered
voters, were verified by their respective city or municipal election officers.
Several organizations opposed the petition. 6
In a Resolution dated August 31, 2006, the COMELEC denied due course to the
petition, citing as basis this Court's ruling in Santiago, permanently enjoining it "from
entertaining or taking cognizance of any petition for initiative on amendments
to the Constitution until a su cient law shall have been validly enacted to
provide for the implementation of the system ."
Hence, the present petition for certiorari and mandamus praying that this Court
set aside the COMELEC Resolution and direct the latter to comply with Section 4, Article
XVII of the Constitution, which provides:
Sec. 4 ...
Any amendment under Section 2 hereof shall be valid when
rati ed by a majority of the votes cast in a plebiscite which shall be held
not earlier than sixty days nor later than ninety days after the
certi cation by the Commission on Elections of the su ciency of the
petition.
I vote to dismiss the petition of Lambino, et al. in G.R. No. 174153 and grant the
petition of Mar-len Abigail Binay, et al. in G.R. No. 174299. Here, petitioners pray that the
COMELEC Chairman and Commissioners be required to show why they should not be
punished for contempt 7 of court for disregarding the permanent injunction issued by
this Court in Santiago.
I
Respondent COMELEC did not act
with grave abuse of discretion
Without necessarily brushing aside the other important issues, I believe the
resolution of the present petition hinges on this singular issue — did the COMELEC
commit grave abuse of discretion when it denied Lambino, et al.'s petition for initiative to
amend the Constitution on the basis of this Court's Decision in Santiago v. COMELEC?
In other words, regardless of how the other remaining issues are resolved, still, the
ultimate yardstick is the attendance of "grave abuse of discretion" on the part of the
COMELEC.
Jurisprudence teaches that an act of a court or tribunal may only be considered as
committed in grave abuse of discretion when the same was performed in a capricious
o r whimsical exercise of judgment. The abuse of discretion must be so patent and
gross as to amount to an evasion of a positive duty or to a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of law , as where
the power is exercised in an arbitrary and despotic manner by reason of passion or
personal hostility . 8
The Resolution of respondent COMELEC denying due course to the petition for
initiative on the basis of a case (Santiago) decided by this Court cannot, in any way, be
characterized as "capricious or whimsical ," "patent and gross ," or "arbitrary and
despotic ." On the contrary, it was the most prudent course to take. It must be stressed
that in Santiago, this Court permanently enjoins respondent COMELEC "from
entertaining or taking cognizance of any petition for initiative on amendments
to the Constitution until a su cient law shall have been validly enacted ." It
being a fact that Congress has not enacted a su cient law, respondent COMELEC has
no alternative but to adhere to Santiago. Otherwise, it is vulnerable to a citation for
contempt. As succinctly stated by Chief Justice Artemio V. Panganiban (then Associate
Justice) in his Separate Opinion in the subsequent case of PIRMA vs. COMELEC: 9
. . . I cannot fault the Comelec for complying with the ruling even if it, too,
disagreed with said decision's ratio decidendi. Respondent Comelec was directly
enjoined by the highest Court of the land. It had no choice but to obey. Its
obedience cannot constitute grave abuse of discretion. Refusal to act on the
PIRMA petition was the only recourse open to the Comelec. Any other mode of
action would have constituted de ance of the Court and would have been struck
down as grave abuse of discretion and contumacious disregard of this Court's
supremacy as the final arbiter of justiciable controversies.
It need not be emphasized that in our judicial hierarchy, this Court reigns supreme.
All courts, tribunals and administrative bodies exercising quasi-judicial functions are
obliged to conform to its pronouncements. It has the last word on what the law is;
it is the final arbiter of any justifiable controversy. In other words, there is only
one Supreme Court from whose decisions all other courts should take their
bearings . 1 0 As a warning to lower court judges who would not adhere to its rulings, this
Court, in People v. Santos, 1 1 held:
Now, if a judge of a lower Court feels, in the ful llment of his mission of
deciding cases, that the application of a doctrine promulgated by this Superiority is
against his way of reasoning, or against his conscience, he may state his opinion
on the matter, but rather than disposing of the case in accordance with his
personal views he must rst think that it is his duty to apply the law as interpreted
by the Highest Court of the Land, and that any deviation from a principle laid down
by the latter would unavoidably cause, as a sequel, unnecessary inconveniences,
delays and expenses to the litigants. And if despite of what is here said, a Judge
still believes that he cannot follow Our rulings, then he has no other alternative
than to place himself in the position that he could properly avoid the duty of
having to render judgment on the case concerned (Art. 9, C.C.), and he has only one
legal way to do that.
Clearly, respondent COMELEC did not gravely abuse its discretion in dismissing
the petition of Lambino, et al. for it merely followed this Court's ruling in Santiago.
Significantly, in PIRMA vs. COMELEC, 1 2 a unanimous Court implicitly recognized
that its ruling in Santiago is the established doctrine and that the COMELEC did not
commit grave abuse of discretion in invoking it, thus:
discretion could be attributed to the public respondent COMELEC in
dismissing the petition led by PIRMA therein, it appearing that it only
complied with the dispositions of this Court in G.R. No. 127325
promulgated on March 19, 1997, and its resolution on June 10, 1997.
Indeed, I cannot characterize as a "grave abuse of discretion" the COMELEC's

obedience and respect to the pronouncement of this Court in Santiago.
II
The doctrine of stare decisis
bars the re-examination of Santiago
It cannot be denied that in Santiago, a majority of the members of this Court or
eight (8) Justices (as against ve (5) Justices) concurred in declaring R.A. No. 6735 an
insu cient law. When the motion for reconsideration was denied via an equally-divided
Court or a 6-6 vote, it does not mean that the Decision was overturned. It only shows
that the opposite view fails to muster enough votes to modify or reverse the majority
ruling. Therefore, the original Decision was upheld. 1 3 In Ortigas and Company Limited
Partnership vs. Velasco, 1 4 this Court ruled that the denial of a motion or
reconsideration signi es that the ground relied upon have been found, upon
due deliberation, to be without merit, as not being of su cient weight to
warrant a modification of the judgment or final order .
Wit h Santiago being the only impediment to the instant petition for initiative,
petitioners persistently stress that the doctrine of stare decisis does not bar its re-
examination. HEASaC
I am not convinced.
The maxim stare decisis et non quieta movere translates "stand by the
decisions and disturb not what is settled ." 1 5 As used in our jurisprudence, it means
that "once this Court has laid down a principle of law as applicable to a certain
state of facts, it would adhere to that principle and apply it to all future cases
in which the facts are substantially the same as in the earlier controversy ." 1 6
There is considerable literature about whether this doctrine of stare decisis is a
good or bad one, but the doctrine is usually justi ed by arguments which focus on the
desirability of stability and certainty in the law and also by notions of justice and
fairness . Justice Benjamin Cardozo in his treatise, The Nature of the Judicial Process
stated:
It will not do to decide the same question one way between one set of
litigants and the opposite way between another. 'If a group of cases involves
the same point, the parties expect the same decision. It would be a gross
injustice to decide alternate cases on opposite principles. If a case was
decided against me yesterday when I was a defendant, I shall look for
the same judgment today if I am plaintiff. To decide differently would
raise a feeling of resentment and wrong in my breast; it would be an
infringement, material and moral, of my rights ." Adherence to precedent
must then be the rule rather than the exception if litigants are to have faith in the
even-handed administration of justice in the courts. 1 7
That the doctrine of stare decisis is related to justice and fairness may be
appreciated by considering the observation of American philosopher William K.
Frankena as to what constitutes injustice:
The paradigm case of injustice is that in which there are two
similar individuals in similar circumstances and one of them is treated
better or worse than the other . In this case, the cry of injustice rightly goes up
against the responsible agent or group; and unless that agent or group can
establish that there is some relevant dissimilarity after all between the individuals
concerned and their circumstances, he or they will be guilty as charged. 1 8
Although the doctrine of stare decisis does not prevent re-examining and, if need
be, overruling prior decisions, "It is . . . a fundamental jurisprudential policy that prior
applicable precedent usually must be followed even though the case, if considered anew,
might be decided differently by the current justices. This policy . . . 'is based on the
assumption that certainty, predictability and stability in the law are the major
objectives of the legal system; i.e., that parties should be able to regulate
their conduct and enter into relationships with reasonable assurance of the
governing rules of law . 1 9 Accordingly, a party urging overruling a precedent faces a
rightly onerous task, the di culty of which is roughly proportional to a number of
factors, including the age of the precedent , the nature and extent of public and
private reliance on it , and its consistency or inconsistency with other related rules of
law. Here, petitioners failed to discharge their task.
Santiago v. COMELEC was decided by this Court on March 19, 1997 or more than
nine (9) years ago. During that span of time, the Filipino people, speci cally the law
practitioners, law professors, law students, the entire judiciary and litigants have
recognized this Court's Decision as a precedent. In fact, the Santiago doctrine was
applied by this Court in the subsequent case of PIRMA. Even the legislature has relied on
said Decision, thus, several bills have been introduced in both Houses of Congress to
cure the de ciency. I cannot fathom why it should be overturned or set aside merely on
the basis of the petition of Lambino, et al. Indeed, this Court's conclusion in Santiago
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 remains
a precedent and must be upheld.
III
The proposed constitutional changes constitute
revisions and not mere amendments
Article XVII of the 1987 Constitution lays down the means for its amendment and
revision. Thus:
Section 1. Any amendment to, or revision of, this Constitution may
be proposed by:
(1) The Congress, upon a vote of three-fourths of all its members; or
(2) A Constitutional Convention.

Section 2. Amendments to this Constitution may likewise be directly
centum of the total number of registered votes, of which every legislative district
must be represented by at least three per centum of the registered voters therein. . .
. . (Emphasis supplied)
At the outset, it must be underscored that initiative and referendum , as means

by which the people can directly propose changes to the Constitution, were not provided
for in the 1935 and 1973 Constitutions. Thus, under these two (2) Constitutions, there
was no demand to draw the distinction between an amendment and a revision, both
being governed by a uniform process. This is not so under our present Constitution. The
distinction between an amendment and a revision becomes crucial because only
amendments are allowed under the system of people's initiative. Revisions are within
the exclusive domain of Congress, upon a vote of three-fourths of all its members, or of
a Constitutional Convention.
The deliberations of the 1986 Constitutional Commission is explicit that Section 2,
Article XVII covers only amendments , thus:
The sponsor, Commissioner Suarez, is recognized.
MR. SUAREZ:
Thank you, Madam President.
May we respectfully call the attention of the Members of the Commission that
pursuant to the mandate given us last night, we submitted this afternoon a
governing 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 ve 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. 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 be
limited to amendments to the Constitution and 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 .
xxx xxx xxx

MR. MAAMBONG:
Madam President, will the distinguished proponent of the amendment yield to a few
questions?
MR. DAVIDE:
With pleasure, Madam President.
MR. MAAMBONG:
My rst question, Commissioner Davide's proposed amendment on line I
refers to "amendments." Does it not cover the word "revision" as de ned
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"
MR. MAAMBONG:
Thank you. 2 0
Considering that the initiative on the Constitution only permits amendments, it is

imperative to examine whether petitioners' proposed changes partake of the nature of
amendments, not revisions.
The petition for initiative led with the COMELEC by Lambino, et al. sought to
amend the following provisions of the 1987 Constitution: Sections 1, 2, 3, 4, 5, 6, and 7 of
Article VI (The Legislative Department); Sections 1, 2, 3 and 4 of Article VII (The
Executive Department). It further includes Article XVIII (Transitory Provisions) for the
purpose of insuring an orderly transition from the bicameral-presidential to a
unicameral-parliamentary form of government.
Succinctly, the proposals envision a change in the form of government, from
bicameral-presidential to unicameral-parliamentary; conversion of the present Congress
of the Philippines to an Interim National Assembly; change in the terms of Members of
Parliament; and the election of a Prime Minister who shall be vested with executive
power. SDTIaE
Petitioners contend that the proposed changes are in the nature of amendments,
hence, within the coverage of a "people's initiative."
I disagree.
The noted constitutionalist, Father Joaquin G. Bernas, S.J., who was also a
member of the 1986 Constitutional Commission, characterized an amendment and a
revision to the Constitution as follows:
separable provisions . The guiding original intention of an amendment is to
are judged to be dangerous. In revision however, the guiding original
intention and plan contemplates a re-examination of the entire
document, or of provisions of the document which have over-all
implications for the document to determine how and to what extent they
should be altered . 2 1
Obviously, both "revision" and amendment" connote change; any distinction

between the two must be based upon the degree of change contemplated. In Kelly v.
Laing, 2 2 the Supreme Court of Michigan made the following comparison of the two
terms:
"Revision" and "amendment" have the common characteristics of working
changes in the charter, and are sometimes used in exactly the same sense but
there is an essential difference between them.
"Revision" implies a reexamination of the whole law and a redraft
without obligation to maintain the form, scheme, or structure of the old .
As applied to fundamental law, such as a constitution or charter, it suggests a
convention to examine the whole subject and to prepare and submit a new
instrument whether the desired changes from the old are few or many.
Amendment implies continuance of the general plan and purpose of the
law, with corrections to better accomplish its purpose . Basically, revision
suggests fundamental change, while amendment is a correction of detail.
Although there are some authorities which indicate that a change in a city's form
of government may be accomplished by a process of "amendment," the cases which so
hold seem to involve statutes which only distinguish between amendment and totally
new charters. 2 3 However, as in Maine law, where the statute authorizing the changes
distinguishes between "charter amendment" and "charter revision," it has been held that
"(a) change in the form of government of a home rule city may be made only by
revision of the city charter, not by its amendment ." 2 4
In summary, it would seem that any major change in governmental form and
scheme would probably be interpreted as a "revision" and should be achieved through
the more thorough process of deliberation.
Although, at rst glance, petitioners' proposed changes appear to cover isolated
and speci c provisions only, however, upon careful scrutiny, it becomes clear that the
proposed changes will alter the very structure of our government and create
multifarious ramifications . In other words, the proposed changes will have a "domino
effect" or, more appropriately, "ripple effect " on other provisions of the Constitution.
At this juncture, it must be emphasized that the power reserved to the people to
effect changes in the Constitution includes the power to amend any section in such a
manner that the proposed change, if approved, would "be complete within itself,
relate to one subject and not substantially affect any other section or article
of the Constitution or require further amendments to the Constitution to
accomplish its purpose ." 2 5 This is clearly not the case here.
Firstly, a shift from a presidential to a parliamentary form of government affects
the well-enshrined doctrine of separation of powers of government, embodied in our
Constitution, by providing for an Executive, Legislative and Judiciary Branches. In a
Parliamentary form of government, the Executive Branch is to a certain degree,
dependent on the direct or indirect support of the Parliament, as expressed through a
"vote of con dence." To my mind, this doctrine of separation of powers is so
interwoven in the fabric of our Constitution, that any change affecting such
doctrine must necessarily be a revision .
In McFadden vs. Jordan, 2 6 the California Supreme Court ruled as follows:
It is thus clear that that a revision of the Constitution may be accomplished
only through rati cation by the people of a revised constitution proposed by a
convention called for that purpose . . . . Consequently, if the scope of the
proposed initiative measure now before us is so broad that if such
measure became law a substantial revision of our present state
Constitution would be effected, then the measure may not properly be
submitted to the electorate until and unless it is rst agreed upon by a
constitutional convention . . . . .
Secondly, the shift from a bicameral to a unicameral form of government is not a

mere amendment, but is in actuality a revision, as set forth in Adams v. Gunter 2 7 :
The proposal here to amend Section I of Article III of the 1968 Constitution
to provide for a Unicameral Legislature affects not only many other
provisions of the Constitution but provides for a change in the form of
the legislative branch of government , which has been in existence in the
United States Congress and in all of the states of the nation, except one, since the
earliest days. It would be di cult to visualize a more revolutionary
change . The concept of a House and a Senate is basic in the American form of
government. It would not only radically change the whole pattern of the
government in this state and tear apart the whole fabric of the
Constitution, but would even affect the physical facilities necessary to
carry on government .
Thirdly, the proposed changes, on their face, signify revisions rather than
amendments, especially, with the inclusion of the following "omnibus provision":
C. For the purpose of insuring an orderly transition from the bicameral-
Presidential to a unicameral-Parliamnetary form of government, there shall be a
new Article XVIII, entitled "Transitory Provisions" which shall read, as follows:
xxx xxx xxx

and Vice-President, with the exceptions of Section 1, 2, 3 and 4 of Article VII of the
1987 Constitution which are hereby amended . . . and all other Sections of
Article VII shall be retained and numbered sequentially as Section 2, ad seriatim
up to 14, unless they shall be inconsistent with Section 1 hereof, in which
case they shall be deemed amended so as to conform to a unicameral
Parliamentary system of government . . . .
xxx xxx xxx

Section 4. (1) . . .
Interim Parliament shall convene to propose amendments to, or revisions of, this
Constitution, consistent with the principles of local autonomy, decentralization and
a strong bureaucracy. cSEaTH
The above provisions will necessarily result in a "ripple effect" on the other
provisions of the Constitution to make them conform to the qualities of unicameral-
parliamentary form of government. With one sweeping stroke, these proposed
provisions automatically revise some provisions of the Constitution. In McFadden, the
same practice was considered by the Court to be in the nature of substantial revision,
necessitating a constitutional convention . I quote the pertinent portion of its ruling,
thus:
There is in the measure itself, no attempt to enumerate the various and
many articles and sections of our present Constitution which would be
affected, replaced or repealed . It purports only to add one new article but its
framers found it necessary to include the omnibus provision (subdivision (7) of
section XII) that "If any section, subsection, sentence, clause or phrase of
the constitution is in con ict with any of the provisions of this article,
such section, subsection, sentence, clause, or phrase is to the extent of
such con ict hereby repealed. . . . Consequently, if the scope of the
proposed intitiative measure now before us is so broad that if such
measure become law a substantial revision of our present state
Constitution would be be effected, then the measure may not properly be
submitted to the electorate until and unless it is rst agreed upon by a
constitutional convention . 2 8
Undoubtedly, the changes proposed by the petitioners are not mere amendments
which will only affect the Articles or Sections sought to be changed. Rather, they are in
the nature of revisions which will affect considerable portions of the Constitution
resulting in the alteration of our form of government. The proposed changes cannot be
taken in isolation since these are connected or "interlocked" with the other provisions of
our Constitution. Accordingly, it has been held that: "If the changes attempted are so
sweeping that it is necessary to include the provisions interlocking them, then
it is plain that the plan would constitute a recasting of the whole Constitution
and this, we think, it was intended to be accomplished only by a convention
under Section 2 which has not yet been disturbed ." 2 9
I therefore conclude that since the proposed changes partake of the nature of a
revision of the Constitution, then they cannot be the subject of an initiative. On this
matter, Father Bernas expressed this insight:
But why limit initiative and referendum to simple amendments? The answer,
which one can easily glean from the rather long deliberation on initiative and
referendum in the 1986 Constitutional Commission, is practicality. In other words,
who is to formulate the revision or how is it to be formulated? Revision, as
concretely being proposed now, is nothing less than a rebuilding of the
Philippine constitutional structure . Who were involved in formulating the
structure? What debates ensued? What records are there for future use in
interpreting the provisions which may be found to be unclear?
In a deliberative body like Congress or a Constitutional Convention,
decisions are reached after much purifying debate. And while the deliberations
proceed, the public has the opportunity to get involved. It is only after the work of
an authorized body has been completed that it is presented to the electorate for
nal judgment. Careful debate is important because the electorate tends
to accept what is presented to it even sight unseen . 3 0
IV
R.A. No. 6735 is insufficient to implement the
People's initiative
Section 2, Article XVII of the 1987 Constitution reads:
Section 2 . Amendments to this Constitution may likewise be directly
must be represented by at least three per centumof the registered voters therein. No
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 .
On its face, Section 2 is not a self-executory provision. This means that an

enabling law is imperative for its implementation. Thus, Congress enacted R.A. No. 6735
in order to breathe life into this constitutional provision. However, as previously narrated,
this Court struck the law in Santiago for being incomplete, inadequate , or wanting in
essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned.
The passage of time has done nothing to change the applicability of R.A. No.
6735. Congress neither amended it nor passed a new law to supply its deficiencies.
Notwithstanding so, this Court is being persuaded to take a 360-degree turn,
enumerating three (3) justi cations why R.A. No. 6735 must be considered a su cient
law, thus:
1) The text of R.A. No. 6735 is replete with references to the right
of people to initiate changes to the Constitution;
2) The legislative history of R.A. No. 6735 reveals the clear intent
of the lawmakers to use it as instrument to implement the people's initiative; and
3) T h e sponsorship speeches by the authors of R.A. No. 6735
demonstrate the legislative intent to use it as instrument to implement people's
initiative.
I regret to say that the foregoing justifications are wanting.

A thorough reading of R.A. No. 6735 leads to the conclusion that it covers only
initiatives on national and local legislation . Its references to initiatives on the
Constitution are few , isolated and misplaced . Unlike in the initiatives on national and
local legislation, where R.A. No. 6735 provides a detailed, logical, and exhaustive
enumeration on their implementation, 3 1 however, as regards initiative on the
Constitution, the law merely:
(a) mentions the word "Constitution" in Section 2; 3 2
(b) de nes "initiative on the Constitution" and includes it in the enumeration of the
three systems of initiative in Section 3; 3 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; 3 4
(d) reiterates the constitutional requirements as to the number of voters who should
sign the petition; 3 5 and
(e) provides the date for the effectivity of the approved proposition. 3 6
In other words, R.A. No. 6735 does not specify the procedure how initiative on the
Constitution may be accomplished. This is not the enabling law contemplated by the
Constitution. As pointed out by oppositor-intervenor Alternative Law Groups Inc., since
the promulgation of the Decision in Santiago, various bills have been introduced in both
Houses of Congress providing for a complete and adequate process for people's
initiative, such as:
• Names, signatures and addresses of petitioners who shall be registered voters;
• A statement of the provision of the Constitution or any part thereof sought to be

amended and the proposed amendment;
• The manner of initiation — in a congressional district through a petition by any
individual, group, political party or coalition with members in the congressional
district;
• The language used: the petition should be printed in English and translated in the
local language;
• Signature stations to be provided for;
• Provisions pertaining to the need and manner of posting, that is, after the signatures
shall have been veri ed by the Commission, the veri ed signatures shall be posted
for at least thirty days in the respective municipal and city halls where the
signatures were obtained;
• Provisions pertaining to protests allowed any protest as to the authenticity of the

signatures to be led with the COMELEC and decided within sixty (60) days from
the filing of said protest.
None of the above necessary details is provided by R.A. No. 6735, thus,
demonstrating its incompleteness and inadequacy .
V
Petitioners are not Proper Parties to
File the Petition for Initiative
VI
The Petition for Initiative Filed with the
COMELEC Does not Comply with Section 2,
Article XVII of the Constitution and R.A. No. 6735
I shall discuss the above issues together since they are interrelated and
inseparable. The determination of whether petitioners are proper parties to le the
petition for initiative in behalf of the alleged 6.3 million voters will require an
examination of whether they have complied with the provisions of Section 2,
Article XVII of the Constitution .
To reiterate, Section 2, Article XVII of the Constitution provides:
Section 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 ve years following the rati cation of this Constitution nor
oftener than once every five years thereafter.
right. (Underscoring supplied) aEHASI
The mandate of the above constitutional provisions is definite and categorical. For
a people's initiative to prosper, the following requisites must be present:
1. It is "the people " themselves who must "directly propose " "amendments " to
the Constitution;
2. T h e proposed amendments must be contained in "a petition of at least

twelve per centum of the total number of registered voters ;" and
3. The required minimum of 12% of the total number of registered voters "must be
represented by at least three per centum of the registered voters " of
"every legislative district ."

In this case, however, the above requisites are not present.
The petition for initiative was led with the COMELEC by petitioners Lambino and
Aumentado, two registered voters . As shown in the "Veri cation/Certi cation with
Affidavit of Non-Forum Shopping" contained in their petition, they alleged under oath that
they have caused the preparation of the petition in their personal capacity as registered
voters "and as representatives " of the supposed 6.3 million registered voters. This
goes to show that the questioned petition was not initiated directly by the 6.3 million
people who allegedly comprised at least 12% of the total number of registered voters,
as required by Section 2. Moreover, nowhere in the petition itself could be found
the signatures of the 6.3 million registered voters . Only the signatures of
petitioners Lambino and Aumentado were affixed therein "as representatives " of those
6.3 million people. Certainly, that is not the petition for people's initiative
contemplated by the Constitution.
Petitioners Lambino and Aumentado have no authority whatsoever to le the
petition "as representatives " of the alleged 6.3 million registered voters. Such act of
representation is constitutionally proscribed . To repeat, Section 2 strictly requires
that amendments to the Constitution shall be "directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total
number of registered voters ." Obviously, the phrase "directly proposed by the
people" excludes any person acting as representative or agent of the 12% of the total
number of registered voters. The Constitution has bestowed upon the people the right
to directly propose amendments to the Constitution. Such right cannot be usurped by
anyone under the guise of being the people's representative. Simply put, Section 2 does
not recognize acts of representation. For it is only "the people " (comprising the
minimum of 12% 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) who are the proper parties to initiate a petition proposing amendments to the
Constitution. Verily, the petition led with the COMELEC by herein petitioners Lambino
and Aumentado is not a people's initiative. Necessarily, it must fail.
Cororarilly, the plea that this Court should "hear" and "heed" "the people's voice" is
baseless and misleading. There is no people's voice to be heard and heeded as
this petition for initiative is not truly theirs, but only of petitioners Lambino
and Aumentado and their allies .
VII
The issues at bar are not political questions.
Lambino and Aumentado, petitioners in G.R. No. 174153, vehemently argue that:
(1) "[t]he validity of the exercise of the right of the sovereign people to amend the
Constitution and their will, as expressed by the fact that over six million registered voters
indicated their support of the Petition for initiative is a purely political question ;" and
(2) "[t]he power to propose amendments to the Constitution is a right explicitly
bestowed upon the sovereign people. Hence, the determination by the people to
exercise their right to propose amendments under the system of initiative is a sovereign
act and falls squarely within the ambit of a political question ."
The "political question doctrine" was rst enunciated by the US Supreme Court in
Luther v. Borden . 3 7 Faced with the di cult question of whether the Supreme Court was
the appropriate institution to de ne the substantive content of republicanism, the US
Supreme Court, speaking thru Mr. Justice Roger B. Taney, concluded that " the
sovereignty in every State resides in the people, as to how and whether they
exercised it, was under the circumstances of the case, a political question to
be settled by the political power ." In other words, the responsibility of settling
certain constitutional questions was left to the legislative and executive branches of the
government.
The Luther case arose from the so-called "Dorr Rebellion" in the State of Rhode
Island. Due to increased migration brought about by the Industrial Revolution, the urban
population of Rhode Island increased. However, under the 1663 Royal Charter which
served as the State Constitution, voting rights were largely limited to residents of the
rural districts. This severe mal-apportionment of suffrage rights led to the "Dorr
Rebellion." Despairing of obtaining remedies for their disenfranchisement from the state
government, suffrage reformers invoked their rights under the American Declaration of
Independence to "alter or abolish" the government and to institute a new one. The
reformers proceeded to call for and hold an extralegal constitutional convention, drafted
a new State Constitution, submitted the document for popular rati cation, and held
elections under it. The State government, however, refused to cede power, leading to an
anomalous situation in that for a few months in 1842, there were two opposing state
governments contending for legitimacy and possession of state of offices.
The Rhode Island militia, under the authority of martial law, entered and searched
the house of Martin Luther, a Dorr supporter. He brought suit against Luther Borden, a
militiaman. Before the US Supreme Court, Luther's counsel argued that since the State's
archaic Constitution prevented a fair and peaceful address of grievances through
democratic processes, the people of Rhode Island had instead chosen to exercise their
inherent right in popular sovereignty of replacing what they saw as an oppressive
government. The US Supreme Court deemed the controversy as non-justiciable
and inappropriate for judicial resolution .
In Colgrove v. Green , 3 8 Mr. Justice Felix Frankfurter, coined the phrase "political
thicket" to describe situations where Federal courts should not intervene in political
questions which they have neither the competence nor the commission to decide. In
Colgrove, the US Supreme Court, with a narrow 4-3 vote branded the apportionment of
legislative districts in Illinois "as a political question and that the invalidation of
the districts might, in requiring statewide elections, create an evil greater than
that sought to be remedied ."
While this Court has adopted the use of Frankfurter's "political thicket,"
nonetheless, it has sought to come up with a de nition of the term "political question."
Thus, in Veer v. Avelino , 3 9 this Court ruled that properly, political questions are "those
questions which, under the Constitution, are to be decided by the people in
their sovereign capacity or in regard to which full discretionary authority has
been delegated to the legislative or executive branch of the government ." In
Tañada and Macapagal v. Cuenco , 4 0 the Court held that the term political question
connotes, in legal parlance, what it means in ordinary parlance, namely, a question of
policy. It is concerned with issues dependent upon the wisdom, not legality, of
a particular measure .
In Aquino v. Enrile , 4 1 this Court adopted the following guidelines laid down in
Baker v. Carr 4 2 in determining whether a question before it is political, rather than
judicial in nature, to wit:
1) there is a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or
2) there is a lack of judicially discoverable and manageable standards for resolving
it; or
3) there is the sheer impossibility of deciding the matter without an initial policy
determination of a kind clearly for non-judicial discretion; or
4) there is the sheer impossibility of the Court's undertaking an independent

resolution without expressing lack of respect due the coordinate branches of
government; or
5) there is an unusual need for unquestioning adherence to a political decision

already made; or
6) there exists the potentiality of embarrassment arising from multifarious
pronouncements by various departments on one question.
None of the foregoing standards is present in the issues raised before this Court.
Accordingly, the issues are justiciable. What is at stake here is the legality and
not the wisdom of the act complained of .
Moreover, even assuming arguendo that the issues raised before this Court are
political in nature, it is not precluded from resolving them under its expanded jurisdiction
conferred upon it by Section 1, Article VIII of the Constitution, following Daza v. Singson .
4 3 As pointed out in Marcos v. Manglapus, 4 4 the present Constitution limits resort to the
political question doctrine and broadens the scope of judicial power which the Court,
under previous charters, would have normally and ordinarily left to the political
departments to decide.
CONCLUSION
In ne, considering the political scenario in our country today, it is my view that the
so-called people's initiative to amend our Constitution from bicameral-presidential to
unicameral-parliamentary is actually not an initiative of the people, but an initiative of
some of our politicians. It has not been shown by petitioners, during the oral arguments
in this case, that the 6.3 million registered voters who a xed their signatures
understood what they signed. In fact, petitioners admitted that the Constitutional
provisions sought to be amended and the proposed amendments were not explained to
all those registered voters. Indeed, there will be no means of knowing, to the point of
judicial certainty, whether they really understood what petitioners and their group asked
them to sign. CIAHaT
Let us not repeat the mistake committed by this Court in Javellana v. The
Executive Secretary. 4 5 The Court then ruled that "This being the vote of the majority,
there is no further judicial obstacle to the new Constitution being considered in force
and effect," although it had notice that the Constitution proposed by the 1971
Constitutional Convention was not validly rati ed by the people in accordance with the
1935 Constitution. The Court concluded, among others, that the viva voce voting in the
Citizens' Assemblies "was and is null and void ab initio." That was during martial law
when perhaps majority of the justices were scared of the dictator. Luckily at present, we
are not under a martial law regime. There is, therefore, no reason why this Court should
allow itself to be used as a legitimizing authority by the so-called people's initiative for
those who want to perpetuate themselves in power.
At this point, I can say without fear that there is nothing wrong with our present
government structure. Consequently, we must not change it. America has a presidential
type of government. Yet, it thrives ideally and has become a super power. It is then
safe to conclude that what we should change are some of the people running
the government, NOT the SYSTEM .
According to petitioners, the proposed amendment would effect a more e cient,
more economical and more responsive government.
Is there hope that a new breed of politicians, more quali ed and capable, may be
elected as members and leaders of the unicameral-parliament? Or will the present
members of the Lower House continue to hold their respective positions with limitless
terms?
Will the new government be more responsive to the needs of the poor and the
marginalized? Will it be able to provide homes for the homeless, food for the hungry,
jobs for the jobless and protection for the weak?
This is a de ning moment in our history. The issue posed before us is crucial with
transcendental signi cance. And history will judge us on how we resolve this issue —
shall we allow the revision of our Constitution, of which we are duty bound to guard and
revere, on the basis of a doubtful people's initiative?
Amending the Constitution involving a change of government system or structure
is a herculean task affecting the entire Filipino people and the future generations. Let us,
therefore, entrust this duty to more knowledgeable people elected as members of a
Constitutional Convention.
Yes, the voice of the people is the voice of God. But under the circumstances
in this case, the voice of God is not audible .
WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the
petition in G.R. No. 174299.
CORONA , J., dissenting :
The life of the law is not logic but experience. 1 Our collective experience as a
nation breathes life to our system of laws, especially to the Constitution. These cases
promise to signi cantly contribute to our collective experience as a nation. Fealty to the
primary constitutional principle that the Philippines is not merely a republican State but a
democratic one as well behooves this Court to a rm the right of the people to
participate directly in the process of introducing changes to their fundamental law.
These petitions present such an opportunity. Thus, this is an opportune time for this
Court to uphold the sovereign rights of the people.
I agree with the opinion of Mr. Justice Reynato Puno who has su ciently
explained the rationale for upholding the people's initiative. However, I wish to share my
own thoughts on certain matters I deem material and significant.
SANTIAGO DOES NOT APPLY TO THIS CASE
BUT ONLY TO THE 1997 DELFIN PETITION
The COMELEC denied the petition for initiative led by petitioners purportedly on
the basis of this Court's ruling in Santiago v. COMELEC 2 that: (1) RA 6753 was
inadequate to cover the system of initiative regarding amendments to the Constitution
and (2) the COMELEC was permanently enjoined from entertaining or taking cognizance
of any petition for initiative regarding amendments to the Constitution until a su cient
law was validly enacted to provide for the implementation of the initiative provision.
However, Santiago should not apply to this case but only to the petition of Delfin in
1997. It would be unreasonable to make it apply to all petitions which were yet
unforeseen in 1997. The fact is that Santiago was focused on the Delfin petition alone.
Those who oppose the exercise of the people's right to initiate changes to the
Constitution via initiative claim that Santiago barred any and all future petitions for
initiative by virtue of the doctrines of stare decisis and res judicata. The argument is
flawed.
The ponencia of Mr. Justice Puno has amply discussed the arguments relating to
stare decisis. Hence, I will address the argument from the viewpoint of res judicata.
Res judicata is the rule that a nal judgment rendered by a court of competent
jurisdiction on the merits is conclusive as to the rights of the parties and their privies
and, as to them, constitutes an absolute bar to a subsequent action involving the same
claim, demand or cause of action. 3 It has the following requisites: (1) the former
judgment or order must be nal; (2) it must have been rendered by a court having
jurisdiction of the subject matter and of the parties; (3) it must be a judgment or order
on the merits and (4) there must be identity of parties, of subject matter, and of cause of
action between the first and second actions. 4
There is no identity of parties in Santiago and the instant case. While the
COMELEC was also the respondent in Santiago, the petitioners in that case and those in
this case are different. More signi cantly, there is no identity of causes of action in the
two cases. Santiago involved amendments to Sections 4 and 7 of Article VI, Section 4 of
Article VII and Section 8 of Article X of the Constitution while the present petition seeks
to amend Sections 1 to 7 of Article VI and Sections 1 to 4 of the 1987 Constitution.
Clearly, therefore, the COMELEC committed grave abuse of discretion when it ruled that
the present petition for initiative was barred by Santiago and, on that ground, dismissed
the petition.
The present petition and that in Santiago are materially different from each other.
They are not based on the same facts. There is thus no cogent reason to frustrate and
defeat the present direct action of the people to exercise their sovereignty by proposing
changes to their fundamental law.
PEOPLE'S INITIATIVE SHOULD NOT
BE SUBJECTED TO CONDITIONS
People's initiative is an option reserved by the people for themselves exclusively.
Neither Congress nor the COMELEC has the power to curtail or defeat this exclusive
power of the people to change the Constitution. Neither should the exercise of this
power be made subject to any conditions, as some would have us accept.
Oppositors to the people's initiative point out that this Court ruled in Santiago that
RA 6735 was inadequate to cover the system of initiative on amendments to the
Constitution and, thus, no law existed to enable the people to directly propose changes
to the Constitution. This reasoning is seriously objectionable.
The pronouncement on the insu ciency of RA 6735 was, to my mind, out of place.
It was unprecedented and dangerously transgressed the domain reserved to the
legislature.
While the legislature is authorized to establish procedures for determining the
validity and su ciency of a petition to amend the constitution, 5 that procedure cannot
unnecessarily restrict the initiative privilege. 6 In the same vein, this Court cannot
unnecessarily and unreasonably restrain the people's right to directly propose changes
to the Constitution by declaring a law inadequate simply for lack of a sub-heading and
other grammatical but insigni cant omissions. Otherwise, the constitutional intent to
empower the people will be severely emasculated, if not rendered illusory.
PEOPLE'S RIGHT AND POWER TO PROPOSE
CHANGES TO THE CONSTITUTION DIRECTLY
SHOULD NOT BE UNREASONABLY CURTAILED
If Congress and a constitutional convention, both of which are mere
representative bodies, can propose changes to the Constitution, there is no reason
why the supreme body politic itself — the people — may not do so directly .
Resort to initiative to amend the constitution or enact a statute is an exercise of
"direct democracy" as opposed to "representative democracy." The system of initiative
allows citizens to directly propose constitutional amendments for the general electorate
to adopt or reject at the polls, particularly in a plebiscite. While representative
government was envisioned to "re ne and enlarge the public views, by passing them
through the medium of a chosen body of citizens, whose wisdom may best discern the
true interest of their country, and whose patriotism and love of justice will be least likely
to sacri ce it to temporary or partial considerations," 7 the exercise of "direct
democracy" through initiative reserves direct lawmaking power to the people by
providing them a method to make new laws via the constitution, or alternatively by
enacting statutes. 8 Efforts of the represented to control their representatives through
initiative have been described as curing the problems of democracy with more
democracy. 9
The Constitution celebrates the sovereign right of the people and declares that
"sovereignty resides in the people and all government authority emanates from them." 1 0
Unless the present petition is granted, this constitutional principle will be nothing but
empty rhetoric, devoid of substance for those whom it seeks to empower.
The right of the people to pass legislation and to introduce changes to the
Constitution is a fundamental right and must be jealously guarded. 1 1 The people should
be allowed to directly seek redress of the problems of society and representative
democracy with the constitutional tools they have reserved for their use alone. SCIcTD
Accordingly, I vote to GRANT the petition in G.R. No. 174513.
CALLEJO, SR. , J., concurring :
I am convinced beyond cavil that the respondent Commission on Elections

(COMELEC) did not commit an abuse of its discretion in dismissing the amended
petition before it. The proposals of petitioners incorporated in said amended petition
are for the revision of the 1987 Constitution. Further, the amended petition before the
respondent COMELEC is insufficient in substance.
The Antecedents
On August 25, 2006, petitioners Raul L. Lambino and Erico B. Aumentado led
with the COMELEC a petition entitled "IN THE MATTER OF PROPOSING AMENDMENTS
TO THE 1987 CONSTITUTION THROUGH A PEOPLE'S INITIATIVE: A SHIFT FROM A
BICAMERAL PRESIDENTIAL TO A UNICAMERAL PARLIAMENTARY GOVERNMENT BY
AMENDING ARTICLES VI AND VII; AND PROVIDING TRANSITORY PROVISIONS FOR THE
ORDERLY SHIFT FROM THE PRESIDENTIAL TO THE PARLIAMENTARY SYSTEM." The
case was docketed as EM (LD)-06-01. On August 30, 2006, petitioners led an amended
petition. For brevity, it is referred to as the petition for initiative.
Petitioners alleged therein, inter alia, that they led their petition in their own
behalf and together with those who have a xed their signatures to the signature sheets
appended thereto who are Filipino citizens, residents and registered voters of the
Philippines, and they constitute at least twelve percent (12%) of all the registered voters
in the country, wherein each legislative district is represented by at least three percent
(3%) of all the registered voters therein.
Petitioners further alleged therein that the ling of the petition for initiative is
based on their constitutional right to propose amendments to the 1987 Constitution by
way of people's initiative, as recognized in Section 2, Article XVII thereof, which provides:
SEC. 2. Amendments to this Constitution may likewise be directly
thereafter.
right."
According to petitioners, while the above provision states that "(T)he Congress
shall provide for the implementation of the exercise of this right," the provisions of
Section 5(b) and (c), along with Section 7 of Republic Act (RA) 6735, 1 are su cient
enabling details for the people's exercise of the power. The said sections of RA 6735
state:
Sec. 5. Requirements. — (a) To exercise the power . . .
(b) A petition for an initiative on the 1987 Constitution must have
at least twelve per centum (12%) of the total number of registered voters as
signatories, of which every legislative district must be represented by at
least three per centum (3%) of the registered voters therein. Initiative on the
Constitution may be exercised only after ve (5) years from the rati cation
of the 1987 Constitution and only once every five (5) years thereafter.
(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 herein;

c.5. signatures of the petitioners or registered voters; and
c.6. an abstract or summary in not more than one hundred (100)

words which shall be legibly written or printed at the top of
every page of the petition.
xxx xxx xxx

Sec. 7. Veri cation of Signatures . — The Election Registrar shall verify
the signatures on the basis of the registry list of voters, voters' a davits and
voters identification cards used in the immediately preceding election.
They also alleged that the COMELEC has the authority, mandate and obligation to
give due course to the petition for initiative, in compliance with the constitutional
directive for the COMELEC to "enforce and administer all laws and regulations relative to
the conduct of an election, plebiscite, initiative, referendum and recall." 2
Petitioners incorporated in their petition for initiative the changes they proposed
to be incorporated in the 1987 Constitution and prayed that the COMELEC issue an
order:
1. Finding the Petition to be su cient pursuant to Section 4, Article XVII
of the 1987 Constitution;
2. Directing the publication of the Petition in Filipino and English at

least twice in newspapers of general and local circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later than
ninety days after the Certi cation by this Honorable Commission of the su ciency
of this Petition, to allow the Filipino people to express their sovereign will on the
proposition.
Petitioners pray for such other reliefs deemed just and equitable in the
premises.
The Ruling of the respondent COMELEC

On August 31, 2006, the COMELEC promulgated the assailed Resolution denying
due course and dismissing the petition for initiative. The COMELEC ruled that:
We agree with the petitioners that this Commission has the solemn
Constitutional duty to enforce and administer all laws and regulations relative to
the conduct of, as in this case, initiative.
This mandate, however, should be read in relation to the other provisions of

the Constitution particularly on initiative.
Section 2, Article XVII of the 1987 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. . . . .
The Congress shall provide for the implementation of the exercise of
this right."
The aforequoted provision of the Constitution being a non-self-executory

provision needed an enabling law for its implementation. Thus, in order to breathe
life into the constitutional right of the people under a system of initiative to directly
propose, enact, approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolution, Congress enacted RA 6735.
However, the Supreme Court, in the landmark case of Santiago v.

Commission on Elections struck down the said law for being incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned
The Supreme Court, likewise, declared that this Commission should be

validly enacted to provide for the implementation of the system.
Thus, even if the signatures in the instant Petition appear to meet the
required minimum per centum of the total number of registered voters, of which
every legislative district is represented by at least three per centum of the registered
voters therein, still the Petition cannot be given due course since the Supreme Court
categorically declared RA 6735 as inadequate to cover the system of initiative on
amendments to the Constitution.
This Commission is not unmindful of the transcendental importance of the

right of the people under a system of initiative. However, neither can we turn a
blind eye to the pronouncement of the High Court that in the absence of a valid
enabling law, this right of the people remains nothing but an "empty right," and that
this Commission is permanently enjoined from entertaining or taking cognizance
of any petition for initiative on amendments to the Constitution. (Citations
omitted.)
Aggrieved, petitioners elevated the case to this Court on a petition for certiorari
and mandamus under Rule 65 of the Rules of Court.
The Petitioners' Case
In support of their petition, petitioners alleged, inter alia, that:
I.
THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE

ABUSE OF DISCRETION IN REFUSING TO TAKE COGNIZANCE OF, AND TO GIVE
DUE COURSE TO THE PETITION FOR INITIATIVE, BECAUSE THE CITED SANTIAGO
RULING OF 19 MARCH 1997 CANNOT BE CONSIDERED THE MAJORITY OPINION
OF THE SUPREME COURT EN BANC, CONSIDERING THAT UPON ITS
RECONSIDERATION AND FINAL VOTING ON 10 JUNE 1997, NO MAJORITY VOTE
WAS SECURED TO DECLARE REPUBLIC ACT NO. 6735 AS INADEQUATE,
INCOMPLETE AND INSUFFICIENT IN STANDARD. DICcTa
II.
THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6735, REPUBLIC ACT NO.
8189 AND EXISTING APPROPRIATION OF THE COMELEC PROVIDE FOR
SUFFICIENT DETAILS AND AUTHORITY FOR THE EXERCISE OF PEOPLE'S
INITIATIVE, THUS, EXISTING LAWS TAKEN TOGETHER ARE ADEQUATE AND
COMPLETE.
III.
THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE
ABUSE OF DISCRETION IN REFUSING TO TAKE COGNIZANCE OF, AND IN
REFUSING TO GIVE DUE COURSE TO THE PETITION FOR INITIATIVE, THEREBY
VIOLATING AN EXPRESS CONSTITUTIONAL MANDATE AND DISREGARDING AND
CONTRAVENING THE WILL OF THE PEOPLE.
A.
THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE

TO THE INSTANT PETITION FOR INITIATIVE FILED BY THE PETITIONERS.
1.
THE FRAMERS OF THE CONSTITUTION INTENDED TO GIVE
THE PEOPLE THE POWER TO PROPOSE AMENDMENTS AND THE
PEOPLE THEMSELVES ARE NOW GIVING VIBRANT LIFE TO THIS
CONSTITUTIONAL PROVISION
2.
PRIOR TO THE QUESTIONED SANTIAGO RULING OF 19

MARCH 1997, THE RIGHT OF THE PEOPLE TO EXERCISE THE
SOVEREIGN POWER OF INITIATIVE AND RECALL HAS BEEN
INVARIABLY UPHELD
3.
THE EXERCISE OF THE INITIATIVE TO PROPOSE
AMENDMENTS IS A POLITICAL QUESTION WHICH SHALL BE
DETERMINED SOLELY BY THE SOVEREIGN PEOPLE.
4.
BY SIGNING THE SIGNATURE SHEETS ATTACHED TO THE

PETITION FOR INITIATIVE DULY VERIFIED BY THE ELECTION
OFFICERS, THE PEOPLE HAVE CHOSEN TO PERFORM THIS SACRED
EXERCISE OF THEIR SOVEREIGN POWER.
B.
THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE
TO THE INSTANT PETITION FOR INITIATIVE FILED BY THE PETITIONERS
C.
THE PERMANENT INJUNCTION ISSUED IN SANTIAGO V. COMELEC
ONLY APPLIES TO THE DELFIN PETITION.
1.
IT IS THE DISPOSITIVE PORTION OF THE DECISION AND NOT

OTHER STATEMENTS IN THE BODY OF THE DECISION THAT
GOVERNS THE RIGHTS IN CONTROVERSY.
IV.
THE HONORABLE PUBLIC RESPONDENT FAILED OR NEGLECTED TO ACT

OR PERFORM A DUTY MANDATED BY LAW.
A.
THE MINISTERIAL DUTY OF THE COMELEC IS TO SET THE
INITIATIVE FOR PLEBISCITE. 3
Petitioners Failed to Allege and

Demonstrate All the Essential
Facts To Establish the Right
to a Writ of Certiorari
Section 1, Rule 65 of the Rules of Court reads:
Sec. 1. Petition for certiorari. — When any tribunal, board or o cer
exercising judicial or quasi-judicial functions has acted without or in excess of its
or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any 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 annulling or modifying the proceedings of such tribunal, board or o cer,
and granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certi ed true copy of the judgment,
order or resolution subject thereof, copies of all pleadings and documents relevant
and pertinent thereto, and a sworn certi cation of non-forum shopping as provided
in the third paragraph of Section 3, Rule 46.
A writ for certiorari may issue only when the following requirements are set out in
the petition and established:
(1) the writ is directed against a tribunal, a board or any o cer
exercising judicial or quasi-judicial functions;
(2) such tribunal, board or o cer has acted without or in excess of

jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction; and
(3) there is no appeal or any plain, speedy and adequate remedy in the
ordinary course of law. . . . 4
The Court has invariably defined "grave abuse of discretion," thus:

By grave abuse of discretion is meant such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, and it must be shown
that the discretion was exercised arbitrarily or despotically. For certiorari to lie,
there must be a capricious, arbitrary and whimsical exercise of power, the very
antithesis of the judicial prerogative in accordance with centuries of both civil law
and common law traditions. 5
There is thus grave abuse of discretion on the part of the COMELEC when it acts
in a capricious, whimsical, arbitrary or despotic manner in the exercise of its judgment
amounting to lack of jurisdiction. Mere abuse of discretion is not enough. 6 The only
question involved is jurisdiction, either the lack or excess thereof, and abuse of
discretion warrants the issuance of the extraordinary remedy of certiorari only when the
same is grave, as when the power is exercised in an arbitrary or despotic manner by
reason of passion, prejudice or personal hostility. A writ of certiorari is a remedy
designed for the correction of errors of jurisdiction and not errors of judgment. 7 An
error of judgment is one in which the court may commit in the exercise of its jurisdiction,
which error is reversible only by an appeal. 8
In the present case, it appears from the assailed Resolution of the COMELEC that
it denied the petition for initiative solely in obedience to the mandate of this Court in
Santiago v. Commission on Elections . 9 In said case, the Court En Banc permanently
enjoined the COMELEC from entertaining or taking cognizance of any petition for
initiative on amendments to the Constitution until a su cient law shall have been validly
enacted to provide for the implementation of the system. When the COMELEC denied
the petition for initiative, there was as yet no valid law enacted by Congress to provide
for the implementation of the system.
It is a travesty for the Court to declare the act of the COMELEC in denying due
course to the petition for initiative as "capricious, despotic, oppressive or whimsical
exercise of judgment as is equivalent to lack of jurisdiction." In fact, in so doing, the
COMELEC merely followed or applied, as it ought to do, the Court's ruling in Santiago to
the effect that Section 2, Article XVII of the Constitution on the system of initiative is a
non self-executory provision and requires an enabling law for its implementation. In
relation thereto, RA 6735 was found by the Court to be "incomplete, inadequate, or
wanting in essential terms and conditions" to implement the constitutional provision on
initiative. Consequently, the COMELEC was "permanently enjoined from entertaining
or taking cognizance of any petition for initiative on amendments to the
Constitution until a su cient law shall have been validly enacted to provide
for the implementation of the system ." The decision of the Court En Banc
interpreting RA 6735 forms part of the legal system of the Philippines. 1 0 And no
doctrine or principle laid down by the Court En Banc may be modi ed or reversed except
by the Court En Banc, 1 1 certainly not by the COMELEC. Until the Court En Banc modi es
or reverses its decision, the COMELEC is bound to follow the same. 1 2 As succinctly held
in Fulkerson v. Thompson: 1 3
Whatever was before the Court, and is disposed of, is considered as nally
settled. The inferior court is bound by the judgment or decree as the law of the
case, and must carry it into execution according to the mandate. The inferior court
cannot vary it, or judicially examine it for any other purpose than execution. It can
give no other or further relief as to any matter decided by the Supreme Court even
where there is error apparent; or in any manner intermeddle with it further than to
execute the mandate and settle such matters as have been remanded, not
adjudicated by the Supreme Court. . . .
The principles above stated are, we think, conclusively established by the
authority of adjudged cases. And any further departure from them would inevitably
mar the harmony of the whole judiciary system, bring its parts into con ict, and
produce therein disorganization, disorder, and incalculable mischief and
confusion. Besides, any rule allowing the inferior courts to disregard the
adjudications of the Supreme Court, or to refuse or omit to carry them into
execution would be repugnant to the principles established by the constitution, and
therefore void. 1 4
At this point, it is well to recall the factual context of Santiago as well as the
pronouncement made by the Court therein. Like petitioners in the instant case, in
Santiago, Atty. Jesus Del n, the People's Initiative for Reforms, Modernization and
Action (PIRMA), et al., invoked Section 2, Article XVII of the Constitution as they led
with the COMELEC a "Petition to Amend the Constitution, to Lift Term Limits of Elective
O cials, By People's Initiative" (the Del n petition). They asked the COMELEC to issue
an order xing the time and date for signature gathering all over the country; causing the
necessary publications of said order and their petition in newspapers of general and
local circulation and instructing municipal election registrars in all regions all over the
country and to assist petitioners in establishing signing stations. Acting thereon, the
COMELEC issued the order prayed for. ICieST
Senator Miriam Santiago, et al. forthwith led with this Court a petition for
prohibition to enjoin the COMELEC from implementing its order. The Court, speaking
through Justice Hilario G. Davide, Jr. (later Chief Justice), granted the petition as it
declared:
1. RA 6735 "incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is
concerned";
2. COMELEC Resolution No. 2300 1 5 invalid insofar as it prescribed rules and
regulations on the conduct of initiative on amendments to the Constitution
because the COMELEC is without authority to promulgate the 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;
and
3. The Del n petition insu cient as it did not contain the required number of
signatures of registered voters.
The Court concluded in Santiago that "the COMELEC should be permanently
enjoined from entertaining or taking cognizance of a n y petition for initiative on
provide for the implementation of the system." The dispositive portion of the decision
reads:
WHEREFORE, judgment is hereby rendered:
b) DECLARING RA 6735 inadequate to cover the system of initiative on

amendments to the Constitution, and to have failed to provide
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 December 18, 1996 is made

permanent as against the Commission on Elections, but is LIFTED as against
private respondents. 1 6
The Court reiterated its ruling in Santiago in another petition which was led with
the Court by PIRMA and the spouses Alberto and Carmen Pedrosa (who were parties in
Santiago) docketed as PIRMA v. Commission on Elections . 1 7 The said petitioners,
undaunted by Santiago and claiming to have gathered 5,793,213 signatures, led a
petition with the COMELEC praying, inter alia, that COMELEC o cers be ordered to
verify all the signatures collected in behalf of the petition and, after due hearing, that it
(COMELEC) declare the petition su cient for the purpose of scheduling a plebiscite to
amend the Constitution. Like the Delfin petition in Santiago, the PIRMA petition proposed
to submit to the people in a plebiscite the amendment to the Constitution on the lifting
of the term limits of elected officials.
The opinion of the minority that there was no doctrine enunciated by the Court in
PIRMA has no basis. The COMELEC, in its Resolution dated July 8, 1997, dismissed the
PIRMA petition citing the permanent restraining order issued against it by the Court in
Santiago. PIRMA and the spouses Pedrosa forthwith elevated the matter to the Court
alleging grave abuse of discretion on the part of the COMELEC in refusing to exercise
jurisdiction over, and thereby dismissing, their petition for initiative to amend the
Constitution.
The Court dismissed outright, by a unanimous vote, the petition led by PIRMA
and the spouses Albert Pedrosa. The Court declared that the COMELEC merely
complied with the dispositions in the decision of the Court in Santiago and, hence,
cannot be held to have committed a grave abuse of its discretion in dismissing the
petition before it:
dispositions in the Decision of this Court in G.R. No. 127325, promulgated on
The Court next considered the question of whether there was need to resolve
the second issue posed by the petitioners, namely, that the Court re-examine its
ruling as regards R.A. 6735. On this issue, the Chief Justice and six (6) other
members of the Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan and
Torres, JJ., voted that there was no need to take it up. Vitug, J., agreed that there
was no need for re-examination of said second issue since the case a bar is not the
proper vehicle for that purpose. Five (5) other members of the Court, namely, Melo,
Puno, Francisco, Hermosisima and Panganiban, JJ., opined that there was need
for such a re-examination. . . .
WHEREFORE, the petition is DISMISSED. 1 8 (Underscoring supplied.)
In the present case, the O ce of the Solicitor General (OSG) takes the side of
petitioners and argues that the COMELEC should not have applied the ruling in Santiago
to the petition for initiative because the permanent injunction therein referred only to the
Del n petition. The OSG buttresses this argument by pointing out that the Temporary
Restraining Order dated December 18, 1996 that was made permanent in the dispositive
portion referred only to the Delfin petition.
The OSG's attempt to isolate the dispositive portion from the body of the Court's
decision in Santiago is futile. It bears stressing that the dispositive portion must not be
read separately but in connection with the other portions of the decision of which it
forms a part. To get to the true intent and meaning of a decision, no speci c portion
thereof should be resorted to but the same must be considered in its entirety. Hence, a
resolution or ruling may and does appear in other parts of the decision and not merely in
the fallo thereof. 1 9
The pronouncement in the body of the decision in Santiago permanently enjoining
the COMELEC "from entertaining or taking cognizance of any petition for initiative on
provide for the implementation of the system" is thus as much a part of the Court's
decision as its dispositive portion. The ruling of this Court is of the nature of an in
rem judgment barring any and all Filipinos from ling a petition for initiative
on amendments to the Constitution until a su cient law shall have been
validly enacted . Clearly, the COMELEC, in denying due course to the present petition for
initiative on amendments to the Constitution conformably with the Court's ruling in
Santiago did not commit grave abuse of discretion. On the contrary, its actuation is in
keeping with the salutary principle of hierarchy of courts. For the Court to nd the
COMELEC to have abused its discretion when it dismissed the amended petition based
on the ruling of this Court in Santiago would be sheer judicial apostasy. cTIESD
As eloquently put by Justice J.B.L. Reyes, "there is only one Supreme Court from
whose decisions all other courts should take their bearings." 2 0 This truism applies with
equal force to the COMELEC as a quasi-judicial body for, after all, judicial decisions
applying or interpreting laws or the Constitution "assume the same authority as the
statute itself and, until authoritatively abandoned, necessarily become, to the extent that
they are applicable, the criteria which must control the actuations not only of those
called upon to abide thereby but also of those duty bound to enforce obedience thereto."
21
Petitioners Cannot Ascribe

Grave Abuse of Discretion on
the COMELEC Based on the
Minority Opinion in Santiago
It is elementary that the opinion of the majority of the members of the Court, not
the opinion of the minority, prevails. As a corollary, the decision of the majority cannot be
modified or reversed by the minority of the members of the Court.
However, to eschew the binding effect of Santiago, petitioners argue, albeit
unconvincingly, that the Court's declaration therein on the inadequacy, incompleteness
and insu ciency of RA 6735 to implement the system of initiative to propose
constitutional amendments did not constitute the majority opinion. This contention is
utterly baseless.
Santiago was concurred in, without any reservation, by eight Justices, 2 2 or the
majority of the members of the Court, who actually took part in the deliberations
thereon. On the other hand, ve Justices, 2 3 while voting for the dismissal of the Del n
petition on the ground of insu ciency, dissented from the majority opinion as they
maintained the view that RA 6735 was sufficient to implement the system of initiative.
Given that a clear majority of the members of the Court, eight Justices, concurred
in the decision in Santiago, the pronouncement therein that RA 6735 is "incomplete,
amendments to the Constitution is concerned" constitutes a de nitive ruling on the
matter.
In the Resolution dated June 10, 1997, the motions for reconsideration of the
Santiago decision were denied with nality as only six Justices, or less than the majority,
voted to grant the same. The Resolution expressly stated that the motion for
reconsideration failed "to persuade the requisite majority of the Court to modify or
reverse the Decision of 19 March 1977." 2 4 In ne, the pronouncement in Santiago as
embodied in the Decision of March 19, 1997 remains the definitive ruling on the matter.
It bears stressing that in PIRMA, petitioners prayed for the Court to resolve the
issue posed by them and to re-examine its ruling as regards RA 6735. By a vote of seven
members of the Court, including Justice Justo P. Torres, Jr. and Justice Jose C. Vitug,
the Court voted that there was no need to resolve the issue. Five members of the Court
opined that there was a need for the re-examination of said ruling. Thus, the
pronouncement of the Court in Santiago remains the law of the case and binding on
petitioners.
If, as now claimed by the minority, there was no doctrine enunciated by the Court
in Santiago, the Court should have resolved to set aside its original resolution dismissing
the petition and to grant the motion for reconsideration and the petition. But the Court
did not. The Court positively and unequivocally declared that the COMELEC merely
followed the ruling of the Court in Santiago in dismissing the petition before it. No less
than Senior Justice Reynato S. Puno concurred with the resolution of the Court. It
behooved Justice Puno to dissent from the ruling of the Court on the motion for
reconsideration of petitioners precisely on the ground that there was no doctrine
enunciated by the Court in Santiago. He did not. Neither did Chief Justice Artemio V.
Panganiban, who was a member of the Court.
That RA 6735 has failed to validly implement the people's right to directly propose
constitutional amendments through the system of initiative had already been
conclusively settled in Santiago as well as in PIRMA. Heeding these decisions, several
lawmakers, including no less than Solicitor General Antonio Eduardo Nachura when he
was then a member of the House of Representatives, 2 5 have led separate bills to
implement the system of initiative under Section 2, Article XVII of the Constitution.
In the present Thirteenth (13th) Congress, at least seven (7) bills are pending. In
the Senate, the three (3) pending bills are: Senate Bill No. 119 entitled An Act Providing
for People's Initiative to Amend the Constitution introduced by Senator Luisa "Loi" P.
Ejercito Estrada; Senate Bill No. 2189 entitled An Act Providing for People's Initiative to
Amend the Constitution introduced by Senator Miriam Defensor Santiago; and Senate
Bill No. 2247 entitled An Act Providing for a System of People's Initiative to Propose
Amendments to the Constitution introduced by Senator Richard Gordon.
In the House of Representatives, there are at least four (4) pending bills: House Bill
No. 05281 led by Representative Carmen Cari, House Bill No. 05017 led by
Representative Imee Marcos, House Bill No. 05025 led by Representative Roberto
Cajes, and House Bill No. 05026 led by Representative Edgardo Chatto. These House
bills are similarly entitled An Act Providing for People's Initiative to Amend the
Constitution.
The respective explanatory notes of the said Senate and House bills uniformly
recognize that there is, to date, no law to govern the process by which constitutional
amendments are introduced by the people directly through the system of initiative. Ten
(10) years after Santiago and absent the occurrence of any compelling supervening
event, i.e., passage of a law to implement the system of initiative under Section 2, Article
XVII of the Constitution, that would warrant the re-examination of the ruling therein, it
behooves the Court to apply to the present case the salutary and well-recognized
doctrine of stare decisis. As earlier shown, Congress and other government agencies
have, in fact, abided by Santiago. The Court can do no less with respect to its own ruling .
cDECIA
Contrary to the stance taken by petitioners, the validity or constitutionality of a law

cannot be made to depend on the individual opinions of the members who compose it —
the Supreme Court, as an institution, has already determined RA 6735 to be "incomplete,
amendments to the Constitution is concerned" and therefore the same remains to be so
regardless of any change in the Court's composition. 2 6 Indeed, it is vital that there be
stability in the courts in adhering to decisions deliberately made after ample
consideration. Parties should not be encouraged to seek re-examination of determined
principles and speculate on uctuation of the law with every change in the expounders of
it. 2 7
Proposals to Revise the Constitution,
As in the Case of the Petitioners'
Proposal to Change the Form of
Government, Cannot be Effected
Through the System of Initiative,
Which by Express Provision of
Section 2, Article XVII of the
Constitution, is Limited to Amendments
Even granting arguendo the Court, in the present case, abandons its
pronouncement in Santiago and declares RA 6735, taken together with other extant
laws, su cient to implement the system of initiative, still, the amended petition for
initiative cannot prosper. Despite the denomination of their petition, the proposals of
petitioners to change the form of government from the present bicameral-presidential
to a unicameral-parliamentary system of government are actually for the revision of the
Constitution.
Petitioners propose to "amend" Articles VI and VII of the Constitution in this
manner:
to read as follows:
"Section 1. (1) The legislative and executive powers shall be vested in a

unicameral Parliament which shall be composed of as many members as may be
provided by law, to be apportioned among the provinces, representative districts,
and cities in accordance with the number of their respective inhabitants, with at
least three hundred thousand inhabitants per district, and on the basis of a uniform
and progressive ratio. Each district shall comprise, as far as practicable,
contiguous, compact and adjacent territory, and each province must have at least
one member.
"(2) Each Member of Parliament shall be a natural-born citizen of the
Philippines, at least twenty- ve years old on the day of the election, a resident of
his district for at least one year prior thereto, and shall be elected by the quali ed
voters of his district for a term of ve years without limitation as to the number
thereof, except those under the party-list system which shall be provided for by law
and whose number shall be equal to twenty per centum of the total membership
coming from the parliamentary districts."
"Section 1. There shall be a President who shall be the Head of State.
The executive power shall be exercised by a Prime Minister, with the assistance of
the Cabinet. The Prime Minister shall be elected by a majority of all the Members
of Parliament from among themselves. He shall be responsible to the Parliament
for the program of government.
Provisions," which shall read as follows:
Section 1. (1) The incumbent President and Vice President shall serve until
the expiration of their term at noon on the thirtieth day of June 2010 and shall
continue to exercise their powers under the 1987 Constitution unless impeached by
a vote of two thirds of all the members of the interim parliament.,
(2) In case of death, permanent disability, resignation or removal from

o ce of the incumbent President, the incumbent Vice President shall succeed as
President. In case of death, permanent disability, resignation or removal from
o ce of both the incumbent President and Vice President, the interim Prime
Minister shall assume all the powers and responsibilities of Prime Minister under
Article VII as amended.
Section 2. "Upon the expiration of the term of the incumbent President
renumbered sequentially as Section 2, ad seriatim up to 26, unless they are
inconsistent with the Parliamentary system of government, in which case, they
shall be amended to conform with a unicameral parliamentary form of
government; provided, however, that any and all references therein to "Congress,"
"Senate," "House of Representatives" and "House of Congress," "Senator[s] or
"Member[s] of the House of Representatives" and "House of Congress" shall be
changed to read "Parliament"; that any and all references therein to "Member[s] of
the House of Representatives" shall be changed to read as "Member[s] of
Parliament" and any and all references to the "President" and or "Acting President"
shall be changed to read "Prime Minister."
Section 3. "Upon the expiration of the term of the incumbent President

and Vice President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the
1987 Constitution which are hereby amended and Sections 7, 8, 9, 10, 11 and 12
which are hereby deleted, all other Sections of Article VII shall be retained and
renumbered sequentially as Section 2, ad seriatim up to 14, unless they shall be
inconsistent with Section 1 hereof, in which case they shall be deemed amended
so as to conform to a unicameral Parliamentary System of government; provided,
however, that any and all references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be changed to read "Parliament";
that any and all references therein to "Member[s] of Congress," "Senator[s]" or
"Member[s] of the House of Parliament" and any and all references to the
"President" and of "Acting President" shall be changed to read "Prime Minister."
Section 4. (1) There shall exist, upon the rati cation of these
amendments, an interim Parliament which shall continue until the Members of the
regular Parliament shall have been elected and shall have quali ed. It shall be
composed of the incumbent Members of the Senate and the House of
Representatives and the incumbent Members of the Cabinet who are heads of
executive departments.
(2) The incumbent Vice President shall automatically be a Member of

Parliament until noon of the thirtieth day of June 2010. He shall also be a member
of the cabinet and shall head a ministry. He shall initially convene the interim
Parliament and shall preside over its session for the election of the interim Prime
Minister and until the Speaker shall have been elected by a majority vote of all the
members of the interim Parliament from among themselves.
(3) Senators whose term of o ce ends in 2010 shall be

Members of Parliament until noon of the thirtieth day of June 2010 .
interim Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and
a strong bureaucracy.
"Section 5. (1) The incumbent President, who is the Chief Executive, shall
nominate, from among the members of the interim Parliament, an interim Prime
Minister, who shall be elected by a majority vote of the members thereof. The
interim Prime Minister shall oversee the various ministries and shall perform such
powers and responsibilities as may be delegated to him by the incumbent
President."

(2) The interim Parliament shall provide for the election of the members
of Parliament, which shall be synchronized and held simultaneously with the
election of all local government o cials. [Thereafter, the Vice-President, as
Member of Parliament, shall immediately convene the Parliament and shall initially
preside over its session for the purpose of electing the Prime Minister, who shall be
elected by a majority vote of all its members, from among themselves.] The duly-
elected Prime Minister shall continue to exercise and perform the powers, duties
and responsibilities of the interim Prime Minister until the expiration of the term of
the incumbent President and Vice President. 2 8
Petitioners claim that the required number of signatures of registered voters have
been complied with, i.e., the signatories to the petition constitute twelve percent (12%)
of all the registered voters in the country, wherein each legislative district is represented
by at least three percent (3%) of all the registered voters therein. Certi cations allegedly
executed by the respective COMELEC Election Registrars of each municipality and city
verifying these signatures were attached to the petition for initiative. The verification was
allegedly done on the basis of the list of registered voters contained in the o cial
COMELEC list used in the immediately preceding election.
The proposition, as formulated by petitioners, to be submitted to the Filipino
people in a plebiscite to be called for the said purpose reads:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE
1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE
PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY
SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE
ORDERLY SHIFT FROM ONE SYSTEM TO THE OTHER? 2 9
According to petitioners, the proposed amendment of Articles VI and VII would

effect a more e cient, more economical and more responsive government. The
parliamentary system would allegedly ensure harmony between the legislative and
executive branches of government, promote greater consensus, and provide faster and
more decisive governmental action.
Sections 1 and 2 of Article XVII pertinently read:
Article XVII
proposed by:

SECTION 2. Amendments to this Constitution may likewise be directly
thereafter.
right.
It can be readily gleaned that the above provisions set forth different modes and
procedures for proposals for the amendment and revision of the Constitution:
1. Under Section 1, Article XVII, any amendment to, or revision of, the
Constitution may be proposed by —
a. Congress, upon a vote of three-fourths of all its members; or
b. A constitutional convention.
2. Under Section 2, Article XVII, amendments to the Constitution may be
likewise directly proposed by the people through initiative.
The framers of the Constitution deliberately adopted the terms "amendment" and
"revision" and provided for their respective modes and procedures for effecting changes
of the Constitution fully cognizant of the distinction between the two concepts.
Commissioner Jose E. Suarez, the Chairman of the Committee on Amendments and
Transitory Provisions, explained:
MR. SUAREZ. One more point, and we will be through.
We mentioned the possible use of only one term and that is, "amendment."
However, the Committee nally agreed to use the terms — "amendment" or
"revision" when our attention was called by the honorable Vice-President to the
substantial difference in the connotation and signi cance between the said terms.
As a result of our research, we came up with the observations made in the famous
— or notorious — Javellana doctrine, particularly the decision rendered by
Honorable Justice Makasiar, wherein he made the following distinction between
"amendment" and "revision" of an existing Constitution: "Revision" may involve a
rewriting of the whole Constitution. On the other hand, the act of amending a
constitution envisages a change of speci c provisions only. The intention of an
act to amend is not the change of the entire Constitution, but only the improvement
of speci c parts or the addition of provisions deemed essential as a consequence
of new conditions or the elimination of parts already considered obsolete or
unresponsive to the needs of the times. DTAHSI
The 1973 Constitution is not a mere amendment to the 1935 Constitution. It

is a completely new fundamental Charter embodying new political, social and
economic concepts.
So, the Committee nally came up with the proposal that these two terms
should be employed in the formulation of the Article governing amendments or
revisions to the new Constitution. 3 0
Further, the framers of the Constitution deliberately omitted the term "revision" in
Section 2, Article XVII of the Constitution because it was their intention to reserve the
power to propose a revision of the Constitution to Congress or the constitutional
convention. Stated in another manner, it was their manifest intent that revision thereof
shall not be undertaken through the system of initiative. Instead, the revision of the
Constitution shall be done either by Congress or by a constitutional convention.
It is signi cant to note that, originally, the provision on the system of initiative was
included in Section 1 of the draft Article on Amendment or Revision proposed by the
Committee on Amendments and Transitory Provisions. The original draft provided:
SEC. 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. 3 1
However, after deliberations and interpellations, the members of the Commission

agreed to remove the provision on the system of initiative from Section 1 and, instead,
put it under a separate provision, Section 2. It was explained that the removal of the
provision on initiative from the other "traditional modes" of changing the Constitution
was precisely to limit the former (system of initiative) to amendments to the
Constitution. It was emphasized that the system of initiative should not extend to
revision.
MR. SUAREZ. Thank you, Madam President.
May we respectfully call the attention of the Members of the Commission
that pursuant to the mandate given to us last night, we submitted this afternoon a
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 ve 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.
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 be
limited to amendments to the Constitution and 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. . . . 3 2
The intention to exclude "revision" of the Constitution as a mode that may be

undertaken through the system of initiative was reiterated and made clear by
Commissioner Suarez in response to a suggestion of Commissioner Felicitas Aquino:
MR. SUAREZ. Section 2 must be interpreted together with the provisions of
Section 4, except that in Section 4, as it is presently drafted, there is no take-off
date for the 60-day and 90-day periods.
MS. AQUINO. Yes. In other words, Section 2 is another alternative mode of
proposing amendments to the Constitution which would further require the process
of submitting it in a plebiscite, in which case it is not self-executing.
MR. SUAREZ. No, not unless we settle and determine the take-off period.
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 clari ed 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 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 by the
Committee. 3 3
Then Commissioner Hilario P. Davide, Jr. (later Chief Justice) also made the
clarification with respect to the observation of Commissioner Regalado Maambong:
MR. MAAMBONG. My rst question: Commissioner Davide's proposed
amendment on line 1 refers to "amendments." Does it not cover the word "revision"
as de ned by Commissioner Padilla when he made the distinction between the
words "amendments" and "revision"? ETIDaH
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." 3 4
After several amendments, the Commission voted in favor of the following

wording of 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.
Sections 1 and 2, Article XVII as eventually worded read:

Article XVII

proposed by:

proposed by the people through initiative, upon a petition of at least twelve per
thereafter.
right.
The nal text of Article XVII on Amendments or Revisions clearly makes a

substantial differentiation not only between the two terms but also between two
procedures and their respective elds of application. Ineluctably, the system of initiative
under Section 2, Article XVII as a mode of effecting changes in the Constitution is strictly
limited to amendments — not to a revision — thereof.
As opined earlier, the framers of the Constitution, in providing for "amendment"
and "revision" as different modes of changing the fundamental law, were cognizant of
the distinction between the two terms. They particularly relied on the distinction made
by Justice Felix Antonio in his concurring opinion in Javellana v. Executive Secretary , 3 5
the controversial decision which gave imprimatur to the 1973 Constitution of former
President Ferdinand E. Marcos, as follows:
There is clearly a distinction between revision and amendment of an
existing constitution. Revision may involve a rewriting of the whole constitution.
The act of amending a constitution, on the other hand, envisages a change of only
specific provisions. The intention of an act to amend is not the change of the entire
constitution, but only the improvement of speci c parts of the existing constitution
of the addition of provisions deemed essential as a consequence of new
conditions or the elimination of parts already considered obsolete or unresponsive
to the needs of the times. The 1973 Constitution is not a mere amendment to the
1935 Constitution. It is a completely new fundamental charter embodying new
political, social and economic concepts. 3 6
Other elucidation on the distinction between "amendment" and "revision" is

enlightening. For example, Dean Vicente G. Sinco, an eminent authority on political law,
distinguished the two terms in this manner:
Strictly speaking, the act of revising a constitution involves alterations of
important provisions. But whatever results the revisions may produce, the factor
possibility. The intention rather is to improve the speci c parts of the existing
conditions or to suppress portions of it that seemed obsolete, or dangerous, or
misleading in their effect. 3 7
In the United States, the Supreme Court of Georgia in Wheeler v. Board of Trustees
3 8 had the occasion to make the distinction between the two terms with respect to Ga.L.
1945, an instrument which "amended" the 1877 Constitution of Georgia. It explained the
term "amendment:"
"Amendment" of a statute implies its survival and not destruction. It repeals
or changes some provision, or adds something thereto. A law is amended when it
is in whole or in part permitted to remain, and something is added to or taken from
it, or it is in some way changed or altered to make it more complete or perfect, or to
t it the better to accomplish the object or purpose for which it was made, or some
other object or purpose. 3 9
On the other hand, the term "revision" was explained by the said US appellate
court:
. . . When a house is completely demolished and another is erected on the
same location, do you have a changed, repaired and altered house, or do you have
a new house? Some of the materials contained in the old house may be used
again, some of the rooms may be constructed the same, but this does not alter the
fact that you have altogether another or a new house. We conclude that the
instrument as contained in Ga.L. 1945, pp. 8 to 89, inclusive, is not an amendment
to the constitution of 1877; but on the contrary it is a completely revised or new
constitution. 4 0
Fairly recently, Fr. Joaquin Bernas, SJ, a member of the Constitutional

Commission, expounded on the distinction between the two terms thus:
plan contemplate a re-examination of the entire document — or of provisions of the
document (which have overall implications for the entire document or for the
fundamental philosophical underpinnings of the document) — to determine how
and to what extent it should be altered. Thus, for instance, a switch from the
presidential system to a parliamentary system would be a revision because of its
overall impact on the entire constitutional structure. So would a switch from a
bicameral system to a unicameral system because of its effect on other important
provisions of the Constitution.
It is thus clear that what distinguishes revision from amendment is not the
quantum of change in the document. Rather, it is the fundamental qualitative
alteration that effects revision. Hence, I must reject the puerile argument that the
use of the plural form of "amendments" means that a revision can be achieved by
the introduction of a multiplicity of amendments! 4 1
Given that revision necessarily entails a more complex, substantial and far-
reaching effects on the Constitution, the framers thereof wisely withheld the said mode
from the system of initiative. It should be recalled that it took the framers of the present
Constitution four months from June 2, 1986 until October 15, 1986 to come up with the
draft Constitution which, as described by the venerable Justice Cecilia Muñoz Palma, the
President of the Constitutional Commission of 1986, "gradually and painstakingly took
shape through the crucible of sustained sometimes passionate and often exhilarating
debates that intersected all dimensions of the national life." 4 2
Evidently, the framers of the Constitution believed that a revision thereof should, in
like manner, be a product of the same extensive and intensive study and debates.
Consequently, while providing for a system of initiative where the people would directly
propose amendments to the Constitution, they entrusted the formidable task of its
revision to a deliberative body, the Congress or Constituent Assembly.
The Constitution is the fundamental law of the state, containing the principles
upon which the government is founded, and regulating the division of sovereign powers,
directing to what persons each of those powers is to be con ded and the manner in
which it is to be exercised. 4 3 The Philippines has followed the American constitutional
legal system in the sense that the term constitution is given a more restricted meaning,
i.e., as a written organic instrument, under which governmental powers are both
conferred and circumscribed. 4 4
The Constitution received its force from the express will of the people. An
overwhelming 16,622,111, out of 21,785,216 votes cast during the plebiscite,
or 76.30% ratified the present Constitution on February 2, 1987 . 4 5 In expressing
that will, the Filipino people have incorporated therein the method and manner by which
the same can be amended and revised, and when the electorate have incorporated into
the fundamental law the particular manner in which the same may be altered or changed,
then any course which disregards that express will is a direct violation of the
fundamental law. 4 6
Further, these provisions having been incorporated in the Constitution, where the
validity of a constitutional amendment or revision depends upon whether such
provisions have been complied with, such question presents for consideration and
determination a judicial question, and the courts are the only tribunals vested with power
under the Constitution to determine such question. 4 7
Earlier, it was mentioned that Article XVII, by the use of the terms "amendment"
and "revision," clearly makes a differentiation not only between the two terms but also
between two procedures and their respective elds of application. On this point, the
case of McFadden v. Jordan 4 8 is instructive. In that case, a "purported initiative
amendment" (referred to as the proposed measure) to the State Constitution of
California, then being proposed to be submitted to the electors for rati cation, was
sought to be enjoined. The proposed measure, denominated as "California Bill of Rights,"
comprised a single new article with some 208 subsections which would repeal or
substantially alter at least 15 of the 25 articles of the California State Constitution and
add at least four new topics. Among the likely effects of the proposed measure were to
curtail legislative and judicial functions, legalize gaming, completely revise the taxation
system and reduce the powers of cities, counties and courts. The proposed measure
also included diverse matters as ministers, mines, civic centers, liquor control and
naturopaths.
The Supreme Court of California enjoined the submission of the proposed
measure to the electors for rati cation because it was not an "amendment" but a
"revision" which could only be proposed by a convention. It held that from an
examination of the proposed measure itself, considered in relation to the terms of the
California State Constitution, it was clear that the proposed initiative enactment
amounted substantially to an attempted revision, rather than amendment, thereof; and
that inasmuch as the California State Constitution speci es (Article XVIII §2 thereof)
that it may be revised by means of constitutional convention but does not provide for
revision by initiative measure, the submission of the proposed measure to the electorate
for ratification must be enjoined.
As piercingly enunciated by the California State Supreme Court in McFadden, the
differentiation required (between amendment and revision) is not merely between two
words; more accurately it is between two procedures and between their respective
elds of application. Each procedure, if we follow elementary principles of statutory
construction, must be understood to have a substantial eld of application, not to be a
mere alternative procedure in the same eld. Each of the two words, then, must be
understood to denote, respectively, not only a procedure but also a eld of application
appropriate to its procedure. 4 9
Provisions regulating the time and mode of effecting organic changes are in the
nature of safety-valves — they must not be so adjusted as to discharge their peculiar
function with too great facility, lest they become the ordinary escape-pipes of party
passion; nor, on the other hand, must they discharge it with such di culty that the force
needed to induce action is su cient also to explode the machine. Hence, the problem of
the Constitution maker is, in this particular, one of the most di cult in our whole system,
to reconcile the requisites for progress with the requisites for safety. 5 0
Like in McFadden, the present petition for initiative on amendments to the
Constitution is, despite its denomination, one for its revision. It purports to seek the
amendment only of Articles VI and VII of the Constitution as well as to provide transitory
provisions. However, as will be shown shortly, the amendment of these two provisions
will necessarily affect other numerous provisions of the Constitution particularly those
pertaining to the speci c powers of Congress and the President. These powers would
have to be transferred to the Parliament and the Prime Minister and/or President, as the
case may be. More than one hundred (100) sections will be affected or altered thereby:
1. Section 19 of Article III (Bill of Rights) on the power of Congress to impose the
death penalty for compelling reasons involving heinous crimes;
2. Section 2 of Article V (Suffrage) on the power of Congress to provide for securing
the secrecy and sanctity of the ballot as well as a system for absentee voting; HcTSDa
3. All 32 Sections of Article VI on the Legislative Department;

4. All 23 Sections of Article VII on the Executive Department;
5. The following Sections of Article VIII (Judicial Department):

- Section 2 on power of Congress to define, prescribe and apportion the
jurisdiction of various courts;
- Section 7 on the power of Congress to prescribe the qualifications of
judges of lower courts;
- Section 8 on the composition of Judicial and Bar Council (JBC) which

includes representatives of Congress as ex officio members and on
the power of the President to appoint the regular members of the
JBC;
- Section 9 on the power of the President to appoint the members of the

Supreme Court and judges of lower courts;
- Section 16 on duty of Supreme Court to make annual report to the
President and Congress.
6. The following Sections of Article IX (Constitutional Commissions);
- (B) Section 3 on duty of Civil Service Commission to make annual

report to the President and Congress;
- (B) Section 5 on power of Congress to provide by law for the
standardization of compensation of government officials;
- (B) Section 8 which provides in part that "no public officer shall accept,
without the consent of Congress, any present, emolument, etc. . . ."

- (C) Section 1 on the power of the President to appoint the Chairman
and Commissioners of the Commission on Elections with the
consent of the Commission on Appointments;
- (C) Section 2 (7) on the power of the COMELEC to recommend to
Congress measures to minimize election spending . . .;
- (C) Section 2 (8) on the duty of the COMELEC to recommend to the
President the removal of any officer or employee it has deputized, or
the imposition of any other disciplinary action . . .;
- (C) Section 2 (9) on the duty of the COMELEC to submit to the

President and Congress a report on the conduct of election,
plebiscite, etc.;
- (C) Section 5 on the power of the President, with the favorable

recommendation of the COMELEC, to grant pardon, amnesty, parole,
or suspension of sentence for violation of election laws, rules and
regulations;
- (C) Section 7 which recognizes as valid votes cast in favor of

organization registered under party-list system;
- (C) Section 8 on political parties, organizations or coalitions under the
party-list system;
- (D) Section 1 (2) on the power of the President to appoint the

Chairman and Commissioners of the Commission on Audit (COA)
with the consent of the Commission of Appointments;
- Section 4 on duty of the COA to make annual report to the President

and Congress.
7. The following Sections of Article X (Local Government):
- Section 3 on the power of Congress to enact a local government code;

- Section 4 on the power of the President to exercise general supervision
over local government units (LGUs);
- Section 5 on the power of LGUs to create their own sources of income .
. ., subject to such guidelines as Congress may provide;
- Section 11 on the power of Congress to create special metropolitan

political subdivisions;
- Section 14 on the power of the President to provide for regional
development councils . . .;
- Section 16 on the power of the President to exercise general
supervision over autonomous regions;
- Section 18 on the power of Congress to enact organic act for each

autonomous region as well as the power of the President to appoint
the representatives to the regional consultative commission;
- Section 19 on the duty of the first Congress elected under the

Constitution to pass the organic act for autonomous regions in
Muslim Mindanao and the Cordilleras.
8. The following Sections of Article XI (Accountability of Public Officers):
- Section 2 on the impeachable officers (President, Vice-President, etc.);
- Section 3 on impeachment proceedings (exclusive power of the House

to initiate complaint and sole power of the Senate to try and decide
impeachment cases);
- Section 9 on the power of the President to appoint the Ombudsman
and his deputies;
- Section 16 which provides in part that ". . . no loans or guaranty shall
be granted to the President, Vice-President, etc.
- Section 17 on mandatory disclosure of assets and liabilities by public

officials including the President, Vice-President, etc.
9. The following Sections of Article XII (National Economy and Patrimony):
- Section 2 on the power of Congress to allow, by law, small-scale
utilization of natural resources and power of the President to enter
into agreements with foreign-owned corporations and duty to notify
Congress of every contract;
- Section 3 on the power of Congress to determine size of lands of

public domain;
- Section 4 on the power of Congress to determine specific limits of

forest lands;
- Section 5 on the power of Congress to provide for applicability of
customary laws;
- Section 9 on the power of Congress to establish an independent

economic and planning agency to be headed by the President;
- Section 10 on the power of Congress to reserve to Filipino citizens or

domestic corporations(at least 60% Filipino-owned) certain areas of
investment;
- Section 11 on the sole power of Congress to grant franchise for public

utilities;
- Section 15 on the power of Congress to create an agency to promote

viability of cooperatives;
- Section 16 which provides that Congress shall not, except by general
law, form private corporations;
- Section 17 on the salaries of the President, Vice-President, etc. and the

power of Congress to adjust the same;
- Section 20 on the power of Congress to establish central monetary

authority.
10. The following Sections of Article XIII (Social Justice and Human Rights):
- Section 1 on the mandate of Congress to give highest priority to

enactment of measures that protect and enhance the right of people .
..
- Section 4 on the power of Congress to prescribe retention limits in
agrarian reform;
- Section 18 (6) on the duty of the Commission on Human Rights to

recommend to Congress effective measures to promote human
rights;
- Section 19 on the power of Congress to provide for other cases to fall

within the jurisdiction of the Commission on Human Rights.
11. The following Sections of Article XIV (Education, Science and Technology, etc.):
- Section 4 on the power of Congress to increase Filipino equity

participation in educational institutions;
- Section 6 which provides that subject to law and as Congress may

provide, the Government shall sustain the use of Filipino as medium
of official communication;
- Section 9 on the power of Congress to establish a national language
commission;
- Section 11 on the power of Congress to provide for incentives to
promote scientific research.
12. The following Sections of Article XVI (General Provisions):

- Section 2 on the power of Congress to adopt new name for the
country, new national anthem, etc.;
- Section 5 (7) on the tour of duty of the Chief of Staff which may be
extended by the President in times of war or national emergency
declared by Congress;
- Section 11 on the power of Congress to regulate or prohibit

monopolies in mass media;
- Section 12 on the power of Congress to create consultative body to
advise the President on indigenous cultural communities.
13. The following Sections of Article XVII (Amendments or Revisions):
- Section 1 on the amendment or revision of Constitution by Congress;

EIAHcC
- Section 2 on the duty of Congress to provide for the implementation of

the system of initiative;
- Section 3 on the power of Congress to call constitutional convention to
amend or revise the Constitution.
14. All 27 Sections of Article XVIII (Transitory Provisions).
The foregoing enumeration negates the claim that "the big bulk of the 1987
Constitution will not be affected." 5 1 Petitioners' proposition, while purportedly seeking
to amend only Articles VI and VII of the Constitution and providing transitory provisions,
will, in fact, affect, alter, replace or repeal other numerous articles and sections thereof.
More than the quantitative effects, however, the revisory character of petitioners'
proposition is apparent from the qualitative effects it will have on the fundamental law.
I am not impervious to the commentary of Dean Vicente G. Sinco that the revision of a
constitution, in its strict sense, refers to a consideration of the entire constitution and the
procedure for effecting such change; while amendment refers only to particular provisions
to be added to or to be altered in a constitution. 5 2
For clarity and accuracy, however, it is necessary to reiterate below Dean Sinco's
more comprehensive differentiation of the terms:
important provisions. But whatever results the revisions may produce, the factor
possibility. The intention rather is to improve the speci c parts of the existing
conditions or to suppress portions of it that seemed obsolete, or dangerous, or
misleading in their effect. 5 3
A change in the form of government from bicameral-presidential to unicameral-

parliamentary, following the above distinction, entails a revision of the Constitution as it
will involve "alteration of different portions of the entire document" and "may result in the
rewriting of the whole constitution, or the greater portion of it, or perhaps only some of
its important provisions."
More importantly, such shift in the form of government will, without doubt,
fundamentally change the basic plan and substance of the present Constitution. The
tripartite system ordained by our fundamental law divides governmental powers into
three distinct but co-equal branches: the legislative, executive and judicial. Legislative
power, vested in Congress which is a bicameral body consisting of the House of
Representatives and the Senate, is the power to make laws and to alter them at
discretion. Executive power, vested in the President who is directly elected by the
people, is the power to see that the laws are duly executed and enforced. Judicial power,
vested in the Supreme Court and the lower courts, is the power to construe and apply
the law when controversies arise concerning what has been done or omitted under it.
This separation of powers furnishes a system of checks and balances which guards
against the establishment of an arbitrary or tyrannical government.
Under a unicameral-parliamentary system, however, the tripartite separation of
power is dissolved as there is a fusion between the executive and legislative powers.
Essentially, the President becomes a mere "symbolic head of State" while the Prime
Minister becomes the head of government who is elected, not by direct vote of the
people, but by the members of the Parliament. The Parliament is a unicameral body
whose members are elected by legislative districts. The Prime Minister, as head of
government, does not have a xed term of o ce and may only be removed by a vote of
con dence of the Parliament. Under this form of government, the system of checks and
balances is emasculated.
Considering the encompassing scope and depth of the changes that would be
effected, not to mention that the Constitution's basic plan and substance of a tripartite
system of government and the principle of separation of powers underlying the same
would be altered, if not entirely destroyed, there can be no other conclusion than that the
proposition of petitioners Lambino, et al. would constitute a revision of the Constitution
rather than an amendment or "such an addition or change within the lines of the original
instrument as will effect an improvement or better carry out the purpose for which it was
framed." 5 4 As has been shown, the effect of the adoption of the petitioners' proposition,
rather than to "within the lines of the original instrument" constitute "an improvement or
better carry out the purpose for which it was framed," is to "substantially alter the
purpose and to attain objectives clearly beyond the lines of the Constitution as now
cast." 5 5
To paraphrase McFadden, petitioners' contention that any change less than a total
one is amendatory would reduce to the rubble of absurdity the bulwark so carefully
erected and preserved. A case might, conceivably, be presented where the question
would be occasion to undertake to de ne with nicety the line of demarcation; but we
have no case or occasion here.
As succinctly by Fr. Joaquin Bernas, "a switch from the presidential system to a
parliamentary system would be a revision because of its overall impact on the entire
constitutional structure. So would a switch from a bicameral system to a unicameral
system because of its effect on other important provisions of the Constitution. It is thus
clear that what distinguishes revision from amendment is not the quantum of change in
the document. Rather, it is the fundamental qualitative alteration that effects revision." 5 6
The petition for initiative on amendments to the Constitution led by petitioners
Lambino, et al., being in truth and in fact a proposal for the revision thereof, is barred
from the system of initiative upon any legally permissible construction of Section 2,
Article XVII of the Constitution.
The Petition for Initiative on
Amendments to the Constitution
is, on its Face, Insufficient in
Form and Substance
Again, even granting arguendo RA 6735 is declared su cient to implement the
system of initiative and that COMELEC Resolution No. 2300, as it prescribed rules and
regulations on the conduct of initiative on amendments to the Constitution, is valid, still,
the petition for initiative on amendments to the Constitution must be dismissed for
being insufficient in form and substance.
Section 5 of RA 6735 requires that a petition for initiative on the Constitution must
state the following:
1. Contents or text of the proposed law sought to be enacted, approved
or rejected, amended or repealed, as the case may be;
2. The proposition;
3. The reason or reasons therefor;
4. That it is not one of the exceptions provided herein;

5. Signatures of the petitioners or registered voters; and
6. An abstract or summary proposition in not more than one hundred

(100) words which shall be legibly written or printed at the top of every page of the
petition.
Section 7 thereof requires that the signatures be verified in this wise:

SEC. 7. Veri cation of Signatures . — The Election Registrar shall verify
voters' identification cards used in the immediately preceding election.
The law mandates upon the election registrar to personally verify the signatures.
This is a solemn and important duty imposed on the election registrar which he cannot
delegate to any other person, even to barangay o cials. Hence, a veri cation of
signatures made by persons other than the election registrars has no legal effect.
In patent violation of the law, several certi cations submitted by petitioners
showed that the veri cation of signatures was made, not by the election registrars, but
by barangay o cials. For example, the certi cation of the election o cer in Lumbatan,
Lanao del Sur reads in full:
LOCAL ELECTION OFFICER'S CERTIFICATION 5 7
THIS IS TO CERTIFY that based on the veri cations made by the Barangay
O cials in this City/Municipality, as attested to by two (2) witnesses from the
same Barangays, which is part of the 2nd Legislative District of the Province of
Lanao del Sur, the names appearing on the attached signature sheets relative to
the proposed initiative on Amendments to the 1987 Constitution, are those of
bonafide resident of the said Barangays and correspond to the names found in the
o cial list of registered voters of the Commission on Elections and/or voters'
affidavit and/or voters' identification cards.
It is further certi ed that the total number of signatures of the registered

voters for the City/Municipality of LUMBATAN, LANAO DEL SUR as appearing in
the affixed signatures sheets is ONE THOUSAND ONE HUNDRED EIGHTY (1,180).
April 2, 2006
IBRAHIM M. MACADATO
Election Officer
(Underscoring supplied)
The ineffective veri cation in almost all the legislative districts in the Autonomous
Region of Muslim Mindanao (ARMM) alone is shown by the certi cations, similarly
worded as above-quoted, of the election registrars of Buldon, Maguindanao; 5 8 Cotabato
City (Special Province); 5 9 Datu Odin Sinsuat, Maguindanao; 6 0 Matanog, Maguindanao;
6 1 Parang, Maguindanao; 6 2 Kabantalan, Maguindanao; 6 3 Upi, Maguinadano; 6 4 Barira,
Maguindanao; 6 5 Sultan, Mastura; 6 6 Ampatuan, Maguindanao; 6 7 Buluan, Maguindanao;
6 8 Datu Paglas, Maguindanao; 6 9 Datu Piang, Maguindanao; 7 0 Shariff Aguak,
Maguindanao; 7 1 Pagalungan, Maguindanao; 7 2 Talayan, Maguindanao; 7 3 Gen. S.K.
Pendatun, Maguindanao; 7 4 Mamasapano, Maguindanao; 7 5 Talitay, Maguindanao; 7 6
Guindulungan, Maguindanao; 7 7 Datu Saudi Ampatuan, Maguindanao; 7 8 Datu Unsay,
Maguindanao; 7 9 Pagagawan, Maguindanao; 8 0 Rajah Buayan, Maguindanao; 8 1 Indanan,
Sulu; 8 2 Jolo, Sulu; 8 3 Maimbung, Sulu; 8 4 Hadji Panglima, Sulu; 8 5 Pangutaran, Sulu; 8 6
Parang, Sulu; 8 7 Kalingalan Caluang, Sulu; 8 8 Luuk, Sulu; 8 9 Panamao, Sulu; 9 0 Pata, Sulu;
9 1 Siasi, Sulu; 9 2 Tapul, Sulu; 9 3 Panglima Estino, Sulu; 9 4 Lugus, Sulu; 9 5 and Pandami,
Sulu. 9 6
Section 7 of RA 6735 is clear that the veri cation of signatures shall be done by
the election registrar, and by no one else, including the barangay o cials. The foregoing
certi cations submitted by petitioners, instead of aiding their cause, justify the outright
dismissal of their petition for initiative. Because of the illegal veri cations made by
barangay o cials in the above-mentioned legislative districts, it necessarily follows that
the petition for initiative has failed to comply with the requisite number of signatures, i.e.,
at least twelve percent (12%) of the total number of registered voters, of which every
legislative district must be represented by at least three percent (3%) of the registered
voters therein.
Petitioners cannot disclaim the veracity of these damaging certi cations because
they themselves submitted the same to the COMELEC and to the Court in the present
case to support their contention that the requirements of RA 6735 had been complied
with and that their petition for initiative is on its face su cient in form and substance.
They are in the nature of judicial admissions which are conclusive and binding on
petitioners. 9 7 This being the case, the Court must forthwith order the dismissal of the
petition for initiative for being, on its face, insu cient in form and substance. The Court
should make the adjudication entailed by the facts here and now, without further
proceedings, as it has done in other cases. 9 8
It is argued by petitioners that, assuming arguendo that the COMELEC is correct
in relying on Santiago that RA 6735 is inadequate to cover initiative to the Constitution,
this cannot be used to legitimize its refusal to heed the people's will. The fact that there
is no enabling law should not prejudice the right of the sovereign people to propose
amendments to the Constitution, which right has already been exercised by 6,327,952
voters. The collective and resounding act of the particles of sovereignty must not be set
aside. Hence, the COMELEC should be ordered to comply with Section 4, Article XVII of
the 1987 Constitution via a writ of mandamus. The submission of petitioners, however,
is unpersuasive. TSacCH
Mandamus is a proper recourse for citizens who act to enforce a public right and
to compel the persons of a public duty most especially when mandated by the
Constitution. 9 9 However, under Section 3, Rule 65 of the 1997 Rules of Court, for a
petition for mandamus to prosper, it must be shown that the subject of the petition is a
ministerial act or duty and not purely discretionary on the part of the board, o cer or
person, and that petitioner has a well-de ned, clear and certain right to warrant the grant
thereof. A purely ministerial act or duty is one which an o cer or tribunal performs in a
given state of facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of his own judgment upon the propriety or
impropriety of the act done. If the law imposes a duty upon a public o cial and gives
him the right to decide how or when the duty should be performed, such duty is
discretionary and not ministerial. The duty is ministerial only when the discharge of the
same requires neither the exercise of an official discretion nor judgment. 1 0 0
To stress, in a petition for mandamus, petitioner must show a well de ned, clear
and certain right to warrant the grant thereof. 1 0 1 In this case, petitioners failed to
establish their right to a writ of mandamus as shown by the foregoing disquisitions.
Remand of the Case to the
COMELEC is Not Authorized by
RA 6735 and COMELEC Resolution No. 2300
The dissenting opinion posits that the issue of whether or not the petition for
initiative has complied with the requisite number of signatures of at least twelve percent
(12%) of the total number of registered voters, of which every legislative district must be
represented by at least three percent (3%) of the registered voters therein, involves
contentious facts . The dissenting opinion cites the petitioners' claim that they have
complied with the same while the oppositors-intervenors have vigorously refuted this
claim by alleging, inter alia, that the signatures were not properly veri ed or were not
veri ed at all. Other oppositors-intervenors have alleged that the signatories did not fully
understand what they have signed as they were misled into signing the signature sheets.
According to the dissenting opinion, the su ciency of the petition for initiative
and its compliance with the requirements of RA 6735 on initiative and its implementing
rules is a question that should be resolved by the COMELEC at the rst instance. It thus
remands the case to the COMELEC for further proceedings.
To my mind, the remand of the case to the COMELEC is not warranted. There is
nothing in RA 6735, as well as in COMELEC Resolution No. 2300, granting that it is valid
to implement the former statute, that authorizes the COMELEC to conduct any kind of
hearing, whether full-blown or trial-type hearing, summary hearing or administrative
hearing, on a petition for initiative.
Section 41 of COMELEC Resolution No. 2300 provides that "[a]n initiative shall be
conducted under the control and supervision of the Commission in accordance with
Article III hereof." Pertinently, Sections 30, 31 and 32 of Article III of the said
implementing rules provide as follows:
Sec. 30. Veri cation of signatures . — The Election Registrar shall verify
voters' identification cards used in the immediately preceding election.
Sec. 31. Determination by the Commission. — The Commission shall
act on the ndings of the su ciency or insu ciency of the petition for initiative or
referendum.
If it should appear that the required number of signatures has not been
obtained, the petition shall be deemed defeated and the Commission shall issue a
declaration to that effect.
If it should appear that the required number of signatures has been

obtained, the Commission shall set the initiative or referendum in accordance with
the succeeding sections.
Sec. 32. Appeal. — The decision of the Commission on the ndings of

the su ciency and insu ciency of the petition for initiative or referendum may be
appealed to the Supreme Court within thirty (30) days from notice hereof.
Clearly, following the foregoing procedural rules, the COMELEC is not authorized
to conduct any kind of hearing to receive any evidence for or against the su ciency of
the petition for initiative. Rather, the foregoing rules require of the COMELEC to
determine the su ciency or insu ciency of the petition for initiative on its face . And it
has already been shown, by the annexes submitted by the petitioners themselves, their
petition is, on its face, insu cient in form and substance. The remand of the case to the
COMELEC for reception of evidence of the parties on the contentious factual issues is, in
effect, an amendment of the abovequoted rules of the COMELEC by this Court which the
Court is not empowered to do.
The Present Petition Presents a

Justiciable Controversy; Hence,
a Non-Political Question. Further,
the People, Acting in their Sovereign
Capacity, Have Bound Themselves
to Abide by the Constitution
Political questions refer to those questions which, under the Constitution, are to
be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of
government. 1 0 2 A political question has two aspects: (1) those matters that are to be
exercised by the people in their primary political capacity; and (2) matters which have
been speci cally designated to some other department or particular o ce of the
government, with discretionary power to act. 1 0 3
In his concurring and dissenting opinion in Arroyo v. De Venecia , 1 0 4 Senior
Associate Justice Reynato S. Puno explained the doctrine of political question vis-à-vis
the express mandate of the present Constitution for the courts to determine whether or
not there has been a grave abuse of discretion on the part of any branch or
instrumentality of the Government:
In the Philippine setting, there is more compelling reason for courts to
categorically reject the political question defense when its interposition will cover
up abuse of power. For Section 1, Article VIII of our Constitution was intentionally
cobbled to empower courts ". . . 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." This power is new and was not
granted to our courts in the 1935 and 1972 Constitutions. It was also not xeroxed
from the US Constitution or any foreign state constitution. The CONCOM
[Constitutional Commission] granted this enormous power to our courts in view of
our experience under martial law where abusive exercises of state power were
shielded from judicial scrutiny by the misuse of the political question doctrine. Led
by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded
and sharpened the checking powers of the judiciary vis-à-vis the Executive and the
Legislative departments of government. In cases involving the proclamation of
martial law and suspension of the privilege of habeas corpus, it is now beyond
dubiety that the government can no longer invoke the political question defense. DCESaI
xxx xxx xxx
To a great degree, it diminished its [political question doctrine] use as a

shield to protect other abuses of government by allowing courts to penetrate the
shield with new power to review acts of any branch or instrumentality of the
government ". . . to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction."
Even if the present petition involves the act, not of a governmental body, but of
purportedly more than six million registered voters who have signi ed their assent to the
proposal to amend the Constitution, the same still constitutes a justiciable controversy,
hence, a non-political question. There is no doubt that the Constitution, under Article
XVII, has explicitly provided for the manner or method to effect amendments thereto, or
revision thereof. The question, therefore, of whether there has been compliance with the
terms of the Constitution is for the Court to pass upon. 1 0 5
In the United States, in In re McConaughy, 1 0 6 the State Supreme Court of
Minnesota exercised jurisdiction over the petition questioning the result of the general
election holding that "an examination of the decisions shows that the courts have almost
uniformly exercised the authority to determine the validity of the proposal, submission,
or rati cation of constitutional amendments." The cases cited were Dayton v. St. Paul ,
1 0 7 Rice v. Palmer, 1 0 8 Bott v. Wurtz, 1 0 9 State v. Powell, 1 1 0 among other cases.
There is no denying that "the Philippines is a democratic and republican State.

1 1 1 However, I nd to be tenuous the asseveration that "the argument that the people
through initiative cannot propose substantial amendments to change the Constitution
turns sovereignty in its head. At the very least, the submission constricts the democratic
space for the exercise of the direct sovereignty of the people." 1 1 2 In effect, it is
theorized that despite the unambiguous text of Section 2, Article XVII of the Constitution
withholding the power to revise it from the system of initiative, the people, in their
sovereign capacity, can conveniently disregard the said provision.
I strongly take exception to the view that the people, in their sovereign capacity,
can disregard the Constitution altogether. Such a view directly contravenes the
fundamental constitutional theory that while indeed "the ultimate sovereignty is in the
people, from whom springs all legitimate authority"; nonetheless, "by the Constitution
which they establish, they not only tie up the hands of their o cial agencies, but their
own hands as well; and neither the o cers of the state, nor the whole people as an
aggregate body, are at liberty to take action in opposition to this fundamental law." 1 1 3
The Constitution, it should be remembered, "is the protector of the people, placed on
guard by them to save the rights of the people against injury by the people." 1 1 4 This is
the essence of constitutionalism:
Through constitutionalism we placed limits on both our political institutions
and ourselves, hoping that democracies, historically always turbulent, chaotic and
even despotic, might now become restrained, principled, thoughtful and just. So we
bound ourselves over to a law that we made and promised to keep. And though a
government of laws did not displace governance by men, it did mean that now
men, democratic men, would try to live by their word. 1 1 5
Section 2, Article XVII of the Constitution on the system of initiative is limited only
to proposals to amend to the Constitution, and does not extend to its revision. The
Filipino people have bound themselves to observe the manner and method to effect the
changes of the Constitution. They opted to limit the exercise of the right to directly
propose amendments to the Constitution through initiative, but did not extend the same
to the revision thereof. The petition for initiative, as it proposes to effect the revision
thereof, contravenes the Constitution. The fundamental law of the state prescribes the
limitations under which the electors of the state may change the same, and, unless such
course is pursued, the mere fact that a majority of the electors are in favor of a change
and have so expressed themselves, does not work a change. Such a course would be
revolutionary, and the Constitution of the state would become a mere matter of form.
116
The very term Constitution implies an instrument of a permanent and abiding

nature, and the provisions contained therein for its revision indicated the will of the
people that the underlying principles upon which it rests, as well as the substantial
entirety of the instrument, shall be of a like permanent and abiding nature. 1 1 7
The Filipino people have incorporated the safety valves of amendment and
revision in Article XVII of the Constitution. The Court is mandated to ensure that these
safety valves embodied in the Constitution to guard against improvident and hasty
changes thereof are not easily tri ed with. To be sure, by having overwhelmingly rati ed
the Constitution, the Filipino people believed that it is "a good Constitution" and in the
words of the learned Judge Cooley:
. . . should be beyond the reach of temporary excitement and popular
caprice or passion. It is needed for stability and steadiness; it must yield to the
thought of the people; not to the whim of the people, or the thought evolved in
excitement or hot blood, but the sober second thought, which alone, if the
government is to be safe, can be allowed e ciency. Changes in government are to
be feared unless the bene t is certain. As Montaign says: "All great mutations
shake and disorder a state. Good does not necessarily succeed evil; another evil
may succeed and worse. 1 1 8
Indisputably, the issues posed in the present case are of transcendental

importance. Accordingly, I have approached and grappled with them with full
appreciation of the responsibilities involved in the present case, and have given to its
consideration the earnest attention which its importance demands. I have sought to
maintain the supremacy of the Constitution at whatever hazard. I share the concern of
Chief Justice Day in Koehler v. Hill : 1 1 9 "it is for the protection of minorities that
constitutions are framed. Sometimes constitutions must be interposed for the
protection of majorities even against themselves. Constitutions are adopted
in times of public repose, when sober reason holds her citadel, and are
designed to check the surging passions in times of popular excitement. But if
courts could be coerced by popular majorities into a disregard of their
provisions, constitutions would become mere 'ropes of sand,' and there would
be an end of social security and of constitutional freedom. The cause of
temperance can sustain no injury from the loss of this amendment which
would be at all comparable to the injury to republican institutions which a
violation of the constitution would in ict. That large and respectable class of
moral reformers which so justly demands the observance and enforcement of
law, cannot afford to take its rst reformatory step by a violation of the
constitution. How can it consistently demand of others obedience to a
constitution which it violates itself? The people can in a short time re-enact
the amendment. In the manner of a great moral reform, the loss of a few years
is nothing. The constitution is the palladium of republican freedom. The young
men coming forward upon the stage of political action must be educated to
venerate it; those already upon the stage must be taught to obey it. Whatever
interest may be advanced or may suffer, whoever or whatever may be 'voted
up or voted down,' no sacrilegious hand must be laid upon the constitution ."
120
WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the
petition in G.R. No. 174299.
AZCUNA , J.:
"Why, friends, you go to do you know not what."

— Shakespeare, Julius Caesar, Act III, Sc. 2.
Article XVII of the Constitution states:

AMENDMENTS OR REVISIONS
Section 1. Any amendment to, or revision of, this Constitution may be

proposed by:
(1) The Congress, upon a vote of three-fourths of all its members; or

must be represented by at least three per centum of the registered votes therein. No
ratification of this Constitution nor oftener than once every five years thereafter. CDHSac
right.
Sec. 3. The Congress may, by a vote of two-thirds of all its Members,
call a constitutional convention, or by a majority vote of all its Members, submit to
the electorate the question of calling such a convention.
Sec. 4. Any amendment to, or revision of, this Constitution under
Section 1 hereof shall be valid when rati ed by a majority of the votes cast in a
plebiscite which shall be held not earlier than sixty days nor later than ninety days
after the approval of such amendment or revision.

days nor later than ninety days after the certi cation by the Commission on
Elections of the sufficiency of the petition.
This Article states the procedure for changing the Constitution.

Constitutions have three parts — the Constitution of Liberty, which states the
fundamental rights of the people; the Constitution of Government, which establishes the
structure of government, its branches and their operation; and the Constitution of
Sovereignty, which provides how the Constitution may be changed.
Article XVII is the Constitution of Sovereignty.
As a result, the powers therein provided are called constituent powers. So when
Congress acts under this provision, it acts not as a legislature exercising legislative
powers. It acts as a constituent body exercising constituent powers.
The rules, therefore, governing the exercise of legislative powers do not apply, or
do not apply strictly, to the actions taken under Article XVII.
Accordingly, since Article XVII states that Congress shall provide for the
implementation of the exercise of the people's right directly to propose amendments to
the Constitution through initiative, the act of Congress pursuant thereto is not strictly a
legislative action but partakes of a constituent act.
As a result, Republic Act No. 6735, the act that provides for the exercise of the
people of the right to propose a law or amendments to the Constitution is, with respect
to the right to propose amendments to the Constitution, a constituent measure, not a
mere legislative one.
The consequence of this special character of the enactment, insofar as it relates
to proposing amendments to the Constitution, is that the requirements for statutory
enactments, such as su ciency of standards and the like, do not and should not strictly
apply. As long as there is a su cient and clear intent to provide for the implementation
of the exercise of the right, it should be sustained, as it is simply a compliance of the
mandate placed on Congress by the Constitution.
Seen in this light, the provisions of Republic Act No. 6735 relating to the
procedure for proposing amendments to the Constitution, can and should be upheld,
despite shortcomings perhaps in legislative headings and standards.
For this reason, I concur in the view that Santiago v. Comelec 1 should be re-
examined and, after doing so, that the pronouncement therein regarding the insu ciency
or inadequacy of the measure to sustain a people's initiative to amend the Constitution
should be reconsidered in favor of allowing the exercise of this sovereign right.
And applying the doctrine stated in Senarillos v. Hermosisima, 2 penned by Justice
J.B.L. Reyes, in relation to Article 8 of the Civil Code, that a decision of this Court
interpreting a law forms part of the law interpreted as of the time of its enactment,
Republic Act No. 6735 should be deemed sufficient and adequate from the start.
This next point to address, there being a su cient law, is whether the petition for
initiative herein involved complies with the requirements of that law as well as those
stated in Article XVII of the Constitution.
True it is that ours is a democratic state, as explicitated in the Declaration of
Principles, to emphasize precisely that there are instances recognized and provided for
in the Constitution where our people directly exercise their sovereign powers, new
features set forth in this People Power Charter, namely, the powers of recall, initiative
and referendum.
Nevertheless, this democratic nature of our polity is that of a democracy under
the rule of law . This equally important point is emphasized in the very Preamble to the
Constitution, which states:
". . . the blessings of . . . democracy under the rule of law . . . ."
Such is the case with respect to the power to initiate changes in the Constitution.
The power is subject to limitations under the Constitution itself, thus: The power could
not be exercised for the rst ve years after the Constitution took effect and thereafter
can only be exercised once every ve years; the power only extends to proposing
amendments but not revisions; and the power needs an act of Congress providing for its
implementation, which act is directed and mandated.
The question, therefore, arises whether the proposed changes in the Constitution
set forth in the petition for initiative herein involved are mere amendments or rather are
revisions.
Revisions are changes that affect the entire Constitution and not mere parts of it.
The reason why revisions are not allowed through direct proposals by the people
through initiative is a practical one, namely, there is no one to draft such extensive
changes, since 6.3 million people cannot conceivably come up with a single extensive
document through a direct proposal from each of them. Someone would have to draft it
and that is not authorized as it would not be a direct proposal from the people. Such
indirect proposals can only take the form of proposals from Congress as a Constituent
Assembly under Article XVII, or a Constitutional Convention created under the same
provision. Furthermore, there is a need for such deliberative bodies for revisions
because their proceedings and debates are duly and o cially recorded, so that future
cases of interpretations can be properly aided by resort to the record of their
proceedings.
Even a cursory reading of the proposed changes contained in the petition for
initiative herein involved will show on its face that the proposed changes constitute a
revision of the Constitution. The proposal is to change the system of government from
that which is bicameral-presidential to one that is unicameral-parliamentary.
While purportedly only Articles VI, VII, and XVIII are involved, the fact is, as the
petition and text of the proposed changes themselves state, every provision of the
Constitution will have to be examined to see if they conform to the nature of a
unicameral-parliamentary form of government and changed accordingly if they do not so
conform to it. For example, Article VIII on Judicial Department cannot stand as is, in a
parliamentary system, for under such a system, the Parliament is supreme, and thus the
Court's power to declare its act a grave abuse of discretion and thus void would be an
anomaly.
Now, who is to do such examination and who is to do such changes and how
should the changes be worded? The proposed initiative does not say who nor how.
Not only, therefore, is the proposed initiative, on this score, a prohibited revision
but it also suffers from being incomplete and insufficient on its very face.
It, therefore, in that form, cannot pass muster the very limits contained in
providing for the power under the Constitution.
Neither does it comply with Republic Act No. 6735, which states in Section 10 that
not more than one subject shall be proposed as an amendment or amendments to the
Constitution. The petition herein would propose at the very least two subjects — a
unicameral legislature and a parliamentary form of government. Again, for this clear and
patent violation of the very act that provides for the exercise of the power, the proposed
initiative cannot lie.
This does not mean, however, that all is lost for petitioners.
For the proposed changes can be separated and are, in my view, separable in
nature — a unicameral legislature is one; a parliamentary form of government is another.
The rst is a mere amendment and contains only one subject matter. The second is
clearly a revision that affects every article and every provision in the Constitution to an
extent not even the proponents could at present fully articulate. Petitioners Lambino, et
al. thus go about proposing changes the nature and extent of which they do not as yet
know exactly what.
The proposal, therefore, contained in the petition for initiative, regarding a change
in the legislature from a bicameral or two-chamber body to that of a unicameral or one-
chamber body, is sustainable. The text of the changes needed to carry it out are
perfunctory and ministerial in nature. Once it is limited to this proposal, the changes are
simply one of deletion and insertions, the wordings of which are practically automatic
and non-discretionary.
As an example, I attach to this opinion an Appendix "A" showing how the
Constitution would read if we were to change Congress from one consisting of the
Senate and the House of Representatives to one consisting only of the House of
Representatives. It only affects Article VI on the Legislative Department, some
provisions on Article VII on the Executive Department, as well as Article XI on the
Accountability of Public O cers, and Article XVIII on Transitory Provisions. These are
mere amendments, substantial ones indeed but still only amendments, and they address
only one subject matter.
Such proposal, moreover, complies with the intention and rationale behind the
present initiative, which is to provide for simplicity and economy in government and
reduce the stalemates that often prevent needed legislation.
For the nonce, therefore, I vote to DISMISS the petition, without prejudice to the
ling of an appropriate initiative to propose amendments to the Constitution to change
Congress into a unicameral body. This is not say that I favor such a change. Rather, such
a proposal would come within the purview of an initiative allowed under Article XVII of
the Constitution and its implementing Republic Act, and should, therefore, be submitted
to our people in a plebiscite for them to decide in their sovereign capacity. After all is
said and done, this is what democracy under the rule of law is about.
TINGA , J.:
I join in full the opinion of Senior Associate Justice Puno. Its enviable sang-froid,
inimitable lucidity, and luminous scholarship are all so characteristic of the author that it
is hardly a waste of pen and ink to write separately if only to express my deep
admiration for his disquisition. It is compelling because it derives from the fundamental
democratic ordinance that sovereignty resides in the people, and it seeks to effectuate
that principle through the actual empowerment of the sovereign people. Justice Puno's
opinion will in the short term engender reactions on its impact on present attempts to
amend the Constitution, but once the political passion of the times have been shorn, it
will endure as an unequivocal message to the taongbayan that they are to be trusted to
chart the course of their future.
Nothing that I inscribe will improve on Justice Puno's opinion. I only write
separately to highlight a few other points which also inform my vote to grant the
petitions.
I.
I agree with Justice Puno that Santiago v. COMELEC 1 and PIRMA v. COMELEC 2
had not acquired value as precedent and should be reversed in any case. I add that the
Court has long been mindful of the rule that it necessitates a majority, and not merely a
plurality, in order that a decision can stand as precedent. That principle has informed the
members of this Court as they deliberated and voted upon contentious petitions, even if
this consideration is not ultimately re ected on the nal draft released for promulgation.
aDTSHc
The curious twist to Santiago and PIRMA is that for all the denigration heaped
upon Rep. Act No. 6735 in those cases, the Court did not invalidate any provision of the
statute. All the Court said then was that the law was "inadequate". Since this "inadequate"
law was not annulled by the Court, or repealed by Congress, it remained part of the
statute books. 3
I maintain that even if Rep. Act No. 6735 is truly "inadequate", the Court in Santiago
should not have simply let the insu ciency stand given that it was not minded to
invalidate the law itself. Article 9 of the Civil Code provides that "[n]o judge or court shall
decline to render judgment by reason of the silence, obscurity or insu ciency of the
laws." 4 As explained by the Court recently in Reyes v. Lim , 5 "[Article 9] calls for the
application of equity, which[, in the revered Justice Cardozo's words,] ' lls the open
spaces in the law.'" 6 Certainly, any court that refuses to rule on an action premised on
Rep. Act No. 6735 on the ground that the law is "inadequate" would have been found in
grave abuse of discretion. The previous failure by the Court to " ll the open spaces" in
Santiago further highlights that decision's status as an unfortunate aberration.
I am mindful of the need to respect stare decisis, to the point of having recently
decried a majority ruling that was clearly minded to reverse several precedents but
refused to explicitly say so. 7 Yet the principle is not immutable. 8 The passionate words
of Chief Justice Panganiban in Osmeña v. COMELEC 9 bear quoting:
Before I close, a word about stare decisis. In the present case, the Court is
maintaining the ad ban to be consistent with its previous holding in NPC vs.
Comelec. Thus, respondent urges reverence for the stability of judicial doctrines. I
submit, however, that more important than consistency and stability are the verity,
integrity and correctness of jurisprudence. As Dean Roscoe Pound explains, "Law
must be stable but it cannot stand still." Verily, it must correct itself and move in
cadence with the march of the electronic age. Error and illogic should not be
perpetuated. After all, the Supreme Court, in many cases, has deviated from stare
decisis and reversed previous doctrines and decisions.[ 1 0 ] It should do no less in
the present case. 1 1
Santiago established a tenet that the Supreme Court may a rm a law as

constitutional, yet declare its provisions as inadequate to accomplish the legislative
purpose, then barred the enforcement of the law. That ruling is erroneous, illogical, and
should not be perpetuated.
II.
Following Justice Puno's clear demonstration why Santiago should not be
respected as precedent, I agree that the COMELEC's failure to take cognizance of the
petitions as mandated by Rep. Act No. 6735 constitutes grave abuse of discretion
correctible through the petitions before this Court.
The Court has consistently held in cases such as Abes v. COMELEC 1 2 , Sanchez v.
COMELEC 1 3 , and Sambarani v. COMELEC 1 4 that "the functions of the COMELEC under
the Constitution are essentially executive and administrative in nature". 1 5 More
pertinently, in Buac v. COMELEC 1 6 , the Court held that the jurisdiction of the COMELEC
relative to the enforcement and administration of a law relative to a plebiscite fell under
the jurisdiction of the poll body under its constitutional mandate "to enforce and
administer all laws and regulations relative to the conduct of a . . . plebiscite". 1 7
Rep. Act No. 6735 is a law relative to the conduct of a plebiscite. The primary task
of the COMELEC under Rep. Act No. 6735 is to enforce and administer the said law,
functions that are essentially executive and administrative in nature. Even the
subsequent duty of the COMELEC of determining the su ciency of the petitions after
they have been led is administrative in character. By any measure, the COMELEC's
failure to perform its executive and administrative functions under Rep. Act No. 6735
constitutes grave abuse of discretion.
III.
It has been argued that the subject petitions for initiative are barred under
Republic Act No. 6735 as they allegedly embrace more than one subject. Section 10 of
Rep. Act No. 6735 classi es as a "prohibited measure," a petition submitted to the
electorate that embraces more than one subject. 1 8 On this point, reliance is apparently
placed on the array of provisions which are to be affected by the amendments proposed
in the initiative petition.
Section 10 of Rep. Act No. 6735 is a reflection of the long-enshrined constitutional
principle that the laws passed by Congress "shall embrace only one subject which shall
be expressed in the title thereof". 1 9 The one-subject requirement under the Constitution
is satis ed if all the parts of the statute are related, and are germane to the subject
matter expressed in the title, or as long as they are not inconsistent with or foreign to the
general subject and title. 2 0 An act having a single general subject, indicated in the title,
may contain any number of provisions, no matter how diverse they may be, so long as
they are not inconsistent with or foreign to the general subject, and may be considered in
furtherance of such subject by providing for the method and means of carrying out the
general object. 2 1
The precedents governing the one-subject, one-title rule under the Constitution
should apply as well in the interpretation of Section 10 of Rep. Act No. 6735. For as long
as it can be established that an initiative petition embraces a single general subject, the
petition may be allowed no matter the number of constitutional provisions proposed for
amendment if the amendments are germane to the subject of the petition.
Both the Sigaw ng Bayan and the Lambino initiative petitions expressly propose
the changing of the form of government from bicameral-presidential to unicameral-
parliamentary. Such a proposal may strike as comprehensive, necessitating as it will the
reorganization of the executive and legislative branches of government, nevertheless it
ineluctably encompasses only a single general subject still.
The 1987 Constitution (or any constitution for that matter) is susceptible to
division into several general spheres. To cite the broadest of these spheres by way of
example, Article III enumerates the guaranteed rights of the people under the Bill of
Rights; Articles VI, VII and VIII provide for the organizational structure of government;
while Articles II, XII, XIII & XIV, XV and XVI enunciate policy principles of the State. What
would clearly be prohibited under Section 10 of Rep. Act No. 6735 is an initiative petition
that seeks to amend provisions which do not belong to the same sphere. For example,
had a single initiative petition sought not only to change the form of government from
presidential to parliamentary but also to amend the Bill of Rights, said petition would
arguably have been barred under Section 10, as that petition ostensibly embraces more
than one subject, with each subject bearing no functional relation to the other. But that is
not the case with the present initiative petitions.
Neither can it be argued that the initiative petitions embrace more than one
subject since the proposed amendments seek to affect two separate branches of
government. The very purpose of the initiative petitions is to fuse the powers of the
executive and legislative branches of government; hence, the amendments intended to
effect such general intent necessarily affects the two branches. If it required that to
propose a shift in government from presidential to parliamentary, the amendments to
Article VII (Executive Branch) have to be segregated to a different petition from that
which would propose amendments to Article VI (Legislative Branch), then the result
would be two initiative petitions — both subject to separate authentications,
consideration and even plebiscites, all to effect one general proposition. This scenario,
which entertains the possibility that one petition would ultimately fail while the other
succeeds, could thus allow for the risk that the executive branch could be abolished
without transferring executive power to the legislative branch. An absurd result, indeed.
I am not even entirely comfortable with the theoretical underpinnings of Section
10. The Constitution indubitably grants the people the right to seek amendment of the
charter through initiative, and mandates Congress to "provide for the implementation of
the exercise of this right." In doing so, Congress may not restrict the right to initiative on
grounds that are not provided for in the Constitution. If for example the implementing
law also provides that certain provisions of the Constitution may not be amended
through initiative, that prohibition should not be sustained. Congress is tasked with the
implementation, and not the restriction of the right to initiative.
The one-subject requirement under Section 10 is not provided for as a bar to
amendment under the Constitution. Arguments can be supplied for the merit of such a
requirement, since it would afford a measure of orderliness when the vital question of
amending the Constitution arises. The one-subject requirement does allow the voters
focus when deliberating whether or not to vote for the amendments. These factors of
desirability nonetheless fail to detract from the fact that the one-subject requirement
imposes an additional restriction on the right to initiative not contemplated by the
Constitution. Short of invalidating the requirement, a better course of action would be to
insist upon its liberal interpretation. After all, the Court has consistently adhered to a
liberal interpretation of the one-subject, one-title rule. 2 2 There is no cause to adopt a
stricter interpretative rule with regard to the one-subject rule under Section 10 of Rep.
Act No. 6735
IV.
During the hearing on the petitions, the argument was raised that provisions of the
Constitution amended through initiative would not have the bene t of a reference source
from the record of a deliberative body such as Congress or a constitutional convention.
It was submitted that this consideration in uenced the Constitutional Commission as it
drafted Section 2, Article XVII, which expressly provided that only amendments, and not
revisions, may be the subject of initiative petitions.
This argument clearly proceeds from a premise that accords supreme value to the
record of deliberations of a constitutional convention or commission in the
interpretation of the charter. Yet if the absence of a record of deliberations stands as so
serious a aw as to invalidate or constrict processes which change a constitution or its
provisions, then the entire initiative process authorized by the Constitution should be
scarlet-marked as well.
Even if this position can be given any weight in the consideration of these
petitions, I would like to point out that resort to the records of deliberations is only one
of many aids to constitutional construction. For one, it should be abhorred if the
provision under study is itself clear, plain, and free from ambiguity. As the Court held in
Civil Liberties Union v. Executive Secretary: 2 3
While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the reason and
purpose of the resulting Constitution, resort thereto may be had only when other
guides fail as said proceedings are powerless to vary the terms of the Constitution
when the meaning is clear. Debates in the constitutional convention "are of value
as showing the views of the individual members, and as indicating the reasons for
their votes, but they give us no light as to the views of the large majority who did
not talk . . . We think it safer to construe the constitution from what appears upon
its face." 2 4
Even if there is need to refer to extrinsic sources in aid of constitutional

interpretation, the constitutional record does not provide the exclusive or de nitive
answer on how to interpret the provision. The intent of a constitutional convention is not
controlling by itself, and while the historical discussion on the oor of the constitutional
convention is valuable, it is not necessarily decisive. The Court has even held in Veer v.
Avelino 2 5 that "the proceedings of the [constitutional] convention are less conclusive of
the proper construction of the fundamental law than are legislative proceedings of the
proper construction of a statute, since in the latter case it is the intent of the legislature
that courts seek, while in the former courts are endeavoring to arrive at the intent of the
people through the discussions and deliberations of their representatives." 2 6 The
proper interpretation of a constitution depends more on how it was understood by the
people adopting it than the framers' understanding thereof. 2 7
If there is fear in the absence of a constitutional record as guide for interpretation
of any amendments adopted via initiative, such absence would not preclude the courts
from interpreting such amendments in a manner consistent with how courts generally
construe the Constitution. For example, reliance will be placed on the other provisions of
the Constitution to arrive at a harmonized and holistic constitutional framework. The
constitutional record is hardly the Rosetta Stone that unlocks the meaning of the
Constitution.
V.
I fully agree with Justice Puno that all issues relating to the su ciency of the
initiative petitions should be remanded to the COMELEC. Rep. Act No. 6735 clearly
reposes on the COMELEC the task of determining the su ciency of the petitions,
including the ascertainment of whether twelve percent (12%) of all registered voters,
including three percent (3%) of registered voters in every legislative district have indeed
signed the initiative petitions. 2 8 It should be remembered that the COMELEC had
dismissed the initiative petitions outright, and had yet to undertake the determination of
sufficiency as required by law.
It has been suggested to the end of leading the Court to sti e the initiative
petitions that the Court may at this juncture pronounce the initiative petitions as
insu cient. The derivation of the factual predicates leading to the suggestion is
uncertain, considering that the trier of facts, the COMELEC in this instance, has yet to
undertake the necessary determination. Still, the premise has been oated that
petitioners have made su cient admissions before this Court that purportedly
established the petitions are insufficient.
That premise is highly dubitable. Yet the more fundamental question that we
should ask, I submit, is whether it serves well on the Court to usurp trier of facts even
before the latter exercises its functions? If the Court, at this stage, were to declare the
petitions as insu cient, it would be akin to the Court pronouncing an accused as guilty
even before the lower court trial had began.
Matugas v. COMELEC 2 9 inveighs against the propriety of the Court
uncharacteristically assuming the role of trier of facts, and resolving factual questions
not previously adjudicated by the lower courts or tribunals:
[P]etitioner in this case cannot "enervate" the COMELEC's ndings by
introducing new evidence before this Court, which in any case is not a trier
of facts, and then ask it to substitute its own judgment and discretion
for that of the COMELEC .
The rule in appellate procedure is that a factual question may not be raised
for the rst time on appeal, and documents forming no part of the proofs before
the appellate court will not be considered in disposing of the issues of an action.
This is true whether the decision elevated for review originated from a regular court
or an administrative agency or quasi-judicial body, and whether it was rendered in
a civil case, a special proceeding, or a criminal case. Piecemeal presentation of
evidence is simply not in accord with orderly justice. 3 0
Any present determination by the Court on the su ciency of the petitions

constitutes in effect a trial de novo, the Justices of the Supreme Court virtually
descending to the level of trial court judges. This is an unbecoming recourse, and it
simply is not done.
VI.
The worst position this Court could nd itself in is to acquiesce to a plea that it
make the choice whether to amend the Constitution or not. This is a matter which should
not be left to fteen magistrates who have not been elected by the people to make the
choice for them.
A vote to grant the petitions is not a vote to amend the 1987 Constitution. It is
merely a vote to allow the people to directly exercise that option. In fact, the position of
Justice Puno which I share would not even guarantee that the Lambino and Sigaw ng
Bayan initiative petitions would be submitted to the people in a referendum. The
COMELEC will still have to determine the su ciency of the petition. Among the
questions which still have to be determined by the poll body in considering the
su ciency of the petitions is whether twelve percent (12%) of all registered voters
nationwide, including three percent (3%) of registered voters in every legislative district,
have indeed signed the initiative petitions. 3 1
And even should the COMELEC nd the initiative petitions su cient, the matter of
whether the Constitution should be amended would still depend on the choice of the
electorate. The oppositors are clearly queasy about some of the amendments proposed,
or the imputed motives behind the amendments. A referendum, should the COMELEC
nd the petitions as su cient, would allow them to convey their uneasiness to the public
at large, as well as for the proponents of the amendment to defend their proposal. The
campaign period alone would allow the public to be involved in the signi cant
deliberation on the course our nation should take, with the ensuing net bene t of a more
informed, more politically aware populace. And of course, the choice on whether the
Constitution should be amended would lie directly with the people. The initiative process
involves participatory democracy at its most elemental; wherein the consequential
debate would not be con ned to the august halls of Congress or the hallowed
chambers of this Court, as it would spill over to the public squares and town halls, the
academic yards and the Internet blogosphere, the dining areas in the homes of the
affluent and the impoverished alike.
The prospect of informed and widespread discussion on constitutional change
engaged in by a people who are actually empowered in having a say whether these
changes should be enacted, gives fruition to the original vision of pure democracy, as
formulated in Athens two and a half millennia ago. The great hero of Athenian
democracy, Pericles, was recorded as saying in his famed Funeral Oration, " We differ
from other states in regarding the man who keeps aloof from public life not as 'private'
but as useless; we decide or debate, carefully and in person all matters of
policy, and we hold, not that words and deeds go ill together, but that acts are
foredoomed to failure when undertaken undiscussed ." 3 2
Unfortunately, given the highly politicized charge of the times, it has been peddled
that an act or vote that assists the initiative process is one for the willful extinction of
democracy or democratic institutions. Such a consideration should of course properly
play its course in the public debates and deliberations attendant to the initiative process.
Yet as a result of the harum-scarum, the temptation lies heavy for a member of this
Court perturbed with the prospect of constitutional change to relieve those anxieties by
simply voting to enjoin any legal procedure that initiates the amendment or revision of
the fundamental law, even at the expense of the people's will or what the Constitution
allows. A vote so oriented takes the conservative path of least resistance, even as it may
gain the admiration of those who do not want to see the Constitution amended.
Still, the biases we should enforce as magistrates are those of the Constitution
and the elements of democracy on which our rule of law is founded. Direct democracy,
as embodied in the initiative process, is but a culmination of the evolution over the
centuries of democratic rights of choice and self-governance. The reemergence of the
Athenian democratic ideal after centuries of tyrannical rules arrived very slowly, the
bene ts parceled out at rst only to favored classes. The Magna Carta granted limited
rights to self-determination and self-governance only to a few English nobles; the
American Constitution was originally intended to give a meaningful voice only to free
men, mostly Caucasian, who met the property-holding requirements set by the states for
voting. Yet even the very idea of popular voting, limited as it may have already been
within the rst few years of the American Union, met resistance from no less a revered
gure as Alexander Hamilton, to whom the progressive historian Howard Zinn attributes
these disconcerting words:
The voice of the people has been said to be the voice of God; and however
generally this maxim has been quoted and believed, it is not true in fact. The
people are turbulent and changing; they seldom judge or determine right. Give
therefore to the rst class a distinct permanent share in the government. . . Can a
democratic assembly who annually revolve in the mass of the people be supposed
steadily to pursue the public good? Nothing but a permanent body can check the
imprudence of democracy. . . 3 3
This utterly paternalistic and bigoted view has not survived into the present age of
modern democracy where a person's poverty, color, or gender no longer impedes the
exercise of full democratic rights. Yet a democracy that merely guarantees its citizens
the right to live their lives freely is incomplete if there is no corresponding allowance for
a means by which the people have a direct choice in determining their country's
direction. Initiative as a mode of amending a constitution may seem incompatible with
representative democracy, yet it embodies an even purer form of democracy. Initiative,
which our 1987 Constitution saw fit to grant to the people, is a progressive measure that
is but a continuation of the line of evolution of the democratic ideal. DTCAES
By allowing the sovereign people to directly propose and enact constitutional

amendments, the initiative process should be acknowledged as the purest implement of
democratic rule under law. This right granted to over sixty million Filipinos cannot be
denied by the votes of less than eight magistrates for reasons that bear no cogitation on
the Constitution.
I VOTE to GRANT the petitions.
CHICO-NAZARIO , J., dissenting :
"The people made the constitution, and the people can unmake it. It
is the creature of their will, and lives only by their will. But this supreme and
irresistible power to make or unmake, resides only in the whole body of the
people; not in any subdivision of them."
— Marshall, C.J., Cohens v. Virginia (1821, US) 6 Wheat 264,
389, 5 L ed. 257, 287.
I express my concurrence in the discussions and conclusions presented in the
persuasive and erudite dissent of Justice Reynato S. Puno. However, I make some
additional observations in connection with my concurrence.
While it is but proper to accord great respect and reverence to the Philippine
Constitution of 1987 for being the supreme law of the land, we should not lose sight of
the truth that there is an ultimate authority to which the Constitution is also subordinate
— the will of the people . No less than its very rst paragraph, the Preamble, 1
expressly recognizes that the Constitution came to be because it was ordained and
promulgated by the sovereign Filipino people. It is a principle reiterated yet again in
Article II, Section 1, of the Constitution, which explicitly declares that "[t]he Philippines is
a democratic and republican State. Sovereignty resides in the people and all government
authority emanates from them." Thus, the resolution of the issues and controversies
raised by the instant Petition should be guided accordingly by the foregoing principle.
If the Constitution is the expression of the will of the sovereign people, then, in the
event that the people change their will, so must the Constitution be revised or amended
to re ect such change. Resultantly, the right to revise or amend the Constitution
inherently resides in the sovereign people whose will it is supposed to express and
embody. The Constitution itself, under Article XVII, provides for the means by which the
revision or amendment of the Constitution may be proposed and ratified.
Under Section 1 of the said Article, proposals to amend or revise the Constitution
may be made (a) by Congress, upon a vote of three-fourths of all its Members, or (b) by
constitutional convention. The Congress and the constitutional convention possess the
power to propose amendments to, or revisions of, the Constitution not simply because
the Constitution so provides, but because the sovereign people had chosen to delegate
their inherent right to make such proposals to their representatives either through
Congress or through a constitutional convention.
On the other hand, the sovereign people, well-inspired and greatly empowered by
the People Power Revolution of 1986, reserved to themselves the right to directly
propose amendments to the Constitution through initiative, to wit —
thereafter.
right. 2
The afore-quoted section does not confer on the Filipino people the right to
amend the Constitution because, as previously discussed, such right is inherent in them.
The section only reduces into writing this right to initiate amendments to the
Constitution where they collectively and willfully agreed in the manner by which they shall
exercise this right: (a) through the ling of a petition; (b) supported by at least twelve
percent (12%) of the total number of registered voters nationwide; (c) with each
legislative district represented by at least three percent (3%) of the registered voters
therein; (d) subject to the limitation that no such petition may be led within ve years
after the rati cation of the Constitution, and not oftener than once every ve years
thereafter; and (e) a delegation to Congress of the authority to provide the formal
requirements and other details for the implementation of the right.
It is my earnest opinion that the right of the sovereign people to directly propose
amendments to the Constitution through initiative is more superior than the power they
delegated to Congress or to a constitutional convention to amend or revise the
Constitution. The initiative process gives the sovereign people the voice to express their
collective will, and when the people speak, we must be ready to listen. Article XVII,
Section 2 of the Constitution recognizes and guarantees the sovereign people's right to
initiative, rather than limits it. The enabling law which Congress has been tasked to enact
must give life to the said provision and make the exercise of the right to initiative
possible, not regulate, limit, or restrict it in any way that would render the people's option
of resorting to initiative to amend the Constitution more stringent, di cult, and less
feasible, as compared to the other constitutional means to amend or revise the
Constitution. In fact, it is worth recalling that under Article VI, Section 1 of the
Constitution, the legislative power of Congress is limited to the extent
reserved to the people by the provisions on initiative and referendum .
It is with this frame of mind that I review the issues raised in the instant Petitions,
and which has led me to the conclusions, in support of the dissent of Justice Puno, that
(a) The Commission on Election (COMELEC) had indeed committed grave abuse of
discretion in summarily dismissing the petition for initiative to amend the Constitution
led by herein petitioners Raul L. Lambino and Erico B. Aumentado; (b) The Court should
revisit the pronouncements it made in Santiago v. Commission on Elections ; 3 (c) It is
the sovereign people's inherent right to propose changes to the Constitution, regardless
of whether they constitute merely amendments or a total revision thereof; and (d) The
COMELEC should take cognizance of Lambino and Aumentado's petition for initiative
and, in the exercise of its jurisdiction, determine the factual issues raised by the
oppositors before this Court.
I
The COMELEC had indeed committed grave abuse of discretion when it
summarily dismissed Lambino and Aumentado's petition for initiative entirely on the
basis of the Santiago case which, allegedly, permanently enjoined it from entertaining or
taking cognizance of any petition for initiative to amend the Constitution in the absence
of a sufficient law.
After a careful reading, however, of the Santiago case, I believe in earnest that the
permanent injunction actually issued by this Court against the COMELEC pertains only to
the petition for initiative led by Jesus S. Del n, and not to all subsequent petitions for
initiative to amend the Constitution.
The Conclusion 4 in the majority opinion in the Santiago case reads —
CONCLUSION
This petition must then be granted, and the COMELEC should be
validly enacted to provide for the implementation of the system.
b) DECLARING R.A. No. 6735 inadequate to cover the system of

initiative on amendments to the Constitution, and to have failed to provide
Commission on Elections prescribing rules and regulations on the conduct of
initiative or amendments to the Constitution; and
DELFIN petition (UND-96-037).

permanent as against the Commission on Elections, but is LIFTED as against
private respondents.
Resolution on the matter of contempt is hereby reserved.
It is clear from the fallo, as it is reproduced above, that the Court made permanent
the Temporary Restraining Order (TRO) it issued on 18 December 1996 against the
COMELEC. The said TRO enjoined the COMELEC from proceeding with the Del n
Petition, and Alberto and Carmen Pedrosa from conducting a signature drive for
people's initiative. 5 It was this restraining order, more particularly the portion thereof
referring to the Del n Petition, which was expressly made permanent by the Court. It
would seem to me that the COMELEC and all other oppositors to Lambino and
Aumentado's petition for initiative gave unwarranted signi cance and weight to the rst
paragraph of the Conclusion in the Santiago case. The rst and second paragraphs
of the Conclusion, preceding the dispositive portion, merely express the
opinion of the ponente ; while the de nite orders of the Court for
implementation are found in the dispositive portion .
We have previously held that —
The dispositive portion or the fallo is what actually constitutes the
resolution of the court and which is the subject of execution, although the other
parts of the decision may be resorted to in order to determine the ratio decidendi
for such a resolution. Where there is con ict between the dispositive part and the
opinion of the court contained in the text of the decision, the former must prevail
over the latter on the theory that the dispositive portion is the nal order while the
opinion is merely a statement ordering nothing. Hence execution must conform
more particularly to that ordained or decreed in the dispositive portion of the
decision. 6
Is there a con ict between the rst paragraph of the Conclusion and the
dispositive portion of the Santiago case? Apparently, there is. The rst paragraph of the
Conclusion states that the COMELEC should be permanently enjoined from entertaining
or taking cognizance of any petition for initiative on amendments to the Constitution
until the enactment of a valid law. On the other hand, the fallo only makes permanent the
TRO 7 against COMELEC enjoining it from proceeding with the Del n Petition . While
the permanent injunction contemplated in the Conclusion encompasses all petitions for
initiative on amendments to the Constitution, the fallo is expressly limited to the Del n
Petition. To resolve the con ict, the nal order of the Court as it is stated in the
dispositive portion or the fallo should be controlling.
Neither can the COMELEC dismiss Lambino and Aumentado's petition for
initiative on the basis of this Court's Resolution, dated 23 September 1997, in the case of
People's Initiative for Reform, Modernization and Action (PIRMA) v. The Commission on
Elections, et al. 8 The Court therein found that the COMELEC did not commit grave abuse
of discretion in dismissing the PIRMA Petition for initiative to amend the Constitution for
it only complied with the Decision in the Santiago case.
It is only proper that the Santiago case should also bar the PIRMA Petition on the
basis of res judicata because PIRMA participated in the proceedings of the said case,
and had knowledge of and, thus, must be bound by the judgment of the Court therein. As
explained by former Chief Justice Hilario G. Davide, Jr. in his separate opinion to the
Resolution in the PIRMA case —
First, it is barred by res judicata. No one aware of the pleadings led here
and in Santiago v. COMELEC (G.R. No. 127325, 19 March 1997) may plead
ignorance of the fact that the former is substantially identical to the latter, except
for the reversal of the roles played by the principal parties and inclusion of
additional, yet not indispensable, parties in the present petition. But plainly, the
same issues and reliefs are raised and prayed for in both cases. HIDCTA
The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM,

MODERNIZATION, AND ACTION (PIRMA) and Spouses ALBERTO PEDROSA and
CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-pro t
organization duly organized and existing under Philippine laws with o ce address
at Suite 403, Fedman Suites, 199 Salcedo Street, Legaspi Village, Makati City," with
"ALBERTO PEDROSA and CARMEN PEDROSA" as among its "officers." In Santiago,
the PEDROSAS were made respondents as founding members of PIRMA which, as
alleged in the body of the petition therein, "proposes to undertake the signature
drive for a people's initiative to amend the Constitution." In Santiago then, the
PEDROSAS were sued in their capacity as founding members of PIRMA.
The decision in Santiago speci cally declared that PIRMA was duly
represented at the hearing of the Del n petition in the COMELEC. In short, PIRMA
was intervenor-petitioner therein. Delfin alleged in his petition that he was a
founding member of the Movement for People's Initiative, and under footnote no. 6
of the decision, it was noted that said movement was "[l]ater identi ed as the
People's Initiative for Reforms, Modernization and Action, or PIRMA for brevity." In
their Comment to the petition in Santiago, the PEDROSA'S did not deny that they
were founding members of PIRMA, and by their arguments, demonstrated beyond
a shadow of a doubt that they had joined Delfin or his cause.
No amount of semantics may then shield herein petitioners PIRMA and the
PEDROSAS, as well as the others joining them, from the operation of the principle
of res judicata, which needs no further elaboration. 9
While the Santiago case bars the PIRMA case because of res judicata, the same
cannot be said to the Petition at bar. Res judicata is an absolute bar to a subsequent
action for the same cause; and its requisites are: (a) the former judgment or order must
be nal; (b) the judgment or order must be one on the merits; (c) it must have been
rendered by a court having jurisdiction over the subject matter and parties; and (d) there
must be between the rst and second actions, identity of parties, of subject matter and
of causes of action. 1 0
Even though it is conceded that the rst three requisites are present herein, the
last has not been complied with. Undoubtedly, the Santiago case and the present
Petition involve different parties, subject matter, and causes of action, and the former
should not bar the latter.
In the Santiago case, the petition for initiative to amend the Constitution was led
by Del n alone. His petition does not qualify as the initiatory pleading over which the
COMELEC can acquire jurisdiction, being unsupported by the required number of
registered voters, and actually imposing upon the COMELEC the task of gathering the
voters' signatures. In the case before us, the petition for initiative to amend the
Constitution was led by Lambino and Aumentado, on behalf of the 6.3 million
registered voters who a xed their signatures on the signature sheets attached thereto.
Their petition prays that the COMELEC issue an Order —
1. Finding the petition to be su cient pursuant to Section 4, Article XVII of the 1987
Constitution;
2. Directing the publication of the petition in Filipino and English at least twice in
newspapers of general and local circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after
the Certi cation by the COMELEC of the su ciency of the petition, to allow the
Filipino people to express their sovereign will on the proposition.
Although both cases involve the right of the people to initiate amendments to the
Constitution, the personalities concerned and the other factual circumstances attendant
in the two cases differ. Also dissimilar are the particular prayer and reliefs sought by the
parties from the COMELEC, as well as from this Court.
For these reasons, I nd that the COMELEC acted with grave abuse of discretion
when it summarily dismissed the petition for initiative led by Lambino and Aumentado.
It behooves the COMELEC to accord due course to a petition which on its face complies
with the rudiments of the law. COMELEC was openly negligent in summarily dismissing
the Lambino and Aumentado petition. The haste by which the instant Petition was struck
down is characteristic of bad faith, which, to my mind, is a patent and gross evasion of
COMELEC's positive duty. It has so obviously copped out of its duty and responsibility
to determine the su ciency thereof and sought protection and justi cation for its
craven decision in the supposed permanent injunction issued against it by the Court in
the Santiago case. The COMELEC had seemingly expanded the scope and application of
the said permanent injunction, reading into it more than what it actually states, which is
surprising, considering that the Chairman and majority of the members of COMELEC are
lawyers who should be able to understand and appreciate, more than a lay person, the
legal consequences and intricacies of the pronouncements made by the Court in the
Santiago case and the permanent injunction issued therein.
No less than the Constitution itself, under the second paragraph of Article XVII,
Section 4, imposes upon the COMELEC the mandate to set a date for plebiscite after a
positive determination of the su ciency of a petition for initiative on amendments to the
Constitution, viz —
SEC. 4. ...

days nor later than ninety days after the certi cation by the Commission on
Elections of the sufficiency of the petition.
As a rule, the word "shall" commonly denotes an imperative obligation and is

inconsistent with the idea of discretion, and that the presumption is that the word "shall"
when used, is mandatory. 1 1 Under the above-quoted constitutional provision, it is the
mandatory or imperative obligation of the COMELEC to (a) determine the su ciency of
the petition for initiative on amendments to the Constitution and issue a certi cation on
its ndings; and (b) in case such petition is found to be su cient, to set the date for the
plebiscite on the proposed amendments not earlier than 60 days nor later than 90 days
after its certification.
The COMELEC should not be allowed to shun its constitutional mandate under the
second paragraph of Article XVII, Section 4, through the summary dismissal of the
petition for initiative led by Lambino and Aumentado, when such petition is supported
by 6.3 million signatures of registered voters. Should all of these signatures be authentic
and representative of the required percentages of registered voters for every legislative
district and the whole nation, then the initiative is a true and legitimate expression of the
will of the people to amend the Constitution, and COMELEC had caused them grave
injustice by silencing their voice based on a patently inapplicable permanent injunction.
II
We should likewise take the opportunity to revisit the pronouncements made by
the Court in its Decision in the Santiago case, especially as regards the supposed
insu ciency or inadequacy of Republic Act No. 6735 as the enabling law for the
implementation of the people's right to initiative on amendments to the Constitution.
The declaration of the Court that Republic Act No. 6735 is insu cient or
inadequate actually gave rise to more questions rather than answers, due to the fact that
there has never been a judicial precedent wherein the Court invalidated a law for
insu ciency or inadequacy. The confusion over such a declaration thereby impelled
former Chief Justice Davide, Jr., the ponente in the Santiago case, to provide the
following clarification in his separate opinion to the Resolution in the PIRMA case, thus —
Simply put, Santiago did, in reality, declare as unconstitutional that portion
of R.A. No. 6735 relating to Constitutional initiatives for failure to comply with the
"completeness and su cient standard tests" with respect to permissible
delegation of legislative power or subordinate legislation. However petitioners
attempt to twist the language in Santiago, the conclusion is inevitable; the portion
of R.A. No. 6735 was held to be unconstitutional.
It is important to note, however, that while the Decision in the Santiago case
pronounced repeatedly that Republic Act No. 6735 was insu cient and inadequate,
there is no categorical declaration therein that the said statute was unconstitutional. The
express nding that Republic Act No. 6735 is unconstitutional can only be found in the
separate opinion of former Chief Justice Davide to the Resolution in the PIRMA case,
which was not concurred in by the other members of the Court.
Even assuming arguendo that the declaration in the Santiago case, that Republic
Act No. 6735 is insu cient and inadequate, is already tantamount to a declaration that
the statute is unconstitutional, it was rendered in violation of established rules in
statutory construction, which state that —
[A]ll presumptions are indulged in favor of constitutionality; one who attacks
a statute, alleging unconstitutionality must prove its invalidity beyond a reasonable
doubt (Victoriano v. Elizalde Rope Workers' Union, 59 SCRA 54 [19741). In fact, this
Court does not decide questions of a constitutional nature unless that question is
properly raised and presented in appropriate cases and is necessary to a
determination of the case, i.e., the issue of constitutionality must be lis mota
presented (Tropical Homes v. National Housing Authority , 152 SCRA 540 [1987]).
First, the Court, in the Santiago case, could have very well avoided the issue of
constitutionality of Republic Act No. 6735 by ordering the COMELEC to dismiss the
Delfin petition for the simple reason that it does not constitute an initiatory pleading over
which the COMELEC could acquire jurisdiction. And second, the unconstitutionality of
Republic Act No. 6735 has not been adequately shown. It was by and large merely
inferred or deduced from the way Republic Act No. 6735 was worded and the provisions
thereof arranged and organized by Congress. The dissenting opinions rendered by
several Justices in the Santiago case reveal the other side to the argument, adopting the
more liberal interpretation that would allow the Court to sustain the constitutionality of
Republic Act No. 6735. It would seem that the majority in the Santiago case failed to
heed the rule that all presumptions should be resolved in favor of the constitutionality of
the statute.
The Court, acting en banc on the Petition at bar, can revisit its Decision in the
Santiago case and again open to judicial review the constitutionality of Republic Act No.
6735; in which case, I shall cast my vote in favor of its constitutionality, having satis ed
the completeness and su ciency of standards tests for the valid delegation of
legislative power. I fully agree in the conclusion made by Justice Puno on this matter in
his dissenting opinion 1 2 in the Santiago case, that reads —
R.A. No. 6735 su ciently states the policy and the standards to guide the
COMELEC in promulgating the law's implementing rules and regulations of the
law. As aforestated, Section 2 spells out the policy of the law; viz: "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 a rmed, recognized and guaranteed." Spread out all over R.A.
No. 6735 are the standards to canalize the delegated power to the COMELEC to
promulgate rules and regulations from over owing. Thus, the law states the
number of signatures necessary to start a people's initiative, directs how initiative
proceeding is commenced, what the COMELEC should do upon ling of the
petition for initiative, how a proposition is approved, when a plebiscite may be held,
when the amendment takes effect, and what matters may not be the subject of any
initiative. By any measure, these standards are adequate. aCHDAE
III
The dissent of Justice Puno has already a well-presented discourse on the
difference between an "amendment" and a "revision" of the Constitution. Allow me also
to articulate my additional thoughts on the matter.
Oppositors to Lambino and Aumentado's petition for initiative argue that the
proposed changes therein to the provisions of the Constitution already amount to a
revision thereof, which is not allowed to be done through people's initiative; Article XVII,
Section 2 of the Constitution on people's initiative refers only to proposals for
amendments to the Constitution. They assert the traditional distinction between an
amendment and a revision, with amendment referring to isolated or piecemeal change
only, while revision as a revamp or rewriting of the whole instrument. 1 3
However, as pointed out by Justice Puno in his dissent, there is no quantitative or
qualitative test that can establish with de niteness the distinction between an
amendment and a revision, or between a substantial and simple change of the
Constitution.
The changes proposed to the Constitution by Lambino and Aumentado's petition
for initiative basically affect only Article VI on the Legislative Department and Article VII
on the Executive Department. While the proposed changes will drastically alter the
constitution of our government by vesting both legislative and executive powers in a
unicameral Parliament, with the President as the Head of State and the Prime Minister
exercising the executive power; they would not essentially affect the other 16 Articles of
the Constitution. The 100 or so changes counted by the oppositors to the other
provisions of the Constitution are constituted mostly of the nominal substitution of one
word for the other, such as Parliament for Congress, or Prime Minister for President. As
eloquently pointed out in the dissent of Justice Puno, the changes proposed to
transform our form of government from bicameral-presidential to unicameral-
parliamentary, would not affect the fundamental nature of our state as a democratic and
republican state. It will still be a representative government where o cials continue to
be accountable to the people and the people maintain control over the government
through the election of members of the Parliament.
Furthermore, should the people themselves wish to change a substantial portion
or even the whole of the Constitution, what or who is to stop them? Article XVII, Section
2 of the Constitution which, by the way it is worded, refers only to their right to initiative
on amendments of the Constitution? The delegates to the Constitutional Convention
who, according to their deliberations, purposely limited Article XVII, Section 2 of the
Constitution to amendments? This Court which has the jurisdiction to interpret the
provision? Bearing in mind my earlier declaration that the will of the sovereign people is
supreme, there is nothing or no one that can preclude them from initiating changes to
the Constitution if they choose to do so. To reiterate, the Constitution is supposed to be
the expression and embodiment of the people's will, and should the people's will clamor
for a revision of the Constitution, it is their will which should prevail. Even the fact that
the people rati ed the 1987 Constitution, including Article XVII, Section 2 thereof, as it is
worded, should not prevent the exercise by the sovereign people of their inherent right to
change the Constitution, even if such change would be tantamount to a substantial
amendment or revision thereof, for their actual exercise of the said right should be a
clear renunciation of the limitation which the said provision imposes upon it. It is the
inherent right of the people as sovereign to change the Constitution, regardless of the
extent thereof.
IV
Lastly, I fail to see the injustice in allowing the COMELEC to give due course to and
take cognizance of Lambino and Aumentado's petition for initiative to amend the
Constitution. I reiterate that it would be a greater evil if one such petition which is
ostensibly supported by the required number of registered voters all over the country, be
summarily dismissed.
Giving due course and taking cognizance of the petition would not necessarily
mean that the same would be found su cient and set for plebiscite. The COMELEC still
faces the task of reviewing the petition to determine whether it complies with the
requirements for a valid exercise of the right to initiative. Questions raised by the
oppositors to the petition, such as those on the authenticity of the registered voters'
signatures or compliance with the requisite number of registered voters for every
legislative district, are already factual in nature and require the reception and evaluation
of evidence of the parties. Such questions are best presented and resolved before the
COMELEC since this Court is not a trier of facts.
In view of the foregoing, I am of the position that the Resolution of the COMELEC
dated 31 August 2006 denying due course to the Petition for Initiative led by Lambino
and Aumentado be reversed and set aside for having been issued in grave abuse of
discretion, amounting to lack of jurisdiction, and that the Petition be remanded to the
COMELEC for further proceedings.
In short, I vote to GRANT the petition for Initiative of Lambino and Aumentado.
VELASCO, JR ., J.:
Introduction
The fate of every democracy, of every government based on the Sovereignty
of the people, depends on the choices it makes between these opposite principles:
absolute power on the one hand, and on the other the restraints of legality and the
authority of tradition.
— John Acton
In this thorny matter of the people's initiative, I concur with the erudite and highly
persuasive opinion of Justice Reynato S. Puno upholding the people's initiative and raise
some points of my own.
The issue of the people's power to propose amendments to the Constitution was
once discussed in the landmark case of Santiago v. COMELEC . 1 Almost a decade later,
the issue is once again before the Court, and I rmly believe it is time to reevaluate the
pronouncements made in that case.
The issue of Charter Change is one that has sharply divided the nation, and its
proponents and opponents will understandably take all measures to advance their
position and defeat that of their opponents. The wisdom or folly of Charter Change does
not concern the Court. The only thing that the Court must review is the validity of the
present step taken by the proponents of Charter Change, which is the People's Initiative,
as set down in Article XVII, Sec. 2 of the 1987 Constitution:
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 ve years following the rati cation of this
Constitution nor oftener than once every five years thereafter.
right.
In the Santiago case, the Court discussed whether the second paragraph of that
section had been ful lled. It determined that Congress had not provided for the
implementation of the exercise of the people's initiative, when it held that Republic Act
No. 6735, or "The Initiative and Referendum Act," was "inadequate to cover the system of
initiative on amendments to the Constitution, and to have failed to provide su cient
standard for subordinate legislation." 2
With all due respect to those Justices who made that declaration, I must disagree.
Republic Act No. 6735 is the proper law
for proposing constitutional amendments
and it should not have been considered
inadequate.
The decision in Santiago focused on what it perceived to be fatal aws in the
drafting of the law, in the failings of the way the law was structured, to come to the
conclusion that the law was inadequate. The Court itself recognized the legislators'
intent, but disregarded this intent. The law was found wanting. The Court then saw the
inclusion of the Constitution in RA 6735 as an afterthought. However, it was included,
and it should not be excluded by the Court via a strained analysis of the law. The di cult
construction of the law should not serve to frustrate the intent of the framers of the
1987 Constitution: to give the people the power to propose amendments as they saw
t. It is a basic precept in statutory construction that the intent of the legislature is the
controlling factor in the interpretation of a statute. 3 The intent of the legislature was
clear, and yet RA 6735 was declared inadequate. It was not speci cally struck down or
declared unconstitutional, merely incomplete. The Court focused on what RA 6735 was
not, and lost sight of what RA 6735 was.
It is my view that the reading of RA 6735 in Santiago should have been more
exible. It is also a basic precept of statutory construction that statutes should be
construed not so much according to the letter that killeth but in line with the purpose for
which they have been enacted. 4 The reading of the law should not have been with the
view of its defeat, but with the goal of upholding it, especially with its avowed noble
purpose.
Congress has done its part in empowering the people themselves to propose
amendments to the Constitution, in accordance with the Constitution itself. It should not
be the Supreme Court that sti es the people, and lets their cries for change go unheard,
especially when the Constitution itself grants them that power. SIDTCa
The court's ruling in the Santiago case

does not bar the present petition because
the fallo in the Santiago case is limited to
the Delfin petition.
The Santiago case involved a petition for prohibition led by Miriam Defensor-
Santiago, et al., against the COMELEC, et al., which sought to prevent the COMELEC from
entertaining the "Petition to Amend the Constitution, to Lift Term Limits of Elective
O cials, by People's Initiative" led by Atty. Jesus Del n. In the body of the judgment,
the Court made the following conclusion, viz:
This petition must then be granted and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of any
petition or initiative on amendments on the Constitution until a su cient
law shall have been validly enacted to provide for the implementation of the
system (emphasis supplied).
In the said case, the Court's fallo states as follows:

b) DECLARING R.A. 6735 inadequate to cover the system of initiative on

amendments to the Constitution, and to have failed to provide su cient 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
DELFIN petition (UND-96-037).

permanent as against the Commission on Elections, but is LIFTED against private
respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
The question now is if the ruling in Santiago is decisive in this case. It is

elementary that when there is con ict between the dispositive portion or fallo of the
decision and the opinion of the court contained in the text or body of the judgment, the
former prevails over the latter. An order of execution is based on the disposition, not on
the body, of the decision. 5 The dispositive portion is its decisive resolution; thus it is the
subject of execution. The other parts of the decision may be resorted to in order to
determine the ratio decidendi for the disposition. Where there is con ict between
the dispositive part and the opinion of the court contained in the text or body
of the decision, the former must prevail over the latter on the theory that the
dispositive portion is the nal order, while the opinion is merely a statement
ordering nothing . Hence, the execution must conform with that which is ordained or
decreed in the dispositive portion of the decision. 6
A judgment must be distinguished from an opinion. The latter is an informal
expression of the views of the court and cannot prevail against its final order or decision.
While the two may be combined in one instrument, the opinion forms no part of the
judgment. So there is a distinction between the ndings and conclusions of a court and
its Judgment. While they may constitute its decision and amount to the rendition of a
judgment, they are not the judgment itself. It is not infrequent that the grounds of a
decision fail to re ect the exact views of the court, especially those of concurring
justices in a collegiate court. We often encounter in judicial decisions, lapses, ndings,
loose statements and generalities which do not bear on the issues or are apparently
opposed to the otherwise sound and considered result reached by the court as
expressed in the dispositive part, so called, of the decision. 7
Applying the foregoing argument to the Santiago case, it immediately becomes
apparent that the disposition in the latter case categorically made permanent the
December 18, 1996 Temporary Restraining Order issued against the COMELEC in the
Del n petition but did NOT formally incorporate therein any directive PERMANENTLY
enjoining the COMELEC "from entertaining or taking cognizance of any petition for
initiative on amendments." Undeniably, the perpetual proscription against the COMELEC
from assuming jurisdiction over any other petition on Charter Change through a People's
Initiative is just a conclusion and cannot bind the poll body, for such unending ban would
trench on its constitutional power to enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite initiative, referendum and recall under
Section 2, Article IX of the Constitution. RA 6735 gave the COMELEC the jurisdiction to
determine the su ciency of the petition on the initiative under Section 8, Rule 11 and the
form of the petition under Section 3, Rule I; hence, it cannot be barred from entertaining
any such petition.

In sum, the COMELEC still retains its jurisdiction to take cognizance of any
petition on initiative under RA 6735 and it can rule on the petition and its action can only
be passed upon by the Court when the same is elevated through a petition for certiorari.
COMELEC cannot be barred from acting on said petitions since jurisdiction is conferred
by law (RA 6735) and said law has not been declared unconstitutional and hence still
valid though considered inadequate in the Santiago case.
Respondents, however, claim that the Court in the subsequent case of PIRMA v.
Commission on Elections 8 con rmed the statement of the Court in the Santiago case
that the COMELEC was "permanently enjoined from entertaining or taking cognizance of
any petition for initiative on amendments." Much reliance is placed on the ruling
contained in a Minute Resolution which reads:
Discretion could be attributed to the public respondent COMELEC in Dismissing the
petition led by PIRMA therein, it appearing that it only Complied with the
DISPOSITIONS in the Decision of this Court in G.R. No. 127325, promulgated on
Take note that the Court speci cally referred to "dispositions" in the March 19,
1997 Decision. To reiterate, the dispositions in the Santiago case decision refer
speci cally to the December 18, 1996 TRO being made permanent against the
COMELEC but do not pertain to a permanent injunction against any other petition for
initiative on amendment. Thus, what was con rmed or even a rmed in the Minute
Resolution in the PIRMA case pertains solely to the December 18, 1996 TRO which
became permanent, the declaration of the inadequacy of RA 6735, and the annulment of
certain parts of Resolution No. 2300 but certainly not the alleged perpetual injunction
against the initiative petition. Thus, the resolution in the PIRMA case cannot be
considered res judicata to the Lambino petition.
Amendment or Revision
One last matter to be considered is whether or not the petition may be allowed
under RA 6735, since only amendments to the Constitution may be the subject of a
people's initiative.
The Lambino petition cannot be considered an act of revising the Constitution; it
is merely an attempt to amend it. The term amendment has to be liberally construed so
as to effectuate the people's efforts to amend the Constitution.
As an eminent constitutionalist, Dean Vicente G. Sinco, 9 explained:
important provisions. But whatever results the revision may produce, the factor
possibility. The intention rather is to improve speci c parts of the existing
conditions or to suppress portions of it that seem obsolete, or dangerous, or
misleading in their effect.
In this case, the Lambino petition is not concerned with rewriting the entire
Constitution. It was never its intention to revise the whole Constitution. It merely
concerns itself with amending a few provisions in our fundamental charter.
When there are gray areas in legislation, especially in matters that pertain to the
sovereign people's political rights, courts must lean more towards a more liberal
interpretation favoring the people's right to exercise their sovereign power.
Conclusion
Sovereignty residing in the people is the highest form of sovereignty and thus
deserves the highest respect even from the courts. It is not something that can be
overruled, set aside, ignored or stomped over by whatever amount of technicalities,
blurred or vague provisions of the law. CADSHI
As I nd RA 6735 to be adequate as the implementing law for the People's

Initiative, I vote to grant the petition in G.R. No. 174153 and dismiss the petition in G.R.
No. 174299. The Amended Petition for Initiative led by petitioners Raul L. Lambino and
Erico B. Aumentado should be remanded to the COMELEC for determination whether or
not the petition is su cient under RA 6735, and if the petition is su cient, to schedule
and hold the necessary plebiscite as required by RA 6735.
It is time to let the people's voice be heard once again as it was twenty years ago.
And should this voice demand a change in the Constitution, the Supreme Court should
not be one to stand in its way.
Footnotes
1. Including Sigaw ng Bayan and Union of Local Authorities of the Philippines (ULAP).
2. This provision states: "Requirements. — . . .
(b) A petition for an initiative on the 1987 Constitution must have at least twelve
per centum (12%) of the total number of registered voters as signatories, of which every
legislative district must be represented by at least three per centum (3%) of the registered
voters therein. Initiative on the Constitution may be exercised only after five (5) years from
the ratification of the 1987 Constitution and only once every five (5) years thereafter.

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.3. the reason or reasons therefor;


c.6. an abstract or summary in not more than one hundred (100) words which
shall be legibly written or printed at the top of every page of the petition."
3. This provision states: "Verification of Signatures. — The Election Registrar shall verify the
signatures on the basis of the registry list of voters, voters' affidavits and voters
identification cards used in the immediately preceding election."
4. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI will be changed thus:
Section 1. (1) The legislative and executive powers shall be vested in a unicameral
Parliament which shall be composed of as many members as may be provided by law, to
be apportioned among the provinces, representative districts, and cities in accordance
with the number of their respective inhabitants, with at least three hundred thousand
inhabitants per district, and on the basis of a uniform and progressive ratio. Each district
shall comprise, as far as practicable, contiguous, compact and adjacent territory, and
each province must have at least one member.
(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at

least twenty-five years old on the day of the election, a resident of his district for at least
one year prior thereto, and shall be elected by the qualified voters of his district for a term
of five years without limitation as to the number thereof, except those under the party-list
system which shall be provided for by law and whose number shall be equal to twenty per
centum of the total membership coming from the parliamentary districts.
5. Sections 1, 2, 3, and 4 of Article VII will be changed thus:
Section 1. There shall be a President who shall be the Head of State. The executive
power shall be exercised by a Prime Minister, with the assistance of the Cabinet. The
Prime Minister shall be elected by a majority of all the Members of Parliament from
among themselves. He shall be responsible to the Parliament for the program of
government.
6. Sections 1-5 of the Transitory Provisions read:

Section 1. (1) The incumbent President and Vice President shall serve until the
expiration of their term at noon on the thirtieth day of June 2010 and shall continue to
exercise their powers under the 1987 Constitution unless impeached by a vote of two
thirds of all the members of the interim parliament.
(2) In case of death, permanent disability, resignation or removal from office of the
incumbent President, the incumbent Vice President shall succeed as President. In case of
death, permanent disability, resignation or removal from office of both the incumbent
President and Vice President, the interim Prime Minister shall assume all the powers and
responsibilities of Prime Minister under Article VII as amended.
Section 2. Upon the expiration of the term of the incumbent President and Vice
President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987
Constitution which shall hereby be amended and Sections 18 and 24 which shall be
deleted, all other sections of Article VI are hereby retained and renumbered sequentially as
Section 2, ad seriatim up to 26, unless they are inconsistent with the Parliamentary
system of government, in which case, they shall be amended to conform with a
unicameral parliamentary form of government; provided, however, that any and all
references therein to "Congress", "Senate", "House of Representatives" and "Houses of
Congress" shall be changed to read "Parliament"; that any and all references therein to
"Member[s] of Congress", "Senator[s]" or "Member[s] of the House of Representatives"
shall be changed to read as "Member[s] of Parliament" and any and all references to the
"President" and or "Acting President" shall be changed to read "Prime Minister".
Section 3. Upon the expiration of the term of the incumbent President and Vice
President, with the exception of Sections 1, 2, 3 and 4 of Article VII of the 1987
Constitution which are hereby amended and Sections 7, 8, 9, 10, 11 and 12 which are
hereby deleted, all other Sections of Article VII shall be retained and renumbered
sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with
Section 1 hereof, in which case they shall be deemed amended so as to conform to a
unicameral Parliamentary System of government; provided however that any and all
references therein to "Congress", "Senate", "House of Representatives" and "Houses of
Congress" shall be changed to read "Parliament"; that any and all references therein to
"Member[s] of Congress", "Senator[s]" or "Member[s] of the House of Representatives"
shall be changed to read as "Member[s] of Parliament" and any and all references to the
"President" and or "Acting President" shall be changed to read "Prime Minister".
Section 4. (1) There shall exist, upon the ratification of these amendments, an interim
Parliament which shall continue until the Members of the regular Parliament shall have
been elected and shall have qualified. It shall be composed of the incumbent Members of
the Senate and the House of Representatives and the incumbent Members of the Cabinet
who are heads of executive departments.
(2) The incumbent Vice President shall automatically be a Member of Parliament
until noon of the thirtieth day of June 2010. He shall also be a member of the cabinet and
shall head a ministry. He shall initially convene the interim Parliament and shall preside
over its sessions for the election of the interim Prime Minister and until the Speaker shall
have been elected by a majority vote of all the members of the interim Parliament from
among themselves.
(3) Within forty-five days from ratification of these amendments, the interim
Parliament shall convene to propose amendments to, or revisions of, this Constitution
consistent with the principles of local autonomy, decentralization and a strong
bureaucracy.
Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate,
from among the members of the interim Parliament, an interim Prime Minister, who shall
be elected by a majority vote of the members thereof. The interim Prime Minister shall
oversee the various ministries and shall perform such powers and responsibilities as may
be delegated to him by the incumbent President.
(2) The interim Parliament shall provide for the election of the members of
Parliament, which shall be synchronized and held simultaneously with the election of all
local government officials. Thereafter, the Vice President, as Member of Parliament, shall
immediately convene the Parliament and shall initially preside over its session for the
purpose of electing the Prime Minister, who shall be elected by a majority vote of all its
members, from among themselves. The duly elected Prime Minister shall continue to
exercise and perform the powers, duties and responsibilities of the interim Prime Minister
until the expiration of the term of incumbent President and Vice President. As revised,
Article XVIII contained a new paragraph in Section 4 (paragraph 3) and a modified
paragraph 2, Section 5, thus:
Section 4. . . .
(3) Senators whose term of office ends in 2010 shall be Members of Parliament
until noon of the thirtieth day of June 2010.
xxx xxx xxx
Section 5. . . .
(2) The interim Parliament shall provide for the election of the members of
Parliament, which shall be synchronized and held simultaneously with the election of all
local government officials. The duly elected Prime Minister shall continue to exercise and
perform the powers, duties and responsibilities of the interim Prime Minister until the
expiration of the term of the incumbent President and Vice President.

7. Footnotes text is not found in the original copy.
8. 336 Phil. 848 (1997); Resolution dated 10 June 1997.

9. The COMELEC held:
We agree with the Petitioners that this Commission has the solemn Constitutional duty
to enforce and administer all laws and regulations relative to the conduct of, as in this
case, initiative.
This mandate, however, should be read in relation to the other provisions of the
Constitution particularly on initiative.
Section 2, Article XVII of the 1987 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. . . . .
The Congress shall provide for the implementation of the exercise of this right.
The afore-quoted provision of the Constitution being a non self-executory provision
needed an enabling law for its implementation. Thus, in order to breathe life into the
constitutional right of the people under a system of initiative to directly propose, enact,
approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolution,
Congress enacted Republic Act No. 6735.
However, the Supreme Court, in the landmark case of Santiago vs. Commission on
Elections struck down the said law for being incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned.
The Supreme Court likewise declared that this Commission should be permanently
enjoined from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have been validly enacted to
provide for the implementation of the system.
Thus, even if the signatures in the instant Petition appear to meet the required
minimum per centum of the total number of registered voters, of which every legislative
district is represented by at least three per centum of the registered voters therein, still the
Petition cannot be given due course since the Supreme Court categorically declared R.A.
No. 6735 as inadequate to cover the system of initiative on amendments to the
Constitution.
This Commission is not unmindful of the transcendental importance of the right of the
people under a system of initiative. However, neither can we turn a blind eye to the
pronouncement of the High Court that in the absence of a valid enabling law, this right of
the people remains nothing but an "empty right", and that this Commission is permanently
enjoined from entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution.
Considering the foregoing, We are therefore constrained not to entertain or give due
course to the instant Petition.
10. Arturo M. De Castro; Ronald L. Adamat, Rolando Manuel Rivera, Ruelo Baya; Philippine
Transport and General Workers Organization (PTGWO); Trade Union Congress of the
Philippines; Sulong Bayan Movement Foundation, Inc.
11. Onevoice Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T.
Tolosa, Jr., Susan V. Ople and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Atty.
Pete Quirino Quadra; Bayan, Bayan Muna, Kilusang Mayo Uno, Head, Ecumenical Bishops
Forum, Migrante, Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino
Students, Jojo Pineda, Dr. Darby Santiago, Dr. Reginald Pamugas; Loreta Ann P. Rosales,
and Mario Joyo Aguja, Ana Theresa Hontiveros-Baraquel, Luwalhati Ricasa Antonino;
Philippine Constitution (PHILCONSA), Conrado F. Estrella, Tomas C. Toledo, Mariano M.
Tajon, Froilan M. Bacungan, Joaquin T. Venus, Jr., Fortunato P. Aguas, and Amado Gat
Inciong; Senate of the Philippines; Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya
Karina A. Lat, Antonio L. Salvador and Randall C. Tabayoyong, Integrated Bar of the
Philippines, Cebu City and Cebu Province Chapters; Senate Minority Leader Aquilino Q.
Pimentel, Jr., and Senators Sergio R. Osmena III, Jamby Madrigal, Jinggoy Estrada,
Alfredo S. Lim and Panfilo Lacson; Joseph Ejercito Estrada and Pwersa ng Masang
Pilipino.
12. This provision states: "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."
13. I RECORD, 387-388.
14. During the deliberations of the Constitutional Commission, Commissioner Rene V.

Sarmiento made the following report (I RECORD 389):
MR. SARMIENTO: Madam President, I am happy that the Committee on Amendments
and Transitory Provisions decided to retain the system of initiative as a mode of
amending the Constitution. I made a survey of American constitutions and I discovered
that 13 States provide for a system of initiative as a mode of amending the Constitution
— Arizona, Arkansas, California, Colorado, Massachusetts, Michigan, Missouri, Nebraska,
Nevada, North Dakota, Ohio, Oklahoma and Oregon. The initiative for ordinary laws only
is used in Idaho, Maine, Montana and South Dakota. So, I am happy that this was
accepted or retained by the Committee.
xxx xxx xxx

The Americans in turn copied the concept of initiatives from the Swiss beginning in
1898 when South Dakota adopted the initiative in its constitution. The Swiss cantons
experimented with initiatives in the 1830s. In 1891, the Swiss incorporated the initiative as
a mode of amending their national constitution. Initiatives promote "direct democracy" by
allowing the people to directly propose amendments to the constitution. In contrast, the
traditional mode of changing the constitution is known as "indirect democracy" because
the amendments are referred to the voters by the legislature or the constitutional
convention.
15. Florida requires only that the title and summary of the proposed amendment are "printed
in clear and unambiguous language." Advisory Opinion to the Attorney General RE Right
of Citizens to Choose Health Care Providers. No. 90160, 22 January 1998, Supreme Court
of Florida.
16. State ex. rel Patton v. Myers, 127 Ohio St. 95, 186 N.E. 872 (1933); Whitman v. Moore, 59
Ariz. 211, 125 P.2d 445 (1942); Heidtman v. City of Shaker Heights, 99 Ohio App. 415, 119
N.E. 2d 644 (1954); Christen v. Baker, 138 Colo. 27, 328 P.2d 951 (1958); Stop the Pay
Hike Committee v. Town Council of Town of Irvington, 166 N.J. Super. 197, 399 A.2d 336
(1979); State ex rel Evans v. Blackwell, Slip copy, 2006 WL 1102804 (Ohio App. 10 Dist.),
2006-Ohio-2076.
17. 407 Mass. 949, 955 (1990). Affirmed by the District Court of Massachusetts in Henry v.
Conolly, 743 F. Supp. 922 (1990) and by the Court of Appeals, First Circuit, in Henry v.
Conolly, 9109 F. 2d. 1000 (1990), and cited in Marino v. Town Council of Southbridge, 13
Mass.L.Rptr. 14 (2001).
18. 89 P.3d 1227, 1235 (2004).
19. Stumpf v. Law, 839 P. 2d 120, 124 (1992).

20. Exhibit "B" of the Lambino Group's Memorandum filed on 11 October 2006.
21. Annex "B" of the Comment/Opposition in Intervention of Atty. Pete Quirino-Quadra filed
on 7 September 2006.
22. www.ulap.gov.ph.
23. www.ulap.gov.ph/reso2006-02.html.
24. The full text of the proposals of the Consultative Commission on Charter Change can be
downloaded at its official website at www.concom.ph.
25. The Lambino Group's Memorandum, p 5.
26. Under the proposed Section 1(2), Article VI of the Constitution, members of Parliament
shall be elected for a term of five years "without limitation as to the number thereof."
27. Under the proposed Section 4(1), Article XVIII, Transitory Provisions of the Constitution,
the interim Parliament "shall continue until the Members of the regular Parliament shall
have been elected and shall have qualified." Also, under the proposed Section 5(2), Article
XVIII, of the same Transitory Provisions, the interim Parliament "shall provide for the
election of the members of Parliament."
28. Under the proposed Section 4(3), Article XVIII, Transitory Provisions of the Constitution,
the interim Parliament, within 45 days from ratification of the proposed changes, "shall
convene to propose amendments to, or revisions of, this Constitution."
29. 448 So.2d 984, 994 (1984), internal citations omitted.
30. 698 P.2d 1173, 1184 (1985).

31. I RECORD 386, 392, 402-403.
32. 196 P.2d 787, 790 (1948). See also Lowe v. Keisling, 130 Or.App. 1, 882 P.2d 91 (1994).
33. 392 P.2d 636, 638 (1964).
34. 930 P.2d 186, 196 (1996), internal citations omitted.
35. Livermore v. Waite, 102 Cal. 113, 118-119 (1894).

36. Amador Valley Joint Union High School District v. State Board of Equalization, 583 P.2d
1281, 1286 (1978).
37. Id.
38. Legislature of the State of California v. EU, 54 Cal.3d 492, 509 (1991).
39. California Association of Retail Tobacconists v. State, 109 Cal.App.4th 792, 836 (2003).
40. See note 44, infra.
41. Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A
Commentary, p. 1294 (2003).
42. 238 So.2d 824 (1970).

43. Id. at 830-832.
44. As stated by Associate Justice Romeo J. Callejo, Sr. during the 26 September 2006 oral
arguments.
45. Francisco, Jr. v. House of Representatives, G.R. No. 160261, 10 November 2003, 415
SCRA 44; J.M. Tuason & Co., Inc. v. Land Tenure Administration, 142 Phil. 393 (1970);
Gold Creek Mining Corporation v. Rodriguez, 66 Phil. 259 (1938).
46. 882 P.2d 91, 96-97 (1994). On the merits, the Court in Lowe v. Keisling found the
amendment in question was not a revision.
47. Section 1, Article V of the Constitution.

48. Section 11(1), Article XVI of the Constitution.
49. Section 2, Article VII of the Constitution.
50. This section provides: "The Philippines is a democratic and republican State.
51. Spouses Mirasol v. Court of Appeals, 403 Phil. 760 (2001); Intia Jr. v. COA, 366 Phil. 273
(1999).
52. G.R. No. 129754, Resolution dated 23 September 1997.

53. Presidential Proclamation No. 58 dated February 11, 1987, entitled "Proclaiming the
Ratification of the Constitution of the Republic of the Philippines Adopted by the
Constitutional Commission of 1986, including the Ordinance Appended thereto."
PANGANIBAN, C.J., concurring:
1. Chief Justice McLachlin spoke on "Liberty, Prosperity and the Rule of Law" in her speech
before the Global Forum on Liberty and Prosperity held on October 18-20, 2006 in Manila.
She further stated: "Without the rule of law, government officials are not bound by
standards of conduct. Without the rule of law, the dignity and equality of all people is not
affirmed and their ability to seek redress for grievances and societal commitments is
limited. Without the rule of law, we have no means of ensuring meaningful participation
by people in formulating and enacting the norms and standards which organize the kinds
of societies in which we want to live."
2. GR No. 127325, March 19, 1997, 336 Phil. 848. For ease of reference, my Separate
Opinion is reproduced in full:
"Our distinguished colleague, Mr. Justice Hilario G. Davide Jr., writing for the majority,
holds that:
'(1) The Comelec acted without jurisdiction or with grave abuse of discretion in
entertaining the 'initiatory' Delfin Petition.
'(2) While the Constitution allows amendments to 'be directly proposed by the
people through initiative,' there is no implementing law for the purpose. RA 6735 is
'incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative
on amendments to the Constitution is concerned.'
'(3) Comelec Resolution No. 2300, 'insofar as it prescribes rules and regulations on
the conduct of initiative on amendments to the Constitution, is void.'
"I concur with the first item above. Until and unless an initiatory petition can show the
required number of signatures — in this case, 12% of all the registered voters in the
Philippines with at least 3% in every legislative district — no public funds may be spent
and no government resources may be used in an initiative to amend the Constitution.
Verily, the Comelec cannot even entertain any petition absent such signatures. However, I
dissent most respectfully from the majority's two other rulings. Let me explain.
"Under the above restrictive holdings espoused by the Court's majority, the Constitution
cannot be amended at all through a people's initiative. Not by Delfin, not by PIRMA, not by
anyone, not even by all the voters of the country acting together. This decision will
effectively but unnecessarily curtail, nullify, abrogate and render inutile the people's right
to change the basic law. At the very least, the majority holds the right hostage to
congressional discretion on whether to pass a new law to implement it, when there is
already one existing at present. This right to amend through initiative, it bears stressing, is
guaranteed by Section 2, Article XVII of the Constitution, as follows:
'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
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.'
"With all due respect, I find the majority's position all too sweeping and all too
extremist. It is equivalent to burning the whole house to exterminate the rats, and to killing
the patient to relieve him of pain. What Citizen Delfin wants the Comelec to do we should
reject. But we should not thereby preempt any future effort to exercise the right of
initiative correctly and judiciously. The fact that the Delfin Petition proposes a misuse of
initiative does not justify a ban against its proper use. Indeed, there is a right way to do
the right thing at the right time and for the right reason.
Taken Together and Interpreted Properly,
the Constitution, R.A. 6735 and Comelec Resolution
2300 Are Sufficient to Implement Constitutional Initiatives
"While R.A. 6735 may not be a perfect law, it was — as the majority openly concedes —
intended by the legislature to cover and, I respectfully submit, it contains enough
provisions to effectuate an initiative on the Constitution. I completely agree with the
inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J.
Francisco that RA 6735, the Roco law on initiative, sufficiently implements the right of the
people to initiate amendments to the Constitution. Such views, which I shall no longer
repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en banc
rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, that "provisions
for initiative . . . are (to be) liberally construed to effectuate their purposes, to facilitate
and not hamper the exercise by the voters of the rights granted thereby"; and in Garcia vs.
Comelec, that any "effort to trivialize the effectiveness of people's initiatives ought to be
rejected."
"No law can completely and absolutely cover all administrative details. In recognition
of this, R.A. 6735 wisely empowered the Commission on Election "to promulgate such
rules and regulations as may be necessary to carry out the purposes of this Act." And
pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such
Resolution, by its very words, was promulgated "to govern the conduct of initiative on the
Constitution and initiative and referendum on national and local laws," not by the
incumbent Commission on Elections but by one then composed of Acting Chairperson
Haydee B. Yorac, Comms. Alfredo E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario
C. Rama and Magdara B. Dimaampao. All of these Commissioners who signed
Resolution 2300 have retired from the Commission, and thus we cannot ascribe any vile
motive unto them, other than an honest, sincere and exemplary effort to give life to a
cherished right of our people.
"The majority argues that while Resolution 2300 is valid in regard to national laws and
local legislations, it is void in reference to constitutional amendments. There is no basis
for such differentiation. The source of and authority for the Resolution is the same law,
R.A. 6735.
"I respectfully submit that taken together and interpreted properly and liberally, the
Constitution (particularly Art. XVII, Sec. 2), R.A. 6735 and Comelec Resolution 2300
provide more than sufficient authority to implement, effectuate and realize our people's
power to amend the Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
"I am glad the majority decided to heed our plea to lift the temporary restraining order
issued by this Court on 18 December 1996 insofar as it prohibited Petitioner Delfin and
the Spouses Pedrosa from exercising their right of initiative. In fact, I believe that such
restraining order as against private respondents should not have been issued, in the first
place. While I agree that the Comelec should be stopped from using public funds and
government resources to help them gather signatures, I firmly believe that this Court has
no power to restrain them from exercising their right of initiative. The right to propose
amendments to the Constitution is really a species of the right of free speech and free
assembly. And certainly, it would be tyrannical and despotic to stop anyone from
speaking freely and persuading others to conform to his/her beliefs. As the eminent
Voltaire once said, 'I may disagree with what you say, but I will defend to the death your
right to say it.' After all, freedom is not really for the thought we agree with, but as Justice
Holmes wrote, 'freedom for the thought that we hate.'
Epilogue
"By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative,
like referendum and recall, is a new and treasured feature of the Filipino constitutional
system. All three are institutionalized legacies of the world-admired EDSA people power.
Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They
are sacred democratic rights of our people to be used as their final weapons against
political excesses, opportunism, inaction, oppression and misgovernance; as well as their
reserved instruments to exact transparency, accountability and faithfulness from their
chosen leaders. While on the one hand, their misuse and abuse must be resolutely struck
down, on the other, their legitimate exercise should be carefully nurtured and zealously
protected.
"WHEREFORE, I vote to GRANT the petition of Sen. Miriam D. Santiago et al. and to
DIRECT Respondent Commission on Elections to DISMISS the Delfin Petition on the
ground of prematurity, but not on the other grounds relied upon by the majority. I also vote
to LIFT the temporary restraining order issued on 18 December 1996 insofar as it
prohibits Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa from exercising their right to
free speech in proposing amendments to the Constitution."
3. GR No. 129754, September 23, 1997 (still unpublished in the Philippine Reports or in the
Supreme Court Reports Annotated). Again, for ease of reference, I reproduce my Separate
Opinion in full:
"Petitioners assail the July 8, 1997 Resolution of Respondent Commission dismissing
their petition for a people's initiative to amend the Constitution. Said petition before the
Comelec (henceforth, PIRMA petition) was backed up by nearly six (6) million signatures
constituting about 16% of the registered voters of the country with at least 3% in each
legislative district. The petition now before us presents two grounds:
"1. In refusing to act on the PIRMA petition, the Comelec allegedly acted with grave
abuse of discretion amounting to lack or excess of jurisdiction; and
"2. In declaring R.A. 6735 "inadequate to cover its system of initiative on
amendments to the Constitution" and "declaring void those parts of Resolution 2300 of
the Commission on Elections prescribing rules and regulations on the conduct of [an]
initiative [on] amendments to the Constitution," the Supreme Court's Decision in G.R. No.
127325 entitled Miriam Defensor Santiago vs. Commission on Elections (hereafter
referred to as Santiago) should be reexamined because said Decision is allegedly
"unconstitutional," and because, in any event, the Supreme Court itself, in reconsidering
the said issue per its June 10, 1997 Resolution, was deadlocked at six votes one each
side.
"The following in my position on each of these two issues:

First Issue :
No Grave Abuse of Discretion

in Comelec's Refusal to Act
"The Respondent Commission's refusal to act on the "prayers" of the PIRMA petition
cannot in any wise be branded as "grave abuse of discretion." Be it remembered that the
Court's Decision in Santiago permanently enjoined the Comelec "from entertaining or
taking cognizance of any petition for initiative on amendments to the Constitution . . . ."
While concededly, petitioners in this case were not direct parties in Santiago, nonetheless
the Court's injunction against the Comelec covered ANY petition, not just the Delfin
petition which was the immediate subject of said case. As a dissenter in Santiago, I
believed, and still do, that the majority gravely erred in rendering such a
sweeping injunction, but I cannot fault the Comelec for complying with the
ruling even if it, too, disagreed with said decision's ratio decidendi .
Respondent Comelec was directly enjoined by the highest Court of the land. It
had no choice but to obey. Its obedience cannot constitute grave abuse of
discretion . Refusal to act on the PIRMA petition was the only recourse open to the
Comelec. Any other mode of action would have constituted defiance of the Court and
would have been struck down as grave abuse of discretion and contumacious disregard
of this Court's supremacy as the final arbiter of justiciable controversies.
Second Issue:
Sufficiency of RA 6735
"I repeat my firm legal position that RA 6735 is adequate to cover initiatives
on the Constitution, and that whatever administrative details may have been
omitted in said law are satisfactorily provided by Comelec Resolution 2300 .
The promulgation of Resolution 2300 is sanctioned by Section 2, Article IX-C of the
Constitution, which vests upon the Comelec the power to "enforce and administer all laws
and regulations relative to the conduct of an election, plebiscite, initiative , referendum
and recall." The Omnibus Election Code likewise empowers the electoral body to
"promulgate rules and regulations implementing the provisions of this Code or other laws
which the Commission is required to enforce and administer . . . ." Finally and most
relevantly, Section 20 of Ra 6735 specifically authorizes Comelec "to promulgate rules
and regulations as may be necessary to carry out the purposes of this Act."
"In my dissent in Santiago, I wrote that "there is a right way to do the right thing at
the right time and for the right reason ." Let me explain further.
The Right Thing
"A people's initiative is direct democracy in action. It is the right thing that citizens may
avail themselves of to articulate their will. It is a new and treasured feature of the Filipino
constitutional system. Even the majority implicitly conceded its value and worth in our
legal firmament when it implored Congress "not to tarry any longer in complying with the
constitutional mandate to provide for implementation of the right (of initiative) of the
people . . . ." Hence, in the en banc case of Subic Bay Metropolitan Authority vs. Comelec,
[G.R. No. 125416, September 26, 1996], this Court unanimously held that "(l)ike elections,
initiative and referendum are powerful and valuable modes of expressing popular
sovereignty. And this Court as a matter of policy and doctrine will exert every effort to
nurture, protect and promote their legitimate exercise."
The Right Way
"From the outset, I have already maintained the view that "taken together and
interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec. 2), RA 6735
and Comelec Resolution 2300 provide more than sufficient authority to implement,
effectuate and realize our people's power to amend the Constitution." Let me now
demonstrate the adequacy of RA 6735 by outlining, in concrete terms, the steps to be
taken — the right way — to amend the Constitution through a people's initiative.
"Pursuant to Section 3(f) of the law, the Comelec shall prescribe the form of the
petition which shall contain the proposition and the required number of signatories. Under
Sec. 5(c) thereof, the petition shall state the following:
'c.1 contents or text of the [provision or provisions] sought to be . . . amended, . . .;
c.2 the proposition [in full text];

c.3 the reason or reasons therefor [fully and clearly explained];
c.4 that it is not one of exceptions provided herein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition in not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.'
"Section 8(f) of Comelec Resolution 2300 additionally requires that the petition include
a formal designation of the duly authorized representatives of the signatories.
"Being a constitutional requirement, the number of signatures becomes a condition
precedent to the filing of the petition, and is jurisdictional. Without such requisite
signatures, the Commission shall motu proprio reject the petition.
"Where the initiators have substantially complied with the above requirements, they
may thence file the petition with the Comelec which is tasked to determine the sufficiency
thereof and to verify the signatures on the basis of the registry list of voters, voters'
affidavits and voters' identification cards. In deciding whether the petition is sufficient,
the Comelec shall also determine if the proposition is proper for an initiative, i.e., if it
consists of an amendment, not a revision, of the Constitution. Any decision of the
electoral body may be appealed to the Supreme Court within thirty (30) days from notice.
"Within thirty (30) days from receipt of the petition, and after the determination of its
sufficiency, the Comelec shall publish the same in Filipino and English at least twice in
newspapers of general and local circulation, and set the date of the plebiscite. The
conduct of the plebiscite should not be earlier than sixty (60) days, but not later than
ninety (90) days after certification by the Comelec of the sufficiency of the petition. The
proposition, if approved by a majority of the votes cast in the plebiscite, becomes
effective as of the day of the plebiscite.
"From the foregoing, it should be clear that my position upholding the adequacy of RA
6735 and the validity of Comelec Resolution 2300 will not ipso facto validate the PIRMA
petition and automatically lead to a plebiscite to amend the Constitution. Far from it.
Among others, PIRMA must still satisfactorily hurdle the following searching issues:
1. Does the proposed change — the lifting of the term limits of elective officials —
constitute a mere amendment and not a revision of the Constitution?
2. Which registry of voters will be used to verify the signatures in the petition? This
question is relevant considering that under RA 8189, the old registry of voters used in the
1995 national elections was voided after the barangay elections on May 12, 1997, while
the new list may be used starting only in the elections of May 1998.
3. Does the clamor for the proposed change in the Constitution really emanate
from the people who signed the petition for initiative? Or it is the beneficiaries of term
extension who are in fact orchestrating such move to advance their own political self-
interest?
4. Are the six million signatures genuine and verifiable? Do they really belong to
qualified warm bodies comprising at least 12% of the registered voters nationwide, of
which every legislative district is represented by at least 3% of the registered voters
therein?
"I shall expound on the third question in the next section, The Right Reason. Question
Nos. 1 and 2 above, while important, are basically legal in character and can be
determined by argumentation and memoranda. However, Question No. 4 involves not only
legal issues but gargantuan hurdles of factual determination. This to my mind is the
crucible, the litmus test, of a people's petition for initiative. If herein petitioners, led by
PIRMA, succeed in proving — not just alleging — that six million voters of this country
indeed want to amend the Constitution, what power on earth can stop them? Not this
Court, not the Comelec, not even the President or Congress.
"It took only one million people to stage a peaceful revolution at EDSA, and the very
rafters and foundations of the martial law society trembled, quaked and crumbled. On the
other hand, PIRMA and its co-petitioners are claiming that they have gathered six million
signatures. If, as claimed by many, these six million signatures are fraudulent, then let
them be exposed and damned for all history in a signature-verification process conducted
under our open system of legal advocacy.
"More than anything else, it is the truth that I, as a member of this Court and as a
citizen of this country, would like to seek: Are these six million signatures real? By
insisting on an entirely new doctrine of statutory inadequacy, the majority effectively
suppressed the quest for that truth.
The Right Reason

"As mentioned, the third question that must be answered, even if the adequacy of RA
6735 and the validity of Comelec Resolution 2300 were upheld by the majority is: Does
the clamor for the proposed change to the Constitution really emanate from the people
who signed the petition for initiative? Or is it the beneficiaries of term extension who are
in fact orchestrating such move to advance their own political self-interests? In other
words, is PIRMA's exercise of the right to initiative being done in accordance with our
Constitution and our laws? Is such attempted exercise legitimate?
"In Garcia vs. Commission on Elections, we described initiative, along with referendum,
as the 'ultimate weapon of the people to negate government malfeasance and
misfeasance.' In Subic Bay , we specified that 'initiative is entirely the work of the
electorate . . . a process of lawmaking by the people themselves without the participation
and against the wishes of their elected representatives.' As ponente of Subic Bay , I
stand foursquare on this principle: The right to amend through initiative
belongs only to the people — not to the government and its minions . This
principle finds clear support from utterances of many constitutional commissioners like
those quoted below:
"[Initiative is] a reserve power of the sovereign people, when they are dissatisfied with
the National Assembly . . . [and] precisely a fallback position of the people in the event
that they are dissatisfied." — Commissioner Ople
"[Initiative is] a check on a legislative that is not responsive [and resorted to] only if the
legislature is not as responsive to the vital and urgent needs of people." — Commissioner
Gascon
"[Initiative is an] extraordinary power given to the people [and] reserved for the people
[which] should not be frivolously resorted to." — Commissioner Romulo
"Indeed, if the powers-that-be desire to amend the Constitution, or even to revise it, our
Charter itself provides them other ways of doing so, namely, by calling a constitutional
convention or constituting Congress into a constituent assembly. These are officialdom's
weapons. But initiative belongs to the people.
"In the present case, are PIRMA and its co-petitioners legitimate people's organizations
or are they merely fronts for incumbents who want to extend their terms? This is a factual
question which, unfortunately, cannot be judicially answered anymore, because the
Supreme Court majority ruled that the law that implements it, RA 6735, is inadequate or
insufficient insofar as initiatives to the Constitutions are concerned. With such ruling, the
majority effectively abrogated a constitutional right of our people. That is why in my
Separate Opinion in Santiago, I exclaimed that such precipitate action "is equivalent to
burning the whole house to exterminate the rats, and to killing the patient to relieve him of
pain." I firmly maintain that to defeat PIRMA's effort, there is no need to "burn" the
constitutional right to initiative. If PIRMA's exercise is not "legitimate," it can be exposed
as such in the ways I have discussed — short of abrogating the right itself. On the other
hand, if PIRMA's position is proven to be legitimate — if it hurdles the four issues I
outlined earlier — by all means, we should allow and encourage it. But the majority's
theory of statutory inadequacy has pre-empted — unnecessarily and invalidly, in my view
— any judicial determination of such legitimacy or illegitimacy. It has silenced the quest
for truth into the interstices of the PIRMA petition.
The Right Time
"The Constitution itself sets a time limitation on when changes thereto may be
proposed. Section 2 of Article XVII precludes amendments "within five years following [its]
ratification . . . nor oftener than once every five years thereafter." Since its ratification, the
1987 Constitution has never been amended. Hence, the five-year prohibition is now
inoperative and amendments may theoretically be proposed at any time.
"Be that as it may, I believe — given the present circumstances — that there is no more
time to lift term limits to enable incumbents to seek reelection in the May 11, 1998 polls.
Between today and the next national elections, less than eight (8) months remain.
Santiago, where the single issue of the sufficiency of RA 6735 was resolved, took this
Court three (3) months, and another two (2) months to decide the motion for
reconsideration. The instant case, where the same issue is also raised by the petitioners,
took two months, not counting a possible motion for reconsideration. These time spans
could not be abbreviated any further, because due process requires that all parties be
given sufficient time to file their pleadings.
"Thus, even if the Court were to rule now in favor of the adequacy of RA 6735 — as I
believe it should — and allow the Comelec to act on the PIRMA petition, such eight-month
period will not be enough to tackle the four weighty issues I mentioned earlier, considering
that two of them involve tedious factual questions. The Comelec's decision on any of
these issues can still be elevated to this Court for review, and reconsiderations on our
decisions on each of those issues may again be sought.
"Comelec's herculean task alone of verifying each of the six million signatures is
enormously time-consuming, considering that any person may question the authenticity
of each and every signature, initially before the election registrar, then before the Comelec
on appeal and finally, before this Court in a separate proceeding. Moreover, the plebiscite
itself — assuming such stage can be reached — may be scheduled only after sixty (60)
but not more than ninety (90) days, from the time the Comelec and this Court, on appeal,
finally declare the petition to be sufficient.
"Meanwhile, under Comelec Resolution 2946, political parties, groups organizations or
coalitions may start selecting their official candidates for President, Vice President and
Senators on November 27, 1997; the period for filing certificates of candidacy is from
January 11 to February 9, 1998; the election period and campaign for national officials
start on February 10, 1998, while the campaign period for other elective officials, on
March 17, 1998. This means, by the time PIRMA's proposition is ready — if ever — for
submission directly to the voters at large, it will have been overcome by the elections.
Time will simply run out on PIRMA, if the intention is to lift term limits in time for the 1998
elections.
"That term limits may no longer be lifted prior to the 1998 elections via a people's
initiative does not detract one whit from (1) my firm conviction that RA 6735 is sufficient
and adequate to implement this constitutional right and, more important, (2) my faith in
the power of the people to initiate changes in local and national laws and the
Constitution. In fact, I think the Court can deliberate on these two items even more
serenely and wisely now that the debates will be free from the din and distraction of the
1998 elections. After all, jurisprudence is not merely for the here and now but, more so, for
the hereafter and the morrow. Let me therefore stress, by way of epilogue, my unbending
credo in favor of our people's right to initiative.

Epilogue
"I believe in democracy — in our people's natural right to determine our own destiny.
"I believe in the process of initiative as a democratic method of enabling our people to
express their will and chart their history. Initiative is an alternative to bloody revolution,
internal chaos and civil strife. It is an inherent right of the people — as basic as the right to
elect, the right to self-determination and the right to individual liberties. I believe that
Filipinos have the ability and the capacity to rise above themselves, to use this right of
initiative wisely and maturely, and to choose what is best for themselves and their
posterity.
"Such beliefs, however, should not be equated with a desire to perpetuate a particular
official or group of officials in power. Far from it. Such perpetuation is anathema to
democracy. My firm conviction that there is an adequate law implementing the
constitutional right of initiative does not ipso facto result in the victory of the PIRMA
petition or of any proposed constitutional change. There are, after all, sufficient
safeguards to guarantee the proper use of such constitutional right and to forestall its
misuse and abuse. First, initiative cannot be used to revise the Constitution, only to
amend it. Second, the petitioners' signatures must be validated against an existing list of
voters and/or voters' identification cards. Third, initiative is a reverse power of and by the
people, not of incumbent officials and their machinators. Fourth and most important of
all, the signatures must be verified as real and genuine; not concocted, fictitious or
fabricated. The only legal way to do this is to enable the Commission on Elections to
conduct a nationwide verification process as mandated by the Constitution and the law.
Such verification, it bears stressing, is subject to review by this Court.
"There were, by the most generous estimate, only a million people who gathered at
EDSA in 1986, and yet they changed the history of our country. PIRMA claims six times
that number, not just from the National Capital Region but from all over the country. Is
this claim through the invention of its novel theory of statutory insufficiency, the Court's
majority has stifled the only legal method of determining whether PIRMA is real or not,
whether there is indeed a popular clamor to lift term limits of elected officials, and
whether six million voters want to initiate amendments to their most basic law. In
suppressing a judicial answer to such questions, the Court may have unwittingly yielded
to PIRMA the benefit of the legal presumption of legality and regularity. In its misplaced
zeal to exterminate the rats, it burned down the whole house. It unceremoniously divested
the people of a basic constitutional right.
"In the ultimate, the mission of the judiciary is to discover truth and to make it prevail.
This mission is undertaken not only to resolve the vagaries of present events but also to
build the pathways of tomorrow. The sum total of the entire process of adversarial
litigation is the verity of facts and the application of law thereto. By the majority cop-out
in this mission of discovery, our country and our people have been deprived not only of a
basic constitutional right, as earlier noted, but also of the judicial opportunity to verify the
truth."
4. Republic v. COCOFED , 423 Phil. 735, December 14, 2001.
5. Well-entrenched is this definition of grave abuse of discretion. Id.; Benito v. Comelec, 349
SCRA 705, January 19, 2001; Defensor-Santiago v. Guingona Jr., 359 Phil. 276, November
18, 1998; and Philippine Airlines, Inc. v. Confesor, 231 SCRA 41, March 10, 1994.
6. In PIRMA, I submitted as follows: "I believed, and still do, that the majority gravely erred in
rendering such a sweeping injunction [that covered ANY petition, not just the Delfin
petition], but I cannot fault the Comelec for complying with the ruling even if it, too,
disagreed with said decision's ratio decidendi. Respondent Comelec was directly enjoined
by the highest Court of the land. It had no choice but to obey. Its obedience cannot
constitute grave abuse of discretion. Refusal to act on the PIRMA petition was the only
recourse open to the Comelec. Any other mode of action would have constituted defiance
of the Court and would have been struck down as grave abuse of discretion and
contumacious disregard of this Court's supremacy as the final arbiter of justiciable
controversies."
7. 42 Am. Jr. 2d, §26, citing Birmingham Gas Co. v. Bessemer; 250 Ala 137, 33 So 2d 475,
250 Ala 137; Tacker v. Board of Comrs., 127 Fla 248, 170 So 458; Hoxie V. Scott, 45 Neb
199, 63 NW 387; Gill v. Board of Comrs., 160 NC 176, 76, SE 204.
8. Partido ng Manggagawa v. Comelec, GR No. 164702, March 15, 2006.
9. Article XVII (AMENDMENTS OR REVISIONS)
"SEC. 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon the vote of three-fourths of all its Members; or
"SEC. 2. Amendments to this Constitution may likewise be directly proposed by the
people though initiative upon a petition of at least twelve per centum of the total number
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.
"SEC. 3. The Congress may, by a vote of two-thirds of all its Members, call a
constitutional convention, or by a majority vote of all its Members, submit to the
electorate the question of calling such a convention.
"SEC. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof
shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be
held not earlier than sixty days nor later than ninety days after the approval of such
amendment or revision.
"Any amendment under Section 2 hereof shall be valid when ratified by a majority of
the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than
ninety days after the certification by the Commission on Elections of the sufficiency of
the petition."
10. Republic Act 6735, Sec. 10, provides:
"SEC. 10. Prohibited Measures. — The following cannot be the subject of an initiative or
referendum petition:
(a) No petition embracing more than one subject shall be submitted to the
electorate; and
(b) Statutes involving emergency measures, the enactment of which are
specifically vested in Congress by the Constitution, cannot be subject to referendum until
ninety (90) days after its effectivity."
11. The principle of separation of powers operates at the core of a presidential form of
government. Thus, legislative power is given to the legislature; executive power, to a
separate executive (from whose prominent position in the system, the presidential
nomenclature is derived); and judicial power, to an independent judiciary. This system
embodies interdependence by separation.
On the other hand, a parliamentary system personifies interdependence by integration,

its essential features being the following: "(1) The members of the government or cabinet
or the executive arm are, as a rule, simultaneously members of the legislature. (2) The
government or cabinet, consisting of the political leaders of the majority party or of a
coalition who are also members of the legislative, is in effect a committee of the
legislature. (3) The government or cabinet has a pyramidal structure, at the apex of which
is the Prime Minister or his equivalent. (4) The government or cabinet remains in power
only for as long as it enjoys the support of the majority of the legislature. (5) Both
government and legislature are possessed of control devices with which each can
demand of the other immediate political responsibility." These control devices are a vote
of no-confidence (censure), whereby the government may be ousted by the legislature;
and the power of the government to dissolve the legislature and call for new elections. (J.
BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A COMMENTARY,
Vol. II, 17-18 (1988 ed.).
With respect to the transformation from a bicameral to a unicameral legislature, the
change involves the form of representation and the lawmaking process.
12. Attached to the Opposition-in-Intervention of Intervenors One Voice Inc., etc., is a
photocopy of the Certification dated August 23, 2006, issued by Atty. Marlon S. Casquejo,
the election officer for the 3rd District and the officer-in-charge for the 1st and the 2nd
Districts of Davao City. The Certification states that "this office (First, Second and Third
District, Davao City) has not verified the signatures of registered voters . . . ."
13. In People v. Veneracion, the Court held: "Obedience to the rule of law forms the bedrock
of our system of justice. If judges, under the guide of religious or political beliefs were
allowed to roam unrestricted beyond boundaries within which they are required by law to
exercise the duties of their office, then law becomes meaningless. A government of laws,
not of men, excludes the exercise of broad discretionary powers by those acting under its
authority. Under this system, judges are guided by the Rule of Law, and ought 'to protect
and enforce it without fear or favor,' resist encroachments by governments, political
parties, or even the interference of their own personal beliefs." (249 SCRA 244, October 13,
1995, per Kapunan, J.)
14. An American professor on legal philosophy, A. Altman, puts it thus: "By ratifying the
constitution that included an explicit amendment process, the sovereign people
committed themselves to following the rule of law, even when they wished to make
changes in the basic system of government." A. ALTMAN, ARGUING ABOUT LAW 94
(2001).
15. See my Separate Opinion in Francisco Jr. v. House of Representatives, 415 SCRA 45,
November 10, 2003.
16. See, for instance, the front page Malaya report entitled "Lobbyists soil dignity of
Supreme Court" (October 23, 2006).
17. Lk 8:17.
PUNO, J., dissenting:

1. M'cCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 407 (1819).
2. Section 1, Article II, 1987 Constitution.
3. 270 SCRA 106, March 19, 1997.
4. Id. at 153.
5. Id. at 157.
6. Justice Teodoro R. Padilla did not take part in the deliberation as he was related to a co-
petitioner and co-counsel of petitioners.
7. Justice Davide (ponente) , Chief Justice Narvasa, and Justices Regalado, Romero,
Bellosillo, and Kapunan.
8. Resolution dated June 10, 1997, G.R. No. 127325.
9. People's Initiative for Reforms, Modernization and Action (PIRMA) v. Commission on
Elections, G.R. No. 129754, September 23, 1997.
10. Amended Petition for Initiative, pp. 4-7.
11. G.R. No. 127325, March 19, 1997, 270 SCRA 106.
12. Petition, pp. 12-14.

13. Advisory issued by Court, dated September 22, 2006.
14. Exhibit "B," Memorandum of Petitioner Lambino.
15. Barnhart, Principled Pragmatic Stare Decisis in Constitutional Cases, 80 Notre Dame
Law Rev., 1911-1912, (May 2005).
16. Ibid.
17. Id. at 1913.
18. Consovoy, The Rehnquist Court and the End of Constitutional Stare Decisis: Casey,
Dickerson and the Consequences of Pragmatic Adjudication, 53 Utah Law Rev. 53, 67
(2002).
19. Id. at 68.
20. Id. at 69.
21. Id. at 67.
22. Id. at 69.
23. Consovoy, supra note 18, at 57.
24. Id. at 58.
25. Id. at 64.
26. Burnet v. Coronado Oil & Gas Co., 285 U.S. 405-06 (1932) (Justice Brandeis, dissenting).
27. Graves v. New York ex rel. O'Keefe, 306 U.S. 466, 491-492 (Justice Frankfurter,
concurring).
28. Commissioner of Internal Revenue v. Fink, 483 U.S. 89 (1987) (Justice Stevens,
dissenting).
29. Barnhart, supra note 15, at 1922.
30. Id. at 1921.

31. Filippatos, The Doctrine of Stare Decisis and the Protection of Civil Rights and Liberties
in the Rehnquist Court, 11 Boston College Third World Law Journal, 335, 343 (Summer
1991).
32. 347 U.S. 483 (1954).
33. 163 U.S. 537 (1896).
34. G.R. No. 127882, December 1, 2004, 445 SCRA 1.
35. G.R. No. 139465, October 17, 2000, 343 SCRA 377.
36. Barnhart, supra note 15, at 1915.
37. 112 S.Ct. 2791 (1992).
38. Section 5(b).
39. Ibid.
40. Santiago v. Commission on Elections, supra note 11, at 145.
41. 85 RECORD OF THE HOUSE OF REPRESENTATIVES 140-142 (February 14, 1989).
42. 85 RECORD OF THE HOUSE OF REPRESENTATIVES 142-143 (February 14, 1989).
43. Zeringue v. State Dept. of Public Safety, 467 So. 2d 1358.
44. I RECORD, CONSTITUTIONAL COMMISSION 386, 392 (July 9, 1986).
45. Id. at 400, 402-403.
46. V RECORD, CONSTITUTIONAL COMMISSION 806 (October 10, 1986).
47. Opposition-in-Intervention filed by ONEVOICE, p. 39.
48. Opposition-in-Intervention filed by Alternative Law Groups, Inc., p. 30.
49. Introduction to Political Science, pp. 397-398.

50. Section 1, Art. II of the 1987 Constitution.
51. Eighth Edition, p. 89 (2004).
52. Ibid.
53. Id. at 1346.
54. Ibid.
55. Third Edition, p. 67 (1969).
56. Id. at 68.
57. Id. at 1115.
58. Vicente G. Sinco, PHILIPPINE POLITICAL LAW, 2nd ed., p. 46.
59. Concurring Opinion of Mr. Justice Felix Q. Antonio in Javellana v. The Executive
Secretary, No. L-361432, March 31, 1973, 50 SCRA 30, 367-368.

60. J. M. Aruego, THE NEW PHILIPPINE CONSTITUTION EXPLAINED, iii-iv (1973).
61. E. Quisumbing-Fernando, PHILIPPINE CONSTITUTIONAL LAW, pp. 422-425 (1984).
62. N. Gonzales, PHILIPPINE POLITICAL LAW 30 (1969 ed.).

63. Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA
317, 337 quoting Commonwealth v. Ralph, 111 Pa. 365, 3 Alt. 220 (1886).
64. L-36142, March 31, 1973, 50 SCRA 30, 367.
65. I RECORD, CONSTITUTIONAL COMMISSION 373 (July 8, 1986).
66. The opinion was actually made by Justice Felix Antonio.
67. Javellana v. Executive Secretary, supra note 64, citing Wheeler v. Board of Trustees, 37
S.E.2d 322, 327 (1946).
68. T. M. COOLEY, I A TREATISE ON CONSTITUTIONAL LIMITATIONS 143-144 (8th ed.
1927).
69. H.C. Black, HANDBOOK OF AMERICAN CONSTITUTIONAL LAW S. 47, p. 67 (2nd ed.
1897).
70. V. Sinco, supra note 58.
71. Ibid.
72. No. L-1232, 79 Phil. 819, 826 (1948).
73. IV RECORD, CONSTITUTIONAL COMMISSION 735 (September 17, 1986).
74. Id. at 752.
75. Id. at 769.
76. Id. at 767-769.
77. Id. at 377.
78. Id. at 395.
79. Sinco, supra note 58, at 22.
80. Id. at 20-21.
81. Frivaldo v. Commission on Elections, G.R. No. 120295, June 28, 1996, 257 SCRA 727.
82. G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 530.
83. Sinco, supra note 58, at 29.
84. State v. Moore, 103 Ark 48, 145 SW 199 (1912); Whittemore v. Seydel, 74 Cal App 2d 109
(1946).
85. Town of Whitehall v. Preece, 1998 MT 53 (1998).
86. G.R. No. 125416, September 26, 1996, 262 SCRA 492, 516-517, citing 42 Am. Jur. 2d, p.
653.
87. Memorandum for petitioner Aumentado, pp. 151-152.

88. Id. at 153-154.
89. L-44640, October 12, 1976, 73 SCRA 333, 360-361.
90. Section 2, Article XVII, 1987 Constitution.
91. Annex "3," Opposition-In-Intervention of Oppositors-Intervenors ONEVOICE, INC., et al.
92. Certification dated April 21, 2006 issued by Reynne Joy B. Bullecer, Annex "B,"
Memorandum of Oppositor-Intervenor Pimentel, et al.; Certification dated April 20, 2006
issued by Atty. Marlon S. Casquejo, Annex "C," Memorandum of Oppositor-Intervenor
Pimentel, et al.; Certification dated April 26, 2006 issued by Atty. Marlon S. Cascuejo,
Annex "D," Memorandum of Oppositor-Intervenor Pimentel, et al.
93. Annex "1," Memorandum of Oppositor-Intervenor Antonino.
94. Annex "10-A," Memorandum of Oppositor-Intervenor Joseph Ejercito Estrada, et al.
95. Annexes 1-29, Memorandum of Oppositor-Intervenor Alternative Law Groups, Inc.

96. Annexes 30-31, Id.
97. Annexes 44-64, Id.
98. Consolidated Reply of Petitioner Aumentado, p. 54.
99. Exhibit "E," Memorandum of Petitioner Lambino.

100. Annex "A," Consolidated Response of Petitioner Aumentado.
101. Memorandum of Oppositor-Intervenor Pimentel, et al., pp. 12-13.
102. Helvey v. Wiseman, 199 F. Supp. 200, 8 A.F.T.2d 5576 (1961).
103. BNO Leasing Corp. v. Hollins & Hollins, Inc., 448 So.2d 1329 (1984).
104. ASSOCIATE JUSTICE CARPIO:
How many copies of the petition, that you mention(ed), did you print?
ATTY. LAMBINO:
We printed 100 thousand of this petition last February and we distributed to the
different organizations that were volunteering to support us.
ASSOCIATE JUSTICE CARPIO:

So, you are sure that you personally can say to us that 100 thousand of these
were printed?
ATTY. LAMBINO:
It could be more than that, Your Honor.
xxx xxx xxx

But you asked your friends or your associates to re-print, if they can(?)
ATTY. LAMBINO:
Yes, Your Honor.
Okay, so you got 6.3 Million signatures, but you only printed 100 thousand. So
you're saying, how many did your friends print of the petition?
ATTY. LAMBINO:
I can no longer give a specific answer to that, Your Honor. I relied only to the
assurances of the people who are volunteering that they are going to reproduce the
signature sheets as well as the draft petition that we have given them, Your Honor.
xxx xxx xxx

Did you also show this amended petition to the people?
ATTY. LAMBINO:
Your Honor, the amended petition reflects the copy of the original petition that we
circulated, because in the original petition that we filed before the COMELEC, we omitted a
certain paragraph that is, Section 4 paragraph 3 which were part of the original petition
that we circulated and so we have to correct that oversight because that is what we have
circulated to the people and we have to correct that. . .

But you just stated now that what you circulated was the petition of August 25,
now you are changing your mind, you're saying what you circulated was the petition of
August 30, is that correct?
ATTY. LAMBINO:
In effect, yes, Your Honor.
So, you circulated the petition of August 30, but what you filed in the COMELEC on
August 25 was a different petition, that's why you have to amend it?
ATTY. LAMBINO:
We have to amend it, because there was an oversight, Your Honor, that we have
omitted one very important paragraph in Section 4 of our proposition.
xxx xxx xxx
Okay, let's be clear. What did you circulate when you gathered the signatures, the
August 25 which you said you circulated or the August 30?
ATTY. LAMBINO:
Both the August 25 petition that included all the provisions, Your Honor, and as
amended on August 30. Because we have to include the one that we have inadvertently
omitted in the August 25 petition, Your Honor.
xxx xxx xxx
And (you cannot tell that) you can only say for certain that you printed 100
thousand copies?
ATTY. LAMBINO:
That was the original printed matter that we have circulated by the month of
February, Your Honor, until some parts of March, Your Honor.
That is all you can assure us?
ATTY. LAMBINO:
That is all I can assure you, Your Honor, except that I have asked some friends,
like for example (like) Mr. Liberato Laos to help me print out some more of this petition. . .
(TSN, September 26, 2006, pp. 7-17)
105. Section 2 (1), Article IX-C, 1987 Constitution.
106. Chief Justice Andres R. Narvasa and Justices Hilario G. Davide, Jr., Florenz D.
Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino C.
Hermosisima, Jr. and Justo P. Torres.
107. Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza, Ricardo J. Francisco
and Artemio V. Panganiban.
108. Justice Jose C. Vitug.

109. Only fourteen (14) justices participated in the deliberations as Justice Teodoro R.
Padilla took no part on account of his relationship with the lawyer of one of the parties.
110. Citing conscience as ground.
111. 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
112. Trans World Airlines, Inc. v. Hardison, 97 S. Ct. 2264 (1977); Arkansas Writers' Project,
Inc. v. Ragland, 107 S. Ct. 1722, 1730 n. 7, 95 L. Ed. 2d (1987); France v. Nelson, 292 Ark.
219, 729 S.W. 2d 161 (1987).
113. 40 P. 3d 886 (2006).
114. 781 P. 2d 973 (Alaska, 1989).

115. Id. at 982-84 (Compton, J., concurring).
116. Id. at 975-78.
117. Negri v. Slotkin, 244 N.W. 2d 98 (1976).
118. 112 Fla. 734, 151 So. 284 (1933).
119. Penned by Justice Whitfield, and concurred in by Chief Justice Davis and Justice
Terrell; Justices Ellis, Brown and Buford are of the opinion that chapter 15938, Acts of
1933, is a special or local law not duly advertised before its passage, as required by
sections 20 and 21 of article 3 of the state Constitution, and therefore invalid. This evenly
divided vote resulted in the affirmance of the validity of the statute but did not constitute
a binding precedent on the Court.
120. 62 S. Ct. 552 (1942).
121. 329 F. 2d 541 (1964).
122. 239 F. 2d 532 (9th Cir. 1956).
123. Citing Hertz v. Woodman, 218 U.S. 205, 30 S. Ct. 621 (1910).
124. 331 N.E. 2d 65 (1975).

125. Neil v. Biggers, supra note 108.
126. Catherwood v. Caslon, 13 Mees. & W. 261; Beamish v. Beamish, 9 H. L. Cas. 274.
127. Maglalang v. Court of Appeals, G.R. No. 85692, July 31, 1989, 175 SCRA 808, 811, 812;
Development Bank of the Philippines v. Pundogar, G.R. No. 96921, January 29, 1993, 218
SCRA 118.
128. No. L-35440, August 19, 1982, 115 SCRA 839, citing Anticamara v. Ong, No. L-29689,
April 14, 1978, 82 SCRA 337.
129. Supra note 1.

QUISUMBING, J.:
1. Political questions have been defined as "Questions of which the courts of justice will
refuse to take cognizance, or to decide, on account of their purely political character, or
because their determination would involve an encroachment upon the executive or
legislative powers; e.g., what sort of government exists in a state. . . ." Black's Law
Dictionary, p. 1319 citing Kenneth v. Chambers, 14 How. 38, 14 L.Ed. 316.
2. See 1987 Const., Art. XVII, Sec. 2.

3. G.R. No. 127325, March 19, 1997, 270 SCRA 106.
4. G.R. No. 129754, September 23, 1997.

YNARES-SANTIAGO, J.:
1. G.R. No. 127325, March 19, 1997, 270 SCRA 106.
2. SEC. 5. Requirements.— . . .

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.3. the reason or reasons therefore;

c.6. an abstract or summary proposition in not more than one hundred (100)
words which shall be legibly written or printed at the top of every page of the petition.
3. SEC. 3. Definition of Terms. — For purposes of this Act, the following terms shall mean: . .
.
(d) "Proposition" is the measure proposed by the voters.

4. I RECORD, CONSTITUTIONAL COMMISSION 387-389 (July 9, 1986).
5. Community Gas and Service Company, Inc. v. Walbaum, 404 P.2d 1014, 1965 OK 118
(1965).
6. Section 26. (1) Every bill passed by the Congress shall embrace only one subject which
shall be expressed in the title thereof.
7. The late Senator (then Congressman) Raul S. Roco stated this fact in his sponsorship
presentation of H.B. No. 21505, thus:
xxx xxx xxx
D. Prohibited Subjects.
The bill provides for two kinds of measures which cannot be the subject of an
initiative or referendum petition. A petition that embraces more than one subject cannot
be submitted to the electorate as it would be violative of the constitutional proscription on
passing bills containing more than one subject, and statutes involving emergency
measures cannot be subject to referendum until 90 days after its effectivity. [JOURNAL
AND RECORD OF THE HOUSE OF REPRESENTATIVES, SECOND REGULAR SESSION, VOL.
6, p. 975 (February 14, 1989).]
8. Memorandum of petitioner Aumentado, p. 117.
9. The proposed Section 4(3) of Article XVIII of the Constitution states that Senators whose
term of office ends in 2010 shall be members of parliament until noon of the thirtieth day
of June 2010. No counterpart provision was provided for members of the House of
Representatives who, as members of the interim parliament under the proposed changes,
shall schedule the elections for the regular parliament in its discretion.
10. The proposed Section 4(3), Article XVIII of the Constitution states that the interim
parliament shall convene to propose amendments to, or revisions of, the Constitution
within 45 days from ratification of the proposed changes.
11. The United Kingdom, for instance, has a two-house parliament, the House of Lords and
the House of Commons.
12. Philippine Political Law [1954 ed.], Vicente G. Sinco, pp. 43-44, quoted in Separate
Opinion of J. Hilario G. Davide, Jr. in PIRMA v. COMELEC, G.R. No. 129754, September 23,
1997, p. 7.
13. 151-A Phil. 35 (1973).
14. 196 P. 2d 787 (Cal. 1948), cert. denied, 336 U.S. 918 (1949).
15. 801 P. 2d 1077 (Cal. 1990).
16. 583 P. 2d 1281 (Cal. 1982).
17. Raven v. Deukmeijan, supra, citing Brosnahan v. Brown, 651 P. 2d 274 (Cal. 1982).
18. Supra note 13. It may well be pointed out that in making the distinction between
amendment and revision, Justice Antonio relied not only in the analogy presented in
Wheeler v. Board of Trustees, 37 S.E. 2d 322, but cited also the seminal ruling of the
California Supreme Court in McFadden v. Jordan, supra.
19. Philippine Political Law, 1995 ed., Justice Isagani A. Cruz, p. 71, citing Pangasinan
Transportation Co. v. PSC, 40 O.G., 8th Supp. 57.
20. The 1987 Constitution of the Philippines: A Commentary, 1996 ed., Fr. Joaquin G.
Bernas, S.J., p. 1161.
21. Id.
22. Supra note 14.
23. The Constitution of the Republic of the Philippines, Vol. II, 1st ed., Fr. Joaquin G. Bernas,
S.J., p. 567, citing B. Schwartz, I The Powers of Government (1963).
24. 16 C.J.S. §3 at 24.
25. 14 T.M. Cooley, II Constitutional Limitations, 8th ed. (1927), p. 1349.
26. A bogus revolution, Philippine Daily Inquirer, September 11, 2006, Fr. Joaquin Bernas,
S.J., p. A15.
27. Article II, Section 1 of the 1987 Constitution.

SANDOVAL-GUTIERREZ, J., concurring:
1. Works, Letter 164.
http://en.wikipedia.org/wiki/List_of_Latin_phrases_%28P%E2%80%93Z%29#endnote_ODoQ.
2. G.R. No. 127325, March 19, 1997, 270 SCRA 106.
3. Resolution dated June 10, 1997, G.R. No. 127325.

4. G.R. No. 129754, September 23, 1997. Joining PIRMA as petitioners were its founding
members, spouses Alberto Pedrosa and Carmen Pedrosa.
5. Entitled "In the Matter of Proposing Amendments to the 1987 Constitution through a
People's Initiative: A Shift from a Bicameral Presidential to a Unicameral Parliamentary
Government by Amending Articles VI and VII; and Providing Transitory Provisions for the
Orderly Shift from the Presidential to the Parliamentary System."
6. Among them ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III,
Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr., Alternative Law Groups,
Inc., Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio Osmeña III,
Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and
Jinggoy Estrada, Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and Ana
Theresia Hontiveros-Baraquel, Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum,
Migrante, Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students,
Leonardo San Jose, Jojo Pineda, Drs. Darby Santiago and Reginald Pamugas, and Attys.
Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat,
Antonio L. Salvador, and Randall C. Tabayoyong.
7. "Grounds for contempt
3. From the time the so-called People's Initiative (hereafter PI) now subject of
Lambino v. Comelec, was initiated, respondents did nothing to stop what was
clearly lawless, and even arguably winked at, as it were, if not condoned and
allowed, the waste and misuse of its personnel, time, facilities and resources
on an enterprise that had no legal basis and in fact was permanently enjoined
by this Honorable Court in 1997 . Seemingly mesmerized, it is time to disenthrall
them.
3.1. For instance, undersigned counsel happened to be in the Senate on August 29,
2006 (on other business) when respondent Chair sought to be stopped by the body from
commenting on PI out of prudential considerations, could not be restrained. On
contentious issues, he volunteered that Sigaw ng Bayan would not cheat in
Makati as it was the opposition territory and that the fact that out of 43,405
signatures, only 7,186 were found authentic in one Makati District, to him,
showed the "efficiency" of Comelec personnel. He could not appreciate 1) that
Sigaw had no choice but to get the constitutionality-required 3% in every
district, [ Const ., Art. VII, Sec. 2] friendly or otherwise, including administration
critics' turfs, and 2) that falsus in 36,319 (93.30%) falsus in omnibus , in an
exercise that could never be free, orderly, honest and credible, another
constitutional requirement . [Nothing has been heard about probing and prosecuting
the falsifiers.]
xxx xxx xxx
3.2. It was excessively obvious to undersigned and other observers that

respondent Chairman , straining at the leash, was lawyering for Sigaw ng Bayan in
the Senate! It was discomfiting that he would gloss over the seeming
wholesale falsification of 96.30% of the signatures in an exercise with no
credibility! Even had he been asked, he should have pled to be excused from
answering as the matter could come up before the Comelec for an official
collegial position (different from conceding that it is enjoined).
xxx xxx xxx

4. Respondents Commissioners Borra and Romeo A. Brawner, for their
part, even issued widely-publicized written directives to the field, [ Annex C, as
to Commissioner Brawner; that as to Commissioner Borra will follow .] while
the Commission itself was trying to be careful not to be explicit in what it was
abetting implicitly, in hypocritical defiance of the injunction of 1997.
8. Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, G.R. No. 72424,
February 13, 1989, 170 SCRA 246.
9. Supra.
10. Development Bank of the Philippines v. NLRC, March 1, 1995, 242 SCRA 59; Albert v.
Court of First Instance of Manila (Branch VI), L-26364, May 29, 1968, 23 SCRA 948.
11. 56 O.G. 3546 cited in Albert v. Court of First Instance of Manila (Branch VI), id.
12. Supra.
13. Separate Opinion of Justice Ricardo J. Francisco, G.R. No. 129754, September 23, 1997.
14. G.R. No. 109645, March 4, 1996, 254 SCRA 234.
15. Philippine National Bank v. Palma, G.R. No. 157279, August 9, 2005, 466 CSRA 307,
citing Moreno, Philippine Law Dictionary (1988), 3rd ed. (citing Santiago v. Valenzuela, 78
Phil. 397, [1947]).
16. Id., citing Dela Cruz v. Court of Appeals, G.R. No. 126183, March 25, 1999, 305 SCRA 303,
citing Government v. Jalandoni, No. 837-R, August 30, 1947, 44 O.G. 1840.
17. Benjamin N. Cardozo, The Nature of the Judicial Process (New Haven and London: Yale
University Press, 1921), pp. 33-34.
18. William K. Frankena, Ethics, 2nd ed. (Englewood Cliffs, N.J.: Prentice Hall Inc.,) 1973, p.
49.

19. Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, 296.
20. July 9, 1986. Records of the Constitutional Commission, No. 26.
21. Bernas, THE 1987 CONSTITUTION OF THE PHILIPPINES: A COMMENTARY, 1996 Ed., p.
1161.
22. 242 N. W. 891 259 Mich 212.
23. State v. Orange [Tex. x. Civ. App.] 300 SW 2d 705, People v. Perkins 137, p. 55.
24. City of Midland v. Arbury 38 Mich. App. 771, 197 N.W. 2d 134.
25. Adams v. Gunter Fla, 238 So. 2d 824.
26. 196 P.2d 787.
27. Adams v. Gunter Fla. 238 So.2d 824.
28. Mc Fadden v. Jordan, supra.
29. Rivera-Cruz v. Gray, 104 So.2d 501, p. 505 (Fla. 1958).
30. Joaquin Bernas, Sounding Board: AMENDMENT OR REVISION, Philippine Daily Inquirer,
September 25, 2006.
31. See Sections 8-12 for national initiative and referendum, and sections 13-19 for local
initiative and referendum.
32. Section 2. Statement of 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.
33. Section 3. Definition of terms. —
xxx xxx xxx
a.1. Initiative on the Constitution which refers to a petition proposing amendments

to the Constitution;
xxx xxx xxx
34. See Section 3(e).
35. Section 5 (b) — A petition for an initiative on the 1987 Constitution must have at least
twelve per centum (12%) of the total number of registered voters as signatories, of which
every legislative district must be represented by at least three per centum (3%) of the
registered voters therein. Initiative on the Constitution may be exercised only after five (5)
years from the ratification of the 1987 Constitution and only once every five (5) years
thereafter.
xxx xxx xxx
36. Section 9 (b) — The proposition in an initiative on the Constitution approved by a
majority of the votes cast in the plebiscite shall become effective as to the day of the
plebiscite.

37. 7 How (48 US) 1 (1849).
38. 328 US 549 (1946).
39. 77 Phil. 192 (1946).
40. 103 Phi. 1051 (1957).
41. G.R. No. 35546, September 17, 1974, 50 SCRA 559.

42. 369 US 186 (1962).
43. G.R. No. 85344, December 21, 1989, 180 SCRA 496.
45. Nos. L-36142, L-36164, L-36165, L-36236, and L-36283, March 31, 1973, 50 SCRA 30.
CORONA, J., dissenting:
1. Abrams v. United States, 250 U.S. 616.
2. 336 Phil. 848 (1997).
3. Santos v. Court of Appeals, G.R. No. 134787, 15 November 2005, 475 SCRA 1.
4. Feria and Noche, CIVIL PROCEDURE ANNOTATED, vol. I, 2001 edition, p. 419.
5. Sec. 30, Petitions and initiatives by the people, 16 Am Jur 2d 380, citing State ex rel.
Stenberg v. Beermann, 240 Neb. 754, 485 N.W. 2d 151 (1992).
6. Id. citing Coalition for Political Honesty v. State Board of Elections, 83 Ill. 2d 236, 47 Ill.
Dec. 363, 415 N.E. 2d 368 (1980).
7. Balitzer, Alfred, The Initiative and Referendum: A Study and Evaluation of Direct
Legislation, The California Roundtable 13 (1981). The American Founding Fathers
recognized that direct democracy posed a profound threat to individual rights and liberty.
The U.S. Constitution was "designed to provide a system of government that would
prevent either a tyranny of the majority or a tyranny of the few." James Madison "warned
against the power of a majority or a minority of the population 'united and actuated by
some common impulse of passion, or of interest, adverse to the rights of other citizens, or
to the permanent and aggregate interest of the community.'
8. Gilbert Hahn & Steven C. Morton, Initiative and Referendum — Do They Encourage or
Impair Better State Government? 5 FLA. ST. U. L. REV. 925, 927 (1977).
9. Florida Advisory Council on Intergovernmental Relations, Initiatives and Referenda: Issues
in Citizen Lawmaking (1986).
10. Sec. 1, Article II, Constitution.
11. In re Initiative Petition No. 362 State Question 669, 899 P.2d 1145 (Okla. 1995).
CALLEJO, SR., J., concurring:
1. Entitled An Act Providing for a System of Initiative and Referendum and Appropriating
Funds Therefor.
2. Section 2(1), Article IX-C, 1987 Constitution.
4. Land Bank of the Philippines v. Court of Appeals, G.R. No. 129368, August 25, 2003, 409
SCRA 455, 480.
5. Rodson Philippines, Inc. v. Court of Appears, G.R. No. 141857, June 9, 2004, 431 SCRA
469, 480.
6. People v. Court of Appeals, G.R. No. 144332, June 10, 2004, 431 SCRA 610.
7. Philippine Rabbit Bus Lines, Inc. v. Galauran & Pilares Construction Co., G.R. No. L-35630,
November 25, 1982, 118 SCRA 664.
8. People v. Court of Appeals, supra.
9. G.R. No. 127325, March 19, 1997, 270 SCRA 106.
10. Article 8, New Civil Code provides that "[j]udicial decisions applying or interpreting the
laws or the Constitution shall form part of the legal system of the Philippines."
11. Suson v. Court of Appeals, G.R. No. 126749, August 27, 1997, 278 SCRA 284.
12. Calderon v. Carale, G.R. No. 91636, April 23, 1992, 208 SCRA 254.
13. 974 S.W.2d 451 (1998).
14. Id. at 453.
15. Entitled In Re: Rules and Regulations Governing the Conduct of Initiative in the
Constitution, and Initiative and Referendum on National and Local Laws.
16. Supra note 10, p. 157.

17. G.R. No. 129754.
18. Minute Resolution, September 23, 1997, pp. 1-2.
19. Republic v. De los Angeles, No. L-26112, October 4, 1971, 41 SCRA 422.
20. Albert v. Court of First Instance of Manila, No. L-26364, May 29, 1968, 23 SCRA 948.
21. Philippine Constitution Association v. Enriquez, G.R. No. 113105, August 19, 1994, 235
SCRA 506.
22. Then Chief Justice Andres R. Narvasa, Justices Florenz D. Regalado, Flerida Ruth P.
Romero, Josue N. Bellosillo, Santiago M. Kapunan and Justo P. Torres, Jr. fully concurred
in the ponencia of Justice Davide.
23. Justices Jose A.R. Melo, Vicente V. Mendoza, Reynato S. Puno, Ricardo J. Francisco, Jr.
and Artemio V. Panganiban (now Chief Justice).
24. The voting on the motion for reconsideration was as follows: Six Justices, namely, Chief
Justice Narvasa, and Justices Regalado, Davide, Jr., Romero, Bellosillo and Kapunan,
voted to deny the motions for lack of merit; and six Justices, namely, Justices Melo, Puno,
Mendoza, Francisco, Jr., Regino C. Hermosisima and Panganiban voted to grant the
same. Justice Vitug maintained his opinion that the matter was not ripe for judicial
adjudication. Justices Teodoro R. Padilla and Torres inhibited from participation in the
deliberations.
25. House Bill No. 457 filed by then Rep. Nachura during the Twelfth Congress.
26. See Pagdayawon v. Secretary of Justice, G.R. No. 154569, September 23, 2002, 389
SCRA 480.
27. London Street Tramways Co., Ltd. v. London County Council, [1898] A.C. 375, cited in
COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS 117-118.
28. Amended Petition for Initiative, pp. 4-7.
29. Id. at 7.
30. I RECORDS OF THE CONSTITUTIONAL COMMISSION 373.
31. Id. at 371.

32. Id. at 386.
33. Id. at 392.
34. Id. at 402-403.
35. No. L-36142, March 31, 1973, 50 SCRA 30.
36. Id. at 367.
37. SINCO, PHILIPPINE POLITICAL LAW 43-44.
38. 37 S.E.2d 322 (1946).
39. Id. at 330.
40. Id.
41. Sounding Board, Philippine Daily Inquirer, April 3, 2006.
42. Introduction to the Journal of the Constitutional Commission.
43. BLACK, CONSTITUTIONAL LAW 1-2, citing 1 BOUV. INST. 9.
44. SCHWARTZ, CONSTITUTIONAL LAW 1.

45. Proclamation No. 58, 83 O.G. No. 23, pp. 2703-2704, June 8, 1987.
46. See McBee v. Brady , 15 Idaho 761, 100 P. 97 (1909).
47. Id.
48. 196 P.2d 787 (1948).
49. Id. at 798.

50. Ellingham v. Dye, 99 N.E. 1 (1912).
51. Dissenting Opinion of Justice Puno, p. 36.
52. Id. at 39.
53. Supra note 38.
54 McFadden v. Jordan, supra note 48.
55. Id. at 799.
56. Supra note 41.
57. Annex "1363."
58. Annex "1368."

59. Annex "1369."
60. Annex "1370."

61. Annex "1371."
62. Annex "1372."
63. Annex "1374."
64. Annex "1375."
65. Annex "1376."

66. Annex "1377."
67. Annex "1378."
68. Annex "1379."
69. Annex "1380."

70. Annex "1381."
71. Annex "1382."
72. Annex "1383."
73. Annex "1385."
74. Annex "1387."

75. Annex "1388."
76. Annex "1389."
77. Annex "1391."
78. Annex "1392."

79. Annex "1393."
80. Annex "1395."
81. Annex "1396."
82. Annex "1397."
83. Annex "1398."

84. Annex "1399."
85. Annex "1400."
86. Annex "1401."
87. Annex "1402."

88. Annex "1404."
89. Annex "1405."
90. Annex "1406."

91. Annex "1407."
92. Annex "1408."
93. Annex "1409."
94. Annex "1410."

95. Annex "1411."
96. Annex "1412."
97. Arroyo, Jr. v. Taduran, G.R. No. 147012, January 29, 2004, 421 SCRA 423.
98. See, for example, Mendoza v. Court of Appeals, No. L-62089, March 9, 1988, 158 SCRA
508.
99. Licaros v. Sandiganbayan, G.R. No. 145851, November 22, 2001, 370 SCRA 394.
100. Codilla, Sr. v. De Venecia, G.R. No. 150605, December 10, 2002, 393 SCRA 639.
101. Teope v. People, G.R. No. 149687, April 14, 2004, 427 SCRA 540.
102. Tañada v. Cuenco, 103 Phil. 1051 (1957).
103. Id.
104. G.R. No. 127255, August 14, 1997, 277 SCRA 268, 311-312.
105. Dissenting Opinion of Justice Fernando in Javellana v. Executive Secretary, supra note
36.
106. 119 N.W. 408 (1909).
107. 22 Minn. 400 (1876).
108. 96 S.W. 396 (1906).

109. 63 N.J. Law 289.
110. 77 Miss. 543 (1900).
111. Section 1, Article II, 1987 Constitution.
112. Dissenting Opinion of Justice Puno, p. 49.
113. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS 56, cited in Ellingham

v. Dye, supra.
114. Hunter v. Colfax Consol. Coal. Co., 154 N.W. 1037 (1915).
115. ALTMAN, ARGUING ABOUT THE LAW 94 (2001), citing AGRESTO, THE SUPREME
COURT AND CONSTITUTIONAL DEMOCRACY (1984).
116. McBee v. Brady, 100 P. 97 (1909).
117. McFadden v. Jordan, supra note 48.
118. Cooley, Am.Law.Rev. 1889, p. 311, cited in Ellingham v. Dye, supra.
119. 15 N.W. 609 (1883).
120. Id. at 630.
AZCUNA, J.:
1. G.R. No. 127325, March 19, 1997 and June 10, 1997.
2. 100 Phil. 501 (1956).
TINGA, J.:
1. G.R. No. 127325, 19 March 1997, 270 SCRA 106.
2. G.R. No. 129754, 23 September 1997.
3. Petitioner Aumentado aptly refers to the comment of the late Senator Raul Roco that the
Santiago ruling "created a third specie of invalid laws, a mongrel type of constitutional
but inadequate and, therefore, invalid law." Memorandum for Aumentado, p. 54.
4. See CIVIL CODE, Art. 9.
5. 456 Phil. 1 (2003).
6. Id., at 10; citing I ARTURO M. TOLENTINO, CIVIL CODE OF THE PHILIPPINES 43 (1990)
and JUSTICE BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 113
(1921).
7. See Dissenting Opinion, Manila International Airport Authority v. City of Parañaque, G.R.
No. 155650, 20 July 2006. In my ponencia in Globe Telecom v. NTC, G.R. No. 143964, 26
July 2004, 435 SCRA 110, I further observed that while an administrative agency was not
enslaved to obey its own precedent, it was "essential, for the sake of clarity and
intellectual honesty, that if an administrative agency decides inconsistently with previous
action, that it explain thoroughly why a different result is warranted, or if need be, why the
previous standards should no longer apply or should be overturned." Id., at 144. Happily,
Justice Puno's present opinion expressly elucidates why Santiago should be reversed.
8. As Justice Frankfurter once wrote: "We recognize that stare decisis embodies an
important social policy. It represents an element of continuity in law, and is rooted in the
psychologic need to satisfy reasonable expectations. But stare decisis is a principle of
policy and not a mechanical formula of adherence to the latest decision, however recent
and questionable, when such adherence involves collision with a prior doctrine more
embracing in its scope, intrinsically sounder, and verified by experience. . . This Court,
unlike the House of Lords, has from the beginning rejected a doctrine of disability at self-
correction." Helvering v. Hallock, 309 U.S. 106, 119-121 (1940).
9. 351 Phil. 692 (1998).
10. As Chief Justice Panganiban then cited: "For instance, Ebralinag vs. Davision
Superintendent of Schools of Cebu, 219 SCRA 256, March 1, 1993, reversed the Court's
34-year-old doctrine laid down in Gerona vs. Secretary of Education, 106 Phil 2, August 12,
1959, and upheld the right of Jehovah's Witnesses "to refuse to salute the Philippine flag
on account of their religious beliefs." Similarly, Olaguer vs. Military Commission, 150
SCRA 144, May 22, 1987, abandoned the 12-year-old ruling in Aquino Jr. vs. Military
Commission, 63 SCRA 546, May 9, 1975, which recognized the jurisdiction of military
tribunals to try civilians for offenses allegedly committed during martial law. The Court
likewise reversed itself in EPZA vs. Dulay , 149 SCRA 305, April 29, 1987, when it vacated
its earlier ruling in National Housing Authority vs. Reyes, 123 SCRA 245, June 29, 1983, on
the validity of certain presidential decrees regarding the determination of just
compensation. In the much earlier case of Philippine Trust Co. vs. Mitchell, 59 Phil. 30,
December 8, 1933, the Court revoked its holding in Involuntary Insolvency of Mariano
Velasco & Co., 55 Phil 353, November 29, 1930, regarding the relation of the insolvency
law with the then Code of Civil Procedure and with the Civil Code. Just recently, the Court,
in Kilosbayan vs. Morato, 246 SCRA 540, July 17, 1995, also abandoned the earlier grant
of standing to petitioner-organization in Kilosbayan vs. Guingona, 232 SCRA 110, May 5,
1994." Id., at 780.
11. Ibid.
12. 129 Phil. 507, 516 (1967).
13. G.R. Nos. L-78461, L-79146, & L-79212, 12 August 1987, 153 SCRA 67, 75.
14. G.R. No. 160427, 15 September 2004, 438 SCRA 319, 326.
15. Ibid.
16. G.R. No. 155855, 26 January 2004, 421 SCRA 92.
17. Id., at 104. Relatedly, the Court held that "[c]ontests which do not involve the election,
returns and qualifications of elected officials are not subjected to the exercise of the
judicial or quasi-judicial powers of courts or administrative agencies". Ibid.
18. See e.g., Memorandum of Oppositors-Intervenors Senators Pimentel, Jr., et. al., pp. 19-22;
Memorandum for Intervenor Senate of the Philippines, pp. 34-35.
19. See 1987 CONST., Art. VI, Sec. 26(1). See also Section 19[1]. 1987 CONST, Art. VIII.
20. See e.g., Sumulong v. COMELEC, 73 Phil. 288, 291 (1941); Cordero v. Hon. Jose
Cabatuando, et al., 116 Phil. 736, 741 (1962).
21. See Tio v. VRB, G.R. No. L-75697, 18 June 1987, 151 SCRA 208, 214-215; citing Public
Service Co., Recktenwald, 290 Ill. 314, 8 A.L.R. 466, 470. See also Fariñas v. Executive
Secretary, G.R. Nos. 147387 & 152161, 10 December 2003, 417 SCRA 503, 519.
22. "As a policy, this Court has adopted a liberal construction of the one title — one subject
rule." Tatad v. Secretary of Department of Energy , 346 Phil. 321, 359 (1997).
23. Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896 & 83815; 22 February 1991,
194 SCRA 317.
24. Id. at 337. I have previously expressed my own doubts in relying on the constitutional or
legislative deliberations as a definitive source of construction. "It is easy to selectively cite
passages, sometimes out of their proper context, in order to assert a misleading
interpretation. The effect can be dangerous. Minority or solitary views, anecdotal
ruminations, or even the occasional crude witticisms, may improperly acquire the mantle
of legislative intent by the sole virtue of their publication in the authoritative
congressional record. Hence, resort to legislative deliberations is allowable when the
statute is crafted in such a manner as to leave room for doubt on the real intent of the
legislature." Southern Cross Cement Corporation v. Phil. Cement Manufacturers, G.R. No.
G.R. No. 158540, 8 July 2004, 434 SCRA 65, 95.
25. 77 Phil. 192 (1946).
26. Id. at 215.
27. Civil Liberties Union v. Executive Secretary, supra note 23, at 338; citing Household
Finance Corporation v. Shaffner, 203 S.W. 2d 734, 356 Mo. 808.
28. See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 CONST., Sec. 2, Art. XVI.
29. G.R. No. 151944, January 20, 2004, 420 SCRA 365.
30. Id., at 377. Emphasis supplied.

31. See Sections 5(b) & 8, Rep. Act No. 6735. See also 1987 CONST., Sec. 2, Art. XVI.
32. From the "Funeral Oration" by Pericles, as recorded by Thucydides in the History of the
Peloponnesian War.
33. H. Zinn, A PEOPLE'S HISTORY OF THE UNITED STATES (1980 ed.), at 95.
CHICO-NAZARIO, J., dissenting:
1. The full text of the Preamble reads:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a
just and humane society and establish a Government that shall embody our ideals and
aspirations, promote the common good, conserve and develop our patrimony, and secure
to ourselves and our posterity the blessings of independence and democracy under the
rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.
2. Article XVII, Constitution.
3. G.R. No. 127325, 19 March 1997, 270 SCRA 106.
4. Id. at 157.
5. Id. at 124.
6. Olac v. Rivera, G.R. No. 84256, 2 September 1992, 213 SCRA 321, 328-329; See also the
more recent cases of Republic v. Nolasco, G.R. No. 155108, 27 April 2005, 457 SCRA 400;
and PH Credit Corporation v. Court of Appeals, 421 Phil. 821 (2001).
7. Supra note 2 at 124.
8. G.R. No. 129754.
9. Separate Opinion of former Chief Justice Hilario G. Davide, Jr. to the Resolution, dated 23
September 1997, in G.R. No. 129754, PIRMA v. COMELEC, pp. 2-3.
10. Mirpuri v. Court of Appeals, 376 Phil. 628, 650 (1999).
11. Pioneer Texturizing Corporation v. NLRC, G.R. No. 118651, 16 October 1997.
12. Santiago v. Comelec, supra note 2 at 170-171.
13. Isagani A. Cruz, Philippine Political Law, 1996 ed., p. 352.
VELASCO, JR., J.:
1. G.R. No. 127535, March 19, 1997, 270 SCRA 106.

2. Id.
3. Commission on Audit of the Province of Cebu v. Province of Cebu, G.R. No. 141386,
November 29, 2001, 371 SCRA 196, 202.
4. United Harbor Pilots' Association of the Philippines, Inc. v. Association of International
Shipping Lines, Inc., G.R. No. 133763, November 13, 2002, 391 SCRA 522, 533.
5. PH Credit Corporation v. Court of Appeals and Carlos M. Farrales, G.R. No. 109648,
November 22, 2001, 370 SCRA 155, 166-167.
6. Id.
7. Florentino v. Rivera, et al., G.R. No. 167968, January 23, 2006.
8. G.R. No. 129754.
9. Sinco, Vicente G. Philippine Political Law, Principles and Concept, 1962, at 46.

8/25/2018 Marbury v. Madison :: 5 U.S. 137 (1803) :: Justia US Supreme Court Center
U.S. Supreme Court

Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803)
Marbury v. Madison
5 U.S. (1 Cranch) 137
Syllabus
The clerks of the Department of State of the United States may be called upon to give
evidence of transactions in the Department which are not of a confidential character.
The Secretary of State cannot be called upon as a witness to state transactions of a

confidential nature which may have occurred in his Department. But he may be called upon
to give testimony of circumstances which were not of that character.
Clerks in the Department of State were directed to be sworn, subject to objections to

questions upon confidential matters.
Some point of time must be taken when the power of the Executive over an officer, not
removable at his will, must cease. That point of time must be when the constitutional power
of appointment has been exercised. And the power has been exercised when the last act
required from the person possessing the power has been performed. This last act is the
signature of the commission.
If the act of livery be necessary to give validity to the commission of an officer, it has been
delivered when executed, and given to the Secretary of State for the purpose of being
sealed, recorded, and transmitted to the party.
In cases of commissions to public officers, the law orders the Secretary of State to record
them. When, therefore, they are signed and sealed, the order for their being recorded is
given, and, whether inserted inserted into the book or not, they are recorded.
When the heads of the departments of the Government are the political or confidential
officers of the Executive, merely to execute the will of the President, or rather to act in
cases in which the Executive possesses a constitutional or legal discretion, nothing can be
more perfectly clear than that their acts are only politically examinable. But where a specific
duty is assigned by law, and individual rights depend upon the performance of that duty, it
seems equally clear that the individual who considers himself injured has a right to resort to
the laws of his country for a remedy.
The President of the United States, by signing the commission, appointed Mr. Marbury a
justice of the peace for the County of Washington, in the District of Columbia, and the seal
of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the
verity of the signature, and of the completion of the appointment; and the appointment
conferred on him a legal right to the office for the space of five years. Having this legal right
to the office, he has a consequent right to the commission, a refusal to deliver which is a
plain violation of that right for which the laws of the country afford him a remedy.
https://supreme.justia.com/cases/federal/us/5/137/ 1/21
To render a mandamus a proper remedy, the officer to whom it is directed must be one to
whom, on legal principles, such writ must be directed, and the person applying for it must
be without any other specific remedy.
Where a commission to a public officer has been made out, signed, and sealed, and is
withheld from the person entitled to it, an action of detinue for the commission against the
Secretary of State who refuses to deliver it is not the proper remedy, as the judgment in
detinue is for the thing itself, or its value. The value of a public office, not to be sold, is
incapable of being ascertained. It is a plain case for a mandamus, either to deliver the
commission or a copy of it from the record.
To enable the Court to issue a mandamus to compel the delivery of the commission of a
public office by the Secretary of State, it must be shown that it is an exercise of appellate
jurisdiction, or that it be necessary to enable them to exercise appellate jurisdiction.
It is the essential criterion of appellate jurisdiction that it revises and corrects the
proceedings in a cause already instituted, and does not create the cause.
The authority given to the Supreme Court by the act establishing the judicial system of the
United States to issue writs of mandamus to public officers appears not to be warranted by
the Constitution.
It is emphatically the duty of the Judicial Department to say what the law is. Those who
apply the rule to particular cases must, of necessity, expound and interpret the rule. If two
laws conflict with each other, the Court must decide on the operation of each.
If courts are to regard the Constitution, and the Constitution is superior to any ordinary act
of the legislature, the Constitution, and not such ordinary act, must govern the case to
which they both apply.
At the December Term, 1801, William Marbury, Dennis Ramsay, Robert Townsend Hooe,
and William Harper, by their counsel,
Page 5 U. S. 138
severally moved the court for a rule to James Madison, Secretary of State of the United
States, to show cause why a mandamus should not issue commanding him to cause to be
delivered to them respectively their several commissions as justices of the peace in the
District of Columbia. This motion was supported by affidavits of the following facts: that
notice of this motion had been given to Mr. Madison; that Mr. Adams, the late President of
the United States, nominated the applicants to the Senate for their advice and consent to
be appointed justices of the peace of the District of Columbia; that the Senate advised and
consented to the appointments; that commissions in due form were signed by the said
President appointing them justices, &c., and that the seal of the United States was in due
form affixed to the said commissions by the Secretary of State; that the applicants have
requested Mr. Madison to deliver them their said commissions, who has not complied with
that request; and that their said commissions are withheld from them; that the applicants
have made application to Mr. Madison as Secretary of State of the United States at his
office, for information whether the commissions were signed and sealed as aforesaid; that
explicit and satisfactory information has not been given in answer to that inquiry, either by
the Secretary of State or any officer in the Department of State; that application has been
made to the secretary of the Senate for a certificate of the nomination of the applicants, and
of the advice and consent of the Senate, who has declined giving such a certificate;
whereupon a rule was made to show cause on the fourth day of this term. This rule having
been duly served,
Page 5 U. S. 139
Mr. Jacob Wagner and Mr. Daniel Brent, who had been summoned to attend the court and
were required to give evidence, objected to be sworn, alleging that they were clerks in the
Department of State, and not bound to disclose any facts relating to the business or
transactions of the office.
The court ordered the witnesses to be sworn, and their answers taken in writing, but
informed them that, when the questions were asked, they might state their objections to
answering each particular question, if they had any.
Mr. Lincoln, who had been the acting Secretary of State, when the circumstances stated in
the affidavits occurred, was called upon to give testimony. He objected to answering. The
questions were put in writing.
The court said there was nothing confidential required to be disclosed. If there had been, he
was not obliged to answer it, and if he thought anything was communicated to him
confidentially, he was not bound to disclose, nor was he obliged to state anything which
would criminate himself.
The questions argued by the counsel for the relators were, 1. Whether the Supreme Court
can award the writ of mandamus in any case. 2. Whether it will lie to a Secretary of State, in
any case whatever. 3. Whether, in the present case, the Court may award a mandamus to
James Madison, Secretary of State.
Page 5 U. S. 153
Mr. Chief Justice MARSHALL delivered the opinion of the Court.
At the last term, on the affidavits then read and filed with the clerk, a rule was granted in
this case requiring the Secretary of State to show cause why a mandamus
Page 5 U. S. 154
should not issue directing him to deliver to William Marbury his commission as a justice of
the peace for the county of Washington, in the District of Columbia.
No cause has been shown, and the present motion is for a mandamus. The peculiar
delicacy of this case, the novelty of some of its circumstances, and the real difficulty
attending the points which occur in it require a complete exposition of the principles on
which the opinion to be given by the Court is founded.
These principles have been, on the side of the applicant, very ably argued at the bar. In
rendering the opinion of the Court, there will be some departure in form, though not in
substance, from the points stated in that argument.
In the order in which the Court has viewed this subject, the following questions have been
considered and decided.
1. Has the applicant a right to the commission he demands?
2. If he has a right, and that right has been violated, do the laws of his country afford him a
remedy?
3. If they do afford him a remedy, is it a mandamus issuing from this court?
The first object of inquiry is:
1. Has the applicant a right to the commission he demands?
His right originates in an act of Congress passed in February, 1801, concerning the District
of Columbia.
After dividing the district into two counties, the eleventh section of this law enacts,
"that there shall be appointed in and for each of the said counties such number of discreet
persons to be justices of the peace as the President of the United States shall, from time to
time, think expedient, to continue in office for five years. "
Page 5 U. S. 155
It appears from the affidavits that, in compliance with this law, a commission for William
Marbury as a justice of peace for the County of Washington was signed by John Adams,
then President of the United States, after which the seal of the United States was affixed to
it, but the commission has never reached the person for whom it was made out.
In order to determine whether he is entitled to this commission, it becomes necessary to

inquire whether he has been appointed to the office. For if he has been appointed, the law
continues him in office for five years, and he is entitled to the possession of those
evidences of office, which, being completed, became his property.
The second section of the second article of the Constitution declares,
"The President shall nominate, and, by and with the advice and consent of the Senate, shall
appoint ambassadors, other public ministers and consuls, and all other officers of the
United States, whose appointments are not otherwise provided for."
The third section declares, that "He shall commission all the officers of the United States."
An act of Congress directs the Secretary of State to keep the seal of the United States,
"to make out and record, and affix the said seal to all civil commissions to officers of the
United States to be appointed by the President, by and with the consent of the Senate, or
by the President alone; provided that the said seal shall not be affixed to any commission
before the same shall have been signed by the President of the United States."
These are the clauses of the Constitution and laws of the United States which affect this
part of the case. They seem to contemplate three distinct operations:
1. The nomination. This is the sole act of the President, and is completely voluntary.
2. The appointment. This is also the act of the President, and is also a voluntary act, though
it can only be performed by and with the advice and consent of the Senate.
Page 5 U. S. 156
3. The commission. To grant a commission to a person appointed might perhaps be

deemed a duty enjoined by the Constitution. "He shall," says that instrument, "commission
all the officers of the United States."
The acts of appointing to office and commissioning the person appointed can scarcely be
considered as one and the same, since the power to perform them is given in two separate
and distinct sections of the Constitution. The distinction between the appointment and the
commission will be rendered more apparent by adverting to that provision in the second
section of the second article of the Constitution which authorises Congress
"to vest by law the appointment of such inferior officers as they think proper in the President
alone, in the Courts of law, or in the heads of departments;"
thus contemplating cases where the law may direct the President to commission an officer
appointed by the Courts or by the heads of departments. In such a case, to issue a
commission would be apparently a duty distinct from the appointment, the performance of
which perhaps could not legally be refused.
Although that clause of the Constitution which requires the President to commission all the
officers of the United States may never have been applied to officers appointed otherwise
than by himself, yet it would be difficult to deny the legislative power to apply it to such
cases. Of consequence, the constitutional distinction between the appointment to an office
and the commission of an officer who has been appointed remains the same as if in
practice the President had commissioned officers appointed by an authority other than his
own.
It follows too from the existence of this distinction that, if an appointment was to be
evidenced by any public act other than the commission, the performance of such public act
would create the officer, and if he was not removable at the will of the President, would
either give him a right to his commission or enable him to perform the duties without it.
These observations are premised solely for the purpose of rendering more intelligible those
which apply more directly to the particular case under consideration.
Page 5 U. S. 157
This is an appointment made by the President, by and with the advice and consent of the
Senate, and is evidenced by no act but the commission itself. In such a case, therefore, the
commission and the appointment seem inseparable, it being almost impossible to show an
appointment otherwise than by proving the existence of a commission; still, the commission
is not necessarily the appointment; though conclusive evidence of it.
But at what stage does it amount to this conclusive evidence?
The answer to this question seems an obvious one. The appointment, being the sole act of
the President, must be completely evidenced when it is shown that he has done everything
to be performed by him.
Should the commission, instead of being evidence of an appointment, even be considered

as constituting the appointment itself, still it would be made when the last act to be done by
the President was performed, or, at furthest, when the commission was complete.
The last act to be done by the President is the signature of the commission. He has then
acted on the advice and consent of the Senate to his own nomination. The time for
deliberation has then passed. He has decided. His judgment, on the advice and consent of
the Senate concurring with his nomination, has been made, and the officer is appointed.
This appointment is evidenced by an open, unequivocal act, and, being the last act required
from the person making it, necessarily excludes the idea of its being, so far as it respects
the appointment, an inchoate and incomplete transaction.
Some point of time must be taken when the power of the Executive over an officer, not
removable at his will, must cease. That point of time must be when the constitutional power
of appointment has been exercised. And this power has been exercised when the last act
required from the person possessing the power has been performed. This last act is the
signature of the commission. This idea seems to have prevailed with the Legislature when
the act passed converting the Department
Page 5 U. S. 158
of Foreign Affairs into the Department of State. By that act, it is enacted that the Secretary
of State shall keep the seal of the United States,
"and shall make out and record, and shall affix the said seal to all civil commissions to
officers of the United States, to be appointed by the President: . . . provided that the said
seal shall not be affixed to any commission before the same shall have been signed by the
President of the United States, nor to any other instrument or act without the special
warrant of the President therefor."
The signature is a warrant for affixing the great seal to the commission, and the great seal
is only to be affixed to an instrument which is complete. It attests, by an act supposed to be
of public notoriety, the verity of the Presidential signature.
It is never to be affixed till the commission is signed, because the signature, which gives
force and effect to the commission, is conclusive evidence that the appointment is made.
The commission being signed, the subsequent duty of the Secretary of State is prescribed
by law, and not to be guided by the will of the President. He is to affix the seal of the United
States to the commission, and is to record it.
This is not a proceeding which may be varied if the judgment of the Executive shall suggest
one more eligible, but is a precise course accurately marked out by law, and is to be strictly
pursued. It is the duty of the Secretary of State to conform to the law, and in this he is an
officer of the United States, bound to obey the laws. He acts, in this respect, as has been
very properly stated at the bar, under the authority of law, and not by the instructions of the
President. It is a ministerial act which the law enjoins on a particular officer for a particular
purpose.
If it should be supposed that the solemnity of affixing the seal is necessary not only to the
validity of the commission, but even to the completion of an appointment, still, when the
seal is affixed, the appointment is made, and
Page 5 U. S. 159
the commission is valid. No other solemnity is required by law; no other act is to be

performed on the part of government. All that the Executive can do to invest the person with
his office is done, and unless the appointment be then made, the Executive cannot make
one without the cooperation of others.
After searching anxiously for the principles on which a contrary opinion may be supported,
none has been found which appear of sufficient force to maintain the opposite doctrine.
Such as the imagination of the Court could suggest have been very deliberately examined,
and after allowing them all the weight which it appears possible to give them, they do not
shake the opinion which has been formed.
In considering this question, it has been conjectured that the commission may have been
assimilated to a deed to the validity of which delivery is essential.
This idea is founded on the supposition that the commission is not merely evidence of an
appointment, but is itself the actual appointment -- a supposition by no means
unquestionable. But, for the purpose of examining this objection fairly, let it be conceded
that the principle claimed for its support is established.
The appointment being, under the Constitution, to be made by the President personally, the
delivery of the deed of appointment, if necessary to its completion, must be made by the
President also. It is not necessary that the livery should be made personally to the grantee
of the office; it never is so made. The law would seem to contemplate that it should be
made to the Secretary of State, since it directs the secretary to affix the seal to the
commission after it shall have been signed by the President. If then the act of livery be
necessary to give validity to the commission, it has been delivered when executed and
given to the Secretary for the purpose of being sealed, recorded, and transmitted to the
party.
But in all cases of letters patent, certain solemnities are required by law, which solemnities
are the evidences
Page 5 U. S. 160
of the validity of the instrument. A formal delivery to the person is not among them. In cases
of commissions, the sign manual of the President and the seal of the United States are
those solemnities. This objection therefore does not touch the case.
It has also occurred as possible, and barely possible, that the transmission of the
commission and the acceptance thereof might be deemed necessary to complete the right
of the plaintiff.
The transmission of the commission is a practice directed by convenience, but not by law. It
cannot therefore be necessary to constitute the appointment, which must precede it and
which is the mere act of the President. If the Executive required that every person
appointed to an office should himself take means to procure his commission, the
appointment would not be the less valid on that account. The appointment is the sole act of
the President; the transmission of the commission is the sole act of the officer to whom that
duty is assigned, and may be accelerated or retarded by circumstances which can have no
influence on the appointment. A commission is transmitted to a person already appointed,
not to a person to be appointed or not, as the letter enclosing the commission should
happen to get into the post office and reach him in safety, or to miscarry.
It may have some tendency to elucidate this point to inquire whether the possession of the
original commission be indispensably necessary to authorize a person appointed to any
office to perform the duties of that office. If it was necessary, then a loss of the commission
would lose the office. Not only negligence, but accident or fraud, fire or theft might deprive
an individual of his office. In such a case, I presume it could not be doubted but that a copy
from the record of the Office of the Secretary of State would be, to every intent and
purpose, equal to the original. The act of Congress has expressly made it so. To give that
copy validity, it would not be necessary to prove that the original had been transmitted and
afterwards lost. The copy would be complete evidence that the original had existed, and
that the appointment had been made, but not that the original had been transmitted. If
indeed it should appear that
Page 5 U. S. 161
the original had been mislaid in the Office of State, that circumstance would not affect the
operation of the copy. When all the requisites have been performed which authorize a
recording officer to record any instrument whatever, and the order for that purpose has
been given, the instrument is in law considered as recorded, although the manual labour of
inserting it in a book kept for that purpose may not have been performed.
In the case of commissions, the law orders the Secretary of State to record them. When,
therefore, they are signed and sealed, the order for their being recorded is given, and,
whether inserted in the book or not, they are in law recorded.
A copy of this record is declared equal to the original, and the fees to be paid by a person
requiring a copy are ascertained by law. Can a keeper of a public record erase therefrom a
commission which has been recorded? Or can he refuse a copy thereof to a person
demanding it on the terms prescribed by law?
Such a copy would, equally with the original, authorize the justice of peace to proceed in
the performance of his duty, because it would, equally with the original, attest his
appointment.
If the transmission of a commission be not considered as necessary to give validity to an

appointment, still less is its acceptance. The appointment is the sole act of the President;
the acceptance is the sole act of the officer, and is, in plain common sense, posterior to the
appointment. As he may resign, so may he refuse to accept; but neither the one nor the
other is capable of rendering the appointment a nonentity.
That this is the understanding of the government is apparent from the whole tenor of its
conduct.
A commission bears date, and the salary of the officer commences from his appointment,
not from the transmission or acceptance of his commission. When a person appointed to
any office refuses to accept that office, the successor is nominated in the place of the
person who
Page 5 U. S. 162
has declined to accept, and not in the place of the person who had been previously in office
and had created the original vacancy.
It is therefore decidedly the opinion of the Court that, when a commission has been signed
by the President, the appointment is made, and that the commission is complete when the
seal of the United States has been affixed to it by the Secretary of State.
Where an officer is removable at the will of the Executive, the circumstance which
completes his appointment is of no concern, because the act is at any time revocable, and
the commission may be arrested if still in the office. But when the officer is not removable at
the will of the Executive, the appointment is not revocable, and cannot be annulled. It has
conferred legal rights which cannot be resumed.
The discretion of the Executive is to be exercised until the appointment has been made. But
having once made the appointment, his power over the office is terminated in all cases,
where by law the officer is not removable by him. The right to the office is then in the person
appointed, and he has the absolute, unconditional power of accepting or rejecting it.
Mr. Marbury, then, since his commission was signed by the President and sealed by the
Secretary of State, was appointed, and as the law creating the office gave the officer a right
to hold for five years independent of the Executive, the appointment was not revocable, but
vested in the officer legal rights which are protected by the laws of his country.
To withhold the commission, therefore, is an act deemed by the Court not warranted by law,
but violative of a vested legal right.
This brings us to the second inquiry, which is:
2. If he has a right, and that right has been violated, do the laws of his country afford him a
remedy?
Page 5 U. S. 163
The very essence of civil liberty certainly consists in the right of every individual to claim the
protection of the laws whenever he receives an injury. One of the first duties of government
is to afford that protection. In Great Britain, the King himself is sued in the respectful form of
a petition, and he never fails to comply with the judgment of his court.
In the third volume of his Commentaries, page 23, Blackstone states two cases in which a
remedy is afforded by mere operation of law.
"In all other cases," he says,
"it is a general and indisputable rule that where there is a legal right, there is also a legal
remedy by suit or action at law whenever that right is invaded."
And afterwards, page 109 of the same volume, he says,
"I am next to consider such injuries as are cognizable by the Courts of common law. And
herein I shall for the present only remark that all possible injuries whatsoever that did not
fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals
are, for that very reason, within the cognizance of the common law courts of justice, for it is
a settled and invariable principle in the laws of England that every right, when withheld,
must have a remedy, and every injury its proper redress."
The Government of the United States has been emphatically termed a government of laws,
and not of men. It will certainly cease to deserve this high appellation if the laws furnish no
remedy for the violation of a vested legal right.
If this obloquy is to be cast on the jurisprudence of our country, it must arise from the
peculiar character of the case.
It behooves us, then, to inquire whether there be in its composition any ingredient which
shall exempt from legal investigation or exclude the injured party from legal redress. In
pursuing this inquiry, the first question which presents itself is whether this can be arranged
Page 5 U. S. 164
with that class of cases which come under the description of damnum absque injuria -- a
loss without an injury.
This description of cases never has been considered, and, it is believed, never can be
considered, as comprehending offices of trust, of honour or of profit. The office of justice of
peace in the District of Columbia is such an office; it is therefore worthy of the attention and
guardianship of the laws. It has received that attention and guardianship. It has been
created by special act of Congress, and has been secured, so far as the laws can give
security to the person appointed to fill it, for five years. It is not then on account of the
worthlessness of the thing pursued that the injured party can be alleged to be without
remedy.
Is it in the nature of the transaction? Is the act of delivering or withholding a commission to

be considered as a mere political act belonging to the Executive department alone, for the
performance of which entire confidence is placed by our Constitution in the Supreme
Executive, and for any misconduct respecting which the injured individual has no remedy?
That there may be such cases is not to be questioned. but that every act of duty to be
performed in any of the great departments of government constitutes such a case is not to
be admitted.
By the act concerning invalids, passed in June, 1794, the Secretary at War is ordered to
place on the pension list all persons whose names are contained in a report previously
made by him to Congress. If he should refuse to do so, would the wounded veteran be
without remedy? Is it to be contended that where the law, in precise terms, directs the
performance of an act in which an individual is interested, the law is incapable of securing
obedience to its mandate? Is it on account of the character of the person against whom the
complaint is made? Is it to be contended that the heads of departments are not amenable
to the laws of their country?
Whatever the practice on particular occasions may be, the theory of this principle will
certainly never be maintained.
Page 5 U. S. 165
No act of the Legislature confers so extraordinary a privilege, nor can it derive countenance
from the doctrines of the common law. After stating that personal injury from the King to a
subject is presumed to be impossible, Blackstone, Vol. III. p. 255, says,
"but injuries to the rights of property can scarcely be committed by the Crown without the
intervention of its officers, for whom, the law, in matters of right, entertains no respect or
delicacy, but furnishes various methods of detecting the errors and misconduct of those
agents by whom the King has been deceived and induced to do a temporary injustice."
By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky
river, the purchaser, on paying his purchase money, becomes completely entitled to the
property purchased, and, on producing to the Secretary of State the receipt of the treasurer
upon a certificate required by the law, the President of the United States is authorized to
grant him a patent. It is further enacted that all patents shall be countersigned by the
Secretary of State, and recorded in his office. If the Secretary of State should choose to
withhold this patent, or, the patent being lost, should refuse a copy of it, can it be imagined
that the law furnishes to the injured person no remedy?
It is not believed that any person whatever would attempt to maintain such a proposition.
It follows, then, that the question whether the legality of an act of the head of a department
be examinable in a court of justice or not must always depend on the nature of that act.
If some acts be examinable and others not, there must be some rule of law to guide the
Court in the exercise of its jurisdiction.
In some instances, there may be difficulty in applying the rule to particular cases; but there
cannot, it is believed, be much difficulty in laying down the rule.
By the Constitution of the United States, the President is invested with certain important
political powers, in the
Page 5 U. S. 166
exercise of which he is to use his own discretion, and is accountable only to his country in
his political character and to his own conscience. To aid him in the performance of these
duties, he is authorized to appoint certain officers, who act by his authority and in
conformity with his orders.
In such cases, their acts are his acts; and whatever opinion may be entertained of the
manner in which executive discretion may be used, still there exists, and can exist, no
power to control that discretion. The subjects are political. They respect the nation, not
individual rights, and, being entrusted to the Executive, the decision of the Executive is
conclusive. The application of this remark will be perceived by adverting to the act of
Congress for establishing the Department of Foreign Affairs. This officer, as his duties were
prescribed by that act, is to conform precisely to the will of the President. He is the mere
organ by whom that will is communicated. The acts of such an officer, as an officer, can
never be examinable by the Courts.
But when the Legislature proceeds to impose on that officer other duties; when he is
directed peremptorily to perform certain acts; when the rights of individuals are dependent
on the performance of those acts; he is so far the officer of the law, is amenable to the laws
for his conduct, and cannot at his discretion, sport away the vested rights of others.
The conclusion from this reasoning is that, where the heads of departments are the political
or confidential agents of the Executive, merely to execute the will of the President, or rather
to act in cases in which the Executive possesses a constitutional or legal discretion, nothing
can be more perfectly clear than that their acts are only politically examinable. But where a
specific duty is assigned by law, and individual rights depend upon the performance of that
duty, it seems equally clear that the individual who considers himself injured has a right to
resort to the laws of his country for a remedy.
If this be the rule, let us inquire how it applies to the case under the consideration of the
Court.
Page 5 U. S. 167
The power of nominating to the Senate, and the power of appointing the person nominated,
are political powers, to be exercised by the President according to his own discretion. When
he has made an appointment, he has exercised his whole power, and his discretion has
been completely applied to the case. If, by law, the officer be removable at the will of the
President, then a new appointment may be immediately made, and the rights of the officer
are terminated. But as a fact which has existed cannot be made never to have existed, the
appointment cannot be annihilated, and consequently, if the officer is by law not removable
at the will of the President, the rights he has acquired are protected by the law, and are not
resumable by the President. They cannot be extinguished by Executive authority, and he
has the privilege of asserting them in like manner as if they had been derived from any
other source.
The question whether a right has vested or not is, in its nature, judicial, and must be tried by
the judicial authority. If, for example, Mr. Marbury had taken the oaths of a magistrate and
proceeded to act as one, in consequence of which a suit had been instituted against him in
which his defence had depended on his being a magistrate; the validity of his appointment
must have been determined by judicial authority.
So, if he conceives that, by virtue of his appointment, he has a legal right either to the
commission which has been made out for him or to a copy of that commission, it is equally
a question examinable in a court, and the decision of the Court upon it must depend on the
opinion entertained of his appointment.
That question has been discussed, and the opinion is that the latest point of time which can
be taken as that at which the appointment was complete and evidenced was when, after
the signature of the President, the seal of the United States was affixed to the commission.
It is then the opinion of the Court:
1. That, by signing the commission of Mr. Marbury, the President of the United States
appointed him a justice
Page 5 U. S. 168
of peace for the County of Washington in the District of Columbia, and that the seal of the
United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity
of the signature, and of the completion of the appointment, and that the appointment
conferred on him a legal right to the office for the space of five years.
2. That, having this legal title to the office, he has a consequent right to the commission, a
refusal to deliver which is a plain violation of that right, for which the laws of his country
afford him a remedy.
It remains to be inquired whether,
3. He is entitled to the remedy for which he applies. This depends on:
1. The nature of the writ applied for, and
2. The power of this court.
1. The nature of the writ.
Blackstone, in the third volume of his Commentaries, page 110, defines a mandamus to be
"a command issuing in the King's name from the Court of King's Bench, and directed to any
person, corporation, or inferior court of judicature within the King's dominions requiring them
to do some particular thing therein specified which appertains to their office and duty, and
which the Court of King's Bench has previously determined, or at least supposes, to be
consonant to right and justice."
Lord Mansfield, in 3 Burrows, 1266, in the case of The King v. Baker et al., states with much
precision and explicitness the cases in which this writ may be used.
"Whenever," says that very able judge,
"there is a right to execute an office, perform a service, or exercise a franchise (more

especially if it be in a matter of public concern or attended with profit), and a person is kept
out of possession, or dispossessed of such right, and
Page 5 U. S. 169
has no other specific legal remedy, this court ought to assist by mandamus, upon reasons
of justice, as the writ expresses, and upon reasons of public policy, to preserve peace,
order and good government."
In the same case, he says,
"this writ ought to be used upon all occasions where the law has established no specific
remedy, and where in justice and good government there ought to be one."
In addition to the authorities now particularly cited, many others were relied on at the bar
which show how far the practice has conformed to the general doctrines that have been just
quoted.
This writ, if awarded, would be directed to an officer of government, and its mandate to him
would be, to use the words of Blackstone,
"to do a particular thing therein specified, which appertains to his office and duty and which
the Court has previously determined or at least supposes to be consonant to right and
justice."
Or, in the words of Lord Mansfield, the applicant, in this case, has a right to execute an
office of public concern, and is kept out of possession of that right.
These circumstances certainly concur in this case.
Still, to render the mandamus a proper remedy, the officer to whom it is to be directed must
be one to whom, on legal principles, such writ may be directed, and the person applying for
it must be without any other specific and legal remedy.
1. With respect to the officer to whom it would be directed. The intimate political relation,
subsisting between the President of the United States and the heads of departments,
necessarily renders any legal investigation of the acts of one of those high officers
peculiarly irksome, as well as delicate, and excites some hesitation with respect to the
propriety of entering into such investigation. Impressions are often received without much
reflection or examination, and it is not wonderful that, in such a case as this, the assertion
by an individual of his legal claims in a court of justice, to which claims it is the duty of that
court to attend, should, at first view, be considered
Page 5 U. S. 170
by some as an attempt to intrude into the cabinet and to intermeddle with the prerogatives
of the Executive.
It is scarcely necessary for the Court to disclaim all pretensions to such a jurisdiction. An
extravagance so absurd and excessive could not have been entertained for a moment. The
province of the Court is solely to decide on the rights of individuals, not to inquire how the
Executive or Executive officers perform duties in which they have a discretion. Questions, in
their nature political or which are, by the Constitution and laws, submitted to the Executive,
can never be made in this court.
But, if this be not such a question; if so far from being an intrusion into the secrets of the
cabinet, it respects a paper which, according to law, is upon record, and to a copy of which
the law gives a right, on the payment of ten cents; if it be no intermeddling with a subject
over which the Executive can be considered as having exercised any control; what is there
in the exalted station of the officer which shall bar a citizen from asserting in a court of
justice his legal rights, or shall forbid a court to listen to the claim or to issue a mandamus
directing the performance of a duty not depending on Executive discretion, but on particular
acts of Congress and the general principles of law?
If one of the heads of departments commits any illegal act under colour of his office by
which an individual sustains an injury, it cannot be pretended that his office alone exempts
him from being sued in the ordinary mode of proceeding, and being compelled to obey the
judgment of the law. How then can his office exempt him from this particular mode of
deciding on the legality of his conduct if the case be such a case as would, were any other
individual the party complained of, authorize the process?
It is not by the office of the person to whom the writ is directed, but the nature of the thing to
be done, that the propriety or impropriety of issuing a mandamus is to be determined.
Where the head of a department acts in a case in which Executive discretion is to be
exercised, in which he is the mere organ of Executive will, it is
Page 5 U. S. 171
again repeated, that any application to a court to control, in any respect, his conduct, would
be rejected without hesitation.
But where he is directed by law to do a certain act affecting the absolute rights of
individuals, in the performance of which he is not placed under the particular direction of the
President, and the performance of which the President cannot lawfully forbid, and therefore
is never presumed to have forbidden -- as for example, to record a commission, or a patent
for land, which has received all the legal solemnities; or to give a copy of such record -- in
such cases, it is not perceived on what ground the Courts of the country are further
excused from the duty of giving judgment that right to be done to an injured individual than
if the same services were to be performed by a person not the head of a department.
This opinion seems not now for the first time to be taken up in this country.
It must be well recollected that, in 1792, an act passed, directing the secretary at war to
place on the pension list such disabled officers and soldiers as should be reported to him by
the Circuit Courts, which act, so far as the duty was imposed on the Courts, was deemed
unconstitutional; but some of the judges, thinking that the law might be executed by them in
the character of commissioners, proceeded to act and to report in that character.
This law being deemed unconstitutional at the circuits, was repealed, and a different system
was established; but the question whether those persons who had been reported by the
judges, as commissioners, were entitled, in consequence of that report, to be placed on the
pension list was a legal question, properly determinable in the Courts, although the act of
placing such persons on the list was to be performed by the head of a department.
That this question might be properly settled, Congress passed an act in February, 1793,
making it the duty of the Secretary of War, in conjunction with the Attorney General, to take
such measures as might be necessary to obtain an adjudication of the Supreme Court of
the United
Page 5 U. S. 172
States on the validity of any such rights, claimed under the act aforesaid.
After the passage of this act, a mandamus was moved for, to be directed to the Secretary of
War, commanding him to place on the pension list a person stating himself to be on the
report of the judges.
There is, therefore, much reason to believe that this mode of trying the legal right of the
complainant was deemed by the head of a department, and by the highest law officer of the
United States, the most proper which could be selected for the purpose.
When the subject was brought before the Court, the decision was not that a mandamus
would not lie to the head of a department directing him to perform an act enjoined by law, in
the performance of which an individual had a vested interest, but that a mandamus ought
not to issue in that case -- the decision necessarily to be made if the report of the
commissioners did not confer on the applicant a legal right.
The judgment in that case is understood to have decided the merits of all claims of that
description, and the persons, on the report of the commissioners, found it necessary to
pursue the mode prescribed by the law subsequent to that which had been deemed
unconstitutional in order to place themselves on the pension list.
The doctrine, therefore, now advanced is by no means a novel one.
It is true that the mandamus now moved for is not for the performance of an act expressly
enjoined by statute.
It is to deliver a commission, on which subjects the acts of Congress are silent. This
difference is not considered as affecting the case. It has already been stated that the
applicant has, to that commission, a vested legal right of which the Executive cannot
deprive him. He has been appointed to an office from which he is not removable at the will
of the Executive, and, being so
Page 5 U. S. 173
appointed, he has a right to the commission which the Secretary has received from the
President for his use. The act of Congress does not, indeed, order the Secretary of State to
send it to him, but it is placed in his hands for the person entitled to it, and cannot be more
lawfully withheld by him than by another person.
It was at first doubted whether the action of detinue was not a specific legal remedy for the
commission which has been withheld from Mr. Marbury, in which case a mandamus would
be improper. But this doubt has yielded to the consideration that the judgment in detinue is
for the thing itself, or its value. The value of a public office not to be sold is incapable of
being ascertained, and the applicant has a right to the office itself, or to nothing. He will
obtain the office by obtaining the commission or a copy of it from the record.
This, then, is a plain case of a mandamus, either to deliver the commission or a copy of it
from the record, and it only remains to be inquired:
Whether it can issue from this Court.
The act to establish the judicial courts of the United States authorizes the Supreme Court
"to issue writs of mandamus, in cases warranted by the principles and usages of law, to any
courts appointed, or persons holding office, under the authority of the United States."
The Secretary of State, being a person, holding an office under the authority of the United
States, is precisely within the letter of the description, and if this Court is not authorized to
issue a writ of mandamus to such an officer, it must be because the law is unconstitutional,
and therefore absolutely incapable of conferring the authority and assigning the duties
which its words purport to confer and assign.
The Constitution vests the whole judicial power of the United States in one Supreme Court,
and such inferior courts as Congress shall, from time to time, ordain and establish. This
power is expressly extended to all cases arising under the laws of the United States; and
consequently, in some form, may be exercised over the present
Page 5 U. S. 174
case, because the right claimed is given by a law of the United States.
In the distribution of this power. it is declared that
"The Supreme Court shall have original jurisdiction in all cases affecting ambassadors,
other public ministers and consuls, and those in which a state shall be a party. In all other
cases, the Supreme Court shall have appellate jurisdiction."
It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and
inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court
contains no negative or restrictive words, the power remains to the Legislature to assign
original jurisdiction to that Court in other cases than those specified in the article which has
been recited, provided those cases belong to the judicial power of the United States.
If it had been intended to leave it in the discretion of the Legislature to apportion the judicial
power between the Supreme and inferior courts according to the will of that body, it would
certainly have been useless to have proceeded further than to have defined the judicial
power and the tribunals in which it should be vested. The subsequent part of the section is
mere surplusage -- is entirely without meaning -- if such is to be the construction. If
Congress remains at liberty to give this court appellate jurisdiction where the Constitution
has declared their jurisdiction shall be original, and original jurisdiction where the
Constitution has declared it shall be appellate, the distribution of jurisdiction made in the
Constitution, is form without substance.
Affirmative words are often, in their operation, negative of other objects than those affirmed,
and, in this case, a negative or exclusive sense must be given to them or they have no
operation at all.
It cannot be presumed that any clause in the Constitution is intended to be without effect,
and therefore such construction is inadmissible unless the words require it.
Page 5 U. S. 175
If the solicitude of the Convention respecting our peace with foreign powers induced a
provision that the Supreme Court should take original jurisdiction in cases which might be
supposed to affect them, yet the clause would have proceeded no further than to provide for
such cases if no further restriction on the powers of Congress had been intended. That they
should have appellate jurisdiction in all other cases, with such exceptions as Congress
might make, is no restriction unless the words be deemed exclusive of original jurisdiction.
When an instrument organizing fundamentally a judicial system divides it into one Supreme
and so many inferior courts as the Legislature may ordain and establish, then enumerates
its powers, and proceeds so far to distribute them as to define the jurisdiction of the
Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in
others it shall take appellate jurisdiction, the plain import of the words seems to be that, in
one class of cases, its jurisdiction is original, and not appellate; in the other, it is appellate,
and not original. ,If any other construction would render the clause inoperative, that is an
additional reason for rejecting such other construction, and for adhering to the obvious
meaning.
To enable this court then to issue a mandamus, it must be shown to be an exercise of

appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.
It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of
forms, and that, if it be the will of the Legislature that a mandamus should be used for that
purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not
original.
It is the essential criterion of appellate jurisdiction that it revises and corrects the
proceedings in a cause already instituted, and does not create that case. Although,
therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for
the delivery of a paper is, in effect, the same as to sustain an original action for that paper,
and therefore seems not to belong to
Page 5 U. S. 176
appellate, but to original jurisdiction. Neither is it necessary in such a case as this to enable
the Court to exercise its appellate jurisdiction.
The authority, therefore, given to the Supreme Court by the act establishing the judicial
courts of the United States to issue writs of mandamus to public officers appears not to be
warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so
conferred can be exercised.
The question whether an act repugnant to the Constitution can become the law of the land
is a question deeply interesting to the United States, but, happily, not of an intricacy
proportioned to its interest. It seems only necessary to recognise certain principles,
supposed to have been long and well established, to decide it.
That the people have an original right to establish for their future government such
principles as, in their opinion, shall most conduce to their own happiness is the basis on
which the whole American fabric has been erected. The exercise of this original right is a
very great exertion; nor can it nor ought it to be frequently repeated. The principles,
therefore, so established are deemed fundamental. And as the authority from which they
proceed, is supreme, and can seldom act, they are designed to be permanent.
This original and supreme will organizes the government and assigns to different
departments their respective powers. It may either stop here or establish certain limits not
to be transcended by those departments.
The Government of the United States is of the latter description. The powers of the
Legislature are defined and limited; and that those limits may not be mistaken or forgotten,
the Constitution is written. To what purpose are powers limited, and to what purpose is that
limitation committed to writing, if these limits may at any time be passed by those intended
to be restrained? The distinction between a government with limited and unlimited powers
is abolished if those limits do not confine the persons on whom they are imposed, and if
acts prohibited
Page 5 U. S. 177
and acts allowed are of equal obligation. It is a proposition too plain to be contested that the
Constitution controls any legislative act repugnant to it, or that the Legislature may alter the
Constitution by an ordinary act.
Between these alternatives there is no middle ground. The Constitution is either a superior,
paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative
acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution
is not law; if the latter part be true, then written Constitutions are absurd attempts on the
part of the people to limit a power in its own nature illimitable.
Certainly all those who have framed written Constitutions contemplate them as forming the
fundamental and paramount law of the nation, and consequently the theory of every such
government must be that an act of the Legislature repugnant to the Constitution is void.
This theory is essentially attached to a written Constitution, and is consequently to be

considered by this Court as one of the fundamental principles of our society. It is not,
therefore, to be lost sight of in the further consideration of this subject.
If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its
invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be
not law, does it constitute a rule as operative as if it was a law? This would be to overthrow
in fact what was established in theory, and would seem, at first view, an absurdity too gross
to be insisted on. It shall, however, receive a more attentive consideration.
It is emphatically the province and duty of the Judicial Department to say what the law is.
Those who apply the rule to particular cases must, of necessity, expound and interpret that
rule. If two laws conflict with each other, the Courts must decide on the operation of each.
Page 5 U. S. 178
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to
a particular case, so that the Court must either decide that case conformably to the law,
disregarding the Constitution, or conformably to the Constitution, disregarding the law, the
Court must determine which of these conflicting rules governs the case. This is of the very
essence of judicial duty.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any
ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the
case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court
as a paramount law are reduced to the necessity of maintaining that courts must close their
eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written Constitutions. It would declare
that an act which, according to the principles and theory of our government, is entirely void,
is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do
what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality
effectual. It would be giving to the Legislature a practical and real omnipotence with the
same breath which professes to restrict their powers within narrow limits. It is prescribing
limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political
institutions -- a written Constitution, would of itself be sufficient, in America where written
Constitutions have been viewed with so much reverence, for rejecting the construction. But
the peculiar expressions of the Constitution of the United States furnish additional
arguments in favour of its rejection.
The judicial power of the United States is extended to all cases arising under the
Constitution.
Page 5 U. S. 179
Could it be the intention of those who gave this power to say that, in using it, the
Constitution should not be looked into? That a case arising under the Constitution should
be decided without examining the instrument under which it arises?
This is too extravagant to be maintained.
In some cases then, the Constitution must be looked into by the judges. And if they can
open it at all, what part of it are they forbidden to read or to obey?
There are many other parts of the Constitution which serve to illustrate this subject.
It is declared that "no tax or duty shall be laid on articles exported from any State." Suppose
a duty on the export of cotton, of tobacco, or of flour, and a suit instituted to recover it.
Ought judgment to be rendered in such a case? ought the judges to close their eyes on the
Constitution, and only see the law?
The Constitution declares that "no bill of attainder or ex post facto law shall be passed."
If, however, such a bill should be passed and a person should be prosecuted under it, must
the Court condemn to death those victims whom the Constitution endeavours to preserve?
"No person,' says the Constitution, 'shall be convicted of treason unless on the testimony of
two witnesses to the same overt act, or on confession in open court."
Here. the language of the Constitution is addressed especially to the Courts. It prescribes,
directly for them, a rule of evidence not to be departed from. If the Legislature should
change that rule, and declare one witness, or a confession out of court, sufficient for
conviction, must the constitutional principle yield to the legislative act?
From these and many other selections which might be made, it is apparent that the framers
of the Constitution
Page 5 U. S. 180
contemplated that instrument as a rule for the government of courts, as well as of the
Legislature.
Why otherwise does it direct the judges to take an oath to support it? This oath certainly
applies in an especial manner to their conduct in their official character. How immoral to
impose it on them if they were to be used as the instruments, and the knowing instruments,
for violating what they swear to support!
The oath of office, too, imposed by the Legislature, is completely demonstrative of the
legislative opinion on this subject. It is in these words:
"I do solemnly swear that I will administer justice without respect to persons, and do equal
right to the poor and to the rich; and that I will faithfully and impartially discharge all the
duties incumbent on me as according to the best of my abilities and understanding,
agreeably to the Constitution and laws of the United States."
Why does a judge swear to discharge his duties agreeably to the Constitution of the United
States if that Constitution forms no rule for his government? if it is closed upon him and
cannot be inspected by him?
If such be the real state of things, this is worse than solemn mockery. To prescribe or to
take this oath becomes equally a crime.
It is also not entirely unworthy of observation that, in declaring what shall be the supreme
law of the land, the Constitution itself is first mentioned, and not the laws of the United
States generally, but those only which shall be made in pursuance of the Constitution, have
that rank.
Thus, the particular phraseology of the Constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written Constitutions, that a law
repugnant to the Constitution is void, and that courts, as well as other departments, are
bound by that instrument.
The rule must be discharged.
EN BANC
[G.R. No. 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.

Solicitor-General Hilado for respondent Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; SEPARATION OF POWERS. — 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.
2. ID.; ID.; SYSTEM OF CHECKS AND BALANCES. — 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 various departments of government. For
example, the Chief Executive under our Constitution is 80 far made a check on the
legislative power that his 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 appointment of certain o cers; 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 de ne their jurisdiction and to appropriate funds for their
support, the National Assembly exercises to a certain extent control over the judicial
department. The Assembly also exercises the judicial power of trying impeachments.
And the judiciary in turn, with the Supreme Court as the nal 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.
3. ID.; ID.; ID.; JUDICIARY THE ONLY CONSTITUTIONAL ARBITER TO
ALLOCATE CONSTITUTIONAL BOUNDARIES. — 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,
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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
con ict, 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.
4. ID.; ID.; ID.; ID.; MODERATING POWER OF THE JUDICIARY IS GRANTED, IF
NOT EXPRESSLY, BY CLEAR IMPLICATION. — 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 speci c 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 limitations and restrictions
embodied in the 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.
5. ID.; ID.; ID.; WHAT IS MEANT BY "JUDICIAL SUPREMACY". — The
Constitution is a de nition 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 con icting 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.
6. ID.; ID.; ID.; JUDICIAL REVIEW LIMITED TO ACTUAL LITIGATION; WISDOM,
JUSTICE OR EXPEDIENCY OF LEGISLATION. — 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 government.
7. ID.; ID.; ID.; SYSTEM ITSELF NOT THE CHIEF PALLADIUM OF
CONSTITUTIONAL LIBERTY; SUCCESS MUST BE TESTED IN THE CRUCIBLE OF
FILIPINO MINDS AND HEARTS. — 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 the consultation rooms and court
chambers.
8. ID.; OUR CONSTITUTION HAS ADOPTED THE AMERICAN TYPE OF
CONSTITUTIONAL GOVERNMENT. — 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 (article 81, chapter 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, Constitution of the Republic of 1931) especial constitutional
courts are established to pass upon the validity of ordinary laws.
9. ID.; JURISDICTION OVER THE ELECTORAL COMMISSION. — The nature of
the present controversy shows the necessity of a nal constitutional arbiter to
determine the con ict of authority between two agencies created by the Constitution. If
the con ict were left undecided and undetermined, a void would be created in our
constitutional system which may in the long run prove destructive of the entire
framework. Natura vacuum abhorret, so must we avoid exhaustion in our constitutional
system. Upon principle, reason and authority, the Supreme Court has jurisdiction over
the Electoral Commission and the subject matter 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."
10. ID.; THE ELECTORAL COMMISSION; CONSTITUTIONAL GRANT OF
POWER TO THE ELECTORAL COMMISSION TO BE THE SOLE JUDGE OF ALL
CONTESTS RELATING TO THE ELECTION, RETURNS AND QUALIFICATIONS OF
MEMBERS OF THE NATIONAL ASSEMBLY. — 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 quali cations 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 Quali cations of its own Members, . . . ." The Act of Congress of August 29, 1916
(sec. 18, par. 1) modi ed 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 quali cations of their elective members, . . ." apparently in
order to emphasize the exclusive character of the jurisdiction conferred upon each
House of the Legislature over the particular cases therein speci ed. 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.)
11. ELECTORAL COMMISSION; HISTORICAL INSTANCES. — The transfer of
the power of determining the election, returns and quali cations 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. 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
Prevention 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 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.
12. ID.; ELECTORAL COMMISSION IN THE UNITED STATES. — 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 ve members elected by the Senate, ve 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 moral lesson to be derived from the experience of America in this regard, the
experiment has at least abiding historical interest.
13. ID.; ID.; FAMILIARITY OF THE MEMBERS OF THE CONSTITUTIONAL
CONVENTION WITH THE HISTORY AND POLITICAL DEVELOPMENT OF OTHER
COUNTRIES OF THE WORLD; ELECTORAL COMMISSION IS THE EXPRESSION OF THE
WISDOM AND ULTIMATE JUSTICE OF THE PEOPLE. — 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 quali cations 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 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
Constitution, 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.)
14. ID.; ID.; ID.; PURPOSE WAS TO TRANSFER IN ITS TOTALITY POWER
EXERCISED PREVIOUSLY BY THE LEGISLATURE OVER THE CONTESTED ELECTIONS
OF THE MEMBERS TO AN INDEPENDENT AND IMPARTIAL TRIBUNAL. — 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 in uence in its deliberations
was created, and further endowed with judicial temper by including in its membership
three justices of the Supreme Court.
15. ID.; ID.; ID.; THE ELECTORAL COMMISSION IS AN INDEPENDENT
CONSTITUTIONAL CREATION ALTHOUGH FOR PURPOSES OF CLASSIFICATION IT IS
CLOSER TO THE LEGISLATIVE DEPARTMENT THAN TO ANY OTHER. — The Electoral
Commission is a constitutional creation, invested with the necessary authority in the
performance and execution of the limited and speci c 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 (sec. 4) creating the Electoral Commission under Article VI
entitled "Legislative Department" of our Constitution is very indicative. Its composition
is also signi cant 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.
16. ID.; ID; ID.; GRANT OF POWER TO THE ELECTORAL COMMISSION
INTENDED TO BE AS COMPLETE AND UNIMPAIRED AS IF IT HAD REMAINED
ORIGINALLY IN THE LEGISLATURE. — The grant of power to the Electoral Commission
to judge all contests relating to the election, returns and quali cations 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, 46 Tex. Crim. Rep., 1; State vs. Whisman,
33 S. D., 260; L. R. A., 1917B, 1). If the power claimed for the National Assembly to
regulate the proceedings of the Electoral Commission and cut off the power of the
Electoral Commission to lay down a period within which protest should be led were
conceded, the grant of power to the commission would be ineffective. The Electoral
Commission in such a case would be invested with the power to determine contested
cases involving the election, returns, and quali cations 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 wherever 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.
17. ID.; ID.; ID; ID.; THE POWER TO PROMULGATE INCIDENTAL RULES AND
REGULATIONS LODGED ALSO IN THE ELECTORAL COMMISSION BY NECESSARY
IMPLICATION. — The creation of the Electoral Commission carried with it ex necesitate
rei the power regulative in character to limit the time within which protests intrusted to
its cognizance should be led. 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, eighth ed., vol. I, pp. 138, 139). In the absence of any further constitutional
provision relating to the procedure to be followed in ling protests before the Electoral
Commission, therefore, the incidental power to promulgate such rules necessary for
the proper exercise of its exclusive powers to judge all contests relating to the election,
returns and quali cations of members of the National Assembly, must be deemed by
necessary implication to have been lodged also in the Electoral Commission.
18. ID; ID.; ID.; POSSIBILITY OF ABUSE NO ARGUMENT AGAINST GRANT OF
POWER. — The possibility of abuse is not an argument against the concession of the
power as there is no power that is not susceptible of abuse. 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 quali cations 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. The people in creating the
Electoral Commission reposed as much con dence in this body in the exclusive
determination of the speci ed cases assigned to it, as it has 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 speci c purposes, and each
constitutional organ working within its own particular sphere of discretionary action
must be deemed to be animated with 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 imperfections of human institutions. 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 challenged in
appropriate cases over which the courts may exercise jurisdiction.
19. ID.; ID.; ID.; FACTS OF THE CASE; EQUITABLE CONSIDERATIONS. — 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 25, of
that year, and the resolution con rming the election of the petitioner was approved by
that body on December 3, 1935. The protest by the herein respondent against the
election of the petitioner was led 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 rst time and
approved a resolution xing said date as the last day for the ling of election protests.
When, therefore, the National Assembly passed its resolution of December 3, 1935,
con rming 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 matter of fact, according to certi ed copies of o cial records on le 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 and the six
members of the National Assembly constituting the Electoral Commission were
respectively designated only on December 4 and 6, 1936. If Resolution No. 8 of the
National Assembly con rming 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.
20. ID.; ID.; ID.; CONFIRMATION BY THE NATIONAL ASSEMBLY CAN NOT
DEPRIVE THE ELECTORAL COMMISSION OF ITS AUTHORITY TO FIX THE TIME WITHIN
WHICH PROTESTS AGAINST THE ELECTION, RETURNS AND QUALIFICATIONS OF
MEMBERS OF THE NATIONAL ASSEMBLY SHOULD BE FILED. — Resolution No. 8 of the
National Assembly con rming the election of members against whom no protests has
been led at the time of its passage on December 3, 1936, 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 con rmation of members of the
Legislature at the time the power to decide election contests was still lodged in the
Legislature, con rmation 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 contests relating to the election, returns, and quali cations of the
members of the National Assembly", to x the time for the ling of said election
protests. Con rmation by the National Assembly of the returns of its members against
whose election no protests have been led is, to all legal purposes, unnecessary.
Con rmation 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, certi cation 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 o ce in said body (No. 1, par.
1, Rules of the National Assembly, adopted December 6, 1935).
21. ID.; EFFECT OF CONFIRMATION UNDER THE JONES LAW. — Under the
practice prevailing when the Jones Law was still in force, each House of the Philippine
Legislature xed the time when protests against the election of any of its members
should be led. This was expressly authorized by section 18 of the Jones Law making
each House the sole judge of the election, returns and quali cations of its members, as
well as by a law (sec. 478, Act No. 3387) empowering each House respectively to
prescribe by resolution the time and manner of ling contest the election of members
of said bodies. As a matter of formality, after the time xed by its rules for the ling of
protests had already expired, each House passed a resolution con rming or approving
the returns of such members against whose election no protest had been led within
the prescribed time. This was interpreted as cutting off the ling of further protests
against the election of those members not theretofore contested (Amistad vs. Claravall
[Isabela], Second Philippine Legislature, Record — First Period, p. 89; Urgello 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 expressly 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 contests relating to
the election, returns and quali cations 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 provision which authorized the National
Assembly to x, as it is alleged to have xed on December 3, 1935, the time for the
ling 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.
DECISION
LAUREL , J : p
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
led by Pedro Ynsua, another respondent, against the election of said petitioner as
member of the National Assembly for the rst 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 rst
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]
"RESOLUTION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS
CONTRAQUIENES 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, led
before the Electoral Commission a "Motion of Protest" against the election of the
herein petitioner, Jose A. Angara, being the only protest led after the passage of
Resolution No. 8 aforequoted, and praying, among other-things, that said respondent be
declared elected member of the National Assembly for the rst 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, led before the Electoral Commission a
"Motion to 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 led
out of the prescribed period;
(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, led 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, led 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 hem 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-McDu e Law (No. 127 of the
73rd Congress of the United States) as well as under sections 1 and 3 (should be
sections 1 and 2) of article VIII of the Constitution, the 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 led 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 quali cations of the members of the
National Assembly"; that in adopting its resolution of December 9, 1935, xing 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 powers 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 as 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,
con rming the election of the members of the National Assembly against whom no
protest had thus far been led, could not and did not deprive the Electoral Commission
of its jurisdiction to take cognizance of election protests led 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 sections 226 and 516 of the Code of Civil Procedure, against which
prohibition would lie.
The respondent Pedro Ynsua, in his turn, appeared and led an answer in his own
behalf on March 2, 1936, setting forth 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 xing the period within which 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 xed by paragraph 6 of the
rules of the said Electoral Commission;
(c) That therefore the Electoral Commission acquired jurisdiction over the
protest led 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 con rmation by the
National Assembly of the election of its members, and that such con rmation does not
operate to limit the period within which protests should be led as to deprive the
Electoral Commission of jurisdiction over protests filed subsequent thereto;
(e) That the Electoral Commission is an independent entity created by the
Constitution, endowed with quasi-judicial functions, whose decisions are nal and
unappeallable;
(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-McDu e 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 take cognizance of the protest led against the election of
the herein petitioner notwithstanding the previous con rmation 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 justi ed 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 appointment of certain o cers; 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 de ne 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 nal 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 con ict, 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
speci c 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 limitations
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 de nition 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 con icting 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 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 re ect the
wisdom and justice of the people as expressed through their representatives in the
executive and legislative departments 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, con rmed 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, xed
said date as the last day for the ling of protests against the election, returns and
quali cations of members of the National Assembly, notwithstanding the previous
con rmation 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 quali cations 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 xed said date as the last day for ling 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 con ict 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 de ning constitutional boundaries. The Electoral Commission, as we
shall have occasion to refer hereafter, is a constitutional organ, created for a speci c
purpose, namely to determine all contests relating to the election, returns and
quali cations of the members of the National Assembly. Although the Electoral
Commission may not be interfered with, when the 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, con icting claims of authority under the fundamental law between departmental
powers and agencies of the government are necessarily determined by the judiciary in
justiciable 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, Constitution 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 nal constitutional arbiter to
determine the con ict of authority between two agencies created by the Constitution.
Were we to decline to take cognizance of the controversy, who will determine the
con ict? And if the con ict 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? 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
matter 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 quali cations 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 led against the election of
the herein petitioner notwithstanding the previous con rmation 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 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 herein. 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 quali cations 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 Quali cations of its own Members, . . .."
The Act of Congress of August 29, 1916 (sec. 18, par. 1) modi ed 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 quali cations of their
elective members, . . ." apparently in order to emphasize the exclusive character of the
jurisdiction conferred upon each House of the Legislature over the particular cases
therein speci ed. 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 rst 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 ve
appointed by the Committee on Constitutional Guarantees of the Constitutional
Convention, which subcommittee submitted a report on August 30, 1934,
recommending the creation of a Tribunal of Constitutional Security empowered to hear
protests not only against the election of members of the legislature but also against
the election of executive o cers for whose election the vote of the whole nation is
required, as well as to initiate impeachment proceedings against speci ed executive
and judicial o cers. 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
designated 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 modi cations
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 quali cations 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 speci c and limited
jurisdiction, to be designated as an Electoral Commission. The Sponsorship Committee
modi ed 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 quali cations 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 sole and
exclusive judge of the elections, returns, and quali cations of the Members", the
following illuminating remarks were made on the oor of the Convention in its session
of December 4, 1934, as to the scope of the said draft:
xxx xxx xxx
"Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the
meaning of the rst four lines, paragraph 6, page 11 of the draft, reading:
'The elections, returns and quali cations 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 quali cation of the
member whose election 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 con rm also the election of those who election is not
contested?.
"Mr. ROXAS. There is no need of con rmation. As the gentleman knows, the
action of the House of Representatives con rming 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 les his credentials that be
has been elected, that is sufficient, unless his election is contested.
"Mr. VENTURA. But I do not believe that that is su cient, 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 con rm 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 rst 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. For 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 rst 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
quali cations 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 rst part of the section 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 quali cations.' 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 election 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
"Mr. ROXAS. By the assembly for misconduct.
"Mr. LABRADOR. I mean with respect to the qualification 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 quali cations 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 rst clause of the aforesaid draft reading "The election,
returns and quali cations 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:
xxx xxx xxx
"Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la
objecion apuntada por varios Delegados al efecto to que la primera
clausula del draft que dice: 'The election, returns and quali cations of the
members of the National Assembly' parece que da a la Comision Electoral
la facultad de determinar también la eleccion de los miembros que no han
sido protestados y para obviar esa di cultad, creemos que la enmienda
tiene 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 pedir informacion
del Subcomité de Siete.
"El Sr. PRESIDENTE. ¿Qué dice el Comité?.
"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 cre Su Señoria que
esto equivale practicamente a dejar el asunto a los miembros del Tribunal
Supremo?.
"El Sr. ROXAS. Si y no. Cremos que si el tribunal o la Comision 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 méritos, 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."
xxx xxx xxx
The amendment introduced by Delegates Labrador, Abordo and others seeking
to restore the power to decide contests relating to the election, returns and
quali cations 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 quali cations 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 election", which was accordingly accepted by the
Convention.
The transfer of the power of determining the election, returns and quali cations
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 quali cations 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 committee
appointed at the commencement of each session, was denominated the
committee of privileges and elections, whose function 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 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 o ce 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 an 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 noblest 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
judgment, which was not acquiesced in by some of the leading statesmen of the
day, and has not been entirely con rmed 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, chie y 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 Prevention 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
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 ve members elected by the Senate, ve members
elected by the House of Representatives, and ve justices of the Supreme Court, the
fth 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 quali cations 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 Constitution, 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
in uence 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 speci c
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 composition is also signi cant 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 quali cations 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 led,
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 quali cations 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 wherever 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 of 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 within which protests intrusted to its cognizance should be led. 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, eighth ed., vol. I, pp. 138,
139). In the absence of any further constitutional provision relating to the procedure to
be followed in ling 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 quali cations 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 an 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 quali cations 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 con dence in this body in the exclusive determination of
the speci ed 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 speci c purposes, and each constitutional
organ working within its own particular sphere of discretionary action must be deemed
to be animated with the same zealand 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 imperfections 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
challenged 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
con rming the election of the petitioner, Jose A. Angara, was approved by that body on
December 3, 11935. The protest by the herein respondent Pedro Ynsua against the
election of the petitioner was led 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 rst time and
approved a resolution xing said date as the last day for the ling of election protests.
When, therefore, the National Assembly passed its resolution of December 3, 1935,
con rming the election of the petitioner to the National Assembly, the Electoral
Commission had not yet met; neither does it appear that said body has actually been
organized. As a matter of fact, according to certi ed copies of o cial records on le 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 and 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 con rming 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 is 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 con rming the
election of members against whom no protests had been led 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 con rmation of the election of members of the legislature at the
time when the power to decide election contests was still lodged in the legislature,
con rmation 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 contests relating to the election, returns, and quali cations of the members of the
National Assembly", to x the time for the ling of said election protests. Con rmation
by the National Assembly of the returns of its members against whose election no
protests have been led 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 led by the respondent Pedro Ynsua,
con rmation 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, certi cation 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 o ce 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, con rmation is neither necessary in order to entitle a
member-elect to take his seat. The return of the proper election o cers in su cient,
and the member-elect presenting such return begins to enjoy the privileges of a
member from the time that he takes his oath of o ce (Laws of England, vol. 12, pp.
331, 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26). Con rmation 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
certi ed to the Speaker of the House of Commons, and the House, upon being
informed of such certi cate or report by the Speaker, is required to enter the same
upon the Journals, and to give such directions for con rming 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
su cient, without any actual alteration 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 force, each house of
the Philippine Legislature xed the time when protests against the election of any of its
members should be led. This was expressly authorized by section 18 of the Jones
Law making each house the sole judge of the election, returns and quali cations 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 members of said bodies. As a matter of formality, after the time xed by its rules for
the ling of protests had already expired, each house passed a resolution con rming or
approving the returns of such members against whose election no protests had been
led within the prescribed time. This was interpreted as cutting off the ling of further
protests against the election of those members not theretofore contested (Amistad vs.
Claravall [Isabela], Second Philippine Legislature, Record-First Period, p. 89; Urgello 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 contests relating to the election, returns
and quali cations 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 provision which authorized the National Assembly to x, as it is
alleged to have xed on December 3, 1935, the time for the ling 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 powers 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 con ict between the several departments and among the
agencies thereof, the judiciary, with the Supreme Court as the nal arbiter, is the only
constitutional mechanism devised nally to resolve the con ict 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 speci c powers and functions to execute and perform, closer for purposes of
classi cation to the legislative than to any of the other two departments of the
government.
(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 election, 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 quali cations of members of the National Assembly, devoid of
partisan in uence 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 quali cations of its elective members, but also
section 478 of Act No. 3387 empowering each house to prescribe by resolution the
time and manner of ling 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 con rmation by the National Assembly of the election of any
member, irrespective of whether his 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 con rmation by the National Assembly of the election of any
member against whom no protest had been led prior to said con rmation, does not
and cannot deprive the Electoral Commission of its incidental power to prescribe the
time within which protest 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 led 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 ling protests against the
election, returns and quali cations of members of the National Assembly, nor prevent
the ling 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 quali cations 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 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 quali cations 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 o ce 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 quali cations 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 ling 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 x 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 election
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 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, modi ed, or repealed by the National Assembly, and all references in such
laws to the Government or o cials of the Philippine Islands shall be construed, in
so far as applicable, to refer to the Government and corresponding o cials 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 operation 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 o cials of the Philippine Islands shall be
construed, in so far as applicable, to refer to the government and corresponding
o cials under the Constitution. It would seem to be consistent not only with the spirit
but with 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 Representatives 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 ling contests in the election 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 ling 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 within which written written contests must be filed with the commission.
Having been led within the time xed by its resolution, the Electoral
Commission has jurisdiction to hear and determine the contest led by the respondent
Pedro Ynsua against the petitioner Jose A. Angara. Writ denied.

EN BANC
[G.R. No. 160261. November 10, 2003]
ERNESTO B. FRANCISCO, JR., petitioner, NAGMAMALASAKIT NA MGA

MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC., ITS
OFFICERS AND MEMBERS, petitioner-in-intervention, WORLD WAR II
VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-
intervention, vs. THE HOUSE OF REPRESENTATIVES, REPRESENTED
BY SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED BY
SENATE PRESIDENT FRANKLIN M. DRILON, REPRESENTATIVE
GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents, JAIME N. SORIANO, respondent-in-
Intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-
intervention.
[G.R. No. 160262. November 10, 2003]
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA

RAZON-ABAD, petitioners, ATTYS. ROMULO B. MACALINTAL AND
PETE QUIRINO QUADRA, petitioners-in-intervention, WORLD WAR II
intervention, vs. THE HOUSE OF REPRESENTATIVES, THROUGH THE
SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER
JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF
THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT
FRANKLIN M. DRILON, respondents, JAIME N. SORIANO, respondent-
in-intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-
intervention.
[G.R. No. 160263. November 10, 2003]
ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,

WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC.,
petitioners-in-intervention, vs. FRANKLIN M. DRILON, IN HIS CAPACITY
AS SENATE PRESIDENT, AND JOSE G. DE VENECIA, JR., IN HIS
CAPACITY AS SPEAKER OF THE HOUSE OF REPRESENTATIVES,
respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR
AQUILINO Q. PIMENTEL, respondent-in-intervention.
[G.R. No. 160277. November 10, 2003]
FRANCISCO I. CHAVEZ, petitioner, WORLD WAR II VETERANS LEGIONARIES

OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. JOSE G. DE
VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS
PRESIDENT OF THE SENATE OF THE REPUBLIC OF THE PHILIPPINES,
GILBERT TEODORO, JR., FELIX WILLIAM FUENTEBELLA, JULIO
LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN, MARCELINO
LIBANAN, EMMYLOU TALIO-SANTOS, DOUGLAS CAGAS, SHERWIN
GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO
NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO
MARAON, JR., CECILIA CARREON-JALOSJOS, AGAPITO AQUINO,
FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE CARLOS
LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR,
WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN,
ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO, FAUSTINO DY III,
AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO
BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO
MATUBO, HERMINO TEVES, AMADO ESPINO, JR., EMILIO MACIAS,
ARTHUR PINGOY, JR., FRANCIS NEPOMUCENO, CONRADO ESTRELLA
III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC,
GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT,
JOSEPH DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI
AGGABAO, FRANCIS ESCUDERRO, RENE VELARDE, CELSO
LOBREGAT, ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM
MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA
SUAREZ, RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT
REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI,
BENASING MACARAMBON, JR., JOSEFINA JOSON, MARK
COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA, ANGELO
MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA
NICOLAS, RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY
ELIAS LOPEZ, respondents, JAIME N. SORIANO, respondent-in-
intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-
intervention.
[G.R. No. 160292. November 10, 2003]
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA,
NAPOLEON C. REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON,
JOAN P. SERRANO AND GARY S. MALLARI, petitioners, WORLD WAR II
intervention, vs. HON. SPEAKER JOSE G. DE VENECIA, JR. AND
ROBERTO P. NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL
OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES, respondents, JAIME N. SORIANO, respondent-in-
intervention, SENATOR AQUILINO Q. PIMENTEL, respondent-in-
intervention.
[G.R. No. 160295. November 10, 2003]
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES,

petitioners, WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE OF
REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE
FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES,
THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON,
respondents, JAIME N. SORIANO, respondent-in-intervention, SENATOR
AQUILINO Q. PIMENTEL, respondent-in-intervention.
[G.R. No. 160310. November 10, 2003]
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN

MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO, EDUARDO
MALASAGA, EDUARDO SARMIENTO, EDGARDO NAOE, LEONARDO
GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO TOREJA,
GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR.,
RONNIE TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO
PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO,
JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ, HOMER CALIBAG,
DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE RIVERO,
DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY
SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER
QUIROLGICO, JOSEPH LEANDRO LOYOLA, ANTONIO LIBREA,
FILEMON SIBULO, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO
LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER,
AND EDILBERTO GALLOR, petitioners, WORLD WAR II VETERANS
LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention, vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON.
SPEAKER JOSE C. DE VENECIA, JR., THE SENATE, REPRESENTED BY
HON. SENATE PRESIDENT FRANKLIN DRILON, HON. FELIX
FUENTEBELLA, ET AL., respondents.
[G.R. No. 160318. November 10, 2003]
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners, vs. HON.

SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF
REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN M. DRILON,
AND ALL MEMBERS, PHILIPPINE SENATE, respondents.
[G.R. No. 160342. November 10, 2003]
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE

INTEGRATED BAR OF THE PHILIPPINES, MANILA III, AND ENGR.
MAXIMO N. MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND
MEMBER OF THE ENGINEERING PROFESSION, petitioners, vs. THE
HOUSE OF REPRESENTATIVES REPRESENTED BY THE 83
HONORABLE MEMBERS OF THE HOUSE LED BY HON.
REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.
[G.R. No. 160343. November 10, 2003]
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. THE HOUSE OF

REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER
OR PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA,
REPRESENTATIVE GILBERTO G. TEODORO, JR., REPRESENTATIVE
FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE PHILIPPINES
THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M. DRILON,
respondents.
[G.R. No. 160360. November 10, 2003]
CLARO B. FLORES, petitioner, vs. THE HOUSE OF REPRESENTATIVES

THROUGH THE SPEAKER, AND THE SENATE OF THE PHILIPPINES,
THROUGH THE SENATE PRESIDENT, respondents.
[G.R. No. 160365. November 10, 2003]
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA,

DANILO V. ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS
V. DIORES, SR., BENJAMIN S. RALLON, ROLANDO P. NONATO, DANTE
T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B. CAPARROS-
ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES
AND IN BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE
PHILIPPINES, petitioners, vs. THE HOUSE OF REPRESENTATIVES,
SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE PHILIPPINES,
SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES
FELIX FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES
AND AS REPRESENTATIVES OF THE GROUP OF MORE THAN 80
HOUSE REPRESENTATIVES WHO SIGNED AND FILED THE
IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF
JUSTICE HILARIO G. DAVIDE, JR. respondents.
[G.R. No. 160370. November 10, 2003]

FR. RANHILIO CALLANGAN AQUINO, petitioner, vs. THE HONORABLE
PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE
HOUSE OF REPRESENTATIVES, respondents.
[G.R. No. 160376. November 10, 2003]
NILO A. MALANYAON, petitioner, vs. HON. FELIX WILLIAM FUENTEBELLA

AND GILBERT TEODORO, IN REPRESENTATION OF THE 86
SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF
JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF
REPRESENTATIVES, CONGRESS OF THE PHILIPPINES, REPRESENTED
BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents.
[G.R. No. 160392. November 10, 2003]
VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners, vs. THE HOUSE

OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA,
AND THE SENATE OF THE PHILIPPINES, THROUGH SENATE
PRESIDENT FRANKLIN DRILON, respondents.
[G.R. No. 160397. November 10, 2003]
IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF

JUSTICE HILARIO G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR.,
petitioner.
[G.R. No. 160403. November 10, 2003]
PHILIPPINE BAR ASSOCIATION, petitioner, vs. THE HOUSE OF

REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING
OFFICER, HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA,
THE SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT,
HON. FRANKLIN DRILON, respondents.
[G.R. No. 160405. November 10, 2003]
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER,

MANUEL M. MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A.
MAAMBONG, PROVINCIAL BOARD MEMBER, ADELINO B. SITOY, DEAN
OF THE COLLEG EOF LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS
ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY.
MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF
THE PHILIPPINES, INC. [CAMP, INC], REPRESENTED BY RODERIC R.
POCA, MANDAUE LAWYERS ASSOCIATION, [MANLAW],
REPRESENTED BY FELIPE VELASQUEZ, FEDERACION
INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA
L. JORDAN, CARLOS G. CO, PRESIENT OF CEBU CHAMBER OF
COMMERCE AND INDUSTRY AND CEBU LADY LAWYERS
ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND
BERNARDITO FLORIDO, PAST PRESIDENT CEBU CHAMBER OF
COMMERCE AND INTEGRATED BAR OF THE PHILIPPINES, CEBU
CHAPTER, petitioners, vs. THE HOUSE OF REPRESENTATIVES,
REPRESENTED BY REP. JOSE G. DE VENECIA, AS HOUSE SPEAKER
AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON,
AS SENATE PRESIDENT, respondents.
DECISION
CARPIO-MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how passionate and
seemingly irreconcilable it may appear to be, over the determination by the independent branches
of government of the nature, scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.
Our nations history is replete with vivid illustrations of the often frictional, at times turbulent,
dynamics of the relationship among these co-equal branches. This Court is confronted with one
such today involving the legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization that the present controversy
subject of the instant petitions whether 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. Perhaps even more truth to the view that it was brought upon by a political crisis
of conscience.
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.
Taken together, these two fundamental doctrines of republican government, intended as they
are to insure that governmental power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these branches where the delicate
functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of the people. Verily, salus
populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
ACCOUNTABILITY OF PUBLIC OFFICERS
SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to
the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.
SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the
Constitutional Commissions, and the Ombudsman may be removed from office, on impeachment for, and
conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes,
or betrayal of public trust. All other public officers and employees may be removed from office as provided
by law, but not by impeachment.
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. (Emphasis and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the
House of Representatives adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001, superseding the previous House
Impeachment Rules[1] approved by the 11th Congress. The relevant distinctions between these two
Congresses House Impeachment Rules are shown in the following tabulation:
11TH CONGRESS RULES 12TH CONGRESS NEW RULES

RULE II RULE V
INITIATING IMPEACHMENT BAR AGAINST INITIATION

OF IMPEACHMENT
PROCEEDINGS AGAINST
THE SAME OFFICIAL
Section 2. Mode of Initiating Section 16. Impeachment

Impeachment. Impeachment Proceedings Deemed
shall be initiated only by a Initiated. In cases where a
verified complaint for Member of the House files a
impeachment filed by any verified complaint of
Member of the House of impeachment or a citizen
Representatives or by any files a verified complaint that
citizen upon a resolution of is endorsed by a Member of
endorsement by any Member the House through a
thereof or by a verified resolution of endorsement
complaint or resolution of against an impeachable
impeachment filed by at least officer, impeachment
one-third (1/3) of all the proceedings against such
Members of the House. official are deemed initiated
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 is 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.
RULE V
BAR AGAINST
IMPEACHMENT
Section 17. Bar Against

Section 14. Scope of Bar. No Initiation Of Impeachment
impeachment proceedings shall be Proceedings. Within a period of
initiated against the same official one (1) year from the date
more than once within the period impeachment proceedings are
of one (1) year. deemed initiated as provided in
Section 16 hereof, no impeachment
proceedings, as such, can be
initiated against the same official.
(Italics in the original; emphasis and
underscoring supplied)
On July 22, 2002, the House of Representatives adopted a Resolution,[2] sponsored by
Representative Felix William D. Fuentebella, which directed the Committee on Justice to conduct
an investigation, in aid of legislation, on the manner of disbursements and expenditures by the
Chief Justice of the Supreme Court of the Judiciary Development Fund (JDF).[3]
On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint[4] (first
impeachment complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices[5]
of this Court for culpable violation of the Constitution, betrayal of the public trust and other high
crimes.[6] The complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora
and Didagen Piang Dilangalen,[7] and was referred to the House Committee on Justice on August
5, 2003[8] in accordance with Section 3(2) of Article XI of the Constitution which reads:
Section 3(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.
The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint
was sufficient in form,[9] but voted to dismiss the same on October 22, 2003 for being insufficient in
substance.[10] To date, the Committee Report to this effect has not yet been sent to the House in
plenary in accordance with the said Section 3(2) of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first complaint or on
October 23, 2003, a day after the House Committee on Justice voted to dismiss it, the second
impeachment complaint[11] was filed with the Secretary General of the House[12] by Representatives
Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third District,
Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded on the alleged results of the
legislative inquiry initiated by above-mentioned House Resolution. This second impeachment
complaint was accompanied by a Resolution of Endorsement/Impeachment signed by at least one-
third (1/3) of all the Members of the House of Representatives.[13]
Thus arose the instant petitions against the House of Representatives, et. al., most of which
petitions contend that the filing of the second impeachment complaint is unconstitutional as it
violates the provision of Section 5 of Article XI of the Constitution that [n]o impeachment
proceedings shall be initiated against the same official more than once within a period of one year.
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a
member of the Integrated Bar of the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition for Certiorari, Prohibition and
Mandamus are of transcendental importance, and that he himself was a victim of the capricious
and arbitrary changes in the Rules of Procedure in Impeachment Proceedings introduced by the
12th Congress,[14] posits that his right to bring an impeachment complaint against then Ombudsman
Aniano Desierto had been violated due to the capricious and arbitrary changes in the House
Impeachment Rules adopted and approved on November 28, 2001 by the House of
Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and
9 thereof be declared unconstitutional; (2) this Court issue a writ of mandamus directing
respondents House of Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of
the Constitution, to return the second impeachment complaint and/or strike it off the records of the
House of Representatives, and to promulgate rules which are consistent with the Constitution; and
(3) this Court permanently enjoin respondent House of Representatives from proceeding with the
second impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers,
alleging that the issues of the case are of transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ perpetually prohibiting respondent House of
Representatives from filing any Articles of Impeachment against the Chief Justice with the Senate;
and for the issuance of a writ perpetually prohibiting respondents Senate and Senate President
Franklin Drilon from accepting any Articles of Impeachment against the Chief Justice or, in the
event that the Senate has accepted the same, from proceeding with the impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens,
taxpayers, lawyers and members of the Integrated Bar of the Philippines, alleging that their petition
for Prohibition involves public interest as it involves the use of public funds necessary to conduct
the impeachment trial on the second impeachment complaint, pray for the issuance of a writ of
prohibition enjoining Congress from conducting further proceedings on said second impeachment
complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that
he has locus standi to bring petitions of this nature in the cases of Chavez v. PCGG[15] and Chavez
v. PEA-Amari Coastal Bay Development Corporation,[16] prays in his petition for Injunction that the
second impeachment complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the
legal profession, pray in their petition for Prohibition for an order prohibiting respondent House of
Representatives from drafting, adopting, approving and transmitting to the Senate the second
impeachment complaint, and respondents De Venecia and Nazareno from transmitting the Articles
of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker
Raul M. Gonzalez, alleging that, as members of the House of Representatives, they have a legal
interest in ensuring that only constitutional impeachment proceedings are initiated, pray in their
petition for Certiorari/Prohibition that the second impeachment complaint and any act proceeding
therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be
protected against all forms of senseless spending of taxpayers money and that they have an
obligation to protect the Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege
in their petition for Certiorari and Prohibition that it is instituted as a class suit and pray that (1) the
House Resolution endorsing the second impeachment complaint as well as all issuances
emanating therefrom be declared null and void; and (2) this Court enjoin the Senate and the
Senate President from taking cognizance of, hearing, trying and deciding the second impeachment
complaint, and issue a writ of prohibition commanding the Senate, its prosecutors and agents to
desist from conducting any proceedings or to act on the impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and
taxpayers, and its co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine
Bar, both allege in their petition, which does not state what its nature is, that the filing of the second
impeachment complaint involves paramount public interest and pray that Sections 16 and 17 of the
House Impeachment Rules and the second impeachment complaint/Articles of Impeachment be
declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the
Philippine Bar Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo
N. Menez, Jr., as a taxpayer, pray in their petition for the issuance of a Temporary Restraining
Order and Permanent Injunction to enjoin the House of Representatives from proceeding with the
second impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by
the Code of Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari
and Prohibition that Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House
Impeachment Rules be declared unconstitutional and that the House of Representatives be
permanently enjoined from proceeding with the second impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and
Prohibition that the House Impeachment Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition
for Prohibition and Injunction which they claim is a class suit filed in behalf of all citizens, citing
Oposa v. Factoran[17] which was filed in behalf of succeeding generations of Filipinos, pray for the
issuance of a writ prohibiting respondents House of Representatives and the Senate from
conducting further proceedings on the second impeachment complaint and that this Court declare
as unconstitutional the second impeachment complaint and the acts of respondent House of
Representatives in interfering with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the
issues in his petition for Prohibition are of national and transcendental significance and that as an
official of the Philippine Judicial Academy, he has a direct and substantial interest in the
unhampered operation of the Supreme Court and its officials in discharging their duties in
accordance with the Constitution, prays for the issuance of a writ prohibiting the House of
Representatives from transmitting the Articles of Impeachment to the Senate and the Senate from
receiving the same or giving the impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for
Prohibition that respondents Fuentebella and Teodoro at the time they filed the second
impeachment complaint, were absolutely without any legal power to do so, as they acted without
jurisdiction as far as the Articles of Impeachment assail the alleged abuse of powers of the Chief
Justice to disburse the (JDF).
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofilea, alleging that
as professors of law they have an abiding interest in the subject matter of their petition for Certiorari
and Prohibition as it pertains to a constitutional issue which they are trying to inculcate in the minds
of their students, pray that the House of Representatives be enjoined from endorsing and the
Senate from trying the Articles of Impeachment and that the second impeachment complaint be
declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but
alleging that the second impeachment complaint is founded on the issue of whether or not the
Judicial Development Fund (JDF) was spent in accordance with law and that the House of
Representatives does not have exclusive jurisdiction in the examination and audit thereof, prays in
his petition To Declare Complaint Null and Void for Lack of Cause of Action and Jurisdiction that the
second impeachment complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the
filing of the second impeachment complaint involve matters of transcendental importance, prays in
its petition for Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings
arising therefrom be declared null and void; (2) respondent House of Representatives be prohibited
from transmitting the Articles of Impeachment to the Senate; and (3) respondent Senate be
prohibited from accepting the Articles of Impeachment and from conducting any proceedings
thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in
their petition for Certiorari/Prohibition that (1) the second impeachment complaint as well as the
resolution of endorsement and impeachment by the respondent House of Representatives be
declared null and void and (2) respondents Senate and Senate President Franklin Drilon be
prohibited from accepting any Articles of Impeachment against the Chief Justice or, in the event
that they have accepted the same, that they be prohibited from proceeding with the impeachment
trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the
eighteen which were filed before this Court,[18] prayed for the issuance of a Temporary Restraining
Order and/or preliminary injunction to prevent the House of Representatives from transmitting the
Articles of Impeachment arising from the second impeachment complaint to the Senate. Petition
bearing docket number G.R. No. 160261 likewise prayed for the declaration of the November 28,
2001 House Impeachment Rules as null and void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on
October 28, 2003, sought similar relief. In addition, petition bearing docket number G.R. No.
160292 alleged that House Resolution No. 260 (calling for a legislative inquiry into the
administration by the Chief Justice of the JDF) infringes on the constitutional doctrine of separation
of powers and is a direct violation of the constitutional principle of fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House of Representatives, a motion
was put forth that the second impeachment complaint be formally transmitted to the Senate, but it
was not carried because the House of Representatives adjourned for lack of quorum,[19] and as
reflected above, to date, the Articles of Impeachment have yet to be forwarded to the Senate.
Before acting on the petitions with prayers for temporary restraining order and/or writ of
preliminary injunction which were filed on or before October 28, 2003, Justices Puno and Vitug
offered to recuse themselves, but the Court rejected their offer. Justice Panganiban inhibited
himself, but the Court directed him to participate.
Without necessarily giving the petitions due course, this Court in its Resolution of October 28,
2003, resolved to (a) consolidate the petitions; (b) require respondent House of Representatives
and the Senate, as well as the Solicitor General, to comment on the petitions not later than 4:30
p.m. of November 3, 2003; (c) set the petitions for oral arguments on November 5, 2003, at 10:00
a.m.; and (d) appointed distinguished legal experts as amici curiae.[20] In addition, this Court called
on petitioners and respondents to maintain the status quo, enjoining all the parties and others
acting for and in their behalf to refrain from committing acts that would render the petitions moot.
Also on October 28, 2003, when respondent House of Representatives through Speaker Jose
C. De Venecia, Jr. and/or its co-respondents, by way of special appearance, submitted a
Manifestation asserting that this Court has no jurisdiction to hear, much less prohibit or enjoin the
House of Representatives, which is an independent and co-equal branch of government under the
Constitution, from the performance of its constitutionally mandated duty to initiate impeachment
cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to
Intervene (Ex Abudante Cautela)[21] and Comment, praying that the consolidated petitions be
dismissed for lack of jurisdiction of the Court over the issues affecting the impeachment
proceedings and that the sole power, authority and jurisdiction of the Senate as the impeachment
court to try and decide impeachment cases, including the one where the Chief Justice is the
respondent, be recognized and upheld pursuant to the provisions of Article XI of the Constitution.[22]
Acting on the other petitions which were subsequently filed, this Court resolved to (a)
consolidate them with the earlier consolidated petitions; (b) require respondents to file their
comment not later than 4:30 p.m. of November 3, 2003; and (c) include them for oral arguments on
November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M.
Drilon, filed a Manifestation stating that insofar as it is concerned, the petitions are plainly
premature and have no basis in law or in fact, adding that as of the time of the filing of the petitions,
no justiciable issue was presented before it since (1) its constitutional duty to constitute itself as an
impeachment court commences only upon its receipt of the Articles of Impeachment, which it had
not, and (2) the principal issues raised by the petitions pertain exclusively to the proceedings in the
House of Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a Petition for Leave to Intervene in G.R. Nos.
160261, 160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution
issued by this Court on October 28, 2003 on the ground that it would unnecessarily put Congress
and this Court in a constitutional deadlock and praying for the dismissal of all the petitions as the
matter in question is not yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R.
No. 160262 a Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition
in Intervention.
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc. filed a Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II
Veterans Legionnaires of the Philippines, Inc. also filed a Petition-in-Intervention with Leave to
Intervene in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and 160310.
The motions for intervention were granted and both Senator Pimentels Comment and Attorneys
Macalintal and Quadras Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of
petitioners, intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo
Benipayo on the principal issues outlined in an Advisory issued by this Court on November 3, 2003,
to wit:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on what issues
and at what time; and whether it should be exercised by this Court at this time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) Houses exclusive power to initiate all cases of impeachment;
e) Senates sole power to try and decide all cases of impeachment;
f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article XI of

the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising from the instant
petitions as well as the myriad arguments and opinions presented for and against the grant of the
reliefs prayed for, this Court has sifted and determined them to be as follows: (1) the threshold and
novel issue of whether or not the power of judicial review extends to those arising from
impeachment proceedings; (2) whether or not the essential pre-requisites for the exercise of the
power of judicial review have been fulfilled; and (3) the substantive issues yet remaining. These
matters shall now be discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of judicial review to
determine the validity of the second impeachment complaint.
This Courts power of judicial review is conferred on the judicial branch of the government in
Section 1, Article VIII of our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
the government. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon by Justice Jose P.
Laurel in the definitive 1936 case of Angara v. Electoral Commission[23] after the effectivity of the
1935 Constitution whose provisions, unlike the present Constitution, did not contain the present
provision in Article VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel
discoursed:
x x x In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to
be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers between
the several 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 limitations 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 government.[24] (Italics in the original;
emphasis and underscoring supplied)
As pointed out by Justice Laurel, this moderating power to determine the proper allocation of
powers of the different branches of government and to direct the course of government along
constitutional channels is inherent in all courts[25] as a necessary consequence of the judicial power
itself, which is the power of the court to settle actual controversies involving rights which are legally
demandable and enforceable.[26]
Thus, even in the United States where the power of judicial review is not explicitly conferred
upon the courts by its Constitution, such power has been set at rest by popular acquiescence for a
period of more than one and a half centuries. To be sure, it was in the 1803 leading case of
Marbury v. Madison[27] that the power of judicial review was first articulated by Chief Justice
Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the
constitution itself is first mentioned; and not the laws of the United States generally, but those only which
shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and strengthens the
principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution
is void; and that courts, as well as other departments, are bound by that instrument.[28] (Italics in the
original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in the 1935
Constitution, the power of judicial review was exercised by our courts to invalidate constitutionally
infirm acts.[29] And as pointed out by noted political law professor and former Supreme Court
Justice Vicente V. Mendoza,[30] the executive and legislative branches of our government in fact
effectively acknowledged this power of judicial review in Article 7 of the Civil Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall not be
excused by disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former shall be void and the
latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not contrary
to the laws or the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,[31] judicial review is indeed an integral
component of the delicate system of checks and balances which, together with the corollary
principle of separation of powers, forms the bedrock of our republican form of government and
insures that its vast powers are utilized only for the benefit of the people for which it serves.
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. x x x 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.[32] (Emphasis and
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, x x x judicial
review is essential for the maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of government through the definition and
maintenance of the boundaries of authority and control between them.[33] To him, [j]udicial review is
the chief, indeed the only, medium of participation or instrument of intervention of the judiciary in
that balancing operation.[34]
To ensure the potency of the power of judicial review to curb grave abuse of discretion by any
branch or instrumentalities of government, the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block letter law the so-called expanded
certiorari jurisdiction of this Court, the nature of and rationale for which are mirrored in the following
excerpt from the sponsorship speech of its proponent, former Chief Justice Constitutional
Commissioner Roberto Concepcion:
xxx
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by
law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during martial law. As
a matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed
regime was marred considerably by the circumstance that in a number of cases against the
government, which then had no legal defense at all, the solicitor general set up the defense of political
questions and got away with it. As a consequence, certain principles concerning particularly the writ of
habeas corpus, that is, the authority of courts to order the release of political detainees, and other matters
related to the operation and effect of martial law failed because the government set up the defense of political
question. And the Supreme Court said: Well, since it is political, we have no authority to pass upon it. The
Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did
not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further
violations thereof during the martial law regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the
government as well as those of its officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its officials has acted without jurisdiction or
in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess
of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on
matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter evade the
duty to settle matters of this nature, by claiming that such matters constitute a political question.[35]
(Italics in the original; emphasis and underscoring supplied)
To determine the merits of the issues raised in the instant petitions, this Court must necessarily
turn to the Constitution itself which employs the well-settled principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the Constitution must be given
their ordinary meaning except where technical terms are employed. Thus, in J.M. Tuason & Co.,
Inc. v. Land Tenure Administration,[36] this Court, speaking through Chief Justice Enrique Fernando,
declared:
We look to the language of the document itself in our search for its meaning. We do not of course stop
there, but that is where we begin. It is to be assumed that the words in which constitutional provisions
are couched express the objective sought to be attained. They are to be given their ordinary meaning
except where technical terms are employed in which case the significance thus attached to them
prevails. As the Constitution is not primarily a lawyers document, it being essential for the rule of law to
obtain that it should ever be present in the peoples consciousness, its language as much as possible should be
understood in the sense they have in common use. What it says according to the text of the provision to be
construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Thus these are the cases where the need for construction is
reduced to a minimum.[37] (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should
be interpreted in accordance with the intent of its framers. And so did this Court apply this principle
in Civil Liberties Union v. Executive Secretary[38] in this wise:
A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A
doubtful provision will be examined in the light of the history of the times, and the condition and
circumstances under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to make the words consonant to that reason
and calculated to effect that purpose.[39] (Emphasis and underscoring supplied supplied)
As it did in Nitafan v. Commissioner on Internal Revenue[40] where, speaking through Madame

Justice Amuerfina A. Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people adopting it should be
given effect. The primary task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be
safely assumed that the people in ratifying the Constitution were guided mainly by the explanation
offered by the framers.[41] (Emphasis and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in
Chiongbian v. De Leon,[42] this Court, through Chief Justice Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could not have dedicated a provision of our
Constitution merely for the benefit of one person without considering that it could also affect others.
When they adopted subsection 2, they permitted, if not willed, that said provision should function to
the full extent of its substance and its terms, not by itself alone, but in conjunction with all other
provisions of that great document.[43] (Emphasis and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,[44] this Court affirmed that:
It is a well-established rule in constitutional construction that no one provision of the Constitution is to

be separated from all the others, to be considered alone, but that all the provisions bearing upon a
particular subject are to be brought into view and to be so interpreted as to effectuate the great
purposes of the instrument. Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be
allowed to defeat another, if by any reasonable construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which
will render every word operative, rather than one which may make the words idle and nugatory.[45] (Emphasis
supplied)
If, however, the plain meaning of the word is not found to be clear, resort to other aids is
available. In still the same case of Civil Liberties Union v. Executive Secretary, this Court
expounded:
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be
had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution
when the meaning is clear. Debates in the constitutional convention "are of value as showing the views of
the individual members, and as indicating the reasons for their votes, but they give us no light as to the views
of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law. We think it safer to construe the constitution from
what appears upon its face." The proper interpretation therefore depends more on how it was
understood by the people adopting it than in the framers's understanding thereof.[46] (Emphasis and
It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential

application of the power of judicial review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the Constitution has excluded
impeachment proceedings from the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is
a political action which cannot assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the reach of judicial review.[47]
For his part, intervenor Senator Pimentel contends that the Senates sole power to try
impeachment cases[48] (1) entirely excludes the application of judicial review over it; and (2)
necessarily includes the Senates power to determine constitutional questions relative to
impeachment proceedings.[49]
In furthering their arguments on the proposition that impeachment proceedings are outside the
scope of judicial review, respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel
rely heavily on American authorities, principally the majority opinion in the case of Nixon v. United
States.[50] Thus, they contend that the exercise of judicial review over impeachment proceedings is
inappropriate since it runs counter to the framers decision to allocate to different fora the powers to
try impeachments and to try crimes; it disturbs the system of checks and balances, under which
impeachment is the only legislative check on the judiciary; and it would create a lack of finality and
difficulty in fashioning relief.[51] Respondents likewise point to deliberations on the US Constitution
to show the intent to isolate judicial power of review in cases of impeachment.
Respondents and intervenors reliance upon American jurisprudence, the American Constitution
and American authorities cannot be credited to support the proposition that the Senates sole
power to try and decide impeachment cases, as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment of all issues pertaining to
impeachment to the legislature, to the total exclusion of the power of judicial review to check and
restrain any grave abuse of the impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the inherently judicial power to determine
constitutional questions incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the American Constitution, are of
dubious application for these are no longer controlling within our jurisdiction and have only limited
persuasive merit insofar as Philippine constitutional law is concerned. As held in the case of Garcia
vs. COMELEC,[52] [i]n resolving constitutional disputes, [this Court] should not be beguiled by
foreign jurisprudence some of which are hardly applicable because they have been dictated by
different constitutional settings and needs.[53] Indeed, although the Philippine Constitution can trace
its origins to that of the United States, their paths of development have long since diverged. In the
colorful words of Father Bernas, [w]e have cut the umbilical cord.
The major difference between the judicial power of the Philippine Supreme Court and that of
the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the
U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court
and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty,
and it was given an expanded definition to include the power to correct any grave abuse of
discretion on the part of any government branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the Philippine
Constitution with respect to the power of the House of Representatives over impeachment
proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of
Representatives without limitation,[54] our Constitution, though vesting in the House of
Representatives the exclusive power to initiate impeachment cases,[55] provides for several
limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI
thereof. These limitations include the manner of filing, required vote to impeach, and the one year
bar on the impeachment of one and the same official.
Respondents are also of the view that judicial review of impeachments undermines their finality
and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court
to exercise judicial statesmanship on the principle that whenever possible, the Court should defer
to the judgment of the people expressed legislatively, recognizing full well the perils of judicial
willfulness and pride.[56]
But did not the people also express their will when they instituted the above-mentioned
safeguards in the Constitution? This shows that the Constitution did not intend to leave the matter
of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined
limits, or in the language of Baker v. Carr,[57] judicially discoverable standards for determining the
validity of the exercise of such discretion, through the power of judicial review.
The cases of Romulo v. Yniguez[58] and Alejandrino v. Quezon,[59] cited by respondents in
support of the argument that the impeachment power is beyond the scope of judicial review, are not
in point. These cases concern the denial of petitions for writs of mandamus to compel the
legislature to perform non-ministerial acts, and do not concern the exercise of the power of judicial
review.
There is indeed a plethora of cases in which this Court exercised the power of judicial review
over congressional action. Thus, in Santiago v. Guingona, Jr.,[60] this Court ruled that it is well within
the power and jurisdiction of the Court to inquire whether the Senate or its officials committed a
violation of the Constitution or grave abuse of discretion in the exercise of their functions and
prerogatives. In Tanada v. Angara,[61] in seeking to nullify an act of the Philippine Senate on the
ground that it contravened the Constitution, it held that the petition raises a justiciable controversy
and that when an action of the legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. In
Bondoc v. Pineda,[62] this Court declared null and void a resolution of the House of Representatives
withdrawing the nomination, and rescinding the election, of a congressman as a member of the
House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng
v. Mitra,[63] it held that the resolution of whether the House representation in the Commission on
Appointments was based on proportional representation of the political parties as provided in
Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson,[64] it held
that the act of the House of Representatives in removing the petitioner from the Commission on
Appointments is subject to judicial review. In Tanada v. Cuenco,[65] it held that although under the
Constitution, the legislative power is vested exclusively in Congress, this does not detract from the
power of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral
Commission,[66] it ruled that confirmation by the National Assembly of the election of any member,
irrespective of whether his election is contested, is not essential before such member-elect may
discharge the duties and enjoy the privileges of a member of the National Assembly.
Finally, 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.
[67]
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.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts power of judicial review, like
almost all powers conferred by the Constitution, is subject to several limitations, namely: (1) an
actual case or controversy calling for the exercise of judicial power; (2) the person challenging the
act must have standing to challenge; he must have a personal and substantial interest in the case
such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the
question of constitutionality must be raised at the earliest possible opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.
x x x 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 government.[68] (Italics in the original)
Standing
Locus standi or legal standing or 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 the presentation of issues upon which the court depends for illumination of difficult
constitutional questions.[69]
Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not
have standing since only the Chief Justice has sustained and will sustain direct personal injury.
Amicus curiae former Justice Minister and Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that petitioners have standing since this
Court had, in the past, accorded standing to taxpayers, voters, concerned citizens, legislators in
cases involving paramount public interest[70] and transcendental importance,[71] and that procedural
matters are subordinate to the need 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.[72] Amicus curiae Dean Raul Pangalangan of the U.P.
College of Law is of the same opinion, citing transcendental importance and the well-entrenched
rule exception that, when the real party in interest is unable to vindicate his rights by seeking the
same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot himself invoke
the jurisdiction of this Court, the courts will grant petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and the rule on
standing, for the former is a concept of civil procedure[73] while the latter has constitutional
underpinnings.[74] In view of the arguments set forth regarding standing, it behooves the Court to
reiterate the ruling in Kilosbayan, Inc. v. Morato[75] to clarify what is meant by locus standi and to
distinguish it from real party-in-interest.
The difference between the rule on standing and real party in interest has been noted by authorities thus: It is
important to note . . . that standing because of its constitutional and public policy underpinnings, is very
different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to
sue. Although all three requirements are directed towards ensuring that only certain parties can maintain an
action, standing restrictions require a partial consideration of the merits, as well as broader policy concerns
relating to the proper role of the judiciary in certain areas.
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 so largely depends for
illumination of difficult constitutional questions.
xxx
On the other hand, the question as to "real party in interest" is whether he is the party who would be benefited
or injured by the judgment, or the 'party entitled to the avails of the suit.[76] (Citations omitted)
While rights personal to the Chief Justice may have been injured by the alleged
unconstitutional acts of the House of Representatives, none of the petitioners before us asserts a
violation of the personal rights of the Chief Justice. On the contrary, they invariably invoke the
vindication of their own rights as taxpayers; members of Congress; citizens, individually or in a
class suit; and members of the bar and of the legal profession which were supposedly violated by
the alleged unconstitutional acts of the House of Representatives.
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.
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.[77] In fine, when the proceeding involves the assertion of
a public right,[78] 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.[79] 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.[80]
At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained.[81] 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.[82] 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.[83]
While an association has legal personality to represent its members,[84] especially when it is
composed of substantial taxpayers and the outcome will affect their vital interests,[85] the mere
invocation by the Integrated Bar of the Philippines or any member of the legal profession of the
duty to preserve the rule of law and nothing more, although undoubtedly true, does not suffice to
clothe it with standing. Its interest is too general. It is shared by other groups and the whole
citizenry. However, a reading of the petitions shows that it has advanced constitutional issues which
deserve the attention of this Court in view of their seriousness, novelty and weight as precedents.
[86]
It, therefore, behooves this Court to relax the rules on standing and to resolve the issues
presented by it.
In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening
must be sufficiently numerous to fully protect the interests of all concerned[87] to enable the court to
deal properly with all interests involved in the suit,[88] for a judgment in a class suit, whether
favorable or unfavorable to the class, is, under the res judicata principle, binding on all members of
the class whether or not they were before the court.[89] Where it clearly appears that not all interests
can be sufficiently represented as shown by the divergent issues raised in the numerous petitions
before this Court, G.R. No. 160365 as a class suit ought to fail. Since petitioners additionally allege
standing as citizens and taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental
importance, while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the following instructive
determinants formulated by former Supreme Court Justice Florentino P. Feliciano are instructive:
(1) the character of the funds or other assets involved in the case; (2) the presence of a clear case
of disregard of a constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other party with a more direct and
specific interest in raising the questions being raised.[90] Applying these determinants, this Court is
satisfied that the issues raised herein are indeed of transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of transcendental significance to the people,
as when the issues raised are of paramount importance to the public.[91] Such liberality does not,
however, mean that the requirement that a party should have an interest in the matter is totally
eliminated. A party must, at the very least, still plead the existence of such interest, it not being one
of which courts can take judicial notice. In petitioner Vallejos case, he failed to allege any interest in
the case. He does not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires
an intervenor to possess a legal interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an officer thereof. While intervention is
not a matter of right, it may be permitted by the courts when the applicant shows facts which satisfy
the requirements of the law authorizing intervention.[92]
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadras case, they seek to join
petitioners Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise
the same issues and the same standing, and no objection on the part of petitioners Candelaria, et.
al. has been interposed, this Court as earlier stated, granted the Motion for Leave of Court to
Intervene and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to
join petitioner Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging
that they will suffer if this insidious scheme of the minority members of the House of
Representatives is successful, this Court found the requisites for intervention had been complied
with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310 were of transcendental importance, World War II Veterans
Legionnaires of the Philippines, Inc. filed a Petition-in-Intervention with Leave to Intervene to raise
the additional issue of whether or not the second impeachment complaint against the Chief Justice
is valid and based on any of the grounds prescribed by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et
al. and World War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the
matter in litigation the respective motions to intervene were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of
making of record and arguing a point of view that differs with Senate President Drilons. He alleges
that submitting to this Courts jurisdiction as the Senate President does will undermine the
independence of the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives. Clearly, Senator Pimentel
possesses a legal interest in the matter in litigation, he being a member of Congress against which
the herein petitions are directed. For this reason, and to fully ventilate all substantial issues relating
to the matter at hand, his Motion to Intervene was granted and he was, as earlier stated, allowed to
argue.
Lastly, as to Jaime N. Sorianos motion to intervene, the same must be denied for, while he
asserts an interest as a taxpayer, he failed to meet the standing requirement for bringing taxpayers
suits as set forth in Dumlao v. Comelec,[93] to wit:
x x x While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their
Petition do said petitioners allege that their tax money is being extracted and spent in violation of specific
constitutional protection against abuses of legislative power, or that there is a misapplication of such funds by
respondent COMELEC, or that public money is being deflected to any improper purpose. Neither do
petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or
unconstitutional law.[94] (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners
will result in illegal disbursement of public funds or in public money being deflected to any improper
purpose. Additionally, his mere interest as a member of the Bar does not suffice to clothe him with
standing.
Ripeness and Prematurity
In Tan v. Macapagal,[95] this Court, through Chief Justice Fernando, held that for a case to be
considered ripe for adjudication, it is a prerequisite that something had by then been accomplished
or performed by either branch before a court may come into the picture.[96] Only then may the
courts pass on the validity of what was done, if and when the latter is challenged in an appropriate
legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of the second
impeachment complaint against the Chief Justice in accordance with the House Impeachment
Rules adopted by the 12th Congress, the constitutionality of which is questioned. The questioned
acts having been carried out, i.e., the second impeachment complaint had been filed with the
House of Representatives and the 2001 Rules have already been already promulgated and
enforced, the prerequisite that the alleged unconstitutional act should be accomplished and
performed before suit, as Tan v. Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant petitions are premature.
Amicus curiae former Senate President Jovito R. Salonga opines that there may be no urgent need
for this Court to render a decision at this time, it being the final arbiter on questions of
constitutionality anyway. He thus recommends that all remedies in the House and Senate should
first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to
this Court to take judicial notice of on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines that the House Impeachment
Rules provide for an opportunity for members to raise constitutional questions themselves when the
Articles of Impeachment are presented on a motion to transmit to the same to the Senate. The
dean maintains that even assuming that the Articles are transmitted to the Senate, the Chief
Justice can raise the issue of their constitutional infirmity by way of a motion to dismiss.
The deans position does not persuade. First, the withdrawal by the Representatives of their
signatures would not, by itself, cure the House Impeachment Rules of their constitutional infirmity.
Neither would such a withdrawal, by itself, obliterate the questioned second impeachment
complaint since it would only place it under the ambit of Sections 3(2) and (3) of Article XI of the
Constitution[97] and, therefore, petitioners would continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies from either or both Houses of
Congress before coming to this Court is shown by the fact that, as previously discussed, neither the
House of Representatives nor the Senate is clothed with the power to rule with definitiveness on
the issue of constitutionality, whether concerning impeachment proceedings or otherwise, as said
power is exclusively vested in the judiciary by the earlier quoted Section I, Article VIII of the
Constitution. Remedy cannot be sought from a body which is bereft of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,[98] Chief Justice Roberto Concepcion defined the term
political question, viz:
[T]he term political question connotes, in legal parlance, what it means in ordinary parlance, namely, a
question of policy. In other words, in the language of Corpus Juris Secundum, it refers to those questions
which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the Legislature or executive branch of the
Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.[99]
(Italics in the original)
Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason,
this Court vacillated on its stance of taking cognizance of cases which involved political questions.
In some cases, this Court hid behind the cover of the political question doctrine and refused to
exercise its power of judicial review.[100] In other cases, however, despite the seeming political
nature of the therein issues involved, this Court assumed jurisdiction whenever it found
constitutionally imposed limits on powers or functions conferred upon political bodies.[101] Even in
the landmark 1988 case of Javellana v. Executive Secretary[102] which raised the issue of whether
the 1973 Constitution was ratified, hence, in force, this Court shunted the political question doctrine
and took cognizance thereof. Ratification by the people of a Constitution is a political question, it
being a question decided by the people in their sovereign capacity.
The frequency with which this Court invoked the political question doctrine to refuse to take
jurisdiction over certain cases during the Marcos regime motivated Chief Justice Concepcion, when
he became a Constitutional Commissioner, to clarify this Courts power of judicial review and its
application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary
is the weakest among the three major branches of the service. Since the legislature holds the purse and the
executive the sword, the judiciary has nothing with which to enforce its decisions or commands except the
power of reason and appeal to conscience which, after all, reflects the will of God, and is the most powerful
of all other powers without exception. x x x And so, with the bodys indulgence, I will proceed to read the
provisions drafted by the Committee on the Judiciary.
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by
law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part or instrumentality of the government.
Fellow Members of this Commission, this is actually a product of our experience during martial law. As a
matter of fact, it has some antecedents in the past, but the role of the judiciary during the deposed regime
was marred considerably by the circumstance that in a number of cases against the government, which
then had no legal defense at all, the solicitor general set up the defense of political questions and got
away with it. As a consequence, certain principles concerning particularly the writ of habeas corpus,
that is, the authority of courts to order the release of political detainees, and other matters related to
the operation and effect of martial law failed because the government set up the defense of political
question. And the Supreme Court said: Well, since it is political, we have no authority to pass upon it. The
Committee on the Judiciary feels that this was not a proper solution of the questions involved. It did
not merely request an encroachment upon the rights of the people, but it, in effect, encouraged further
violations thereof during the martial law regime. I am sure the members of the Bar are familiar with this
situation. But for the benefit of the Members of the Commission who are not lawyers, allow me to explain. I
will start with a decision of the Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice, if
I am not mistaken. Martial law was announced on September 22, although the proclamation was dated
September 21. The obvious reason for the delay in its publication was that the administration had
apprehended and detained prominent newsmen on September 21. So that when martial law was announced on
September 22, the media hardly published anything about it. In fact, the media could not publish any story
not only because our main writers were already incarcerated, but also because those who succeeded them in
their jobs were under mortal threat of being the object of wrath of the ruling party. The 1971 Constitutional
Convention had begun on June 1, 1971 and by September 21 or 22 had not finished the Constitution; it had
barely agreed in the fundamentals of the Constitution. I forgot to say that upon the proclamation of martial
law, some delegates to that 1971 Constitutional Convention, dozens of them, were picked up. One of them
was our very own colleague, Commissioner Calderon. So, the unfinished draft of the Constitution was taken
over by representatives of Malacaang. In 17 days, they finished what the delegates to the 1971 Constitutional
Convention had been unable to accomplish for about 14 months. The draft of the 1973 Constitution was
presented to the President around December 1, 1972, whereupon the President issued a decree calling a
plebiscite which suspended the operation of some provisions in the martial law decree which prohibited
discussions, much less public discussions of certain matters of public concern. The purpose was presumably
to allow a free discussion on the draft of the Constitution on which a plebiscite was to be held sometime in
January 1973. If I may use a word famous by our colleague, Commissioner Ople, during the interregnum,
however, the draft of the Constitution was analyzed and criticized with such a telling effect that Malacaang
felt the danger of its approval. So, the President suspended indefinitely the holding of the plebiscite and
announced that he would consult the people in a referendum to be held from January 10 to January 15. But
the questions to be submitted in the referendum were not announced until the eve of its scheduled beginning,
under the supposed supervision not of the Commission on Elections, but of what was then designated as
citizens assemblies or barangays. Thus the barangays came into existence. The questions to be propounded
were released with proposed answers thereto, suggesting that it was unnecessary to hold a plebiscite because
the answers given in the referendum should be regarded as the votes cast in the plebiscite. Thereupon, a
motion was filed with the Supreme Court praying that the holding of the referendum be suspended. When the
motion was being heard before the Supreme Court, the Minister of Justice delivered to the Court a
proclamation of the President declaring that the new Constitution was already in force because the
overwhelming majority of the votes cast in the referendum favored the Constitution. Immediately after the
departure of the Minister of Justice, I proceeded to the session room where the case was being heard. I then
informed the Court and the parties the presidential proclamation declaring that the 1973 Constitution had
been ratified by the people and is now in force.
A number of other cases were filed to declare the presidential proclamation null and void. The main
defense put up by the government was that the issue was a political question and that the court had no
jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January 10 to January 15, the vast majority ratified the
draft of the Constitution. Note that all members of the Supreme Court were residents of Manila, but none of
them had been notified of any referendum in their respective places of residence, much less did they
participate in the alleged referendum. None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the Court felt
that there had been no referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big difference between a referendum and a
plebiscite. But another group of justices upheld the defense that the issue was a political question.
Whereupon, they dismissed the case. This is not the only major case in which the plea of political
question was set up. There have been a number of other cases in the past.
x x x The defense of the political question was rejected because the issue was clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to perform its functions, it faced the following questions:
What is judicial power? What is a political question?
The Supreme Court, like all other courts, has one main function: to settle actual controversies involving
conflicts of rights which are demandable and enforceable. There are rights which are guaranteed by law but
cannot be enforced by a judiciary party. In a decided case, a husband complained that his wife was unwilling
to perform her duties as a wife. The Court said: We can tell your wife what her duties as such are and that she
is bound to comply with them, but we cannot force her physically to discharge her main marital duty to her
husband. There are some rights guaranteed by law, but they are so personal that to enforce them by actual
compulsion would be highly derogatory to human dignity.
This is why the first part of the second paragraph of Section I provides that:
Judicial power includes the duty of courts to settle actual controversies involving rights which are legally
demandable or enforceable . . .
The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential system of
government, the Supreme Court has, also another important function. The powers of government are
generally considered divided into three branches: the Legislative, the Executive and the Judiciary.
Each one is supreme within its own sphere and independent of the others. Because of that supremacy
power to determine whether a given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the
government as well as those of its officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its officials has acted without jurisdiction or
in excess of jurisdiction, or so capriciously as to constitute an abuse of discretion amounting to excess
of jurisdiction or lack of jurisdiction. This is not only a judicial power but a duty to pass judgment on
matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter
evade the duty to settle matters of this nature, by claiming that such matters constitute a political
question.
I have made these extended remarks to the end that the Commissioners may have an initial food for thought
on the subject of the judiciary.[103] (Italics in the original; emphasis supplied)
During the deliberations of the Constitutional Commission, Chief Justice Concepcion further
clarified the concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term judicial power but judicial power is not vested in the
Supreme Court alone but also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political questions with
jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression judicial power?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is a
question as to whether the government had authority or had abused its authority to the extent of
lacking jurisdiction or excess of jurisdiction, that is not a political question. Therefore, the court has
the duty to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court according to the
new numerical need for votes.
On another point, is it the intention of Section 1 to do away with the political question doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a lack of
jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the political
question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to define what is judicial power. But the
Gentleman will notice it says, judicial power includes and the reason being that the definition that we
might make may not cover all possible areas.
FR. BERNAS. So, this is not an attempt to solve the problems arising from the political question
doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are beyond
the pale of judicial power.[104] (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear
that judicial power is not only a power; it is also a duty, a duty which cannot be abdicated by the
mere specter of this creature called the political question doctrine. Chief Justice Concepcion
hastened to clarify, however, that Section 1, Article VIII was not intended to do away with truly
political questions. From this clarification it is gathered that there are two species of political
questions: (1) truly political questions and (2) those which are not truly political questions.
Truly political questions are thus beyond judicial review, the reason for respect of the doctrine
of separation of powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of
the Constitution, courts can review questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this
Court has in fact in a number of cases taken jurisdiction over questions which are not truly political
following the effectivity of the present Constitution.
In Marcos v. Manglapus,[105] this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court, under previous constitutions, would have normally left to the political
departments to decide.[106] x x x
In Bengzon v. Senate Blue Ribbon Committee,[107] through Justice Teodoro Padilla, this Court
declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution.
Moreover, as held in a recent case, (t)he political question doctrine neither interposes an obstacle to
judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has
been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution,
although said provision by no means does away with the applicability of the principle in appropriate
cases.[108] (Emphasis and underscoring supplied)
And in Daza v. Singson,[109] speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is
that, even if we were to assume that the issue presented before us was political in nature, we would still not
be precluded from resolving it under the expanded jurisdiction conferred upon us that now covers, in proper
cases, even the political question.[110] x x x (Emphasis and underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable political questions and
non-justiciable political questions, however. Identification of these two species of political questions
may be problematic. There has been no clear standard. The American case of Baker v. Carr[111]
attempts to provide some:
x x x Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of
judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an
initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a courts
undertaking independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for questioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by various departments on one question.
[112]
Of these standards, the more reliable have been the first three: (1) a textually demonstrable
constitutional commitment of the issue to a coordinate political department; (2) the lack of judicially
discoverable and manageable standards for resolving it; and (3) the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial discretion. These standards
are not separate and distinct concepts but are interrelated to each in that the presence of one
strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American concept of judicial review
is radically different from our current concept, for Section 1, Article VIII of the Constitution provides
our courts with far less discretion in determining whether they should pass upon a constitutional
issue.
In our jurisdiction, the determination of a truly political question from a non-justiciable political
question lies in the answer to the question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are, then our courts are duty-bound to
examine whether the branch or instrumentality of the government properly acted within such limits.
This Court shall thus now apply this standard to the present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment complaint constitute valid
impeachable offenses under the Constitution.
II. Whether the second impeachment complaint was filed in accordance with Section 3(4), Article
XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal
autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th
Congress are unconstitutional for violating the provisions of Section 3, Article XI of the
Constitution.
V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the
Constitution.
The first issue goes into the merits of the second impeachment complaint over which this Court
has no jurisdiction. More importantly, any discussion of this issue would require this Court to make
a determination of what constitutes an impeachable offense. Such a determination is a purely
political question which the Constitution has left to the sound discretion of the legislation. Such an
intent is clear from the deliberations of the Constitutional Commission.[113]
Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment,
two of these, namely, other high crimes and betrayal of public trust, elude a precise definition. In
fact, an examination of the records of the 1986 Constitutional Commission shows that the framers
could find no better way to approximate the boundaries of betrayal of public trust and other high
crimes than by alluding to both positive and negative examples of both, without arriving at their
clear cut definition or even a standard therefor.[114] Clearly, the issue calls upon this court to decide
a non-justiciable political question which is beyond the scope of its judicial power under Section 1,
Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a

governmental act should be avoided whenever possible. Thus, in the case of Sotto v. Commission
on Elections,[115] this Court held:
x x x It is a well-established rule that a court should not pass upon a constitutional question and decide a law
to be unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if the
record also presents some other ground upon which the court may rest its judgment, that course will be
adopted and the constitutional question will be left for consideration until a case arises in which a
decision upon such question will be unavoidable.[116] [Emphasis and underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,[117] where this
Court invalidated Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative
of due process, to wit:
It has been established that this Court will assume jurisdiction over a constitutional question only if it is
shown that the essential requisites of a judicial inquiry into such a question are first satisfied. Thus,
there must be an actual case or controversy involving a conflict of legal rights susceptible of judicial
determination, the constitutional question must have been opportunely raised by the proper party, and the
resolution of the question is unavoidably necessary to the decision of the case itself.[118] [Emphasis
supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable
and is the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second
impeachment complaint, collectively raise several constitutional issues upon which the outcome of
this controversy could possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided by the related cannon of
adjudication that the court should not form a rule of constitutional law broader than is required by
the precise facts to which it is applied.[119]
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the
second impeachment complaint is invalid since it directly resulted from a Resolution[120] calling for a
legislative inquiry into the JDF, which Resolution and legislative inquiry petitioners claim to likewise
be unconstitutional for being: (a) a violation of the rules and jurisprudence on investigations in aid
of legislation; (b) an open breach of the doctrine of separation of powers; (c) a violation of the
constitutionally mandated fiscal autonomy of the judiciary; and (d) an assault on the independence
of the judiciary.[121]
Without going into the merits of petitioners Alfonso, et. al.s claims, it is the studied opinion of
this Court that the issue of the constitutionality of the said Resolution and resulting legislative
inquiry is too far removed from the issue of the validity of the second impeachment complaint.
Moreover, the resolution of said issue would, in the Courts opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of legislative inquiries in general,
which would thus be broader than is required by the facts of these consolidated cases. This opinion
is further strengthened by the fact that said petitioners have raised other grounds in support of their
petition which would not be adversely affected by the Courts ruling.
En passant, this Court notes that a standard for the conduct of legislative inquiries has already
been enunciated by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,[122] viz:
The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct inquiries in aid
of legislation. Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid
of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.
The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore absolute or
unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided
therein, the investigation must be in aid of legislation in accordance with its duly published rules of procedure
and that the rights of persons appearing in or affected by such inquiries shall be respected. It follows then that
the right rights of persons under the Bill of Rights must be respected, including the right to due process and
the right not be compelled to testify against ones self.[123]
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining
the original petition of petitioners Candelaria, et. al., introduce the new argument that since the
second impeachment complaint was verified and filed only by Representatives Gilberto Teodoro, Jr.
and Felix William Fuentebella, the same does not fall under the provisions of Section 3 (4), Article
XI of the Constitution which reads:
Section 3(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.
They assert that while at least 81 members of the House of Representatives signed a
Resolution of Endorsement/Impeachment, the same did not satisfy the requisites for the application
of the afore-mentioned section in that the verified complaint or resolution of impeachment was not
filed by at least one-third of all the Members of the House. With the exception of Representatives
Teodoro and Fuentebella, the signatories to said Resolution are alleged to have verified the same
merely as a Resolution of Endorsement. Intervenors point to the Verification of the Resolution of
Endorsement which states that:
We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned Complaint of

Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x[124]
Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for
said second impeachment complaint to automatically become the Articles of Impeachment and for
trial in the Senate to begin forthwith, is that the verified complaint be filed, not merely endorsed, by
at least one-third of the Members of the House of Representatives. Not having complied with this
requirement, they concede that the second impeachment complaint should have been calendared
and referred to the House Committee on Justice under Section 3(2), Article XI of the Constitution,
viz:
Section 3(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.
Intervenors foregoing position is echoed by Justice Maambong who opined that for Section 3
(4), Article XI of the Constitution to apply, there should be 76 or more representatives who signed
and verified the second impeachment complaint as complainants, signed and verified the
signatories to a resolution of impeachment. Justice Maambong likewise asserted that the
Resolution of Endorsement/Impeachment signed by at least one-third of the members of the House
of Representatives as endorsers is not the resolution of impeachment contemplated by the
Constitution, such resolution of endorsement being necessary only from at least one Member
whenever a citizen files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit
the scope of the constitutional issues to the provisions on impeachment, more compelling
considerations militate against its adoption as the lis mota or crux of the present controversy. Chief
among this is the fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No. 160262,
have raised this issue as a ground for invalidating the second impeachment complaint. Thus, to
adopt this additional ground as the basis for deciding the instant consolidated petitions would not
only render for naught the efforts of the original petitioners in G.R. No. 160262, but the efforts
presented by the other petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary for the determination
of the instant cases is made easier by the fact that said intervenors Macalintal and Quadra have
joined in the petition of Candelaria, et. al., adopting the latters arguments and issues as their own.
Consequently, they are not unduly prejudiced by this Courts decision.
In sum, this Court holds that the two remaining issues, inextricably linked as they are,
constitute the very lis mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of
the House Impeachment Rules adopted by the 12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the
second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate,
sitting as an impeachment court, has the sole power to try and decide all cases of impeachment.
Again, this Court reiterates that the power of judicial review includes the power of review over
justiciable issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that [t]here is a moral
compulsion for the Court to not assume jurisdiction over the impeachment because all the
Members thereof are subject to impeachment.[125] But this argument is very much like saying the
Legislature has a moral compulsion not to pass laws with penalty clauses because Members of the
House of Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option before this Court.
Adjudication may not be declined, because this Court is not legally disqualified. Nor can jurisdiction
be renounced as there is no other tribunal to which the controversy may be referred.[126] Otherwise,
this Court would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the Constitution. More
than being clothed with authority thus, this Court is duty-bound to take cognizance of the instant
petitions.[127] In the august words of amicus curiae Father Bernas, jurisdiction is not just a power; it
is a solemn duty which may not be renounced. To renounce it, even if it is vexatious, would be a
dereliction of duty.
Even in cases where it is an interested party, the Court under our system of government cannot
inhibit itself and must rule upon the challenge because no other office has the authority to do so.[128]
On the occasion that this Court had been an interested party to the controversy before it, it has
acted upon the matter not with officiousness but in the discharge of an unavoidable duty and, as
always, with detachment and fairness.[129] After all, by [his] appointment to the office, the public has
laid on [a member of the judiciary] their confidence that [he] is mentally and morally fit to pass upon
the merits of their varied contentions. For this reason, they expect [him] to be fearless in [his]
pursuit to render justice, to be unafraid to displease any person, interest or power and to be
equipped with a moral fiber strong enough to resist the temptations lurking in [his] office.[130]
The duty to exercise the power of adjudication regardless of interest had already been settled
in the case of Abbas v. Senate Electoral Tribunal.[131] In that case, the petitioners filed with the
respondent Senate Electoral Tribunal a Motion for Disqualification or Inhibition of the Senators-
Members thereof from the hearing and resolution of SET Case No. 002-87 on the ground that all of
them were interested parties to said case as respondents therein. This would have reduced the
Tribunals membership to only its three Justices-Members whose disqualification was not sought,
leaving them to decide the matter. This Court held:
Where, as here, a situation is created which precludes the substitution of any Senator sitting in the Tribunal
by any of his other colleagues in the Senate without inviting the same objections to the substitute's
competence, the proposed mass disqualification, if sanctioned and ordered, would leave the Tribunal no
alternative but to abandon a duty that no other court or body can perform, but which it cannot lawfully
discharge if shorn of the participation of its entire membership of Senators.
To our mind, this is the overriding consideration that the Tribunal be not prevented from discharging a duty
which it alone has the power to perform, the performance of which is in the highest public interest as
evidenced by its being expressly imposed by no less than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could not have
been unaware of the possibility of an election contest that would involve all Senatorselect, six of whom
would inevitably have to sit in judgment thereon. Indeed, such possibility might surface again in the wake of
the 1992 elections when once more, but for the last time, all 24 seats in the Senate will be at stake. Yet the
Constitution provides no scheme or mode for settling such unusual situations or for the substitution of
Senators designated to the Tribunal whose disqualification may be sought. Litigants in such situations must
simply place their trust and hopes of vindication in the fairness and sense of justice of the Members of the
Tribunal. Justices and Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal may inhibit
or disqualify himself from sitting in judgment on any case before said Tribunal. Every Member of the
Tribunal may, as his conscience dictates, refrain from participating in the resolution of a case where he
sincerely feels that his personal interests or biases would stand in the way of an objective and impartial
judgment. What we are merely saying is that in the light of the Constitution, the Senate Electoral Tribunal
cannot legally function as such, absent its entire membership of Senators and that no amendment of its Rules
can confer on the three Justices-Members alone the power of valid adjudication of a senatorial election
contest.
More recently in the case of Estrada v. Desierto,[132] it was held that:
Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing short of
pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law. Disqualification
of a judge is a deprivation of his judicial power. And if that judge is the one designated by the Constitution to
exercise the jurisdiction of his court, as is the case with the Justices of this Court, the deprivation of his or
their judicial power is equivalent to the deprivation of the judicial power of the court itself. It affects the very
heart of judicial independence. The proposed mass disqualification, if sanctioned and ordered, would leave
the Court no alternative but to abandon a duty which it cannot lawfully discharge if shorn of the participation
of its entire membership of Justices.[133] (Italics in the original)
Besides, there are specific safeguards already laid down by the Court when it exercises its
power of judicial review.
In Demetria v. Alba,[134] this Court, through Justice Marcelo Fernan cited the seven pillars of
limitations of the power of judicial review, enunciated by US Supreme Court Justice Brandeis in
Ashwander v. TVA[135] as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding,
declining because to decide such questions is legitimate only in the last resort, and as a necessity in the
determination of real, earnest and vital controversy between individuals. It never was the thought that, by
means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the
constitutionality of the legislative act.
2. The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. . . .
It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a
decision of the case.
3. The Court will not formulate a rule of constitutional law broader than is required by the precise facts to
which it is to be applied.
4. The Court will not pass upon a constitutional question although properly presented by the record, if there is
also present some other ground upon which the case may be disposed of. This rule has found most varied
application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question,
the other a question of statutory construction or general law, the Court will decide only the latter. Appeals
from the highest court of a state challenging its decision of a question under the Federal Constitution are
frequently dismissed because the judgment can be sustained on an independent state ground.
5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is
injured by its operation. Among the many applications of this rule, none is more striking than the denial of
the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official
interested only in the performance of his official duty will not be entertained . . . In Fairchild v. Hughes, the
Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment
declared unconstitutional. In Massachusetts v. Mellon, the challenge of the federal Maternity Act was not
entertained although made by the Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed
himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even if a serious doubt of
constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of
the statute is fairly possible by which the question may be avoided (citations omitted).
The foregoing pillars of limitation of judicial review, summarized in Ashwander v. TVA from
different decisions of the United States Supreme Court, can be encapsulated into the following
categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court in the exercise of
judicial review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have standing to challenge; he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement
3. the question of constitutionality must be raised at the earliest possible opportunity
4. the issue of constitutionality must be the very lis mota of the case.[136]
Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the
possibility that judicial review of impeachments might also lead to embarrassing conflicts between
the Congress and the [J]udiciary. They stress the need to avoid the appearance of impropriety or
conflicts of interest in judicial hearings, and the scenario that it would be confusing and humiliating
and risk serious political instability at home and abroad if the judiciary countermanded the vote of
Congress to remove an impeachable official.[137] Intervenor Soriano echoes this argument by
alleging that failure of this Court to enforce its Resolution against Congress would result in the
diminution of its judicial authority and erode public confidence and faith in the judiciary.
Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor
General, the possibility of the occurrence of a constitutional crisis is not a reason for this Court to
refrain from upholding the Constitution in all impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
x x x Frequently, the fight over a controversial legislative or executive act is not regarded as settled until the
Supreme Court has passed upon the constitutionality of the act involved, the judgment has not only juridical
effects but also political consequences. Those political consequences may follow even where the Court fails
to grant the petitioners prayer to nullify an act for lack of the necessary number of votes. Frequently, failure
to act explicitly, one way or the other, itself constitutes a decision for the respondent and validation, or at least
quasi-validation, follows. [138]
Thus, in Javellana v. Executive Secretary[139] where this Court was split and in the end there
were not enough votes either to grant the petitions, or to sustain respondents claims,[140] the pre-
existing constitutional order was disrupted which paved the way for the establishment of the martial
law regime.
Such an argument by respondents and intervenor also presumes that the coordinate branches
of the government would behave in a lawless manner and not do their duty under the law to uphold
the Constitution and obey the laws of the land. Yet there is no reason to believe that any of the
branches of government will behave in a precipitate manner and risk social upheaval, violence,
chaos and anarchy by encouraging disrespect for the fundamental law of the land.
Substituting the word public officers for judges, this Court is well guided by the doctrine in
People v. Veneracion, to wit:[141]
Obedience to the rule of law forms the bedrock of our system of justice. If [public officers], under the guise
of religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they are
required by law to exercise the duties of their office, then law becomes meaningless. A government of laws,
not of men excludes the exercise of broad discretionary powers by those acting under its authority. Under this
system, [public officers] are guided by the Rule of Law, and ought to protect and enforce it without fear or
favor, resist encroachments by governments, political parties, or even the interference of their own personal
beliefs.[142]
Constitutionality of the Rules of Procedure

for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16

and 17 of Rule V of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our
present Constitution, contending that the term initiate does not mean to file; that Section 3 (1) is
clear in that it is the House of Representatives, as a collective body, which has the exclusive power
to initiate all cases of impeachment; that initiate could not possibly mean to file because filing can,
as Section 3 (2), Article XI of the Constitution provides, only be accomplished in 3 ways, to wit: (1)
by a verified complaint for impeachment by any member of the House of Representatives; or (2) by
any citizen upon a resolution of endorsement by any member; or (3) by at least 1/3 of all the
members of the House. Respondent House of Representatives concludes that the one year bar
prohibiting the initiation of impeachment proceedings against the same officials could not have
been violated as the impeachment complaint against Chief Justice Davide and seven Associate
Justices had not been initiated as the House of Representatives, acting as the collective body, has
yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term initiate. Resort to
statutory construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz
Regalado, who eventually became an Associate Justice of this Court, agreed on the meaning of
initiate as to file, as proffered and explained by Constitutional Commissioner Maambong during the
Constitutional Commission proceedings, which he (Commissioner Regalado) as amicus curiae
affirmed during the oral arguments on the instant petitions held on November 5, 2003 at which he
added that the act of initiating included the act of taking initial action on the complaint, dissipates
any doubt that indeed the word initiate as it twice appears in Article XI (3) and (5) of the
Constitution means to file the complaint and take initial action on it.
Initiate of course is understood by ordinary men to mean, as dictionaries do, to begin, to
commence, or set going. As Websters Third New International Dictionary of the English Language
concisely puts it, it means to perform or facilitate the first action, which jibes with Justice Regalados
position, and that of Father Bernas, who elucidated during the oral arguments of the instant
petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a beginning,
a middle and an end. The end is the transmittal of the articles of impeachment to the Senate. The middle
consists of those deliberative moments leading to the formulation of the articles of impeachment. The
beginning or the initiation is the filing of the complaint and its referral to the Committee on Justice.
Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and Fuentebella
says that impeachment is deemed initiated when the Justice Committee votes in favor of impeachment or
when the House reverses a contrary vote of the Committee. Note that the Rule does not say impeachment
proceedings are initiated but rather are deemed initiated. The language is recognition that initiation
happened earlier, but by legal fiction there is an attempt to postpone it to a time after actual initiation.
(Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is looking into the intent of
the law. Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive provisions on
impeachment, I understand there have been many proposals and, I think, these would need some time for
Committee action.
However, I would just like to indicate that I submitted to the Committee a resolution on impeachment
proceedings, copies of which have been furnished the Members of this body. This is borne out of my
experience as a member of the Committee on Justice, Human Rights and Good Government which took
charge of the last impeachment resolution filed before the First Batasang Pambansa. For the information of
the Committee, the resolution covers several steps in the impeachment proceedings starting with
initiation, action of the Speaker committee action, calendaring of report, voting on the report,
transmittal referral to the Senate, trial and judgment by the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the
amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we do not
really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have pointed out
earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the
floor is that the committee resolution containing the Articles of Impeachment is the one approved by
the body.
As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the
initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment
proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the
recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who
approved the resolution. It is not the body which initiates it. It only approves or disapproves the
resolution. So, on that score, probably the Committee on Style could help in rearranging these words because
we have to be very technical about this. I have been bringing with me The Rules of the House of
Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard
Nixon are with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I
just want to indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My
reconsideration will not at all affect the substance, but it is only in keeping with the exact formulation of the
Rules of the House of Representatives of the United States regarding impeachment.
I am proposing, Madam President, without doing damage to any of this provision, that on page 2, Section 3
(3), from lines 17 to 18, we delete the words which read: to initiate impeachment proceedings and the
comma (,) and insert on line 19 after the word resolution the phrase WITH THE ARTICLES, and then
capitalize the letter i in impeachment and replace the word by with OF, so that the whole section will now
read: A vote of at least one-third of all the Members of the House shall be necessary either to affirm a
resolution WITH THE ARTICLES of Impeachment OF the Committee or to override its contrary resolution.
The vote of each Member shall be recorded.
I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the
United States is concerned, really starts from the filing of the verified complaint and every resolution to
impeach always carries with it the Articles of Impeachment. As a matter of fact, the words Articles of
Impeachment are mentioned on line 25 in the case of the direct filing of a verified compliant of one-third of
all the Members of the House. I will mention again, Madam President, that my amendment will not vary the
substance in any way. It is only in keeping with the uniform procedure of the House of Representatives of the
United States Congress. Thank you, Madam President.[143] (Italics in the original; emphasis and udnerscoring
supplied)
This amendment proposed by Commissioner Maambong was clarified and accepted by the
Committee on the Accountability of Public Officers.[144]
It is thus clear that the framers intended initiation to start with the filing of the complaint. In his
amicus curiae brief, Commissioner Maambong explained that the obvious reason in deleting the
phrase to initiate impeachment proceedings as contained in the text of the provision of Section 3
(3) was to settle and make it understood once and for all that the initiation of impeachment
proceedings starts with the filing of the complaint, and the vote of one-third of the House in a
resolution of impeachment does not initiate the impeachment proceedings which was already
initiated by the filing of a verified complaint under Section 3, paragraph (2), Article XI of the
Constitution.[145]
Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas,
who was also a member of the 1986 Constitutional Commission, that the word initiate as used in
Article XI, Section 3(5) means to file, both adding, however, that the filing must be accompanied by
an action to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that the word initiate,
appearing in the constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of
impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the same official more than once within a period
of one year, (Emphasis supplied)
refers to two objects, impeachment case and impeachment proceeding.

Father Bernas explains that in these two provisions, the common verb is to initiate. The object
in the first sentence is impeachment case. The object in the second sentence is impeachment
proceeding. Following the principle of reddendo singuala sinuilis, the term cases must be
distinguished from the term proceedings. An impeachment case is the legal controversy that must
be decided by the Senate. Above-quoted first provision provides that the House, by a vote of one-
third of all its members, can bring a case to the Senate. It is in that sense that the House has
exclusive power to initiate all cases of impeachment. No other body can do it. However, before a
decision is made to initiate a case in the Senate, a proceeding must be followed to arrive at a
conclusion. A proceeding must be initiated. To initiate, which comes from the Latin word initium,
means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a middle,
and an end. It takes place not in the Senate but in the House and consists of several steps: (1)
there is the filing of a verified complaint either by a Member of the House of Representatives or by
a private citizen endorsed by a Member of the House of the Representatives; (2) there is the
processing of this complaint by the proper Committee which may either reject the complaint or
uphold it; (3) whether the resolution of the Committee rejects or upholds the complaint, the
resolution must be forwarded to the House for further processing; and (4) there is the processing of
the same complaint by the House of Representatives which either affirms a favorable resolution of
the Committee or overrides a contrary resolution by a vote of one-third of all the members. If at
least one third of all the Members upholds the complaint, Articles of Impeachment are prepared
and transmitted to the Senate. It is at this point that the House initiates an impeachment case. It is
at this point that an impeachable public official is successfully impeached. That is, he or she is
successfully charged with an impeachment case before the Senate as impeachment court.
Father Bernas further explains: The impeachment proceeding is not initiated when the
complaint is transmitted to the Senate for trial because that is the end of the House proceeding and
the beginning of another proceeding, namely the trial. Neither is the impeachment proceeding
initiated when the House deliberates on the resolution passed on to it by the Committee, because
something prior to that has already been done. The action of the House is already a further step in
the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a
verified complaint is filed and referred to the Committee on Justice for action. This is the initiating
step which triggers the series of steps that follow.
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.[146] Thus the line was deleted and is not found in the
present Constitution.
Father Bernas concludes that when Section 3 (5) says, No impeachment proceeding shall be
initiated against the same official more than once within a period of one year, it means that no
second verified complaint may be accepted and referred to the Committee on Justice for action. By
his explanation, this interpretation is founded on the common understanding of the meaning of to
initiate which means to begin. He reminds that the Constitution is ratified by the people, both
ordinary and sophisticated, as they understand it; and that ordinary people read ordinary meaning
into ordinary words and not abstruse meaning, they ratify words as they understand it and not as
sophisticated lawyers confuse it.
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.
From the records of the Constitutional Commission, to the amicus curiae briefs of two former
Constitutional Commissioners, it is without a doubt that the term to initiate refers to the filing of the
impeachment complaint coupled with Congress taking initial action of said complaint.
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.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment
proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that
the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself
affirms or overturns the finding of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-
General of the House of Representatives of a verified complaint or a resolution of impeachment by
at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of Article XI
since the rules give the term initiate a meaning different meaning from filing and referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use
contemporaneous construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v.
Avelino[147] wherein this Court stated that their personal opinions (referring to Justices who were
delegates to the Constitution Convention) on the matter at issue expressed during this Courts our
deliberations stand on a different footing from the properly recorded utterances of debates and
proceedings. Further citing said case, he states that this Court likened the former members of the
Constitutional Convention to actors who are so absorbed in their emotional roles that intelligent
spectators may know more about the real meaning because of the latters balanced perspectives
and disinterestedness. [148]
Justice Gutierrezs statements have no application in the present petitions. There are at present
only two members of this Court who participated in the 1986 Constitutional Commission Chief
Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has not taken part in these
proceedings for obvious reasons. Moreover, this Court has not simply relied on the personal
opinions now given by members of the Constitutional Commission, but has examined the records
of the deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear
and unequivocal that it and only it has the power to make and interpret its rules governing
impeachment. Its argument is premised on the assumption that Congress has absolute power to
promulgate its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of this section. Clearly, its power to promulgate its
rules on impeachment is limited by the phrase to effectively carry out the purpose of this section.
Hence, these rules cannot contravene the very purpose of the Constitution which said rules were
intended to effectively carry out. Moreover, Section 3 of Article XI clearly provides for other specific
limitations on its power to make rules, viz:
Section 3. (1) x x x
(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 to either 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.
It is basic that all rules must not contravene the Constitution which is the fundamental law. If as
alleged Congress had absolute rule making power, then it would by necessary implication have the
power to alter or amend the meaning of the Constitution without need of referendum.
In Osmea v. Pendatun,[149] this Court held that it is within the province of either House of
Congress to interpret its rules and that it was the best judge of what constituted disorderly behavior
of its members. However, in Paceta v. Secretary of the Commission on Appointments,[150] Justice
(later Chief Justice) Enrique Fernando, speaking for this Court and quoting Justice Brandeis in
United States v. Smith,[151] declared that where the construction to be given to a rule affects
persons other than members of the Legislature, the question becomes judicial in nature. In Arroyo
v. De Venecia,[152] quoting United States v. Ballin, Joseph & Co.,[153] Justice Vicente Mendoza,
speaking for this Court, held that while the Constitution empowers each house to determine its
rules of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental
rights, and further that there should be a reasonable relation between the mode or method of
proceeding established by the rule and the result which is sought to be attained. It is only within
these limitations that all matters of method are open to the determination of the Legislature. In the
same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his Concurring and Dissenting
Opinion, was even more emphatic as he stressed that in the Philippine setting there is even more
reason for courts to inquire into the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are non-justiciable. Nor do I
agree that we will trivialize the principle of separation of power if we assume jurisdiction over he case
at bar. Even in the United States, the principle of separation of power is no longer an impregnable
impediment against the interposition of judicial power on cases involving breach of rules of procedure by
legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the issues before the
Court. It is in Ballin where the US Supreme Court first defined the boundaries of the power of the judiciary to
review congressional rules. It held:
xxx
The Constitution, in the same section, provides, that each house may determine the rules of its proceedings. It
appears that in pursuance of this authority the House had, prior to that day, passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the Speaker, the names of members sufficient to
make a quorum in the hall of the House who do not vote shall be noted by the clerk and recorded in the
journal, and reported to the Speaker with the names of the members voting, and be counted and announced in
determining the presence of a quorum to do business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The question, therefore, is as to the validity of this
rule, and not what methods the Speaker may of his own motion resort to for determining the presence of a
quorum, nor what matters the Speaker or clerk may of their own volition place upon the journal. Neither do
the advantages or disadvantages, the wisdom or folly, of such a rule present any matters for judicial
consideration. With the courts the question is only one of power. The Constitution empowers each house to
determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate
fundamental rights, and there should be a reasonable relation between the mode or method of proceedings
established by the rule and the result which is sought to be attained. But within these limitations all matters
of method are open to the determination of the House, and it is no impeachment of the rule to say that some
other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a
different one has been prescribed and in force for a length of time. The power to make rules is not one which
once exercised is exhausted. It is a continuous power, always subject to be exercised by the House, and
within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.
Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional rules, i.e,
whether they are constitutional. Rule XV was examined by the Court and it was found to satisfy the test:
(1) that it did not ignore any constitutional restraint; (2) it did not violate any fundamental right; and (3) its
method had a reasonable relationship with the result sought to be attained. By examining Rule XV, the
Court did not allow its jurisdiction to be defeated by the mere invocation of the principle of separation
of powers.[154]
xxx
In the Philippine setting, there is a more compelling reason for courts to categorically reject the political
question defense when its interposition will cover up abuse of power. For section 1, Article VIII of our
Constitution was intentionally cobbled to empower courts x x x 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. This power is new and was not granted to our courts in the 1935 and
1972 Constitutions. It was not also xeroxed from the US Constitution or any foreign state constitution.
The CONCOM granted this enormous power to our courts in view of our experience under martial law
where abusive exercises of state power were shielded from judicial scrutiny by the misuse of the
political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM
expanded and sharpened the checking powers of the judiciary vis--vis the Executive and the Legislative
departments of government.[155]
xxx
The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it can
decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a duty of this Court
to strike down any act of a branch or instrumentality of government or any of its officials done with grave
abuse of discretion amounting to lack or excess of jurisdiction. Rightly or wrongly, the Constitution has
elongated the checking powers of this Court against the other branches of government despite their more
democratic character, the President and the legislators being elected by the people.[156]
xxx
The provision defining judicial power as including the duty of the courts of justice. . . 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 constitutes the capstone of the efforts of the Constitutional
Commission to upgrade the powers of this court vis--vis the other branches of government. This provision
was dictated by our experience under martial law which taught us that a stronger and more independent
judiciary is needed to abort abuses in government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul acts of government committed with grave
abuse of discretion, the new Constitution transformed this Court from passivity to activism. This
transformation, dictated by our distinct experience as nation, is not merely evolutionary but revolutionary.
Under the 1935 and the 1973 Constitutions, this Court approached constitutional violations by initially
determining what it cannot do; under the 1987 Constitution, there is a shift in stress this Court is mandated
to approach constitutional violations not by finding out what it should not do but what it must do. The
Court must discharge this solemn duty by not resuscitating a past that petrifies the present.
I urge my brethren in the Court to give due and serious consideration to this new constitutional provision as
the case at bar once more calls us to define the parameters of our power to review violations of the rules of
the House. We will not be true to our trust as the last bulwark against government abuses if we refuse
to exercise this new power or if we wield it with timidity. To be sure, it is this exceeding timidity to
unsheathe the judicial sword that has increasingly emboldened other branches of government to
denigrate, if not defy, orders of our courts. In Tolentino, I endorsed the view of former Senator Salonga
that this novel provision stretching the latitude of judicial power is distinctly Filipino and its interpretation
should not be depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at
bar, the lessons of our own history should provide us the light and not the experience of foreigners.[157]
(Italics in the original emphasis and underscoring supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third
parties alleging the violation of private rights and the Constitution are involved.
Neither may respondent House of Representatives rely on Nixon v. US[158] as basis for arguing
that this Court may not decide on the constitutionality of Sections 16 and 17 of the House
Impeachment Rules. As already observed, the U.S. Federal Constitution simply provides that the
House of Representatives shall have the sole power of impeachment. It adds nothing more. It gives
no clue whatsoever as to how this sole power is to be exercised. No limitation whatsoever is given.
Thus, the US Supreme Court concluded that there was a textually demonstrable constitutional
commitment of a constitutional power to the House of Representatives. This reasoning does not
hold with regard to impeachment power of the Philippine House of Representatives since our
Constitution, as earlier enumerated, furnishes several provisions articulating how that exclusive
power is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state
that impeachment proceedings are deemed initiated (1) if there is a finding by the House
Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2)
once the House itself affirms or overturns the finding of the Committee on Justice that the verified
complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before
the Secretary-General of the House of Representatives of a verified complaint or a resolution of
impeachment by at least 1/3 of the members of the House thus clearly contravene Section 3 (5) of
Article XI as they give the term initiate a meaning different from filing.
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the impeachment
complaint and referral to the House Committee on Justice, the initial action taken thereon, the
meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been
initiated in the foregoing manner, another may not be filed against the same official within a one
year period following Article XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed by former President Estrada
against Chief Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on
June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition
against the initiation of impeachment proceedings against the same impeachable officer within a
one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a phenomenon that
takes the center stage of our individual and collective consciousness as a people with our
characteristic flair for human drama, conflict or tragedy. Of course this is not to demean the
seriousness of the controversy over the Davide impeachment. For many of us, the past two weeks
have proven to be an exasperating, mentally and emotionally exhausting experience. Both sides
have fought bitterly a dialectical struggle to articulate what they respectively believe to be the
correct position or view on the issues involved. Passions had ran high as demonstrators, whether
for or against the impeachment of the Chief Justice, took to the streets armed with their familiar
slogans and chants to air their voice on the matter. Various sectors of society - from the business,
retired military, to the academe and denominations of faith offered suggestions for a return to a
state of normalcy in the official relations of the governmental branches affected to obviate any
perceived resulting instability upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment had been
constituted, this Court was specifically asked, told, urged and argued to take no action of any kind
and form with respect to the prosecution by the House of Representatives of the impeachment
complaint against the subject respondent public official. When the present petitions were knocking
so to speak at the doorsteps of this Court, the same clamor for non-interference was made through
what are now the arguments of lack of jurisdiction, non-justiciability, and judicial self-restraint aimed
at halting the Court from any move that may have a bearing on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question of the
constitutionality of initiating the impeachment complaint against Chief Justice Davide is concerned.
To reiterate what has been already explained, the Court found the existence in full of all the
requisite conditions for its exercise of its constitutionally vested power and duty of judicial review
over an issue whose resolution precisely called for the construction or interpretation of a provision
of the fundamental law of the land. What lies in here is an issue of a genuine constitutional material
which only this Court can properly and competently address and adjudicate in accordance with the
clear-cut allocation of powers under our system of government. Face-to-face thus with a matter or
problem that squarely falls under the Courts jurisdiction, no other course of action can be had but
for it to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the process of
impeachment has effectively set up a regime of judicial supremacy, is patently without basis in fact
and in law.
This 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. Rather, the raison detre of the judiciary is to
complement the discharge by the executive and legislative of their own powers to bring about
ultimately the beneficent effects of having founded and ordered our society upon the rule of law.
It is suggested that by our taking cognizance of the issue of constitutionality of the
impeachment proceedings against the Chief Justice, the members of this Court have actually
closed ranks to protect a brethren. That the members interests in ruling on said issue is as much at
stake as is that of the Chief Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other courts has long held and been
entrusted with the judicial power to resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice over the course of time,
unaffected by whomsoever stood to benefit or suffer therefrom, unfraid by whatever imputations or
speculations could be made to it, so long as it rendered judgment according to the law and the
facts. Why can it not now be trusted to wield judicial power in these petitions just because it is the
highest ranking magistrate who is involved when it is an incontrovertible fact that the fundamental
issue is not him but the validity of a government branchs official act as tested by the limits set by
the Constitution? Of course, there are rules on the inhibition of any member of the judiciary from
taking part in a case in specified instances. But to disqualify this entire institution now from the suit
at bar is to regard the Supreme Court as likely incapable of impartiality when one of its members is
a party to a case, which is simply a non sequitur.
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 laws 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 individuals rights irrespective of his station in life.
The Filipino nation and its democratic institutions have no doubt been put to test once again by
this impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to
no other than the Constitution in search for a solution to what many feared would ripen to a crisis in
government. But though it is indeed immensely a blessing for this Court to have found answers in
our bedrock of legal principles, it is equally important that it went through this crucible of a
democratic process, if only to discover that it can resolve differences without the use of force and
aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of 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. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B.
Fuentebella with the Office of the Secretary General of the House of Representatives on October
23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution.
SO ORDERED.
Davide, Jr., C.J., no part.
Bellosillo, J., see separate opinion.
Puno, and Ynares-Santiago, JJ., see concurring and dissenting opinion.
Vitug, J., please see separate opinion (concurring).
Panganiban, and Callejo, Sr., JJ., see separate concurring opinion.
Sandoval-Gutierrez, J., see separate and concurring opinion
Quisumbing, J., concurring separate opinion received.
Carpio, J., concur.
Austria-Martinez, J., concur in the majority opinion and in the separate opinion of Justice Vitug.
Corona, J., will write a separate concurring opinion.
Azcuna, J., concur in the separate opinion.
Tinga, J., concur. Please see separate opinion.
[1] Rollo, G.R. No. 160261 at 180-182; Annex H.
[2] Per Special Appearance with Manifestation of House Speaker Jose C. De Venecia, Jr. (Rollo, G.R. No. 160261 at 325-
363) the pertinent House Resolution is HR No. 260, but no copy of the same was submitted before this Court.
[3] Id. at 329. Created through PD No. 1949 (July 18, 1984), the JDF was established to help ensure and guarantee the
independence of the Judiciary as mandated by the Constitution and public policy and required by the impartial
administration of justice by creating a special fund to augment the allowances of the members and personnel of
the Judiciary and to finance the acquisition, maintenance and repair of office equipment and facilities.
[4] Rollo, G.R. No. 160261 at 120-139; Annex E.
[5] The initial complaint impleaded only Justices Artemio V. Panganiban, Josue N. Bellosillo, Reynato S. Puno, Antonio T.
Carpio and Renato C. Corona, and was later amended to include Justices Jose C. Vitug, and Leonardo A.
Quisumbing.
[6] Supra note 4 at 123-124.
[7] Rollo, G.R. No. 160403 at 48-53; Annex A.
[8] http://www.congress.gov.ph/search/bills/hist_show.php?bill_no=RPT9999
[9] Rollo, G.R. No. 160262 at 8.
[10] Rollo, G.R. No. 160295 at 11.
[11] Rollo, G.R. No. 160262 at 43-84; Annex B.
[12] Supra note 2.
[13] A perusal of the attachments submitted by the various petitioners reveals the following signatories to the second
impeachment complaint and the accompanying Resolution/Endorsement. 1. Gilbert Teodoro, Jr., NPC, Tarlac
(principal complainant) 2. Felix Fuentebella, NPC, Camarines Sur (second principal complainant) 3. Julio
Ledesma, IV, NPC, Negros Occidental 4. Henry Lanot, NPC, Lone District of Pasig City 5. Kim Bernardo-Lokin,
Party List-CIBAC 6. Marcelino Libanan, NPC, Lone District of Eastern Samar, (Chairman, House Committee on
Justice) 7. Emmylou Talino-Santos, Independent, 1st District, North Cotobato 8. Douglas RA. Cagas, NPC, 1st
District, Davao del Sur 9. Sherwin Gatchalian, NPC, 1st District, Valenzuela City 10. Luis Bersamin, Jr., PDSP-
PPC, Lone District of Abra 11. Nerissa Soon-Ruiz Alayon, 6th District, Cebu 12. Ernesto Nieva, Lakas, 1st District,
Manila 13. Edgar R. Erice, Lakas, 2nd District, Kalookan City 14. Ismael Mathay III, Independent, 2nd District,
Quezon City 15. Samuel Dangwa, Reporma, Lone District of Benguet 16. Alfredo Maraon, Jr., NPC, 2nd District,
Negros Occidental 17. Cecilia Jalosjos-Carreon, Reporma, 1st District, Zamboanga del Norte 18. Agapito A.
Aquino, LDP, 2nd District, Makati City 19. Fausto L. Seachon, Jr., NPC, 3rd District, Masbate 20. Georgilu Yumul-
Hermida, Pwersa ng Masa, 4th District, Quezon 21. Jose Carlos Lacson, Lakas, 3rd District, Negros Occidental
22. Manuel C. Ortega, NPC, 1st District, La Union 23. Uliran Joaquin, NPC, 1st District, Laguna 24. Soraya C.
Jaafar, Lakas, Lone District of Tawi-Tawi 25. Wilhelmino Sy-Alvarado, Lakas, 1st District, Bulacan 26. Claude P.
Bautista, NPC, 2nd District, Davao Del Sur 27. Del De Guzman, Lakas, Lone District of Marikina City 28. Zeneida
Cruz-Ducut, NPC, 2nd District, Pampanga 29. Augusto Baculio, Independent-LDP, 2nd District, Misamis Oriental
30. Faustino Dy III, NPC-Lakas, 3rd District, Isabela 31. Agusto Boboy Syjuco, Lakas, 2nd District, Iloilo 32.
Rozzano Rufino B. Biazon, LDP, Lone District of Muntinlupa City 33. Leovigildo B. Banaag, NPC-Lakas, 1st
District, Agusan del Norte 34. Eric Singson, LP, 2nd District, Ilocos Sur 35. Jacinto Paras, Lakas, 1st District,
Negros Oriental 36. Jose Solis, Independent, 2nd District, Sorsogon 37. Renato B. Magtubo, Party List-Partido ng
Manggagawa 38. Herminio G. Teves, Lakas, 3rd District, Negros Oriental 39. Amado T. Espino, Jr., Lakas, 2nd
District, Pangasinan 40. Emilio Macias, NPC, 2nd District, Negros Oriental 41. Arthur Y. Pingoy, Jr., NPC, 2nd
District, South Cotobato 42. Francis Nepomuceno, NPC, 1st District, Pampanga 43. Conrado M. Estrella III, NPC,
6th District, Pangasinan 44. Elias Bulut, Jr., NPC, Lone District of Apayao 45. Jurdin Jesus M. Romualdo, NPC,
Lone District of Camiguin 46. Juan Pablo Bondoc, NPC, 4th District, Pampanga 47. Generoso DC. Tulagan, NPC,
3rd District, Pangasinan 48. Perpetuo Ylagan, Lakas, Lone District of Romblon 49. Michael Duavit, NPC, 1st
District, Rizal 50. Joseph Ace H. Durano, NPC, 5th District, Cebu 51. Jesli Lapus, NPC, 3rd District, Tarlac 52.
Carlos Q. Cojuangco, NPC, 4th District, Negros Occidental 53. Georgidi B. Aggabao, NPC, 4th District, Santiago,
Isabela 54. Francis Escudero, NPC, 1st District, Sorsogon 55. Rene M. Velarde, Party List-Buhay 56. Celso L.
Lobregat, LDP, Lone District of Zamboanga City 57. Alipio Cirilo V. Badelles, NPC, 1st District, Lanao del Norte 58.
Didagen P. Dilangalen, Pwersa ng Masa, Lone District of Maguindanao 59. Abraham B. Mitra, LDP, 2nd District,
Palawan 60. Joseph Santiago, NPC, Lone District of Catanduanes 61. Darlene Antonino-Custodio, NPC, 1st
District of South Cotobato & General Santos City 62. Aleta C. Suarez, LP, 3rd District, Quezon 63. Rodolfo G.
Plaza, NPC, Lone District of Agusan del Sur 64. JV Bautista, Party List-Sanlakas 65. Gregorio Ipong, NPC, 2nd
District, North Cotabato 66. Gilbert C. Remulla, LDP, 2nd District, Cavite 67. Rolex T. Suplico, LDP, 5th District,
Iloilo 68. Celia Layus, NPC, Cagayan 69. Juan Miguel Zubiri, Lakas, 3rd District, Bukidnon 70. Benasing
Macarambon Jr,. NPC, 2nd District, Lanao del Sur 71. Josefina Joson, NPC, Lone District of Nueva Ecija 72. Mark
Cojuangco, NPC, 5th District, Pangasinan 73. Mauricio Domogan, Lakas, Lone District of Baguio City 74. Ronaldo
B. Zamora, Pwersa ng Masa, Lone District of San Juan 75. Angelo O. Montilla, NPC, Lone District of Sultan
Kudarat 76. Roseller L. Barinaga, NPC, 2nd District, Zamboanga del Norte 77. Jesnar R. Falcon, NPC, 2nd
District, Surigao del Sur 78. Ruy Elias Lopez, NPC, 3rd District, Davao City.
[14] Rollo, G.R. No. 160261 at 5. Petitioner had previously filed two separate impeachment complaints before the House of
Representatives against Ombudsman Aniano Desierto.
[15] 299 SCRA 744 (1998). In Chavez v. PCGG, petitioner Chavez argued that as a taxpayer and a citizen, he had the
legal personality to file a petition demanding that the PCGG make public any and all negotiations and agreements
pertaining to the PCGGs task of recovering the Marcoses ill-gotten wealth. Petitioner Chavez further argued that
the matter of recovering the ill-gotten wealth of the Marcoses is an issue of transcendental importance to the
public. The Supreme Court, citing Taada v. Tuvera, 136 SCRA 27 (1985), Legaspi v. Civil Service Commission,
150 SCRA 530 (1987) and Albano v. Reyes, 175 SCRA 264 (1989) ruled that petitioner had standing. The Court,
however, went on to elaborate that in any event, the question on the standing of petitioner Chavez was rendered
moot by the intervention of the Jopsons who are among the legitimate claimants to the Marcos wealth.
[16] 384 SCRA 152 (2002). In Chavez v. PEA-Amari Coastal Bay Development Corporation, wherein the petition sought to
compel the Public Estates Authority (PEA) to disclose all facts on its then on-going negotiations with Amari
Coastal Development Corporation to reclaim portions of Manila Bay, the Supreme Court said that petitioner
Chavez had the standing to bring a taxpayers suit because the petition sought to compel PEA to comply with its
constitutional duties.
[17] 224 SCRA 792 (1993).
[18] Subsequent petitions were filed before this Court seeking similar relief. Other than the petitions, this Court also
received Motions for Intervention from among others, Sen. Aquilino Pimentel, Jr., and Special Appearances by
House Speaker Jose C. de Venecia, Jr., and Senate President Franklin Drilon.
[19] Supra note 2 at 10.
[20] Justice Florenz D. Regalado, Former Constitutional Commissioners Justice Regalado E. Maambong and Father
Joaquin G. Bernas, SJ, Justice Hugo E. Gutierrez, Jr., Former Minister of Justice and Solicitor General Estelito P.
Mendoza, Deans Pacifico Agabin and Raul C. Pangalangan, and Former Senate President Jovito R. Salonga,.
[21] Rollo, G.R. No. 160261 at 275-292.
[22] Id. at 292.
[23] 63 Phil 139 (1936).
[24] Id. at 157-159.
[25] Vide Alejandrino v. Quezon, 46 Phil 83 (1924); Taada v. Cuenco, 103 Phil 1051 (1957); Ynot v. Intermediate Appellate
Court, 148 SCRA 659, 665 (1987).
[26] CONST., art. VIII, sec. 1.
[27] 5 US 137 (1803).
[28] Id. at 180.
[29] In In re Prautch, 1 Phil 132 (1902), this Court held that a statute allowing for imprisonment for non-payment of a debt
was invalid. In Casanovas v. Hord, 8 Phil 125 (1907), this Court invalidated a statute imposing a tax on mining
claims on the ground that a government grant stipulating that the payment of certain taxes by the grantee would
be in lieu of other taxes was a contractual obligation which could not be impaired by subsequent legislation. In
Concepcion v. Paredes, 42 Phil 599 (1921), Section 148 (2) of the Administrative Code, as amended, which
provided that judges of the first instance with the same salaries would, by lot, exchange judicial districts every five
years, was declared invalid for being a usurpation of the power of appointment vested in the Governor General. In
McDaniel v. Apacible, 42 Phil 749 (1922), Act No. 2932, in so far as it declares open to lease lands containing
petroleum which have been validly located and held, was declared invalid for being a depravation of property
without due process of law. In U.S. v. Ang Tang Ho, 43 Phil 1 (1922), Act No. 2868, in so far as it authorized the
Governor-General to fix the price of rice by proclamation and to make the sale of rice in violation of such a
proclamation a crime, was declared an invalid delegation of legislative power.
[30] VICENTE V. MENDOZA, SHARING THE PASSION AND ACTION OF OUR TIME 62-53 (2003).
[31] Supra note 23.
[32] Id. at 156-157.
[33] Florentino P. Feliciano, The Application of Law: Some Recurring Aspects Of The Process Of Judicial Review And
Decision Making, 37 AMJJUR 17, 24 (1992).
[34] Ibid.
[35] I RECORD OF THE CONSTITUTIONAL COMMISSION 434-436 (1986).
[36] 31 SCRA 413 (1970)
[37] Id. at 422-423; Vide Baranda v. Gustilo, 165 SCRA 757, 770 (1988); Luz Farms v. Secretary of the Department of
Agrarian Reform, 192 SCRA 51 (1990); Ordillo v. Commission on Elections, 192 SCRA 100 (1990).
[38] 194 SCRA 317 (1991).
[39] Id. at 325 citing Maxwell v. Dow, 176 US 581.
[40] 152 SCRA 284 (1987).
[41] Id. at 291 citing Gold Creek Mining v. Rodriguez, 66 Phil 259 (1938), J.M. Tuason & Co., Inc v. Land Tenure
Administration, supra note 36, and I TAADA AND FERNANDO, CONSTITUTION OF THE PHILIPPINES 21
(Fourth Ed.).
[42] 82 Phil 771 (1949).
[43] Id. at 775.
[44] Supra note 38.
[45] Id. at 330-331.
[46] Id. at 337-338 citing 16 CJS 2.31; Commonwealth v. Ralph, 111 Pa. 365, 3 Atl. 220 and Household Finance
Corporation v. Shaffner, 203, SW 2d, 734, 356 Mo. 808.
[47] Supra note 2.
[48] Citing Section 3 (6), Article VIII of the Constitution provides:
(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.
[49] Supra note 21.
[50] 506 U.S. 224 (1993).
[51] Supra note 2 at 349-350 citing Gerhardt, Michael J. The Federal Impeachment Process: A Constitutional and
Historical Analysis, 1996, p. 119.
[52] 227 SCRA 100 (1993).
[53] Id. at 112.
[54] US Constititon. Section 2. x x x The House of Representatives shall have the sole Power of Impeachment.
[55] 1987 Constitution, Article XI, Section 3 (1). The House of Representatives shall have the exclusive power to initiate all
cases of impeachment.
[56] Supra note 2 at 355 citing AGRESTO, THE SUPREME COURT AND CONSTITUTIONAL DEMOCRACY, 1984, pp.
112-113.
[57] 369 U.S. 186 (1962).
[58] 141 SCRA 263 (1986).
[59] Supra note 25.
[60] 298 SCRA 756 (1998).
[61] 272 SCRA 18 (1997).
[62] 201 SCRA 792 (1991).
[63] 187 SCRA 377 (1990).
[64] 180 SCRA 496 (1989).
[65] Supra note 25.
[66] Supra note 23.
[67] Civil Liberties Union v. Executive Secretary, supra note 38 at 330-331.
[68] Id. at 158-159.
[69] IBP v. Zamora, 338 SCRA 81 (2000) citing Joya v. PCGG, 225 SCRA 568 (1993); House International Building
Tenants Association, Inc. v. Intermediate Appellate Court, 151 SCRA 703 (1987); Baker v. Carr, supra note 57.
[70] Citing Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995).
[71] Citing Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997).
[72] Citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, 163 SCRA 371, 378 (1988).
[73] Rule 3, Section 2. Parties in interest. A real party in interest is the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law or these
Rules, every action must be prosecuted or defended in the name of the real party in interest.
[74] JG Summit Holdings, Inc. v. Court of Appeals, 345 SCRA 143, 152 (2000).
[75] 246 SCRA 540 (1995).
[76] Id. at 562-564.
[77] Agan v. PIATCO, G.R. No. 155001, May 5, 2003 citing BAYAN v. Zamora, 342 SCRA 449, 562-563 (2000) and Baker
v. Carr, supra note 57; Vide Gonzales v. Narvasa,, 337 SCRA 733 (2000); TELEBAP v. COMELEC, 289 SCRA
337 (1998).
[78] Chavez v. PCGG, supra note 15.
[79] Del Mar v. PAGCOR 346 SCRA 485, 501 (2000) citing Kilosbayan, Inc., et.al. v. Morato, supra note 70; Dumlao v.
COMELEC, 95 SCRA 392 (1980); Sanidad v. Comelec, 73 SCRA 333 (1976); Philconsa v. Mathay, 18 SCRA 300
(1966); Pascual v. Secretary of Public Works, 110 Phil 331 (1960); Vide Gonzales v. Narvasa, supra note 77;
Pelaez v. Auditor General, 15 SCRA 569 (1965); Philconsa v. Gimenez, 15 SCRA 479 (1965); Iloilo Palay & Corn
Planters Association v. Feliciano, 13 SCRA 377 (1965).
[80] BAYAN v. Zamora, supra note 77 citing Bugnay v. Laron, 176 SCRA 240, 251-252 (1989); Vide Del Mar v. PAGCOR,
supra note 79; Gonzales v. Narvasa, supra note 77; TELEBAP v. COMELEC, supra note 77; Kilosbayan, Inc. v.
Morato, supra note 70; Joya v. PCGG, supra note 69; Dumlao v. COMELEC, supra note 79; Sanidad v.
COMELEC, supra note 79; Philconsa v. Mathay, supra note 79; Pelaez v. Auditor General, supra note 79;
Philconsa v. Gimenez, supra note 79; Iloilo Palay & Corn Planters Association v. Feliciano, supra note 79; Pascual
v. Sec. of Public Works, supra note 79.
[81] Gonzales v. Narvasa, supra note 77 citing Dumlao v. COMELEC, supra note 79; Sanidad v. COMELEC, supra note
79; Tan v. Macapagal, 43 SCRA 677 (1972).
[82] Tatad v. Garcia, Jr., 243 SCRA 436 (1995); Kilosbayan, Inc. v. Morato, supra note 70 at 140-141 citing Philconsa v.
Enriquez, 235 SCRA 506 (1994); Guingona v. PCGG, 207 SCRA 659 (1992); Gonzales v. Macaraig, 191 SCRA
452 (1990); Tolentino v. COMELEC, 41 SCRA 702 (1971).
[83] Del Mar v. PAGCOR, supra note 79 at 502-503 citing Philconsa v. Mathay, supra note 79.
[84] Chinese Flour Importers Association v. Price Stabilization Board, 89 Phil 439, 461 (1951) citing Gallego et al. vs.
Kapisanan Timbulan ng mga Manggagawa, 46 Off. Gaz, 4245.
[85] Philippine Constitution Association v. Gimenez, supra note 79 citing Gonzales v. Hechanova, 118 Phil. 1065 (1963);
Pascual v. Secretary, supra note 79.
[86] Integrated Bar of the Philippines v. Zamora, 338 SCRA 81 (2000).
[87] MVRS Publications, Inc. v. Islamic Dawah Council of the Philippines, G.R. No. 135306, January 28, 2003, citing
Industrial Generating Co. v. Jenkins 410 SW 2d 658; Los Angeles County Winans, 109 P 640; Weberpals v.
Jenny, 133 NE 62.
[88] Mathay v. Consolidated Bank and Trust Company, 58 SCRA 559, 570-571 (1974), citing Moore's Federal Practice 2d
ed., Vol. III, pages 3423-3424; 4 Federal Rules Service, pages 454-455; Johnson, et al., vs. Riverland Levee
Dist., et al., 117 2d 711, 715; Borlasa v. Polistico, 47 Phil. 345, 348 (1925).
[89] MVRS Publications, Inc. v. Islamic Dawah Council of the Philippines, supra note 87, dissenting opinion of Justice
Carpio; Bulig-bulig Kita Kamag-Anak Assoc. v. Sulpicio Lines, 173 SCRA 514, 514-515 (1989); Re: Request of the
Heirs of the Passengers of Doa Paz, 159 SCRA 623, 627 (1988) citing Moore, Federal Practice, 2d ed., Vol. 3B,
23-257, 23-258; Board of Optometry v. Colet, 260 SCRA 88 (1996), citing Section 12, Rule 3, Rules of Court;
Mathay v. Consolidated Bank and Trust Co., supra note 88; Oposa v. Factoran, supra note 17.
[90] Kilosbayan v. Guingona, 232 SCRA 110 (1994).
[91] Kilosbayan, Inc. v. Morato, supra note 70 citing Civil Liberties Union v. Executive Secretary, supra note 38; Philconsa v.
Gimnez, supra note 79; Iloilo Palay and Corn Planters Association v. Feliciano, supra note 79; Araneta v.
Dinglasan, 84 Phil. 368 (1949); vide Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997);
Santiago v. COMELEC, 270 SCRA 106 (1997); KMU v. Garcia, Jr., 239 SCRA 386 (1994); Joya v. PCGG, 225
SCRA 368 (1993); Carpio v. Executive Secretary, 206 SCRA 290 (1992); Osmea v. COMELEC, 199 SCRA 750
(1991); Basco v. PAGCOR, 197 SCRA 52 (1991); Guingona v. Carague, 196 SCRA 221 (1991); Daza v. Singson,
supra note 64; Dumlao v. COMELEC, supra note 79.
[92] Firestone Ceramics, Inc. v. Court of Appeals, 313 SCRA 522, 531 (1999) citing Gibson vs. Revilla, 92 SCRA 219;
Magsaysay-Labrador v. Court of Appeals, 180 SCRA 266, 271 (1989).
[93] Supra note 79.
[94] Id. at 403.
[95] Supra note 81.
[96] Id. at 681.
[97] SECTION 3. x x x
(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.
[98] Supra note 25.
[99] Id. at 1067.
[100] Vide Barcelon v. Baker, 5 Phil. 87 (1905); Montenegro v. Castaeda, 91 Phil. 882 (1952); De la Llana v. COMELEC, 80
SCRA 525 (1977).
[101] Vide Avelino v. Cuenco, 83 Phil. 17 (1949); Macias v. COMELEC, 3 SCRA 1 (1961); Cunanan v. Tan, Jr., 5 SCRA 1
(1962); Gonzales v. COMELEC, 21 SCRA 774 (1967); Lansang v. Garcia, 42 SCRA 448 (1971); Tolentino v.
COMELEC, supra note 82.
[102] 50 SCRA 30 (1973).
[103] RECORD OF THE CONSTITUTION COMMISSION, Vol. 1, July 10, 1986 at 434-436.
[104] Id. at 439-443.
[105] 177 SCRA 668 (1989).
[106] Id. at 695.
[107] 203 SCRA 767 (1991).
[108] Id. at 776 citing Gonzales v. Macaraig, 191 SCRA 452, 463 (1990).
[109] Supra note 64.
[110] Id. at 501.
[112] Id at 217
[113] 2 RECORD OF THE CONSTITUTIONAL COMMISSION at 286.
[114] Id. at 278, 316, 272, 283-284, 286.
[115] 76 Phil 516 (1946).
[116] Id. at 522.
[118] Id. at 58 citing Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, 175 SCRA
343 (1989).
[119] Vide concurring opinion of Justice Vicente Mendoza in Estrada v.Desierto, 353 SCRA 452, 550 (2001); Demetria v.
Alba, 148 SCRA 208, 210-211 (1987) citing Ashwander v. TVA, 297 U.S. 288 (1936).
[120] As adverted to earlier, neither a copy the Resolution nor a record of the hearings conducted by the House Committee
on Justice pursuant to said Resolution was submitted to the Court by any of the parties.
[121] Rollo, G.R. No. 160310 at 38.
[123] Id. at 777 (citations omitted).
[124] Rollo, G.R. No. 160262 at 73.

[126] Perfecto v. Meer, 85 Phil 552, 553 (1950).
[127] Estrada v. Desierto, 356 SCRA 108, 155-156 (2001); Vide Abbas v. Senate Electoral Tribunal, 166 SCRA 651 (1988);
Vargas v. Rilloraza, et al., 80 Phil. 297, 315-316 (1948); Planas v. COMELEC, 49 SCRA 105 (1973), concurring
opinion of J. Concepcion.
[128] Philippine Judges Association v. Prado, 227 SCRA 703, 705 (1993).
[129] Ibid.
[130] Ramirez v. Corpuz-Macandog, 144 SCRA 462, 477 (1986).
[132] Estrada v. Desierto, supra note 127.
[133] Id. at 155-156 citing Abbas, et al. v. Senate Electoral Tribunal, supra note 127; Vargas v. Rilloraza, et al., supra note
127.
[134] Supra note 119 at 210-211.
[136] Board of Optometry v. Colet, 260 SCRA 88, 103 (1996); Joya v. PCGG, supra note 69 at 575; Macasiano v. National
Housing Authority, 224 SCRA 236, 242 (1993); Santos III v. Northwestern Airlines, 210 SCRA 256, 261-262
(1992), National Economic Protectionism Association v. Ongpin, 171 SCRA 657, 665 (1989).
[141] 249 SCRA 244, 251 (1995).
[142] Id. at 251.
[143] 2 RECORDS OF THE CONSTITUTIONAL COMMISSION at 342-416.
[144] Id. at 416.
[145] Commissioner Maambongs Amicus Curiae Brief at 15.
[146] 2 RECORD OF THE CONSTITUTIONAL COMMISSION at 375-376, 416
[147] 77 Phil. 192 (1946).
[148] Justice Hugo Guiterrezs Amicus Curiae Brief at 7.
[149] 109 Phil. 863 (1960).
[150] 40 SCRA 58, 68 (1971).
[151] 286 U.S. 6, 33 (1932).
[152] 277 SCRA 268, 286 (1997).
[153] 144 U.S. 1 (1862).
[154] Supra note 152 at 304-306.
[155] Id at 311.
[156] Id. at 313.
[157] Supra note 152 at 314-315.

EN BANC
[G.R. No. 118577. March 7, 1995.]
JUANITO MARIANO, JR., et al. , petitioners, vs . THE COMMISSION ON

ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR
BINAY, THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN
OF MAKATI , respondents.
[G.R. No. 118627. March 7, 1995.]
JOHN R. OSMEÑA , petitioner, vs. THE COMMISSION ON ELECTIONS,

THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY,
MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI ,
respondents.
Villamor Legarda & Associates for petitioner in G.R. No. 118627.

Acosta & Corvera Law Offices for petitioners in G.R. No. 118577.
Emmanuel P.J . Tamase for private respondents.
The Solicitor General for public respondent.
SYLLABUS
1. ADMINISTRATIVE LAW; LOCAL GOVERNMENT CODE; DRAWING OF TERRITORIAL

BOUNDARIES; REQUIRED; RATIONALE. — The importance of drawing with precise strokes
the territorial boundaries of a local unit of government cannot be overemphasized. The
boundaries must be clear for they de ne the limits of the territorial jurisdiction of a local
government unit. It can legitimately exercise powers of government only within the limits
of its territorial jurisdiction. Beyond these limits, its acts are ultra vires. Needless to state,
any uncertainty in the boundaries of local government units will sow costly con icts in the
exercise of governmental powers which ultimately will prejudice the people's welfare. This
is the evil sought to be avoided by the Local Government Code in requiring that the land
area of a local government unit must be spelled out in metes and bounds, with technical
descriptions.
2. STATUTORY CONSTRUCTION; RULE THAT LAW MUST BE ENFORCED WHEN
ASCERTAINED, ALTHOUGH IT MAY NOT BE CONSISTENT WITH THE STRICT LETTER OF
THE STATUTE; APPLICATION IN CASE AT BAR. — Congress did not intend that laws
creating new cities must contain therein detailed technical descriptions similar to those
appearing in Torrens titles, as petitioners seem to imply. To require such description in the
law as a condition sine qua non for its validity would be to defeat the very purpose which
the Local Government seeks to serve. The manifest intent of the Code is to empower local
government units and to give them their rightful due. It seeks to make local governments
more responsive to the needs of their constituents while at the same time serving as a
vital cog in national development. To invalidate R.A. No. 7854 on the mere ground that no
cadastral type of description was used in the law would serve the letter but defeat the
spirit of the Code. It then becomes a case of the master serving the slave, instead of the
other way around. This could not be the intendment of the law. Too well settled is the rule
that laws must be enforced when ascertained, although it may not be consistent with the
strict letter of the statute. Courts will not follow the letter of the statute when to do so
would depart from the true intent of the legislature or would otherwise yield conclusions
inconsistent with the general purpose of the act (Torres v . Limjap , 56 Phil. 141; Tañada v .
Cuenco, 103 Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA 1105). Legislation is an active
instrument of government which, for purposes of interpretation, means that laws have
ends to achieve, and statutes should be so construed as not to defeat but to carry out
such ends and purposes (Bocobo v. Estanislao, 72 SCRA 520).
3. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF LAW, WHEN CHALLENGED;
REQUIREMENTS. — The requirements before a litigant can challenge the constitutionality
of a law are well-delineated. They are: (1) there must be an actual case or controversy; (2)
the question of constitutionality must be raised by the proper party; (3) the constitutional
question must be raised at the earliest possible opportunity; and (4) the decision on the
constitutional question must be necessary to the determination of the case itself. (Dumlao
v. COMELEC, 95 SCRA 392 [1980]; Cruz, Constitutional Law, 1991 ed., p. 24)
4. ID.; REAPPORTIONMENT OF LEGISLATIVE DISTRICT; RULE; APPLICATION IN CASE
AT BAR. — In the recent case of Tobias v. Abalos, G.R. No. 114783, December 8, 1994, this
Court ruled that reapportionment of legislative districts may be made through a special
law, such as in the charter of a new city. The Constitution (Section 5(1), Article VI) clearly
provides that Congress shall be composed of not more than two hundred fty (250)
members, unless otherwise fixed by law. As thus worded, the Constitution did not preclude
Congress from increasing its membership by passing a law, other than a general
reapportionment law. This is exactly what was done by Congress in enacting R.A. No. 7854
and providing for an increase in Makati's legislative district. Moreover, to hold that
reapportionment can only be made through a general apportionment law, with a review of
all the legislative districts allotted to each local government unit nationwide, would create
an unequitable situation where a new city or province created by Congress will be denied
legislative representation for an indeterminate period of time. That intolerable situation will
deprive the people of a new city or province a particle of their sovereignty. Sovereignty
cannot admit of any kind of subtraction. It is indivisible. It must be forever whole or it is not
sovereignty.
DAVIDE, JR., J ., concurring opinion:
1. CONSTITUTIONAL LAW; LOCAL GOVERNMENT CODE OF 1991 (R.A. No. 7160);
REQUIREMENT THAT TERRITORIAL BOUNDARIES BE IDENTIFIED BY METES AND
BOUNDS WITH TECHNICAL DESCRIPTION; WHEN NOT APPLICABLE; CASE AT BAR. —
Section 10, Article X of the Constitution provides that "[n]o province, city, municipality or
barangay may be created, divided, merged, abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local government code and
subject to the approval by a majority of the votes cast in a plebiscite in the political units
directly affected." These criteria are now set forth in Section 7 of the Local Government
Code of 1991 (R.A. No. 7160). One of these is that the territorial jurisdiction of the local
government unit to be created or converted should be properly identi ed by metes and
bounds with technical descriptions. The omission of R.A. No. 7854 (An Act Converting the
Municipality of Makati Into a Highly Urbanized City to be Known as the City of Makati) to
describe the territorial boundaries of the city by metes and bounds does not make R.A. No.
7854 unconstitutional or illegal. The Constitution does not provide for a description by
metes and bounds as a condition sine qua non for the creation of a local government unit
or its conversion from one level to another. The criteria provided for in Section 7 of R.A. No.
7854 are not absolute, for, as a matter of fact, the section starts with the clause " as a
general rule." The petitioners' reliance on Section 450 of R.A. No. 7160 is unavailing. Said
section only applies to the conversion of a municipality or a cluster of barangays into a
COMPONENT CITY, not a highly urbanized city.
2. ID.; R.A. NO. 7854; INCREASE IN THE NUMBER OF LEGISLATIVE SEATS; JUSTIFIED.
— Strictly speaking, the increase in the number of legislative seats for the City of Makati
provided for in R.A. No. 7854 is not an increase justi ed by the clause unless otherwise
xed by law in paragraph 1, Section 5, Article VI of the Constitution. That clause
contemplates of the reapportionment mentioned in the succeeding paragraph (4) of the
said Section which reads in full as follows: "Within three years following the return of every
census, the Congress shall make a reapportionment of legislative districts based on the
standards provided in this section." In short, the clause refers to a general
reapportionment law. The increase under R.A. No. 7854 is a permissible increase under
Sections 1 and 3 of the Ordinance appended to the Constitution.
DECISION
PUNO , J : p
At bench are two (2) petitions assailing certain provisions of Republic Act No.
7854 as unconstitutional. R.A. No. 7854 is entitled, "An Act Converting the Municipality
of Makati Into a Highly Urbanized City to be known as the City of Makati." 1
G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was
led by petitioners Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo
Santos, Frankie Cruz, Ricardo Pascual, Teresita Abang, Valentina Pitalvero, Ru no
Caldoza, Florante Alba, and Perfecto Alba. Of the petitioners, only Mariano, Jr., is a
resident of Makati. The others are residents of Ibayo Ususan, Taguig, Metro Manila.
Suing as taxpayers, they assail as unconstitutional Sections 2, 51 and 52 of R.A. No.
7854 on the following grounds:
"1. Section 2 of R.A. No. 7854 did not properly identify the land area or
territorial jurisdiction of Makati by metes and bounds, with technical descriptions,
in violation of Section 10, Article X of the Constitution, in relation to Sections 7
and 450 of the Local Government Code;
2. Section 51 of R.A. No. 7854 attempts to alter or restart the 'three
consecutive term' limit for local elective o cials, in violation of Section 8, Article
X and Section 7, Article VI of the Constitution.
3. Section 52 of R.A. No. 7854 is unconstitutional for:
(a) it increased the legislative district of Makati only by

special law (the Charter in violation of the constitutional provision
requiring a general reapportionment law to be passed by Congress
within three (3) years following the return of every census; dctai
(b) the increase in legislative district, was not expressed in the

title of the bill; and
(c) the addition of another legislative district in Makati is not
in accord with Section 5 (3), Article VI of the constitution for as of
the latest survey (1990 census), the population of Makati stands
at only 450,000."
G.R. No. 118627 was led by petitioner John H. Osmeña as senator, taxpayer,
and concerned citizen. Petitioner assails Section 52 of R.A. No. 7854 as
unconstitutional on the same grounds as aforestated.
We find no merit in the petitions.

I
Section 2, Article I of R.A. No. 7854 delineated the land area of the proposed city
of Makati, thus:
"SEC. 2. The City of Makati. — The Municipality of Makati shall be converted
into a highly urbanized city to be known as the City of Makati, hereinafter referred
to as the City, which shall comprise the present territory of the Municipality of
Makati in Metropolitan Manila Area over which it has jurisdiction bounded on the
northeast by Pasig River and beyond by the City of Mandaluyong and the
Municipality of Pasig; on the southeast by the municipalities of Pateros and
Taguig; on the southwest by the City of Pasay and the Municipality of Taguig;
and, on the northwest, by the City of Manila.
The foregoing provision shall be without prejudice to the resolution by the
appropriate agency or forum of existing boundary disputes or cases involving
questions of territorial jurisdiction between the City of Makati and the adjoining
local government units." (Emphasis supplied)
In G.R. No. 118577, petitioners claim that this delineation violates Sections 7 and
450 of the Local Government Code which require that the area of a local government
unit should be made by metes and bounds with technical descriptions. 2
The importance of drawing with precise strokes the territorial boundaries of a
local unit of government cannot be overemphasized. The boundaries must be clear for
they de ne the limits of the territorial jurisdiction of a local government unit. It can
legitimately exercise powers of government only within the limits of its territorial
jurisdiction. Beyond these limits, its acts are ultra vires. Needless to state, any
uncertainty in the boundaries of local government units will sow costly con icts in the
exercise of governmental powers which ultimately will prejudice the people's welfare.
This is the evil sought to be avoided by the Local Government Code in requiring that the
land area of a local government unit must be spelled out in metes and bounds, with
technical descriptions.
Given the facts of the cases at bench, we cannot perceive how this evil can be
brought about by the description made in Section 2 of R.A. No. 7854. Petitioners have
not demonstrated that the delineation of the land area of the proposed City of Makati
will cause confusion as to its boundaries. We note that said delineation did not change
even by an inch the land area previously covered by Makati as a municipality. Section 2
did not add, subtract, divide, or multiply the established land area of Makati. In language
that cannot be any clearer, Section 2 stated that the city's land area "shall comprise the
present territory of the municipality."
The deliberations of Congress will reveal that there is a legitimate reason why the
land area of the proposed City of Makati was not de ned by metes and bounds, with
technical descriptions. At the time of the consideration of R.A. No. 7854, the territorial
dispute between the municipalities of Makati and Taguig over Fort Bonifacio was under
court litigation. Out of a becoming sense of respect to a co-equal department of
government, the legislations felt that the dispute should be left to the courts to decide.
They did not want to foreclose the dispute by making a legislative nding of fact which
could decide the issue. This would have ensued if they de ned the land area of the
proposed city by its exact metes and bounds, with technical descriptions. 3 We take
judicial notice of the fact that Congress has also refrained from using the metes and
bounds description of land areas of other local government units with unsettled
boundary disputes. 4
We hold that the existence of a boundary dispute does not per se present an
unsurmountable di culty which will prevent Congress form de ning with reasonable
certitude the territorial jurisdiction of a local government unit. In the cases at bench,
Congress maintained the existing boundaries of the proposed City of Makati but as an
act of fairness, made them subject to the ultimate resolution by the courts. Considering
these peculiar circumstances, we are not prepared to hold that Section 2 of R.A. 7854
is unconstitutional. We sustain the submission of the Solicitor General in this regard,
viz:
"Going now to Sections 7 and 450 of the Local Government Code, it is beyond
cavil that the requirement stated therein, viz: 'the territorial jurisdiction of newly
created or converted cities should be described by metes and bounds, with
technical descriptions' — was made in order to provide a means by which the area
of said cities may be reasonably ascertained. In other words, the requirement on
metes and bounds was meant merely as tool in the establishment of local
government units. It is not an end in itself. Ergo, so long as the territorial
jurisdiction of a city may be reasonably ascertained, i.e., by referring to common
boundaries with neighboring municipalities, as in this case, then, it may be
concluded that the legislative intent behind the law has been sufficiently served.
Certainly, Congress did not intend that laws creating new cities must contain
therein detailed technical descriptions similar to those appearing in Torrens titles,
as petitioners seem to imply. To require such description in the law as a condition
sine qua non for its validity would be to defeat the very purpose which the Local
Government Code seeks to serve. The manifest intent of the Code is to empower
local government units and to give them their rightful due. It seeks to make local
governments more responsive to the needs of their constituents while at the same
time serving as a vital cog in national development. To invalidate R.A. No. 7854
on the mere ground that no cadastral type of description was used in the law
would serve the letter but defeat the spirit of the Code. It then becomes a case of
the master serving the slave, instead of the other way around. This could not be
the intendment of the law.
Too well settled is the rule that laws must be enforced when ascertained,
although it may not be consistent with the strict letter of the statute. Courts will
not follow the letter of the statute when to do so would depart from the true intent
of the legislature or would otherwise yield conclusions inconsistent with the
general purpose of the act. (Torres v. Limjap, 56 Phil. 141; Tañada v. Cuenco, 103
Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA 1105). Legislation is an active instrument
of government which, for purposes of interpretation, means that laws have ends
to achieve, and statutes should be so construed as not to defeat but to carry out
such ends and purposes (Bocobo v. Estanislao, 72 SCRA 520). The same rule
must indubitably apply to the case at bar."
II
Petitioners in G.R. No. 118577 also assail the constitutionality of Section 51,
Article X of R.A. No. 7854. Section 51 states:
"SEC. 51. O cials of the City of Makati . — The represent elective o cials of
the Municipality of Makati shall continue as the officials of the City of Makati and
shall exercise their powers and functions until such time that a new election is
held and the duly elected o cials shall have already quali ed and assume their
offices: Provided, The new city will acquire a new corporate existence. The
appointive o cials and employees of the City shall likewise continue exercising
their functions and duties and they shall be automatically absorbed by the city
government of the City of Makati."
They contend that this section collides with Section 8, Article X and Section 7, Article VI
of the Constitution which provide:
"SEC. 8. The term of o ce of elective local o cials, except barangay
o cials, which shall be determined by law, shall be three years and no such
o cial shall serve for more than three consecutive terms . Voluntary renunciation
of the o ce for any length of time shall not be considered as an interruption in
the continuity of his service for the full term for which he was elected.
xxx xxx xxx
SEC. 7. The Members of the House of Representatives shall be elected for a
term of three years which shall begin, unless otherwise provided by law at noon
on the thirtieth day of June next following their election.
No member of the House of Representatives shall serve for more than three
consecutive terms. Voluntary renunciation of the o ce 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."cdll
Petitioners stress that under these provisions, elective local o cials , including
Members of the House of Representatives, have a term of three (3) years and are
prohibited from serving for more than three (3) consecutive terms. They argue that by
providing that the new city shall acquire a new corporate existence, Section 51 of R.A.
No. 7854 restarts the term of the present municipal elective o cials of Makati and
disregards the terms previously serve by them. In particular, petitioners point that
Section 51 favors the incumbent Makati Mayor, respondent Jejomar Binay, who has
already served for two (2) consecutive terms. They further argue that should Mayor
Binay decide to run and eventually win as city mayor in the coming elections, he can still
run for the same position in 1998 and seek another three-year consecutive term since
his previous three-year consecutive term as municipal mayor would not be counted.
Thus, petitioners conclude that said Section 51 has been conveniently crafted to suit
the political ambitions of respondent Mayor Binay.
We cannot entertain this challenge to the constitutionality of Section 51. The
requirements before a litigant can challenge the constitutionality of a law are well-
delineated. They are: (1) there must be an actual case or controversy; (2) the question
of constitutionality must be raised by the proper party; (3) the constitutional question
must be raised at the earliest possible opportunity; and (4) the decision on the
constitutional question must be necessary to the determination of the case itself. 5

Petitioners have far from complied with these requirements. The petition is
premised on the occurrence of many contingent events, i.e., that Mayor Binay will run
again in this coming mayoralty elections; that he would be re-elected in said elections;
and that he would seek re-election for the same post in the 1998 elections. Considering
that these contingencies may or may not happen, petitioners merely pose a
hypothetical issue which has yet to ripen to an actual case or controversy. Petitioners
who are residents of Taguig (except Mariano) are not also the proper parties to raise
this abstract issue. Worse, they hoist this futuristic issue in a petition for declaratory
relief over which this Court has no jurisdiction.
III
Finally, petitioners in the two (2) cases at bench assail the constitutionality of
Section 52, Article X of R.A. No. 7854. Section 52 of the Charter provides:
"SEC. 52. Legislative Districts. — Upon its conversion into a highly-urbanized
city, Makati shall thereafter have at least two (2) legislative districts that shall
initially correspond to the two (2) existing districts created under Section 3 (a) of
Republic Act No. 7166 as implemented by the Commission on Elections to
commence at the next national elections to be held after the effectivity of this Act.
Henceforth, barangays Magallanes, Dasmariñas, and Forbes shall be with the
rst district, in lieu of Barangay Guadalupe-Viejo which shall form part of the
second district." (Emphasis supplied)
They contend that the addition of another legislative district in Makati is

unconstitutional for: (1) reapportionment 6 cannot made by a special law; (2) the
addition of a legislative district is not expressed in the title of the bill; 7 and (3) Makati's
population, as per the 1990 census, stands at only four hundred fty thousand
(450,000).
These issues have been laid to rest in the recent case of Tobias v. Abalos . 8 In
said case, we ruled that reapportionment of legislative districts may be made through a
special law, such as in the charter of a new city. The Constitution 9 clearly provides that
Congress shall be composed of not more than two hundred fty (250) members,
unless otherwise xed by law . As thus worded, the Constitution did not preclude
Congress from increasing its membership by passing a law, other than a general
reapportionment law. This is exactly what was done by Congress in enacting R.A. No.
7854 and providing for an increase in Makati's legislative district. Moreover, to hold
that reapportionment can only be made through a general apportionment law, with a
review of all the legislative districts allotted to each local government unit nationwide,
would create an inequitable situation where a new city or province created by Congress
will be denied legislative representation for an indeterminate period of time. 10 That
intolerable situation will deprive the people of a new city or province a particle of their
sovereignty. 11 Sovereignty cannot admit of any kind of subtraction. It is indivisible. It
must be forever whole or it is not sovereignty.
Petitioners cannot insist that the addition of another legislative district in Makati
is not in accord with Section 5(3), Article VI 12 of the Constitution for as of the latest
survey (1990 census), the population of Makati stands at only four hundred fty
thousand (450,000). 13 Said section provides, inter alia, that a city with a population of
at least two hundred fty thousand (250,000) shall have at least one representative.
Even granting that the population of Makati as of the 1990 census stood at four
hundred fty thousand (450,000), its legislative district may still be increased since it
has met the minimum population requirement of two hundred fty thousand (250,000).
In fact, Section 3 of the Ordinance appended to the Constitution provides that a city
whose population has increased to more than two hundred fty thousand (250 ,000)
shall be entitled to at least one congressional representative. 14
Finally, we do not nd merit in petitioners' contention that the creation of an
additional legislative district in Makati should have been expressly stated in the title of
the bill. In the same case of Tobias v. Abalos , op cit. we reiterated the policy of the
Court favoring a liberal construction of the "one title-one subject" rule so as not to
impede legislation. To be sure, the Constitution does not command that the title of a
law should exactly mirror, fully index, or completely catalogue all its details. Hence, we
ruled that "it should be su cient compliance if the title expresses the general subject
and all the provisions are germane to such general subject."
WHEREFORE, the petitions are hereby DISMISSED for lack of merit. No costs.
SO ORDERED.
Narvasa, C .J ., Feliciano, Padilla, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Vitug,
Kapunan, Mendoza and Francisco, JJ ., concur.
Separate Opinions
DAVIDE, JR., J ., concurring :
I concur in the well written opinion of Mr. Justice Reynato S. Puno. I wish,
however, to add a few observations.
I.
Section 10, Article X of the Constitution provides that "[n]o province, city,
municipality or barangay may be created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria established in the local
government code and subject to the approval by a majority of the votes cast in a
plebiscite in the political units directly affected." These criteria are now set forth in
Section 7 of the Local Government Code of 1991 (R.A. No. 7160). One of these is that
the territorial jurisdiction of the local government unit to be created or converted
should be properly identified by metes and bounds with technical descriptions. LexLib
The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into
a Highly Urbanized City to be Known as the City of Makati) to describe the territorial
boundaries of the city by metes and bounds does not make R.A. No. 7854
unconstitutional or illegal. The Constitution does not provide for a description by metes
and bounds as a condition sine qua non for the creation of a local government unit or
its conversion from one level to another. The criteria provided for in Section 7 of R.A.
No. 7854 are not absolute, for, as a matter of fact, the section starts with the clause " as
a general rule." The petitioners' reliance on Section 450 of R.A. No. 7160 is unavailing.
Said section only applies to the conversion of a municipality or a cluster of barangays
into a COMPONENT CITY, not a highly urbanized city. It pertinently reads as follows:
"SEC. 450. Requisite for creation. — (a) A municipality or a cluster of
barangays may be converted into a component city if it has an average annual
income, as certi ed by the Department of Finance, of at least Twenty million
pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991
constant prices, and if it has either of the following requisites:
xxx xxx xxx
(b) The territorial jurisdiction of a newly created city shall be properly
identified by metes and bounds. . . .
The Constitution classi es cities as either highly urbanized or component.

Section 12 of Article X thereof provides:
"SEC. 12. Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting for provincial
elective o cials, shall be independent of the province. The voters of component
cities within a province, whose charters contain no such prohibition, shall not be
deprived of their right to vote for elective provincial officials."
And Section 451 of R.A. No. 7160 provides:

"SEC. 451. Cities Classi ed . — A city may either be component or highly
urbanized: Provided, however, That the criteria established in this Code shall not
affect the classification and corporate status of existing cities.
Independent component cities are those component cities whose charters prohibit
their voters from voting for provincial elective o cials. Independent component
cities shall be independent of the province."
II.
Strictly speaking, the increase in the number of legislative seats for the City of
Makati provided for in R.A. No. 7854 is not an increase justi ed by the clause unless
otherwise xed by law in paragraph 1, Section 5, Article VI of the Constitution. That
clause contemplates of the reapportionment mentioned in the succeeding paragraph
(4) of the said Section which reads in full as follows:
"Within three years following the return of every census, the Congress shall make
a reapportionment of legislative districts based on the standards provided in this
section."
In short, the clause refers to a general reapportionment law.

The increase under R.A. No. 7854 is a permissible increase under Sections 1 and
3 of the Ordinance appended to the Constitution which reads:
"SEC. 1. For purposes of the election of Members of the House of
Representatives of the First Congress of the Philippines under the Constitution
proposed by the 1986 Constitutional Commission and subsequent elections, and
until otherwise provided by law, the Members thereof shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan
Manila Area as follows:
METROPOLITAN MANILA AREA
xxx xxx xxx

MAKATI, one (1)
xxx xxx xxx
"Sec. 3. Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fty thousand shall
be entitled in the immediately following election to at least one Member or such
number of Members as it may be entitled to on the basis of the number of its
inhabitants and according to the standards set forth in paragraph (3), Section 5
of Article VI of the Constitution. The number of Members apportioned to the
province out of which such new province was created, or where the city, whose
population has so increased, is geographically located shall be correspondingly
adjusted by the Commission on Elections but such adjustment shall not be made
within one hundred and twenty days before the election." (Emphasis supplied)
Footnotes
1. R.A. No. 7854 is a consolidation of House Bill No. 12240 sponsored by Congressman
Joker Arroyo and Senate Bill No. 1244 sponsored by Senator Vicente Sotto III.
2. "SECTION 7. Creation and Conversion. — As a general rule, the creation of a local
government unit or its conversion from one level to another level shall be based on
verifiable indicators of viability and projected capacity to provide services, to wit:
xxx xxx xxx

'(c) Land Area. — It must be contiguous, unless it comprises two (2) or more islands or
is separated by a local government unit independent of the others; properly identi ed by metes
and bounds with technical descriptions and su cient to provide for such basic services and
facilities to meet the requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the Department
of Finance (DOF), the National Statistics O ce (NSO), and the Lands Management
Bureau (LMB) of the Department of Environment and Natural Resources (DENR).'
xxx xxx xxx
SECTION 450. Requisites for Creation. — . . .
(b) The territorial jurisdiction of a newly-created city shall be properly identi ed by
metes and bounds. . . ."
3. August 18, 1994, Senate Deliberations on H.B. No. 12240, pp. 23-28.
4. Ibid., citing as example the City of Mandaluyong.
5. Dumlao v. COMELEC, 95 SCRA 392 (1980); Cruz, Constitutional Law, 1991 ed., p. 24.
6. Section 5(4), Article VI of the Constitution provides:
"(4) Within three years following the return of every census, the Congress shall make a
reapportionment of legislative districts based on the standards provided in this section."
7. Section 26(1), Article VI of the Constitution provides:
"Sec. 26(1) Every bill passed by the Congress shall, embrace only one subject which shall
be expressed in the title thereof."
8. G.R. no. 114783, December 8, 1994.
9. Section 5(1), Article VI.
10. In this connection, we take judicial notice of the fact that since 1986 up to this time,
Congress has yet to pass a general reapportionment law.
11. Section 1, Article II provides that "The Philippines is a democratic and republican state.
Sovereignty resides in the people and all government authority emanate from them."
12. "SEC. 5. ...

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact,
and adjacent territory. Each city with a population of at least two hundred fty thousand , or each
province, shall have at least one representative."
xxx xxx xxx

13. As per the certi cate issued by Administrator Tomas Africa of the National Census and
Statistics O ce, the population of Makati as of 1994 stood at 508,174; August 4, 1994,
Senate Deliberations on House Bill No. 12240 (converting Makati into a highly urbanized
city), p. 15.
14. Sec. 3. provides: "Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fty thousand shall be
entitled in the immediately following election to at least one Member or such number of
Members as it may be entitled to on the basis of the number of its inhabitants and
according to the standards set forth in paragraph (3), Section 5 of Article VI of the
Constitution. The number of Members apportioned to the province out of which such
new province was created or where the city, whose population has so increased, is
geographically located shall be correspondingly adjusted by the Commission on
Elections but such adjustment shall not be made within one hundred, and twenty days
before the election."

EN BANC
[G.R. No. 152295. July 9, 2002.]
ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO,

JOSEPHINE ATANGAN, RONALD ATANGAN and CLARIZA DECENA,
and OTHER YOUTH OF THE LAND SIMILARLY SITUATED , petitioners,
vs . COMMISSION ON ELECTIONS, DEPARTMENT OF THE INTERIOR
AND LOCAL GOVERNMENT, DEPARTMENT OF BUDGET AND
MANAGEMENT, EXECUTIVE SECRETARY of the OFFICE OF THE
PRESIDENT, SENATOR FRANKLIN DRILON in his capacity as Senate
President and SENATOR AQUILINO PIMENTEL in his capacity as
Minority Leader of the Senate of the Philippines, CONGRESSMAN
JOSE DE VENECIA in his capacity as Speaker, CONGRESSMAN
AGUSTO L. SYJUCO in his capacity as Chairman of the Committee
on Suffrage and Electoral Reforms, and CONGRESSMAN EMILIO C.
MACIAS II in his capacity as Chairman of the Committee on Local
Government of the House of Representatives, THE PRESIDENT OF
THE PAMBANSANG KATIPUNAN NG MGA SANGGUNIANG
KABATAAN, AND ALL THEIR AGENTS AND REPRESENTATIVES ,
respondents.
DECISION
CARPIO , J : p
The Case
Before us is a petition for certiorari, prohibition and mandamus with prayer for a
temporary restraining order or preliminary injunction. The petition seeks to prevent the
postponement of the Sangguniang Kabataan ("SK" for brevity) elections originally
scheduled last May 6, 2002. The petition also seeks to prevent the reduction of the age
requirement for membership in the SK.
Petitioners, who are all 20 years old, led this petition as a taxpayer's and class
suit, on their own behalf and on behalf of other youths similarly situated. Petitioners
claim that they are in danger of being disquali ed to vote and be voted for in the SK
elections should the SK elections on May 6, 2002 be postponed to a later date. Under
the Local Government Code of 1991 (R.A. No. 7160), membership in the SK is limited to
youths at least 15 but not more than 21 years old.
Petitioners allege that public respondents "connived, confederated and
conspired" to postpone the May 6, 2002 SK elections and to lower the membership age
in the SK to at least 15 but less than 18 years of age. Petitioners assail the alleged
conspiracy because youths at least 18 but not more than 21 years old will be
"summarily and unduly dismembered, unfairly discriminated, unnecessarily
disenfranchised, unjustly disassociated and obnoxiously disquali ed from the SK
organization." 1
Thus, petitioners pray for the issuance of a temporary restraining order or
preliminary injunction —
"a) To prevent, annul or declare unconstitutional any law, decree, Comelec
resolution/directive and other respondents' issuances, orders and actions
and the like in postponing the May 6, 2002 SK elections.
b) To command the respondents to continue the May 6, 2002 SK elections set by
the present law and in accordance with Comelec Resolutions No. 4713 and
4714 and to expedite the funding of the SK elections.
c) In the alternative, if the SK elections will be postponed for whatever reason,
there must be a de nite date for said elections, for example, July 15, 2002,
and the present SK membership, except those incumbent SK o cers who
were elected on May 6, 1996, shall be allowed to run for any SK elective
position even if they are more than 21 years old.
d) To direct the incumbent SK o cers who are presently representing the SK in
every sanggunian and the NYC to vacate their post after the barangay
elections." 2
The Facts
The SK is a youth organization originally established by Presidential Decree No.
684 as the Kabataang Barangay ("KB" for brevity). The KB was composed of all
barangay residents who were less than 18 years old, without specifying the minimum
age. The KB was organized to provide its members with the opportunity to express
their views and opinions on issues of transcendental importance. 3
The Local Government Code of 1991 renamed the KB to SK and limited SK
membership to those youths "at least 15 but not more than 21 years of age." 4 The SK
remains as a youth organization in every barangay tasked to initiate programs "to
enhance the social, political, economic, cultural, intellectual, moral, spiritual, and
physical development of the youth." 5 The SK in every barangay is composed of a
chairperson and seven members, all elected by the Katipunan ng Kabataan. The
Katipunan ng Kabataan in every barangay is composed of all citizens actually residing in
the barangay for at least six months and who meet the membership age requirement.
The rst SK elections took place on December 4, 1992. RA No. 7808 reset the SK
elections to the rst Monday of May of 1996 and every three years thereafter. RA No.
7808 mandated the Comelec to supervise the conduct of the SK elections under rules
the Comelec shall promulgate. Accordingly, the Comelec on December 4, 2001 issued
Resolution Nos. 4713 6 and 4714 7 to govern the SK elections on May 6, 2002.
On February 18, 2002, petitioner Antoniette V.C. Montesclaros ("Montesclaros"
for brevity) sent a letter 8 to the Comelec, demanding that the SK elections be held as
scheduled on May 6, 2002. Montesclaros also urged the Comelec to respond to her
letter within 10 days upon receipt of the letter, otherwise, she will seek judicial relief.
On February 20, 2002, Alfredo L. Benipayo ("Chairman Benipayo" for brevity), then
Comelec Chairman, wrote identical letters to the Speaker of the House 9 and the Senate
President 1 0 about the status of pending bills on the SK and Barangay elections. In his
letters, the Comelec Chairman intimated that it was "operationally very di cult" to hold
both elections simultaneously in May 2002. Instead, the Comelec Chairman expressed
support for the bill of Senator Franklin Drilon that proposed to hold the Barangay
elections in May 2002 and postpone the SK elections to November 2002.
Ten days lapsed without the Comelec responding to the letter of Montesclaros.
Subsequently, petitioners received a copy of Comelec En Banc Resolution No. 4763 1 1
dated February 5, 2002 recommending to Congress the postponement of the SK
elections to November 2002 but holding the Barangay elections in May 2002 as
scheduled. 1 2
On March 6, 2002, the Senate and the House of Representatives passed their
respective bills postponing the SK elections. On March 11, 2002, the Bicameral
Conference Committee ("Bicameral Committee" for brevity) of the Senate and the
House came out with a Report 1 3 recommending approval of the reconciled bill
consolidating Senate Bill No. 2050 1 4 and House Bill No. 4456. 1 5 The Bicameral
Committee's consolidated bill reset the SK and Barangay elections to July 15, 2002 and
lowered the membership age in the SK to at least 15 but not more than 18 years of age.
On March 11, 2002, petitioners filed the instant petition.
On March 11, 2002, the Senate approved the Bicameral Committee's
consolidated bill and on March 13, 2002, the House of Representatives approved the
same. The President signed the approved bill into law on March 19, 2002.
The Issues
Petitioners 1 6 raise the following grounds in support of their petition:
"I.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND

UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE ABUSE
OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN THEY INTENDED TO POSTPONE THE SK ELECTIONS.
II.
WHEN THEY INTENDED TO DISCRIMINATE, DISENFRANCHISE, SINGLE
OUT AND DISMEMBER THE SK MEMBERS WHO ARE 18 BUT NOT LESS 1 7
(SIC) THAN 21 YEARS OLD COMPOSED OF ABOUT 7 MILLION YOUTH.
III.
WHEN THEY WILLFULLY FAILED TO FUND THE SK ELECTION
PURPORTEDLY TO POSTPONE THE SAME IN ORDER TO IMPLEMENT
THEIR ILLEGAL SCHEME AND MACHINATION IN SPITE OF THE FACT
THAT THERE ARE AVAILABLE FUNDS FOR THE PURPOSE.
IV.
THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT ON
THEIR RESPECTIVE OFFICES CONTRARY TO THE ENVISION (SIC) OF THE
CREATION OF THE SK ORGANIZATION, HENCE, IN VIOLATION OF LAW
AND CONSTITUTION." 1 8
The Court's Ruling

The petition is bereft of merit.
At the outset, the Court takes judicial notice of the following events that have
transpired since petitioners filed this petition:
1. The May 6, 2002 SK elections and May 13, 2002 Barangay elections were not
held as scheduled.
2. Congress enacted RA No. 9164 1 9 which provides that voters and candidates
for the SK elections must be "at least 15 but less than 18 years of age on
the day of the election." 2 0 RA No. 9164 also provides that there shall be a
synchronized SK and Barangay elections on July 15, 2002.
3. The Comelec promulgated Resolution No. 4846, the rules and regulations for
the conduct of the July 15, 2002 synchronized SK and Barangay elections.
Petitioners, who all claim to be 20 years old, argue that the postponement of the
May 6, 2002 SK elections disenfranchises them, preventing them from voting and being
voted for in the SK elections. Petitioners' theory is that if the SK elections were
postponed to a date later than May 6, 2002, the postponement would disqualify from
SK membership youths who will turn 21 years old between May 6, 2002 and the date of
the new SK elections. Petitioners claim that a reduction in the SK membership age to
15 but less than 18 years of age from the then membership age of 15 but not more
than 21 years of age would disqualify about seven million youths. The public
respondents' failure to hold the elections on May 6, 2002 would prejudice petitioners
and other youths similarly situated.
Thus, petitioners instituted this petition to: (1) compel public respondents to
hold the SK elections on May 6, 2002 and should it be postponed, the SK elections
should be held not later than July 15, 2002; (2) prevent public respondents from
passing laws and issuing resolutions and orders that would lower the membership age
in the SK; and (3) compel public respondents to allow petitioners and those who have
turned more than 21 years old on May 6, 2002 to participate in any re-scheduled SK
elections.
The Court's power of judicial review may be exercised in constitutional cases
only if all the following requisites are complied with, namely: (1) the existence of an
actual and appropriate case or controversy; (2) a personal and substantial interest of
the party raising the constitutional question; (3) the exercise of judicial review is
pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of
the case. 2 1
In the instant case, there is no actual controversy requiring the exercise of the
power of judicial review. While seeking to prevent a postponement of the May 6, 2002
SK elections, petitioners are nevertheless amenable to a resetting of the SK elections to
any date not later than July 15, 2002. RA No. 9164 has reset the SK elections to July 15,
2002, a date acceptable to petitioners. With respect to the date of the SK elections,
there is therefore no actual controversy requiring judicial intervention.
Petitioners' prayer to prevent Congress from enacting into law a proposed bill
lowering the membership age in the SK does not present an actual justiciable
controversy. A proposed bill is not subject to judicial review because it is not a law. A
proposed bill creates no right and imposes no duty legally enforceable by the Court. A
proposed bill, having no legal effect, violates no constitutional right or duty. The Court
has no power to declare a proposed bill constitutional or unconstitutional because that
would be in the nature of rendering an advisory opinion on a proposed act of Congress.
The power of judicial review cannot be exercised in vacuo. 2 2 The second paragraph of
Section 1, Article VIII of the Constitution states —
"Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government." (Italics supplied)
Thus, there can be no justiciable controversy involving the constitutionality of a
proposed bill. The Court can exercise its power of judicial review only after a law is
enacted, not before.
Under the separation of powers, the Court cannot restrain Congress from
passing any law, or from setting into motion the legislative mill according to its internal
rules. Thus, the following acts of Congress in the exercise of its legislative powers are
not subject to judicial restraint: the ling of bills by members of Congress, the approval
of bills by each chamber of Congress, the reconciliation by the Bicameral Committee of
approved bills, and the eventual approval into law of the reconciled bills by each
chamber of Congress. Absent a clear violation of speci c constitutional limitations or
of constitutional rights of private parties, the Court cannot exercise its power of judicial
review over the internal processes or procedures of Congress. 2 3
The Court has also no power to dictate to Congress the object or subject of bills
that Congress should enact into law. The judicial power to review the constitutionality
of laws does not include the power to prescribe to Congress what laws to enact. The
Court has no power to compel Congress by mandamus to enact a law allowing
petitioners, regardless of their age, to vote and be voted for in the July 15, 2002 SK
elections. To do so would destroy the delicate system of checks and balances nely
crafted by the Constitution for the three co-equal, coordinate and independent
branches of government.
Under RA No. 9164, Congress merely restored the age requirement in PD No.
684, the original charter of the SK, which xed the maximum age for membership in the
SK to youths less than 18 years old. Petitioners do not have a vested right to the
permanence of the age requirement under Section 424 of the Local Government Code
of 1991. Every law passed by Congress is always subject to amendment or repeal by
Congress. The Court cannot restrain Congress from amending or repealing laws, for the
power to make laws includes the power to change the laws. 2 4
The Court cannot also direct the Comelec to allow over-aged voters to vote or be
voted for in an election that is limited under RA No. 9164 to youths at least 15 but less
than 18 years old. A law is needed to allow all those who have turned more than 21
years old on or after May 6, 2002 to participate in the July 15, 2002 SK elections.
Youths from 18 to 21 years old as of May 6, 2002 are also no longer SK members, and
cannot participate in the July 15, 2002 SK elections. Congress will have to decide
whether to enact an amendatory law. Petitioners' remedy is legislation, not judicial
intervention.
Petitioners have no personal and substantial interest in maintaining this suit. A
party must show that he has been, or is about to be denied some personal right or
privilege to which he is lawfully entitled. 2 5 A party must also show that he has a real
interest in the suit. By "real interest" is meant a present substantial interest, as
distinguished from a mere expectancy or future, contingent, subordinate, or
inconsequential interest. 2 6
In the instant case, petitioners seek to enforce a right originally conferred by law
on those who were at least 15 but not more than 21 years old. Now, with the passage
of RA No. 9164, this right is limited to those who on the date of the SK elections are at
least 15 but less than 18 years old. The new law restricts membership in the SK to this
speci c age group. Not falling within this classi cation, petitioners have ceased to be
members of the SK and are no longer quali ed to participate in the July 15, 2002 SK
elections. Plainly, petitioners no longer have a personal and substantial interest in the
SK elections.
This petition does not raise any constitutional issue. At the time petitioners led
this petition, RA No. 9164, which reset the SK elections and reduced the age
requirement for SK membership, was not yet enacted into law. After the passage of RA
No. 9164, petitioners failed to assail any provision in RA No. 9164 that could be
unconstitutional. To grant petitioners' prayer to be allowed to vote and be voted for in
the July 15, 2002 SK elections necessitates assailing the constitutionality of RA No.
9164. This, petitioners have not done. The Court will not strike down a law unless its
constitutionality is properly raised in an appropriate action and adequately argued. 2 7
The only semblance of a constitutional issue, albeit erroneous, that petitioners
raise is their claim that SK membership is a "property right within the meaning of the
Constitution." 2 8 Since certain public o ces are "reserved" for SK o cers, petitioners
also claim a constitutionally protected "opportunity" to occupy these public o ces. In
petitioners' own words, they and others similarly situated stand to "lose their
opportunity to work in the government positions reserved for SK members or o cers."
2 9 Under the Local Government Code of 1991, the president of the federation of SK
organizations in a municipality, city or province is an ex-officio member of the municipal
council, city council or provincial board, respectively. 3 0 The chairperson of the SK in the
barangay is an ex-officio member of the Sangguniang Barangay. 3 1 The president of the
national federation of SK organizations is an ex-officio member of the National Youth
Commission, with rank of a Department Assistant Secretary. 3 2
Congress exercises the power to prescribe the quali cations for SK
membership. One who is no longer quali ed because of an amendment in the law
cannot complain of being deprived of a proprietary right to SK membership. Only those
who qualify as SK members can contest, based on a statutory right, any act
disqualifying them from SK membership or from voting in the SK elections. SK
membership is not a property right protected by the Constitution because it is a mere
statutory right conferred by law. Congress may amend at any time the law to change or
even withdraw the statutory right.
A public o ce is not a property right. As the Constitution expressly states, a "
[P]ublic o ce is a public trust." 3 3 No one has a vested right to any public o ce, much
less a vested right to an expectancy of holding a public o ce. In Cornejo v. Gabriel, 3 4
decided in 1920, the Court already ruled:
"Again, for this petition to come under the due process of law prohibition, it
would be necessary to consider an o ce a "property." It is, however, well settled . .
. that a public o ce is not property within the sense of the constitutional
guaranties of due process of law, but is a public trust or agency. . . . The basic
idea of the government . . . is that of a popular representative government, the
o cers being mere agents and not rulers of the people, one where no one man or
set of men has a proprietary or contractual right to an o ce, but where every
o cer accepts o ce pursuant to the provisions of the law and holds the o ce
as a trust for the people he represents." (Italics supplied)
Petitioners, who apparently desire to hold public o ce, should realize from the
very start that no one has a proprietary right to public o ce. While the law makes an SK
o cer an ex-officio member of a local government legislative council, the law does not
confer on petitioners a proprietary right or even a proprietary expectancy to sit in local
legislative councils. The constitutional principle of a public o ce as a public trust
precludes any proprietary claim to public o ce. Even the State policy directing "equal
access to opportunities for public service" 3 5 cannot bestow on petitioners a
proprietary right to SK membership or a proprietary expectancy to ex-officio public
offices.
Moreover, while the State policy is to encourage the youth's involvement in public
affairs, 3 6 this policy refers to those who belong to the class of people de ned as the
youth. Congress has the power to de ne who are the youth quali ed to join the SK,
which itself is a creation of Congress. Those who do not qualify because they are past
the age group de ned as the youth cannot insist on being part of the youth. In
government service, once an employee reaches mandatory retirement age, he cannot
invoke any property right to cling to his o ce. In the same manner, since petitioners are
now past the maximum age for membership in the SK, they cannot invoke any property
right to cling to their SK membership.
The petition must also fail because no grave abuse of discretion attended the
postponement of the SK elections. RA No. 9164 is now the law that prescribes the
quali cations of candidates and voters for the SK elections. This law also xes the date
of the SK elections. Petitioners are not even assailing the constitutionality of RA No.
9164. RA No. 9164 enjoys the presumption of constitutionality and will apply to the July
15, 2002 SK elections.
Petitioners have not shown that the Comelec acted illegally or with grave abuse
of discretion in recommending to Congress the postponement of the SK elections. The
very evidence relied upon by petitioners contradict their allegation of illegality. The
evidence consist of the following: (1) Comelec en banc Resolution No. 4763 dated
February 5, 2002 that recommended the postponement of the SK elections to 2003; (2)
the letter of then Comelec Chairman Benipayo addressed to the Speaker of the House
of Representatives and the President of the Senate; and (3) the Conference Committee
Report consolidating Senate Bill No. 2050 and House Bill No. 4456.
The Comelec exercised its power and duty to "enforce and administer all laws
and regulations relative to the conduct of an election, plebiscite, initiative, referendum
and recall" 3 7 and to "recommend to Congress effective measures to minimize election
spending. 3 8 The Comelec's acts enjoy the presumption of regularity in the
performance of o cial duties. 3 9 These acts cannot constitute proof, as claimed by
petitioners, that there "exists a connivance and conspiracy (among) respondents in
contravention of the present law." As the Court held in Pangkat Laguna v. Comelec, 4 0
the "Comelec, as the government agency tasked with the enforcement and
administration of elections laws, is entitled to the presumption of regularity of o cial
acts with respect to the elections."
The 1987 Constitution imposes upon the Comelec the duty of enforcing and
administering all laws and regulations relative to the conduct of elections. Petitioners
failed to prove that the Comelec committed grave abuse of discretion in
recommending to Congress the postponement of the May 6, 2002 SK elections. The
evidence cited by petitioners even establish that the Comelec has demonstrated an
earnest effort to address the practical problems in holding the SK elections on May 6,
2002. The presumption remains that the decision of the Comelec to recommend to
Congress the postponement of the elections was made in good faith in the regular
course of its official duties.
Grave abuse of discretion is such capricious and whimsical exercise of judgment
that is patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law. 4 1 Public respondents having acted strictly
pursuant to their constitutional powers and duties, we nd no grave abuse of discretion
in their assailed acts.
Petitioners contend that the postponement of the SK elections would allow the
incumbent SK o cers to perpetuate themselves in power, depriving other youths of the
opportunity to serve in elective SK positions. This argument deserves scant
consideration. While RA No. 9164 contains a hold-over provision, incumbent SK officials
can remain in o ce only until their successors have been elected or quali ed. On July
15, 2002, when the SK elections are held, the hold-over period expires and all incumbent
SK o cials automatically cease to hold their SK o ces and their ex-officio public
offices.
In sum, petitioners have no personal and substantial interest in maintaining this
suit. This petition presents no actual justiciable controversy. Petitioners do not cite any
provision of law that is alleged to be unconstitutional. Lastly, we nd no grave abuse of
discretion on the part of public respondents.
WHEREFORE, the petition is DISMISSED for utter lack of merit.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez a n d Corona, JJ.,
concur.
Footnotes
1. Rollo, pp. 4-5.
2. Ibid., pp. 14-15.
3. Second Whereas Clause of PD No. 684; See also Mercado vs. Board of Election Supervisors
of Ibaan, Batangas, 243 SCRA 422 (1995).
4. This was the same membership quali cation in Section 116 of the Local Government Code
of 1983. Earlier, PD No. 1102, issued on February 28, 1977, had increased the age
requirement to "twenty-one years of age or less."
5. Section 426 of the Local Government Code enumerates the powers and functions of the
Sangguniang Kabataan as follows: "Section 426. Powers and Functions of the
Sangguniang Kabataan. The Sangguniang Kabataan shall: (a) Promulgate resolutions
necessary to carry out the objectives of the youth in the barangay in accordance with the
applicable provisions of this Code; (b) Initiate programs designed to enhance the social,
political, economic, cultural, intellectual, moral, spiritual, and physical development of
the members; (c) Hold fund-raising activities, the proceeds of which shall be tax-exempt
and shall accrue to the general fund of the sangguniang kabataan: Provided, however,
That in the appropriation thereof, the speci c purpose for which such activity has been
held shall be rst satis ed; (d) Create such bodies or committees as it may deem
necessary to effectively carry out its programs and activities; (e) Submit annual and end-
of-term reports to the sangguniang barangay on their projects and activities for the
survival and development of the youth in the barangay ; (f) Consult and coordinate with
all youth organizations in the barangay for policy formulation and program
implementation; (g) Coordinate with the appropriate national agency for the
implementation of youth development projects and programs at the national level; (h)
Exercise such other powers and perform such other duties and functions as the
sangguniang barangay may determine or delegate; and (i) Exercise such other powers
and perform such other duties and functions as may be prescribed by law or ordinance."
6. Rollo, pp. 47-55. Resolution No. 4713 is entitled "Rules and Regulations on the Registration of
Members of the Katipunan ng Kabataan in Connection with the May 6, 2002 Election of
Members of the Sangguniang Kabataan."
7. Ibid., pp. 56-61. Resolution No. 4714 is entitled "Calendar of Activities and Periods of Certain
Prohibited Acts in Connection with the May 6, 2002 Election of Members of the
Sangguniang Kabataan."
8. Ibid., pp. 62-63.
9. Ibid., p. 64.
10. Ibid., p. 65.

11. Entitled "In Re: Position of the Commission on Elections on the Postponement or
Synchronization of the Barangay and Sangguniang Kabataan (SK) Elections within the
year 2002."
12 Ibid., pp. 66-68.
13. Ibid., pp. 69-71.

14. "An Act amending Republic Act No. 7160, otherwise known as the 'Local Government Code
of 1991,' as amended, resetting the elections of the Sangguniang Kabataan o cials to
the first Monday of November, 2002, and for other purposes."
15. "An Act providing for a synchronized Barangay and Sangguniang Kabataan elections on the
second Monday of November 2002, repealing Republic Act No. 8524, and for other
purposes."
16. Represented by Atty. Abraham A. Mantilla.
17. This should read "more."
18. Rollo, pp. 25-26.

19. "An Act Providing for Synchronized Barangay and Sangguniang Kabataan Elections,
Amending Republic Act No. 7160, As Amended, Otherwise Known As 'The Local
Government Code of 1991,' And For Other Purposes."
20. Sections 6 and 7 of RA No. 9164.
21. Integrated Bar of the Philippines vs. Zamora, 338 SCRA 81 (2000).
22. Allied Broadcasting Center, Inc. v. Republic, 190 SCRA 782 (1990).
23. Santiago v. Guingona, 298 SCRA 756 (1998); See also Arroyo v. De Venecia, 277 SCRA 268
(1997); Tolentino v. Secretary of Finance, 249 SCRA 628 (1995).
24. Isagani A. Cruz, Philippine Political Law, 1998 Ed., p. 152.
25. Bayan (Bagong Alyansang Makabayan) v. Zamora, 342 SCRA 449 (2000).

26. Caruncho III v. Commission on Elections, 315 SCRA 693 (1999).
27. See Reyes v. Court of Appeals, 320 SCRA 486 (1999).
28. Petition dated March 11, 2002, p. 3; Rollo, p. 8.
29. Ibid.
30. Section 438, Local Government Code of 1991.

31. Section 390, Local Government Code of 1991.
32. Section 5, RA No. 8044.
33. Section 1, Article XI of the 1987 Constitution.
34. 41 Phil. 188 (1920).
35. Section 26, Article 11 of the 1987 Constitution.

36. Section 13, Article 11 of the 1987 Constitution.
37. Section 2, paragraph (1), Article IX-C of the 1987 Constitution.
38. Section 2, paragraph (7), Article IX-C of the 1987 Constitution.
39. Salcedo vs. Comelec, 312 SCRA 447 (1999).

40. G.R. No. 148075, February 4, 2002.
41. Integrated Bar of the Philippines v. Zamora, see note 21.

EN BANC
[G.R. No. 148560. November 19, 2001.]
JOSEPH EJERCITO ESTRADA , petitioner, vs . SANDIGANBAYAN (Third

Division) and PEOPLE OF THE PHILIPPINES , respondents.
Agarin Verzola Hermoso & Layasen Law O ces, Saguisag Carao & Associates, Jose
B. Flaminiano and Fortun Narvasa & Salazar for petitioner.
The Solicitor General for respondents.
SYNOPSIS
The Court a rmed the constitutionality of RA 7080, otherwise known as the Plunder
Law, as amended by RA 7659. The Plunder Law contained ascertainable standards and
well-de ned parameters which would enable the accused to determine the nature of his
violation. Indeed, it can be understood that what the assailed statute punishes is the act of
a public o cer in amassing ill-gotten wealth of at least P50,000,000 through a series or
combination of acts enumerated in the Plunder Law. Petitioner bewailed the failure of the
law to provide statutory de nitions of the terms used. The Court, however, ruled that the
same will not render the law void and the words of the statute will be interpreted in their
ordinary acceptation. Hence, petitioner's reliance on the "void-for-vagueness" doctrine is
misplaced. That the Plunder Law requires only proof of pattern of the criminal acts
showing unlawful scheme, the Court ruled that the same does not do away with the
requirement of proving guilt beyond reasonable doubt. However, what the prosecution
needs to prove beyond reasonable doubt is only a number of acts su cient to form a
combination or series which would constitute a pattern and involving an amount of at least
P50,000,000. There is no need to prove each and every other act alleged in the Information
to have been committed by the accused in furtherance of the overall unlawful scheme or
conspiracy to amass ill-gotten wealth.
SYLLABUS
1. POLITICAL LAW; LEGISLATION; PRESUMPTION OF CONSTITUTIONALITY. —

The whole gamut of legal concepts pertaining to the validity of legislation is predicated on
the basic principle that a legislative measure is presumed to be in harmony with the
Constitution. Courts invariably train their sights on this fundamental rule whenever a
legislative act is under a constitutional attack, for it is the postulate of constitutional
adjudication. This strong predilection for constitutionality takes its bearings on the idea
that it is forbidden for one branch of the government to encroach upon the duties and
powers of another. Thus it has been said that the presumption is based on the deference
the judicial branch accords to its coordinate branch — the legislature. If there is any
reasonable basis upon which the legislation may rmly rest, the courts must assume that
the legislature is ever conscious of the borders and edges of its plenary powers, and has
passed the law with full knowledge of the facts and for the purpose of promoting what is
right and advancing the welfare of the majority. Hence in determining whether the acts of
the legislature are in tune with the fundamental law, courts should proceed with judicial
restraint and act with caution and forbearance. Every intendment of the law must be
adjudged by the courts in favor of its constitutionality, invalidity being a measure of last
resort. In construing therefore the provisions of a statute, courts must rst ascertain
whether an interpretation is fairly possible to sidestep the question of constitutionality. CADHcI
2. ID.; ID.; ID.; BURDEN OF PROOF WHEN LAW IS CHALLENGED. — The onerous
task of rebutting the presumption weighs heavily on the party challenging the validity of
the statute. He must demonstrate beyond any tinge of doubt that there is indeed an
infringement of the constitution, for absent such a showing, there can be no nding of
unconstitutionality. A doubt, even if well-founded, will hardly su ce. As tersely put by
Justice Malcolm, "To doubt is to sustain."
3. ID.; ID.; PLUNDER LAW; CONTAINS WELL-DEFINED PARAMETERS. — As it is
written, the Plunder Law contains ascertainable standards and well-de ned parameters
which would enable the accused to determine the nature of his violation. Section 2 is
su ciently explicit in its description of the acts, conduct and conditions required or
forbidden, and prescribes the elements of the crime with reasonable certainty and
particularity. As long as the law affords some comprehensible guide or rule that would
inform those who are subject to it what conduct would render them liable to its penalties,
its validity will be sustained. It must su ciently guide the judge in its application; the
counsel, in defending one charged with its violation; and more importantly, the accused, in
identifying the realm of the proscribed conduct. Indeed, it can be understood with little
di culty that what the assailed statute punishes is the act of a public o cer in amassing
or accumulating ill-gotten wealth of at least P50,000,000.00 through a series or
combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law. In fact, the
amended Information itself closely tracks the language of the law, indicating with
reasonable certainty the various elements of the offense which petitioner is alleged to
have committed.
4. ID.; ID.; ID.; TERMS USED; ABSENCE OF STATUTORY DEFINITION THEREOF
DOES NOT RENDER LAW VOID; POPULAR MEANING GENERALLY APPLIED. — Petitioner
bewails the failure of the law to provide for the statutory de nition of the terms
"combination" and "series" in the key phrase "a combination or series of overt or criminal
acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions,
according to petitioner, render the Plunder Law unconstitutional for being impermissibly
vague and overbroad and deny him the right to be informed of the nature and cause of the
accusation against him, hence, violative of his fundamental right to due process. A statute
is not rendered uncertain and void merely because general terms are used therein, or
because of the employment of terms without de ning them; much less do we have to
de ne every word we use. Besides, there is no positive constitutional or statutory
command requiring the legislature to de ne each and every word in an enactment.
Congress is not restricted in the form of expression of its will, and its inability to so de ne
the words employed in a statute will not necessarily result in the vagueness or ambiguity
of the law so long as the legislative will is clear, or at least, can be gathered from the whole
act, which is distinctly expressed in the Plunder Law. Moreover, it is a well-settled principle
of legal hermeneutics that words of a statute will be interpreted in their natural, plain and
ordinary acceptation and signi cation, unless it is evident that the legislature intended a
technical or special legal meaning to those words. The intention of the lawmakers — who
are, ordinarily, untrained philologists and lexicographers — to use statutory phraseology in
such a manner is always presumed. Further, that Congress intended the words
"combination" and "series" to be understood in their popular meanings is pristinely evident
from the legislative deliberations on the bill which eventually became RA 7080 or the
Plunder Law.
5. ID.; ID.; ID.; ID.; WORDS "COMBINATION," "SERIES" AND "PATTERN";
ELUCIDATED. — When the Plunder Law speaks of "combination," it is referring to at least
two (2) acts falling under different categories of enumeration provided in Sec. 1, par. (d),
e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance
of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3). On the
other hand, to constitute a "series" there must be two (2) or more overt or criminal acts
falling under the same category of enumeration found in Sec. 1, par. (d), say,
misappropriation, malversation and raids on the public treasury, all of which fall under Sec.
1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning
for "combination" and "series," it would have taken greater pains in speci cally providing
for it in the law. As for "pattern," we agree with the observations of the Sandiganbayan that
this term is su ciently de ned in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 of the
Plunder Law.
6. ID.; ID.; ID.; "VOID-FOR-VAGUENESS" DOCTRINE; NOT APPLICABLE. —
Petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The
doctrine has been formulated in various ways, but is most commonly stated to the effect
that a statute establishing a criminal offense must de ne the offense with su cient
de niteness that persons of ordinary intelligence can understand what conduct is
prohibited by the statute. It can only be invoked against that specie of legislation that is
utterly vague on its face, i.e., that which cannot be clari ed either by a saving clause or by
construction. A statute or act may be said to be vague when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning and
differ in its application. In such instance, the statute is repugnant to the Constitution in two
(2) respects — it violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary exing of the
Government muscle. But the doctrine does not apply as against legislations that are
merely couched in imprecise language but which nonetheless specify a standard though
defectively phrased; or to those that are apparently ambiguous yet fairly applicable to
certain types of activities. The rst may be "saved" by proper construction, while no
challenge may be mounted as against the second whenever directed against such
activities. With more reason, the doctrine cannot be invoked where the assailed statute is
clear and free from ambiguity, as in this case. The test in determining whether a criminal
statute is void for uncertainty is whether the language conveys a su ciently de nite
warning as to the proscribed conduct when measured by common understanding and
practice. It must be stressed, however, that the "vagueness" doctrine merely requires a
reasonable degree of certainty for the statute to be upheld — not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than
meticulous speci city, is permissible as long as the metes and bounds of the statute are
clearly delineated. An act will not be held invalid merely because it might have been more
explicit in its wordings or detailed in its provisions, especially where, because of the nature
of the act, it would be impossible to provide all the details in advance as in all other
statutes. Ambiguity, where none exists, cannot be created by dissecting parts and words
in the statute to furnish support to critics who cavil at the want of scientific precision in the
law. Every provision of the law should be construed in relation and with reference to every
other part. To be sure, it will take more than nitpicking to overturn the well-entrenched
presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner
cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who
voted for its passage, petitioner must be aware that the law was extensively deliberated
upon by the Senate and its appropriate committees by reason of which he even registered
his a rmative vote with full knowledge of its legal implications and sound constitutional
anchorage.
7. ID.; ID.; ID.; PROVISION IN SEC. 4 THAT ONLY PROOF OF PATTERN OF
CRIMINAL ACTS SHOWING UNLAWFUL SCHEME IS REQUIRED; DOES NOT DO AWAY WITH
PROOF BEYOND REASONABLE DOUBT. — Petitioner advances the highly stretched theory
that Sec. 4 of the Plunder Law circumvents the immutable obligation of the prosecution to
prove beyond reasonable doubt the predicate acts constituting the crime of plunder when
it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or
conspiracy. In a criminal prosecution for plunder, as in all other crimes, the accused always
has in his favor the presumption of innocence which is guaranteed by the Bill of Rights, and
unless the State succeeds in demonstrating by proof beyond reasonable doubt that
culpability lies, the accused is entitled to an acquittal. The use of the "reasonable doubt"
standard is indispensable to command the respect and con dence of the community in
the application of criminal law. It is critical that the moral force of criminal law be not
diluted by a standard of proof that leaves people in doubt whether innocent men are being
condemned. It is also important in our free society that every individual going about his
ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal
offense without convincing a proper fact nder of his guilt with utmost certainty. This
"reasonable doubt" standard has acquired such exalted stature in the realm of
constitutional law as it gives life to the Due Process Clause which protects the accused
against conviction except upon proof beyond reasonable doubt of every fact necessary to
constitute the crime with which he is charged. The legislature did not in any manner
refashion the standard quantum of proof in the crime of plunder. The burden still remains
with the prosecution to prove beyond any iota of doubt every fact or element necessary to
constitute the crime.
8. ID.; ID.; ID.; ID.; ELUCIDATED. — The thesis that Sec. 4 does away with proof of
each and every component of the crime suffers from a dismal misconception of the
import of that provision. What the prosecution needs to prove beyond reasonable doubt is
only a number of acts su cient to form a combination or series which would constitute a
pattern and involving an amount of at least P50,000,000.00. There is no need to prove
each and every other act alleged in the Information to have been committed by the
accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate
or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an
Information for plunder with having committed fty (50) raids on the public treasury. The
prosecution need not prove all these fty (50) raids, it being su cient to prove by pattern
at least two (2) of the raids beyond reasonable doubt provided only that they amounted to
at least P50,000,000.00. A reading of Sec. 2 in conjunction with Sec. 4, brings us to the
logical conclusion that "pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing
hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to
prove beyond reasonable doubt the predicate acts as de ned in Sec. 1, par. (d). Pattern is
merely a by-product of the proof of the predicate acts. This conclusion is consistent with
reason and common sense. There would be no other explanation for a combination or
series of overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth." The prosecution is
therefore not required to make a deliberate and conscious effort to prove pattern as it
necessarily follows with the establishment of a series or combination of the predicate
acts.
9. ID.; ID.; ID.; ID.; "PATTERN," NOT AN ELEMENT OF CRIME AND DOES NOT
AFFECT SEC. 4 PROVIDING FOR RULE OF EVIDENCE. — Relative to petitioner's contentions
on the purported defect of Sec. 4 is his submission that "pattern" is "a very important
element of the crime of plunder"; and that Sec. 4 is "two pronged, (as) it contains a rule of
evidence and a substantive element of the crime," such that without it the accused cannot
be convicted of plunder — We do not subscribe to petitioner's stand. Primarily, all the
essential elements of plunder can be culled and understood from its de nition in Sec. 2, in
relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and
opening clause of Sec. 4 is clear and unequivocal: SEC. 4 . Rule of Evidence. — For purposes
of establishing the crime of plunder . . . It purports to do no more than prescribe a rule of
procedure for the prosecution of a criminal case for plunder. Being a purely procedural
measure, Sec. 4 does not de ne or establish any substantive right in favor of the accused
but only operates in furtherance of a remedy. It is only a means to an end, an aid to
substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be
had, for what is crucial for the prosecution is to present su cient evidence to engender
that moral certitude exacted by the fundamental law to prove the guilt of the accused
beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is
awed and vitiated for the reasons advanced by petitioner, it may simply be severed from
the rest of the provisions without necessarily resulting in the demise of the law; after all,
the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA
7080 provides for a separability clause. And implicit in that section is that to avoid the
whole act from being declared invalid as a result of the nullity of some of its provisions,
assuming that to be the case although it is not really so, all the provisions thereof should
accordingly be treated independently of each other, especially if by doing so, the
objectives of the statute can best be achieved. DCcIaE
10. ID.; ID.; ID.; A CRIME MALUM IN SE. — We agree with Justice Mendoza that
plunder is a malum in se which requires proof of criminal intent. Thus, he says . . . "The
legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a
malum in se. For when the acts punished are inherently immoral or inherently wrong, they
a r e mala in se and it does not matter that such acts are punished in a special law,
especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it
would be absurd to treat prosecutions for plunder as though they are mere prosecutions
for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against
jaywalking, without regard to the inherent wrongness of the acts."
11. ID.; ID.; ID.; CONSTITUTIONALITY OF PLUNDER LAW, UPHELD. — Petitioner
likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional
grounds. Su ce it to say however that it is now too late in the day for him to resurrect this
long dead issue, the same having been eternally consigned by People v. Echegaray to the
archives of jurisprudential history. The declaration of this Court therein that RA 7659 is
constitutionally valid stands as a declaration of the State, and becomes, by necessary
effect, assimilated in the Constitution now as an integral part of it. Our nation has been
racked by scandals of corruption and obscene pro igacy of o cials in high places which
have shaken its very foundation. The anatomy of graft and corruption has become more
elaborate in the corridors of time as unscrupulous people relentlessly contrive more and
more ingenious ways to bilk the coffers of the government. Drastic and radical measures
are imperative to ght the increasingly sophisticated, extraordinarily methodical and
economically catastrophic looting of the national treasury. Such is the Plunder Law,
especially designed to disentangle those ghastly tissues of grand-scale corruption which,
if left unchecked, will spread like a malignant tumor and ultimately consume the moral and
institutional ber of our nation. The Plunder Law, indeed, is a living testament to the will of
the legislature to ultimately eradicate this scourge and thus secure society against the
avarice and other venalities in public o ce. These are times that try men's souls. In the
checkered history of this nation, few issues of national importance can equal the amount
of interest and passion generated by petitioner's ignominious fall from the highest o ce,
and his eventual prosecution and trial under a virginal statute. This continuing saga has
driven a wedge of dissension among our people that may linger for a long time. Only by
responding to the clarion call for patriotism, to rise above factionalism and prejudices,
shall we emerge triumphant in the midst of ferment.
MENDOZA, J., concurring opinion:
1. POLITICAL LAW; CONSTITUTIONAL LAW; PRESUMPTION OF
CONSTITUTIONALITY OF A LEGISLATIVE ACT, WHEN APPLICABLE. — Again, it should be
noted that what the U.S. Supreme Court said is that "there may be narrower scope for the
operation of the presumption of constitutionality" for legislation which comes within the
rst ten amendments to the American Federal Constitution compared to legislation
covered by the Fourteenth Amendment Due Process Clause. The American Court did not
say that such legislation is not to be presumed constitutional, much less that it is
presumptively invalid, but only that a "narrower scope" will be given for the presumption of
constitutionality in respect of such statutes. There is, therefore, no warrant for petitioner's
contention that "the presumption of constitutionality of a legislative act is applicable only
where the Supreme Court deals with facts regarding ordinary economic affairs, not where
the interpretation of the text of the Constitution is involved."
2. ID.; ID.; ANTI-PLUNDER LAW; VALIDITY, CANNOT BE DETERMINED BY
APPLYING THE TEST OF STRICT SCRUTINY IN FREE SPEECH CASES. — Hence, strict
scrutiny is used today to test the validity of laws dealing with the regulation of speech,
gender, or race and facial challenges are allowed for this purpose. But criminal statutes,
like the Anti-Plunder Law, while subject to strict construction, are not subject to strict
scrutiny. The two ( i.e., strict construction and strict scrutiny) are not the same. The rule of
strict construction is a rule of legal hermeneutics which deals with the parsing of statutes
to determine the intent of the legislature. On the other hand, strict scrutiny is a standard of
judicial review for determining the quality and the amount of governmental interest
brought to justify the regulation of fundamental freedoms. It is set opposite such terms as
"deferential review" and "intermediate review."
3. ID.; ID.; STATUTES; DEGREES OF STRICTNESS IN THEIR REVIEW. — Thus,
under deferential review, laws are upheld if they rationally further a legitimate
governmental interest, without courts seriously inquiring into the substantiality of such
interest and examining the alternative means by which the objectives could be achieved.
Under intermediate review, the substantiality of the government interest is seriously
looked into and the availability of less restrictive alternatives are considered. Under strict
scrutiny, the focus is on the presence of compelling, rather than substantial, governmental
interest and on the absence of less restrictive means for achieving that interest.
Considering these degrees of strictness in the review of statutes, how many criminal laws
can survive the test of strict scrutiny to which petitioner proposes to subject them? How
many can pass muster if, as petitioner would have it, such statutes are not to be presumed
constitutional? Above all, what will happen to the State's ability to deal with the problem of
crimes, and, in particular, with the problem of graft and corruption in government, if
criminal laws are to be upheld only if it is shown that there is a compelling governmental
interest for making certain conduct criminal and if there is no other means less restrictive
than that contained in the law for achieving such governmental interest?
4. ID.; ID.; ANTI-PLUNDER LAW; VOID-FOR-VAGUENESS AND OVERBREADTH
DOCTRINES; FACIAL CHALLENGE, ALLOWED TO A VAGUE STATUTE AND TO ONE WHICH
IS OVERBROAD DUE TO POSSIBLE EFFECT UPON PROTECTED SPEECH; RATIONALE, NOT
APPLICABLE TO PENAL LAWS. — Nor do allegations that the Anti-Plunder Law is vague
and overbroad justify a facial review of its validity. The void-for-vagueness doctrine states
that "a statute which either forbids or requires the doing of an act in terms so vague that
men of common intelligence must necessarily guess at its meaning and differ as to its
application, violates the rst essential of due process of law." The overbreadth doctrine, on
the other hand, decrees that "a governmental purpose may not be achieved by means
which sweep unnecessarily broadly and thereby invade the area of protected freedoms." A
facial challenge is allowed to be made to a vague statute and to one which is overbroad
because of possible "chilling effect" upon protected speech. The theory is that "[w]hen
statutes regulate or proscribe speech and no readily apparent construction suggests itself
as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to
all society of constitutionally protected expression is deemed to justify allowing attacks
on overly broad statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute drawn with narrow
speci city." The possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of others may be
deterred and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes
have general in terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the law cannot take chances as in the
area of free speech.
5. ID.; ID.; ID.; ID.; HAVE SPECIAL APPLICATION ONLY TO FREE SPEECH CASES
AND INAPT FOR TESTING THE VALIDITY OF PENAL STATUTES. — The overbreadth and
vagueness doctrines then have special application only to free speech cases. They are
inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an
opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine
outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court
ruled that "claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth
claims, if entertained at all, have been curtailed when invoked against ordinary laws that are
sought to be applied to protected conduct." For this reason, it has been held that "a facial
challenge to a legislative Act is . . . the most difficult challenge to mount successfully, since
the challenger must establish that no set of circumstances exists under which the Act
would be valid." As for the vagueness doctrine, it is said that a litigant may challenge a
statute on its face only if it is vague in all its possible applications. "A plaintiff who engages
in some conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others."
6. ID.; ID.; ID.; DOCTRINES OF STRICT SCRUTINY, OVERBREADTH, AND
VAGUENESS ARE TOOLS FOR TESTING ON THEIR FACES STATUTES IN FREE SPEECH
CASES, NOT IN CRIMINAL STATUTES. — In sum, the doctrines of strict scrutiny,
overbreadth, and vagueness are analytical tools developed for testing "on their faces"
statutes in free speech cases or, as they are called in American law, First Amendment
cases. They cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a statute
is constitutional will not be heard to attack the statute on the ground that impliedly it might
also be taken as applying to other persons or other situations in which its application
might be unconstitutional." As has been pointed out, "vagueness challenges in the First
Amendment context, like overbreadth challenges typically produce facial invalidation, while
statutes found vague as a matter of due process typically are invalidated [only] 'as applied'
to a particular defendant." Consequently, there is no basis for petitioner's claim that this
Court review the Anti-Plunder Law on its face and in its entirety.
7. ID.; ID.; ID.; "ON ITS FACE" INVALIDATION OF STATUTES MUST BE EMPLOYED
SPARINGLY. — Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the Court whose
activities are constitutionally protected. It constitutes a departure from the case and
controversy requirement of the Constitution and permits decisions to be made without
concrete factual settings and in sterile abstract contexts. . . . This is the reason "on its
face" invalidation of statutes has been described as "manifestly strong medicine," to be
employed "sparingly and only as a last resort," and is generally disfavored. In determining
the constitutionality of a statute, therefore, its provisions which are alleged to have been
violated in a case must be examined in the light of the conduct with which the defendant is
charged. cdtai
8. ID.; ID.; ID.; NO NEED TO SPECIFY HOW MANY ACTS ARE NEEDED IN ORDER
TO HAVE A "COMBINATION" OR A "SERIES." — Petitioner contends that the phrase
"combination or series of overt, or criminal acts" in §1(d) and §2 should state how many
acts are needed in order to have a "combination" or a "series." It is not really required that
this be speci ed. . . . Indeed, the record shows that no amendment to S. No. 733 was
proposed to this effect. To the contrary, Senators Gonzales and Tañada voted in favor of
the bill on its third and nal reading on July 25, 1989. The ordinary meaning of the term
"combination" as the "union of two things or acts" was adopted, although in the case of
"series," the senators agreed that a repetition of two or more times of the same thing or
act would su ce, thus departing from the ordinary meaning of the word as "a group of
usually three or more things or events standing or succeeding in order and having a like
relationship to each other," or "a spatial or temporal succession of persons or things," or "a
group that has or admits an order of arrangement exhibiting progression.". . . Thus, resort
to the deliberations in Congress will readily reveal that the word "combination" includes at
least two different overt or criminal acts listed in R.A. No. 7080, such as misappropriation
(§1(d)(1)) and taking undue advantage of o cial position (§1(d)(6)). On the other hand,
"series" is used when the offender commits the same overt or criminal act more than once.
There is no plunder if only one act is proven, even if the ill-gotten wealth acquired thereby
amounts to or exceeds the gure xed by the law for the offense (now P50,000,000.00).
The overt or criminal acts need not be joined or separated in space or time, since the law
does not make such a quali cation. It is enough that the prosecution proves that a public
o cer, by himself or in connivance with others, amasses wealth amounting to at least P50
million by committing two or more overt or criminal acts.
9. ID.; ID.; ID.; THE PHRASE "SERIES OF ACTS OR TRANSACTIONS," NOT VAGUE;
SIMILAR PROVISION HAS BEEN IN THE RULES OF COURT SINCE 1940. — Petitioner also
contends that the phrase "series of acts or transactions" is the subject of con icting
decisions of various Circuit Courts of Appeals in the United States. It turns out that the
decisions concerned a phrase in Rule 8(b) of the Federal Rules of Criminal Procedure
which provides: (b) Joinder of Defendants. Two or more defendants may be charged in the
same indictment or information if they are alleged to have participated in the same act or
transaction or in the same series of acts or transactions constituting an offense or
offenses. Such defendants may be charged in one or more counts together or separately
and all of the defendants need not be charged on each count. The fact that there is a
con ict in the rulings of the various courts does not mean that Rule 8(b) is void for being
vague but only that the U.S. Supreme Court should step in, for one of its essential functions
is to assure the uniform interpretation of federal laws. We have a similar provision in Rule
3, §6 of the 1997 Code of Civil Procedure. It reads: SEC. 6. Permissive joinder of parties. —
All persons in whom or against whom any right to relief in respect to or arising out of the
same transaction or series of transactions is alleged to exist, whether jointly, severally, or
in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be
joined as defendants in one complaint, where any question of law or fact common to all
such plaintiffs or to all such defendants may arise in the action; but the court may make
such orders as may be just to prevent any plaintiff or defendant from being embarrassed
or put to expense in connection with any proceedings in which he may have no interest.
This provision has been in our Rules of Court since 1940 but it has never been thought of
as vague. It will not do, therefore, to cite the con ict of opinions in the United States as
evidence of the vagueness of the phrase when we do not have any conflict in this country.
10. ID.; ID.; ID.; NOT NECESSARY TO PROVE EACH AND EVERY CRIMINAL ACT
DONE IN FURTHERANCE OF THE SCHEME OR CONSPIRACY AS LONG AS THOSE PROVEN
SHOWED A PATTERN INDICATING THE SCHEME OR CONSPIRACY. — A "pattern of overt
or criminal acts" is required in §4 to prove "an unlawful scheme or conspiracy." In such a
case, it is not necessary to prove each and every criminal act done in furtherance of the
scheme or conspiracy so long as those proven show a pattern indicating the scheme or
conspiracy. In other words, when conspiracy is charged, there must be more than a
combination or series of two or more acts. There must be several acts showing a pattern
which is "indicative of the overall scheme or conspiracy." As Senate President Salonga
explained, if there are 150 constitutive crimes charged, it is not necessary to prove beyond
reasonable doubt all of them. If a pattern can be shown by proving, for example, 10
criminal acts, then that would be sufficient to secure conviction.
11. ID.; ID.; ID.; PRESENTS ONLY PROBLEMS OF STATUTORY CONSTRUCTION,
NOT VAGUENESS OR OVERBREADTH. — As thus applied to petitioner, the Anti-Plunder
Law presents only problems of statutory construction, not vagueness or overbreadth. In
Primicias vs. Fugoso, an ordinance of the City of Manila, prohibiting the holding of parades
and assemblies in streets and public places unless a permit was rst secured from the
city mayor and penalizing its violation, was construed to mean that it gave the city mayor
only the power to specify the streets and public places which can be used for the purpose
but not the power to ban absolutely the use of such places. A constitutional doubt was
thus resolved through a limiting construction given to the ordinance. Nor is the alleged
difference of opinion among the Ombudsman, the Solicitor General, and the
Sandiganbayan as to the number of acts or crimes needed to constitute plunder proof of
the vagueness of the statute and, therefore, a ground for its invalidation. For sometime it
was thought that under Art. 134 of the Revised Penal Code convictions can be had for the
complex crime of rebellion with murder, arson, and other common crimes. The question
was nally resolved in 1956 when this Court held that there is no such complex crime
because the common crimes were absorbed in rebellion. The point is that Art. 134 gave
rise to a difference of opinion that nearly split the legal profession at the time, but no one
thought Art. 134 to be vague and, therefore, void. Where, therefore, the ambiguity is not
latent and the legislative intention is discoverable with the aid of the canons of
construction, the void for vagueness doctrine has no application.
12. ID.; ID.; ID.; PLUNDER, A MALUM IN SE, REQUIRING PROOF OF CRIMINAL
INTENT. — Plunder is a malum in se, requiring proof of criminal intent. Precisely because
the constitutive crimes are mala in se the element of mens rea must be proven in a
prosecution for plunder. It is noteworthy that the amended information alleges that the
crime of plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty
knowledge on the part of petitioner.
13. ID.; ID.; ID.; MENS REA, AN ELEMENT OF PLUNDER SINCE THE DEGREE OF
RESPONSIBILITY OF THE OFFENDER IS DETERMINED BY HIS CRIMINAL INTENT. — The
application of mitigating and extenuating circumstances in the Revised Penal Code to
prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an
element of plunder since the degree of responsibility of the offender is determined by his
criminal intent. It is true that §2 refers to "any person who participates with the said public
o cers in the commission of an offense contributing to the crime of plunder." There is no
reason to believe, however, that it does not apply as well to the public o cer as principal in
the crime. As Justice Holmes said: "We agree to all the generalities about not supplying
criminal laws with what they omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean."
14. ID.; ID.; ID.; THAT THE CRIME OF PLUNDER IS A MALUM IN SE PROVED BY
ITS INCLUSION BY CONGRESS AS AMONG THE HEINOUS CRIMES PUNISHABLE BY
RECLUSION PERPETUA TO DEATH. — Finally, any doubt as to whether the crime of plunder
is a malum in se must be deemed to have been resolved in the a rmative by the decision
of Congress in 1993 to include it among the heinous crimes punishable by reclusion
perpetua to death. Other heinous crimes are punished with death as a straight penalty in
R.A. No. 7659.
15. ID.; ID.; ID.; ID.; LEGISLATIVE DECLARATION IN R.A. NO. 7659 THAT
PLUNDER IS A HEINOUS OFFENSE IMPLIES THAT IT IS A MALUM IN SE. — The legislative
declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in
se. For when the acts punished are inherently immoral or inherently wrong, they are mala in
se and it does not matter that such acts are punished in a special law, especially since in
the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd
to treat prosecutions for plunder as though they are mere prosecutions for violations of
the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without
regard to the inherent wrongness of the acts.
16. ID.; ID.; ID.; QUANTUM OF PROOF REQUIRED TO PROVE PREDICATE CRIMES
IN PLUNDER IS THE SAME AS THAT REQUIRED IF SEPARATELY PROSECUTED. — We have
explained why, contrary to petitioner's contention, the quantum of proof required to prove
the predicate crimes in plunder is the same as that required were they separately
prosecuted.
17. ID.; ID.; ID.; PENALTY; LEGISLATURE VIEWED PLUNDER AS A CRIME AS
SERIOUS AS ROBBERY WITH HOMICIDE OR RAPE WITH HOMICIDE PUNISHABLE BY
RECLUSION PERPETUA TO DEATH BY PUNISHING IT WITH THE SAME PENALTY. — But
this is also the case whenever other special complex crimes are created out of two or
more existing crimes. For example, robbery with violence against or intimidation of
persons under Art. 294, par. 5 of the Revised Penal Code is punished with prision
correccional in its maximum period (4 years, 2 months, and 1 day) to prision mayor in its
medium period (6 years and 1 day to 8 years). Homicide under Art. 249 of the same Code
is punished with reclusion temporal (12 years and 1 day to 20 years). But when the two
crimes are committed on the same occasion, the law treats them as a special complex
crime of robbery with homicide and provides the penalty of reclusion perpetua to death for
its commission. Again, the penalty for simple rape under Art. 266-B of the Revised Penal
Code is reclusion perpetua, while that for homicide under Art. 249 it is reclusion temporal
(12 years and 1 day to 20 years). Yet, when committed on the same occasion, the two are
treated as one special complex crime of rape with homicide and punished with a heavier
penalty of reclusion perpetua to death. Obviously, the legislature views plunder as a crime
as serious as robbery with homicide or rape with homicide by punishing it with the same
penalty.
18. ID.; ID.; ID.; NOT A REGULATION OF SPEECH, BUT A CRIMINAL STATUTE
DESIGNED TO COMBAT GRAFT AND CORRUPTION. — But the Anti-Plunder Law is not a
regulation of speech. It is a criminal statute designed to combat graft and corruption,
especially those committed by highly-placed public o cials. As conduct and not speech is
its object, the Court cannot take chances by examining other provisions not before it
without risking vital interests of society. Accordingly, such statute must be examined only
"as applied" to the defendant and, if found valid as to him, the statute as a whole should not
be declared unconstitutional for overbreadth or vagueness of its other provisions. ACTIcS
PANGANIBAN, J., separate opinion:

1. CRIMINAL LAW; REPUBLIC ACT 7080 (PLUNDER LAW); ELEMENTS OF THE
CRIME. — The Anti-Plunder Law more than adequately answers the question "What is the
violation?" Indeed, to answer this question, any law student — using basic knowledge of
criminal law — will refer to the elements of the crime, which in this case are plainly and
certainly spelled out in a straightforward manner in Sections 2 and 1 (d) thereof. Those
elements are: 1. The offender is a public o cer acting by himself or in connivance with
members of his family, relatives by a nity or consanguinity, business associates,
subordinates or other persons. 2. The offender amasses, accumulates or acquires ill-
gotten wealth. 3. The aggregate amount or total value of the ill-gotten wealth so amassed,
accumulated or acquired is at least fty million pesos (P50,000,000.00). 4. Such ill-gotten
wealth — de ned as any asset, property, business enterprise or material possession of any
of the aforesaid persons (the persons within the purview of Section 2, RA 7080) — has
been acquired directly or indirectly through dummies, nominees, agents, subordinates
and/or business associates by any combination or series of the following means or similar
schemes: (i) through misappropriation, conversion, misuse or malversation of public funds
or raids on the public treasury; (ii) by receiving, directly or indirectly, any commission, gift,
share, percentage, kickbacks or any other form of pecuniary bene t from any person
and/or entity in connection with any government contract or project or by reason of the
o ce or position of the public o cer concerned; (iii) by the illegal or fraudulent
conveyance or disposition of assets belonging to the national government or any of its
subdivisions, agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries; (iv) by obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other form of interest or participation including
the promise of future employment in any business enterprise or undertaking; (v) by
establishing agricultural, industrial or commercial monopolies or other combination and/or
implementation of decrees and orders intended to bene t particular persons or special
interests; or (vi) by taking undue advantage of o cial position, authority, relationship,
connection or in uence to unjustly enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the Republic of the Philippines.
2. ID.; ID.; ABSENCE OF STATUTORY DEFINITIONS OF WORDS USED IN A
STATUTE WILL NOT RENDER THE LAW "VOID FOR VAGUENESS," IF THE MEANINGS OF
SUCH WORDS CAN BE DETERMINED THROUGH THE JUDICIAL FUNCTION OF
CONSTRUCTION. — Citing People v. Nazario, petitioner adds that "a statute or act may be
said to be vague when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ as to its application." I say,
however, that in that very case cited by petitioner, the Court cautioned that "the act (or law)
must be utterly vague on its face." When it can be "clari ed either by a saving clause or by
construction," the law cannot be decreed as invalid. In other words, the absence of
statutory de nitions of words used in a statute will not render the law "void for vagueness,"
if the meanings of such words can be determined through the judicial function of
construction.
3. ID.; ID.; SPECIFIC NUMBER OR PERCENTAGE NOT ALWAYS NECESSARY. —
As pointed out during the Oral Argument on September 18, 2001, the crime of plunder can
be committed by a public o cer acting alone. Section 2 of RA 7080 reads as follows:
"De nition of the Crime of Plunder ; Penalties. — Any public o cer who, by himself or in
connivance with . . . ." Thus, the insistence on a mathematical speci cation or precise
quanti cation is essentially without basis. And lest anyone believe that the Anti-Plunder
Law is unusual in this respect, let me just recall that the RICO law, to which petitioner made
repeated references in his Amended Petition, can likewise be violated by a single
individual.
4. ID.; ID.; NOT OPPRESSIVE OR ARBITRARY. — Neither can it be said that RA
7080 is oppressive or arbitrary for imposing a more severe penalty on a combination or
series of the offenses enumerated in Section 1(d) of the law, than would otherwise be
imposed if the said offenses were taken separately. As Mr. Justice Mendoza lucidly
pointed out in his interpellation during the Oral Argument, the Anti-Plunder Law is merely
employing a familiar technique or feature of penal statutes, when it puts together what
would otherwise be various combinations of traditional offenses already proscribed by
existing laws and attaching thereto higher or more severe penalties than those prescribed
for the same offenses taken separately.
5. ID.; ID.; INNOCENT ACTS NOT PENALIZED. — The claim of "innocent acts" is
possible only because items 4 and 5 have been taken completely out of context and read
in isolation instead of in relation to the other provisions of the same law, particularly
Section 2. The above-enumerated acts, means or similar schemes must be understood as
having reference to or connection with the acquisition of ill-gotten wealth by a public
o cer, by himself or in connivance with others. Those acts are therefore not innocent acts.
Neither are those prohibitions new or unfamiliar. The proscribed acts under item 4, for
instance, may to some extent be traced back to some of the prohibitions in RA 3019 (the
Anti-Graft Law). On the other hand, the prohibited acts under item 5 have antecedents in
the Revised Penal Code's interdiction against monopolies and combinations in restraint of
trade. Clearly, the acts dealt with in Items 4 and 5 of Section 1(d) are in no wise the
innocent or innocuous deeds that petitioner would have us mistake them for.
6. ID.; ID.; "PATTERN OF OVERT OR CRIMINAL ACTS"; NOT AN ESSENTIAL OR
SUBSTANTIVE ELEMENT OF THE CRIME. — Petitioner, in line with his "void for vagueness"
attack on RA 7080, faults the statute for failing to provide a de nition of the phrase a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy
used in Section 4 of the law. This de nition is crucial since, according to him, such pattern
is an essential element of the crime of plunder. A plain reading of the law easily debunks
this contention. First, contrary to petitioner's suggestions, such pattern of overt or criminal
acts and so on is not and should not be deemed an essential or substantive element of the
crime of plunder. It is possible to give full force and effect to RA 7080 without applying
Section 4 — an accused can be charged and convicted under the Anti-Plunder Law without
resorting to that speci c provision. After all, the heading and the text of Section 4, leave no
room for doubt that it is not substantive in nature.
7. ID.; ID.; PLUNDER INVOLVES NOT JUST THIEVERY BUT ECONOMIC
DEPREDATION WHICH AFFECTS NOT JUST PRIVATE PARTIES OR PERSONAL INTEREST
BUT THE NATION AS A WHOLE. — As can be gleaned from the legislative deliberations, the
Plunder Law was enacted to curb the "despoliation of the National Treasury by some
public o cials who have held the levers of power" and to penalize "this predatory act
which has reached unprecedented heights and has been developed by its practitioners to a
high level of sophistication during the past dictatorial regime." Viewed broadly, "plunder
involves not just plain thievery but economic depredation which affects not just private
parties or personal interests but the nation as a whole." Invariably, plunder partakes of the
nature of a "a crime against national interests which must be stopped, and if possible,
stopped permanently."
8. ID.; ID.; NO PATENT AND CLEAR CONFLICT WITH THE CONSTITUTION. — The
law must be proven to be clearly and unequivocally repugnant to the Constitution before
this Court may declare its unconstitutionality. To strike down the law, there must be a clear
showing that what the fundamental law prohibits, the statute allows to be done. To justify
the nulli cation of the law, there must be a clear, unequivocal breach of the Constitution;
not a doubtful, argumentative implication. Of some terms in the law which are easily
clari ed by judicial construction, petitioner has, at best, managed merely to point out
alleged ambiguities. Far from establishing, by clear and unmistakable terms, any patent
and glaring con ict with the Constitution, the constitutional challenge to the Anti-Plunder
Law must fail. For just as the accused is entitled to the presumption of innocence in the
absence of proof beyond reasonable doubt, so must a law be accorded the presumption
of constitutionality without the same requisite quantum of proof.
9. ID.; ID.; QUANTUM OF EVIDENCE REQUIRED IN CRIMINAL CASES NOT
LOWERED BY THE LAW. — First, petitioner's allegation as to the meaning and implications
of Section 4 can hardly be taken seriously, because it runs counter to certain basic
common sense presumptions that apply to the process of interpreting statutes; that in the
absence of evidence to the contrary, it will be presumed that the legislature intended to
enact a valid, sensible and just law; that the law-making body intended right and justice to
prevail; and that the legislature aimed to impart to its enactments such meaning as would
render them operative and effective and prevent persons from eluding or defeating them.
Second, petitioner's allegation is contradicted by the legislative Records that manifest the
real intent behind Section 4, as well as the true meaning and purpose of the provision
therein. This intent is carefully expressed by the words of Senate President Salonga:
"Senate Pres. Salonga. Is that if there are let's say 150 crimes all in all, criminal acts,
whether bribery, misappropriation, malversation, extortion, you need not prove all of those
beyond reasonable doubt. If you can prove by pattern, let's say 10, but each must be
proved beyond reasonable doubt, you do not have to prove 150 crimes. That's the meaning
of this."
10. ID.; ID.; THE INDICATIVE PATTERN MUST BE PROVEN BEYOND
REASONABLE DOUBT. — Nevertheless, it should be emphasized that the indicative pattern
must be proven beyond reasonable doubt. To my mind, this means that the prosecution's
burden of proving the crime of plunder is, in actuality, much greater than in an ordinary
criminal case. The prosecution, in establishing a pattern of overt or criminal acts, must
necessarily show a combination or series of acts within the purview of Section 1(d) of the
law. These acts which constitute the combination or series must still be proven beyond
reasonable doubt. On top of that, the prosecution must establish beyond reasonable
doubt such pattern to overt or criminal acts indicative of the overall scheme or conspiracy,
as well as all the other elements thereof.
11. ID.; ID.; SECTION 4 OF THE LAW PERTAINS ONLY TO A RULE ON EVIDENCE
OR TO A PROCEDURAL MATTER THAT DOES NOT BEAR UPON OR FORM ANY PART OF
THE ELEMENTS OF PLUNDER AND THE COURT MAY DECLARE THE SAME
UNCONSTITUTIONAL AND STRIKE IT OFF THE STATUTE WITHOUT NECESSARILY
AFFECTING THE LEGISLATIVE INTENT. — Even granting arguendo that Section 4 of the
Anti-Plunder Law suffers from some constitutional in rmity, the statute may nonetheless
survive the challenge of constitutionality in its entirety. Considering that this provision
pertain only to a rule on evidence or to a procedural matter that does not bear upon or
form any part of the elements of the crime of plunder, the Court may declare the same
unconstitutional and strike it off the statute without necessarily affecting the essence of
the legislative enactment. For even without the assailed provision, the law can still stand as
a valid penal statute inasmuch as the elements of the crime, as well as the penalties
therein, may still be clearly identi ed or su ciently derived from the remaining valid
portions of the law. This nds greater signi cance when one considers that Section 7 of
the law provides for a separability clause declaring the validity, the independence and the
applicability of the other remaining provisions, should any other provision of the law be
held invalid or unconstitutional.aScITE
12. ID.; ID.; REGARDLESS OF WHETHER PLUNDER IS CLASSIFIED AS MALA

PROHIBITA OR IN SE, IT IS THE PREROGATIVE OF THE LEGISLATURE TO DETERMINE
WHETHER CERTAIN ACTS ARE CRIMINAL IRRESPECTIVE OF THE ACTUAL INTENT OF THE
PERPETRATOR. — While I simply cannot agree that the Anti-Plunder Law eliminated mens
rea from the component crimes of plunder, my bottom-line position still is: regardless of
whether plunder is classi ed as mala prohibita or in se, it is the prerogative of the
legislature — which is undeniably vested with the authority — to determine whether certain
acts are criminal irrespective of the actual intent of the perpetrator.
13. ID.; ID.; MATTER OF CLASSIFICATION IS NOT SIGNIFICANT, THE KEY IS
WHETHER THE SAME BURDEN OF PROOF THAT IS PROOF BEYOND REASONABLE DOUBT
WOULD APPLY. — Without being facetious, may I say that, unlike the act of discharging a
gun, the acts mentioned in Section 1(d) — bribery, conversion, fraudulent conveyance,
unjust enrichment and the like — cannot be committed sans criminal intent. And thus, I
nally arrive at a point of agreement with petitioner: that the acts enumerated in Section
1(d) are by their nature mala in se, and most of them are in fact de ned and penalized as
such by the Revised Penal Code. Having said that, I join the view that when we speak of
plunder, we are referring essentially to two or more instances of mala in se constituting
one malum prohibitum. Thus, there should be no di culty if each of the predicate acts be
proven beyond reasonable doubt as mala in se, even if the defense of lack of intent be
taken away as the Solicitor General has suggested. In brief, the matter of classi cation is
not really signi cant , contrary to what petitioner would have us believe. The key, obviously,
is whether the same burden of proof — proof beyond reasonable doubt — would apply.
14. POLITICAL LAW; JUDICIAL DEPARTMENT; EMPOWERED TO CONSTRUE
AND APPLY THE LAW. — At all events, let me stress that the power to construe law is
essentially judicial. To declare what the law shall be is a legislative power, but to declare
what the law is or has been is judicial. Statutes enacted by Congress cannot be expected
to spell out with mathematical precision how the law should be interpreted under any and
all given situations. The application of the law will depend on the facts and circumstances
as adduced by evidence which will then be considered, weighed and evaluated by the
courts. Indeed, it is the constitutionally mandated function of the courts to interpret,
construe and apply the law as would gives esh and blood to the true meaning of
legislative enactments.
KAPUNAN , J., dissenting opinion:
1. POLITICAL LAW; CRIMINAL STATUTE; PRESUMED CONSTITUTIONAL;
EXCEPTION. — Every law enacted by Congress enjoys a presumption of constitutionality,
and the presumption prevails in the absence of contrary evidence. A criminal statute is
generally valid if it does not violate constitutional guarantees of individual rights.
Conversely, when a constitutionally protected right of an individual is in danger of being
trampled upon by a criminal statute, such law must be struck down for being void.
2. ID.; ID.; CLARITY AND DEFINITENESS; REQUIRED; RATIONALE. — One of the
fundamental requirements imposed by the Constitution upon criminal statutes is that
pertaining to clarity and de niteness. Statutes, particularly penal laws, that fall short of this
requirement have been declared unconstitutional for being vague. This "void-for-
vagueness" doctrine is rooted in the basic concept of fairness as well as the due process
clause of the Constitution. The Constitution guarantees both substantive and procedural
due process as well as the right of the accused to be informed of the nature and cause of
the accusation against him. A criminal statute should not be so vague and uncertain that
"men of common intelligence must necessarily guess as to its meaning and differ as to its
application."
3. ID.; ID.; ID.; "VOID-FOR-VAGUENESS" DOCTRINE; CONSTRUED. — There are
three distinct considerations for the vagueness doctrine. First, the doctrine is designed to
ensure that individuals are properly warned ex-ante of the criminal consequences of their
conduct. This "fair notice" rationale was articulated in United States v. Harriss: The
constitutional requirement of de niteness is violated by a criminal statute that fails to give
a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by
the statute. The underlying principle is that no man shall be held criminally responsible for
conduct which he could not reasonably understand to be proscribed. Second, and viewed
as more important, the doctrine is intended to prevent arbitrary and discriminatory law
enforcement. Vague laws are invariably "standardless" and as such, they afford too great
an opportunity for criminal enforcement to be left to the unfettered discretion of police
o cers and prosecutors. Third, vague laws fail to provide su cient guidance to judges
who are charged with interpreting statutes. Where a statute is too vague to provide
su cient guidance, the judiciary is arguably placed in the position of usurping the proper
function of the legislature by "making the law" rather than interpreting it. While the dictum
that laws be clear and de nite does not require Congress to spell out with mathematical
certainty the standards to which an individual must conform his conduct, it is necessary
that statutes provide reasonable standards to guide prospective conduct. And where a
statute imposes criminal sanctions, the standard of certainty is higher. The penalty
imposable on the person found guilty of violating R.A. No. 7080 is reclusion perpetua to
death. Given such penalty, the standard of clarity and de niteness required of R.A. No.
7080 is unarguably higher than that of other laws.
4. ID.; ID.; ID.; ID.; APPLICATION THEREOF. — A view has been proferred that
"vagueness and overbreadth doctrines are not applicable to penal laws." These two
concepts, while related, are distinct from each other. On one hand, the doctrine of
overbreadth applies generally to statutes that infringe upon freedom of speech. On the
other hand, the "void-for-vagueness" doctrine applies to criminal laws, not merely those
that regulate speech or other fundamental constitutional rights. The fact that a particular
criminal statute does not infringe upon free speech does not mean that a facial challenge
to the statute on vagueness grounds cannot succeed. As earlier intimated, the "vagueness
doctrine" is anchored on the constitutionally-enshrined right to due process of law. Thus,
as in this case that the "life, liberty and property" of petitioner is involved, the Court should
not hesitate to look into whether a criminal statute has su ciently complied with the
elementary requirements of de niteness and clarity. It is an erroneous argument that the
Court cannot apply the vagueness doctrine to penal laws. Such stance is tantamount to
saying that no criminal law can be challenged however repugnant it is to the constitutional
right to due process. While admittedly, penal statutes are worded in reasonably general
terms to accomplish the legislature's objective of protecting the public from socially
harmful conduct, this should not prevent a vagueness challenge in cases where a penal
statute is so indeterminate as to cause the average person to guess at its meaning and
application. For if a statute infringing upon freedom of speech may be challenged for being
vague because such right is considered as fundamental, with more reason should a
vagueness challenge with respect to a penal statute be allowed since the latter involve
deprivation of liberty, and even of life which, inarguably, are rights as important as, if not
more than, free speech.
5. CRIMINAL LAW; R.A. NO. 7080 (PLUNDER LAW); CRIME OF PLUNDER,
DEFINED. — Sec. 2 of R.A. No. 7080 provides: De nition of the Crime of Plunder ; Penalties.
— Any public o cer who, by himself or in connivance with members of his family, relatives
by a nity or consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a combination or series of overt or
criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of
at least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and
shall be punished by reclusion perpetua to death. Any person who participated with the
said public o cer in the commission of an offense contributing to the crime of plunder
shall likewise be punished for such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating circumstances, as provided
by the Revised Penal Code, shall be considered by the court. The court shall declare any
and all ill-gotten wealth and their interests and other incomes and assets including the
properties and shares of stocks derived from the deposit or investment thereof forfeited
in favor of the State. (As amended by Sec. 12, RA No. 7659 .) On the other hand, Section 4
states: Rule of Evidence. — For purposes of establishing the crime of plunder, it shall not
be necessary to prove each and every criminal act done by the accused in furtherance of
the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being
su cient to establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.
6. ID.; ID.; "ILL-GOTTEN WEALTH"; DEFINED. — Section 1(d) of the same law
de nes "ill-gotten wealth" as "any asset, property, business enterprise or material
possession of any person within the purview of Section Two (2)" hereof, acquired by him
directly or indirectly through dummies, nominees, agents, subordinates, and/or business
associates by any combination or series of the following means or similar schemes: 1.
Through misappropriation, conversion, misuse or malversation of public funds or raids on
the public treasury; 2. By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary bene t from any person and/or
entity in connection with any government contract or project or by reason of the o ce or
position of the public o cer concerned; 3. By the illegal or fraudulent conveyance or
disposition of assets belonging to the National Government or any of its subdivisions,
agencies or instrumentalities or government-owned or controlled corporations and their
subsidiaries; 4. By obtaining, receiving or accepting directly or indirectly any shares of
stock, equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking; 5. By establishing agricultural,
industrial or commercial monopolies or other combination and/or other combination
and/or implementation of decrees and orders intended to bene t particular persons or
special interests; or 6. By taking undue advantage of o cial position, authority,
relationship, connection or in uence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and the Republic of the
Philippines.
7. ID.; ID.; "COMBINATION" AND "SERIES"; USE THEREOF FAILED TO SATISFY
STRICT REQUIREMENTS ON CLARITY AND DEFINITENESS. — Although the law has no
statutory de nition of "combination" or "series," the majority is of the view that resort can
be had to the ordinary meaning of these terms. Thus, Webster's Third New International
Dictionary gives the meaning of "combination"; "the result or product or product of
combining: a union or aggregate made of combining one thing with another." In the context
of R.A. No. 7080, "combination" as suggested by the Solicitor General means that at least
two of the enumerated acts found in Section 1(d), i.e., one of any of the enumerated acts,
combined with another act falling under any other of the enumerated means may
constitute the crime of plunder. With respect to the term "series," the majority states that it
has been understood as pertaining to "two or more overt or criminal acts falling under the
same category" as gleaned from the deliberations on the law in the House of
Representatives and the Senate. . . . To my mind, resort to the dictionary meaning of the
terms "combination" and "series" as well as recourse to the deliberations of the lawmakers
only serve to prove that R.A. No. 7080 failed to satisfy the strict requirements of the
Constitution on clarity and de niteness. Note that the key element to the crime of plunder
is that the public o cer, by himself or in conspiracy with others, amasses, accumulates, or
acquires "ill-gotten wealth" through a "combination or series of overt or criminal acts" as
described in Section 1(d) of the law. Senator Gonzales, during the deliberations in the
Senate, already raised serious concern over the lack of a statutory de nition of what
constitutes "combination" or "series," consequently, expressing his fears that Section 2 of
R.A. No. 7080 might be violative of due process. . . . The point raised by Senator Gonzales
is crucial and well-taken. I share petitioner's observation that when penal laws enacted by
Congress make reference to a term or concept requiring a quantitative de nition, these
laws are so crafted as to specifically state the exact number or percentage necessary to
constitute the elements of a crime. . . . The deliberations of the Bicameral Conference
Committee and of the Senate cited by the majority, consisting mostly of un nished
sentences, offer very little help in clarifying the nebulous concept of plunder. All that they
indicate is that Congress seemingly intended to hold liable for plunder a person who: (1)
commits at least two counts of any one of the acts mentioned in Section 1(d) of R.A. No.
7080, in which case, such person commits plunder by a series of overt criminal acts; or (2)
commits at least one count of at least two of the acts mentioned in Section 1(d), in which
case, such person commits plunder by a combination of overt criminal acts. Said
discussions hardly provide a window as to the exact nature of this crime. . . . Moreover, if
"combination" as used in the law simply refers to the amassing, accumulation and
acquisition of ill-gotten wealth amounting to at least P50 Million through at least two of
the means enumerated in Section 1(d), and "series," to at least two counts of one of the
modes under said section, the accused could be meted out the death penalty for acts
which, if taken separately, i.e., not considered as part of the combination or series, would
ordinarily result in the imposition of correctional penalties only. If such interpretation
would be adopted, the Plunder Law would be so oppressive and arbitrary as to violate due
process and the constitutional guarantees against cruel or inhuman punishment. The
penalty would be blatantly disproportionate to the offense. ISTECA
8. ID.; ID.; PENALTY; VIOLATIVE OF SUBSTANTIVE DUE PROCESS. — The

argument that higher penalties may be imposed where two or more distinct criminal acts
are combined and are regarded as special complex crime, i.e., rape with homicide, does
not justify the imposition of the penalty of reclusion perpetua to death in case plunder is
committed. Taken singly, rape is punishable by reclusion perpetua; and homicide, by
reclusion temporal. Hence, the increase in the penalty imposed when these two are
considered together as a special complex crime is not too far from the penalties imposed
for each of the single offenses. In contrast, as shown by the examples above, there are
instances where the component crimes of plunder, if taken separately, would result in the
imposition of correctional penalties only; but when considered as forming part of a series
or combination of acts constituting plunder, could be punishable by reclusion perpetua to
death. The disproportionate increase in the penalty is certainly violative of substantive due
process and constitute a cruel and inhuman punishment. It may also be pointed out that
the de nition of "ill-gotten wealth" in Section 1(d) has reference to the acquisition of
property (by the accused himself or in connivance with others) "by any combination or
series" of the "means" or "similar schemes" enumerated therein, which include the
following: . . . 4. By obtaining, receiving or accepting directly or indirectly any shares of
stock, equity or any other forms of interest or participation including the promise of future
employment or any business enterprise or undertakings; 5. By establishing agricultural,
industrial or commercial monopolies or other combination and/or implementation of
decrees and orders intended to bene t particular persons or special interests; . . . The
above-mentioned acts are not, by any stretch of the imagination, criminal or illegal acts.
They involve the exercise of the right to liberty and property guaranteed by Article III,
Section 1 of the Constitution which provides that "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." Receiving or accepting any shares of stock is not per se
objectionable. It is in pursuance of civil liberty, which includes "the right of the citizen to be
free to use his faculties in all lawful ways; . . . to earn his livelihood by any lawful calling; to
pursue any avocation, and/or that purpose, to enter into all contracts which may be proper,
necessary and essential to his carrying out these purposes to a successful conclusion. Nor
is there any impropriety, immorality or illegality in establishing agricultural, industrial or
commercial monopolies or other combination and/or implementation of decrees and
orders even if they are intended to bene t particular persons or special interests. The
phrases "particular persons" and "special interests" may well refer to the poor, the
indigenous cultural communities, labor, farmers, sherfolk, women, or those connected
with education, science and technology, arts, culture and sports. In contrast, the
monopolies and combinations described in Article 186 of the Revised Penal Code are
punishable because, as speci cally de ned therein, they are "on restraint of trade or
commerce or to prevent by arti cial means of free competition in the market, or the object
is "to alter the price" of any merchandise "by spreading false rumors," or to manipulate
market prices in restraint of trade. There are no similar elements of monopolies or
combinations as described in the Plunder Law to make the acts wrongful. If, as interpreted
by the Solicitor General, "series" means a "repetition" or pertains to "two or more" acts, and
"combination as de ned in the Webster's Third New International Dictionary is "the result
or product of combining one thing with another," then, the commission of two or more acts
falling under paragraphs (4) and (5) of Section 1(d) would make innocent acts protected
by the Constitution as criminal, and punishable by reclusion perpetua to death.
9. ID.; ID.; PATTERN AS AN ESSENTIAL ELEMENT THEREOF; NOT PROPERLY
DEFINED. — It is a basic rule of statutory construction that to ascertain the meaning of a
law, the same must be read in its entirety. Section 1 taken in relation to Section 4 suggests
that there is something to plunder beyond simply the number of acts involved and that a
grand scheme to amass, accumulate or acquire ill-gotten wealth is contemplated by R.A.
No. 7080. Sections 1 and 2 pertain only to the nature and quantitative means or acts by
which a public o cer, by himself or in connivance with other persons, "amasses,
accumulates or acquires ill-gotten wealth." Section 4, on the other hand, requires the
presence of elements other than those enumerated in Section 2 to establish that the crime
of plunder has been committed because it speaks of the necessity to establish beyond
reasonable doubt a "pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy." Clearly, it will not su ce that the "illegal wealth" amassed is at
least Fifty Million Pesos and that this was acquired by any two or more of the acts
described in Section 1(d); it is necessary that these acts constitute a "combination or
series" of acts done in furtherance of "the scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth," and which constitute "a person of overt or criminal acts
indicative of the overall scheme or conspiracy." That pattern is an essential element of the
crime of plunder is evident from a reading of the assailed law in its entirety. It is that which
would distinguish plunder from isolated criminal acts punishable under the Revised Penal
Code and other laws, for without the existence a "pattern of overt or criminal acts
indicative of the overall scheme or conspiracy" to acquire ill-gotten wealth, a person
committing several or even all of the acts enumerated in Section 1(d) cannot be convicted
for plunder, but may be convicted only for the speci c crimes committed under the
pertinent provisions of the Revised Penal Code or other laws. For this reason, I do not
agree that Section 4 is merely a rule of evidence or a rule of procedure. It does not become
such simply because its caption states that it is, although its wording indicates otherwise.
On the contrary, it is of substantive character because it spells out a distinctive element of
the crime which has to be established, i.e., an overall unlawful "scheme or conspiracy"
indicated by a "pattern of overt or criminal acts" or means or similar schemes "to amass,
accumulate or acquire ill-gotten wealth." The meaning of the phrase "pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy," however, escapes
me. As in "combination" and "series," R.A. No. 7080 does not provide a de nition of
"pattern" as well as "overall unlawful scheme." Reference to the legislative history of R.A.
No. 7080 for guidance as to the meanings of these concepts would be unavailing, since
the records of the deliberations in Congress are silent as to what the lawmakers mean by
these terms. Resort to the dictionary meanings of "pattern" and "scheme" is, in this case,
wholly inadequate. These words are de ned as: pattern: an arrangement or order of things
or activity. Scheme: design; project; plot. At most, what the use of these terms signi es is
that while multiplicity of the acts (at least two or more) is necessary, this is not su cient
to constitute plunder. As stated earlier, without the element of "pattern" indicative of an
"overall unlawful scheme," the acts merely constitute isolated or disconnected criminal
offenses punishable by the Revised Penal Code or other special laws. The commission of
two or more of the acts falling under Section 1(d) is no guarantee that they fall into a
"pattern" or "any arrangement or order." It is not the number of acts but the relationship
that they bear to each other or to some external organizing principle that renders them
"ordered" or "arranged": A pattern is an arrangement or order of things, or activity, and the
mere fact that there are a number of predicates is no guarantee that they fall into an
arrangement or order. It is not the number of predicates but the relationship that they bear
to each other or to some external organizing principle that renders them 'ordered' or
'arranged.' In any event, it is hardly possible that two predicate acts can form a pattern: The
implication is that while two acts are necessary, they may not be su cient. Indeed, in
common parlance, two of anything will not generally form a 'pattern.' . . . Clearly, "pattern"
has been statutorily de ned and interpreted in countless ways by circuit courts in the
United States. Their divergent conclusions have functioned effectively to create variant
criminal offenses. This confusion has come about notwithstanding that almost all these
state laws have respectively statutorily de ned "pattern." In sharp contrast, R.A. No. 7080,
as earlier pointed out, lacks such crucial de nition . As to what constitutes pattern within
the meaning of R.A. No. 7080 is left to the ad hoc interpretation of prosecutors and judges.
Neither the text of R.A. No. 7080 nor legislative history afford any guidance as to what
factors may be considered in order to prove beyond reasonable doubt "pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy." Be that as it may, it
is glaringly fallacious to argue that "series" simply means a "repetition" or "pertaining to
two or more" and "combination" is the "result or product of combining." Whether two or
more or at least three acts are involved, the majority would interpret the phrase
"combinations" or "series" only in terms of number of acts committed. They entirely
overlook or ignore Section 4 which requires "a pattern of overt of criminal acts indicative of
the overall unlawful scheme or conspiracy" to convict.
10. ID.; ID.; PERSON WHO PARTICIPATES IN THE COMMISSION OF ONLY ONE
OF THE COMPONENT CRIMES CONSTITUTING PLUNDER MAY BE LIABLE AS CO-
PRINCIPAL. — Section 2 of R.A. No. 7080 states that "[a]ny person who participated with
the said public o cer in the commission of an offense contributing to the crime of plunder
shall likewise be punished for such offense. In the imposition of penalties, the degree of
by the Revised Penal Code, shall be considered by the court." Both parties share the view
that the law as it is worded makes it possible for a person who participates in the
commission of only one of the component crimes constituting plunder to be liable as co-
conspirator for plunder, not merely the component crime in which he participated. While
petitioner concedes that it is easy to ascertain the penalty for an accomplice or accessory
under R.A. No. 7080, such is not the case with respect to a co-principal of the accused. In
other words, a person who conspires with the accused in the commission of only one of
the component crimes may be prosecuted as co-principal for the component crime, or as
co-principal for the crime of plunder, depending on the interpretation of the prosecutor.
The unfettered discretion effectively bestowed on law enforcers by the aforequoted clause
in determining the liability of the participants in the commission of one or more of the
component crimes of a charge for plunder undeniably poses the danger of arbitrary
enforcement of the law. EHaCID
11. ID.; ID.; PRESCRIPTIVE PERIOD THEREOF; NOT CLEARLY STATED. — Section
6 of R.A. No. 7080 provides that the crime punishable under said Act shall prescribe in
twenty (20) years. Considering that the law was designed to cover a "combination or
series of overt or criminal acts," or "a pattern of overt or criminal acts," from what time
shall the period of prescription be reckoned? From the rst, second, third or last act of the
series or pattern? What shall be the time gap between two succeeding acts? If the last act
of a series or combination was committed twenty or more years after the next preceding
one, would not the crime have prescribed, thereby resulting in the total extinction of
criminal liability under Article 89(b) of the Revised Penal Code? In antithesis, the RICO law
affords more clarity and de niteness in describing "pattern of racketeering activity" as "at
least two acts of racketeering activity, one of which occurred within ten years (excluding
any period of imprisonment) after the commission of a prior act of racketeering activity."
The U.S. state statutes similarly provide speci c time frames within which racketeering
acts are committed.
12. ID.; ID.; SECTION 4 THEREOF ELIMINATES PROOF OF EACH AND EVERY
COMPONENT CRIMINAL ACT OF PLUNDER AND LIMITS ITSELF TO ESTABLISHING
PATTERN OF OVERT ACTS; EFFECT THEREOF. — By its language, Section 4 eliminates
proof of each and every component criminal act of plunder by the accused and limits itself
to establishing just the pattern of overt or criminal acts indicative of unlawful scheme or
conspiracy. The law, in effect, penalizes the accused on the basis of a proven scheme or
conspiracy to commit plunder without the necessity of establishing beyond reasonable
doubt each and every criminal act done by the accused in the crime of plunder. To quote
Fr. Bernas again: "How can you have a 'series' of criminal acts if the elements that are
supposed to constitute the series are not proved to be criminal?" Moreover, by doing away
with proof beyond reasonable doubt of each and every criminal act done by the accused in
the furtherance of the scheme or conspiracy to acquire ill-gotten wealth, it being su cient
just to prove a pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy, the Plunder Law effectively eliminated the mens rea or criminal intent as an
element of the crime. Because of this, it is easier to convict for plunder and sentence the
accused to death than to convict him for each of the component crimes otherwise
punishable under the Revised Penal Code and other laws which are bailable offenses. The
resultant absurdity strikes at the very heart of the constitutional guarantees of due
process and equal protection. . . . Mens rea is a substantive due process requirement
under the Constitution, and this is a limitation on police power. Additionally, lack of mens
rea or a clarifying scienter requirement aggravates the vagueness of a statute.
13. ID.; ID.; " MALA IN SE" AND "MALA PROHIBITA "; DISTINGUISHED;
APPLICATION THEREOF. — The facts that the acts enumerated in Section 1(d) of R.A.
7080 were made criminal by special law does not necessarily make the same mala
prohibita where criminal intent is not essential, although the term refers generally to acts
made criminal by special laws. For there is a marked difference between the two.
According to a well-known author on criminal law: There is a distinction between crimes
which are mala in se, or wrongful from their nature, such as theft, rape, homicide, etc., and
those that are mala prohibita, or wrong merely because prohibited by statute, such as
illegal possession of rearms. Crimes mala in se are those so serious in their effects on
society as to call for almost unanimous condemnation of its members; while crimes mala
prohibita are violations of mere rules of convenience designed to secure a more orderly
regulation of the affairs of society. (Bouvir's Law Dictionary, Rawle's 3rd Revision) (1) In
acts mala in se, the intent governs; but in those mala prohibita the only inquiry is, has the
law been violated? (People vs. Kibler, 106 N.Y., 321, cited in the case of U.S. vs. Go Chico,
14 Phil. 132) Criminal intent is not necessary where the acts are prohibited for reasons of
public policy, as in illegal possession of rearms. ( People vs. Canosa, C.A., 45 O.G. 3953)
(2) The term mala in se refers generally to felonies de ned and penalized by the Revised
Penal Code. When the acts are inherently immoral, they are mala in se, even if punished by
special laws. On the other hand, there are crimes in the Revised Penal Code which were
originally de ned and penalized by special laws. Among them are possession and use of
opium, malversation, brigandage, and libel. The component acts constituting plunder, a
heinous crime, being inherently wrongful and immoral, are patently mala in se, even if
punished by a special law and accordingly, criminal intent must clearly be established
together with the other elements of the crime; otherwise, no crime is committed. By
eliminating mens rea, R.A. 7080 does not require the prosecution to prove beyond
reasonable doubt the component acts constituting plunder and imposes a lesser burden
of proof on the prosecution, thus paving the way for the imposition of the penalty of
reclusion perpetua to death on the accused, in plain violation of the due process and equal
protection clauses of the Constitution. Evidently, the authority of the legislature to omit the
element of scienter in the proof of a crime refers to regulatory measures in the exercise of
police power, where the emphasis of the law is to secure a more orderly regulations of the
offense of society, rather than the punishment of the crimes. So that in mala prohibita
prosecutions, the element of criminal intent is a requirement for conviction and must be
provided in the special law penalizing what are traditionally mala in se crimes.
14. ID.; ID.; RULE ON ESTOPPEL; MAY BE RESORTED TO ONLY AS A MEANS OF
PREVENTING INJUSTICE; NOT PRESENT IN CASE AT BAR. — The fact that one of
petitioner's counsel was a co-sponsor of the Plunder Law and petitioner himself voted for
its passage when he was still a Senator would not in any put him in estoppel to question its
constitutionality. The rule on estoppel applies to question of fact, not of law. Moreover,
estoppel should be resorted to only as a means of preventing injustice. To hold that
petitioner is estopped from questioning the validity of R.A. No. 7080 because he had
earlier voted for its passage would result in injustice not only to him, but to all others who
may be held liable under this statute. In People vs. Vera, citing the U.S. case of Attorney
General v. Perkins, the Court held: . . . The idea seems to be that the people are estopped
from questioning the validity of a law enacted by their representatives; that to an
accusation by the people of Michigan of usurpation upon their government, a statute
enacted by the people of Michigan is an adequate statute relied on in justi cation is
unconstitutional, it is a statute only in form, and lacks the force of law, and is of no more
saving effect to justify action under it had never been enacted. The constitution is the
supreme law, and to its behests the courts, the legislature, and the people must bow. . . .
The Court should not sanction the use of an equitable remedy to defeat the ends of justice
by permitting a person to be deprived of his life and liberty under an invalid law.
15. ID.; ID.; AMBIGUITY THEREOF RUNS AFOUL OF DUE PROCESS CONCEPT;
RATIONALE. — Undoubtedly, the reason behind the enactment of R.A. 7080 is
commendable. It was a response to the felt need at the time that existing laws were
inadequate to penalize the nature and magnitude of corruption that characterized a
"previous regime." However, where the law, such as R.A. 7080, is so inde nite that the line
between innocent and condemned conduct becomes a matter of guesswork, the
inde niteness runs afoul of due process concepts which require that persons be given full
notice of what to avoid, and that the discretion of law enforcement o cials, with the
attendant dangers of arbitrary and discriminatory enforcement, be limited by explicit
legislative standards. It obfuscates the mind to ponder that such an ambiguous law as R.A.
No. 7080 would put on the balance the life and liberty of the accused against whom all the
resources of the State are arrayed. It could be used as a tool against political enemies and
a weapon of hate and revenge by whoever wields the levers of power.
PARDO, J., dissenting opinion:
POLITICAL LAW; CONSTITUTIONAL LAW; PLUNDER LAW; AMENDMENTS THEREOF
PRESCRIBING DEATH PENALTY UNCONSTITUTIONAL; SINCE LAW PENALIZES ACTS
MALA IN SE, CHARGES MUST BE THE SPECIFIC ACTS ALLEGED IN VIOLATION OF LAW,
COMMITTED WITH MALICE AND CRIMINAL INTENT; PROOF BEYOND REASONABLE
DOUBT OF ALL ELEMENTS OF PLUNDER, INCLUDING COMPONENT CRIMES, REQUIRED. —
Hence, the amendments to the plunder law prescribing the death penalty therefor are
unconstitutional. I am of the view that the plunder law penalizes acts that are mala in se,
and consequently, the charges must be the speci c acts alleged to be in violation of the
law, committed with malice and criminal intent. At any rate, I venture the view that Section
4, R.A. No. 7080, must be interpreted as requiring proof beyond reasonable doubt of all the
elements of plunder as prescribed in the law, including the elements of the component
crimes, otherwise, the section will be unconstitutional.
YNARES-SANTIAGO, J., dissenting opinion:
1. POLITICAL LAW; CONSTITUTIONAL LAW; PLUNDER LAW; VAGUE,
UNCERTAIN AND BROAD. — A reading of the Plunder Law immediately shows that it is
phrased in a manner not susceptible to ready or clear understanding. In the desire to cover
under one single offense of plunder every conceivable criminal activity committed by a
high government o cial in the course of his duties, Congress has come out with a law
unduly vague, uncertain and broad.
2. ID.; ID.; ID.; ID.; A STATUTE INVOLVING CRIMINAL PROSECUTION MUST BE
DEFINITE TO BE VALID; A VAGUE OR OVERBROAD STATUTE VIOLATES THE DUE
PROCESS CLAUSE. — The doctrines of overbreadth and void-for-vagueness in
Constitutional Law were developed in the context of freedom of speech and of the press.
However, they apply equally, if not more so, to capital offenses. In the present case, what
the law seeks to protect or regulate involves the deprivation of life itself and not merely the
regulation of expression. In its early formulation, the overbreadth doctrine states that a
governmental purpose to control or prevent activities constitutionally subject to regulation
may not be achieved by means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms. A statute, especially one involving criminal prosecution, must
be de nite to be valid. A statute is vague or overbroad, in violation of the due process
clause, where its language does not convey su ciently de nite warning to the average
person as to the prohibited conduct. A statute is unconstitutionally vague if people of
common intelligence must necessarily guess at its meaning. It is not only prosecutors and
judges who are concerned. The need for de niteness applies with greater force to the
accused and those in positions where opportunities for them to commit the proscribed
offense are present. They must understand exactly what prohibited activity will be
punished by capital punishment. Sadly, even the record of deliberations in Congress cited
in the motion to quash shows that even the members of the Senate who are illustrious
lawyers found the Plunder Law vague.
3. ID.; ID.; ID.; VOID-FOR-VAGUENESS INFIRMITY OF LAW BECOMES MORE
APPARENT IF PROSCRIBED ACTIVITY IS "MISUSE OF PUBLIC FUNDS." — Under the same
paragraph of the Plunder Law, malversation is lumped with "misuse of public funds."
Misuse can be as innocuous as error or it can be as severe as corruption or embezzlement.
The terms "abuse," "distortion," "misapplication," "mismanagement," "poor stewardship,"
"malpractice," "debasement," or "breach of trust," all conceivably fall under the generic term
"misuse." Exactly when does an administrative offense of misuse become the capital crime
of plunder? What degree of misuse is contemplated under the law? A penal law violates
due process where inherently vague statutory language permits selective law
enforcement. Under the Plunder Law, a crusading public o cer who steps on too many
important toes in the course of his campaign could be prosecuted for a capital offense,
while for exactly the same acts, an o cial who tries to please everybody can be charged
either administratively or for a much lighter offense. For instance, direct bribery under
Article 210 of the Revised Penal Code is punished with prision mayor in its medium or
minimum periods, prision correctional in its medium period, or prision mayor in its
minimum period, depending on the manner of commission. Indirect bribery under Article
211 is punished with prision correccional in its medium and maximum periods. Under the
Plunder Law, the penalty is reclusion perpetua to death. The void-for-vagueness in rmity
becomes all the more apparent if the proscribed activity is "misuse of public funds." The
prosecutor is given broad powers of selective law enforcement. For "misuse," exactly the
same acts could be punished with death under the Plunder Law, or mere dismissal with
prejudice to future government employment under the Civil Service Law.
4. ID.; ID.; ID.; PROVISION THEREOF ON "IMPLEMENTATION OF DECREES AND
ORDERS INTENDED TO BENEFIT PARTICULAR PERSONS OR SPECIAL INTERESTS" CALLS
FOR MORE SPECIFIC ELUCIDATION. — The provision in the Plunder Law on
"implementation of decrees and orders intended to bene t particular persons or special
interests" also calls for more speci c elucidation. If the only person bene ted is himself,
does that fall under "particular person?" Decrees and orders issued by a top government
o cial may be intended to bene t certain segments of society such as farmers,
manufacturers, residents of a geographical area and the like. If in the process a close
relative acquires P50,000,000.00 because of development in that sector solely because of
the decree and without lifting a nger, is that plunder? The vagueness can be better
appreciated by referring to petitioner's arguments that the element of mens rea in mala in
se crimes has been abolished and the offenses have been converted to mala prohibita. If
the guilty intent is eliminated, even innocent acts can be plunder. The law was not drafted
for petitioner alone. It applies to all public officers.
5. ID.; ID.; ID.; CRIMINAL INTENT TO COMMIT THE CRIME NOT REQUIRED TO BE
PROVED; VIOLATION OF SUBSTANTIVE DUE PROCESS AND STANDARDS OF FAIR PLAY. —
Early in the history of this Court, it ruled that in acts mala in se, the criminal intent governs.
But in those acts mala prohibita, the only inquiry is: has the law been violated? Acts
constituting malversation, estafa, and bribery are mala in se. The courts must inquire into
the criminal intent, the evil nature or wrongful disposition behind the criminal acts. In mala
prohibita crimes, there is a violation of a prohibitory law and the inquiry is, therefore, has
the law been violated? In the crime of plunder, it is enough that the acts de ning
malversation or bribery are described. The court then proceeds to determine whether the
acts fall under the prohibitory terms of the law. Criminal intent no longer has to be proved.
The criminal intent to commit the crime is not required to be proved. The desire to bene t
particular persons does not have to spring from criminal intent under the special law
creating the crime of plunder. In malversation or bribery under the Revised Penal Code, the
criminal intent is an important element of the criminal acts. Under the Plunder Law, it is
enough that the acts are committed. Thus, even if the accused can prove lack of criminal
intent with respect to crimes mala in se, this will not exonerate him under the crime mala
prohibita. This violates substantive due process and the standards of fair play because
mens rea is a constitutional guarantee under the due process clause.
6. ID.; ID.; ID.; ID.; DOING AWAY WITH THE ELEMENT OF MENS REA AND
DEPRIVING ACCUSED OF DEFENSE OF CRIMINAL INTENT AS TO MALA IN SE
COMPONENTS OF PLUNDER, ANATHEMA TO SUBSTANTIVE DUE PROCESS. — By grafting
several felonies, some mala in se and some mala prohibita, to constitute the crime of
plunder and by doing away with the standard of proof beyond reasonable doubt for the
component elements, the State would practically be given the judicial imprimatur to
impose the extreme penalty of death on the basis of proof only of the overall pattern of
overt or criminal acts showing unlawful scheme or conspiracy. This attempt of Congress
to tip the scales of criminal justice in favor of the state by doing away with the element of
mens rea and to pave the way for the accused to be convicted by depriving him of the
defense of criminal intent as to mala in se components of plunder will be anathema to
substantive due process which insures "respect for those personal immunities which are
so rooted in the traditions and conscience of our people as to be ranked as fundamental."
7. ID.; ID.; ID.; ID.; ID.; CIRCUMVENTS OBLIGATION OF PROSECUTION TO PROVE
BEYOND REASONABLE DOUBT EVERY FACT NECESSARY TO CONSTITUTE THE CRIME;
PROOF OF PATTERN OF OVERT ACTS SHOWING AN UNLAWFUL SCHEME OR
CONSPIRACY IS MERELY REQUIRED. — Equally disagreeable is the provision of the Plunder
Law which does away with the requirement that each and every component of the criminal
act of plunder be proved and instead limits itself to proving only a pattern of overt acts
indicative of the unlawful scheme or conspiracy. In effect, the law seeks to penalize the
accused only on the basis of a proven scheme or conspiracy, and does away with the
rights of the accused insofar as the component crimes are concerned. In other words, R.A.
No. 7080 circumvents the obligation of the prosecution to prove beyond reasonable doubt
every fact necessary to constitute the crime of plunder, because the law requires merely
proof of a pattern of overt acts showing an unlawful scheme or conspiracy. What
aggravates matters on this point is that under controlling case law, conspiracy to defraud
is not punishable under the Revised Penal Code. Cutting corners on the burden of proof is
unconstitutional because the standard of reasonable doubt is part of the due process
safeguard accorded an accused. The due process clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.
8. ID.; ID.; ID.; WHERE THE STATUTE HAS AN OVERBROAD SWEEP AND IT IS
VAGUE, THE HAZARD OF LOSS OR IMPAIRMENT OF LIFE OR LIBERTY IS CRITICAL. —
Where the statute has an overbroad sweep just as when it is vague, the hazard of loss or
impairment of life or liberty is critical. The problem of vagueness is reduced or eliminated
if the different schemes mentioned in the law used in the acquisition of ill-gotten wealth
are prosecuted under existing penal law. The offenses are by their nature distinct and
separate from each other and have acquired established meanings. Thus, the acts of
misappropriation or malversation may be prosecuted as separate offenses. So may the
receipt of commissions, gifts, or kickbacks by higher o cials in connection with
government contracts. The four other methods or schemes mentioned in the law may be
the object of separate penal statutes.
9. ID.; ID.; ID.; COURTS; SANDIGANBAYAN; EXPANSION OF THE COVERAGE OF
THE LAW THROUGH THE USE OF PHRASES AS "OVER-ALL SCHEME" OR "GENERAL PLAN"
AND SUPPLYING THE MISSING INGREDIENTS OF THE LAW BY CONSTRUCTION OF A
VAGUE OR AMBIGUOUS PROVISION, NOT ALLOWED. — The Sandiganbayan interprets the
words "combination" and "series" of overt or criminal acts through terms found in
American decisions like "pattern," "conspiracy," "over-all unlawful scheme," or "general plan
of action or method." The above de nitions are not found in the Plunder Law. The use of
such phrases as "over-all scheme" or "general plan" indicates that the Sandiganbayan is
expanding the coverage of the law through the use of ambiguous phrases capable of dual
or multiple applications. When do two or three acts of the same offense of malversation
constitute a "pattern," "a general plan of action," or an "over-all scheme?" Would one
malversation in the rst week of a public o cer's tenure and another similar act six (6)
years later become a "combination," a "pattern," or a "general plan of action?" I agree with
petitioner's concern over the danger that the trial court may allow the speci cations of
details in an information to validate a statute inherently void for vagueness. An information
cannot rise higher than the statute upon which it is based. Not even the construction by the
Sandiganbayan of a vague or ambiguous provision can supply the missing ingredients of
the Plunder Law.
10. ID.; ID.; ID.; THE CLARITY AND PARTICULARITY REQUIRED OF A COMPLAINT
OR INFORMATION SHOULD BE PRESENT IN THE LAW UPON WHICH THE CHARGES ARE
BASED. — The right of an accused to be informed of the nature and cause of the
accusation against him is most often exempli ed in the care with which a complaint or
information should be drafted. However, the clarity and particularity required of an
information should also be present in the law upon which the charges are based. If the
penal law is vague, any particularity in the information will come from the prosecutor. The
prosecution takes over the role of Congress. DACIHc
11. ID.; ID.; ID.; FACT THAT DETAILS OF CHARGES ARE SPECIFIED IN THE
INFORMATION WILL NOT CURE THE STATUTE OF ITS CONSTITUTIONAL INFIRMITY. —
The fact that the details of the charges are speci ed in the Information will not cure the
statute of its constitutional in rmity. If on its face the challenged provision is repugnant to
the due process clause, speci cation of details of the offense intended to be charged
would not serve to validate it. In other words, it is the statute, not the accusation under it,
that prescribes the rule to govern conduct and warns against transgression. No one may
be required at peril of life, liberty or property to speculate as to the meaning of penal
statutes. All are entitled to be informed as to what the State commands or forbids.
12. ID.; ID.; ID.; DEFINITENESS, A DUE PROCESS REQUIREMENT; ESPECIALLY
APPLIED TO PENAL STATUTES. — De niteness is a due process requirement. It is
especially important in its application to penal statutes. Vagueness and unintelligibility will
invariably lead to arbitrary government action. The purpose of the due process clause is to
exclude everything that is arbitrary and capricious affecting the rights of the citizen.
Congress, in exercising its power to declare what acts constitute a crime, must inform the
citizen with reasonable precision what acts it intends to prohibit so that he may have a
certain understandable rule of conduct and know what acts it is his duty to avoid.
13. ID.; ID.; ID.; PURPOSES FOR WHICH THE LAW WAS ENACTED, NOT SERVED;
CASE AT BAR. — The questioned statutes were enacted purportedly in the interest of
justice, public peace and order, and the rule of law. These purposes are not served by R.A.
Nos. 7080 and 7659. These statutes allow the prosecutors and the courts arbitrary and
too broad discretionary powers in their enforcement. Fair, equal and impartial justice
would be denied.
SANDOVAL-GUTIERREZ, J., dissenting opinion:
1. POLITICAL LAW; CONSTITUTIONAL LAW; R.A. NO. 7080, AS AMENDED, OR
THE PLUNDER LAW, UNCONSTITUTIONAL; LESSENED THE BURDEN OF PROSECUTION BY
DISPENSING WITH PROOF OF ESSENTIAL ELEMENTS THEREOF. — R.A. No. 7080, as
amended, is unconstitutional. Albeit the legislature did not directly lower the degree of
proof required in the crime of plunder from proof beyond reasonable doubt to mere
preponderance of or substantial evidence, it nevertheless lessened the burden of the
prosecution by dispensing with proof of the essential elements of plunder. Let met quote
the offending provision: SEC. 4 . Rule of Evidence. — For purposes of establishing the crime
of plunder, it shall not be necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass, accumulate, or acquire ill-
gotten wealth, it being su cient to establish beyond reasonable doubt a pattern of overt
or criminal acts indicative of the overall unlawful scheme or conspiracy. In every criminal
prosecution, the law recognizes certain elements as material or essential. Calling a
particular fact an "essential element" carries certain legal consequences. In this case, the
consequence that matters is that the Sandiganbayan cannot convict the accused unless it
unanimously finds that the prosecution has proved beyond reasonable doubt each element
of the crime of plunder.
2. ID.; ID.; ID.; FACTUAL ELEMENTS OF THE CRIME. — Ordinarily, the factual
elements that make up a crime are speci ed in the law that de nes it. Under R.A. No. 7080,
as amended, the essential elements of the crime of plunder are: a) that the offender is a
public o cer; b) that he amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts described in Section 1(d) . . . and c) that the
aggregate amount or total value of the ill-gotten wealth is at least Fifty Million Pesos
(P50,000,000.00).
3. ID.; ID.; ID.; PROVISION THAT PROSECUTION NEED NOT PROVE EACH AND
EVERY CRIMINAL ACT DONE BY THE ACCUSED, RENDERED THE ENUMERATED
"CRIMINAL ACTS" IN SECTION 1(D) OF THE LAW MERELY AS A MEANS, AND NOT AS
ESSENTIAL ELEMENTS THEREOF. — When Section 4 of R.A. No. 7080 mandates that it
shall not be necessary for the prosecution to prove each and every criminal act done by the
accused, the legislature, in affect, rendered the enumerated "criminal acts" under Section
1(d) merely as means and not as essential elements of plunder. This is constitutionally
in rmed and repugnant to the basic idea of justice and fair play. As a matter of due
process, the prosecution is required to prove beyond reasonable doubt every fact
necessary to constitute the crime with which the defendant is charged. The State may not
specify a lesser burden of proof for an element of a crime. With more reason, it should not
be allowed to go around the principle by characterizing an essential element of plunder
merely as a "means" of committing the crime. For the result is the reduction of the burden
of the prosecution to prove the guilt of the accused beyond reasonable doubt.
4. ID.; ID.; ID.; ID.; TREATING THE SPECIFIC "CRIMINAL ACTS" MERELY AS
MEANS TO COMMIT THE GREATER CRIME OF PLUNDER ALLOWS IMPOSITION OF DEATH
PENALTY, EVEN ABSENT A UNANIMITY AMONG THE SANDIGANBAYAN JUSTICES. —
First, treating the speci c "criminal acts" merely as means to commit the greater crime of
plunder, in effect, allows the imposition of the death penalty even if the Justices of the
Sandiganbayan did not "unanimously" nd that the accused are guilty beyond reasonable
doubt of those "criminal acts." The three Justices need only agree that the accused
committed at least two of the criminal acts, even if not proved by evidence beyond
reasonable doubt. They do not have to agree unanimously on which two.
5. ID.; ID.; ID.; SINCE THE LAW PUNISHES PLURALITY OF CRIMINAL ACTS
INDICATIVE OF GRAND SCHEME OR CONSPIRACY TO AMASS ILL-GOTTEN WEALTH,
FOCUS UPON INDIVIDUAL "CRIMINAL ACTS" NECESSARY TO ASSURE GUILT. —
Considering that what R.A. No. 7080 punishes is the plurality of criminal acts indicative of
the grand scheme or conspiracy to amass ill-gotten wealth, it is imperative to focus upon
the individual "criminal acts" in order to assure the guilt of the accused of plunder.
6. ID.; ID.; ID.; LUMPING UP INTO ONE NEW OFFENSE OF PLUNDER SIX
DISTINCT CRIMES PUNISHABLE BY SEPARATE STATUTES RENDERS THE INTENT
INSIGNIFICANT; EVEN ACTS RECKLESSLY COMMITTED WITHOUT INTENT CAN BE
PUNISHED BY DEATH. — R.A. No. 7080 lumps up into one new offense of plunder six (6)
distinct crimes which by themselves are currently punishable under separate statutes or
provisions of law. The six (6) separate crimes become mere "means or similar schemes"
to commit the single offense of plunder. It bears emphasis that each of the separate
offenses is a crime mala in se. The commission of any offense mala in se is inherently
accompanied by a guilty mind or a criminal intent. Unfortunately, R.A. No. 7080 converted
the six mala in se offenses into one crime which is mala prohibita wherein the intent
becomes insignificant. Upon the commission of the proscribed act, without proof of intent,
the law is considered violated. Consequently, even acts recklessly committed ( i.e. without
intent) can be punished by death. DcSTaC
7. ID.; ID.; ID.; PATTERN OF OVERT OR CRIMINAL ACTS CANNOT BE PROVED

BEYOND REASONABLE DOUBT WHEN SPECIFIC "CRIMINAL ACTS" ARE NOT REQUIRED TO
BE PROVED. — Section 4 mandates that it shall not be necessary for the prosecution to
prove each and every criminal act done by the accused . . . it being su cient to prove
beyond reasonable doubt a pattern of overt or criminal acts. By its own terminology,
Section 4 requires that the "pattern" be proved by evidence beyond reasonable doubt.
Initially, we must disassociate the speci c "criminal acts" from the "pattern of criminal
acts." These two phrases do not refer to one and the same thing. Pattern, as de ned in the
dictionary, means an established mode of behavior. In the crime of plunder, the existence
of a "pattern" can only be inferred from the speci c "criminal acts" done by the accused.
Several queries may be raised to determine the existence of a "pattern." Are these criminal
acts related or tied to one another? Is the subsequent criminal act a mere continuation of
the prior criminal act? Do these criminal acts complement one another as to bring about a
single result? Inevitably, one must focus rst on each criminal act to ascertain the
relationship or connection it bears with the other criminal acts, and from there determine
whether a certain "pattern" exists. But how could "pattern" be proved beyond reasonable
doubt when in the rst place the speci c "criminal acts" from which such pattern may be
inferred are not even required to be proved?
8. ID.; ID.; ID.; RULE THAT PROOF BEYOND REASONABLE DOUBT TO ESTABLISH
EVERY FACT NECESSARY TO CONSTITUTE THE CRIME IS NOT REQUIRED, AN
INFRINGEMENT OF DUE PROCESS. — Providing a rule of evidence which does not require
proof beyond reasonable doubt to establish every fact necessary to constitute the crime is
a clear infringement of due process. While the principles of the law of evidence are the
same whether applied on civil or criminal trials, they are more strictly observed in criminal
cases. Thus, while the legislature of a state has the power to prescribe new or alter
existing rules of evidence, or to prescribe methods of proof, the same must not violate
constitutional requirements or deprive any person of his constitutional rights.
Unfortunately, under R .A. No. 7080, the State did not only specify a lesser burden of proof
to sustain an element of the crime; it even dispensed with proof by not considering the
specific "criminal acts" as essential elements.
9. ID.; ID.; ID.; ID.; JUSTIFICATION FOR THE RULE ABSENT; EXISTENCE OF THE
REQUISITE "COMBINATION OR SERIES" BY PROOF BEYOND REASONABLE DOUBT
CANNOT BE ESTABLISHED. — In dispensing with proof of each criminal act, the clear
objective of Congress is to render it less di cult for the prosecution to prove the crime of
plunder. While this presupposes a noble intention, I do not think there is a su cient
justification. I, too, have the strong desire to eliminate the sickness of corruption pervading
in the Philippine government, but more than anything else, I believe there are certain
principles which must be maintained if we want to preserve fairness in our criminal justice
system. If the prosecution is not mandated to prove the speci c "criminal acts" then how
can it establish the existence of the requisite "combination or series" by proof beyond
reasonable doubt?
10. ID.; ID.; ID.; UNCONSTITUTIONAL DUE TO VAGUENESS OF THE TERM
"PATTERN." — Another valid constitutional objection to R.A. No. 7080 is the vagueness of
the term "pattern." As stated by Mr. Justice Kapunan, in his Dissent, the concept of "pattern
of overt or criminal acts" embodied in the law was derived by Congress from the RICO
(Racketeer In uenced and Corrupt Organizations) statute. I am, therefore, constrained to
refer to US law and jurisprudence. "Pattern" as de ned in the RICO statute means "as
requiring at least two acts of racketeering activity . . . the last of which occurred within ten
years . . . after the commission of the prior act of racketeering activity. Mr. Justice
Kapunan observed that unlike the RICO law, the law on plunder does not specify a) the
number of criminal acts necessary before there could be a "pattern," as well as b) the
period within which the succeeding criminal acts should be committed. These failures
render the law void for its vagueness and broadness. Indeed, Congress left much to be
desired. I am at a quandary on how many delictual acts are necessary to give rise to a
"pattern of overt or criminal acts" in the crime of plunder. If there is no numerical standard,
then, how should the existence of "pattern" be ascertained? Should it be by proximity of
time or of relationship? May an act committed two decades after the prior criminal act be
linked with the latter for the purpose of establishing a pattern?
11. ID.; ID.; ID.; ABSENCE OF PERIOD WITHIN WHICH NEXT CRIMINAL ACT
MUST BE COMMITTED TO ESTABLISH PATTERN SUBJECTS PERSON TO CRIMINAL
PROSECUTION AD INFINITUM. — It must be remembered that plunder, being a continuous
offense, the "pattern of overt or criminal acts" can extend inde nitely, i.e., as long as the
succeeding criminal acts may be linked to the initial criminal act. This will expose the
person concerned to criminal prosecution ad in nitum . Surely, it will undermine the
purpose of the statute of limitations, i.e., to discourage prosecution based on facts
obscured by the passage of time, and to encourage law enforcement o cials to
investigate suspected criminal activity promptly. All these undesirable consequences arise
from the fact that the plunder law fails to provide a period within which the next criminal
act must be committed for the purpose of establishing a pattern. I believe R.A. No. 7080
should have provided a cut-off period after which a succeeding act may no longer be
attached to the prior act for the purpose of establishing a pattern. In reiteration, the RICO
law de nes "pattern" as requiring at least two acts of racketeering activity . . . the last of
which occurred within ten years . . . after the commission of the prior act of racketeering
activity. Such limitation prevents a subsequent racketeering activity, separated by more
than a decade from the prior act of racketeering, from being appended to the latter for the
purpose of coming up with a pattern. We do not have the same safeguard under our law.
12. ID.; ID.; ID.; VAGUENESS OF THE TERMS "COMBINATION" AND "SERIES";
LAW SHOULD ESTABLISH THE ELEMENTS OF THE CRIME AND PROVIDE REASONABLY
ASCERTAINABLE STANDARDS OF GUILT; REQUIREMENTS OF THE CONSTITUTION ON
CLARITY AND DEFINITENESS, NOT SATISFIED. — Lastly, the terms "combination" and
"series" are likewise vague. Hence, on the basis of the law, a conviction of an accused
cannot be sustained. A statute that does not provide adequate standards for adjudication,
by which guilt or innocence may be determined, should be struck down. Crimes must be
de ned in a statute with appropriate certainty and de niteness. The standards of certainty
in a statute prescribing punishment for offenses are higher than in those depending
primarily on civil sanctions for their enforcement. A penal statute should therefore be clear
and unambiguous. It should explicitly establish the elements of the crime which it creates
and provide some reasonably ascertainable standards of guilt. It should not admit of such
a double meaning that a citizen may act on one conception of its requirements and the
courts on another. I agree with the observation of Mr. Justice Kapunan that "resort to the
dictionary meaning of the terms 'combination' and 'series' as well as recourse to the
deliberations of the lawmakers only serve to prove that R.A. No. 7080 failed to satisfy the
requirement of the Constitution on clarity and de niteness." The deliberations of our law-
makers, as quoted verbatim in Justice Kapunan's Dissent, indeed, failed to shed light on
what constitute "combination" and "series".
13. ID.; ID.; ID.; ID.; ESSENCE OF THE LAW LIES IN THE PHRASE "COMBINATION
OR SERIES OF OVERT OR CRIMINAL ACTS." — The essence of the law on plunder lies in the
phrase "combination or series of overt or criminal acts." As can be gleaned from the
Record of the Senate, the determining factor of R.A. 7080 is the plurality of the overt acts
or criminal acts under a grand scheme or conspiracy to amass ill-gotten wealth. Thus, even
if the amassed wealth equals or exceeds fty million pesos, a person cannot be
prosecuted for the crime of plunder if there is only a single criminal act.
DEcSaI
14. ID.; ID.; ID.; ID.; ID.; THE TERMS "COMBINATION" AND "SERIES" SHOULD BE
DEFINED WITH EXACTITUDE TO SATISFY THE DEMANDS OF DUE PROCESS. —
Considering that without plurality of overt or criminal acts, there can be no crime of
plunder, due process of law demands that the terms "combination" and "series" be de ned
with exactitude in the law itself. Equating these terms with mere "plurality" or "two or
more," is inaccurate and speculative. For one, a "series" is a group of usually three or more
things or events standing or succeeding in order and having like relationship to each other.
The Special Prosecution Division Panel de nes it as "at least three of the acts enumerated
under Section 1(d) thereof." But it can very well be interpreted as only one act repeated at
least three times. And the O ce of the Solicitor General, invoking the deliberations of the
House of Representatives, contends differently. It de nes the term series as a "repetition"
or pertaining to "two or more." The disparity in the Prosecution and OSG's positions clearly
shows how imprecise the term "series" is. This should not be countenanced. Crimes are
not to be created by inference. No one may be required, at the peril of life, liberty or
property to guess at, or speculate as to, the meaning of a penal statute. An accused,
regardless of who he is, is entitled to be tried only under a clear and valid law.
15. ID.; ID.; ID.; VAGUENESS OF THE LAW NOT CURED BY SPECIFICATION IN
THE INFORMATION OF DETAILS OF THE OFFENSE TO BE CHARGED; THE STATUTE, NOT
THE ACCUSATION, PRESCRIBES THE RULE TO GOVERN CONDUCT AND WARNS AGAINST
AGGRESSION. — Respondents argue that the vagueness of R.A. No. 7080, as amended, is
cured when the Information clearly speci ed the acts constituting the crime of plunder. I
do not agree. It is the statute and not the accusation under it that prescribes the rule to
govern conduct and warns against aggression. If on its face, a statute is repugnant to the
due process clause on account of vagueness, speci cation in the Information of the
details of the offense intended to be charged will not serve to validate it.
16. ID.; ID.; ID.; ID.; ID.; VAGUENESS CANNOT BE CURED BY JUDICIAL
CONSTRUCTION. — Precision must be the characteristic of penal legislation. For the Court
to de ne what is a crime is to go beyond the so-called positive role in the protection of
civil liberties or promotion of public interests. As stated by Justice Frankfurter, the Court
should be wary of judicial attempts to impose justice on the community; to deprive it of
the wisdom that comes from self-in icted wounds and the strengths that grow with the
burden of responsibility. A statute which is so vague as to permit the in iction of capital
punishment on acts already punished with lesser penalties by clearly formulated law is
unconstitutional. The vagueness cannot be cured by judicial construction.
17. ID.; ID.; ID.; UNCONSTITUTIONAL, AS IT VIOLATES THE DUE PROCESS
CLAUSE OF THE CONSTITUTION. — To recapitulate, R.A. No. 7080 is unconstitutional
because it violates the DUE PROCESS CLAUSE of the Constitution. The vagueness of its
terms and its incorporation of a rule of evidence that reduces the burden of the
prosecution in proving the crime of plunder tramples upon the basic constitutional rights
of the accused.
DECISION
BELLOSILLO , J : p
JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in
defense of the rights of the individual from the vast powers of the State and the inroads of
societal pressure. But even as he draws a sacrosanct line demarcating the limits on
individuality beyond which the State cannot tread — asserting that "individual spontaneity"
must be allowed to ourish with very little regard to social interference — he veritably
acknowledges that the exercise of rights and liberties is imbued with a civic obligation,
which society is justi ed in enforcing at all cost, against those who would endeavor to
withhold fulfillment. Thus he says —
The sole end for which mankind is warranted, individually or collectively, in
interfering with the liberty of action of any of their number, is self-protection. The
only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the State to self-
preservation. With the end of maintaining the integrity and cohesiveness of the body
politic, it behooves the State to formulate a system of laws that would compel obeisance
to its collective wisdom and inflict punishment for non-observance.
The movement from Mill's individual liberalism to unsystematic collectivism
wrought changes in the social order, carrying with it a new formulation of fundamental
rights and duties more attuned to the imperatives of contemporary socio-political
ideologies. In the process, the web of rights and State impositions became tangled and
obscured, enmeshed in threads of multiple shades and colors, the skein irregular and
broken. Antagonism, often outright collision, between the law as the expression of the will
of the State, and the zealous attempts by its members to preserve their individuality and
dignity, inevitably followed. It is when individual rights are pitted against State authority
that judicial conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking o cial to be prosecuted
under RA 7080 (An Act De ning and Penalizing the Crime of Plunder), 1 as amended by RA
7659, 2 wishes to impress upon us that the assailed law is so defectively fashioned that it
crosses that thin but distinct line which divides the valid from the constitutionally in rm.
He therefore makes a stringent call for this Court to subject the Plunder Law to the
crucible of constitutionality mainly because, according to him, (a) it suffers from the vice
of vagueness; (b) it dispenses with the "reasonable doubt" standard in criminal
prosecutions; and, (c) it abolishes the element of mens rea in crimes already punishable
und er The Revised Penal Code, all of which are purportedly clear violations of the
fundamental rights of the accused to due process and to be informed of the nature and
cause of the accusation against him.
Speci cally, the provisions of the Plunder Law claimed by petitioner to have
transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced
hereunder:
SECTION 1. . . . . (d) "Ill-gotten wealth" means any asset, property,
business, enterprise or material possession of any person within the purview of
Section Two (2) hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any combination
or series of the following means or similar schemes:
(1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift,
share, percentage, kickbacks or any other form of pecuniary bene t from
any person and/or entity in connection with any government contract or
project or by reason of the office or position of the public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of
assets belonging to the National Government or any of its subdivisions,
agencies or instrumentalities, or government owned or controlled
corporations and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or participation
including the promise of future employment in any business enterprise or
undertaking;
(5) By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of decrees and
orders intended to benefit particular persons or special interests; or
(6) By taking advantage of o cial position, authority,
relationship, connection or in uence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.
SECTION 2. De nition of the Crime of Plunder, Penalties . — Any public
o cer who, by himself or in connivance with members of his family, relatives by
a nity or consanguinity, business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through a combination or
series of overt or criminal acts as described in Section 1 (d) hereof, in the
aggregate amount or total value of at least fty million pesos (P50,000,000.00)
shall be guilty of the crime of plunder and shall be punished by reclusion perpetua
to death. Any person who participated with the said public o cer in the
commission of an offense contributing to the crime of plunder shall likewise be
punished for such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating circumstances as
provided by the Revised Penal Code shall be considered by the court. The court
shall declare any and all ill-gotten wealth and their interests and other incomes
and assets including the properties and shares of stocks derived from the deposit
or investment thereof forfeited in favor of the State (underscoring supplied).
SECTION 4. Rule of Evidence. — For purposes of establishing the crime
of plunder, it shall not be necessary to prove each and every criminal act done by
the accused in furtherance of the scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth, it being su cient to establish beyond reasonable doubt
a pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy (underscoring supplied).

On 4 April 2001 the O ce of the Ombudsman led before the Sandiganbayan eight
(8) separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080,
as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of
Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 ( Anti-Graft and Corrupt
Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA
6713 (The Code of Conduct and Ethical Standards for Public O cials and Employees ); (d)
Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case
No. 26565, for Illegal Use of An Alias (CA No. 142, as amended by RA 6085).
On 11 April 2001 petitioner led an Omnibus Motion for the remand of the case to
the Ombudsman for preliminary investigation with respect to speci cation "d" of the
charges in the Information in Crim. Case No. 26558; and, for
reconsideration/reinvestigation of the offenses under speci cations "a", "b", and "c" to give
the accused the opportunity to le counter-a davits and other documents necessary to
prove lack of probable cause. Noticeably, the grounds raised were only lack of preliminary
investigation, reconsideration/reinvestigation of offenses, and opportunity to prove lack of
probable cause. The purported ambiguity of the charges and the vagueness of the law
under which they are charged were never raised in that Omnibus Motion thus indicating the
explicitness and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim.
Case No. 26558 finding that "a probable cause for the offense of PLUNDER exists to justify
the issuance of warrants for the arrest of the accused." On 25 June 2001 petitioner's
motion for reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case No.
26558 on the ground that the facts alleged therein did not constitute an indictable offense
since the law on which it was based was unconstitutional for vagueness, and that the
Amended Information for Plunder charged more than one (1) offense. On 21 June 2001
the Government filed its Opposition to the Motion to Quash, and five (5) days later or on 26
June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the
Sandiganbayan denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18 September
2001, the issues for resolution in the instant petition for certiorari are: (a) The Plunder Law
is unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving
the predicate crimes of plunder and therefore violates the rights of the accused to due
process; and, (c) Whether Plunder as de ned in RA 7080 is a malum prohibitum, and if so,
whether it is within the power of Congress to so classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity of
legislation is predicated on the basic principle that a legislative measure is presumed to be
in harmony with the Constitution. 3 Courts invariably train their sights on this fundamental
rule whenever a legislative act is under a constitutional attack, for it is the postulate of
constitutional adjudication. This strong predilection for constitutionality takes its bearings
on the idea that it is forbidden for one branch of the government to encroach upon the
duties and powers of another. Thus it has been said that the presumption is based on the
deference the judicial branch accords to its coordinate branch — the legislature.
If there is any reasonable basis upon which the legislation may rmly rest, the courts
must assume that the legislature is ever conscious of the borders and edges of its plenary
powers, and has passed the law with full knowledge of the facts and for the purpose of
promoting what is right and advancing the welfare of the majority. Hence in determining
whether the acts of the legislature are in tune with the fundamental law, courts should
proceed with judicial restraint and act with caution and forbearance. Every intendment of
the law must be adjudged by the courts in favor of its constitutionality, invalidity being a
measure of last resort. In construing therefore the provisions of a statute, courts must
rst ascertain whether an interpretation is fairly possible to sidestep the question of
constitutionality.
I n La Union Credit Cooperative, Inc. v. Yaranon 4 we held that as long as there is
some basis for the decision of the court, the constitutionality of the challenged law will not
be touched and the case will be decided on other available grounds. Yet the force of the
presumption is not su cient to catapult a fundamentally de cient law into the safe
environs of constitutionality. Of course, where the law clearly and palpably transgresses
the hallowed domain of the organic law, it must be struck down on sight lest the positive
commands of the fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the party
challenging the validity of the statute. He must demonstrate beyond any tinge of doubt
that there is indeed an infringement of the constitution, for absent such a showing, there
can be no nding of unconstitutionality. A doubt, even if well-founded, will hardly su ce.
As tersely put by Justice Malcolm, "To doubt is to sustain." 5 And petitioner has miserably
failed in the instant case to discharge his burden and overcome the presumption of
constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and well-de ned
parameters which would enable the accused to determine the nature of his violation.
Section 2 is su ciently explicit in its description of the acts, conduct and conditions
required or forbidden, and prescribes the elements of the crime with reasonable certainty
and particularity. Thus —
1. That the offender is a public o cer who acts by himself or in
connivance with members of his family, relatives by a nity or consanguinity,
business associates, subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth through
a combination or series of the following overt or criminal acts: (a) through
misappropriation, conversion, misuse, or malversation of public funds or raids on
the public treasury; (b) by receiving, directly or indirectly, any commission, gift,
share, percentage, kickback or any other form of pecuniary bene ts from any
person and/or entity in connection with any government contract or project or by
reason of the o ce or position of the public o cer; (c) by the illegal or fraudulent
conveyance or disposition of assets belonging to the National Government or any
of its subdivisions, agencies or instrumentalities of Government owned or
controlled corporations or their subsidiaries; (d) by obtaining, receiving or
accepting directly or indirectly any shares of stock, equity or any other form of
interest or participation including the promise of future employment in any
business enterprise or undertaking; (e) by establishing agricultural, industrial or
commercial monopolies or other combinations and/or implementation of decrees
and orders intended to bene t particular persons or special interests; or (f) by
taking advantage of o cial position, authority, relationship, connection or
in uence to unjustly enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the Republic of the Philippines;
and,
3. That the aggregate amount or total value of the ill-gotten wealth
amassed, accumulated or acquired is at least P50,000,000.00.
As long as the law affords some comprehensible guide or rule that would inform
those who are subject to it what conduct would render them liable to its penalties, its
validity will be sustained. It must su ciently guide the judge in its application; the counsel,
in defending one charged with its violation; and more importantly, the accused, in
identifying the realm of the proscribed conduct. Indeed, it can be understood with little
di culty that what the assailed statute punishes is the act of a public o cer in amassing
or accumulating ill-gotten wealth of at least P50,000,000.00 through a series or
combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law.
In fact, the amended Information itself closely tracks the language of the law,
indicating with reasonable certainty the various elements of the offense which petitioner is
alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, O ce
of the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES , Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a.
JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR
Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES &
Jane Does, of the crime of Plunder, de ned and penalized under R.A. No. 7080, as
amended by Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January 2001, in the Philippines,
and within the jurisdiction of this Honorable Court, accused Joseph Ejercito
Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES , by himself
AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE
MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY,
BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING
UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP,
CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and
criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR
INDIRECTLY, ill-gotten wealth in the aggregate amount or TOTAL VALUE of FOUR
BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR
THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO
PEOPLE AND THE REPUBLIC OF THE PHILIPPINES through ANY OR A
combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR
MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED
FORTY-FIVE MILLION PESOS (P545,000.000.00), MORE OR LESS, FROM
ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE,
KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR
in connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy'
Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND
JANE DOES, in consideration OF TOLERATION OR PROTECTION OF
ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR

misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain
and bene t, public funds in the amount of ONE HUNDRED THIRTY
MILLION PESOS (P130,000,000.00), more or less, representing a portion of
the TWO HUNDRED MILLION PESOS (P200,000.000.00) tobacco excise tax
share allocated for the province of Ilocos Sur under R.A. No 7171, by
himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma
Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a.
Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (emphasis supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL
GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO
PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the
Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR
LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS
ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE
THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS
(P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR
MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY
PESOS (P744,612,450.00) RESPECTIVELY, OR A TOTAL OF MORE OR
LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE
HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY
CENTAVOS (P1,847,578,057.50); AND BY COLLECTING OR RECEIVING,
DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH
JOHN DOES JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON
OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE
HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS
(P189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION
WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK
UNDER THE ACCOUNT NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS,
SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY
BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the
amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY
THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT
NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous — as there is

obviously none — that will confuse petitioner in his defense. Although subject to proof,
these factual assertions clearly show that the elements of the crime are easily understood
and provide adequate contrast between the innocent and the prohibited acts. Upon such
unequivocal assertions, petitioner is completely informed of the accusations against him
as to enable him to prepare for an intelligent defense. aCSEcA
Petitioner, however, bewails the failure of the law to provide for the statutory
de nition of the terms "combination" and "series" in the key phrase "a combination or
series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern"
in Sec. 4. These omissions, according to petitioner, render the Plunder Law
unconstitutional for being impermissibly vague and overbroad and deny him the right to be
informed of the nature and cause of the accusation against him, hence, violative of his
fundamental right to due process.
The rationalization seems to us to be pure sophistry. A statute is not rendered
uncertain and void merely because general terms are used therein, or because of the
employment of terms without de ning them; 6 much less do we have to de ne every word
we use. Besides, there is no positive constitutional or statutory command requiring the
legislature to de ne each and every word in an enactment. Congress is not restricted in the
form of expression of its will, and its inability to so de ne the words employed in a statute
will not necessarily result in the vagueness or ambiguity of the law so long as the
legislative will is clear, or at least, can be gathered from the whole act, which is distinctly
expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that words of a statute
will be interpreted in their natural, plain and ordinary acceptation and signi cation, 7 unless
it is evident that the legislature intended a technical or special legal meaning to those
words. 8 The intention of the lawmakers — who are, ordinarily, untrained philologists and
lexicographers — to use statutory phraseology in such a manner is always presumed. Thus,
Webster's New Collegiate Dictionary contains the following commonly accepted de nition
of the words "combination" and "series":
Combination — the result or product of combining; the act or process of
combining. To combine is to bring into such close relationship as to obscure
individual characters.
Series — a number of things or events of the same class coming one after
another in spatial and temporal succession.
That Congress intended the words "combination" and "series" to be understood in

their popular meanings is pristinely evident from the legislative deliberations on the bill
which eventually became RA 7080 or the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991
REP. ISIDRO:
I am just intrigued again by our de nition of plunder. We say THROUGH A
COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED
IN SECTION ONE HEREOF. Now when we say combination, we actually
mean to say, if there are two or more means, we mean to say that number
one and two or number one and something else are included, how about a
series of the same act? For example, through misappropriation, conversion,
misuse, will these be included also?
REP. GARCIA:
Yeah, because we say a series.

REP. ISIDRO:
Series.
REP. GARCIA:
Yeah, we include series.
REP. ISIDRO:
But we say we begin with a combination.
REP. GARCIA:
Yes.
REP. ISIDRO:
When we say combination, it seems that —

REP. GARCIA:
Two.
REP. ISIDRO:
Not only two but we seem to mean that two of the enumerated means not
twice of one enumeration.
REP. GARCIA:
No, no, not twice.
REP. ISIDRO:
Not twice?
REP. GARCIA:
Yes. Combination is not twice — but combination, two acts.

REP. ISIDRO:
So in other words, that's it. When we say combination, we mean, two
different acts. It cannot be a repetition of the same act.
REP. GARCIA:
That be referred to series, yeah.

REP. ISIDRO:
No, no. Supposing one act is repeated, so there are two.
REP. GARCIA:
A series.
REP. ISIDRO:
That's not series. Its a combination. Because when we say combination or

series, we seem to say that two or more, di ba?
REP. GARCIA:
Yes, this distinguishes it really from ordinary crimes. That is why, I said, that
is a very good suggestion because if it is only one act, it may fall under
ordinary crime but we have here a combination or series of overt or
criminal acts. So . . .
REP. GARCIA:
Series. One after the other eh di . . .
SEN. TAÑADA:
So that would fall under the term "series?"

REP. GARCIA:
Series, oo.
REP. ISIDRO:
Now, if it is a combination, ano, two misappropriations . . .
REP. GARCIA:
Its not . . . Two misappropriations will not be combination. Series.
REP. ISIDRO:
So, it is not a combination?

REP. GARCIA:
Yes.
REP. ISIDRO:
When you say combination, two different?
REP. GARCIA:
Yes.
SEN. TAÑADA:
Two different.
REP. ISIDRO:
Two different acts.

REP. GARCIA:
For example, ha . . .
REP. ISIDRO:
Now a series, meaning, repetition . . .
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA:
In line with our interpellations that sometimes "one" or maybe even "two" acts
may already result in such a big amount, on line 25, would the Sponsor
consider deleting the words "a series of overt or," to read, therefore: "or
conspiracy COMMITTED by criminal acts such as." Remove the idea of
necessitating "a series." Anyway, the criminal acts are in the plural.
SENATOR TAÑADA:
That would mean a combination of two or more of the acts mentioned in
this.
THE PRESIDENT:
Probably two or more would be . . . .

SENATOR MACEDA:
Yes, because "a series" implies several or many; two or more.
SENATOR TAÑADA:
Accepted, Mr. President . . . .

THE PRESIDENT:
If there is only one, then he has to be prosecuted under the particular crime.
But when we say "acts of plunder" there should be, at least, two or more.
SENATOR ROMULO:
In other words, that is already covered by existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at least two (2)
acts falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids
on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets
belonging to the National Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a "series" there must be two (2) or more overt or
criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say,
misappropriation, malversation and raids on the public treasury, all of which fall under Sec.
1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning
for "combination" and "series," it would have taken greater pains in speci cally providing
for it in the law.
As for "pattern," we agree with the observations of the Sandiganbayan 9 that this
term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 —
. . . . under Sec. 1 (d) of the law, a 'pattern' consists of at least a
combination or series of overt or criminal acts enumerated in subsections (1) to
(6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or
criminal acts is directed towards a common purpose or goal which is to enable
the public o cer to amass , accumulate or acquire ill-gotten wealth. And thirdly,
there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said
common goal. As commonly understood, the term 'overall unlawful scheme'
indicates a 'general plan of action or method' which the principal accused and
public o cer and others conniving with him, follow to achieve the aforesaid
common goal. In the alternative, if there is no such overall scheme or where the
schemes or methods used by multiple accused vary, the overt or criminal acts
must form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair warning and
sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's reliance
on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been
formulated in various ways, but is most commonly stated to the effect that a statute
establishing a criminal offense must de ne the offense with su cient de niteness that
persons of ordinary intelligence can understand what conduct is prohibited by the statute.
It can only be invoked against that specie of legislation that is utterly vague on its face, i.e.,
that which cannot be clarified either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks comprehensible standards
that men of common intelligence must necessarily guess at its meaning and differ in its
application. In such instance, the statute is repugnant to the Constitution in two (2)
respects — it violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary exing of the
Government muscle. 1 0 But the doctrine does not apply as against legislations that are
merely couched in imprecise language but which nonetheless specify a standard though
defectively phrased; or to those that are apparently ambiguous yet fairly applicable to
certain types of activities. The rst may be "saved" by proper construction, while no
challenge may be mounted as against the second whenever directed against such
activities. 1 1 With more reason, the doctrine cannot be invoked where the assailed statute
is clear and free from ambiguity, as in this case.
The test in determining whether a criminal statute is void for uncertainty is whether
the language conveys a su ciently de nite warning as to the proscribed conduct when
measured by common understanding and practice. 1 2 It must be stressed, however, that
the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute
to be upheld — not absolute precision or mathematical exactitude, as petitioner seems to
suggest. Flexibility, rather than meticulous speci city, is permissible as long as the metes
and bounds of the statute are clearly delineated. An act will not be held invalid merely
because it might have been more explicit in its wordings or detailed in its provisions,
especially where, because of the nature of the act, it would be impossible to provide all the
details in advance as in all other statutes. ESCacI
Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V.
Mendoza during the deliberations of the Court that the allegations that the Plunder Law is
vague and overbroad do not justify a facial review of its validity —
The void-for-vagueness doctrine states that "a statute which either forbids
or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its application,
violates the rst essential of due process of law." 1 3 The overbreadth doctrine, on
the other hand, decrees that "a governmental purpose may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms.'' 1 4
A facial challenge is allowed to be made to a vague statute and to one

which is overbroad because of possible "chilling effect" upon protected speech.
The theory is that "[w]hen statutes regulate or proscribe speech and no readily
apparent construction suggests itself as a vehicle for rehabilitating the statutes in
a single prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making the attack demonstrate that
his own conduct could not be regulated by a statute drawn with narrow
speci city." 1 5 The possible harm to society in permitting some unprotected
speech to go unpunished is outweighed by the possibility that the protected
speech of others may be deterred and perceived grievances left to fester because
of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if facial
challenge is allowed for this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the area of criminal law, the
law cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application
only to free speech cases. They are inapt for testing the validity of penal statutes.
As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we
have not recognized an 'overbreadth' doctrine outside the limited context of the
First Amendment." 1 6 In Broadrick v. Oklahoma , 1 7 the Court ruled that "claims of
facial overbreadth have been entertained in cases involving statutes which, by
their terms, seek to regulate only spoken words" and, again, that "overbreadth
claims, if entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct." For this reason,
it has been held that "a facial challenge to a legislative act is the most di cult
challenge to mount successfully, since the challenger must establish that no set
of circumstances exists under which the Act would be valid." 1 8 As for the
vagueness doctrine, it is said that a litigant may challenge a statute on its face
only if it is vague in all its possible applications. "A plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others.'' 1 9
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free speech
cases or, as they are called in American law, First Amendment cases. They cannot
be made to do service when what is involved is a criminal statute. With respect to
such statute, the established rule is that "one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that impliedly
it might also be taken as applying to other persons or other situations in which its
application might be unconstitutional." 2 0 As has been pointed out, "vagueness
challenges in the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found vague as a matter of due
process typically are invalidated [only] 'as applied' to a particular defendant.'' 2 1
Consequently, there is no basis for petitioner's claim that this Court review the
Anti-Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the Court
whose activities are constitutionally protected. 2 2 It constitutes a departure from
the case and controversy requirement of the Constitution and permits decisions to
be made without concrete factual settings and in sterile abstract contexts. 2 3 But,
as the U.S. Supreme Court pointed out in Younger v. Harris 2 4
[T]he task of analyzing a proposed statute, pinpointing its
de ciencies, and requiring correction of these de ciencies before the
statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the controversy,
the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of
detailed statutes, . . . ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
For these reasons, "on its face" invalidation of statutes has been described
as "manifestly strong medicine," to be employed "sparingly and only as a last
resort," 2 5 and is generally disfavored. 2 6 In determining the constitutionality of a
statute, therefore, its provisions which are alleged to have been violated in a case
must be examined in the light of the conduct with which the defendant is
charged. 2 7
In light of the foregoing disquisition, it is evident that the purported ambiguity of the
Plunder Law, so tenaciously claimed and argued at length by petitioner, is more imagined
than real. Ambiguity, where none exists, cannot be created by dissecting parts and words
in the statute to furnish support to critics who cavil at the want of scientific precision in the
law. Every provision of the law should be construed in relation and with reference to every
other part. To be sure, it will take more than nitpicking to overturn the well-entrenched
presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner
cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who
voted for its passage, petitioner must be aware that the law was extensively deliberated
upon by the Senate and its appropriate committees by reason of which he even registered
his a rmative vote with full knowledge of its legal implications and sound constitutional
anchorage.
The parallel case of Gallego v. Sandiganbayan 2 8 must be mentioned if only to
illustrate and emphasize the point that courts are loathed to declare a statute void for
uncertainty unless the law itself is so imperfect and de cient in its details, and is
susceptible of no reasonable construction that will support and give it effect. In that case,
petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The
Anti-Graft and Corrupt Practices Act for being vague. Petitioners posited, among others,
that the term "unwarranted" is highly imprecise and elastic with no common law meaning
or settled de nition by prior judicial or administrative precedents; that, for its vagueness,
Sec. 3, par. (e), violates due process in that it does not give fair warning or su cient notice
of what it seeks to penalize. Petitioners further argued that the Information charged them
with three (3) distinct offenses, to wit: (a) giving of "unwarranted" bene ts through
manifest partiality; (b) giving of "unwarranted" bene ts through evident bad faith; and, (c)
giving of "unwarranted" bene ts through gross inexcusable negligence while in the
discharge of their o cial function and that their right to be informed of the nature and
cause of the accusation against them was violated because they were left to guess which
of the three (3) offenses, if not all, they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and
Corrupt Practices Act does not suffer from the constitutional defect of vagueness. The
phrases "manifest partiality," "evident bad faith," and "gross and inexcusable negligence"
merely describe the different modes by which the offense penalized in Sec. 3, par. (e), of
the statute may be committed, and the use of all these phrases in the same Information
does not mean that the indictment charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or
o cial support; unjusti ed; unauthorized (Webster, Third International Dictionary,
p. 2514); or without justi cation or adequate reason ( Philadelphia Newspapers,
Inc. v. US Dept. of Justice , C.D. Pa., 405 F. Supp. 8, 12, cited in Words and
Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p.
19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act
consider a corrupt practice and make unlawful the act of the public officer in:
. . . or giving any private party any unwarranted bene ts, advantage or

preference in the discharge of his official, administrative or judicial functions
through manifest partiality, evident bad faith or gross inexcusable
negligence, . . . (Section 3 [e], Rep. Act 3019, as amended).
It is not at all di cult to comprehend that what the aforequoted penal
provisions penalize is the act of a public o cer, in the discharge of his o cial,
administrative or judicial functions, in giving any private party bene ts,
advantage or preference which is unjusti ed, unauthorized or without justi cation
or adequate reason, through manifest partiality, evident bad faith or gross
inexcusable negligence.
In other words, this Court found that there was nothing vague or ambiguous in the
use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices
Act, which was understood in its primary and general acceptation. Consequently, in that
case, petitioners' objection thereto was held inadequate to declare the section
unconstitutional.
On the second issue, petitioner advances the highly stretched theory that Sec. 4 of
the Plunder Law circumvents the immutable obligation of the prosecution to prove beyond
reasonable doubt the predicate acts constituting the crime of plunder when it requires only
proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy —
SEC. 4. Rule of Evidence. — For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass, accumulate or
conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind. In a
criminal prosecution for plunder, as in all other crimes, the accused always has in his favor
the presumption of innocence which is guaranteed by the Bill of Rights, and unless the
State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies,
the accused is entitled to an acquittal. 2 9 The use of the "reasonable doubt" standard is
indispensable to command the respect and con dence of the community in the
application of criminal law. It is critical that the moral force of criminal law be not diluted
by a standard of proof that leaves people in doubt whether innocent men are being
condemned. It is also important in our free society that every individual going about his
ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal
offense without convincing a proper fact nder of his guilt with utmost certainty. This
"reasonable doubt" standard has acquired such exalted stature in the realm of
constitutional law as it gives life to the Due Process Clause which protects the accused
against conviction except upon proof beyond reasonable doubt of every fact necessary to
constitute the crime with which he is charged. 3 0 The following exchanges between Rep.
Rodolfo Albano and Rep. Pablo Garcia on this score during the deliberations in the oor of
the House of Representatives are elucidating —
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9
October 1990
MR. ALBANO:
Now, Mr. Speaker, it is also elementary in our criminal law that what is
alleged in the information must be proven beyond reasonable doubt. If we
will prove only one act and nd him guilty of the other acts enumerated in
the information, does that not work against the right of the accused
especially so if the amount committed, say, by falsi cation is less than
P100 million, but the totality of the crime committed is P100 million since
there is malversation, bribery, falsi cation of public document, coercion,
theft?
MR. GARCIA:
Mr. Speaker, not everything alleged in the information needs to be proved

beyond reasonable doubt. What is required to be proved beyond
reasonable doubt is every element of the crime charged. For example, Mr.
Speaker, there is an enumeration of the things taken by the robber in the
information — three pairs of pants, pieces of jewelry. These need not be
proved beyond reasonable doubt, but these will not prevent the conviction
of a crime for which he was charged just because, say, instead of 3 pairs
of diamond earrings the prosecution proved two. Now, what is required to
be proved beyond reasonable doubt is the element of the offense.
MR. ALBANO:
I am aware of that, Mr. Speaker, but considering that in the crime of plunder
the totality of the amount is very important, I feel that such a series of overt
criminal acts has to be taken singly. For instance, in the act of bribery , he
was able to accumulate only P50,000 and in the crime of extortion, he was
only able to accumulate P1 million. Now, when we add the totality of the
other acts as required under this bill through the interpretation on the rule
of evidence, it is just one single act, so how can we now convict him?
MR. GARCIA:
With due respect, Mr. Speaker, for purposes of proving an essential element
of the crime, there is a need to prove that element beyond reasonable
doubt. For example, one essential element of the crime is that the amount
involved is P100 million. Now, in a series of defalcations and other acts of
corruption in the enumeration the total amount would be P110 or P120
million, but there are certain acts that could not be proved, so, we will sum
up the amounts involved in those transactions which were proved. Now, if
the amount involved in these transactions, proved beyond reasonable
doubt, is P100 million, then there is a crime of plunder (emphasis
supplied).
It is thus plain from the foregoing that the legislature did not in any manner
refashion the standard quantum of proof in the crime of plunder. The burden still remains
with the prosecution to prove beyond any iota of doubt every fact or element necessary to
constitute the crime.
The thesis that Sec. 4 does away with proof of each and every component of the
crime suffers from a dismal misconception of the import of that provision. What the
prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient to
form a combination or series which would constitute a pattern and involving an amount of
at least P50,000,000.00. There is no need to prove each and every other act alleged in the
Information to have been committed by the accused in furtherance of the overall unlawful
scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate,
supposing that the accused is charged in an Information for plunder with having
committed fty (50) raids on the public treasury. The prosecution need not prove all these
fty (50) raids, it being su cient to prove by pattern at least two (2) of the raids beyond
reasonable doubt provided only that they amounted to at least P50,000,000.00. 3 1
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that
"pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy"
inheres in the very acts of accumulating, acquiring or amassing hidden wealth. Stated
otherwise, such pattern arises where the prosecution is able to prove beyond reasonable
doubt the predicate acts as de ned in Sec. 1, par. (d). Pattern is merely a by-product of the
proof of the predicate acts. This conclusion is consistent with reason and common sense.
There would be no other explanation for a combination or series of overt or criminal acts
to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or
acquire ill gotten wealth. The prosecution is therefore not required to make a deliberate
and conscious effort to prove pattern as it necessarily follows with the establishment of a
series or combination of the predicate acts. DaHISE
Relative to petitioner's contentions on the purported defect of Sec. 4 is his

submission that "pattern" is "a very important element of the crime of plunder"; and that
Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive element of the
crime," such that without it the accused cannot be convicted of plunder —
JUSTICE BELLOSILLO:
In other words, cannot an accused be convicted under the Plunder Law
without applying Section 4 on the Rule of Evidence if there is proof beyond
reasonable doubt of the commission of the acts complained of?
ATTY. AGABIN:
In that case he can be convicted of individual crimes enumerated in the
Revised Penal Code, but not plunder.
JUSTICE BELLOSILLO:
In other words, if all the elements of the crime are proved beyond reasonable
doubt without applying Section 4, can you not have a conviction under the
Plunder Law?
ATTY. AGABIN:
Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO:
Can you not disregard the application of Sec. 4 in convicting an accused
charged for violation of the Plunder Law?
ATTY. AGABIN:
Well, your Honor, in the first place Section 4 lays down a substantive element
of the law . . . .
JUSTICE BELLOSILLO:
What I said i — do we have to avail of Section 4 when there is proof beyond
reasonable doubt on the acts charged constituting plunder?
ATTY. AGABIN:
Yes, your Honor, because Section 4 is two pronged, it contains a rule of

evidence and it contains a substantive element of the crime of plunder. So,
there is no way by which we can avoid Section 4.

JUSTICE BELLOSILLO:
But there is proof beyond reasonable doubt insofar as the predicate crimes
charged are concerned that you do not have to go that far by applying
Section 4?
ATTY. AGABIN:
Your Honor, our thinking is that Section 4 contains a very important element
of the crime of plunder and that cannot be avoided by the prosecution. 3 2
We do not subscribe to petitioner's stand. Primarily, all the essential elements of

plunder can be culled and understood from its de nition in Sec. 2, in relation to Sec. 1, par.
(d), and "pattern" is not one of them. Moreover, the epigraph and opening clause of Sec. 4
is clear and unequivocal:
SEC. 4. Rule of Evidence — For purposes of establishing the crime of
plunder . . . .
It purports to do no more than prescribe a rule of procedure for the prosecution of a

criminal case for plunder. Being a purely procedural measure, Sec. 4 does not de ne or
establish any substantive right in favor of the accused but only operates in furtherance of a
remedy. It is only a means to an end, an aid to substantive law. Indubitably, even without
invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution
is to present su cient evidence to engender that moral certitude exacted by the
fundamental law to prove the guilt of the accused beyond reasonable doubt. Thus, even
granting for the sake of argument that Sec. 4 is awed and vitiated for the reasons
advanced by petitioner, it may simply be severed from the rest of the provisions without
necessarily resulting in the demise of the law; after all, the existing rules on evidence can
supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a separability
clause —
Sec. 7. Separability of Provisions. — If any provisions of this Act or the
application thereof to any person or circumstance is held invalid, the remaining
provisions of this Act and the application of such provisions to other persons or
circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being declared
invalid as a result of the nullity of some of its provisions, assuming that to be the case
although it is not really so, all the provisions thereof should accordingly be treated
independently of each other, especially if by doing so, the objectives of the statute can
best be achieved.
As regards the third issue, again we agree with Justice Mendoza that plunder is a
malum in se which requires proof of criminal intent. Thus, he says, in his Concurring
Opinion —
. . . Precisely because the constitutive crimes are mala in se the element of
mens rea must be proven in a prosecution for plunder. It is noteworthy that the
amended information alleges that the crime of plunder was committed "willfully,
unlawfully and criminally." It thus alleges guilty knowledge on the part of
petitioner.
In support of his contention that the statute eliminates the requirement of
mens rea and that is the reason he claims the statute is void, petitioner cites the
following remarks of Senator Tañada made during the deliberation on S.B. No.
733:
SENATOR TAÑADA
. . . And the evidence that will be required to convict him would not be
evidence for each and every individual criminal act but only evidence
su cient to establish the conspiracy or scheme to commit this crime of
plunder. 3 3
However, Senator Tañada was discussing §4 as shown by the succeeding
portion of the transcript quoted by petitioner:
SENATOR ROMULO:
And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule
of Evidence, which, in the Gentleman's view, would provide for a speedier
and faster process of attending to this kind of cases?
SENATOR TAÑADA:
Yes, Mr. President . . . 3 4
Senator Tañada was only saying that where the charge is conspiracy to commit plunder,
the prosecution need not prove each and every criminal act done to further the scheme or
conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or criminal
acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the
pattern are concerned, however, the elements of the crime must be proved and the requisite mens
rea must be shown. IaECcH
Indeed, §2 provides that —

Any person who participated with the said public o cer in the
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be considered
by the court.
The application of mitigating and extenuating circumstances in the
Revised Penal Code to prosecutions under the Anti-Plunder Law indicates quite
clearly that mens rea is an element of plunder since the degree of responsibility of
the offender is determined by his criminal intent. It is true that §2 refers to "any
person who participates with the said public o cer in the commission of an
offense contributing to the crime of plunder." There is no reason to believe,
however, that it does not apply as well to the public o cer as principal in the
crime. As Justice Holmes said: "We agree to all the generalities about not
supplying criminal laws with what they omit, but there is no canon against using
common sense in construing laws as saying what they obviously mean." 3 5
Finally, any doubt as to whether the crime of plunder is a malum in se

must be deemed to have been resolved in the a rmative by the decision of
Congress in 1993 to include it among the heinous crimes punishable by reclusion
perpetua to death. Other heinous crimes are punished with death as a straight
penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court
held in People v. Echegaray : 3 6
The evil of a crime may take various forms. There are crimes that
are, by their very nature, despicable, either because life was callously taken
or the victim is treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her growth as a human
being . . . . Seen in this light, the capital crimes of kidnapping and serious
illegal detention for ransom resulting in the death of the victim or the
victim is raped, tortured, or subjected to dehumanizing acts; destructive
arson resulting in death; and drug offenses involving minors or resulting in
the death of the victim in the case of other crimes; as well as murder, rape,
parricide, infanticide, kidnapping and serious illegal detention, where the
victim is detained for more than three days or serious physical injuries
were in icted on the victim or threats to kill him were made or the victim is
a minor, robbery with homicide, rape or intentional mutilation, destructive
arson, and carnapping where the owner, driver or occupant of the
carnapped vehicle is killed or raped, which are penalized by reclusion
perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the
signi cance and implications of the subject criminal acts in the scheme of
the larger socio-political and economic context in which the state nds
itself to be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt tyrannical rule
that bankrupted the government and impoverished the population, the
Philippine Government must muster the political will to dismantle the
culture of corruption, dishonesty, greed and syndicated criminality that so
deeply entrenched itself in the structures of society and the psyche of the
populace. [With the government] terribly lacking the money to provide even
the most basic services to its people, any form of misappropriation or
misapplication of government funds translates to an actual threat to the
very existence of government, and in turn, the very survival of the people it
governs over. Viewed in this context, no less heinous are the effects and
repercussions of crimes like quali ed bribery, destructive arson resulting in
death, and drug offenses involving government o cials, employees or
o cers, that their perpetrators must not be allowed to cause further
destruction and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous
offense implies that it is a malum in se. For when the acts punished are inherently
immoral or inherently wrong, they are mala in se 3 7 and it does not matter that
such acts are punished in a special law, especially since in the case of plunder the
predicate crimes are mainly mala in se. Indeed, it would be absurd to treat
prosecutions for plunder as though they are mere prosecutions for violations of
the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking,
without regard to the inherent wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of
RA 7080, on constitutional grounds. Su ce it to say however that it is now too late in the
day for him to resurrect this long dead issue, the same having been eternally consigned by
People v. Echegaray 3 8 to the archives of jurisprudential history. The declaration of this
Court therein that RA 7659 is constitutionally valid stands as a declaration of the State, and
becomes, by necessary effect, assimilated in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene pro igacy of
o cials in high places which have shaken its very foundation. The anatomy of graft and
corruption has become more elaborate in the corridors of time as unscrupulous people
relentless]y contrive more and more ingenious ways to bilk the coffers of the government.
Drastic and radical measures are imperative to ght the increasingly sophisticated,
extraordinarily methodical and economically catastrophic looting of the national treasury.
Such is the Plunder Law, especially designed to disentangle those ghastly tissues of
grand-scale corruption which, if left unchecked, will spread like a malignant tumor and
ultimately consume the moral and institutional ber of our nation. The Plunder Law, indeed,
is a living testament to the will of the legislature to ultimately eradicate this scourge and
thus secure society against the avarice and other venalities in public office.
These are times that try men's souls. In the checkered history of this nation, few
issues of national importance can equal the amount of interest and passion generated by
petitioner's ignominious fall from the highest o ce, and his eventual prosecution and trial
under a virginal statute. This continuing saga has driven a wedge of dissension among our
people that may linger for a long time. Only by responding to the clarion call for patriotism,
to rise above factionalism and prejudices, shall we emerge triumphant in the midst of
ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the
Plunder Law, as amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to
declare the law unconstitutional is DISMISSED for lack of merit.
SO ORDERED.
Buena and De Leon, Jr., JJ., concur.
Mendoza, J., files separate concurring opinion.
Davide, Jr., C.J., Melo, Puno, Vitug and Quisumbing, JJ., concur with the opinion of
Justice Mendoza.
Panganiban, J., files separate concurring opinion.
Kapunan, Pardo, Ynares-Santiago a n d Sandoval-Gutierrez, JJ., le separate
dissenting opinions.
Carpio, J., took no part as he was one of complainants before Ombudsman.
Separate Opinio ns
KAPUNAN, J., dissenting opinion:
The primary duty of the Court is to render justice. The resolution of the issues
brought before it must be grounded on law, justice and the basic tenets of due process,
unswayed by the passions of the day or the clamor of the multitudes, guided only by its
members' honest conscience, clean hearts and their unsullied conviction to do what is
right under the law.
The issues posed by the instant petition are quite di cult. The task of the Court to
resolve the same is made more daunting because the case involves a former President of
the Republic who, in the eyes of certain sectors of society, deserves to be punished. But
the mandate of the Court is to decide these issues solely on the basis of law and due
process, and regardless of the personalities involved. For indeed, the rule of law and the
right to due process are immutable principles that should apply to all, even to those we
hate. As Fr. Joaquin G. Bernas, S.J., a noted constitutionalist, aptly puts it —
. . . the greater disaster would be if the Supreme Court should heed the
clamor for conviction and convict Estrada even under an unconstitutional law but
of the belief that Estrada deserves to be punished. That would be tantamount to a
rule of men and not of law. 1
The Basic Facts

The petition before us questions the constitutionality of Republic Act No. 7080 (R.A.
No. 7080 or Plunder Law), as amended by Republic Act No. 7659, 2 entitled "An Act
De ning and Penalizing the Crime of Plunder." 3 This original petition for certiorari and
prohibition against Respondent Third Division of the Sandiganbayan led by petitioner
Joseph Ejercito Estrada assails Respondent court's Resolution, dated July 9, 2001,
denying his Motion to Quash the information against him in Criminal Case No. 26558 for
Plunder. Petitioner likewise prays that the Sandiganbayan be prohibited and enjoined from
proceeding with his arraignment and trial in Criminal Case No. 26558 due to the
unconstitutionality of R.A. No. 7080.
On the heels of the nality of the joint decision of this Court in G.R. No. 146710
(Estrada vs. Desierto, et al.) and in G.R. No. 146738 (Estrada vs. Macapagal-Arroyo),
promulgated on April 3, 2001, upholding the constitutionality of President Gloria
Macapagal-Arroyo's assumption of o ce as President of the Republic of the Philippines
and declaring that the former President Joseph Ejercito Estrada no longer enjoyed
immunity from suit, the Ombudsman led eight (8) Informations against Estrada. These
cases were Criminal Case No. 26558 (for Plunder); Criminal Case No. 26559 (for Violation
of Sec. 3[a] of Republic Act No. 3019); Criminal Case No. 26560 (for Violation of Sec. 3[a]
of R.A. No. 3019); Criminal Case No. 26561 (for Violation of Sec. 3[e] of R.A. 3019);
Criminal Case No. 26562 (for Violation of Sec. 3[e] of R.A. No. 3019); Criminal Case No.
26563 (for Violation of Sec. 7[d] of R.A. No. 6713); Criminal Case No. 26564 (for Perjury);
and Criminal Case No. 26565 (for Illegal Use of Alias).
The aforementioned informations were ra ed to the ve divisions of the
Sandiganbayan. Criminal Case No. 26558 was ra ed to the Third Division of said court.
The amended information against petitioner charging violations of Section 2, in relation to
Section (d) (1) (2) of the statute reads:
That during the period from June, 1998 to January, 2001, in the
Philippines, and within the jurisdiction of this Honorable Court, accused Joseph
Ejercito Estrada, by himself and in conspiracy with his co-accused, business
associates and persons heretofore named, by taking advantage of his o cial
position, authority, connection or in uence as President of the Republic of the
Philippines, did then and there wilfully, unlawfully and criminally amass,
accumulate and acquire ill-gotten wealth, and unjustly enrich himself in the
aggregate amount of P4,097,804,173.17, more or less, through a combination and
series of overt and criminal acts, described as follows:
(a) by receiving, collecting, directly or indirectly, on many instances, so-called
"jueteng money" from gambling operators in connivance with co-accused
Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte and Edward Serapio, as
witnessed by Gov. Luis 'Chavit' Singson, among other witnesses, in the
aggregate amount of FIVE HUNDRED FORTY-FIVE MILLION PESOS
(P545,000.000.00), more or less, in consideration of their protection from
arrest or interference by law enforcers in their illegal "jueteng" activities;
and
(b) by misappropriating, converting and misusing for his gain and bene t
public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS
(P130,000,000.00), more or less, representing a portion of One Hundred
Seventy Million Pesos (P170,000,000.00) tobacco excise tax share
allocated for the Province of Ilocos Sur under R.A. No. 7171, in conspiracy
with co-accused Charlie 'Atong' Ang, Alma Alfaro, Eleuterio Tan a.k.a.
Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, as
witnessed by Gov. Luis 'Chavit' Singson, among other witnesses; and
(c) by directing, ordering and compelling the Government Service Insurance

System (GSIS) and the Social Security System (SSS) to purchase and buy
a combined total of 681,733,000 shares of stock of the Belle Corporation in
the aggregate gross value of One Billion Eight Hundred Forty-Seven Million
Five Hundred Seventy Eight Thousand Pesos and Fifty Centavos
(P1,847,578,057.50), for the purpose of collecting for his personal gain and
bene t, as in fact he did collect and receive the sum of ONE HUNDRED
EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND FIFTY SEVEN
PESOS (P189,700,000.00) as commission for said stock purchase; and
(d) by unjustly enriching himself in the amount of THREE BILLION TWO
HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND
ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(P3,233,104,173.17) comprising his unexplained wealth acquired,
accumulated and amassed by him under his account name "Jose Velarde"
with Equitable PCI Bank:
to the damage and prejudice of the Filipino people and the Republic of the
Philippines.
CONTRARY TO LAW. 4
On April 16 and 17, 2001, the Ombudsman led an Ex-Parte Manifestation to

Withdraw Information in Criminal Case Nos. 26559, 26560, 26561, 26562 and 26563.
Petitioner registered his objection to the Ombudsman's motion to withdraw. The divisions
of the Sandiganbayan to which said cases were assigned granted the withdrawal of the
informations, save for that in Criminal Case No. 26561. At present, the Order of the First
Division of the Sandiganbayan denying the Ombudsman's motion to withdraw in Criminal
Case No. 26561 is still under reconsideration.
In Criminal Case No. 26558, petitioner led on April 11, 2001 an Omnibus Motion for
the remand of the case to the O ce of the Ombudsman for: (1) the conduct of a
preliminary investigation as regards speci cation "d" of the accusations in the information
in said case; and (2) reconsideration/reinvestigation of the offenses in speci cations "a,"
"b" and "c" to enable petitioner to le his counter-a davits as well as other necessary
documents.
On April 25, 2001, the Third Division of the Sandiganbayan issued a Resolution
finding that:
(p)robable cause for the offense of PLUNDER exists to justify issuance of warrants of
arrest of accused former President Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada,
Charlie "Atong" Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio
Tan or Eleuterio Ramon Tan or Mr. Uy and Jane Doe a.k.a. Delia Rajas.
Subsequently, on May 31, 2001, the Third Division of the Sandiganbayan issued a
Resolution denying petitioner's Omnibus Motion.
On June 15, 2001, petitioner led a Motion for Reconsideration of said Resolution
but the same was denied in a Resolution of June 25, 2001.
Meanwhile, on June 14, 2001, petitioner led a Motion to Quash the information in
Criminal Case No. 26558, invoking the following grounds: (1) the facts charged do not
constitute an indictable offense as R.A. No. 7080, the statute on which it is based, is
unconstitutional; and (2) the information charges more than one offense.
The People of the Philippines led an Opposition thereto on June 21, 2001.
Petitioner filed his Reply to the Opposition on June 28, 2001.
On July 9, 2001, the Third Division of the Sandiganbayan issued its Resolution
denying petitioner's motion to quash.
Petitioner thus led the instant petition for certiorari and prohibition, claiming that
the Sandiganbayan committed grave abuse of discretion in denying his motion to quash
the information in Criminal Case No. 26558. Petitioner argues that R.A. No. 7080 is
unconstitutional on the following grounds:
I. IT VIOLATES THE DUE PROCESS CLAUSE FOR ITS VAGUENESS
II. IT VIOLATES THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO
KNOW THE NATURE AND CAUSE OF THE ACCUSATION AGAINST
HIM
III. IT VIOLATES THE DUE PROCESS CLAUSE AND THE
CONSTITUTIONAL PRESUMPTION OF INNOCENCE BY LOWERING
THE QUANTUM OF EVIDENCE NECESSARY FOR PROVING THE
COMPONENT ELEMENTS OF PLUNDER
IV. IT IS BEYOND THE CONSTITUTIONAL POWER OF THE LEGISLATURE
TO DELIMIT THE REASONABLE DOUBT STANDARD AND TO ABOLISH
THE ELEMENT OF MENS REA I N MALA IN SE CRIMES BY
CONVERTING THESE TO MALA PROHIBITA , IN VIOLATION OF THE
DUE PROCESS CONCEPT OF CRIMINAL RESPONSIBILITY. 5
The provisions of law involved
Section 2 of R.A. No. 7080 provides:
De nition of the Crime of Plunder; Penalties . — Any public o cer who, by
himself or in connivance with members of his family, relatives by a nity or
consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a combination or series of overt
or criminal acts as described in Section 1 (d) hereof in the aggregate amount or
total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the
crime of plunder and shall be punished by reclusion perpetua to death. Any
person who participated with the said public o cer in the commission of an
offense contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances, as provided by the
Revised Penal Code, shall be considered by the court. The court shall declare any
and all ill-gotten wealth and their interests and other incomes and assets
including the properties and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State. (As amended by Sec. 12, RA No.
7659.)
Section 1(d) of the same law de nes "ill-gotten wealth" as "any asset, property,
business enterprise or material possession of any person within the purview of Section
Two (2)" hereof, acquired by him directly or indirectly through dummies, nominees, agents,
subordinates, and/or business associates by any combination or series of the following
means or similar schemes:
1. Through misappropriation, conversion, misuse or malversation of public
funds or raids on the public treasury;
2. By receiving, directly or indirectly, any commission, gift, share, percentage,
kickbacks or any other form of pecuniary bene t from any person and/or
entity in connection with any government contract or project or by reason
of the office or position of the public officer concerned;
3. By the illegal or fraudulent conveyance or disposition of assets belonging

to the National Government or any of its subdivisions, agencies or
instrumentalities or government-owned or controlled corporations and their
subsidiaries;
4. By obtaining, receiving or accepting directly or indirectly any shares of
stock, equity or any other form of interest or participation including the
promise of future employment in any business enterprise or undertaking;
5. By establishing agricultural, industrial or commercial monopolies or other
combination and/or implementation of decrees and orders intended to
benefit particular persons or special interests; or
6. By taking undue advantage of o cial position, authority, relationship,
connection or in uence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines. 6
On the other hand, Section 4 states:
Rule of Evidence — For purposes of establishing the crime of plunder, it
shall not be necessary to prove each and every criminal act done by the accused
in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-
gotten wealth, it being su cient to establish beyond reasonable doubt a pattern
of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
Petitioner's theory
Petitioner asserts that R.A. No. 7080 is vague and overbroad on its face, and suffers
from structural de ciency and ambiguity. 7 In sum, he maintains that the law does not
afford an ordinary person reasonable notice that his actuation will constitute a criminal
offense. More particularly, petitioner argues that the terms "combination" and "series" are
not clearly de ned, citing that in a number of cases, the United States (U.S.) federal courts
in deciding cases under the Racketeer In uenced and Corrupt Organizations Act (RICO
law), after which the Plunder Law was patterned, have given different interpretations to
"series of acts or transactions." 8 In addition, the terms "raid on the public treasury,"
"receiving or accepting a gift," "commission," "kickbacks," "illegal or fraudulent conveyance
or disposition of assets," "monopolies or other combinations," "special interests," "taking
undue advantage of o cial position," "unjustly enrich" all suffer from overbreadth which is
a form of vagueness. 9
In arguing that the law on plunder is vague and impermissibly broad, petitioner
points out that the terms "combination" and 'series" used in the phrase "any combination or
series of the following means or similar schemes" are not de ned under the statute. The
use of these terms in the law allegedly raises several questions as to their meaning and
import.
Petitioner posits the following queries: "Does it (referring to the term "series") mean
two, three, four, of the overt or criminal acts listed in Section 1(d)? Would it mean two or
more related enterprises falling under at least two of the means or 'similar schemes' listed
in the law, or just a joint criminal enterprise? Would it require substantial identity of facts
and participants, or merely a common pattern of action? Would it imply close connection
between acts, or a direct relationship between the charges? Does the term mean a factual
relationship between acts or merely a common plan among conspirators?" 1 0
The term "combination" is allegedly equally equivocal. According to petitioner, it is
not clear from the law if said term covers time, place, manner of commission, or the
principal characters. Thus petitioner asks: "Does it (referring to the term "combination")
include any two or more acts, whether legal or illegal, or does the law require that the
combination must include at least two of the 'means or similar schemes' laid down in R.A.
7080? Does it cover transactions that have occurred in the same place or area, or in
different places, no matter how far apart? Does 'combination' include any two or more
overt acts, no matter how far apart in time, or does it contemplate acts committed within a
short period of time? Does the 'combination' cover the modus operandi of the crimes, or
merely the evidence to be used at the trial?" 1 1
It is also argued that the phrase "pattern of overt or criminal acts indicative of the
overall scheme or conspiracy" adds to the vagueness of the law because "pattern" is not
de ned therein and is not included in the de nition of the crime of plunder even though it is
an essential element of said crime. 1 2
Petitioner also maintains that the Plunder Law violates the due process clause and
the constitutional presumption of innocence by lowering the quantum of evidence
necessary for proving the component elements of plunder because Section 4 does not
require that each and every criminal act done by the accused in furtherance of the scheme
or conspiracy be proved, "it being su cient to established beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy." 1 3
Finally, petitioner alleges that it is beyond the power of Congress to delimit the
reasonable doubt standard and to abolish the element of mens rea in mala in se crimes by
converting these to mala prohibita, thereby making it easier for the prosecution to prove
malversation, bribery, estafa and other crimes committed by public o cers since criminal
intent need not be established. 1 4
Considering the infringement to the constitutionally-guaranteed right to due process
of an accused, petitioner contends that R.A. No. 7080 cannot be accorded any
presumption of constitutional validity.
Respondents' theory
On the other hand, Respondents argue that the "particular elements constituting the
crime of plunder" are stated with "definiteness and certainty," as follows:
(1) There is a public o cer who acts by himself or in connivance with
members of his family, relatives by a nity or consanguinity, business
associates, subordinates or other persons;
(2) There is an amassing, accumulating or acquiring of ill-gotten wealth;
(3) The total amount of ill-gotten wealth so amassed, accumulated or
acquired is at least Fifty Million Pesos (P50,000,000.00); and
(4) The ill-gotten wealth, which is de ned as any asset, property,
business enterprise or material possession of any person within the
purview of Section Two (2) of R.A. No. 7080, was acquired by him
directly or indirectly through dummies, nominees, agents,
subordinates, and/or business associates by any combination or
series of the means or similar schemes enumerated in Section 1(d).
15
Moreover, Respondents maintain that assuming that there is some vagueness in the
law, it need not be declared unconstitutional but may be clari ed by judicial construction.
1 6 Respondents further add that the ordinary import of the terms "combination" and
"series" should prevail, as can be gleaned from the deliberations of the Congress in the
course of its passage of the law. According to respondents, "series of overt criminal acts"
simply mean a repetition of at least two of any of those enumerated acts found in Section
1(d) of R.A. 7080. And "combination" means a product of combining of at least one of any
of those enumerated acts described in Section 1(d) with at least one of any of the other
acts so enumerated. Respondents score petitioner for arguing on the basis of federal
courts' decisions on the RICO law, citing that the U.S. courts have consistently rejected the
contention that said law is void for being vague. 1 7
Respondents deny that the Plunder Law dispenses with the requirement of proof
beyond reasonable doubt. While there may be no necessity to prove each and every other
act done by the accused in furtherance of the scheme to acquire ill-gotten wealth, it is still
necessary for the prosecution to prove beyond reasonable doubt the pattern of overt or
criminal acts indicative of the overall scheme or conspiracy, as well as all the other
elements of the offense of plunder. 1 8 Respondents also point out that conspiracy itself is
not punishable under the Plunder Law, which deals with conspiracy as a means of incurring
criminal liability. 1 9
Respondents likewise contend that it is within the inherent powers and wisdom of
the legislature to determine which acts are mala prohibita in the same way that it can
declare punishable an act which is inherently not criminal in nature. 2 0
In conclusion, Respondents assert that petitioner has failed to overcome the
presumption of constitutionality of R.A. No. 7080.
Petitioner's Reply
Petitioner, in his Reply to Comment, draws attention to Section 4, arguing that the
provision states the "most important element, which is the common thread that ties the
component acts together: "a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy 2 1 and raises the following questions:
(a) Reference is made to a "pattern of overt or criminal acts." The
disjunctive "or" is used. Will a pattern of acts, which are overt but not
criminal in themselves, be indicative of an overall unlawful scheme or
conspiracy?
(b) Under what speci c facts or circumstances will a "pattern" be
"indicative" of the overall unlawful scheme or conspiracy?
(c) Under what speci c facts or circumstances will the required
"pattern" or "scheme" even be said to be present or to exist?
(d) When is there an "unlawful scheme or conspiracy?" 2 2
Issues raised in the oral arguments
Oral arguments were heard on September 18, 2001. At said hearing, the Court
defined the issues for resolution as follows:
1) WHETHER R.A. NO. 7080 IS UNCONSTITUTIONAL FOR BEING VAGUE;
2) WHETHER R.A. NO. 7080 REQUIRES LESS EVIDENCE FOR PROVING
THE PREDICATE CRIMES OF PLUNDER AND THEREFORE VIOLATES
THE RIGHT OF THE ACCUSED TO DUE PROCESS; and
3) WHETHER PLUNDER AS DEFINED IN R.A. NO. 7080 IS A MALUM
PROHIBITUM AND IF SO, WHETHER IT IS WITHIN THE POWER OF
CONGRESS TO SO CLASSIFY THE SAME. 2 3
Thereafter, both parties led their respective memoranda in which they discussed
the points which they raised in their earlier pleadings and during the hearing.
I believe that there is merit in the petition.
A penal statute which violates constitutional
guarantees of individual rights is void.
Every law enacted by Congress enjoys a presumption of constitutionality, 2 4 and the
presumption prevails in the absence of contrary evidence. 2 5 A criminal statute is generally
valid if it does not violate constitutional guarantees of individual rights. 2 6 Conversely, when
a constitutionally protected right of an individual is in danger of being trampled upon by a
criminal statute, such law must be struck down for being void. 2 7
One of the fundamental requirements imposed by the Constitution upon criminal
statutes is that pertaining to clarity and de niteness. Statutes, particularly penal laws, that
fall short of this requirement have been declared unconstitutional for being vague. This
"void-for-vagueness" doctrine is rooted in the basic concept of fairness as well as the due
process clause of the Constitution.
The Constitution guarantees both substantive and procedural due process 2 8 as
well as the right of the accused to be informed of the nature and cause of the accusation
against him. 2 9 A criminal statute should not be so vague and uncertain that "men of
common intelligence must necessarily guess as to its meaning and differ as to its
application. 3 0
There are three distinct considerations for the vagueness doctrine. First, the
doctrine is designed to ensure that individuals are properly warned ex ante of the criminal
consequences of their conduct. This "fair notice" rationale was articulated in United States
v. Harriss: 3 1
The constitutional requirement of de niteness is violated by a criminal
statute that fails to give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute. The underlying principle is that
no man shall be held criminally responsible for conduct which he could not
reasonably understand to be proscribed. 3 2
Second, and viewed as more important, the doctrine is intended to prevent arbitrary and
discriminatory law enforcement. 3 3 Vague laws are invariably "standardless" and as
such, they afford too great an opportunity for criminal enforcement to be left to the
unfettered discretion of police o cers and prosecutors. 3 4 Third, vague laws fail to
provide su cient guidance to judges who are charged with interpreting statutes.
Where a statute is too vague to provide su cient guidance, the judiciary is arguably
placed in the position of usurping the proper function of the legislature by "making the
law" rather than interpreting it. 3 5
While the dictum that laws be clear and de nite does not require Congress to spell
out with mathematical certainty the standards to which an individual must conform his
conduct, 3 6 it is necessary that statutes provide reasonable standards to guide
prospective conduct. 3 7 And where a statute imposes criminal sanctions, the standard of
certainty is higher. 3 8 The penalty imposable on the person found guilty of violating R.A. No.
7080 is reclusion perpetua to death. 3 9 Given such penalty, the standard of clarity and
definiteness required of R.A. No. 7080 is unarguably higher than that of other laws. 4 0
Void-for-vagueness doctrine
applies to criminal laws.
A view has been proffered that "vagueness and overbreadth doctrines are not
applicable to penal laws." 4 1 These two concepts, while related, are distinct from each
other. 4 2 On one hand, the doctrine of overbreadth applies generally to statutes that
infringe upon freedom of speech. 4 3 On the other hand, the "void-for-vagueness" doctrine
applies to criminal laws, not merely those that regulate speech or other fundamental
constitutional rights. 4 4 The fact that a particular criminal statute does not infringe upon
free speech does not mean that a facial challenge to the statute on vagueness grounds
cannot succeed. 4 5
As earlier intimated, the "vagueness doctrine" is anchored on the constitutionally-
enshrined right to due process of law. Thus, as in this case that the "life, liberty and
property" of petitioner is involved, the Court should not hesitate to look into whether a
criminal statute has su ciently complied with the elementary requirements of
de niteness and clarity. It is an erroneous argument that the Court cannot apply the
vagueness doctrine to penal laws. Such stance is tantamount to saying that no criminal
law can be challenged however repugnant it is to the constitutional right to due process.
While admittedly, penal statutes are worded in reasonably general terms to
accomplish the legislature's objective of protecting the public from socially harmful
conduct, this should not prevent a vagueness challenge in cases where a penal statute is
so indeterminate as to cause the average person to guess at its meaning and application.
For if a statute infringing upon freedom of speech may be challenged for being vague
because such right is considered as fundamental, with more reason should a vagueness
challenge with respect to a penal statute be allowed since the latter involve deprivation of
liberty, and even of life which, inarguably, are rights as important as, if not more than, free
speech.
It has been incorrectly suggested 4 6 that petitioner cannot mount a "facial challenge"
to the Plunder Law, and that "facial" or "on its face" challenges seek the total invalidation of
a statute. 4 7 Citing Broadrick v. Oklahoma , 4 8 it is also opined that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms, seek
to regulate only spoken words" and that "overbreadth claims, if entertained at all, have
been curtailed when invoked against ordinary criminal laws that are sought to be applied
to protected conduct." For this reason, it is argued further that "on its face invalidation of
statutes has been described as 'manifestly strong medicine,' to be employed 'sparingly
and only as a last resort."' A reading of Broadrick, however, shows that the doctrine
involved therein was the doctrine of overbreadth. Its application to the present case is thus
doubtful considering that the thrust at hand is to determine whether the Plunder Law can
survive the vagueness challenge mounted by petitioner. A noted authority on constitutional
law, Professor Lockhart, explained that "the Court will resolve them (vagueness
challenges) in ways different from the approaches it has fashioned in the law of
overbreadth." 4 9 Thus, in at least two cases, 5 0 the U.S. courts allowed the facial challenges
to vague criminal statutes even if these did not implicate free speech.
I n Kolender v. Lawson , 5 1 petitioners assailed the constitutionality of a California
criminal statute which required persons who loiter or wander on the streets to provide a
credible and reasonable identi cation and to account for their presence when requested
by a peace o cer under circumstances that would justify a valid stop. The U.S. Supreme
Court held that said statute was unconstitutionally vague on its face within the meaning of
the due process clause of the Fourteenth Amendment because it encourages arbitrary
enforcement by failing to clarify what is contemplated by the requirement that a suspect
provide a "credible and reasonable identi cation." Spring eld vs. Oklahoma 5 2 on the other
hand involved a challenge to a Columbus city ordinance banning certain assault weapons.
The court therein stated that a criminal statute may be facially invalid even if it has some
conceivable application. It went on to rule that the assailed ordinance's de nition of
"assault weapon" was unconstitutionally vague, because it was "fundamentally irrational
and impossible to apply consistently by the buying public, the sportsman, the law
enforcement officer, the prosecutor or the judge." 5 3
It is incorrect to state that petitioner has made "little effort to show the alleged
invalidity of the statute as applied to him, as he allegedly "attacks 'on their face' not only §§
1 (d)(1) and (2) of R.A. 7080 under which he is charged, but also its other provisions which
deal with plunder committed by illegal or fraudulent disposition of government assets
(§1(d)(3)), acquisition of interest in business (§1(d)(4)), and establishment of monopolies
and combinations or implementation of decrees intended to bene t particular persons or
special interests (§1(d)(5))." 5 4 Notably, much of petitioner's arguments dealt with the
vagueness of the key phrases "combination or series" and "pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy" which go into the very nature of
the crime for which he is charged.
Taking into consideration that the Plunder Law is a penal statute that imposes the
supreme penalty of death, and that petitioner in this case clearly has standing to question
its validity inasmuch as he has been charged thereunder and that he has been for
sometime now painfully deprived of his liberty, it behooves this Court to address the
challenge on the validity of R.A. No. 7080.

Men steeped in law find
difficulty in understanding plunder.
The basic question that arises, therefore, is whether the clauses in Section 2 —
combination or series of overt or criminal acts as described in Section 1(d) hereof
and Section 1(d), which provides —
. . . by any combination or series of the following means or similar
schemes:
1) Through misappropriation, conversion, misuse, or malversation of

public funds or raids on the public treasury;
xxx xxx xxx
6) By taking undue advantage of o cial position, authority,
relationship, connection or in uence to unjustly enrich himself or themselves at
the expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines.
as quali ed by Section 4 which also speaks of the " scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth" and of "a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy," are clear enough that a person
"of common intelligence" need not guess at their meaning and differ as to their
application.
The above raise several di cult questions of meaning which go to the very essence
of the offense, such as:
a. How many acts would constitute a "combination or series?"
b. Must the acts alleged to constitute the "combination or series" be

similar in nature? Note that Section 1(d) speaks of "similar schemes" while
Section 4 speaks of "the scheme" and of "a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy."
c. Must the "combination or series" of "overt or criminal acts" involving
the aggregate amount of at least P50 million be conceived as such a scheme or a
"pattern of overt or criminal acts" from inception by the accused?
d. What would constitute a "pattern"? What linkage must there be
between and among the acts to constitute a "pattern"? Need there be a linkage as
to the persons who conspire with one another, and a linkage as to all the acts
between and among them?
e. When Section 4 speaks of "indicative of the overall unlawful scheme
or conspiracy," would this mean that the "scheme" or "conspiracy" should have
been conceived or decided upon in its entirety, and by all of the participants?
f. When committed in connivance "with members of his family,
relatives by a nity or consanguinity, business associates, subordinates or other
persons" or through "dummies, nominees, agents, subordinates and/or business
associates," would such fact be part of the " pattern of overt or criminal acts" and
of the "overall unlawful scheme or conspiracy " such that all of those who are
alleged to have participated in the crime of plunder must have participated in
each and every act allegedly constituting the crime of plunder? And as in
conspiracy, conspired together from inception to commit the offense?
g. Within what time frame must the acts be committed so as to
constitute a "combination or series"?
I respectfully disagree with the majority that "ascertainable standards and well-
defined parameters" are provided in the law 5 5 to resolve these basic questions.
Even men steeped in the knowledge of the law are in a quandary as to what
constitutes plunder. The Presiding Justice of the Sandiganbayan, Justice Francis
Garchitorena, admitted that the justices of said court "have been quarreling with each other
in nding ways to determine what [they] understand by plunder . " 5 6 Senator Neptali
Gonzales also noted during the deliberations of Senate Bill No. 733 that the de nition of
plunder under the law is vague. He bluntly declared: "I am afraid that it might be faulted for
being violative of the due process clause and the right to be informed of the nature and
cause of the accusation of an accused. 5 7 Fr. Bernas, for his part, pointed to several
problematical portions of the law that were left unclari ed. He posed the question: " How
can you have a 'series' of criminal acts if the elements that are supposed to constitute the
series are not proved to be criminal?" 5 8
The meanings of "combination" and "series"
as used in R.A. No. 7080 are not clear.
Although the law has no statutory de nition of "combination" or "series," the majority
is of the view that resort can be had to the ordinary meaning of these terms. Thus,
Webster's Third New International Dictionary gives the meaning of " combination": "the
result or product or product of combining: a union or aggregate made of combining one
thing with another." 5 9
In the context of R.A. No. 7080, "combination" as suggested by the Solicitor General
means that at least two of the enumerated acts found in Section 1(d), i.e., one of any of the
enumerated acts, combined with another act falling under any other of the enumerated
means may constitute the crime of plunder. With respect to the term "series," the majority
states that it has been understood as pertaining to "two or more overt or criminal acts
falling under the same category" 6 0 as gleaned from the deliberations on the law in the
House of Representatives and the Senate.
Further, the import of "combination" or "series" can be ascertained, the majority
insists, 6 1 from the following deliberations in the Bicameral Conference Committee on May
7, 1991:
REP. ISIDRO:
I am just intrigued again by our de nition of plunder. We say, THROUGH A
THE CHAIRMAN (REP. GARCIA):
Yeah, because we say series.
REP. ISIDRO:
Series.
Yeah, we include series.
REP. ISIDRO:
But we say we begin with a combination.
THE CHAIRMAN: (REP. GARCIA):
Yes.
REP. ISIDRO:
When we say combination, it seems that —
Two.
REP. ISIDRO:
No, no, not twice.
REP. ISIDRO:
Not twice?

REP. ISIDRO:
So in other words, that's it. When we say combination, we mean two different
acts. It can not be a repetition of the same act.
That be referred to series. Yeah.
REP. ISIDRO:
A series.
REP. ISIDRO:
That's not series. It's a combination. Because when we say combination or
series, we seem to say that two or more, 'di ba?
Yes, This distinguishes it, really, from the ordinary crimes. That is why, I said,
that is a very good suggestion because if it is only one act, it may fall
under ordinary crime but we have here a combination or series of overt or
criminal acts. So. . .
HON. ISIDRO:
I know what you are talking about. For example, through misappropriation,
conversion, misuse or malversation of public funds who raids the public
treasury, now, for example, misappropriation, if there are a series of
misappropriations?
xxx xxx xxx

Series. One after the other eh di. . .
THE CHAIRMAN (SEN. TAÑADA):
So that would fall under term "series"?
Series, oo.
REP. ISIDRO:
Now, if it is combination, ano, two misappropriations . . .

It's not . . . two misappropriations will not be combination. Series.
REP. ISIDRO:
Yes.
REP. ISIDRO:
When you say "combination," two different?
Yes.
Two different.
REP. ISIDRO:
Two different acts.
For example, ha. . .

REP. ISIDRO:
Now a series, meaning, repetition. . . 6 2
The following deliberations in the Senate are pointed to by the majority 6 3 to show
that the words "combination" and "series" are given their ordinary meaning:
Senator Maceda.
In line of our interpellations that sometimes "one" or maybe even "two" acts
consider deleting the words "a series of overt or." To read, therefore: "or
conspiracy COMMITTED by criminal acts such as.".Remove the idea of
Senator Tañada.
this.
The President.
Probably, two or more would be . . . .
Senator Maceda.
Yes, because 'a series' implies several or many' two or more.
Senator Tañada.
Accepted, Mr. President.
xxx xxx xxx
The President.
But when we say 'acts of plunder' there should be, at least, two or more.
Senator Romulo.
In other words, that is already covered by existing laws, Mr. President. 6 4
To my mind, resort to the dictionary meaning of the terms "combination" and "series"
as well as recourse to the deliberations of the lawmakers only serve to prove that R.A. No.
7080 failed to satisfy the strict requirements of the Constitution on clarity and
de niteness. Note that the key element to the crime of plunder is that the public o cer, by
himself or in conspiracy with others, amasses, accumulates, or acquires "ill-gotten wealth"
through a "combination or series of overt or criminal acts" as described in Section 1(d) of
the law. Senator Gonzales, during the deliberations in the Senate, already raised serious
concern over the lack of a statutory de nition of what constitutes "combination" or
"series," consequently, expressing his fears that Section 2 of R.A. No. 7080 might be
violative of due process:
Senator Gonzales.
To commit the offense of plunder, as de ned in this Act and while
constituting a single offense, it must consist of a series of overt or criminal
acts, such as bribery, extortion, malversation of public funds, swindling,
illegal exaction, and graft or corrupt practices act and like offenses. Now,
Mr. President, I think, this provision, by itself will be vague. I am afraid that
it might be faulted for being violative of the due process clause and the
right to be informed of the nature and cause of accusation of an accused.
Because, what is meant by "series of overt or criminal acts?" I mean, would
2, 3, 4 or 5 constitute a series? During the period of amendments, can we
establish a minimum of overt acts like, for example, robbery in band? The
law de nes what is robbery in band by the number of participants therein.
In this particular case probably, we can statutorily provide for the de nition
of "series" so that two, for example, would that be already a series? Or,
three, what would be the basis for such determination? 6 5 (Emphasis
supplied.)
The point raised by Senator Gonzales is crucial and well-taken. I share petitioner's
observation that when penal laws enacted by Congress make reference to a term or
concept requiring a quantitative de nition, these laws are so crafted as to specifically
state the exact number or percentage necessary to constitute the elements of a crime. To
cite a few:
"Band" — "Whenever more than three armed malefactors shall have acted
together in the commission of an offense, it shall be deemed to have been
committed by a band." (Article 14[6], Revised Penal Code) 6 6
"Conspiracy" — "A conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it."
(Article 8, Revised Penal Code) 6 7
"Illegal Recruitment by a Syndicate" — "Illegal recruitment is deemed
committed by a syndicate if carried out by a group of three (3) or more persons
conspiring and/or confederating with one another in carrying out any unlawful or
illegal transaction, enterprise or scheme . . . ." (Section 38, Labor Code)
"Large-scale Illegal Recruitment" — "Illegal recruitment is deemed
committed in large scale if committed against three (3) or more persons
individually or as a group." (Section 38, Labor Code)
"Organized/Syndicated Crime Group" — "[M]eans a group of two or more
persons collaborating, confederating or mutually helping one another for
purposes of gain in the commission of any crime." (Article 62 (1)(1a), Revised
Penal Code) 6 8
"Swindling by a Syndicate" — ". . . if the swindling (estafa) is committed by
a syndicate consisting of ve or more persons formed with the intention of
carrying out the unlawful or illegal act, transaction, enterprise or scheme . . . ."
(Section 1, P.D. No. 1689) 6 9
The deliberations of the Bicameral Conference Committee and of the Senate cited
by the majority, consisting mostly of un nished sentences, offer very little help in clarifying
the nebulous concept of plunder. All that they indicate is that Congress seemingly intended
to hold liable for plunder a person who: (1) commits at least two counts of any one of the
acts mentioned in Section 1(d) of R.A. No. 7080, in which case, such person commits
plunder by a series of overt criminal acts; or (2) commits at least one count of at least two
of the acts mentioned in Section 1(d), in which case, such person commits plunder by a
combination of overt criminal acts. Said discussions hardly provide a window as to the
exact nature of this crime.
A closer look at the exchange between Representatives Garcia and Isidro and
Senator Tañada would imply that initially, combination was intended to mean "two or more
means," 7 0 i.e., "number one and two or number one and something else . . .," 7 1 "two of the
enumerated means not twice of one enumeration," 7 2 "two different acts." 7 3 Series would
refer to "a repetition of the same act." 7 4 However, the distinction was again lost as can be
gleaned from the following:
THE CHAIRMAN (REP. GARCIA)
REP. ISIDRO.

different acts. It can not be a repetition of the same act.
THE CHAIRMAN (REP. GARCIA).
REP. ISIDRO.

A series.
REP. ISIDRO.
That's not series . It's a combination . Because when we say combination or
series, we seem to say that two or more, 'di ba?
Yes. This distinguishes it really the ordinary — That's why I said, that's a very
good suggestion, because if it's only one act, it may fall under ordinary
crime. But we have here a combination or series, of overt or criminal acts"
(Emphasis supplied). 7 5
xxx xxx xxx

THE CHAIRMAN (REP. GARCIA P.)
Series. One after the other eh di . . .
THE CHAIRMAN (SEN. TAÑADA)
So, that would fall under the term "series"?
Series, oo.
REP. ISIDRO.
Now, if it is combination, ano, two misappropriations. . .
THE CHAIRMAN (REP. GARCIA)
It's not . . . two misappropriations will not be combination. Series.
REP. ISIDRO.
THE CHAIRMAN. (REP. GARCIA P.)
Yes.
REP. ISIDRO.
When we say "combination," two different?

Yes.
Two different.
REP. ISIDRO.
Two different acts.

REP. ISIDRO.
Now a series, meaning, repetition . . .
THE CHAIRMAN (SEN. TAÑADA).
Yes.
REP. ISIDRO.
With that . . .
Thank you.
So, it could be a series of any of the acts mentioned in paragraphs 1, 3, 4, 5
of Section 2 (d), or . . . 1 (d) rather, or a combination of any of the acts
mentioned in paragraph 1 alone, or paragraph 2 alone or paragraph 3 or
paragraph 4.
I think combination maybe . . .which one? Series?
Series or combination.
REP. ISIDRO.
Which one, combination or series or series or combination?
Okay. Ngayon doon sa definition, ano, Section 2, definition, doon sa portion

ng . . . Saan iyon? As mentioned, as described . . .
Described. I think that is . . .

. . . better than "mentioned". Yes.
Okay?
REP. ISIDRO.
Very good.
THE CHAIRMAN. (SEN. TAÑADA)
Oo, marami pong salamat.

Maraming salamat po.
The meeting was adjourned at 1:33 p.m." 7 6 (Emphasis supplied.)
The aforequoted deliberations, especially the latter part thereof, would show a
dearth of focus to render precise the de nition of the terms. Phrases were uttered but
were left un nished. The examples cited were not very de nite. Unfortunately, the
deliberations were apparently adjourned without the Committee members themselves
being clear on the concept of series and combination.
Moreover, if "combination" as used in the law simply refers to the amassing,
accumulation and acquisition of ill-gotten wealth amounting to at least P50 Million through
at least two of the means enumerated in Section 1(d), and "series," to at least two counts
of one of the modes under said section, the accused could be meted out the death penalty
for acts which, if taken separately, i.e., not considered as part of the combination or series,
would ordinarily result in the imposition of correctional penalties only. If such
interpretation would be adopted, the Plunder law would be so oppressive and arbitrary as
to violate due process and the constitutional guarantees against cruel or inhuman
punishment. 7 7 The penalty would be blatantly disproportionate to the offense. Petitioner's
examples illustrate this absurdity:
a. One act of indirect bribery (penalized under Art. 211 of the Revised Penal
Code with prision correccional in its medium and maximum periods),
combined with —
one act of fraud against the public treasury (penalized under Art. 213 of the
Revised Penal Code with prision correccional in its medium period to prision
mayor in its minimum period).
equals —
Plunder (punished by reclusion perpetua to death plus forfeiture of assets under
R.A. 7080)
b. One act of prohibited transaction (penalized under Art. 215 of the
Revised Penal Code with prision correccional in its minimum period or a ne
ranging from P200 to P1,000 or both).
combined with —
one act of establishing a commercial monopoly (penalized under Art. 186 of
Revised Penal Code with prision correccional in its minimum or a fine ranging
from P200 to P6,00, or both.
equals —
Plunder (punished by reclusion perpetua to death, and forfeiture of assets under
R.A. 7080).
c. One act of possession of prohibited interest by a public officer (penalized
with prision correccional in its minimum period or a fine of P200 to P1,000, or
both under Art. 216 of the Revised Penal Code).
combined with —
one act of combination or conspiracy in restraint of trade (penalized under Art.
186 of the Revised Penal Code with prision correccional in its minimum period, or
a fine of P200 to P1,000, or both),
equals —
plunder (punished by reclusion perpetua to death, and forfeiture of assets). 7 8
The argument that higher penalties may be imposed where two or more distinct
criminal acts are combined and are regarded as special complex crimes, i.e., rape with
homicide, does not justify the imposition of the penalty of reclusion perpetua to death in
case plunder is committed. Taken singly, rape is punishable by reclusion perpetua; 7 9 and
homicide, by reclusion temporal. 8 0 Hence, the increase in the penalty imposed when these
two are considered together as a special complex crime is not too far from the penalties
imposed for each of the single offenses. In contrast, as shown by the examples above,
there are instances where the component crimes of plunder, if taken separately, would
result in the imposition of correctional penalties only; but when considered as forming part
of a series or combination of acts constituting plunder, could be punishable by reclusion
perpetua to death. The disproportionate increase in the penalty is certainly violative of
substantive due process and constitute a cruel and inhuman punishment.
It may also be pointed out that the de nition of "ill-gotten wealth" in Section 1(d) has
reference to the acquisition of property (by the accused himself or in connivance with
others) "by any combination or series" of the "means" or "similar schemes" enumerated
therein, which include the following:
xxx xxx xxx
4. By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other forms of interest or participation including
the promise of future employment or any business enterprise or undertakings;
5. By establishing agricultural, industrial or commercial monopolies
or other combination and/or implementation of decrees and orders intended
to benefit particular persons or special interests;
xxx xxx xxx
The above-mentioned acts are not, by any stretch of the imagination, criminal or
illegal acts. They involve the exercise of the right to liberty and property guaranteed by
Article III, Section 1 of the Constitution which provides that "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." Receiving or accepting any shares of stock is not per se
objectionable. It is in pursuance of civil liberty, which includes "the right of the citizen to be
free to use his faculties in all lawful ways; . . . to earn his livelihood by any lawful calling; to
pursue any avocation, and/or that purpose, to enter into all contracts which may be proper,
necessary and essential to his carrying out these purposes to a successful conclusion. 8 1
Nor is there any impropriety, immorality or illegality in establishing agricultural, industrial or
commercial monopolies or other combination and/or implementation of decrees and
orders even if they are intended to bene t particular persons or special interests. The
phrases "particular persons" and "special interests" may well refer to the poor, 8 2 the
indigenous cultural communities, 8 3 labor, 8 4 farmers, 8 5 sherfolk, 8 6 women, 8 7 or those
connected with education, science and technology, arts, culture and sports. 8 8
In contrast, the monopolies and combinations described in Article 186 of the
Revised Penal Code are punishable because, as speci cally de ned therein, they are "on
restraint of trade or commerce or to prevent by arti cial means of free competition in the
market, or the object is "to alter the price" of any merchandise "by spreading false rumors,"
or to manipulate market prices in restraint of trade. There are no similar elements of
monopolies or combinations as described in the Plunder Law to make the acts wrongful.
If, as interpreted by the Solicitor General, "series" means a "repetition" or pertains to
"two or more" acts, and "combination as de ned in the Webster's Third New International
Dictionary is "the result or product of combining one thing with another," 8 9 then, the
commission of two or more acts falling under paragraphs (4) and (5) of Section 1(d)
would make innocent acts protected by the Constitution as criminal, and punishable by
reclusion perpetua to death.
R.A. No. 7080 does not define "pattern,"
an essential element of the crime of plunder.
Granting arguendo that, as asserted by the majority, "combination" and "series"
simplistically mean the commission of two or more of the acts enumerated in Section
1(d), 9 0 still, this interpretation does not cure the vagueness of R.A. No. 7080. In construing
the de nition of "plunder," Section 2 of R.A. No. 7080 must not be read in isolation but
rather, must be interpreted in relation to the other provisions of said law. It is a basic rule
of statutory construction that to ascertain the meaning of a law, the same must be read in
its entirety. 9 1 Section 1 taken in relation to Section 4 suggests that there is something to
plunder beyond simply the number of acts involved and that a grand scheme to amass,
accumulate or acquire ill-gotten wealth is contemplated by R.A. No. 7080. Sections 1 and 2
pertain only to the nature and quantitative means or acts by which a public o cer, by
himself or in connivance with other persons, "amasses, accumulates or acquires ill-gotten
wealth." Section 4, on the other hand, requires the presence of elements other than those
enumerated in Section 2 to establish that the crime of plunder has been committed
because it speaks of the necessity to establish beyond reasonable doubt a "pattern of
overt or criminal acts indicative of the overall unlawful scheme or conspiracy."
Clearly, it will not su ce that the "illegal wealth" amassed is at least Fifty Million
Pesos and that this was acquired by any two or more of the acts described in Section 1(d);
it is necessary that these acts constitute a "combination or series" of acts done in
furtherance of "the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth," and which constitute "a pattern of overt or criminal acts indicative of the overall
scheme or conspiracy."
That pattern is an essential element of the crime of plunder is evident from a reading
of the assailed law in its entirety. It is that which would distinguish plunder from isolated
criminal acts punishable under the Revised Penal Code and other laws, for without the
existence a "pattern of overt or criminal acts indicative of the overall scheme or
conspiracy" to acquire ill-gotten wealth, a person committing several or even all of the acts
enumerated in Section 1(d) cannot be convicted for plunder, but may be convicted only for
the speci c crimes committed under the pertinent provisions of the Revised Penal Code or
other laws.
For this reason, I do not agree that Section 4 is merely a rule of evidence or a rule of
procedure. It does not become such simply because its caption states that it is, although
its wording indicates otherwise. On the contrary, it is of substantive character because it
spells out a distinctive element of the crime which has to be established, i.e., an overall
unlawful "scheme or conspiracy" indicated by a "pattern of overt or criminal acts" or means
or similar schemes "to amass, accumulate or acquire ill-gotten wealth."
The meaning of the phrase "pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy," however, escapes me. As in "combination" and "series,"
R.A. No. 7080 does not provide a de nition of "pattern" as well as "overall unlawful
scheme." Reference to the legislative history of R.A. No. 7080 for guidance as to the
meanings of these concepts would be unavailing, since the records of the deliberations in
Congress are silent as to what the lawmakers mean by these terms.
Resort to the dictionary meanings of "pattern" and "scheme" is, in this case, wholly
inadequate. These words are defined as:
pattern: an arrangement or order of things or activity. 9 2
scheme: design; project; plot. 9 3
At most, what the use of these terms signi es is that while multiplicity of the acts
(at least two or more) is necessary, this is not su cient to constitute plunder. As stated
earlier, without the element of "pattern" indicative of an "overall unlawful scheme," the acts
merely constitute isolated or disconnected criminal offenses punishable by the Revised
Penal Code or other special laws.
The commission of two or more of the acts falling under Section 1(d) is no
guarantee that they fall into a "pattern" or "any arrangement or order." It is not the number
of acts but the relationship that they bear to each other or to some external organizing
principle that renders them "ordered" or "arranged":

A pattern is an arrangement or order of things, or activity, and the mere fact
that there are a number of predicates is no guarantee that they fall into an
arrangement or order. It is not the number of predicates but the relationship that
they bear to each other or to some external organizing principle that renders them
'ordered' or 'arranged.' 9 4
In any event, it is hardly possible that two predicate acts can form a pattern:
The implication is that while two acts are necessary, they may not be sufficient.
Indeed, in common parlance, two of anything will not generally form a 'pattern.' 9 5
In H. J. Inc. v. Northwestern Bell Telephone Co. et al . 9 6 (hereinafter referred to as

Northwestern), the U.S. Court reiterated the foregoing doctrine:
. . . Nor can we agree with those courts that have suggested that a pattern
is established merely by proving two predicate acts. 9 7
Respondents' metaphorical illustration of "pattern" as a wheel with spokes (the overt

or criminal acts of the accused) meeting at a common center (the acquisition of ill-gotten
wealth) and with a rim (the overall unlawful scheme or conspiracy) of the wheel enclosing
the spokes, is off tangent. Their position that two spokes su ce to make a wheel, even
without regard to the relationship the spokes bear to each other clearly demonstrates the
absurdity of their view, for how can a wheel with only two spokes which are disjointed
function properly?
That "pattern" is an amorphous concept even in U.S. jurisprudence where the term is
reasonably de ned is precisely the point of the incisive concurring opinion of Justice
Antonin Scalia in Northwestern where he invited a constitutional challenge to the RICO law
on "void-for-vagueness" ground. 9 8 The RICO law is a federal statute in the United States
that provides for both civil and criminal penalties for violation therefor. It incorporates by
reference twenty-four separate federal crimes and eight types of state felonies. 9 9 One of
the key elements of a RICO violation is that the offender is engaged in a "pattern of
racketeering activity." 1 0 0 The RICO law defines the phrase "pattern of racketeering activity"
as requiring "at least two acts of racketeering activity, one of which occurred after the
effective date of 18 USCS § 1961, and within ten years (excluding any period of
imprisonment) after the commission of a prior act of racketeering activity. " 1 0 1
Incidentally, the Solicitor General claims that R.A. No. 7080 is an entirely different law from
the RICO law. The deliberations in Congress reveal otherwise. As observed by Rep. Pablo
Garcia, Chairman of the House of Representatives Committee on Justice, R.A. No. 7080
was patterned after the RICO law. 1 0 2
In Northwestern, conceding that "[the U.S. Congress] has done nothing . . . further to
illuminate RICO's key requirement of a pattern of racketeering," the U.S. Supreme Court,
through Justice William J. Brennan, Jr., undertook the task of developing a meaningful
concept of "pattern" within the existing statutory framework. 1 0 3 Relying heavily on
legislative history, the US Supreme Court in that case construed "pattern" as requiring
"continuity plus relationship." 1 0 4 The US Supreme Court formulated the "relationship
requirement" in this wise: "Criminal conduct forms a pattern if it embraces criminal acts
that have the same or similar purposes, results, participants, victims, or methods of
commission, or otherwise are interrelated by distinguishing characteristics and are not
isolated events." 1 0 5 Continuity is clari ed as "both a closed and open-ended concept,
referring either to a closed period of repeated conduct, or to past conduct that by its
nature projects into the future with a threat of repetition." 1 0 6
In his separate concurring opinion, Justice Scalia rejected the majority's formulation.
The "talismanic phrase" of "continuity plus relationship" is, as put by Justice Scalia, about
as helpful as advising the courts that "life is a fountain." He writes:
. . . Thus, when §1961(5) says that a pattern "requires at least two acts
of racketeering activity" it is describing what is needful but not su cient. (If
that were not the case, the concept of "pattern" would have been unnecessary,
and the statute could simply have attached liability to "multiple acts of
racketeering activity"). But what that something more is, is beyond me. As I
have suggested, it is also beyond the Court. Today's opinion has added
nothing to improve our prior guidance, which has created a kaleidoscope of
Circuit positions, except to clarify that RICO may in addition be violated when
there is a "threat of continuity." It seems to me this increases rather than
removes the vagueness. There is no reason to believe that the Court of
Appeals will be any more uni ed in the future, than they have in the past,
regarding the content of this law.
That situation is bad enough with respect to any statute, but it is
intolerable with respect to RICO. For it is not only true, as Justice Marshall
commented in Sedima, S.P.R.L. vs. Imrex Co. , 473 U.S. 479 . . ., that our
interpretation of RICO has "quite simply revolutionize[d] private litigation" and
"validate[d] the federalization of broad areas of state common law of frauds," .
. . so that clarity and predictability in RICO's civil applications are particularly
important; but it is also true that RICO, since it has criminal applications as
well, must, even in its civil applications, possess the degree of certainty
required for criminal laws . . . . No constitutional challenge to this law has
been raised in the present case, and so that issue is not before us. That the
highest court in the land has been unable to derive from this statute anything
more than today's meager guidance bodes ill for the day when that challenge
is presented. 1 0 7
It bears noting that in Northwestern the constitutionality of the RICO law was not
challenged. 1 0 8 After Northwestern, the U.S. Supreme Court has so far declined the
opportunity to hear cases in which the void-for-vagueness challenge to the pattern
requirement was raised. 1 0 9
Admittedly, at the district courts level, the state statutes (referred to as Little RICOS)
110 have so far successfully survived constitutional challenge on void-for-vagueness
ground. However, it must be underscored that, unlike R.A. No. 7080, these state anti-
racketeering laws have invariably provided for a reasonably clear, comprehensive and
understandable de nition of "pattern . " 111 For instance, in one State, the pattern
requirement speci es that the related predicate acts must have, among others, the same
or similar purpose, result, principal, victims or methods of commission and must be
connected with "organized crime". 1 1 2 In four others, their pattern requirement provides
that two or more predicate acts should be related to the affairs of the enterprise, are not
isolated, are not closely related to each other and connected in point of time and place,
and if they are too closely related, they will be treated as a single act. 1 1 3 In two other
states, pattern requirements provide that if the acts are not related to a common scheme,
plan or purpose, a pattern may still exist if the participants have the mental capacity
required for the predicate acts and are associated with the criminal enterprise. 1 1 4
All the foregoing state statutes require that the predicate acts be related and that
the acts occur within a specified time frame.
Clearly, "pattern" has been statutorily de ned and interpreted in countless ways by
circuit courts in the United States. Their divergent conclusions have functioned effectively
to create variant criminal offenses. 1 1 5 This confusion has come about notwithstanding
that almost all these state laws have respectively statutorily de ned "pattern." In sharp
contrast, R.A. No. 7080, as earlier pointed out, lacks such crucial de nition . As to what
constitutes pattern within the meaning of R.A. No. 7080 is left to the ad hoc interpretation
of prosecutors and judges. Neither the text of R.A. No. 7080 nor legislative history afford
any guidance as to what factors may be considered in order to prove beyond reasonable
doubt "pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy."
Be that as it may, it is glaringly fallacious to argue that "series" simply means a
"repetition" or "pertaining to two or more" and "combination" is the "result or product or
product of combining." Whether two or more or at least three acts are involved, the
majority would interpret the phrase "combinations" or "series" only in terms of number of
acts committed. They entirely overlook or ignore Section 4 which requires "a pattern of
overt of criminal acts indicative of the overall unlawful scheme or conspiracy" to convict.
If the elements of the offense are as what the majority has suggested, the crime of
plunder could have been defined in the following manner:
Where a public o cial, by himself or in conspiracy with others, amasses or
acquires money or property by committing two or more acts in violation of
Section 3 of the Anti-Graft and Corrupt Practices Act (R.A. 3019), or Articles
210, 211, 212, 213, 214, 215, 216 and 217 of the Revised Penal Code, he shall
be guilty of the crime of plunder and shall be punished by reclusion perpetua
to death.
The above would be a straightforward and objective de nition of the crime of

plunder. However, this would render meaningless the core phrases "a combination or
series of" "overt or criminal acts indicative of the overall unlawful scheme or conspiracy," or
the phrase "any combination or series of the following means or similar schemes" or "a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy."
But that obviously is not the definition of the crime of plunder under R.A. 7080. There
is something more. A careful reading of the law would unavoidably compel a conclusion
that there should be a connecting link among the "means or schemes" comprising a "series
or combination" for the purpose of acquiring or amassing "ill-gotten wealth." The bond or
link is an "overall unlawful scheme or conspiracy mentioned in Section 4. The law
contemplates a combination or series of criminal acts in plunder done by the accused "in
furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth." It does not postulate acts committed randomly, separately or independently or
sporadically. Otherwise stated, if the legislature intended to de ne plunder as the
acquisition of ill-gotten wealth in the manner espoused by the majority, the use in R.A.
7080 of such words and phrases as "combination" and "series of overt or criminal acts" . . .
"in furtherance of the scheme or conspiracy" is absolutely pointless and meaningless.
R.A. No. 7080 makes it possible for a person
conspiring with the accused in committing
one of the acts constituting the charge
of plunder to be convicted for the same crime.
Section 2 of R.A. No. 7080 states that "[a]ny person who participated with the said
public o cer in the commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties, the degree of
by the Revised Penal Code, shall be considered by the court." Both parties share the view
that the law as it is worded makes it possible for a person who participates in the
commission of only one of the component crimes constituting plunder to be liable as co-
conspirator for plunder, not merely the component crime in which he participated. 1 1 6
While petitioner concedes that it is easy to ascertain the penalty for an accomplice or
accessory under R.A. No. 7080, such is not the case with respect to a co-principal of the
accused. 1 1 7 In other words, a person who conspires with the accused in the commission
of only one of the component crimes may be prosecuted as co-principal for the
component crime, or as co-principal for the crime of plunder, depending on the
interpretation of the prosecutor. The unfettered discretion effectively bestowed on law
enforcers by the aforequoted clause in determining the liability of the participants in the
commission of one or more of the component crimes of a charge for plunder undeniably
poses the danger of arbitrary enforcement of the law. 1 1 8
R.A. No. 7080 does not clearly state
the prescriptive period of the crime of plunder.
Section 6 of R.A. No. 7080 provides that the crime punishable under said Act shall
prescribe in twenty (20) years. Considering that the law was designed to cover a
"combination or series of overt or criminal acts," or "a pattern of overt or criminal acts,"
from what time shall the period of prescription be reckoned? From the rst, second, third
or last act of the series or pattern? What shall be the time gap between two succeeding
acts? If the last act of a series or combination was committed twenty or more years after
the next preceding one, would not the crime have prescribed, thereby resulting in the total
extinction of criminal liability under Article 89(b) of the Revised Penal Code? In antithesis,
the RICO law affords more clarity and de niteness in describing "pattern of racketeering
activity" as "at least two acts of racketeering activity, one of which occurred within ten
years (excluding any period of imprisonment) after the commission of a prior act of
racketeering activity." 1 1 9 The U.S. state statutes similarly provide speci c time frames
within which racketeering acts are committed.
The Solicitor General enjoins the Court to rectify the de ciencies in the law by
judicial construction. However, it certainly would not be feasible for the Court to interpret
each and every ambiguous provision without falling into the trap of judicial legislation. A
statute should be construed to avoid constitutional question only when an alternative
interpretation is possible from its language. 1 2 0 Borrowing from the opinion of the court
1 2 1 in Northwestern, 1 2 2 the law "may be a poorly drafted statute; but rewriting it is a job
for Congress, if it so inclined, and not for this Court." But where the law as the one in
question is void on its face for its patent ambiguity in that it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning and
differ as to its application, the Court cannot breathe life to it through the guise of
construction.
R.A. No. 7080 effectively eliminates mens rea
or criminal intent as an element of the crime of plunder.
Section 4 provides that for the purpose of establishing the crime of plunder, "it shall
not be necessary to prove each and every criminal act done by the accused in furtherance
of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being
su cient to establish beyond reasonable a pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy."
The majority would interpret this section to mean that the prosecution has the
burden of "showing a combination or series resulting in the crime of plunder." And, once
the minimum requirements for a combination or a series of acts are met, there is no
necessity for the prosecution to prove each and every other act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate, or acquire ill-gotten
wealth. 1 2 3
By its language, Section 4 eliminates proof of each and every component criminal
act of plunder by the accused and limits itself to establishing just the pattern of overt or
criminal acts indicative of unlawful scheme or conspiracy. The law, in effect, penalizes the
accused on the basis of a proven scheme or conspiracy to commit plunder without the
necessity of establishing beyond reasonable doubt each and every criminal act done by
the accused in the crime of plunder. To quote Fr. Bernas again: "How can you have a 'series'
of criminal acts if the elements that are supposed to constitute the series are not proved
to be criminal?" 1 2 4
Moreover, by doing away with proof beyond reasonable doubt of each and every
criminal act done by the accused in the furtherance of the scheme or conspiracy to acquire
ill-gotten wealth, it being su cient just to prove a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy, the Plunder Law effectively
eliminated the mens rea or criminal intent as an element of the crime. Because of this, it is
easier to convict for plunder and sentence the accused to death than to convict him for
each of the component crimes otherwise punishable under the Revised Penal Code and
other laws which are bailable offenses. The resultant absurdity strikes at the very heart if
the constitutional guarantees of due process and equal protection.
Plunder is a malum in se.
The acts enumerated in Section 1(d) are mostly de ned and penalized by the
Revised Penal Code, e.g. malversation, estafa, bribery and other crimes committed by
public o cers. As such, they are by nature mala in se crimes. Since intent is an essential
element of these crimes, then with more reason that criminal intent be established in
plunder which, under R.A. No. 7659, is one of the heinous crimes 1 2 5 as pronounced in one
of its whereas clauses. 1 2 6
The fact that the acts enumerated in Section 1(d) of R.A. 7080 were made criminal
by special law does not necessarily make the same mala prohibita where criminal intent is
not essential, although the term refers generally to acts made criminal by special laws. For
there is a marked difference between the two. According to a well-known author on
criminal law:
There is a distinction between crimes which are mala in se, or wrongful
from their nature, such as theft, rape, homicide, etc., and those that are mala
prohibita, or wrong merely because prohibited by statute, such as illegal
possession of firearms.
Crimes mala in se are those so serious in their effects on society as to call
for almost unanimous condemnation of its members; while crimes mala prohibita
are violations of mere rules of convenience designed to secure a more orderly
regulation of the affairs of society. (Bouvier's Law Dictionary, Rawle's 3rd
Revision)
(1) In acts mala in se, the intent governs; but in those mala prohibita
the only inquiry is, has the law been violated? (People vs. Kibler, 106
N.Y., 321, cited in the case of U.S. vs. Go Chico, 14 Phil. 132)
Criminal intent is not necessary where the acts are prohibited for reasons
of public policy, as in illegal possession of rearms. ( People vs. Conosa, C.A., 45
O.G. 3953)
(2) The term mala in se refers generally to felonies de ned and
penalized by the Revised Penal Code. When the acts are inherently
immoral, they are mala in se, even if punished by special laws. On
the other hand, there are crimes in the Revised Penal Code which
were originally de ned and penalized by special laws. Among them
are possession and use of opium, malversation, brigandage, and
libel. 1 2 7
The component acts constituting plunder, a heinous crime, being inherently wrongful
and immoral, are patently mala in se, even if punished by a special law and accordingly,
criminal intent must clearly be established together with the other elements of the crime;
otherwise, no crime is committed. By eliminating mens rea, R.A. 7080 does not require the
prosecution to prove beyond reasonable doubt the component acts constituting plunder
and imposes a lesser burden of proof on the prosecution, thus paving the way for the
imposition of the penalty of reclusion perpetua to death on the accused, in plain violation
of the due process and equal protection clauses of the Constitution. Evidently, the
authority of the legislature to omit the element of scienter in the proof of a crime refers to
regulatory measures in the exercise of police power, where the emphasis of the law is to
secure a more orderly regulations of the offense of society, rather than the punishment of
the crimes. So that in mala prohibita prosecutions, the element of criminal intent is a
requirement for conviction and must be provided in the special law penalizing what are
traditionally mala in se crimes. As correctly pointed out by petitioner, 1 2 8 citing U.S.
Supreme Court decisions, the Smith Act was ruled to require "intent" to advocate 1 2 9 and
held to require knowledge of illegal advocacy. 1 3 0 And in another case, 1 3 1 and ordinance
making illegal the possession of obscene books was declared unconstitutional for lack of
scienter requirement.
Mens rea is a substantive due process requirement under the Constitution, and this
is a limitation on police power. Additionally, lack of mens rea or a clarifying scienter
requirement aggravates the vagueness of a statute.
In Morisette v. U.S. 1 3 2 the U.S. Supreme Court underscored the stultifying effect of
eliminating mens rea, thus:
The Government asks us by a feat of construction radically to change the
weights and balances in the scales of justice. The purpose and obvious effect of
doing away with the requirement of a guilty intent is to ease the prosecution's
party to conviction, to strip the defendant of such bene t as he derived at
common law from innocence of evil purpose, and to circumscribe the freedom
heretofore allowed juries. Such a manifest impairment of the immunities of the
individual should not be extended to common law crimes on judicial initiative.
In the same breath, Justice Florenz Regalado expresses serious doubts as to the
authority of the legislature to complex mala in se crimes with mala prohibita, saying:
. . . although there has been a tendency to penalize crimes under special
laws with penalties "borrowed" from the Code, there is still the question of
legislative authority to consolidate crimes punished under different statutes.
Worse, where one is punished under the Code and the other by the special law,
both of these contingencies had not been contemplated when the concept of a
delito complejo was engrafted into the Code. 1 3 3
Petitioner is not estopped from questioning
the constitutionality of R.A. No. 7080.
The case at bar has been subject to controversy principally due to the personalities
involved herein. The fact that one of petitioner's counsels 1 3 4 was a co-sponsor of the
Plunder Law 1 3 5 and petitioner himself voted for its passage when he was still a Senator
would not in any put him in estoppel to question its constitutionality. The rule on estoppel
applies to questions of fact, not of law. 1 3 6 Moreover, estoppel should be resorted to only
as a means of preventing injustice. 1 3 7 To hold that petitioner is estopped from
questioning the validity of R.A. No. 7080 because he had earlier voted for its passage
would result in injustice not only to him, but to all others who may be held liable under this
statute. In People vs. Vera, 1 3 8 citing the U.S. case of Attorney General v. Perkins , the Court
held:
. . . The idea seems to be that the people are estopped from questioning
the validity of a law enacted by their representatives; that to an accusation by the
people of Michigan of usurpation upon their government, a statute enacted by the
people of Michigan is an adequate statute relied on in justi cation is
unconstitutional, it is a statute only in form, and lacks the force of law, and is of
no more saving effect to justify action under it, it had never been enacted. The
constitution is the supreme law, and to its behests the courts, the legislature, and
the people must bow. . . . 1 3 9
The Court should not sanction the use of an equitable remedy to defeat the ends of
justice by permitting a person to be deprived of his life and liberty under an invalid law.
Undoubtedly, the reason behind the enactment of R.A. 7080 is commendable. It was
a response to the felt need at the time that existing laws were inadequate to penalize the
nature and magnitude of corruption that characterized a "previous regime." 1 4 0 However,
where the law, such as R.A. 7080, is so inde nite that the line between innocent and
condemned conduct becomes a matter of guesswork, the inde niteness runs afoul of due
process concepts which require that persons be given full notice of what to avoid, and that
the discretion of law enforcement o cials, with the attendant dangers of arbitrary and
discriminatory enforcement, be limited by explicit legislative standards. 1 4 1 It obfuscates
the mind to ponder that such an ambiguous law as R.A. No. 7080 would put on the balance
the life and liberty of the accused against whom all the resources of the State are arrayed.
It could be used as a tool against political enemies and a weapon of hate and revenge by
whoever wields the levers of power.
I submit that the charge against petitioner in the Amended Information in Criminal
Case No. 26558 does not constitute "plunder" under R.A. No. 7080, as amended by R.A. No.
7659. If at all, the acts charged may constitute offenses punishable under the Anti-Graft
and Corrupt Practices Act (R.A. No. 3019) or the Revised Penal Code. Hence, the
information charging petitioner with plunder must be quashed. Such quashal, however,
should be without prejudice to the ling of new information for acts under R.A. No. 3019,
of the Revised Penal Code and other laws. Double jeopardy would not bar the ling of the
same because the dismissal of the case is made with the express consent of the
petitioner-accused. 1 4 2
In view of the foregoing, I vote to GRANT the petition.
MENDOZA , J., concurring in the judgment:
Before I explain my vote, I think it is necessary to restate the basic facts.

Petitioner Joseph Ejercito Estrada was President of the Philippines until January 20,
2001 when he was forced to vacate the presidency by people power and then Vice
President Gloria Macapagal-Arroyo succeeded him in o ce. 1 He was charged, in eight
cases led with the Sandiganbayan, with various offenses committed while in o ce,
among them plunder, for allegedly having amassed ill-gotten wealth in the amount of P4.1
billion, more or less. He moved to quash the information for plunder on the ground that
R.A. No. 7080, otherwise called the Anti-Plunder Law, is unconstitutional and that the
information charges more than one offense.
In its resolution dated July 9, 2001, the Sandiganbayan denied petitioner's motion,
along with those led by his co-accused, Edward Serapio, and his son, Jose 'Jinggoy"
Estrada. Petitioner brought this petition for certiorari and prohibition under Rule 65 to set
aside the Sandiganbayan's resolution principally on the ground that the Anti-Plunder Law is
void for being vague and overbroad. We gave due course to the petition and required
respondents to le comments and later heard the parties in oral arguments on September
18, 2001 and on their memoranda led On September 28, 2001 to consider the
constitutional claims of petitioner.
I. THE ANTI-PLUNDER LAW
The Anti-Plunder Law (R.A. No. 7080) was enacted by Congress on July 12, 1991
pursuant to the constitutional mandate that "the State shall maintain honesty and integrity
in the public service and take positive and effective measures against graft and
corruption." 2 Section 2 of the statute provides:
De nition of the Crime of Plunder ; Penalties. — Any public o cer who, by
himself or in connivance with members of his family, relatives by a nity or
consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a combination or series of overt
or criminal acts as described in Section 1(d) hereof in the aggregate amount or
total value of at least Fifty million pesos (P50,000,000.00) shall be guilty of the
crime of plunder and shall be punished by reclusion perpetua to death. Any
person who participated with the said public o cer in the commission of an
offense contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the
Revised Penal Code, shall be considered by the court. The court shall declare any
and all ill-gotten wealth and their interests and other incomes and assets
including the properties and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State. (As amended by Sec. 12, R.A.
No. 7659).
The term "ill-gotten wealth" is defined in §1(d) as follows:
"Ill-gotten wealth," means any asset, property, business enterprise or
material possession of any person within the purview of Section Two (2) hereof,
acquired by him directly or indirectly through dummies, nominees, agents,
subordinates and/or business associates by any combination or series of the
following means or similar schemes:
public funds or raids on the public treasury.
2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary bene t from any person
and/or entity in connection with any government contract or project or by reason
3) By the illegal or fraudulent conveyance or disposition of assets

belonging to the National Government or any of its subdivisions, agencies or
subsidiaries.
4) By obtaining, receiving or accepting directly or indirectly any shares
of stock, equity or any other form of interest or participation including the promise
of future employment in any business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or
other combinations and/or implementation of decrees and orders intended to
Section 4 of the said law states:

Rule of Evidence. — For purposes of establishing the crime of plunder, it
shall not be necessary to prove each and every criminal act done by the accused
in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-
gotten wealth, it being su cient to establish beyond reasonable doubt a pattern
of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
II. ANTI-PLUNDER LAW NOT TO BE JUDGED "ON ITS FACE"

The amended information against petitioner charges violations of §2, in relation to
§1(d)(1)(2), of the statute. It reads:
AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, O ce of
the Ombudsman, hereby accuses former President of the Republic of the
Philippines, Joseph Ejercito Estrada a.k.a. "Asiong Salonga" and a.k.a. "Jose
Velarde," together With Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or
Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John Does &
Jane Does, of the crime of plunder, de ned and penalized under R.A. No. 7080, as
amended by Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January, 2001, in the
Philippines, and within the jurisdiction of this Honorable Court, accused
Joseph Ejercito Estrada, then a public o cer, being then the President of
the Republic of the Philippines, by himself and/or in
connivance/conspiracy with his co-accused, who are members of his
family, relatives by a nity or consanguinity, business associates,
subordinates and/or other persons, by taking undue advantage of his
o cial, position authority, relationship, connection, or in uence, did then
and there willfully, unlawfully and criminally amass, accumulate and
acquire by himself, directly or indirectly, ill-gotten wealth in the aggregate
amount or total value of four billion ninety seven million eight hundred four
thousand one hundred seventy three pesos and seventeen centavos
[P4,097,804,173.17], more or less, thereby unjustly enriching himself or
themselves at the expense and to damage of the Filipino people and the
Republic of the Philippines, through any or a combination or a series of
overt or criminal acts, or similar schemes or means, described as follows:
(a) by receiving or collecting, directly or indirectly, on several
instances, money in the aggregate amount of ve hundred forty- ve
million pesos (P545,000,000.00), more or less, from illegal gambling in the
form of gift, share, percentage, kickback or any form of pecuniary bene t,
by himself and/or in connivance with co-accused Charlie "Atong" Ang, Jose
"Jinggoy" Estrada, Yolanda Ricaforte, Edward Serapio, and John Does and
Jane Does, in consideration of toleration or protection of illegal gambling;
(b) by diverting, receiving, misappropriating, converting or
misusing directly or indirectly, for his or their personal gain and bene t,
public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS
[P130,000,000.00], more or less, representing a portion of the two hundred
million pesos [P200,000,000.00] tobacco excise tax share allocated for the
Province of Ilocos Sur under R.A. No. 7171, by himself and/or in
connivance with co-accused Charlie "Atong" Ang, Alma Alfaro, John Doe
a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a.
Delia Rajas, and other John Does and Jane Does;
(c) by directing, ordering and compelling, for his personal gain

and bene t, the Government Service Insurance System (GSIS) to purchase
351,878,000 shares of stocks, more or less, and the Social Security System
(SSS), 329,855,000 shares of stocks, more or less, of the Belle Corporation
in the amount of more or less one billion one hundred two million nine
hundred sixty ve thousand six hundred seven pesos and fty centavos
[P1,102,965,607.50] and more or less seven hundred forty four million six
hundred twelve thousand and four hundred fty pesos [744,612,450.00],
respectively, or a total of more or less one billion eight hundred forty seven
million ve hundred seventy eight thousand fty seven pesos and fty
centavos [P1,847,578,057.50]; and by collecting or receiving, directly or
indirectly, by himself and/or in connivance with John Does and Jane Does,
commissions or percentages by reason of said purchases of shares of
stock in the amount of one hundred eighty nine million seven hundred
thousand pesos [P189,700,000.00], more or less, from, from the Belle
Corporation which became part of the deposit in the Equitable-PCI Bank
under the account name "Jose Velarde";
(d) by unjustly enriching himself from commissions, gifts,
shares, percentages, kickbacks, or any form of pecuniary bene ts, in
connivance with John Does and Jane Does, in the amount of more or less
three billion two hundred thirty three million one hundred four thousand
one hundred seventy three pesos and seventeen centavos
[P3,233,104,173.17] and depositing the same under his account name
"Jose Velarde" at the Equitable-PCI Bank.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April 2001.
But, although this is a prosecution under §2, in relation to §1(d)(1)(2), what we are
seeing here is a wholesale attack on the validity of the entire statute. Petitioner makes little
effort to show the alleged invalidity of the statute as applied to him. His focus is instead
on the statute as a whole as he attacks "on their face" not only §§1(d)(1)(2) of the statute
but also its other provisions which deal with plunder committed by illegal or fraudulent
disposition of government assets (§1(d)(3)), acquisition of interest in business (§1(d)(4)),
and establishment of monopolies and combinations or implementation of decrees
intended to benefit particular persons or special interests (§1(d)(5)).
These other provisions of the statute are irrelevant to this case. What relevance do
questions regarding the establishment of monopolies and combinations, or the ownership
of stocks in a business enterprise, or the illegal or fraudulent dispositions of government
property have to the criminal prosecution of petitioner when they are not even mentioned
in the amended information led against him? Why should it be important to inquire
whether the phrase "overt act" in §1(d) and §2 means the thing as the phrase "criminal act"
as used in the same provisions when the acts imputed to petitioner in the amended
information are criminal acts? Had the provisions of the Revised Penal Code been
subjected to this kind of line-by-line scrutiny whenever a portion thereof was involved in a
case, it is doubtful if we would have the jurisprudence on penal law that we have today. The
prosecution of crimes would certainly have been hampered, if not stulti ed. We should not
even attempt to assume the power we are asked to exercise. "The delicate power of
pronouncing an Act of Congress unconstitutional is not to be exercised with reference to
hypothetical cases . . . In determining the su ciency of the notice a statute must of
necessity be examined in the light of the conduct with which a defendant is charged." 3
Nonetheless, it is contended that because these provisions are void for being vague
and overbroad, the entire statute, including the part under which petitioner is being
prosecuted, is also void. And if the entire statute is void, there is no law under which he can
be prosecuted for plunder. Nullum crimen sine lege, nullum poena sine lege.
Two justi cations are advanced for this facial challenge to the validity of the entire
statute. The rst is that the statute comes within the speci c prohibitions of the
Constitution and, for this reason, it must be given strict scrutiny and the normal
presumption of constitutionality should not be applied to it nor the usual judicial deference
given to the judgment of Congress. 4 The second justi cation given for the facial attack on
the Anti-Plunder Law is that it is vague and overbroad. 5
We nd no basis for such claims either in the rulings of this Court or of those of the
U.S. Supreme Court, from which petitioner's counsel purports to draw for his conclusions.
We consider first the claim that the statute must be subjected to strict scrutiny.
A. Test of Strict Scrutiny Not Applicable to Penal Statutes
Petitioner cites the dictum in Ople v. Torres 6 that "when the integrity of a
fundamental right is at stake, this Court will give the challenged law, administrative order,
rule or regulation stricter scrutiny" and that "It will not do for authorities to invoke the
presumption of regularity in the performance of o cial duties." As will presently be shown,
"strict scrutiny," as used in that decision, is not the same thing as the "strict scrutiny" urged
by petitioner. Much less did this Court rule that because of the need to give "stricter
scrutiny" to laws abridging fundamental freedoms, it will not give such laws the
presumption of validity.
Petitioner likewise cites "the most celebrated footnote in [American] constitutional
law," i.e., footnote 4 of the opinion in United States v. Carolene Products Co ., 7 in which it
was stated:
There may be narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within a speci c
prohibition of the Constitution, such as those of the rst ten amendments, which
are deemed equally specific when held to be embraced within the Fourteenth.
It is unnecessary to consider now whether legislation which restricts those
political processes which can ordinarily be expected to bring about repeal of
undesirable legislation, is to be subjected to more exacting judicial scrutiny under
the general prohibitions of the Fourteenth Amendment than are most other types
of legislation.
Nor need we inquire whether similar considerations enter into the review of
statutes directed at particular religious, or national, or racial minorities: whether
prejudice against discrete and insular minorities may be a special condition,
which tends seriously to curtail the operation of those political processes
ordinarily to be relied upon to protect minorities, and which may call for a
correspondingly more searching judicial inquiry.
Again, it should be noted that what the U.S. Supreme Court said is that "there may be
narrower scope for the operation of the presumption of constitutionality" for legislation
which comes within the rst ten amendments to the American Federal Constitution
compared to legislation covered by the Fourteenth Amendment Due Process Clause. The
American Court did not say that such legislation is not to be presumed constitutional,
much less that it is presumptively invalid, but only that a "narrower scope" will be given for
the presumption of constitutionality in respect of such statutes. There is, therefore, no
warrant for petitioner's contention that the "presumption of constitutionality of a
legislative act is applicable only where the Supreme Court deals with facts regarding
ordinary economic affairs, not where the interpretation of the text of the Constitution is
involved." 8
What footnote 4 of the Carolene Products case posits is a double standard of
judicial review: strict scrutiny for laws dealing with freedom of the mind or restricting the
political process, and deferential o r rational basis standard of review for economic
legislation. As Justice (later Chief Justice) Fernando explained in Malate Hotel and Motel
Operators Ass'n v. The City Mayor , 9 this simply means that "if the liberty involved were
freedom of the mind or the person, the standard for the validity of government acts is
much more rigorous and exacting, but where the liberty curtailed affects what are at the
most rights of property, the permissible scope of regulatory measures is wider."
Hence, strict scrutiny is used today to test the validity of laws dealing with the
regulation of speech, gender, or race and facial challenges are allowed for this purpose.
But criminal statutes, like the Anti-Plunder Law, while subject to strict construction, are
not subject to strict scrutiny. The two ( i.e., strict construction and strict scrutiny) are
not the same. The rule of strict construction is a rule of legal hermeneutics which deals
with the parsing of statutes to determine the intent of the legislature. On the other hand,
strict scrutiny is a standard of judicial review for determining the quality and the
amount of governmental interest brought to justify the regulation of fundamental
freedoms. It is set opposite such terms as "deferential review" and "intermediate
review."
Thus, under deferential review, laws are upheld if they rationally further a legitimate
governmental interest, without courts seriously inquiring into the substantiality of such
interest and examining the alternative means by which the objectives could be achieved.
Under intermediate review, the substantiality of the governmental interest is seriously
looked into and the availability of less restrictive alternatives are considered. Under strict
scrutiny, the focus is on the presence of compelling, rather than substantial, governmental
interest and on the absence of less restrictive means for achieving that interest. 1 0
Considering these degrees of strictness in the review of statutes, how many criminal
laws can survive the test of strict scrutiny to which petitioner proposes to subject them?
How many can pass muster if, as petitioner would have it, such statutes are not to be
presumed constitutional? Above all, what will happen to the State's ability to deal with the
problem of crimes, and, in particular, with the problem of graft and corruption in
government, if criminal laws are to be upheld only if it is shown that there is a compelling
governmental interest for making certain conduct criminal and if there is no other means
less restrictive than that contained in the law for achieving such governmental interest?
B. Vagueness and Overbreadth Doctrines, as Grounds for Facial Challenge, Not
Applicable to Penal Laws
Nor do allegations that the Anti-Plunder Law is vague and overbroad justify a facial
review of its validity. The void-for-vagueness doctrine states that "a statute which either
forbids or requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application, violates the rst
essential of due process of law." 1 1 The overbreadth doctrine, on the other hand, decrees
that "a governmental purpose may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms." 1 2
A facial challenge is allowed to be made to a vague statute and to one which is
overbroad because of possible "chilling effect" upon protected speech. The theory is that "
[w]hen statutes regulate or prescribe speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no requirement that the person
making the attack demonstrate that his own conduct could not be regulated by a stature
drawn with narrow speci city." 1 3 The possible harm to society in permitting some
unprotected speech to go unpunished is outweighed by the possibility that the protected
speech of others may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is allowed for
this reason alone, the State may well be prevented from enacting laws against socially
harmful conduct. In the area of criminal law, the law cannot take chances as in the area of
free speech.
The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme
Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an
'overbreadth' doctrine outside the limited context of the First Amendment." 1 4 In Broadrick
v. Oklahoma, 1 5 the Court ruled that "claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seeks to regulate only spoken words" and,
again, that "overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected conduct." For this
reason, it has been held that "a facial challenge to a legislative Act is . . . the most di cult
challenge to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid." 1 6 As for the vagueness
doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all
its possible applications. "A plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the conduct of
others.'' 1 7
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical
tools developed for testing "on their faces" statutes in free speech cases or, as they are
called in American law, First Amendment cases. They cannot be made to do service when
what is involved is a criminal statute. With respect to such statute, the established rule is
that "one to whom application of a statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be taken as applying to other persons or
other situations in which its application might be unconstitutional." 1 8 As has been pointed
out, "vagueness challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found vague as a matter of due process
typically are invalidated [only] 'as applied' to a particular defendant." 1 9 Consequently, there
is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and
in its entirety.
C. Anti-Plunder Law Should be Construed "As Applied"
Indeed, "on its face" invalidation of statutes results in striking them down entirely on
the ground that they might be applied to parties not before the Court whose activities are
constitutionally protected. 2 0 It constitutes a departure from the case and controversy
requirement of the Constitution and permits decisions to be made without concrete
factual settings and in sterile abstract contexts. 2 1 But, as the U.S. Supreme Court pointed
out in Younger v. Harris: 2 2
[T]he task of analyzing a proposed statute, pinpointing its de ciencies, and
requiring correction of these de ciencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of the relative
remoteness of the controversy, the impact on the legislative process of the relief
sought, and above all the speculative and amorphous nature of the required line-
by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is
wholly unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
This is the reason "on its face" invalidation of statutes has been described as
"manifestly strong medicine," to be employed "sparingly and only as a last resort," 2 3
and is generally disfavored. 2 4 In determining the constitutionality of statute, therefore,
its provisions which are alleged to have been violated in a case must be examined in the
light of the conduct with which the defendant is charged. 2 5
This brings me to the question whether, as applied, §2, in relation to §1(d)(1)(2), of
the Anti-Plunder Law is void on the ground of vagueness and overbreadth.
III. ANTI-PLUNDER LAW NEITHER VAGUE NOR OVERBROAD
As earlier noted, the case against petitioner Joseph Ejercito Estrada in the
Sandiganbayan is for violation of §2, in relation to §1(d)(1)(2), of the Anti-Plunder Law,
which, so far as pertinent, provide:
SEC. 2. De nition of the Crime of Plunder; Penalties . — Any public
o cer who, by himself or in connivance with members of his family, relatives by
a nity or consanguinity, business associates, subordinates or other persons,
amasses, accumulates or acquires ill-gotten wealth through a combination or
series of overt or criminal acts described in Section 1(d) hereof in the aggregate
amount or total value of at least Fifty million pesos (P50,000,000.00) shall be
guilty of the crime of plunder and shall be punished by reclusion perpetua to
death . . . .
SEC. 1. Definition of Terms. — . . .
(d) "Ill-gotten wealth," means any asset, property, business enterprise
or material possession of any person within the purview of Section Two (2)
hereof, acquired by him directly or indirectly through dummies, nominees, agents,
subordinates and/or business associates by any combination or series of the
following means or similar schemes:
1) Through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury.
2) By receiving, directly or indirectly, any commission, gift,
share, percentage, kickbacks or any other form of pecuniary bene t from
any person and/or entity in connection with any government contract or
project or by reason of the o ce or position of the public o cer
concerned;
The charge is that in violation of these provisions, during the period June 1998 to
January 2001, petitioner, then the President of the Philippines, willfully, unlawfully, and
criminally amassed wealth in the total amount of P4,097,804,173.17, more or less, through
"a combination or series of overt or criminal acts," to wit: (1) by receiving or collecting the
total amount of P545,000,000.00, more or less, from illegal gambling himself and/or in
connivance with his co-accused named therein, in exchange for protection of illegal
gambling; (2) by misappropriating, converting, misusing, by himself or in connivance with
his co-accused named therein, public funds amounting to P130,000,000.00, more or less,
representing a portion of the share of the Province of Ilocos Sur in the tobacco excise tax;
(3) by ordering the GSIS and the SSS to buy shares of stocks of the Belle Corp., worth
P1,102,965,607.50 and P744,612,450.00 respectively, or the total amount of
P1,847,578,057.50, for which he received as commission the amount of P189,700,000.00
more or less, from Belle Corp.; (4) by unjustly enriching himself from commissions, gifts,
shares, percentages, and kickbacks in the amount of P3,233,104,173.17, which he
deposited in the Equitable-PCI Bank under the name of "Jose Velarde."
Anyone reading the law in relation to this charge cannot possibly be mistaken as to
what petitioner is accused of in Criminal Case No. 26558 of the Sandiganbayan. But,
repeatedly, petitioner complains that the law is vague and deprives him of due process. He
invokes the ruling in Connally v. General Constr. Co. 2 6 that "a statute which either forbids
or requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the rst essential
of due process of law." He does this by questioning not only §2, in relation to §1(d)(1)(2),
as applied to him, but also other provisions of the Anti-Plunder Law not involved in this
case. In 55 out of 84 pages of discussion in his Memorandum, petitioner tries to show why
on their face these provisions are vague and overbroad by asking questions regarding the
meaning of some words and phrases in the statute, to wit:

1. Whether "series" means two, three, or four overt or criminal acts listed in §1(d)
in view of the alleged divergence of interpretation given to this word by the Ombudsman,
the Solicitor General, and the Sandiganbayan, and whether the acts in a series should be
directly related to each other;
2. Whether "combination" includes two or more acts or at least two of the
"means or similar schemes" mentioned in §1(d);
3. Whether "pattern" as used in §1(d) must be related to the word "pattern" in §4
which requires that it be "indicative of an overall unlawful scheme or conspiracy";
4. Whether "overt" means the same thing as "criminal";
5. Whether "misuse of public funds" is the same as "illegal use of public property
or technical malversation";
6. Whether "raids on the public treasury" refers to raids on the National Treasury
or the treasury of province or municipality;
7. Whether the receipt or acceptance of a gift, commission, kickback, or
pecuniary bene ts in connection with a government contract or by reason of his o ce, as
used in §1(d)(2), is the same as bribery in the Revised Penal Code or those which are
considered corrupt practices of public officers;
8. Whether "illegal or fraudulent conveyance or disposition of assets belonging
to the National Government," as used in §1(d)(3), refers to technical malversation or illegal
use of public funds or property in the Revised Penal Code;
9. Whether mere ownership of stocks in a private corporation, such as a family
firm engaged in fishing, is prohibited under §1(d)(4);
10. Whether the phrase "monopolies or other combinations in restraint of trade"
in §1(d)(5) means the same thing as "monopolies and combinations in restraint of trade" in
the Revised Penal Code because the latter contemplates monopolies and combinations
established by any person, not necessarily a public officer; and
11. Whether under §1(d)(5) it is the public o cer who intends to confer bene t
on a particular person by implementing a decree or it is the decree that is intended to
benefit the particular person and the public officer simply implements it.
Many more questions of this tenor are asked in the memorandum of petitioner 2 7 as
well as in the dissent of MR. JUSTICE KAPUNAN. Not only are they irrelevant to this case,
as already pointed out. It is also evident from their examination that what they present are
simply questions of statutory construction to be resolved on a case-to-case basis.
Consider, for example, the following words and phrases in §1(d) and §2:
A. "Combination or series of overt or criminal acts"
Petitioner contends that the phrase ''combination or series of overt, or criminal acts"
in §1(d) and §2 should state how many acts are needed in order to have a "combination" or
a "series." It is not really required that this be speci ed. Petitioner, as well as MR. JUSTICE
KAPUNAN cites the following remarks of Senators Gonzales and Tañada during the
discussion of S. No. 733 in the Senate:
SENATOR GONZALES.

To commit the offense of plunder, as de ned in this Act while constituting a
single offense, it must consist of a series of overt or criminal acts, such as
bribery, extortion, malversation of public funds, swindling, falsi cation of
public documents, coercion, theft, fraud, and illegal exaction, and graft or
corrupt practices act and like offenses. Now, Mr. President, I think, this
provision, by itself, will be vague. I am afraid that it might be faulted for
being violative of the due process clause and the right to be informed of
the nature and cause of accusation of an accused. Because, what is meant
by "series of overt or criminal acts"? I mean, would 2, 3, 4 or 5 constitute a
series? During the period of amendments, can we establish a minimum of
overt acts like, for example, robbery in band? The law de nes what is
robbery in band by the number of participants therein.
In this particular case, probably, we can statutorily provide for the
de nition of "series" so that two, for example, would that be already a series? Or,
three, what would be the basis for such a determination?
SENATOR TAÑADA.
I think, Mr. President, that would be called for, this being a penal legislation,
we should be very clear as to what it encompasses; otherwise, we may
contravene the constitutional provision on the right of the accused to due
process. 2 8
But, as the later discussion in the Senate shows, the senators in the end reached a
consensus as to the meaning of the phrase so that an enumeration of the number of acts
needed was no longer proposed. Thus, the record shows:
SENATOR MACEDA.
In line with our interpellations that sometimes "one" or maybe even "two" acts
consider deleting the words "a series of overt or." To read, therefore: "or
conspiracy COMMITTED by criminal acts such." Remove the idea of
SENATOR TAÑADA.
this.
THE PRESIDENT.
Probably, two or more would be . . .
SENATOR MACEDA.
Yes, because "a series" implies several or many; two or more.
SENATOR TAÑADA:
Accepted, Mr. President.
xxx xxx xxx
THE PRESIDENT:
But when we say "acts of plunder" there should be, at least, two or more.
SENATOR ROMULO:
In other words, that is already covered by existing laws, Mr. President. 2 9
Indeed, the record shows that no amendment to S. No. 733 was proposed to this
effect. To the contrary, Senators Gonzales and Tañada voted in favor of the bill on its third
and nal reading on July 25, 1989. The ordinary meaning of the term "combination" as the
"union of two things or acts" was adopted, although in the case of "series," the senators
agreed that a repetition of two or more times of the same thing or act would su ce, thus
departing from the ordinary meaning of the word as "a group of usually three or more
things or events standing or succeeding in order and having a like relationship to each
other," or "a spatial or temporal succession of persons or things," or "a group that has or
admits an order of arrangement exhibiting progression." 3 0
In the Bicameral Conference Committee on Justice meeting held on May 7, 1991,
the same meanings were given to the words "combination" and "series." Representative
Garcia explained that a combination is composed of two or more of the overt or criminal
acts enumerated in §1(d), while a series is a repetition of any of the same overt or criminal
acts. Thus:
REP. ISIDRO:
I am just intrigued again by our de nition of plunder. We say, THROUGH A
xxx xxx xxx
REP. ISIDRO:
When we say combination it seems that —

Two.
REP. ISIDRO:
No, no, not twice.
REP. ISIDRO:
Not twice?
Yes, combination is not twice — but combination, two acts.
REP. ISIDRO:
different acts. It can not be a repetition of the same act.
REP. ISIDRO:
A series.
REP. ISIDRO:
That's not [a] series. It's a combination. Because when we say combination
or series, we seem to say that two or more, 'di ba?
Yes, this distinguishes it, really, from ordinary crimes. That is why, I said, that
is a very good suggestion because if it is only one act, it may fall under
ordinary crime but we have here a combination or series of overt or
criminal acts. So . . .
xxx xxx xxx
REP. ISIDRO:
When you say "combination", two different?
Yes.
Two different . . .
REP. ISIDRO:
Two different acts.
REP. ISIDRO:
Now a series, meaning, repetition . . . 3 1
Thus, resort to the deliberations in Congress will readily reveal that the word
"combination" includes at least two different overt criminal acts listed in R.A. No. 7080,
such as misappropriation (§1(d)(1)) and taking undue advantage of o cial position (§1(d)
(6)). On the other hand, "series" is used when the offender commits the same overt or
criminal act more than once. There is no plunder if only one act is proven, even if the ill-
gotten wealth acquired thereby amounts to or exceeds the gure xed by the law for the
offense (now P50,000,000.00) The overt or criminal acts need not be joined or separated
in space or time, since the law does not make such a quali cation. It is enough that the
prosecution proves that a public o cer, by himself or in connivance with others, amasses
wealth amounting to at least P50 million by committing two or more overt or criminal acts.
Petitioner also contends that the phrase "series of acts or transactions" is the
subject of con icting decisions of various Circuit Courts of Appeals in the United States. It
turns out that the decisions concerned a phrase in Rule 8(b) of the Federal Rules of
Criminal Procedure which provides:
(b) Joinder of Defendants: Two or more defendants may be charged in
the same indictment or information they are alleged to have participated in the
same act or transaction or in the same series of acts or transactions constituting
an offense or offenses. Such defendants may be charged in one or more counts
together or separately and all of the defendants need not be charged on each
count. (Emphasis added)
The fact that there is a con ict in the rulings of the various courts does not mean
that Rule 8(b) is void for being vague but only that the U.S. Supreme Court should step in,
for one of its essential functions is to assure the uniform interpretation of federal laws.
We have a similar provision in Rule 3, §6 of the 1997 Code of Civil Procedure. It
reads:
SEC. 6. Permissive joinder of parties. — All persons in whom or against
whom any right to relief in respect to or arising out of the same transaction or
series of transactions is alleged to exist, whether jointly, severally, or in the
alternative, may, except as otherwise provided in these Rules, join as plaintiffs or
be joined as defendants in one complaint, where any question of law or fact
common to all such plaintiffs or to all such defendants may arise in the action;
but the court may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connection with any
proceedings in which he may have no interest. (Emphasis added)
This provision has been in our Rules of Court since 1940 but it has never been
thought of as vague. It will not do, therefore, to cite the con ict of opinions in the United
States as evidence of the vagueness of the phrase when we do not have any con ict in this
country.
B. "Pattern of overt or criminal acts"
Petitioner contends that it is enough that there be at least two acts to constitute
either a combination or series because §4 also mentions "a pattern of overt or criminal
acts indicative of the overall scheme or conspiracy," and "pattern" means "an arrangement
or order of things or activity."
A "pattern of overt or criminal acts" is required in §4 to prove "an unlawful scheme or
conspiracy." In such a case, it is not necessary to prove each and every criminal act done in
furtherance of the scheme or conspiracy so long as those proven show a pattern
indicating the scheme or conspiracy. In other words, when conspiracy is charged, there
must be more than a combination or series of two or more acts. There must be several
acts showing a pattern which is "indicative of the overall scheme or conspiracy." As Senate
President Salonga explained, if there are 150 constitutive crimes charged, it is not
necessary to prove beyond reasonable doubt all of them. If a pattern can be shown by
proving, for example, 10 criminal acts, then that would be su cient to secure conviction.
32
The State is thereby enabled by this device to deal with several acts constituting
separate crimes as just one crime of plunder by allowing their prosecution by means of a
single information because there is a common purpose for committing them, namely, that
of "amassing, accumulating or acquiring wealth through such overt or criminal acts." The
pattern is the organizing principle that de nes what otherwise would be discreet criminal
acts into the single crime of plunder.
As thus applied to petitioner, the Anti-Plunder Law presents only problems of
statutory construction, not vagueness or overbreadth. In Primicias v. Fugoso, 3 3 an
ordinance of the City of Manila, prohibiting the holding of parades and assemblies in
streets and public places unless a permit was rst secured from the city mayor and
penalizing its violation, was construed to mean that it gave the city mayor only the power
to specify the streets and public places which can be used for the purpose but not the
power to ban absolutely the use of such places. A constitutional doubt was thus resolved
through a limiting construction given to the ordinance. ISDHEa
Nor is the alleged difference of opinion among the Ombudsman, the Solicitor
General, and the Sandiganbayan as to the number of acts or crimes needed to constitute
plunder proof of the vagueness of the statute and, therefore, a ground for its invalidation.
For sometime it was thought that under Art. 134 of the Revised Penal Code convictions
can be had for the complex crime of rebellion with murder, arson, and other common
crimes. The question was nally resolved in 1956 when this Court held that there is no
such complex crime because the common crimes were absorbed in rebellion. 3 4 The point
is that Art. 134 gave rise to a difference of opinion that nearly split the legal profession at
the time, but no one thought Art. 134 to be vague and, therefore, void.
Where, therefore, the ambiguity is not latent and the legislative intention is
discoverable with the aid of the canons of construction, the void for vagueness doctrine
has no application.
I n Connally v. General Constr. Co. 35 the test of vagueness was formulated as
follows:
[A] statute which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at its meaning
and differ as to its application, violates the first essential of due process of law.
Holmes's test was that of the viewpoint of the bad man. In The Path of the Law,
Holmes said:
If you want to know the law and nothing else, you must look at it as a bad
man, who cares only for the material consequences which such knowledge
enables him to predict, not as a good one, who nds his reasons for conduct,
whether inside the law or outside of it, in the vaguer sanctions of conscience. 3 6
Whether from the point of view of a man of common intelligence or from that of a
bad man, there can be no mistaking the meaning of the Anti-Plunder Law as applied to
petitioner.
IV. PLUNDER A COMPLEX CRIME REQUIRING PROOF OF MENS REA
Petitioner argues that, in enacting the statute in question, Congress eliminated the
element ofmens rea, or the scienter, thus reducing the burden of evidence required for
proving the crimes which are mala in se. 3 7
There are two points raised in this contention. First is the question whether the
crime of plunder is a malum in se or a malum prohibitum. For if it is a malum prohibitum, as
the Ombudsman and the Solicitor General say it is, 3 8 then there is really a constitutional
problem because the predicate crimes are mainly mala in se.
A. Plunder A Malum In Se Requiring Proof of Mens Rea
Plunder is a malum in se, requiring proof of criminal intent. Precisely because the
constitutive crimes are mala in sethe element of mens rea must be proven in a prosecution
for plunder. It is noteworthy that the amended information alleges that the crime of
plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty
knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement of mens rea
and that is the reason he claims the statute is void, petitioner cites the following remarks
of Senator Tañada made during the deliberation on S. No. 733:
SENATOR TAÑADA.
. . . And the evidence that will be required to convict him would not be
evidence for each and every individual criminal act but only evidence
su cient to establish the conspiracy or scheme to commit this crime of
plunder. 3 9
However, Senator Tañada was discussing §4 as shown by the succeeding portion of

the transcript quoted by petitioner: ISDCaT
SENATOR ROMULO:
And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule
of Evidence, which, in the Gentleman's view, would provide for a speedier
and faster process of attending to this kind of cases?
SENATOR TAÑADA:
Yes, Mr. President . . . 4 0
Senator Tañada was only saying that where the charge is conspiracy to commit
plunder, the prosecution need not prove each and every criminal act done to further the
scheme or conspiracy, it being enough if it proves beyond reasonable doubt a pattern
of overt or criminal acts in indicative of the overall unlawful scheme or conspiracy. As
far as the acts constituting the pattern are concerned, however, the elements of the
crime must be proved and the requisite mens rea must be shown.
Indeed, §2 provides that —
Any person who participated with the said public o cer in the commission
of an offense contributing to the crime or plunder shall likewise be punished for
such offense. In the imposition of penalties, the degree of participation and the
Revised Penal Code, shall be considered by the court.
The application of mitigating and extenuating circumstances in the Revised Penal

Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is
an element of plunder since the degree of responsibility of the offender is determined by
his criminal intent. It is true that §2 refers to "any person who participates with the said
public officers in the commission of an offense contributing to the crime of plunder." There
is no reason to believe, however, that it does not apply as well to the public o cer as
principal in the crime. As Justice Holmes said: "We agree to all the generalities about not
supplying criminal laws with what they omit, but there is no canon against using common
sense in construing laws as saying what they obviously mean.'' 4 1
Finally, any doubt as to whether the crime of plunder is a malum in se must be
deemed to have been resolved in the a rmative by the decision of Congress in 1993 to
include it among the heinous crimes punishable by reclusion perpetua to death. Other
heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to
these groups of heinous crimes, this Court held in People v. Echegaray; 4 2
The evil of a crime may take various forms. There are crimes that are, by
their very nature, despicable, either because life was callously taken or the victim
is treated like an animal and utterly dehumanized as to completely disrupt the
normal course of his or her growth as a human being . . . . Seen in this light, the
capital crimes of kidnapping and serious illegal detention for ransom resulting in
the death of the victim or the victim is raped, tortured, or subjected to
dehumanized acts; destructive arson resulting in death; and drug offenses
involving minors or resulting in the death of the victim in the case of other crimes;
as well as murder, rape, parricide, infanticide, kidnapping and serious illegal
detention, where the victim is detained for more than three days or serious
physical injuries were inflicted on the victim or threats to kill him were made or the
victim is a minor, robbers with homicide, rape or intentional mutilation, destructive
arson, and carnapping where the owner, driver or occupant of the carnapped
vehicle is killed or raped which are penalized by reclusion perpetua to death, are
clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the
signi cance and implications of the subject criminal acts in the scheme of the
larger socio-political and economic context in which the state nds itself to be
struggling to develop and provide for its poor and underprivileged masses.
Reeling from decades of corrupt tyrannical rule that bankrupted the government
and impoverished the population, the Philippine Government must muster the
political will to dismantle the culture of corruption, dishonesty, greed and
syndicated criminality that so deeply entrenched itself in the structures of society
and the psyche of the populace. [With the government] terribly lacking the money
to provide even the most basic services to its people, any form of
misappropriation or misapplication of government funds translates to an actual
threat to the very existence of government, and in turn, the very survival of the
people it governs over. Viewed in this context, no less heinous are the effects and
repercussions of crimes like quali ed bribery, destructive arson resulting in death,
and drug offenses involving government officials, employees or officers, that their
perpetrators must not be allowed to cause further destruction and damage to
society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies
that it is a malum in se. For when the acts punished are inherently immoral or inherently
wrong, they are mala in se 4 3 and it does not matter that such acts are punished in a
special law, especially since in the case of plunder the predicate crimes are mainly mala in
se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere
prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance
against jaywalking, without regard to the inherent wrongness of the acts.
B. The Penalty for Plunder
The second question is whether under the statute the prosecution is relieved of the
duty of proving beyond reasonable doubt the guilt of the defendant. It is contended that, in
enacting the Anti-Plunder Law, Congress simply combined several existing crimes into a
single one but the penalty which it provided for the commission of the crime is grossly
disproportionate to the crimes combined while the quantum of proof required to prove
each predicate crime is greatly reduced.
We have already explained why, contrary to petitioner's contention, the quantum of
proof required to prove the predicate crimes in plunder is the same as that required were
they separately prosecuted. We, therefore, limit this discussion to petitioner's claim that
the penalty provided in the Anti-Plunder Law is grossly disproportionate to the penalties
imposed for the predicate crimes. Petitioner cites the following examples:
For example, please consider the following 'combination' or 'series' of overt or
criminal acts (assuming the P50 M minimum has been acquired) in light of the penalties
laid down in the Penal Code:
a. One act of indirect bribery (penalized under Art. 211 of the Revised Penal
Code with prision correccional in its medium and maximum periods),
—combined with—
one act of fraud against the public treasury (penalized under Art. 213 of the
Revised Penal Code with prision correccional in its medium period to prision
mayor in its minimum period,
—equals—
plunder (punished by reclusion perpetua to death plus forfeiture of assets
under R.A. 7080)
b. One act of prohibited transaction (penalized under Art. 215 of the Revised
Penal Code with prision correccional in its minimum period or a fine ranging
from P200 to P1,000 or both),
—combined with—
one act of establishing a commercial monopoly (penalized under Art. 186 of
Revised Penal Code with prision correccional in its minimum period or a ne
ranging from P200 to P6,000, or both),
—equals—
plunder (punished by reclusion perpetua to death, and forfeiture of assets
under R.A. 7080).
c. One act of possession of prohibited interest by a public officer (penalized
with prision correccional in its minimum period or a fine of P200 to P1,000,
or both under Art. 216 of the Revised Penal Code),
—combined with—
one act of combination or conspiracy in restraint of trade (penalized under
Art. 186 of the Revised Penal Code with prision correccional in its minimum
period, or a fine of P200 to P1,000, or both,
—equals—

plunder, punished by reclusion perpetua to death, and forfeiture of assets) 4 4
But this is also the case whenever other special complex crimes are created out of
two or more existing crimes. For example, robbery with violence against or intimidation of
persons under Art. 294, par. 5 of the Revised Penal Code is punished with prision
correccional in its maximum period (4 years, 2 months, and 1 day) to prision mayor in its
medium period (6 years and 1 day to 8 years). Homicide under Art. 249 of the same Code
is punished with reclusion temporal (12 years and 1 day to 20 years). But when the two
crimes are committed on the same occasion, the law treats them as a special complex
crime of robbery with homicide and provides the penalty of reclusion perpetua to death for
its commission. Again, the penalty for simple rape under Art. 266-B of the Revised Penal
Code is reclusion perpetua, while that for homicide under Art. 249 it is reclusion temporal
(12 years and 1 day to 20 years). Yet, when committed on the same occasion, the two are
treated as one special complex crime of rape with homicide and punished with a heavier
penalty of reclusion perpetua to death. Obviously, the legislature views plunder as a crime
as serious as robbery with homicide or rape with homicide by punishing it with the same
penalty. As the explanatory note accompanying, S. No. 733 explains:
Plunder, a term chosen from other equally apt terminologies like
kleptocracy and economic treason, punishes the use of high o ce for personal
enrichment, committed thru a series of acts done not in the public eye but in
stealth and secrecy over a period of time, that may involve so many persons, here
and abroad, and which touch so many states and territorial units. The acts and/or
omissions sought to be penalized do not involve simple cases of malversation of
public funds, bribery, extortion, theft and graft but constitute the plunder of an
entire nation resulting in material damage to the national economy. The above-
described crime does not yet exist in Philippine statute books. Thus, the need to
come up with a legislation as a safeguard against the possible recurrence of the
depravities of the previous regime and as a deterrent to those with similar
inclination to succumb to the corrupting influences of power.
Many other examples drawn from the Revised Penal Code and from special laws
may be cited to show that, when complex crimes are created out of existing crimes, the
penalty for the new crime is heavier.
————————————
To recapitulate, had R.A. No. 7080 been a law regulating speech, I would have no
hesitation examining it on its face on the chance that some of its provisions — even though
not here before us — are void. For then the risk that some state interest might be
jeopardized, i.e., the interest in the free ow of information or the prevention of "chill'' on
the freedom of expression, would trump any marginal interest in security.
But the Anti-Plunder Law is not a regulation of speech. It is a criminal statute
designed to combat graft and corruption, especially those committed by highly-placed
public o cials. As conduct and not speech is its object, the Court cannot take chances by
examining other provisions not before it without risking vital interests of society.
Accordingly, such statute must be examined only "as applied" to the defendant and, if
found valid as to him, the statute as a whole should not be declared unconstitutional for
overbreadth or vagueness of its other provisions. Doing so, I come to the following
conclusions:
1. That the validity of R.A. No. 7080, otherwise known as the Anti-Plunder Law,
cannot be determined by applying the test of strict scrutiny in free speech cases without
disastrous consequences to the State's effort to prosecute crimes and that, contrary to
petitioner's contention, the statute must be presumed to be constitutional;
2. That in determining the constitutionality of the Anti-Plunder Law, its
provisions must be considered in light of the particular acts alleged to have been
committed by petitioner;
3. That, as applied to petitioner, the statute is neither vague nor overbroad;
4. That, contrary to the contention of the Ombudsman and the Solicitor General,
the crime of plunder is a malum in se and not a malum prohibitum and the burden of
proving each and every predicate crime is on the prosecution.
For these reasons, I respectfully submit that R.A. No. 7080 is valid and that,
therefore, the petition should be dismissed.
PANGANIBAN , J., separate opinion (concurring):
In his Petition for Certiorari under Rule 65 of the Rules of Court, former President
Joseph Ejercito Estrada seeks the annulment of the Sandiganbayan Resolution dated July
9, 2001, which denied his Motion to Quash. He further prays to prohibit the anti-graft court
from conducting the trial of petitioner in Criminal Case No. 26558, on the ground that the
statute under which he has been charged — the Anti-Plunder Law or Republic Act (RA)
7080 — is unconstitutional.
In sum, he submits three main arguments to support his thesis, as follows:
1. "RA 7080 is vague and overbroad on its face and suffers from structural
deficiency and ambiguity." 1
2. "RA 7080 reduces the standard of proof necessary for criminal conviction,
and dispenses with proof beyond reasonable doubt of each and every criminal act done in
furtherance of the crime of plunder." 2
3. "RA 7080 has been admitted by respondent to be malum prohibita which
deprives petitioner of a basic defense in violation of due process." 3
I have read former President Estrada's Petition, Reply, Memorandum and other
pleadings and listened carefully to his Oral Argument. However, I cannot agree with his
thesis for the following reasons:
(1) RA 7080 is not vague or overbroad. Quite the contrary, it is clear and speci c
especially on what it seeks to prohibit and to penalize.
(2) The Anti-Plunder Law does not lessen the degree of proof necessary to
convict its violator — in this case, petitioner.
(3) Congress has the constitutional power to enact laws that are mala prohibita
and, in exercising such power, does not violate due process of law.
First Issue:
"Void for Vagueness" Not Applicable
In the main, petitioner attacks RA 7080 for being allegedly vague and ambiguous, for
"wanting in its essential terms," and for failing to ''de ne what degree of participation
means as [it] relates to the person or persons charged with having participated with a
public officer in the commission of plunder." 4
I n Dans v. People , 5 reiterated recently in Sajul v. Sandiganbayan , 6 this Court
debunked the "void for vagueness" challenge to the constitutionality of Section 3(g) of the
Anti-Graft Law (RA 3019, as amended) and laid down the test to determine whether a
statute is vague. It has decreed that as long as a penal law can answer the basic query
"What is the violation?," it is constitutional. "Anything beyond this, the 'hows' and the 'whys,'
are evidentiary matters which the law cannot possibly disclose in view of the uniqueness
of every case . . . ."
Elements of Plunder
The Anti-Plunder Law more than adequately answers the question "What is the
violation?" Indeed, to answer this question, any law student — using basic knowledge of
criminal law — will refer to the elements of the crime, which in this case are plainly and
certainly spelled out in a straightforward manner in Sections 2 and 1(d) thereof. Those
elements are:
1. The offender is a public officer acting by himself or in connivance with
members of his family, relatives by a nity or consanguinity, business
associates, subordinates or other persons.
2. The offender amasses, accumulates or acquires ill-gotten wealth.
3. The aggregate amount or total value of the ill-gotten wealth so
amassed, accumulated or acquired is at least fty million pesos
(P50,000,000).
4. Such ill-gotten wealth — de ned as any asset, property, business
enterprise or material possession of any of the aforesaid persons
(the persons within the purview of Section 2, RA 7080) — has been
acquired directly or indirectly through dummies, nominees, agents,
subordinates and/or business associates by any combination or
series of the following means or similar schemes:
(i) through misappropriation, conversion, misuse or malversation
of public funds or raids on the public treasury;
(ii) by receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary bene t
from any person and/or entity in connection with any
government contract or project or by reason of the o ce or
position of the public officer concerned;
(iii) by the illegal or fraudulent conveyance or disposition of
assets belonging to the national government or any of its
subdivisions, agencies or instrumentalities or government-
owned or controlled corporations and their subsidiaries;
(iv) by obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or
participation including the promise of future employment in any
business enterprise or undertaking;
(v) by establishing agricultural, industrial or commercial
monopolies or other combination and/or implementation of
decrees and orders intended to bene t particular persons or
special interests; or
(vi) by taking undue advantage of o cial position, authority,
relationship, connection or in uence to unjustly enrich himself
or themselves at the expense and to the damage and prejudice
of the Filipino people and the Republic of the Philippines. 7
Petitioner argues that, notwithstanding the above-detailed statement of the
elements of the crime, there is still vagueness because of the absence of de nitions of the
terms combination, series and pattern in the text of the law.
Citing People v. Nazario , 8 petitioner adds that "a statute or act may be said to be
vague when it lacks comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ as to its application."
I say, however, that in that very case cited by petitioner, the Court cautioned that "the
act (or law) must be utterly vague on its face." When it can be "clari ed either by a saving
clause or by construction," the law cannot be decreed as invalid. In other words, the
absence of statutory de nitions of words used in a statute will not render the law "void for
vagueness," if the meanings of such words can be determined through the judicial function
of construction. 9
Solution: Simple
Statutory Construction
Indeed, simple statutory construction, not a declaration of unconstitutionality, is the
key to the allegedly vague words of the Anti-Plunder Law. And the most basic rule in
statutory construction is to ascertain the meaning of a term from the legislative
proceedings. Verily, in the judicial review of a law's meaning, the legislative intent is
paramount. 1 0
Pervading the deliberations of the Bicameral Conference Committee on Justice held
on May 7, 1991 was the common understanding of combination as a joining or combining
of at least two dissimilar things or acts, and series as a repetition or recurrence of the
same thing at least twice. 1 1 As a matter of fact, the same understanding of those terms
also prevailed during the Senate deliberations on Senate Bill No. 733 (Plunder) earlier held
on June 6, 1989. 1 2 The Records of those deliberations speak for themselves.
It is true that during the deliberations in the Senate, the late Senator Neptali A.
Gonzales initially raised concerns over the alleged vagueness in the use of the terms
combination and series. I respectfully submit, however, that the reliance 1 3 of petitioner on
such concerns is misplaced. That portion of the interpellations, evincing the late senator's
reservations on the matter, had taken place during the session of June 5, 1989. 1 4 And the
clari catory remarks of Senate President Jovito R. Salonga and Senators Wigberto
Tañada, Alberto Romulo and Ernesto Maceda, which threw light on the matters in doubt,
happened the following day, June 6, 1989. 1 5 In brief, the misgivings voiced by Senator
Gonzales as to the use of the two terms were adequately addressed, answered and
disposed of the following day.
Thus, Senate Bill No. 733, de ning and penalizing plunder, was passed and approved
on third reading on July 25, 1989, with 19 a rmative votes (including those of Senators
Gonzales, Tañada, Maceda, and petitioner himself) sans any negative vote or abstention.
Indeed, some of the sharpest legal minds in the country voted to approve the bill, even
though it was bereft of statutory de nitions. Likewise, it would certainly be inconceivable
for Senator Gonzales to have voted for the approval of the Bill had he believed that it was
vague to the point of constitutional in rmity; or at the very least, if he believed that his
earlier reservations or apprehensions were not fully satisfied.
At this juncture, may I call attention to the Record of the Joint Conference Meeting
held on May 7, 1991. 1 6 The portion thereof relied upon by petitioner 1 7 features the
exchanges involving Representatives Garcia and Isidro and Senator Tañada on the
meanings of the terms combination and series. The quoted part of the Record would
suggest that, somehow, particularly towards the end of the meeting, the discussion among
the legislators seemed to have degenerated into a clutch of un nished sentences and
unintelligible phrases. Still, I believe that the deliberations did not actually sound the way
they were subsequently transcribed or as they now appear on the Record. Even more
reluctant am I to agree with petitioner that the apparent tenor of the deliberations evinced
"a dearth of focus to render precise the de nition of the terms," or that the Committee
members themselves were not clear on the meanings of the terms in question.
Most of us in the legal profession are all too familiar with the vagaries of
stenographic note-taking, especially in courtrooms and legislative halls. Too often, lawyers,
parties-litigants and even judges nd themselves at the mercy of stenographers who are
unfamiliar with certain legal terms; or who cannot hear well enough or take notes fast
enough; or who simply get confused, particularly when two or more persons happen to be
speaking at the same time. Often, transcripts of stenographic notes have portrayed
lawyers, witnesses, legislators and judges as blithering idiots, spouting utterly nonsensical
jargon and plain inanities in the course of a proceeding. The Record in question is no
exception.
Rather than believe that the distinguished lawmakers went about their business
uttering senseless half-sentences to one another, I think that these learned and intelligent
legislators of both chambers knew what they were talking about, spoke their minds, and
understood each other well, for the Record itself does not indicate the contrary. Neither
does it show any details or minutiae that would indicate that they abandoned their earlier
common understanding of the terms combination and series.
Specific Number or
Percentage Not Always Necessary
Regrettably, I shall also have to take issue with petitioner's disquisition to the effect
that "when penal laws enacted by Congress make reference to a term or concept requiring
a quantitative definition, these laws are so crafted as to specifically state the exact number
or percentage necessary to constitute the elements of a crime," followed by a recitation of
t h e minimum number of malefactors mentioned in the statutory de nitions of band,
conspiracy, illegal recruitment by syndicate, large-scale illegal recruitment,
organized/syndicated crime group, and swindling by a syndicate. Thus, he insinuates that,
because RA 7080 has failed to specify precisely the minimum number of malefactors
needed for an offense to be properly classi ed as plunder, the law is vague or has
somehow failed to meet the standard for penal laws.
The aforequoted discourse would appear to be incongruous, if not totally
misleading. As pointed out during the Oral Argument on September 18, 2001, the crime of
plunder can be committed by a public o cer acting alone. Section 2 of RA 7080 reads as
follows: "De nition of the Crime of Plunder , Penalties. — Any public o cer who, by himself
or in connivance with . . . ." Thus, the insistence on a mathematical speci cation or precise
quanti cation is essentially without basis. And lest anyone believe that the Anti-Plunder
Law is unusual in this respect, let me just recall that the RICO law, to which petitioner made
repeated references in his Amended Petition, can likewise be violated by a single
individual. 1 8
Not Oppressive or Arbitrary
Neither can it be said that RA 7080 is oppressive or arbitrary for imposing a more
severe penalty on a combination or series of the offenses enumerated in Section 1(d) of
the law, than would otherwise be imposed if the said offenses were taken separately. As
Mr. Justice Mendoza lucidly pointed out in his interpellation during the Oral Argument, the
Anti-Plunder Law is merely employing a familiar technique or feature of penal statutes,
when it puts together what would otherwise be various combinations of traditional
offenses already proscribed by existing laws and attaching thereto higher or more severe
penalties than those prescribed for the same offenses taken separately. EAcTDH
Here, Mr. Justice Mendoza is referring to special complex crimes like rape with
homicide or robbery with homicide. During the Oral Argument, he asked whether
petitioner's counsel was in fact suggesting that such special complex crimes — a very
important part of the Revised Penal Code and well-entrenched in our penal system — were
violative of due process and the constitutional guarantees against cruel and unusual
punishment and should also be struck down. It goes without saying that the legislature is
well within its powers to provide higher penalties in view of the grave evils sought to be
prevented by RA 7080.
Innocent Acts Not
Penalized by RA 7080
Petitioner insists that innocent acts are in effect criminalized by RA 7080, because it
allegedly penalizes combinations or series of acts coming within the purview of the means
or similar schemes enumerated under items 4 and 5 of Section 1(d) of the law, which
reads as follows:
"4. By obtaining, receiving or accepting directly or indirectly any shares of
stock, equity or any other forms of interest or participation including the
promise of future employment in any business enterprise or undertaking;
"5. By establishing agricultural, industrial or commercial monopolies or other
combinations and/or implementation of decrees and orders intended to
benefit particular persons or special interests."
That such contention "deserves scant attention" is an understatement of the

extreme sort. The claim of "innocent acts" is possible only because items 4 and 5 have
been taken completely out of context and read in isolation, instead of in relation to the
other provisions of the same law, particularly Section 2. The above-enumerated acts,
means or similar schemes must be understood as having reference to or connection with
the acquisition of ill-gotten wealth by a public o cer, by himself or in connivance with
others. Those acts are therefore not innocent acts. Neither are these prohibitions new or
unfamiliar. The proscribed acts under item 4, for instance, may to some extent be traced
back to some of the prohibitions in RA 3019 (the Anti-Graft Law). Section 3, the pertinent
part of such law, reads as follows:
"SEC. 3. Corrupt practices of public o cers . — In addition to acts or
omissions of public o cers already penalized by existing law, the following shall
constitute corrupt practices of any public o cer and are hereby declared to be
unlawful:
"(a) ...
"(b) Directly or indirectly requesting or receiving any gift, present, share,
percentage, or bene t, for himself or for any other person, in connection with any
contract or transaction between the Government and any other party wherein the
public officer in his official capacity has to intervene under the law.
"(c) Directly or indirectly requesting or receiving any gift, present or
other pecuniary or material bene t, for himself or for another, from any person for
whom the public o cer, in any manner or capacity, has secured or obtained, or
will secure or obtain, any Government permit or license, in consideration for the
help given or to be given, without prejudice to Section Thirteen of this Act.
"(d) Accepting or having any member of his family accept employment
in a private enterprise which has pending o cial business with him during the
pendency thereof or within one year after its termination.
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.
xxx xxx xxx."
On the other hand, the prohibited acts under item 5 have antecedents in the Revised
Penal Code's interdiction against monopolies and combinations in restraint of trade.
Clearly, the acts dealt with in Items 4 and 5 of Section 1(d) are in no wise the innocent or
innocuous deeds that petitioner would have us mistake them for.
RA 7080 Not Suffering
from Overbreadth
In connection with the foregoing discussion, petitioner also charges that RA 7080
suffers from "overbreadth." I believe petitioner misconstrues the concept. In the very
recent case People v. Dela Piedra, 1 9 this Court held:
"A statute may be said to be overbroad where it operates to inhibit the
exercise of individual freedoms affirmatively guaranteed by the Constitution, such
as the freedom of speech or religion. A generally worded statute, when construed
to punish conduct which cannot be constitutionally punished, is
unconstitutionally vague to the extent that it fails to give adequate warning of the
boundary between the constitutionally permissible and the constitutionally
impermissible applications of the statute.
"In Blo Umpar Adiong vs. Commission on Elections, for instance, we struck
down as void for overbreadth provisions prohibiting the posting of election
propaganda in any place — including private vehicles — other than in the common
poster areas sanctioned by the COMELEC. We held that the challenged provisions
not only deprived the owner of the vehicle the use of his property but also
deprived the citizen of his right to free speech and information. The prohibition in
Adiong, therefore, was so broad that it covered even constitutionally guaranteed
rights and, hence, void for overbreadth. In the present case, however, appellant did
not even specify what constitutionally protected freedoms are embraced by the
de nition of 'recruitment and placement' that would render the same
constitutionally overbroad." (emphasis supplied)
Similarly, in the instant case, petitioner has not identi ed which of his
constitutionally protected freedoms, if any, are allegedly being violated by the Anti-Plunder
Law. As Mr. Justice Mendoza pointed out to petitioner's counsel during the Oral Argument,
specious and even frivolous is the contention that RA 7080 infringes on the constitutional
right of petitioner by depriving him of his liberty pending trial and by paving the way for his
possible conviction because, following that line of argument, the entire Revised Penal Code
would be reckoned to be an infringement of constitutional rights.
"Pattern of Overt or Criminal Acts"
Petitioner, in line with his '"void for vagueness" attack on RA 7080, faults the statute
for failing to provide a de nition of the phrase a pattern of overt or criminal acts indicative
of the overall unlawful scheme or conspiracy used in Section 4 of the law. This de nition is
crucial since, according to him, such pattern is an essential element of the crime of
plunder.
A plain reading of the law easily debunks this contention. First, contrary to
petitioner's suggestions, such pattern of overt or criminal acts and so on is not and should
not be deemed an essential or substantive element of the crime of plunder. It is possible
to give full force and effect to RA 7080 without applying Section 4 — an accused can be
charged and convicted under the Anti-Plunder Law without resorting to that speci c
provision. After all, the heading and the text of Section 4, which I quote below, leave no
room for doubt that it is not substantive in nature:
"SEC. 4. Rule of Evidence. — For purposes of establishing the crime of
accused in furtherance of the scheme or conspiracy to amass, accumulate or
conspiracy." (emphasis supplied)
As Mr. Chief Justice Davide very astutely pointed out during the Oral Argument,
Section 2 in relation to Section 1(d) deals with how the crime of plunder is committed.
Hence, these two sections constitute the substantive elements, whereas Section 4 deals
with how the crime is proved and is therefore not substantive, but merely procedural. It
may be disregarded or discarded if found defective or de cient, without impairing the rest
of the statute.
Actually, the root of this problem may be traced to an observation made by Rep.
Pablo Garcia, chair of the House Committee on Justice, that RA 7080 had been patterned
after the RICO Law. 2 0 Petitioner apparently seized on this statement and on the assertions
in H.J. Inc. v. Northwestern Bell 2 1 and other cases that a pattern of racketeering is a " key
requirement" in the RICO Law and a "necessary element" of violations thereof. He then used
these as the springboard for his vagueness attacks on RA 7080. However, his reliance on
the RICO law is essentially misplaced. Respondent Sandiganbayan correctly held that the
said legislation was essentially different from our Anti-Plunder Law, as it pointed out in its
Resolution of July 9, 2001, which I quote:
"Accused Joseph E. Estrada claims that the Anti-Plunder Law does not
de ne 'pattern of overt or criminal acts' indicative of the overall scheme or
conspiracy, thereby giving prosecutors and judges unlimited discretion to
determine the nature and extent of evidence that would show 'pattern."' (Motion to
Quash dated June 7, 2001, p. 13) The Court disagrees with this contention.
". . . . According to the sponsors of the Anti-Plunder Law in Congress, the
said law is similar to the U.S. RICO (Deliberations of the House of Representatives
Committee on Revision of Law and Justice, May 24, 1990). However, the
similarities extend only insofar as both laws penalize with severe penalties the
commission by a single accused or multiple accused of a pattern of overt or
criminal acts as one continuing crime. However, the legislative policies and
objectives as well as the nature of the crimes penalized respectively by the RICO
and the Anti-Plunder Law are different." (italics and underscoring supplied)
Indeed, a careful reading of RICO vis-à-vis RA 7080 can lead to no other conclusion
than that the crimes being penalized are completely different in nature and character, and
that the legislative objectives and policies involved are quite dissimilar.
In the case of RICO, legislative concern focused on the threat of continued
racketeering activity, and that was why pattern was imbued with such importance.
"Congress was concerned in RICO with long-term criminal conduct," 2 2 as the following
quote indicates:
"RICO's legislative history reveals Congress' intent that to prove a pattern of
racketeering activity a plaintiff or prosecutor must show that the racketeering
predicates are related, and that they amount to or pose a threat of continued
criminal activity. 2 3
xxx xxx xxx
"What a plaintiff or prosecutor must prove is continuity of racketeering
activity, or its threat, simpliciter. This may be done in a variety of ways, thus
making it di cult to formulate in the abstract any general test for continuity. We
can, however, begin to delineate the requirement.
"'Continuity' is both a closed and open-ended concept, referring either to a
closed period of repeated conduct, or to past conduct that by its nature projects
into the future with a threat of repetition. . . . . It is, in either case, centrally a
temporal concept — and particularly so in the RICO context, where what must be
continuous, RICO's predicate acts or offenses, and the relationship these
predicates must bear one to another, are distinct requirements. A party alleging a
RICO violation may demonstrate continuity over a closed period by proving a
series of related predicates extending over a substantial period of time. Predicate
acts extending over a few weeks or months and threatening no future criminal
conduct do not satisfy this requirement. Congress was concerned in RICO with
long-term criminal conduct. Often a RICO action will be brought before continuity
can be established in this way. In such cases, liability depends on whether the
threat of continuity is demonstrated." 2 4 (emphasis supplied)
However, in RA 7080, precisely because of the sheer magnitude of the crimes in
question and their extremely deleterious effects on society, the legislative sentiment of
great urgency — the necessity of immediate deterrence of such crimes — was
incompatible with the RICO concept of "pattern" as connoting either continuity over a
substantial period of time or threat of continuity or repetition. The legislative intent 2 5 and
policy of RA 7080 centered on imposing a heavy penalty in order to achieve a strong, if not
permanent, deterrent effect — the sooner the better. The following Senate deliberations
are instructive:
"Senator Paterno.
Mr. President, [I'm] not too clear yet on the reason for trying to de ne a crime
of plunder. Could I get some further clarification?
"Senator Tañada.
Yes, Mr. President.

"Because of our experience in the former regime, we feel that there is a need
for Congress to pass the legislation which would cover a crime of this
magnitude. While it is true, we already have the Anti-Graft Law. But that
does not directly deal with plunder. That covers only the corrupt practices
of public o cials as well as their spouses and relatives within the civil
degree, and the Anti-Graft law as presently worded would not adequately or
su ciently address the problems that we experienced during the past
regime.
"Senator Paterno.
May I try to give the Gentleman, Mr. President, my understanding of the bill?
"Senator Tañada.
Yes.
"Senator Paterno.
I envision that this bill or this kind of plunder would cover a discovered
interconnection of certain acts, particularly, violations of Anti-Graft and
Corrupt Practices Act when, after the different acts are looked at, a scheme
or conspiracy can be detected, such scheme or conspiracy consummated
by the different criminal acts or violations of Anti-Graft and Corrupt
Practices Act, such that the scheme or conspiracy becomes a sin, as a
large scheme to defraud the public or rob the public treasury. It is parang
robo and banda. It is considered as that. And, the bill seeks to de ne or
says that P100 million is that level at which ay talagang sobra na, dapat
nang parusahan ng husto. Would it be a correct interpretation or
assessment of the intent of the bill?
"Senator Tañada.
Yes, Mr. President. . . . .
"Senator Paterno.
Would the Author not agree that this crime of plunder should be considered a
heinous crime, Mr. President?
"Senator Tañada.
Yes, Mr. President. That is why, the penalty imposed under this bill is life
imprisonment, and permanent disqualification from holding public office.
"Senator Paterno.

I would really ask, Mr. President, whether the Author would not consider that
this is a heinous crime which, for compelling reasons, namely to try and
dampen the graft and corruption, Congress should provide the death
penalty for the crime of plunder.
"Senator Tañada.
I personally would have some problem with that, Mr. President, because I am
against the restoration of death penalty in our criminal code. I would
submit that to this Body.
"Senator Paterno.
I respect the ministerial attitude and the respect for human life of the author,
Mr. President, but I just feel that graft and corruption is such a large
problem in our society that, perhaps, it is necessary for this Congress to
express itself that this crime of plunder is a heinous crime which should be
levied the death penalty, Mr. President." 2 6
Thus, it is clear and unarguable that "pattern," a key requirement or necessary

element of RICO, is in no wise an essential element of RA 7080.
This conclusion is further bolstered by the fact that pattern, in the RICO law context,
is nowhere to be found in the language of RA 7080 or in the deliberations of Congress.
Indeed, the legislators were well aware of the RICO Act; hence, they could have opted to
adopt it's concepts, terms and de nitions and installed pattern in the RICO sense as an
essential element of the crime of plunder, if that were their intent. At the very least, they
would not have relegated the term pattern to a procedural provision such as Section 4.
Second, to answer petitioner's contention directly, the Anti-Plunder Law does in fact
provide sufficient basis to get at the meaning of the term pattern as used in Section 4. This
meaning is brought out in the disquisition of Respondent Sandiganbayan in its challenged
Resolution, reproduced hereunder:
"The term 'pattern' . . . is su ciently de ned in the Anti-Plunder Law,
speci cally through Section 4 . . . , read in relation to Section 1(d) and Section 2
of the same law. Firstly , under Section 1(d) . . . , a pattern consists of at least a
combination or a series of overt or criminal acts enumerated in subsections (1) to
(6) of Section 1(d). Secondly , pursuant to Section 2 of the law, the 'pattern' of
overt or criminal acts is directed towards a common purpose or goal which is to
enable a public o cer to amass, accumulate or acquire ill-gotten wealth; and
[t]hirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to
achieve said common goal. As commonly understood, the term 'overall unlawful
scheme' indicates 'a general plan of action or method' which the principal
accused and public o cer and others conniving with him follow to achieve the
aforesaid common goal. In the alternative, if there is no such overall scheme or
where the schemes or methods used by multiple accused vary, the overt or
criminal acts must form part of a conspiracy to attain said common goal. cCSDTI
"Parenthetically, it can be said that the existence of a pattern indicating an

overall scheme or a single conspiracy would serve as the link that will tie the overt
or criminal acts into one continuing crime of plunder. A conspiracy exists when
two or more persons come into an agreement concerning the commission of a
felony and decide to commit it. (Art. 8, Revised Penal Code). To use an analogy
made by U.S. courts in connection with RICO violations, a pattern may be likened
to a wheel with spokes (the overt or criminal acts which may be committed by a
single or multiple accused), meeting at a common center (the acquisition or
accumulation of ill-gotten wealth by a public o cer) and with the rim (the over-all
unlawful scheme or conspiracy) of the wheel enclosing the spokes. In this case,
the information charges only one count of [the] crime of plunder, considering the
prosecution's allegation in the amended information that the series or
combination of overt or criminal acts charged form part of a conspiracy among
all the accused." 2 7
Judiciary Empowered
to Construe and Apply the Law
At all events, let me stress that the power to construe law is essentially judicial. To
declare what the law shall be is a legislative power, but to declare what the law is or has
been is judicial. 2 8 Statutes enacted by Congress cannot be expected to spell out with
mathematical precision how the law should be interpreted under any and all given
situations. The application of the law will depend on the facts and circumstances as
adduced by evidence which will then be considered, weighed and evaluated by the courts.
Indeed, it is the constitutionally mandated function of the courts to interpret, construe and
apply the law as would give flesh and blood to the true meaning of legislative enactments.
Moreover, a statute should be construed in the light of the objective to be achieved
and the evil or mischief to be suppressed and should be given such construction as will
advance the purpose, suppress the mischief or evil, and secure the bene ts intended. 2 9 A
law is not a mere composition, but an end to be achieved; and its general purpose is a
more important aid to its meaning than any rule that grammar may lay down. 3 0 A
construction should be rejected if it gives to the language used in a statute a meaning that
does not accomplish the purpose for which the statute was enacted and that tends to
defeat the ends that are sought to be attained by its enactment. 3 1
As can be gleaned from the legislative deliberations, the Plunder Law was enacted
to curb the '"despoliation of the National Treasury by some public o cials who have held
the levers of power" and to penalize "this predatory act which has reached unprecedented
heights and has been developed by its practitioners to a high level of sophistication during
the past dictatorial regime." Viewed broadly, "plunder involves not just plain thievery but
economic depredation which affects not just private parties or personal interests but the
nation as a whole." Invariably, plunder partakes of the nature of " a crime against national
interest which must be stopped, and if possible, stopped permanently." 3 2
No Patent and Clear
Conflict with Constitution
Against the foregoing backdrop, I believe petitioner's heavy reliance on the void-for-
vagueness concept cannot prevail, considering that such concept, while mentioned in
passing in Nazario and other cases, has yet to nd direct application in our jurisdiction. To
this date, the Court has not declared any penal law unconstitutional on the ground of
ambiguity. 3 3 On the other hand, the constitutionality of certain penal statutes has been
upheld in several cases, notwithstanding allegations of ambiguity in the provisions of law.
In Caram Resources Corp. v. Contreras 3 4 and People v. Morato, 3 5 the Court upheld the
validity of BP 22 (Bouncing Checks Law) and PD 1866 (Illegal Possession of Firearms),
respectively, despite constitutional challenges grounded on alleged ambiguity.
Similarly, the cases cited by petitioner involving U.S. federal court decisions relative
to the RICO Law did not at all arrive at a nding of unconstitutionality of the questioned
statute. To repeat, reference to these U.S. cases is utterly misplaced, considering the
substantial differences in the nature, policies and objectives between the RICO Law and
the Anti-Plunder Law. Verily, "the RICO Law does not create a new type of substantive
crime since any acts which are punishable under the RICO Law also are punishable under
existing federal and state statutes." 3 6 Moreover, the main purpose of the RICO Law is " to
seek the eradication of organized crime in the United States." 3 7
On the other hand, the Plunder Law creates an entirely new crime that may consist of
both (a) criminal acts already punished by the Revised Penal Code or special laws and (b)
acts that may not be punishable by previously existing laws. Furthermore, unlike in the
RICO Law, the motivation behind the enactment of the Anti-Plunder Law is " the need to for
a penal law that can adequately cope with the nature and magnitude of the corruption of
the previous regime" 3 8 in accordance with the constitutional duty of the State "to take
positive and effective measures against graft and corruption." 3 9
In sum, the law must be proven to be clearly and unequivocally repugnant to the
Constitution before this Court may declare its unconstitutionality. To strike down the law,
there must be a clear showing that what the fundamental law prohibits, the statute allows
to be done. 4 0 To justify the nulli cation of the law, there must be a clear, unequivocal
breach of the Constitution; not a doubtful, argumentative implication. 4 1 Of some terms in
the law which are easily clari ed by judicial construction, petitioner has, at best, managed
merely to point out alleged ambiguities. Far from establishing, by clear and unmistakable
terms, any patent and glaring con ict with the Constitution, the constitutional challenge to
the Anti-Plunder law must fail. For just as the accused is entitled to the presumption of
innocence in the absence of proof beyond reasonable doubt, so must a law be accorded
the presumption of constitutionality without the same requisite quantum of proof.
Second Issue:
Quantum of Evidence
Not Lowered by RA 7080
I will now tackle petitioner's impassioned asseverations that the Anti-Plunder Law
violates the due process clause and the constitutional presumption of innocence.
Section 4 of RA 7080 provides that, for purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act done by the accused
in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth. This is because it would be su cient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
Hence, petitioner now concludes that the Anti-Plunder Law "eliminates proof of each
and every component criminal act of plunder by the accused and limits itself to
establishing just the pattern of overt or criminal acts indicative of unlawful scheme or
conspiracy." He thus claims that the statute penalizes the accused on the basis of a proven
scheme or conspiracy to commit plunder, without the necessity of establishing beyond
reasonable doubt each and every criminal act done by the accused. From these premises,
he precipitately, albeit inaccurately, concludes that RA 7080 has ipso facto lowered the
quantum of evidence required to secure a conviction under the challenged law. This is
clearly erroneous. TIAEac
First, petitioner's allegation as to the meaning and implications of Section 4 can

hardly be taken seriously, because it runs counter to certain basic common sense
presumptions that apply to the process of interpreting statutes: that in the absence of
evidence to the contrary, it will be presumed that the legislature intended to enact a valid,
sensible and just law; that the law-making body intended right and justice to prevail; 4 2 and
that the legislature aimed to impart to its enactments such meaning as would render them
operative and effective and prevent persons from eluding or defeating them.
Second, petitioner's allegation is contradicted by the legislative Records that
manifest the real intent behind Section 4, as well as the true meaning and purpose of the
provision therein. This intent is carefully expressed by the words of Senate President
Salonga:
"Senate Pres. Salonga.
Is that, if there are let's say 150 crimes all in all, criminal acts, whether
bribery, misappropriation, malversation, extortion, you need not prove all of
those beyond reasonable doubt. If you can prove by pattern, let's say 10,
but each must be proved beyond reasonable doubt, you do not have to
prove 150 crimes. That's the meaning of this." 4 3 (emphasis supplied)
All told, the above explanation is in consonance with what is often perceived to be
the reality with respect to the crime of plunder — that "the actual extent of the crime may
not, in its breadth and entirety, be discovered, by reason of the 'stealth and secrecy' in
which it is committed and the involvement of 'so many persons here and abroad and [the
fact that it] touches so many states and territorial units."' 4 4 Hence, establishing a pattern
indicative of the overall unlawful scheme becomes relevant and important.
Proof of Pattern
Beyond Reasonable Doubt
Nevertheless, it should be emphasized that the indicative pattern must be proven
beyond reasonable doubt. To my mind, this means that the prosecution's burden of
proving the crime of plunder is, in actuality, much greater than in an ordinary criminal case.
The prosecution, in establishing a pattern of overt or criminal acts, must necessarily show
a combination or series of acts within the purview of Section 1(d) of the law.
These acts which constitute the combination or series must still be proven beyond
reasonable doubt. On top of that, the prosecution must establish beyond reasonable
doubt such pattern of overt or criminal acts indicative of the overall scheme or conspiracy,
as well as all the other elements thereof.
Thus, Respondent Sandiganbayan was correct in its ratiocination on that point:
"The accused misread the import and meaning of the above-quoted
provision (Sec. 4). The latter did not lower the quantum of evidence necessary to
prove all the elements of plunder, which still remains proof beyond reasonable
doubt. For a clearer understanding of the import of Section 4 of the Anti-Plunder
Law, quoted hereunder are pertinent portions of the legislative deliberations on
the subject:
'MR. ALBANO.
Now, Mr. Speaker, it is also elementary in our criminal law that what is
alleged in the information must be proven beyond reasonable doubt. If we
will prove only one act and nd him guilty of the other acts enumerated in
the information, does that not work against the right of the accused
especially so if the amount committed, say, by falsi cation is less than
P100 million, but the totality of the crime committed is P100 million since
there is malversation, bribery, falsi cation of public document, coercion,
theft?
'MR. GARCIA (P).
Mr. Speaker, not everything alleged in the information needs to be proved
beyond reasonable doubt. What is required to be proved beyond
reasonable doubt is every element of the crime charged. For example, Mr.
Speaker, there is an enumeration of the things taken by the robber in the
information — three pairs of pants, pieces of jewelry. These need not be
proved beyond reasonable doubt, but these will not prevent the conviction
of a crime for which he was charged just because, say, instead of 3 pairs
of diamond earrings the prosecution proved only two. Now, what is
required to be proved beyond reasonable doubt is the element of the
offense.
'MR. ALBANO.
I am aware of that, Mr. Speaker, but considering that in the crime of plunder
the totality of the amount is very important, I feel that such a series of overt
(or) criminal acts has to be taken singly. For instance, in the act of bribery,
he was able to accumulate only P50,000 and in the crime of extortion, he
was only able to accumulate P1 million. Now, when we add the totality of
the other acts as required under this bill through the interpretation on the
rule of evidence, it is just one single act, so how can we now convict him?
'MR. GARCIA (P).
With due respect, Mr. Speaker, for purposes of proving an essential element
of the crime, there is a need to prove that element beyond reasonable
doubt. For example, one essential element of the crime is that the amount
involved is P100 million. Now, in a series of defalcations and other acts of
corruption and in the enumeration the total amount would be P110 or P120
million, but there are certain acts that could not be proved, so, we will sum
up the amounts involved in these transactions which were proved. Now, if
the amount involved in these transactions, proved beyond reasonable
doubt, is P100 million, then there is a crime of plunder.' (Deliberations of
House of Representatives on RA 7080, dated October 9, 1990).'
xxx xxx xxx
"According to the Explanatory Note of Senate Bill No. 733, the crime of
plunder, which is a 'term chosen from other equally apt terminologies like
kleptocracy and economic treason, punishes the use of high o ce for personal
enrichment, committed through a series [or combination] of acts done not in the
public eye but in stealth or secrecy over a period of time, that may involve so
many persons, here and abroad, and which touch so many states and territorial
units.' For this reason, it would be unreasonable to require the prosecution to
prove all the overt and criminal acts committed by the accused as part of an 'over-
all unlawful scheme or conspiracy' to amass ill-gotten wealth as long as all the
elements of the crime of plunder have been proven beyond reasonable doubt,
such as, the combination or series of overt or criminal acts committed by a public
o cer alone or in connivance with other persons to accumulate ill-gotten wealth
in the amount of at least Fifty Million Pesos.
"The statutory language does not evince an intent to do away with the
constitutional presumption of guilt nor to lower the quantum of proof needed to
establish each and every element or ingredient of the crime of plunder." 4 5
In connection with the foregoing, I emphasize that there is no basis for petitioner's
concern that the conspiracy to defraud, which is not punishable under the Revised Penal
Code, may have been criminalized under RA 7080. The Anti-Plunder Law treats conspiracy
as merely a mode of incurring criminal liability, but does not criminalize or penalize it per
se.
In sum, it is clear that petitioner has misunderstood the import of Section 4.
Apropos the foregoing, I maintain that, between an interpretation that produces
questionable or absurd results and one that gives life to the law, the choice for this Court is
too obvious to require much elucidation or debate.
Even granting arguendo that Section 4 of the Anti-Plunder law suffers from some
constitutional in rmity, the statute may nonetheless survive the challenge of
constitutionality in its entirety. Considering that this provision pertains only to a rule on
evidence or to a procedural matter that does not bear upon or form any part of the
elements of the crime of plunder, the Court may declare the same unconstitutional and
strike it off the statute without necessarily affecting the essence of the legislative
enactment. For even without the assailed provision, the law can still stand as a valid penal
statute inasmuch as the elements of the crime, as well as the penalties therein, may still be
clearly identi ed or su ciently derived from the remaining valid portions of the law. This
nds greater signi cance when one considers that Section 7 of the law provides for a
separability clause declaring the validity, the independence and the applicability of the
other remaining provisions, should any other provision of the law be held invalid or
unconstitutional.
Third Issue:
The Constitutional Power of Congress
to Enact Mala Prohibita Laws
Petitioner maintains that RA 7080 "eliminated the element of mens rea from crimes
which are mala in se and converted these crimes which are components of plunder into
mala prohibita, thereby rendering it easier to prove" since, allegedly, "the prosecution need
not prove criminal intent."
This asseveration is anchored upon the postulate (a very erroneous one, as already
discussed above) that the Anti-Plunder Law exempts the prosecution from proving beyond
reasonable doubt the component acts constituting plunder, including the element of
criminal intent. It thus concludes that RA 7080 violates the due process and the equal
protection clauses of the Constitution.
While I simply cannot agree that the Anti-Plunder Law eliminated mens rea from the
component crimes of plunder, my bottom-line position still is: regardless of whether
plunder is classi ed as mala prohibita or in se, it is the prerogative of the legislature —
which is undeniably vested with the authority — to determine whether certain acts are
criminal irrespective of the actual intent of the perpetrator.
The Power of the Legislature
to Penalize Certain Acts
Jurisprudence dating as far back as United States v. Siy Cong Bieng 4 6 has
consistently recognized and upheld "the power of the legislature, on grounds of public
policy and compelled by necessity, 'the great master of things,' to forbid in a limited class
of cases the doing of certain acts, and to make their commission criminal without regard
to the intent of the doer." Even earlier, in United States v. Go Chico , 4 7 Justice Moreland
wrote that the legislature may enact criminal laws that penalize certain acts, like the
"discharge of a loaded gun," without regard for the criminal intent of the wrongdoer. In his
words: ECTIHa
"In the opinion of this Court it is not necessary that the appellant should
have acted with criminal intent. In many crimes, made such by statutory
enactment, the intention of the person who commits the crime is entirely
immaterial. This is necessarily so. If it were not, the statute as a deterrent
in uence would be substantially worthless. It would be impossible of execution.
In many cases the act complained of is itself that which produces the pernicious
effect which the statute seeks to avoid. In those cases the pernicious effect is
produced with precisely the same force and result whether the intention of the
person performing the act is good or bad. The case at bar is a perfect illustration
of this. The display of a ag or emblem used, particularly within a recent period,
by the enemies of the Government tends to incite resistance to governmental
functions and insurrection against governmental authority just as effectively if
made in the best of good faith as if made with the most corrupt intent. The
display itself, without the intervention of any other factor, is the evil. It is quite
different from that large class of crimes, made such by the common law or by
statute, in which the injurious effect upon the public depends upon the corrupt
intention of the person perpetrating the act. If A discharges a loaded gun and kills
B, the interest which society has in the act depends, not upon B's death, but upon
the intention with which A consummated the act. If the gun were discharged
intentionally, with the purpose of accomplishing the death of B, then society has
been injured and its security violated; but if the gun was discharged accidentally
on the part of A, the society, strictly speaking, has no concern in the matter, even
though the death of B results. The reason for this is that A does not become a
danger to society and its institutions until he becomes a person with a corrupt
mind. The mere discharge of the gun and the death of B do not of themselves
make him so. With those two facts must go the corrupt intent to kill. In the case at
bar, however, the evil to society and to the Government does not depend upon the
state of mind of the one who displays the banner, but upon the effect which that
display has upon the public mind. In the one case the public is affected by the
intention of the actor; in the other by the act itself."
Without being facetious, may I say that, unlike the act of discharging a gun, the acts
mentioned in Section 1(d) — bribery, conversion, fraudulent conveyance, unjust enrichment
and the like — cannot be committed sans criminal intent. And thus, I nally arrive at a point
of agreement with petitioner: that the acts enumerated in Section 1(d) are by their nature
mala in se, and most of them are in fact de ned and penalized as such by the Revised
Penal Code. Having said that, I join the view that when we speak of plunder, we are
referring essentially to two or more instances of mala in se constituting one malum
prohibitum. Thus, there should be no di culty if each of the predicate acts be proven
beyond reasonable doubt as mala in se, even if the defense of lack of intent be taken away,
as the solicitor general has suggested.
In brief, the matter of classi cation is not really signi cant, contrary to what
petitioner would have us believe. The key, obviously, is whether the same burden of proof
— proof beyond reasonable doubt — would apply.
Furthermore, I also concur in the opinion of the solicitor general: if it is conceded
that the legislature possesses the requisite power and authority to declare, by legal at,
that acts not inherently criminal in nature are punishable as offenses under special laws,
then with more reason can it punish as offenses under special laws those acts that are
already inherently criminal. "This is so because the greater (power to punish not inherently
criminal acts) includes the lesser (power to punish inherently criminal acts). In eo plus sit,
semper inest et minus." 4 8
Epilogue
"The constitutionality of laws is presumed. To justify nulli cation of a law,
there must be a clear and unequivocal breach of the Constitution, not a doubtful
or argumentative implication; a law shall not be declared invalid unless the
con ict with the Constitution is clear beyond a reasonable doubt. 'The
presumption is always in favor of constitutionality . . . . To doubt is to sustain.' . . .
." 4 9
A law should not be overturned on the basis of speculation or conjecture that it is

unconstitutionally vague. Everyone is duty-bound to adopt a reasonable interpretation that
will uphold a statute, carry out its purpose and render harmonious all its parts. Indeed, the
constitutionality of a statute must be sustained if, as in this case, a ground therefor can
possibly be found. For the unbending teaching is that a law cannot be declared invalid
unless the conflict with the Constitution is shown to be clearly beyond reasonable doubt.
To lend color and vividness to the otherwise boring legalese that has been used to
dissect RA 7080, the parties to this case laced their arguments with interesting little
stories. Thus, petitioner opened his Oral Argument with an admittedly apocryphal account
of a befuddled student of law who could not make heads or tails of the meanings of series,
combination and pattern.
On the other hand, the solicitor general compares petitioner with Hans Christian
Andersen's fabled tailors who tried to fool the emperor into walking around naked by
making him believe that anyone who did not see the invisible garment, which they had
supposedly sewn for him, was "too stupid and incompetent to appreciate its quality." This
is no doubt a parody of the alleged vagueness of RA 7080, which is purportedly "invisible
only to anyone who is too dull or dense to appreciate its quality." 5 0
I do not begrudge petitioner (or his lawyers) for exhausting every known and
knowable legal tactic to exculpate himself from the clutches of the law. Neither do I blame
the solicitor general, as the Republic's counsel, for belittling the attempt of petitioner to
shortcut his di cult legal dilemmas. However, this Court has a pressing legal duty to
discharge: to render justice though the heavens may fall.
By the Court's Decision, petitioner is now given the occasion to face squarely and on
the merits the plunder charges hurled at him by the Ombudsman. He may now use this
opportunity to show the courts and the Filipino people that he is indeed innocent of the
heinous crime of plunder — to do so, not by resorting to mere legalisms, but by showing
the sheer falsity of the wrongdoings attributed to him.
I think that, given his repeated claims of innocence, petitioner owes that opportunity
to himself, his family, and the teeming masses he claims to love. In short, the Court has
rendered its judgment, and the heavens have not fallen. Quite the contrary, petitioner is
now accorded the opportunity to prove his clear conscience and inculpability.
WHEREFORE, I vote to DISMISS the Petition and to uphold the constitutionality of RA
7080.
PARDO , J., separate dissenting opinion:
With due respect, I vote to grant the petition on the second ground raised therein,
that is, multiplicity of offenses charged in the amended information. 1 Consequently, the
resolution of the Sandiganbayan must be set aside, and the case remanded to the
Ombudsman for the amendment of the information to charge only a single offense.
In my view, it is unnecessary to rule on the unconstitutionality of the entire law, 2 R.A.
No. 7080, as amended by R.A. No. 7659, although I share the opinion of the dissenting
justices in the case of People v. Echegaray, 3 that the heinous crime law is unconstitutional.
Hence, the amendments to the plunder law prescribing the death penalty therefor are
unconstitutional. I am of the view that the plunder law penalizes acts that are mala in se,
and consequently, the charges must be the speci c acts alleged to be in violation of the
law, committed with malice and criminal intent. At any rate, I venture the view that Section
4, R.A. No. 7080, must be interpreted as requiring proof beyond reasonable doubt of all the
elements of plunder as prescribed in the law, including the elements of the component
crimes, otherwise, the section will be unconstitutional.
YNARES-SANTIAGO , J., dissenting opinion:
It is an ancient maxim in law that in times of frenzy and excitement, when the desire
to do justice is tarnished by anger and vengeance, there is always the danger that vital
protections accorded an accused may be taken away.
The Plunder Law and its amendment were enacted to meet a national problem
demanding especially immediate and effective attention. By its very nature, the law
deserved or required legislative drafting of the highest order of clarity and precision.
Substantive due process dictates that there should be no arbitrariness,
unreasonableness or ambiguity in any law which deprives a person of his life or liberty. The
trial and other procedures leading to conviction may be fair and proper. But if the law itself
is not reasonable legislation, due process is violated. Thus, an accused may not be
sentenced to suffer the lethal injection or life imprisonment for an offense understood only
after judicial construction takes over where Congress left off, and interpretation supplies
its meaning.
The Constitution guarantees both substantive and procedural due process 1 as well
as the right of the accused to be informed of the nature and cause of the accusation
against him. 2 Substantive due process requires that a criminal statute should not be vague
and uncertain. 3 More explicitly —
That the terms of a penal statute. . . must be su ciently explicit to inform
those who are subject to it what conduct on their part will render them liable to
penalties, is a well-recognized requirement, consonant alike with ordinary notions
of fair play and the settled rules of law. And a statute which either forbids or
requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application, violates the
first essential of due process. 4

The doctrine of constitutional uncertainty is also based on the right of the accused
to be informed of the nature and cause of the accusation. 5 Fundamental fairness dictates
that a person cannot be sent to jail for a crime that he cannot with reasonable certainty
know he was committing. 6 Statutes de ning crimes run afoul of the due process clause if
they fail to give adequate guidance to those who would be law-abiding, to advise
defendants of the nature of the offense with which they are charged or to guide courts
trying those who are accused. 7 In short, laws which create crime ought to be so explicit
that all men subject to their penalties may know what acts it is their duty to avoid. 8
A reading of the Plunder Law immediately shows that it is phrased in a manner not
susceptible to ready or clear understanding. In the desire to cover under one single
offense of plunder every conceivable criminal activity committed by a high government
o cial in the course of his duties, Congress has come out with a law unduly vague,
uncertain and broad.
The doctrines of overbreadth and void-for-vagueness in Constitutional Law were
developed in the context of freedom of speech and of the press. However, they apply
equally, if not more so, to capital offenses. In the present case, what the law seeks to
protect or regulate involves the deprivation of life itself and not merely the regulation of
expression.
In its early formulation, the overbreadth doctrine states that a governmental
purpose to control or prevent activities constitutionally subject to regulation may not be
achieved by means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms. 9
A statute, especially one involving criminal prosecution, must be de nite to be valid.
A statute is vague or overbroad, in violation of the due process clause, where its language
does not convey su ciently de nite warning to the average person as to the prohibited
conduct. A statute is unconstitutionally vague if people of common intelligence must
necessarily guess at its meaning. 1 0
It is not only prosecutors and judges who are concerned. The need for de niteness
applies with greater force to the accused and those in positions where opportunities for
them to commit the proscribed offense are present. They must understand exactly what
prohibited activity will be punished by capital punishment. Sadly, even the record of
deliberations in Congress cited in the motion to quash shows that even the members of
the Senate who are illustrious lawyers found the Plunder Law vague.
Under Section 1 of R.A. 7080 and Section 12 of R.A. 7659, the acquisition of at least
P50,000,000.00 of ill-gotten wealth is punished by reclusion perpetua to death, if
committed as follows:
percentage, kickbacks or any other form of pecuniary bene t from any person
belonging to the National Government or any of its subdivisions, agencies or
subsidiaries;
4) By obtaining, receiving or accepting directly or indirectly any shares
Republic of the Philippine. 1 1
The crimes of malversation of public funds and bribery, which appear to be included
among the modes of committing plunder, have acquired well-de ned meanings under our
present penal statutes. The accused immediately knows how to defend and justify his
actions. The prosecution understands the quantum and nature of the evidence he has to
produce in court. The Judge can apply the law with straight and positive judgment because
there is no vagueness about it.
The Sandiganbayan, however, has ruled that the Plunder Law does not make any
reference to any speci c provision of laws other than R.A. 7080, as amended. It is an
entirely new offense where malversation or bribery become "generic terms" according to
the court. And since "generic" refers to an entire group or class of related matters, the
discretion given to the prosecutor and the judge figuratively runs riot.
Under the same paragraph of the Plunder Law, malversation is lumped with "misuse
of public funds." Misuse can be as innocuous as error or it can be as severe as corruption
or embezzlement. The terms "abuse," "distortion," "misapplication," "mismanagement,"
"poor stewardship," "malpractice," "debasement," or "breach of trust," all conceivably fall
under the generic term "misuse." Exactly when does an administrative offense of misuse
become the capital crime of plunder? What degree of misuse is contemplated under the
law?
A penal law violates due process where inherently vague statutory language permits
selective law enforcement. 1 2 Under the Plunder Law, a crusading public o cer who steps
on too many important toes in the course of his campaign could be prosecuted for a
capital offense, while for exactly the same acts, an o cial who tries to please everybody
can be charged whether administratively or for a much lighter offense.
For instance, direct bribery under Article 210 of the Revised Penal Code is punished
with prision mayor in its medium or minimum periods, prision correccional in its medium
period, or prision mayor in its minimum period, depending on the manner of commission.
1 3 Indirect bribery under Article 211 is punished with prision correccional in its medium
and maximum periods. 1 4 Under the Plunder Law, the penalty is reclusion perpetua to
death. The void-for-vagueness in rmity becomes all the more apparent if the proscribed
activity is "misuse of public funds." The prosecutor is given broad powers of selective law
enforcement. For "misuse," exactly the same acts could be punished with death under the
Plunder Law, or mere dismissal with prejudice to future government employment under the
Civil Service Law.
The provision in the Plunder Law on "implementation of decrees and orders intended
to benefit particular persons or special interests" also calls for more specific elucidation. If
the only person bene ted is himself, does that fall under "particular person?" Decrees and
orders issued by a top government o cial may be intended to bene t certain segments of
society such as farmers, manufacturers, residents of a geographical area and the like. If in
the process a close relative acquires P50,000,000.00 because of development in that
sector solely because of the decree and without lifting a nger, is that plunder? The
vagueness can be better appreciated by referring to petitioner's arguments that the
element of mens rea in mala in se crimes has been abolished and the offenses have been
converted to mala prohibita. If the guilty intent is eliminated, even innocent acts can be
plunder. The law was not drafted for petitioner alone. It applies to all public officers.
As petitioner has stated, what Congress did in enacting the Plunder Law was to take
out the provisions of the Revised Penal Code on malversation, estafa, bribery, and other
crimes committed by public o cers, mix these with special laws on graft and corruption
and together with a couple of non-criminal acts, combine them into a special law and call it
"plunder."
Early in the history of this Court, it ruled that in acts mala in se, the criminal intent
governs. But in those acts mala prohibita, the only inquiry is: has the law been violated? 1 5
Acts constituting malversation, estafa, and bribery are mala in se. The courts must inquire
into the criminal intent, the evil nature or wrongful disposition behind the criminal acts. In
mala prohibita crimes, there is a violation of a prohibitory law and the inquiry is, therefore,
has the law been violated?
In the crime of plunder, it is enough that the acts de ning malversation or bribery are
described. The court then proceeds to determine whether the acts fall under the
prohibitory terms of the law. Criminal intent no longer has to be proved. The criminal intent
to commit the crime is not required to be proved. The desire to bene t particular persons
does not have to spring from criminal intent under the special law creating the crime of
plunder. In malversation or bribery under the Revised Penal Code, the criminal intent is an
important element of the criminal acts. Under the Plunder Law, it is enough that the acts
are committed.
Thus, even if the accused can prove lack of criminal intent with respect to crimes
mala in se, this will not exonerate him under the crime mala prohibita. This violates
substantive due process and the standards of fair play because mens rea is a
constitutional guarantee under the due process clause. Indeed, as stated by the U.S.
Supreme Court in Morisette v. U.S.: 1 6
The Government asks us by a feat of construction radically to change the
weights and balances in the scales of justice. The purpose and obvious effect of
doing away with the requirement of a guilty intent is to ease the prosecution's
party to conviction, to strip the defendant of such bene t as he derived at
common law from innocence of evil purpose, and to circumscribe the freedom
heretofore allowed juries. Such a manifest impairment of the immunities of the
individual should not be extended to common law crimes on judicial initiative.
(Emphasis ours)
By grafting several felonies, some mala in se and some mala prohibita, to constitute
the crime of plunder and by doing away with the standard of proof beyond reasonable
doubt for the component elements, the State would practically be given the judicial
imprimatur to impose the extreme penalty of death on the basis of proof only of the overall
pattern of overt or criminal acts showing unlawful scheme or conspiracy. This attempt of
Congress to tip the scales of criminal justice in favor of the state by doing away with the
element of mens rea and to pave the way for the accused to be convicted by depriving him
of the defense of criminal intent as to mala in se components of plunder will be anathema
to substantive due process which insures "respect for those personal immunities which
are so rooted in the traditions and conscience of our people as to be ranked as
fundamental." 1 7
Equally disagreeable is the provision of the Plunder Law which does away with the
requirement that each and every component of the criminal act of plunder be proved and
instead limits itself to proving only a pattern of overt acts indicative of the unlawful
scheme or conspiracy. 1 8 In effect, the law seeks to penalize the accused only on the basis
of a proven scheme or conspiracy, and does away with the rights of the accused insofar as
the component crimes are concerned. In other words, R.A. No. 7080 circumvents the
obligation of the prosecution to prove beyond reasonable doubt every fact necessary to
constitute the crime of plunder, because the law requires merely proof of a pattern of overt
acts showing an unlawful scheme or conspiracy. What aggravates matters on this point is
that under controlling case law, conspiracy to defraud is not punishable under the Revised
Penal Code. 1 9 Cutting corners on the burden of proof is unconstitutional because the
standard of reasonable doubt is part of the due process safeguard accorded an accused.
The due process clause protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
charged. 2 0
Under R.A. 7659, plunder is a heinous crime punishable by death. It is described as
grievous, odious and hateful because of its inherent or magni ed wickedness, viciousness,
atrocity, and perversity. There can be no quarrel with the legislative objective of reducing
the upsurge of such crimes which affect sustainable economic development and
undermine the people's faith in Government and the latter's ability to maintain peace and
order. Nevertheless, due process commands that even though the governmental purpose
is legitimate and substantial, that purpose cannot be pursued by means so vague and
broad that they infringe on life or sti e liberty when the end can be more narrowly achieved
through existing penal statutes.
Where the statute has an overbroad sweep just as when it is vague, the hazard of
loss or impairment of life or liberty is critical. 2 1
The problem of vagueness is reduced or eliminated if the different schemes
mentioned in the law as used in the acquisition of ill-gotten wealth are prosecuted under
existing penal law. The offenses are by their nature distinct and separate from each other
and have acquired established meanings.
Thus, the acts of misappropriation or malversation may be prosecuted as separate
offenses. So may the receipt of commissions, gifts, or kickbacks by higher o cials in
connection with government contracts. The four other methods or schemes mentioned in
the law may be the objects of separate penal statutes.
When the law creates a new crime of plunder through a combination or series of
overt or criminal acts, the courts have to supply missing elements if conviction is to be
achieved.
Bribery is punished as plunder under the law only when there is a combination or
series of criminal acts. But when do certain acts constitute a combination or series? Does
the Plunder law provide that two or three acts of one crime of bribery constitute a
combination or series which qualify bribery into plunder? Or does bribery have to be
conjoined with the separate offense of malversation to become a combination? Or with
malversation and fraudulent conveyance or disposition of public assets or one of the other
means or schemes before it becomes a series?
I nd it di cult to accept the wide discretion given to the prosecution by the
Plunder Law. An elective official who is a political threat may be charged for plunder as one
single offense punishable by death while one in the good graces of the powers-that-be is
charged only under the Revised Penal Code.
The confusion generated by a vague law is exempli ed in the informations led
against petitioner in this case. Petitioner was charged with eight crimes, namely: [1]
plunder; [2] violation of Section 3 (e) of R.A. 3019; [3] violation of Section 3 (a) of R.A.
3019; [4] another violation of Section 3 (e) of R.A. 3019; [5] violation of Section 3 (c) of R.A.
3019; [6] violation of Section 7 (d) of R.A. 6713; [7] perjury; [8] illegal use of alias.
Only twelve days later, the prosecution withdrew ve (5) of the informations which it
consolidated into only one offense of plunder. The prosecution was not clear about the
steps to take in instances where the words "combination" or "series" may or may not apply.
It could not understand the coverage of the law as acts repetitive of the same offense or
acts constituting one crime lumped up with other crimes or both criminal and non-criminal
acts punished as one new offense of plunder.
In the following exchange during the deliberations on Senate Bill No. 733, Senators
Neptali Gonzales and Wigberto Tañada voiced serious doubts on the constitutionality of
the definition of plunder, thus:
Senator Gonzales:
To commit the offense of plunder, as de ned in this act, and while
constituting a single offense, it must consist of a series of overt or criminal
acts, such as bribery, extortion, malversation of public funds, swindling,
falsi cation of public documents, coercion, theft, fraud and illegal exaction
and graft or corrupt practices and like offenses. Now, Mr. President, I think
this provision, by itself will be vague. I am afraid that it may be faulted for
being violative of the due process clause and the right to be informed of
the nature and cause of accusation of an accused. Because what is meant
by "series of overt or criminal acts?" I mean, would 2, 4, or 5 constitute a
series? During the period of amendments, can we establish a minimum of
overt acts like, for example, robbery in band? The law de nes what is
robbery in band by the number of participants therein. In this particular
case, probably, we can statutorily provide for the de nition of "series" so
that two, for example, would that already be a series? Or, three, what would
be the basis for such determination?
Senator Tañada:
I think, Mr. President, that would be called for, this being a penal legislation,
we should be very clear as to what it encompasses; otherwise, we may
contravene the constitutional provision on the right of accused to due
process. (Emphasis ours) 2 2
The foregoing concerns to statutorily provide for the de nition of "series" or
"combination" have, however, not been addressed and the terms were left unde ned. The
law, as presently crafted, does not specify whether a "series" means two, three, four or
even more of the overt or criminal acts listed in Section 1 (d) of R.A. 7080.
Even more di cult to accept is when the trial court has to supply the missing
elements, in effect taking over corrective or punitive legislation from Congress. The
attempts of the Sandiganbayan in the questioned Resolution do not clarify. They instead
serve to confuse and increase the ambiguity even more.
The Sandiganbayan interprets the words "combination" and "series" of overt or
criminal acts through terms found in American decisions like "pattern," "conspiracy," "over-
all unlawful scheme," or "general plan of action or method."
The above de nitions are not found in the Plunder Law. The use of such phrases as
"over-all scheme" or "general plan" indicates that the Sandiganbayan is expanding the
coverage of the law through the use of ambiguous phrases capable of dual or multiple
applications. When do two or three acts of the same offense of malversation constitute a
"pattern," "a general plan of action," or an "over-all scheme?" Would one malversation in the
rst week of a public o cer's tenure and another similar act six (6) years later become a
"combination," a "pattern," or a "general plan of action?"
I agree with petitioner's concern over the danger that the trial court may allow the
speci cations of details in an information to validate a statute inherently void for
vagueness. An information cannot rise higher than the statute upon which it is based. Not
even the construction by the Sandiganbayan of a vague or ambiguous provision can supply
the missing ingredients of the Plunder Law.
The right of an accused to be informed of the nature and cause of the accusation
against him is most often exempli ed in the care with which a complaint or information
should be drafted. However, the clarity and particularity required of an information should
also be present in the law upon which the charges are based. If the penal law is vague, any
particularity in the information will come from the prosecutor. The prosecution takes over
the role of Congress.
The fact that the details of the charges are speci ed in the Information will not cure
the statute of its constitutional in rmity. If on its face the challenged provision is
repugnant to the due process clause, speci cation of details of the offense intended to be
charged would not serve to validate it. 2 3 In other words, it is the statute, not the
accusation under it, that prescribes the rule to govern conduct and warns against
transgression. No one may be required at peril of life, liberty or property to speculate as to
the meaning of penal statutes. All are entitled to be informed as to what the State
commands or forbids. 2 4
De niteness is a due process requirement. It is especially important in its
application to penal statutes. Vagueness and unintelligibility will invariably lead to arbitrary
government action. The purpose of the due process clause is to exclude everything that is
arbitrary and capricious affecting the rights of the citizen. 2 5 Congress, in exercising its
power to declare what acts constitute a crime, must inform the citizen with reasonable
precision what acts it intends to prohibit so that he may have a certain understandable rule
of conduct and know what acts it is his duty to avoid. 2 6
The questioned statutes were enacted purportedly in the interest of justice, public
peace and order, and the rule of law. These purposes are not served by R.A. Nos. 7080 and
7659. These statutes allow the prosecutors and the courts arbitrary and too broad
discretionary powers in their enforcement. Fair, equal and impartial justice would be
denied.
For all the foregoing reasons, I vote to grant the petition and nullify the Plunder Law
for being unconstitutional.
SANDOVAL-GUTIERREZ , J., dissenting opinion:
At times when speaking against popular views can subject a member of this Court
to all sorts of unfair criticism and pressure from the media, the lure not to wield the judicial
pen is at its crest. Nevertheless, I cannot relent to such enticement. Silence under such
circumstances may mean not only weakness, but also insensibility to the legal
consequence of a constitutional adjudication bound to affect not only the litigants, but the
citizenry as well. Indeed, the core issue in this case is highly signi cant, the resolution of
which is inevitably historical. Thus, today, I prefer to take a stand and, therefore, dissent
from the majority opinion.
It is beyond dispute that Republic Act No. 7080 (R.A. No. 7080), 1 entitled "An Act
Penalizing the Crime of Plunder," is controversial and far-reaching. Nonetheless, it is my
view that it is also vague and fuzzy, inexact and sweeping. This brings us to the query —
may R.A. No. 7080 be enforced as valid and its shortcomings supplied by judicial
interpretation? My answer, to be explained later, is "NO."
As a basic premise, we have to accept that even a person accused of a crime
possesses inviolable rights founded on the Constitution which even the welfare of the
society as a whole cannot override. The rights guaranteed to him by the Constitution are
not subject to political bargaining or to the calculus of social interest. Thus, no matter how
socially-relevant the purpose of a law is, it must be nulli ed if it tramples upon the basic
rights of the accused.
Enshrined in our Constitution is the ultimate guaranty that "no person shall be
deprived of life, liberty, or property without due process of law." 2 This provision in the Bill
of Rights serves as a protection of the Filipino people against any form of arbitrariness on
the part of the government, whether committed by the legislature, the executive or the
judiciary. Any government act that militates against the ordinary norms of justice and fair
play is considered an infraction of the due process; and this is true whether the denial
involves violation merely of the procedure prescribed by law or affects the very validity of
the law itself. 3
The same Due Process Clause protects an accused against conviction except upon
proof beyond reasonable doubt of every fact necessary to constitute the crime with which
he is charged. The reason for this was enunciated in In Re Winship : 4 "[t]he accused during
a criminal prosecution has at stake interest of immense importance, both because of the
possibility that he may lose his liberty (or life) upon conviction and because of the certainty
that he would be stigmatized by the conviction." In view thereof, any attempt on the part of
the legislature to diminish the requirement of proof in criminal cases should be
discouraged.
I
R.A. No. 7080, as amended, is unconstitutional. Albeit the legislature did not directly
lower the degree of proof required in the crime of plunder from proof beyond reasonable
doubt to mere preponderance of or substantial evidence, it nevertheless lessened the
burden of the prosecution by dispensing with proof of the essential elements of plunder.
Let me quote the offending provision:
SEC. 4. Rule of Evidence. — For purposes of establishing the crime of
accused in furtherance of the scheme or conspiracy to amass, accumulate, or
conspiracy.
In every criminal prosecution, the law recognizes certain elements as material or

essential. Calling a particular fact an "essential element" carries certain legal
consequences. In this case, the consequence that matters is that the Sandiganbayan
cannot convict the accused unless it unanimously 5 nds that the prosecution has proved
beyond reasonable doubt each element of the crime of plunder.
What factual elements must be proved beyond reasonable doubt to constitute the
crime of plunder?
Ordinarily, the factual elements that make up a crime are speci ed in the law that
de nes it. Under R.A. No 7080, as amended, the essential elements of the crime of plunder
are: a) that the offender is a public o cer; b ) that he amasses, accumulates or acquires ill-
gotten wealth through a combination or series of overt or criminal acts described in
Section 1 (d), to wit:

percentage, kickbacks, or any other form of pecuniary bene t from any person
belonging to the National Government or any of its subdivision, agencies or
subsidiaries;
4) By obtaining, receiving or accepting directly, or indirectly any shares
benefit particular person or special interests; or
relationship, connection, or in uence to unjustly enrich himself or themselves at
and c) that the aggregate amount or total value of the ill-gotten wealth is at least Fifty
Million Pesos (P50,000,000.00). 6
Does the phrase "combination or series of overt or criminal acts described in
Section 1 (d)" mean that the "criminal acts" merely constitute the means to commit
plunder? Or does it mean that those "criminal acts," are essential elements of plunder?
When Section 4 of R.A. No. 7080 mandates that it shall not be necessary for the
prosecution to prove each and every criminal act done by the accused, the legislature, in
effect, rendered the enumerated "criminal acts" under Section 1 (d) merely as means and
not as essential elements of plunder. This is constitutionally in rmed and repugnant to the
basic idea of justice and fair play. 7 As a matter of due process, the prosecution is required
to prove beyond reasonable doubt every fact necessary to constitute the crime with which
the defendant is charged. The State may not specify a lesser burden of proof for an
element of a crime. 8 With more reason, it should not be allowed to go around the principle
by characterizing an essential element of plunder merely as a "means" of committing the
crime. For the result is the reduction of the burden of the prosecution to prove the guilt of
the accused beyond reasonable doubt.
Let me elucidate on the vices that come with Section 4.
First, treating the speci c "criminal acts" merely as means to commit the greater
crime of plunder, in effect, allows the imposition of the death penalty even if the Justices
of the Sandiganbayan did not "unanimously" nd that the accused are guilty beyond
reasonable doubt of those "criminal acts." The three Justices need only agree that the
accused committed at least two of the criminal acts, even if not proved by evidence
beyond reasonable doubt. They do not have to agree unanimously on which two.
Let us consider the present case against former President Joseph Ejercito Estrada.
The accusatory portion of the information in Criminal Case No. 26558 charges Mr. Estrada
and others of willfully, unlawfully and criminally amassing, accumulating and acquiring ill-
gotten wealth in the aggregate amount of P4,097,804,173.17 more or less, through a
combination and series of overt and criminal acts described as follows:
"a) by receiving, collecting, directly or indirectly, on many instances, so
called "jueteng money" from gambling operators in connivance with co-accused
Jose "Jinggoy" Estrada, Yolanda Ricaforte and Edward Serapio, as witnessed by
Gov. Luis Chavit Singson, among other witnesses, in the aggregate amount of
FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), more or less, in
consideration of their protection from arrest or interference by law enforcers in
their illegal "jueteng" activities; and
b) by misappropriating, converting and misusing his gain and bene t
public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS
(P130,000,000.00), more or less, representing a portion of the One Hundred
Seventy Million Pesos (P170,000,000.00) tobacco excise tax share allocated for
the Province of Ilocos Sur under R.A. No. 7171, in conspiracy with co-accused
Charlie "Atong" Ang, Alma Alfaro, Eleuterio Tan a.k.a. Eleuterio Ramos Tan or Mr.
Uy, and Jane Doe a.k.a. Delia Rajas as witnesses by Gov. Luis "Chavit" Singson,
among other witnesses; and
c) by directing, ordering and compelling the Government Service
Insurance System (GSIS) and the Social Security System (SSS) to purchase and
buy a combined total of P681,733,000. shares of stock of Belle Corporation in the
aggregate value of One Billion Eight Hundred Forty Seven Pesos and Fifty
Centavos (P1,847,578,057.50), for the purpose of collecting for his personal gain
and bene t, as in fact he did collect and receive the sum of ONE HUNDRED
EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00),
as commission from said stock purchase; and
d) by unjustly enriching himself in the amount of THREE BILLION TWO
HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(P3,233,104,173.17) comprising his unexplained wealth, acquired, accumulated
and amassed by him under his account name "Jose Velarde" with Equitable PCI
Bank."
Since it is not necessary to prove each criminal act, the inevitable conclusion is that
Mr. Estrada may be convicted of the crime of plunder without the Justices of the
Sandiganbayan "unanimously" deciding which two of the four criminal acts have actually
been committed. In short, all that R.A. No. 7080 requires is that each Justice must be
convinced of the existence of a "combination or series." As to which criminal acts
constitute a combination or series, the Justices need not be in full agreement. Surely, this
would cover-up a wide disagreement among them about just what the accused actually
did or did not do. Stated differently, even if the Justices are not uni ed in their
determination on what criminal acts were actually committed by the accused, which need
not be proved under the law, still, they could convict him of plunder.
Considering that what R.A. No. 7080 punishes is the plurality of criminal acts
indicative of the grand scheme or conspiracy to amass ill-gotten wealth, it is imperative to
focus upon the individual "criminal acts" in order to assure the guilt of the accused of
plunder.
Second, R.A. No. 7080 lumps up into one new offense of plunder six (6) distinct
crimes which by themselves are currently punishable under separate statutes or
provisions of law. The six (6) separate crimes become mere "means or similar schemes"
to commit the single offense of plunder. It bears emphasis that each of the separate
offenses is a crime mala in se. The commission of any offense mala in se is inherently
accompanied by a guilty mind or a criminal intent. 9 Unfortunately, R.A. No. 7080 converted
the six mala in se offenses into one crime which is mala prohibita wherein the intent
becomes insignificant. Upon the commission of the proscribed act, without proof of intent,
the law is considered violated. 1 0 Consequently, even acts recklessly committed ( i.e.
without intent) can be punished by death.
Third, Section 4 mandates that it shall not be necessary for the prosecution to prove
each and every criminal act done by the accused . . . it being su cient to prove beyond
reasonable doubt a pattern of overt or criminal acts. By its own terminology, Section 4
requires that the "pattern" be proved by evidence beyond reasonable doubt. Initially, we
must disassociate the speci c "criminal acts" from the "pattern of criminal acts." These
two phrases do not refer to one and the same thing. Pattern, as de ned in the dictionary,
means an established mode of behavior. 1 1 In the crime of plunder, the existence of a
"pattern" can only be inferred from the specific "criminal acts" done by the accused. Several
queries may be raised to determine the existence of a "pattern." Are these criminal acts
related or tied to one another? Is the subsequent criminal act a mere continuation of the
prior criminal act? Do these criminal acts complement one another as to bring about a
single result? Inevitably, one must focus rst on each criminal act to ascertain the
relationship or connection it bears with the other criminal acts, and from there determine
whether a certain "pattern" exists. But how could "pattern" be proved beyond reasonable
doubt when in the rst place the speci c "criminal acts" from which such pattern may be
inferred are not even required to be proved?
And fourth, plunder is a very serious offense. What is at stake under the law is not
only the liberty of the accused but his life and property as well. Thus, it will be extremely
unjust to lessen the prosecution's burden of proof to such a degree not commensurate to
what the accused stands to suffer. If a person will lose his life, justice requires that every
fact on which his guilt may be inferred must be proved beyond reasonable doubt.
Providing a rule of evidence which does not require proof beyond reasonable doubt
to establish every fact necessary to constitute the crime is a clear infringement of due
process. While the principles of the law of evidence are the same whether applied on civil
or criminal trials, they are more strictly observed in criminal cases. 1 2 Thus, while the
legislature of a state has the power to prescribe new or alter existing rules of evidence, or
to prescribe methods of proof, the same must not violate constitutional requirements or
deprive any person of his constitutional rights. 1 3 Unfortunately, under R.A. No. 7080, the
State did not only specify a lesser burden of proof to sustain an element of the crime; it
even dispensed with proof by not considering the speci c "criminal acts" as essential
elements. That it was the clear intention of the legislature is evident from the Senate
deliberation, thus:
"Senator Guingona.
Since it is a series or a scheme, what amount of evidence will, therefore, be
required? Must there be a pattern of the criminal acts? Must there be a
series of briberies, for example? Or, can there be only one?
Senator Tañada.
Under Section 4 of the bill, Mr. President, it is provided that:
"For purposes of establishing the OFFENSE, of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in
furtherance of the scheme or conspiracy to amass, accumulate, or acquire
ill-gotten wealth. . . But, there must be enough evidence "su cient to
establish beyond reasonable doubt a pattern of overt or criminal acts of
the overall unlawful scheme or conspiracy."
So, that is the quantum of evidence that would be required under this
proposal measure.
Senator Guingona.
That is sufficient to establish the prima facie case. 1 4
xxx xxx xxx
Senator Romulo.
That, perhaps, is a good provision of the bill. But, may I ask, Mr. President,
what is in this bill that would insure that there would be a speedier process
by which this crime of plunder would readily and immediately processed
and convicted or acquitted than is now existing in present laws?
Senator Tañada.
Yes, . . . .
Now, on the second point, Mr. President, I believe that what could make
faster and speedier prosecutions of these grafters would be a change that
will be authorized in this bill, at least, in the ling of information against
the perpetrators. Under the existing criminal procedure, as I said earlier,
there can only be one offense charged per information. So, if there is going
to be a series of overt or criminal acts committed by the grafter, then that
would necessitate the ling of so many informations against him. Now, if
this bill becomes a law, then that means that there can be only one
information led against the alleged grafter. And the evidence that will be
required to convict him would not be evidence for each and every
individual criminal act but only evidence su cient to establish the
conspiracy or scheme to commit this crime of plunder. 1 5
xxx xxx xxx
Senator Guingona.
May I just be clari ed Mr. President. In this Section 4, a pattern of the
criminal acts is all that is required. Would this pattern of criminal acts be
also sufficient to establish a prima facie case?
Senator Tañada.
Mr. President, under Section 4, it would not only be su cient to establish a
prima facie case. It would be su cient to establish guilt as long as the
evidence, necessary to establish guilt beyond reasonable doubt is
presented." 1 6
In dispensing with proof of each criminal act, the clear objective of Congress is to
render it less di cult for the prosecution to prove the crime of plunder. While this
presupposes a noble intention, I do not think there is a su cient justi cation. I, too, have
the strong desire to eliminate the sickness of corruption pervading in the Philippine
government, but more than anything else, I believe there are certain principles which must
be maintained if we want to preserve fairness in our criminal justice system. If the
prosecution is not mandated to prove the speci c "criminal acts," then how can it establish
the existence of the requisite "combination or series" by proof beyond reasonable doubt?
II
Another valid constitutional objection to R.A. No. 7080 is the vagueness of the term
"pattern." As stated by Mr. Justice Kapunan, in his Dissent, the concept of "pattern of overt
or criminal acts" embodied in the law was derived by Congress from the RICO (Racketeer
Influenced and Corrupt Organizations) statute. 1 7 I am, therefore, constrained to refer to US
law and jurisprudence. "Pattern" as de ned in the RICO statute means "as requiring at least
two acts of racketeering activity . . . . the last of which occurred within ten years . . . . after
the commission of the prior act of racketeering activity. 1 8
Mr. Justice Kapunan observed that unlike the RICO law, the law on plunder does not
specify a) the number of criminal acts necessary before there could be a "pattern," as well
a s b) the period within which the succeeding criminal acts should be committed. These
failures render the law void for its vagueness and broadness.
Indeed, Congress left much to be desired. I am at a quandary on how many delictual
acts are necessary to give rise to a "pattern of overt or criminal acts" in the crime of
plunder. If there is no numerical standard, then, how should the existence of "pattern" be
ascertained? Should it be by proximity of time or of relationship? May an act committed
two decades after the prior criminal act be linked with the latter for the purpose of
establishing a pattern?
It must be remembered that plunder, being a continuous offense, the "pattern of
overt or criminal acts" can extend inde nitely, i.e., as long as the succeeding criminal acts
may be linked to the initial criminal act. This will expose the person concerned to criminal
prosecution ad infinitum. Surely, it will undermine the purpose of the statute of limitations,
i.e., to discourage prosecution based on facts obscured by the passage of time, and to
encourage law enforcement o cials to investigate suspected criminal activity promptly.
1 9 All these undesirable consequences arise from the fact that the plunder law fails to
provide a period within which the next criminal act must be committed for the purpose of
establishing a pattern. I believe R.A. No. 7080 should have provided a cut-off period after
which a succeeding act may no longer be attached to the prior act for the purpose of
establishing a pattern. In reiteration, the RICO law de nes "pattern" as requiring at least
two acts of racketeering activity . . . the last of which occurred within ten years. . . after the
commission of the prior act of racketeering activity. Such limitation prevents a subsequent
racketeering activity, separated by more than a decade from the prior act of racketeering,
from being appended to the latter for the purpose of coming up with a pattern. We do not
have the same safeguard under our law.
Signi cantly, in Sedima, S.P.R.L v. Imrex Co . , 2 0 the United States Supreme Court
expressed dismay that Congress has failed to properly de ne the term "pattern" at all but
has simply required that a "pattern" includes at least two acts of racketeering activity. The
Court concluded that "pattern" involves something more than two acts, and after
examining RICO's legislative history, settled on "continuity plus relationship" as the
additional requirement.
Years later, in H.C. Inc. v. The Northwestern Bell Tel. , 2 1 the U.S. Supreme Court
conceded that "the continuity plus relationship" means different things to different circuits.
Nevertheless, it held rm to the Sedima requirement that "in order to establish a pattern,
the government has to show "that the racketeering predicates are related, and that they
amount to or pose a threat of continued criminal activity." Justice Scalia, in a concurring
opinion in which three other justices joined, derided the "relationship" requirement as not
"much more helpful [to the lower courts] than telling them to look for a "pattern" — which is
what the statute already says." As for the continuity requirement, Justice Scalia said:
"Today's opinion has added nothing to improve our prior guidance, which has created a
kaleidoscope of circuit positions, except to clarify that RICO may in addition be violated
when there is a 'threat of continuity.' It seems to me this increases rather than removes the
vagueness. There is no reason to believe that the Court of Appeals will be any more uni ed
in the future, than they have in the past, regarding the content of this law."
Aware of the ambiguities present in the RICO law the drafters of the New York
"Organized Crime Control Act" (a progeny of RICO) now more speci cally de ne "pattern of
criminal activity" as conduct engaged in by persons charged in an enterprise corruption
count constituting three or more criminal acts that (a) were committed within ten years
from the commencement of the criminal action; (b) are neither isolated incidents, nor so
closely related and connected in point of time or circumstance of commission as to
constitute a criminal offense or criminal transaction, as those terms are de ned in section
40.10 of the criminal procedure law; and (c) are either: (i) related to one another through a
common scheme or plan or (ii) were committed, solicited, requested, importuned or
intentionally aided by persons acting with the mental culpability required for the
commission thereof and associated with or in the criminal enterprise. 2 2
If the term "pattern" as de ned in the RICO law is continuously subjected to
constitutional attacks because of its alleged vagueness, how much more the term
"pattern" in R.A. No. 7080 which does not carry with it any limiting de nition and can only
be read in context. Indeed, there is no doubt that the invalidity of the law based on
vagueness is not merely debatable — it is manifest. Thus, this Court should declare R.A.
No. 7080 unconstitutional.
III
Lastly, the terms "combination" and "series" are likewise vague. Hence, on the basis
of the law, a conviction of an accused cannot be sustained. A statute that does not provide
adequate standards for adjudication, by which guilt or innocence may be determined,
should be struck down. 2 3 Crimes must be de ned in a statute with appropriate certainty
and de niteness. 2 4 The standards of certainty in a statute prescribing punishment for
offenses are higher than in those depending primarily on civil sanctions for their
enforcement. 2 5 A penal statute should therefore be clear and unambiguous. 2 6 It should
explicitly establish the elements of the crime which it creates 2 7 and provide some
reasonably ascertainable standards of guilt. 2 8 It should not admit of such a double
meaning that a citizen may act on one conception of its requirements and the courts on
another. 2 9
I agree with the observation of Mr. Justice Kapunan that "resort to the dictionary
meaning of the terms 'combination' and 'series' as well as recourse to the deliberations of
the lawmakers only serve to prove that R.A. No. 7080 failed to satisfy the requirement of
the Constitution on clarity and de niteness." The deliberations of our law-makers, as
quoted verbatim in Justice Kapunan's Dissent, indeed, failed to shed light on what
constitute "combination" and "series." 3 0
I believe this is fatal.
The essence of the law on plunder lies in the phrase "combination or series of overt
or criminal acts." As can be gleaned from the Record of the Senate, the determining factor
of R.A. 7080 is the plurality of the overt acts or criminal acts under a grand scheme or
conspiracy to amass ill-gotten wealth. Thus, even if the amassed wealth equals or exceeds
fty million pesos, a person cannot be prosecuted for the crime of plunder if there is only a
single criminal act. 3 1
Considering that without plurality of overt or criminal acts, there can be no crime of
plunder, due process of law demands that the terms "combination" and "series" be de ned
with exactitude in the law itself. Equating these terms with mere "plurality" or "two or
more," is inaccurate and speculative. For one, a "series" is a group of usually three or more
things or events standing or succeeding in order and having like relationship to each other.
3 2 The Special Prosecution Division Panel de nes it as "at least three of the acts
enumerated under Section 1(d) thereof." 3 3 But it can very well be interpreted as only one
act repeated at least three times. And the O ce of the Solicitor General, invoking the
deliberations of the House of Representatives, contends differently. It de nes the term
series as a "repetition" or pertaining to "two or more." 3 4 The disparity in the Prosecution
and OSG's positions clearly shows how imprecise the term "series" is.
This should not be countenanced. Crimes are not to be created by inference. 3 5 No
one may be required, at the peril of life, liberty or property to guess at, or speculate as to,
the meaning of a penal statute. 3 6 An accused, regardless of who he is, is entitled to be
tried only under a clear and valid law.
Respondents argue that the vagueness of R.A. No. 7080, as amended, is cured when
the Information clearly speci ed the acts constituting the crime of plunder. I do not agree.
It is the statute and not the accusation under it that prescribes the rule to govern conduct
and warns against aggression. 3 7 If on its face, a statute is repugnant to the due process
clause on account of vagueness, speci cation in the Information of the details of the
offense intended to be charged will not serve to validate it. 3 8
On the argument that this Court may clarify the vague terms or explain the limits of
the overbroad provisions of R.A. No. 7080, I should emphasize that this Court has no
power to legislate.
Precision must be the characteristic of penal legislation. For the Court to de ne
what is a crime is to go beyond the so-called positive role in the protection of civil liberties
or promotion of public interests. As stated by Justice Frankfurter, the Court should be
wary of judicial attempts to impose justice on the community; to deprive it of the wisdom
that comes from self-in icted wounds and the strengths that grow with the burden of
responsibility. 3 9
A statute which is so vague as to permit the in iction of capital punishment on acts
already punished with lesser penalties by clearly formulated law is unconstitutional. The
vagueness cannot be cured by judicial construction.
Also, not to be glossed over is the fact that R.A. 7080, as amended, is a novel law.
Hence, there is greater need for precision of terms. The requirement that law creating a
crime must be su ciently explicit to inform those subject to it, what conduct on their part
will render them liable to its penalties, has particular force when applied to statutes
creating new offenses. For that reason, those statutes may not be generally understood, or
may be subject of generally accepted construction. 4 0
Today, I recall what James Madison remarked in presenting the Bill of Rights to the
United States Congress in 1789: "if they (Bill of Rights) are incorporated into the
Constitution, independent tribunals of justice will consider themselves in a peculiar manner
the guardians of those rights; they will be an impenetrable bulwark against every
assumption of power in the legislative or executive; and they will be naturally led to resist
every encroachment upon rights expressly stipulated for in the Constitution by the
declaration of rights." 4 1 Time did not render his foreboding stale. Indeed, in every
constitutional democracy, the judiciary has become the vanguard of these rights. Now, it
behooves this Court to strike an unconstitutional law. The result, I concede, may not be
politically desirable and acceptable, nevertheless, I am fully convinced that it is
constitutionally correct.
To recapitulate, R.A. No. 7080 is unconstitutional because it violates the DUE
PROCESS CLAUSE of the Constitution. The vagueness of its terms and its incorporation of
a rule of evidence that reduces the burden of the prosecution in proving the crime of
plunder tramples upon the basic constitutional rights of the accused.
In ne, I can only stress that the one on trial here is not Mr. Estrada, but R.A. No.
7080. The issue before this Court is not the guilt or innocence of the accused, but the
constitutionality of the law. I vote to grant the petition, not because I favor Mr. Estrada, but
because I look beyond today and I see that this law can pose a serious threat to the life,
liberty and property of anyone who may come under its unconstitutional provisions. As a
member of this Court, my duty is to see to it that the law conforms to the Constitution and
no other. I simply cannot, in good conscience, fortify a law that is patently unconstitutional.
WHEREFORE, I vote to grant the petition.
Footnotes
1. Approved 12 July 1991 and took effect 8 October 1991.
2. Approved 13 December 1993 and took effect 31 December 1993.
3. Lim v. Pacquing, et al., G.R. No. 115044, 27 January 1995, 240 SCRA 644.
4. G.R. No. 87001, 4 December 1989, 179 SCRA 828.
5. Yu Ching Eng v. Trinidad, 47 Phil. 385, 414 (1925).

6. 82 C.J.S. 68, p. 113; People v. Ring, 70 P.2d 281, 26 Cal. App. 2d Supp. 768.
7. Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June 1996, 257 SCRA
430, 448.
8. PLDT v. Eastern Telecommunications Phil., Inc., G.R. No. 943774, 27 August 1992, 213
SCRA 16, 26.
9. Resolution of 9 July 2001.
10. See People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195-196.
11. Ibid.
12. State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR2d 750.
13. Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L.Ed. 328 (1926) cited in Ermita-
Malate Hotel and Motel Operators Ass'n. v. City Mayor, 20 SCRA 849, 867 (1967).
14. NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L.Ed 325, 338 (1958); Shelton v. Tucker
364 U.S. 479, 5 L.Ed.2d 231 (1960).
15. Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed.2d 408, 413 (1972) (internal quotation
marks omitted).
16. United States v. Salerno, 481 U.S. 739, 745 95 L.Ed.2d 697, 707 (1987); see also People
v. De la Piedra, G.R. No. 121777, 24 January 2001.
17. 413 U.S. 601, 612-613, 37 L.Ed 2d 830, 840-841 (1973).
18. United States v. Salerno, supra.
19. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71
L.Ed.2d 362, 369 (1982).
20. United States v. Raines, 362 U.S. 17, 21, 4 L.Ed.2d 524, 529 (1960). The paradigmatic
case is Yazoo & Mississippi Valley RR v. Jackson Vinegar Co., 226 U.S. 217, 57 L.Ed. 193
(1912).
21. G. Gunther & K. Sullivan, Constitutional Law 1299 (2001).
22. Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 Harv.
L. Rev. 1321 (2000) arguing that, in an important sense, as applied challenges are the
basic building blocks of constitutional adjudication and that determinations that
statutes are facially invalid properly occur only as logical outgrowths of ruling on
whether statutes may be applied to particular litigants on particular facts.
23. Constitution, Art. VIII, §1 and 5. Compare Angara v. Electoral Commission , 63 Phil. 139,
158 (1936); "[T]he 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 be
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.
24. 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971). Accord, United States v. Raines, 362
U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469,
106 L.Ed.2d 388 (1989).
25. Broadrick v. Oklahoma, 413 U.S. at 613, 37 L.Ed.2d at 841; National Endowment for the
Arts v. Finley, 524 U.S. 569, 580 (1998).
26. FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L.Ed.2d 603 (1990); Cruz v. Secretary
of Environment and Natural Resources, G.R. No. 135385, 6 December 2000 (Mendoza, J.,
Separate Opinion).
27. United States v. National Dairy Prod. Corp ., 372 U.S. 29, 32-33, 9 L.Ed.2d 561, 565-6
(1963).
28. G.R. No. 57841, 30 July 1982, 115 SCRA 793.
29. People v. Ganguso, G.R. No. 115430, 23 November 1995, 250 SCRA 268, 274-275.
30. People v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA 349, 360.
31. Then Senate President Jovito R. Salonga construed in brief the provision, thuswise: "If
there are let's say 150 crimes all in all, criminal acts, whether bribery, misappropriation,
malversation, extortion, you need not prove all those beyond reasonable doubt. If you
can prove by pattern, let's say 10, but each must be proved beyond reasonable doubt,
you do not have to prove 150 crimes. That's the meaning of this (Deliberations of
Committee on Constitutional Amendments and Revision of Laws, 15 November 1988,
cited in the Sandiganbayan Resolution of 9 July 2001).
32. TSN, 18 September 2001, pp. 115-121.
33. 4 Record of the Senate 1316, 5 June 1989.
34. Ibid.
35. Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929).
36. 267 SCRA 682, 721-2 (1997) (emphasis added).
37. Black's Law Dictionary 959 (1990); Lozano v. Martinez, 146 SCRA 324, 338 (1986).
38. G.R. No. 117472, 7 February 1997, 267 SCRA 682.
KAPUNAN, J., dissenting:
1. Joaquin G. Bernas, S.J., Prejudging the Supreme Court, in his column "Sounding Board",
Today, September 26, 2001, p. 6.
2. An Act to Impose the Death Penalty on Certain Heinous Crimes, amending for that
purpose the Revised Penal Code and Other Special Penal Laws, namely: Dangerous
Drugs Act, Crime of Plunder, and Anti-Carnapping Act (1993).
3. 87 O.G. 38, pp. 5488-5490 (1991).
4. Annex "C" of Petition.

5. Amended Petition, p. 8.
6. Section 1(d).
7. Memorandum for Petitioner, p. 11.
8. Amended Petition., pp. 13-17; Memorandum for Petitioner, pp. 16-24.
According to petitioners:
a. While American federal courts in the First Circuit in the U.S. have de ned " series
of acts or transactions" for purposes of Rule 8(b) of the Federal Rules of Criminal
Procedure to refer only to "joint criminal enterprise" [U.S. v. Turkette (1980, CA 1 Mass.
632 F 2d 896)] under a common scheme [U.S. v. J. Tirocchi & Sons, Inc. (1960 DC RI)
187 F. Supp. 778], the courts in the Second Circuit insist that "series of acts and
transactions" should mean that there should be "connection between the offenses"
[U.S. v. Charney (1962, SD BY) 211 F. Supp. 904] or " direct relationship between
counts" [U.S. v. Haim (1963 SD NY), 218 F. Supp. 922] or " substantial identity of facts
and participants" [U.S. v. Olin Corp. (1979, WD NY), 465 S. Supp. 1120].
b. Still on the U.S. Federal courts, the courts in the Third Circuit de ne "series of
acts" following the "direct relationship between acts" standard of the Second Circuit;
for example, U.S. v. Stafford (1974, ED Pa.), 382 F. Supp. 1401) using " factual
relationship between acts"; U.S. v. Slawik (1975, DC Del.) 408 F. Supp. 190 using
"connection between charges"; U.S. v. Cohen (1978, ED Pa.) 444 F. Supp. 1314, using
"direct relationship between offenses"; and U.S. v. Serubo (1978, Ed Pa.) 460 F. Supp.
689), using "direct relationship between offenses," but the federal courts in the Fourth
Circuit follow the "common scheme" standard, as in Rakes v. U.S. (169 F2d 730).
c. The Sixth Circuit courts de ne "series" to mean " common scheme" (e.g. U.S. v.
Russo (480 F2d 1228) and so do the courts in the Seventh Circuit (e.g. U.S. v. Scott ,
(1969, CA 7 Ill.) (413 F2d 932), and Eighth Circuit Courts (e.g. Haggard v. U.S. (1966, CA
8 Mo.) 369 F2d 968), but the courts in the Fifth Circuit follow the "close connection
between acts" standard, (e.g. U.S. v. Laca (1974 CA 5 Tex) 593 F2d 615) or "substantial
identity of facts and participants" (e.g. U.S. v. Levine (1977 CA 5 Fla.) 546 F2d 658;
U.S. v. Marionneaux (1975 CA 5 La.) 514 F2d 1244) together with federal courts in the
Ninth Circuit (e.g. U.S. v. Ford (1980 CA 9 Cal.) 632 F2d 1354) and those in the District
of Columbia Circuit (U.S. v. Jackson (1977) 562 F2d 789; U.S. v. Bachman , (1958 DC
Dist. Col.) 164 F. Suppl. 898). [Amended Petition, pp. 14-16; Memorandum for
Petitioner, pp. 20-22.]
9. Amended Petition, pp. 18-19; Memorandum for Petitioner, pp. 34-45.
10. Id., at 13-14; Id., at 19.
11. Id., at 16-17; Id., at 23.
12. Id., at 25-34.
13. Id., at 27-31; Id., at 66-76.
14. Id., at 27-35; Id., at 76-83.
15. Comment, pp. 11-13; Memorandum for Respondents, pp. 30-32.
16. Ibid.; Id., at 49-50.
17. Id., at 13-25; Id., at 58-59.
18. Id., at 28-33; Id., at 70-77.
19. Id., at 33-34.
20. Comment, pp. 37-42; Memorandum for Respondents, pp. 82-84.
21. Reply to Comment, p. 12.
22. Id., at 14-15.
23. TSN, Hearing on oral arguments, September 18, 2001, pp. 2-3.
24. Tan vs. People, 290 SCRA 117 (1998); see also Padilla vs. Court of Appeals, 269 SCRA
402 (1997).
25. Morfe vs. Mutuc, 22 SCRA 424 (1968).
26. State v. Vogel, 467 N.W.2d 86 (1991).
27. See Id.
28. ART. III, Sections 1, 12 and 14.

In Ermita-Malate Hotel and Motel Operators Association, Inc. vs. City Mayor of Manila
(20 SCRA 849 [1967]), the Court expounded on the concept of due process as follows:
. . . What then is the standard of due process which must exist both as a procedural
and a substantive requisite to free the challenged ordinance, or any governmental
action for that matter, from the imputation of legal in rmity su cient to spell its
doom? It is responsiveness to the supremacy of reason, obedience to the dictates of
justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the
due process requirement, o cial action, to paraphrase Cardozo, must not outrun the
bounds of reason and result in sheer oppression. Due process is thus hostile to any
o cial action marred by lack of reasonableness. Correctly it has been identi ed as
freedom from arbitrariness. It is the embodiment of the sporting idea of fair play. It
exacts fealty 'to those strivings for justice' and judges the act of o cialdom of
whatever branch 'in the light of reason drawn from considerations of fairness that
re ect [democratic] traditions of legal and political thought.' It is not a narrow or
'technical conception with xed content unrelated to time, place and circumstances,'
decisions based on such a clause requiring a 'close and perceptive inquiry into
fundamental principles of our society." Questions of due process are not to be treated
narrowly or pedantically in slavery to form or phrases (at pp. 860-861).
29. ART. III, Section 14.

30. People v. Nazario, 165 SCRA 186 (1988).
31. 347 U.S. 612 (1954).
32. Id., at 617.
33. Kolender v. Lawson, 461 U.S. 352 (1983).
34. Ibid.
35. See Grayned v. City of Rockford, 408 U.S. 104 (1972).
36. Ibid.
37. Kolender, supra.
38. Ibid.
39. Section 2.
40. See FCC v. American Broadcasting Co., 347 US 284 (1954).

41. See Concurring Opinion of Justice Vicente V. Mendoza, pp. 10-12.
42. RELATIONS BETWEEN VAGUENESS AND OVERBREADTH — THE VOID FOR VAGUE
DOCTRINE, American Constitutional Law (2nd) (1998), p. 1033 citing Lanzetta v. New
Jersey, 306 U.S. 451 (1939). See also Spring eld Armory , Inc. v. City of Columbus , 29
F.3d 250, 1994 FED App 239P (6th Cir. 1994); Connally v. General Construction
Company, 269 U.S. 385 (1926); Lambert v. California , 355 U.S. 225 (1957); Kolender v.
Lawson, supra.
43. THE OVERBREADTH DOCTRINE, Treatise on Constitutional Law — Substance and
Procedure, Vol. IV (1992), pp. 25-31; 36-37.
44. See Note 42.
45. Springfield Armory, Inc. v. City of Columbus, supra.
46. See Concurring Opinion of Justice Vicente V. Mendoza, pp. 10-12.
47. RELATIONS BETWEEN VAGUENESS AND OVERBREADTH — THE VOID FOR VAGUE
DOCTRINE, American Constitutional Law (2nd) [1998], p. 1033 citing Lanzetta v. New
Jersey, 306 U.S. 451 [1939]. See also Spring eld Armory, Inc. v. City of Columbus , 29
F.3d 250, 1994 FED App 239P [6th Cir. 1994]; Connally v. General Construction
Company, 269 U.S. 385 [1926]; Lambert v. California , 355 U.S. 225 [1957]; Kolender v.
Lawson, 461 U.S. 352 [1953].
48. 413 U.S. 601 [1973].
49. VAGUENESS AND OVERBREADTH, AN OVERVIEW, Lockhart et al. Constitutional Law,
Cases-Comments-Questions [6th Ed, 1986], p. 740.
50. Springfield v. Oklahoma, supra; Kolender v. Lawson, supra.
51. Supra.
52. Supra.
53. At p. 253.
54. See Concurring Opinion of Justice Mendoza, p.5.
55. See Decision, p. 8.
56. The transcript of Stenographic Notes of the Hearing in Criminal Case No. 26561 on
June 13, 2001, p. 16 reads:
PJ Garchitorena:
xxx xxx xxx
But you see, I will provoke you. Forgive us for provoking you, but we ourselves have
been quarreling with each other in finding ways to determine what we understand by
plunder.
xxx xxx xxx
57. Infra.
58. In his column on the April 25, 2001 issue of Today , Fr. Bernas stated:
xxx xxx xxx
One question that has come up is whether a public o cial can commit more than one
crime of plunder during his or her incumbency. There are those who hold that the law
describes only one crime and that it cannot be split into several offenses. This would
mean that the prosecution must weave a web of offenses out of the six ways of
illegally amassing wealth and show how the various acts reveal a combination or
series of means or schemes which reveal a pattern of criminality. My understanding is
that under such a reading the six ways of amassing wealth should not be seen as
separate from each other but must be shown to be parts of one combination or
scheme. The interrelationship of the separate acts must be shown.
An alternate reading of the law, which is perhaps easier to prove but harsher on the
accused, is that each one of the six ways of amassing wealth can constitute plunder if
the total take adds up to the required P75 million.
xxx xxx xxx
There is another provision in the law which I nd intriguing. It says: "For purposes of
establishing the crime of plunder, it shall not be necessary to prove each and every
criminal act done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being su cient to establish beyond
reasonable doubt a pattern of overt criminal acts indicative of the overall unlawful
scheme or conspiracy." Is this an indication that there is only one crime of plunder
under the statute?
Fr. Bernas also discussed the vagueness of "combination" or "series" in the July 1,
2001 issue of Today:
Taken individually, the elements that are supposed to constitute the series can be well
understood. But now the Estrada lawyers are asking when precisely these elements
constitute a "combination or series." The question is important because of an
intriguing provision in the plunder law: "For purposes of establishing the crime of
accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire
ill-gotten wealth, it being su cient to establish beyond reasonable doubt a pattern of
overt criminal acts indicative of the overall unlawful scheme or conspiracy." How can
you have a "series of criminal acts if the elements that are supposed to constitute the
series are not proved to be criminal?
59. Decision, p. 13.
60. Id., at 15.
61. Decision, pp. 13-15.
62. RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE ON JUSTICE AND
COMMITTEE ON CONSTITUTIONAL AMENDMENTS (S. No. 733 & H. No. 22752), May 7,
1991, pp. 39-40.
64. RECORDS OF THE SENATE, June 6, 1989, pp. 92-93.

65. RECORDS OF THE SENATE, June 5, 1989, pp. 34.
66. Reply to Comment, p. 33.
67. Ibid.
68. Id.
69. Id.
70. RECORD OF THE JOINT CONFERENCE MEETING COMMITTEE ON JUSTICE AND
COMMITTEE ON CONSTITUTIONAL AMENDMENTS (S. No. 733 & H. No. 22752), May 7,
1991, p. 40.
71. Ibid.
72. Id.
73. Id.
74. Id.
75. Id., at 40-41.
76. Id., at 42-43.
77. Article III of the Constitution provides:
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.
xxx xxx xxx
Sec. 19 (1) Excessive nes shall not be imposed, nor cruel, degrading or inhuman
punishment in icted . Neither shall death penalty be imposed unless, for compelling
reasons involving heinous crimes, the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced to reclusion perpetua. (Emphasis supplied.)
78. Reply to Comment, pp. 16-18; Memorandum for Petitioner, pp. 62-63.
79. Article 335, Revised Penal Code.
81. Rubi vs. Provincial Board of Mindoro, 39 Phil. 660 (1919).
82. See Article XIII, Section 1 and 2, Constitution.
83. Id., at Section 6.
88. See Article XIV, Constitution.
89. Comment, p. 13.

91. Alpha Investigation and Security Agency, 272 SCRA 653 (1997).
92. 11 Oxford English Dictionary 357 (2d ed 1989).
93. Webster's Third New International Dictionary, p. 2029 (1976).
94. H. J. Inc., et al. v. Northwestern Bell Telephone Co., et al., 492 US 229 (1989).
95. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985).
96. Supra.
97. Id., at 236.
98. Justice Scalia was joined by Chief Justice Rehnquist, Justices O'Connor and Kennedy.
99. Atkinson, Jeff. "RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS," § § 1961-
68: Broadest of the Federal Criminal Statutes, 69 JOURNAL OF CRIMINAL LAW AND
CRIMINOLOGY 1 (1978).
100. 18 U.S.C. § 1962 (1970):
(a) It shall be unlawful for any person who has received any income derived,
directly or indirectly, from a pattern of racketeering activity or through collection of an
unlawful debt in which such person has participated as a principal within the meaning
of Section 2, Title 18, United States Code, to use or invest, directly or indirectly, any part
of such income, or the proceeds of such income, in acquisition of any interest in, or the
establishment or operation of, any enterprise which is engaged in, or the activities of
which effect, interstate or foreign commerce. A purchase of securities on the open
market for purposes of investment, and without the intention of controlling or
participating in the control of the issuer, or of assisting another to do so, shall not be
unlawful under this subsection if the securities of the issuer held by the purchaser, the
members of his immediate family, and his or their accomplices in any pattern or
racketeering activity or the collection of an unlawful debt after such purchase do not
amount in the aggregate to one percent of the outstanding securities of any one class,
and do not confer, either in law or in fact, the power to elect one or more directors of
the issuer.
(b) It shall be unlawful for any person through a pattern of racketeering activity or
through collection of an unlawful debt to acquire or maintain, directly or indirectly, any
interest in or control of any enterprise which is engaged in, or the activities of which
affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or associated with any
enterprise engaged in, or the activities of which affect, interstate or foreign commerce,
to conduct or participate, directly or indirectly, in the conduct of such enterprise's
affairs through a pattern of racketeering activity or collection of unlawful debt.
(d) It shall be unlawful for any person to conspire to violate any of the provisions
of subsections (a), (b), or (c) of this section.
101. Id., at § 1961 (5).
102. See RECORDS JOINT CONFERENCE COMMITTEE MEETING, May 7, 1991, p. 12.
103. Northwestern, supra.

104. Id., at 239:
RICO's legislative history reveals Congress' intent that to prove a pattern of
racketeering activity a plaintiff or prosecutor must show that the racketeering
predicates are related, and that they amount to or pose a threat of continued criminal
activity. Citing 116 Cong Rec 18940 (1970).
105. Id., at 240.
106. Id., at 241.
107. Separate Concurring Opinion, pp. 255-256.
108. The issue involved in this case was whether Northwestern Bell Telephone Co., Inc. was
liable under the RICO Law for bribing the members of the Minnesota Public Utilities
Commission to approve rates for the company in excess of a fair and reasonable
amount. The U.S. Supreme Court reversed the District Court of Minnesota and held that
(1) to prove a "pattern of racketeering activity" within the meaning of RICO, it must be
shown that the predicate acts of racketeering activity are related and that they amount to
or pose a threat of continued criminal activity; (2) it is not only by proof of multiple
schemes that continuity of criminal activity may be shown; (3) a pattern of racketeering
activity may be shown regardless of whether the racketeering activities are characteristic
of "organized crime"; and (4) remand was necessary because, under the facts alleged, it
might be possible to prove that the defendants' actions satis ed the requirements of
relatedness and continuity and they thus constituted a "pattern of racketeering activity".
109. See United States v. Masters , 924 F.2d 1362 (7th Cir.), cert. denied 11 S. Ct. 2019
(1991); United States v. Pungitore , 910 F.2d 1084 (3rd Cir. 1990), cert. denied, 11 S.Ct.
2009-11 (1991); United States v. Angiulo, 897 F.2d 1169 (1st Cir.), cert. denied, 111 S. Ct.
130 (1990). All cases cited in Moran, Christopher, infra.
110. Bauerschmidt, Joseph E., Mother of Mercy — Is this the End of RICO? — Justice Scalia
Invites Constitutional Void-for-Vagueness Challenge to RICO "Pattern," 65 NOTRE DAME
LAW REVIEW 1106 (1990).
111. Moran, Christopher. Is the "Darling" in Danger? "Void for Vagueness" — The
Constitutionality of the RICO Pattern Requirement, 36 VILLANOVA LAW REVIEW 1697
(1991) citing:
COLO. REV. STAT. § 18-17-103(3): "Pattern of racketeering activity" means engaging in
at least two acts of racketeering activity which are related to the conduct of the
enterprise, if at least one of such acts occurred in this state after July 1, 1981, and if
the last of such acts occurred within ten years (excluding any period of imprisonment)
after a prior act of racketeering activity.
CONN. GEN. STAT. ANN. § 53-394(e) (West 1985): "Pattern of racketeering activity"
means engaging in at least two incidents of racketeering activity that have the same or
similar purposes, results, participants, victims or methods of commission or otherwise
are interrelated by distinguishing characteristics, including a nexus to the same
enterprise, and are not isolated incidents, provided at least one of such incidents
occurred after the effective date of this act and that the last of such incidents occurred
within five years after a prior incident of racketeering conduct.
GA. CODE ANN. § 16-14-3(8) (Supp. 1991): "Pattern of racketeering activity" means
engaging in at least two incidents of racketeering activity that have the same or similar
intents, results, accomplices, victims, or methods of commission or otherwise are
interrelated by distinguishing characteristics and are not isolated incidents, provided at
least one of such incidents occurred after July 1, 1980, and that the last of such
incidents occurred within four years, excluding any periods of imprisonment, after the
commission of a prior incident of racketeering activity.
IDAHO CODE § 18-7803(d) (1987): "Pattern of racketeering activity" means engaging in
at least two (2) incidents of racketeering conduct that have the same or similar intents,
results, accomplices, victims, or methods of commission, or otherwise are interrelated
by distinguishing characteristics and are not isolated incidents, provided at least one
(1) of such incidents occurred after the effective date of this act and that the last of
such incidents occurred within ve (5) years after a prior incident of racketeering
conduct.
IND. CODE ANN. § 35-45-6-1 (West 1986): "Pattern of racketeering activity" means
engaging in at least two (2) incidents of racketeering activity that have the same or
similar intent, result, accomplice, victim, or method of commission, or that are
otherwise interrelated by distinguishing characteristics [sic] that are not isolated
incidents. However, the incidents are a pattern of racketeering activity only if at least
one (1) of the incidents occurred after August 31, 1980, and if the last of the incidents
occurred within five (5) years after a prior incident of racketeering activity.
LA. REV. STAT. ANN. § 15:1352 (C) (West Supp. 1992): "Pattern of drug racketeering
activity" means engaging in at least two incidents of drug racketeering activity that
have the same or similar intents, results, principals, victims, or methods of commission
or otherwise are interrelated by distinguishing characteristics and are not isolated
incidents, provided at least one of such occurs after a prior incident of drug
racketeering activity.
MISS. CODE ANN. § 97-43-3(d) (Supp 1989): "Pattern of racketeering activity" means
engaging in at least two (2) incidents of racketeering conduct that have the same or
similar intents, results, accomplices, victims, or methods of commission or otherwise
are interrelated by distinguishing characteristics and are not isolated incidents,
provided at least one (1) of such incidents occurred after the effective date of this
chapter and that the last of such incidents occurred within ve (5) years after a prior
incident of racketeering conduct.
N.C. GEN. STAT. § 75D-3(b) (1990): "Pattern of racketeering activity means engaging
in at least two incidents of racketeering activity that have the same or similar purposes,
results, accomplices, victims or methods of commission or otherwise are interrelated
by distinguishing characteristics and are not isolated and unrelated incidents, provided
at least one of such incidents occurred after October 1, 1986, and that at least one
other of such incidents occurred within a four-year period of time of the other,
excluding any periods of imprisonment, after the commission of prior incident of
racketeering activity.
OR. REV. STAT. § 166.715(4) (1990): "Pattern of racketeering activity" means engaging
in at least two incidents of racketeering activity that have the same or similar intents,
results, accomplices, victims, or methods of commission or otherwise are interrelated
by distinguishing characteristics, including a nexus to the same enterprise, and are not
isolated incidents, provided at least one of such incidents occurred after November 1,
1981, and that the last of such incidents occurred within ve years after a prior
incident of racketeering activity.
TENN. CODE ANN. § 39-12-203(6) (1991): "Pattern of racketeering activity" means
engaging in at least two (2) incidents of racketeering activity that have the same or
similar intents, results, accomplices, victims or methods of commission or otherwise
are interrelated by distinguishing characteristics and are not isolated incidents;
provided, that at least one (1) of such incidents occurred after July 1, 1986, and that
the last of such incidents occurred within two (2) years after a prior incident of
racketeering conduct.
WASH. REV. CODE ANN. § 9A.82.010(15) (1988): "Pattern of criminal pro teering
activity" means engaging in at least three acts of criminal pro teering, one of which
occurred after July 1, 1985, and the last of which occurred within ve years, excluding
any period of imprisonment, after the commission of the earliest act of criminal
pro teering. In order to constitute a pattern, the three acts must have the same or
similar intent, results, accomplices, principals, victims or methods of commission, or be
otherwise interrelated by distinguishing characteristics including a nexus to the same
enterprise, and must not be isolated events.
112. Id., citing:
CAL. PENAL CODE § 186.2(b) (West 1988): "Pattern of criminal pro teering activity"
means engaging in at least two incidents of criminal pro teering, as de ned by this
act, which meet the following requirements: (1) Have the same or similar purpose,
result, principals, victims or methods of commission, or are otherwise interrelated by
distinguishing characteristics[;] (2) Are not isolated events[; and] (3) Were committed as
criminal activity of organized crime.
113. Id., citing:
DEL. CODE ANN. Tit. 11. § 1502(5) (1987): "Pattern of racketeering activity" shall mean
2 or more incidents of conduct: a. That: 1. Constitute racketeering activity; 2. Are
related to the affairs of the enterprise; 3. Are not so closely related to each other and
connected in point of time and place that they constitute a single event; and b. Where:
1. At least 1 of the incidents of conduct occurred after July 9, 1986; 2. The last incident
of conduct occurred within 10 years after a prior occasion of conduct . .
OHIO REV. CODE ANN. § 2923.31 (E) (Anderson Supp. 1991): "Pattern of corrupt
activity" means two or more incidents of corrupt activity, whether or not there has been
a prior conviction, that are related to the affairs of the same enterprise, are not isolated,
and are not so closely related to each other and connected in time and place that they
constitute a single event. At least one of the incidents forming the pattern shall occur
on or after January 1, 1986. Unless any incident was an aggravated murder or murder,
the last incidents forming the pattern shall occur within six years after the commission
of any prior incident forming the pattern, excluding any period of imprisonment served
by any person engaging in the corrupt activity.
OKLA. STAT. ANN. tit. 22, § 1402(5) (West Supp. 1992): Pattern of racketeering
activity" means two or more occasions of conduct: a. that include each of the
following: (1) constitute racketeering activity, (2) are related to the affairs of the
enterprise, (3) are not isolated, (4) are not so closely related to each other and
connected in point of time and place that they constitute a single event, and b. where
each of the following is present: (1) at least one of the occasions of conduct occurred
after November 1, 1988, (2) the last of the occasions of conduct occurred within three
(3) years, excluding any period of imprisonment served by the person engaging in the
conduct, of a prior occasion of conduct . . .
WIS. STAT. ANN. § 946.82(3) (West Supp. 1991): "Pattern of racketeering activity"
means engaging in at least 3 incidents of racketeering activity that the same or similar
intents, results, accomplices, victims or methods of commission or otherwise are
interrelated by distinguishing characteristics, provided at least one of the incidents
occurred after April 27, 1982 and that the last of the incidents occurred within 7 years
after the rst incident of racketeering activity. Acts occurring at the same time and
place which may form the basis for crimes punishable under more than one statutory
provision may count for only one incident of racketeering activity.
114. Id., citing:
MINN. STAT. ANN. § 609.902(6) (West Supp. 1992): "Pattern of criminal activity"
means conduct constituting three or more criminal acts that: (1) were committed
within ten years of the commencement of the criminal proceedings; (2) are neither
isolated incidents, nor so closely related and connected in point of time or
circumstance of commission as to constitute a single criminal offense; and (3) were
either: (i) related to one another through a common scheme or plan or shared criminal
purpose or (ii) committed, solicited, requested, importuned, or intentionally aided by
persons acting with the mental culpability required for the commission of the criminal
acts and associated with or in an enterprise involved in these activities.
N.Y. PENAL LAW § 460.10(4) (McKinney 1989): "Pattern of criminal activity" means
conduct engaged in by persons charged in an enterprise corruption count constituting
three or more criminal acts that: (a) were committed within ten years of the
commencement of the criminal action; (b) are neither isolated incidents, nor so closely
related and connected in point in time or circumstance of commission as to constitute
a criminal offense or criminal transaction . . .; and (c) are either: (i) related to one
another through a common scheme or plan or (ii) were committed, solicited, requested,
importuned or intentionally aided by persons acting with the mental culpability
required for the commission thereof and associated with or in the criminal enterprise.
115. Luskin, Robert D. Behold, The Day of Judgment: Is the RICO Pattern Requirement Void
for Vagueness? 64 ST. JOHN'S LAW REVIEW 779 (1990).
116. Memorandum for Petitioner, p. 47; TSN, Oral Arguments, September 18, 2001, see pp.
224-233.

118. See Kolender v. Lawson, supra.
119. 18 U.S.C. § 1961 (5).
120. See U.S. v. Batchelder, 442 US 114, 60 L Ed 2d 755, 99 S Ct 2198 (1979).
121. Through Justice Brennan.
122. Supra.
124. Today, July 1, 2001 issue.
125. In People vs. Echegaray (267 SCRA 682) the word "heinous" was traced to the early
Spartans' word "haineus" which means hateful and abominable. In turn, the word came
from the Greek prefix "haton" indicating acts so hateful or shockingly evil. (at 715)
126. WHEREAS, the crimes punishable by death under this Act are heinous for being
grievous, odious and hateful offenses and which, by reason of their inherent or manifest
wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the
common standards and norms of decency and morality in a just, civilized and ordered
society.

127. Reyes, Luis B. The Revised Penal Code, Book One (13th ed.), p. 56.
128. Petitioner's Memorandum, p. 81.
129. Dennis v. U.S., 314 U.S. 494 (1951).
130. Scales v. U.S., 203 (1961).
131. Smith v. California, 361 U.S. 147 (1959).
132. 342 U.S. 246 (1952).
133. Regalado, Florenz, Criminal Law Conspectus (2001 ed.),161-162.
134. Atty. Rene A. V. Saguisag.
135. Senate Bill No. 733.
136. Tañada and Macapagal vs. Cuenco, 103 Phil. 1093.
137. Commercial National Bank v. Rowe, 666 So. 2d 1312 (1996).
138. 65 Phil. 56 (1937).
139. Id., at 90.
140. See Explanatory Note, Senate Bill No. 733, Records of the Senate, June 1, 1989, pp. 1-
2.
141. See Papachristou v. Jacksonville, 405 U.S. 156 (1972).

142. One of the reliefs sought in the Prayer contained in the Petition (at p. 37) and in
Petitioner's Memorandum (at p. 84) is for the quashal of the Information in Criminal
Case No. 26558 for being null and void.
Double jeopardy attaches only when all of the following circumstances are present: (1)
upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a
valid plea has been entered; and (5) when the accused was acquitted or convicted or
the case was dismissed or otherwise terminated without the express consent of the
accused (Tecson vs. Sandiganbayan, 318 SCRA 80, 89 [1999]).
MENDOZA, J. , concurring:
1. See Estrada v. Desierto , G.R. No. 146710, March 2, 2001; Estrada v. Macapagal-Arroyo,
G.R. No. 146715, March 2, 2001.
2. CONST., ART. II, §27.
3. United States v. National Dairy Prod. Corp ., 372 U.S. 29, 32-33 9 L. Ed. 2d 561, 565-6
(1963) (internal quotation marks omitted).
4. Memorandum for the Petitioner, pp. 4-7.
5. Id. at 11-66.
6. 293 SCRA 161, 166 (1998).
7. 304 U.S. 144, 152, 82 L. Ed. 1234, 1241 (1938) (cases cited omitted).
8. Memorandum for the Petitioner, p. 5.
9. 20 SCRA 849, 865 (1967).
10. Geoffrey R Stone, Content-Neutral Restrictions, 54 UNIV. OF CHI. L., REV. 46, 50-53
(1987).
11. Connally v. General Constr. Co. , 269 U. S. 385, 391, 70 L. Ed. 328 (1926) cited in Ermita-
Malate Hotel and Motel Operators Ass'n v. City Mayor, 20 SCRA 849, 867 (1967).
12. NAACP v. Alabama, 377 U. S. 288, 307, 12 L. Ed. 2d 325, 388 (1958); Shelton v. Tucker ,
364 U. S. 479, 5 L. Ed. 2d 231 (1960).
13. Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413 (1972) (internal quotation
marks omitted).
14. United States v. Salerno , 481 U.S. 739, 745, 95 L. Ed. 2d 697, 707 (1987). See also
People v. De la Piedra, G.R. No. 121777, Jan. 24, 2001.
15. 413 U.S. 601, 612-613, 37 L. Ed. 2d 830, 840-841 (1973).
16. United States v. Salerno, supra.
17. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71
L. Ed. 2d 362, 369 (1982).
18. United States v. Raines, 362 U.S. 17, 21, 4 L. Ed 2d. 524, 529 (1960). The paradigmatic
case is Yazoo & Mississippi Valley RR v. Jackson Vinegar Co. , 226 U.S. 217, 57 L. Ed.
193 (1912).
19. K. SULLIVAN & G. GUNTHER, CONSTITUTIONAL LAW 1299 (14th ed., 2001)
20. Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 HARV
L., REV. 1321 (2000), arguing that, in an important sense, as applied challenges are the
basic building blocks of constitutional adjudication and that determinations that
statutes are facially invalid properly occur only as logical outgrowths of rulings on
whether statutes may be applied to particular litigants on particular facts.
21. CONST., ART. VIII, §§1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139,
158 (1936): "[T]he 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."
22. 401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971). Accord, United States v. Raines, 362 U.
S. 17, 4 L. Ed. 2d 524 (1960); Board of Trustees, State Univ. of N.Y. v. Fox; 492 U.S. 469,
106 L. Ed. 2d. 388 (1989).
23. Broadrick v. Oklahoma, 413 U.S. at 613, 37 L. Ed. 2d at 841; National Endowment for
the Arts v. Finley, 524 U.S. 569, 580 (1998).
24. FW/PBS, Inc. v. City of Dallas , 493 U.S. 223, 107 L. Ed .2d 603 (1990); Cruz v. Secretary
of Environment and Natural Resources, G.R. No. 135385, Dec. 6, 2000 (Mendoza, J.,
Separate Opinion).
25. United States v. National Dairy Prod. Corp ., 372 U.S. 29, 32-33, 9 L. Ed. 2d 561, 565-6
(1963).
26. 269 U. S. 385, 391, 70 L. Ed. 328 (1926) cited in Ermita-Malate Hotel and Motel
Operators Ass'n v. City Mayor, 20 SCRA 849, 867 (1967).
27. Memorandum for the Petitioner, pp. 11-66.
28. 4 RECORD OF THE SENATE 1310, June 5, 1989.
30. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2073 (1993).

31. Deliberations of the Joint Conference Committee on Justice held on May 7, 1991.
32. Deliberations of the Conference Committee on Constitutional Amendments and
Revision of Laws held on Nov. 15, 1988.
33. 80 Phil. 71 (1948).
34. People v. Hernandez, 99 Phil. 515 (1956); People v. Geronimo, 100 Phil. 90 (1956).
35. 269 U.S. 385, 391, 70 L. Ed. 328 (1926) cited in Ermita-Malate Hotel and Motel
Operators Ass'n v. City Mayor, 20 SCRA 849, 867 (1967).
36. Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 459 (1897).
37. Memorandum for the Petitioner, p. 32.

38. See Memorandum for the Respondents, pp. 79-88.
40. Id.
41. Roschen v. Ward, 279 U. S. 337, 339, 73 L. Ed. 722, 728 (1929).
42. 267 SCRA 682, 721-2 (1997) (emphasis added).
43. BLACK'S LAW DICTIONARY 959 (1990); Lozano v. Martinez, 146 SCRA 324, 338 (1986).
44. Memorandum for the Petitioner, pp. 62-63 (emphasis in the original).
PANGANIBAN, J. , concurring:
2. Ibid., p. 66.
3. Id., p. 76.
5. 285 SCRA 504, January 29, 1998, per Francisco, J.

6. GR No. 135294, November 20, 2000, per Kapunan, J.
7. §1(d), RA 7080, as amended.
8. 165 SCRA 186, August 31, 1988, per Sarmiento, J.
9. "Construction is the means by which the Court clari es the doubt to arrive at the true
intent of the law." Agpalo, Statutory Construction, 1990 ed., p. 44; see also Caltex v.
Palomar, 18 SCRA 247, September 29, 1966.
10. See People v. Purisima, 86 SCRA 542, November 20, 1978.
11. These deliberations are quoted in the Comment, pp. 14-15.

12. Record of the Senate, Vol. IV, No. 141, June 6, 1989, at p. 1399; quoted in the Comment,
p. 16.
14. Records of the Senate, Vol. IV, No. 140, June 5, 1989, at p. 1310.
15. See discussion of Senate Bill No. 733 on June 6, 1989.
16. Record of the Joint Conference Meeting — Committee on Justice and Committee on
Constitutional Amendments (S. No. 733 & H. No. 22752), May 7, 1991, pp. 40-43.
17. The relevant portions of the Record are as follows:

"REP. ISIDRO. I am just intrigued again by our de nition of plunder. We say, THROUGH
A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN
SECTION ONE HEREOF. Now when we say combination, we actually mean to say,
if there are two or more means, we mean to say that number one and two or
number one and something else are included, how about a series of the same
act? For example, through misappropriation, conversation, misuse, will these be
included also?
THE CHAIRMAN (REP. GARCIA). Yeah, because we say series.
REP. ISIDRO. Series.
THE CHAIRMAN (REP. GARCIA). Yeah, we include series.
REP. ISIDRO. But we say we begin with a combination.
THE CHAIRMAN (REP. GARCIA). Yes.
REP. ISIDRO. When we say combination, it seem that —
THE CHAIRMAN (REP. GARCIA). Two.

REP. ISIDRO. Not only two but we seem to mean that two of the enumerated means
not twice of one enumeration.
THE CHAIRMAN (REP. GARCIA). No, no, not twice.
REP. ISIDRO. Not twice?
THE CHAIRMAN (REP. GARCIA). Yes. Combination is not twice — but

combination, two acts.
REP. ISIDRO. So in other words, that's it. When we say combination,
we mean, two different acts. It can not be a repetition of the same
act.
THE CHAIRMAN (REP. GARCIA). That be referred to series. Yeah.
REP. ISIDRO. No, no. Supposing one act is repeated, so there are two.
THE CHAIRMAN (REP. GARCIA). A series.
REP. ISIDRO. That's not series. It's a combination. Because when we say combination
or series, we seem to say that two or more, 'di ba?
THE CHAIRMAN (REP. GARCIA). Yes. This distinguishes it really the ordinary — That's
why I said, that's a very good suggestion, because if it's only one act, it may fall
under ordinary crime. But we have here a combination or series, overt or criminal
acts.
REP. ISIDRO. I know what you are talking about. For example, through
misappropriation, conversion, misuse or malversation of public funds who raids
the public treasury, now, for example misappropriation, if there are a series of . . . .
.
REP. ISIDRO. . . . If there are a series of misappropriations?

THE CHAIRMAN. (REP. GARCIA P.) Yes.
REP. ISIDRO. So, these constitute illegal wealth.
THE CHAIRMAN. (REP. GARCIA P.) Yes, yes.
REP. ISIDRO. Ill-gotten.
THE CHAIRMAN. (SEN. TAÑADA) Ill-gotten wealth.
THE CHAIRMAN. (REP. GARCIA P.) Series. One after the other eh di . .
THE CHAIRMAN. (SEN. TAÑADA), So, that would fall under the term 'series'?
THE CHAIRMAN. (REP. GARCIA P.) Series, oo.
REP. ISIDRO. Now, if it is combination, ano, two misappropriations . . .
THE CHAIRMAN. (REP. GARCIA P.) It's not, . . two misappropriations will not be
combination. Series.
REP. ISIDRO. So, it is not a combination?
REP. ISIDRO. When you say 'combination', two different?
THE CHAIRMAN. (REP. TAÑADA.) Two different.
REP. ISIDRO. Two different acts.
THE CHAIRMAN. (REP. GARCIA P.) For example, ha . . .

REP. ISIDRO. Now series, meaning, repetition . . .
THE CHAIRMAN. (SEN. TAÑADA) Yes.
REP. ISIDRO. With that . . .
THE CHAIRMAN. (REP. GARCIA P.) Thank you.
THE CHAIRMAN. (SEN. TAÑADA) So, it could be a series of any of the acts mentioned
in paragraphs 1, 3, 4, 5 of Section 2 (2), or . . 1(d) rather, or combination of any of
the acts mentioned in paragraph 1 alone, or paragraph 2 alone or paragraph 3 or
paragraph 4.
THE CHAIRMAN. (REP. GARCIA P.) I think combination maybe . .which one? Series?
THE CHAIRMAN. (SEN. TAÑADA) Series or combination.
REP. ISIDRO. Which one, combination or series or series or combination?
THE CHAIRMAN. (SEN. TAÑADA) Okay, Ngayon doon sa de nition, ano, Section 2,
definition, doon sa portion ng . . . Saan iyon? As mentioned, as described . . .
THE CHAIRMAN. (SEN. TAÑADA) . . better than 'mentioned'. Yes.
THE CHAIRMAN. (REP. GARCIA P.) Okay ?
REP. ISIDRO. Very good.
THE CHAIRMAN. (SEN. TAÑADA) Oo, marami pong salamat.
THE CHAIRMAN. (REP. GARCIA P.) maraming salamat po. The meeting was adjourned
at 1:33 p.m."
18. H.J., Inc. v. Northwestern Bell , (1999) 492 US 229, 106 L Ed 2d 195, 109 S Ct 2893, at p.
211: "One evident textual problem with the suggestion that predicates form a RICO
pattern only if they are indicative of an organized crime perpetrator — in either a
traditional or functional sense — is that it would seem to require proof that the
racketeering acts were the work of an association or group, rather than of an individual
acting alone. RICO's language supplies no grounds to believe that Congress meant to
impose such a limit on the scope of the Act. A second indication from the text that
Congress intended no organized crime limitation is that no such restriction is explicitly
stated. In those titles of OCCA (the Organized Crime Control Act of 1970) where
Congress did intend to limit the new law's application to the context of organized crime,
it said so."
19. GR No. 121777, January 24, 2001, per Kapunan, J.
20. The Racketeer In uenced and Corrupt Organizations Act (RICO), 18 USC §§1961-1968
[18 USCS §§1961-1968] which is Title IX of the Organized Crime Control Act of 1970
(OCCA).
21. Supra.
22. Ibid., at p. 209.
23. Id., at p. 208.
24. Id., at p. 209.
25. The relevant portion of the sponsorship speech of Senator Tañada reads as follows:
"It cannot be seriously disputed that much of our economic woes and the nation's
anguish are directly attributable to the despoliation of the National Treasury by some
public officials who have held the levers of power.
"It is sad to state, Mr. President, that there is presently no statute that either
effectively discourages or adequately penalizes this predatory act which reached
unprecedented heights and which had been developed by its practitioners to a high
level of sophistication during the past dictatorial regime.
"For, while it is true that we have laws defining and penalizing graft and corruption
in government and providing for the forfeiture of unexplained wealth acquired by
public o cials, it has become increasingly evident that these legislations . . . no longer
su ce to deter massive looting of the national wealth; otherwise, this country would
not have been raided and despoiled by the powers that be at that time.
"Indeed, there is a need to de ne plunder, and provide for its separate
punishment as proposed in Senate Bill No. 733; because, plunder involves not just
plain thievery but economic depredation which affects not just private parties or
personal interest but the nation as a whole. And, therefore, Mr. President, it is a crime
against national interest which must be stopped and if possible stopped permanently."
26. Record of the Senate, Vol. IV, No. 140, June 5, 1989, at pp. 1314-1315.
27. On pp. 19-20 of the Resolution.
28. Foote v. Nickerson, 54 L.R.A. 554.
29. Intia Jr. v. Commission on Audit, 306 SCRA 593, April 30, 1999; Paat v Court of Appeals,
266 SCRA 167, January 10, 1997.
30. Commissioner of Internal Revenue v. S.C. Johnson and Son, Inc ., 309 SCRA 87, June
25, 1999.
31. De Guia v. Commission on Elections, 208 SCRA 420, May 6, 1992.
32. Quoted portions are excerpts from Senator Tañada's speech sponsoring Senate Bill No.
733, Records of the Senate, June 5, 1989.
33. During the Oral Argument, petitioner contended that Yu Cong Eng v. Trinidad [271 US
500 (1926)] declared the Bookkeeping Act unconstitutional for its alleged vagueness.
This is incorrect. The reason for its unconstitutionality was the violation of the equal
protection clause. Likewise, Adiong v. Comelec (207 SCRA 712, March 31, 1992) decreed
as void a mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec (270
SCRA 106, March 19, 1997) declared a portion of RA 6735 unconstitutional because of
undue delegation of legislative powers, not because of vagueness.
34. 237 SCRA 724, October 26, 1994.
35. 224 SCRA 361, July 5, 1993.
36. Jeff Atkinson, "Racketeer In uenced and Corrupt Organization," 18 U.S.C. 1961-1968;
"Broadest of the Criminal Statutes," 69 Journal of Criminal Law and Criminology 1
(1978), p. 1.
37. Ibid., at p. 2.
38. Senator Angara's vote explaining proposed Senate Bill No. 733; Records of the Senate,
June 5, 1989.
39. Ibid.; see also Article II (Declaration of Principles and State Policies), Section 27 of the
1987 Constitution.
40. Morfe v. Mutuc , 22 SCRA 424, January 31, 1968; Salas v. Jarencio , 46 SCRA 734,
August 30, 1972.
41. Padilla v. Court of Appeals, 269 SCRA 402, March 12, 1997; Francisco v. Permskul , 173
SCRA 324, May 12, 1989.
42. See Article 10, Civil Code.
43. Deliberations of the Committee on Constitutional Amendments and Revision of Laws,
November 15, 1988; cited in the Resolution of the Sandiganbayan (Third Division) dated
July 9, 2001.
44. Comment, p. 29, citing the House deliberations on House Bill No. 22572, October 9,
1990.
45. Resolution of the Sandiganbayan (Third Division) dated July 9, 2001, pp. 28-30.
46. 30 Phil. 577, March 31, 1915, per Carson, J; see also US v. Ah Chong, 15 Phil. 488,
March 19, 1910 and Caram Resources Corp. v. Contreras, supra.
47. 14 Phil. 128, September 15, 1909, per Moreland, J.
48. Respondent's Memorandum, pp. 84-85. The solicitor general cites illegal recruitment as
an example of a malum in se crime, which the law penalizes as malum prohibitum; that
is, to punish it severely without regard to the intent of the culprit.
49. Virata v. Sandiganbayan, 202 SCRA 680, 698-699, October 15, 1991, per Davide, J. (now
CJ).
50. Solicitor General's Comment, pp. 1-2.
YNARES-SANTIAGO, J. , dissenting:
1. Constitution, Article III, Sections 1, 12 & 14.
2. Constitution, Article III, Section 14.
3. People v. Nazario, 165 SCRA 186, 195 [1988].
4. Connally v. General Construction Co., 269 U.S. 385 [1926].
5. Yu Cong Eng v. Trinidad, 271 U.S. 500 [1926].
6. People v. Nazario, supra; Scull v. Commonwealth, 359 U.S. 344, 353.
7. Musser v. Utah, 333 U.S. 95; 92 L Ed. 562.
8. U.S. v. Brewer, 139 U.S. 278, 35 L Ed. 190, 193.
9. National Association for the Advancement of Colored People (NAACP) v. Alabama , 377
U.S. 288.
10. U.S. v. Petrillo, 332 U.S. 1; U.S. v. Spector, 343 U.S. 169; U.S. v. Darby, 312 U.S. 100.
11. Republic Act No. 7080, Section 1(d).
12. Smith v. Goguen, 415 U.S. 566.
13. "Any public officer who shall agree to perform an act constituting a crime, in connection
with the performance of his o cial duties, in consideration of any offer, promise, gift or
present received by such o cer, personally or through the mediation of another, shall
suffer the penalty of prision mayor in its medium and minimum periods and a fine of not
less than three times the value of the gift, in addition to the penalty corresponding to the
crime agreed upon, if the same shall have been committed.
"If the gift was accepted by the o cer in consideration of the execution of an act
which does not constitute a crime, and the o cer executed said act, he shall suffer the
same penalty provided in the preceding paragraph; and if said act shall not have been
accomplished, the o cer shall suffer the penalties of prision correccional in its
medium period and a fine of not less than twice the value of such gift.
"If the object for which the gift was received or promised was to make the public officer
refrain from doing something which it was his o cial duty to do, he shall suffer the
penalties of prision correccional in its maximum period to prision mayor in its
minimum period and a fine of not less than three times the value of such gift.
"In addition to the penalties provided in the preceding paragraphs, the culprit shall
suffer the penalty of special temporary disqualification.
"The provisions contained in the preceding paragraphs shall be made applicable to
assessors, arbitrators, appraisal and claim commissioners, experts or any other
persons performing public duties."
14. "The penalties of prision correccional in its medium and maximum periods, suspension
and public censure shall be imposed upon any public o cer who shall accept gifts
offered to him by reason of his office."
15. U.S. v. Go Chico, 14 Phil. 134 [1909].
16. 342 U.S. 246.
17. Rochin v. California, 324 U.S. 165, 168.
18. Republic Act No. 7080, "Section 4. Rule of Evidence. — For purposes of establishing the
crime of plunder, it shall not be necessary to prove each and every criminal act done by
the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire
ill-gotten wealth, it being su cient to establish beyond reasonable doubt a pattern of
overt criminal acts indicative of the overall unlawful scheme or conspiracy."
19. U.S. v. Lim Buanco, 14 Phil. 472 [1910]; U.S. v. Remigio, 39 Phil. 599 [1919].
20. In re Winship, 397 U.S. 358, 364.
21. See Keyshian v. Board of Regents of the University of the State of New York , 385 U.S.
589; and Shelton v. Tucker, 364 U.S. 479.
22. Record of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1310.
23. Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).
24. Ibid., p. 453.
25. Nebbia v. New York, 291 U.S. 502.
26. Musser v. Utah, supra ; Giaccio v. Pennsylvania , 382 U.S. 399; United States v. Brewer,
supra.
PARDO, J. , dissenting:
1. Petition, Annex "B", Motion to Quash, Ground II.
2. "The Court will not pass upon a constitutional question although properly presented by
the record if the case can be disposed of on some other ground.'' ( Laurel v. Garcia , 187
SCRA 797, 813 [1990], citing Siler v. Louisville and Nashville R. Co. , 312 U.S. 175 [1909];
Railroad Commission v. Pullman Co. , 312 U.S. 496 [1941]; Lalican v. Vergara , 342 Phil.
485, 498 [1997]; Mirasol v. Court of Appeals, G.R. No. 128448, February 1, 2001.
3. 335 Phil. 343 [1997].
SANDOVAL, J., dissenting:
1. As amended by Republic Act No. 7659 — "An Act to Impose the Death Penalty on Certain
Heinous Crimes, Amending for that Purpose the Revised Penal Code, other Special Penal
Laws and for other Purpose (1993).
2. Section 1, Article III of the 1987 Constitution.
3. Cruz, Constitutional Law, 1995 Ed. p. 95.
4. 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2nd 368.
5. Section 1 (b) Rule XVIII, Revised Rules of the Sandiganbayan
"The unanimous vote of three Justices in a division shall be necessary for the rendition
of a judgment or order. In the event that three Justices do not reach a unanimous vote,
the Presiding Justice shall designate by ra e two justices from among the other
members of the Sandiganbayan to sit temporarily with them forming a special division
of ve Justices, and the vote of a majority of such special division shall be necessary
for the rendition of a judgment or order.
6. Section 2 of R.A. No. 7080.
7. It is an elementary principle of criminal jurisprudence, a principle rmly embedded in the
organic law of every free state and vindicated by statutory guarantee as well as by
innumerable judicial decisions, that every criminal, however hideous his alleged crime, or
however, debauched and endish his character, may require that the elements of that
crime shall be clearly and indisputably de ned by law, and that his commission of and
relationship to the alleged offense shall be established by legal evidence delivered in his
presence. (Rice, The Law of Evidence on Evidence, Vol. 3, p. 421).
8. 29 Am Jur 2d Section 168, p. 192. Re Winship, 397 US 358, 25 L Ed 2d 368; State v.
Krantz, 498 US 938, 112 L Ed 2d 306.
9. In U.S. vs. Ah Chong, 15 Phil. 488 (1910), it was held that the crime must be the product
of a free, intelligent, and intentional act.
10. U.S. vs. Go Chico, 14 Phil. 134 (1909-1910).
11. Webster, Third New International Dictionary, Unabridged, 1993, p. 1657.
12. Harris and Wilshere's Criminal Law, Seventeenth Division, 1943, pp. 513-514.
13. Burgett v. Texas, 389 US 109, 19 L Ed 2d 319, 88 Ct 258; 29 Am Jur 6.
14. Records of the Senate, June 5, 1989, Vol. IV, No. 140, p. 1314.
15. Records of the Senate, Vol. IV, No. 140, p. 1316.
16. Records of the Senate, June 16, 1989, Vol. IV, No. 141, p. 1403.
17. See Records Joint Conference Committee Meeting, May 7, 1991, p. 12. Representative
Pablo Garcia, Chairman of the House of Representatives Committee on Justice,
observed that R.A. No. 7080 was patterned after the RICO law.
18. Rotella v. Wood, United States Supreme Court, February 23, 2000.
19. Toussie vs. United States, 397 U.S. 112, 115 (1970).
20. 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346 (1985).
21. 492 U.S. 229, 109 S. Ct. 2893, 106 L Ed. 2d 195 (1989).
22. The People of the State of New York v. Capaldo et al., 151 Misc. 2d 114 (1991).
23. 21 Am Jur §349, p. 399.
24. 22 C.J.S. §24 (2) p. 62; Pierse v. United States 314 US 306; 86 L. Ed 226.
"The constitutional vice in a vague or inde nite statute is the injustice to accused in
placing him on trial for an offense as to the nature of which he is given no fair notice.
(American Communications Association C.I.O. v. Douds , N.Y. 70 S. Ct. 674, 339 U.S.
382, 94 L. Ed 1391) In determining whether a statute meets the requirement of
certainty, the test is whether the language conveys su ciently de nite warning as to
the proscribed conduct when measured by a common understanding and practices.
Penal statutes affecting public o cers and employees and public funds or property
will be held invalid where the prohibited conduct is not su ciently de ned. ( Jordan v.
De George III 341 U.S. 223, 95 L. Ed. 886; Winters v. People of State of New York , 333
U.S. 507, 92 L. Ed 840) The requirement of statutory specificity has the dual purpose of
giving adequate notice of acts which are forbidden and of informing accused of the
nature of offense charged so that he may defend himself. (Amsel v. Brooks , 106 A. 2d
152, 141 Conn. 288; 67 S. Ct 125, 348 U.S. 880, 91 L. Ed. 693)".
25. Winters v. People of State of New York 333 US 507; 92 L. Ed. 840 — "A penal statute
must set up ascertainable standards so that men of common intelligence are not
required to guess at its meaning, either as to persons within the scope of the act or as to
the applicable tests to ascertain guilt."
26. Sullivan v. United States 332 U.S. 689; 92 L. Ed. 297.
27. United States v. Dettra Flag Co. D.C. Pa, 86 F. Supp. 84.
28. Winters v. People of State of New York, supra.
29. State v. Tsutomu Ikeda, 143 P. 2d 880, followed in State v. Waller 143 P. 2d 884.
30. "Senator Gonzales. To commit the offense of plunder, as de ned in this Act and while
constituting a single offense, it must consist of a series of overt or criminal acts, such as
bribery, extortion, malversation of public funds, swindling, falsi cation of public
documents, coercion, theft, fraud and illegal exaction, and graft or corrupt practices act
and like offenses. Now, Mr. President, I think, this provision, by itself, will be vague. I am
afraid that it might be faulted for being violative of the due process clause and the right
to be informed of the nature and cause of accusation of an accused. Because, what is
meant by "series of overt or criminal acts"? I mean, would 2, 3, 4 or 5 constitute a series?
During the period of amendments, can we establish a minimum of overt acts like, for
example, robbery in band? The law de nes what is robbery in band by the number of
participants therein. In this particular case, probably, we can statutorily provide for the
de nition of "series" so that two, for example, would that already be a series? Or, three,
what would be the basis for such a determination?" (Record of the Senate, June 5, 1989
Vol. IV No. 140, p. 1310).
31. "Senator Paterno. Mr. President, not too clear yet on the reason for trying to de ne a
crime of plunder. Could I get some further clarification?
Senator Tañada. Yes, Mr. President.
Because of our experience in the former regime, we feel that there is a need for
Congress to pass the legislation which would cover a crime of this magnitude. While it
is true, we already have the Anti-Graft Law. But that does not directly deal with plunder.
That covers only the corrupt practices of public o cials as well as their spouses and
relatives within the civil degree, and the Anti-Graft law as presently worded would not
adequately or su ciently address the problems that we experienced during the past
regime.
Senator Paterno. May I try to give the Gentleman, Mr. President, my understanding of
the bill?
Senator Tañada. Yes.
Senator Paterno. I envision that this bill or this kind of plunder would cover a
discovered interconnection of certain acts, particularly, violations of Anti-Graft and
Corrupt Practices Act when, after the different acts are looked at, a scheme of
conspiracy can be detected, such scheme or conspiracy consummated by the different
criminal acts or violations of Anti-Graft and Corrupt Practices Act, such that the
scheme or conspiracy becomes a sin, as a large scheme to defraud the public or rob
the public treasury. It is parang robo and banda. It is considered as that. And, the bill
seeks to de ne or says that P 100 million is that level at which ay talagang sobra na
dapat nang parusahan ng husto. Would it be a correct interpretation or assessment of
the intent of the bill?
Senator Tañada. Yes, Mr. President. The fact that under existing law, there can be only
one offense charged in the information, that makes it very cumbersome and di cult to
go after these grafters if we would not come out with this bill. That is what is
happening now; because of that rule that there can be only one offense charged per
information, then we are having di culty in charging all the public o cials who would
seem to have committed these corrupt practices. With this bill, we could come out with
just one information, and that would cover all the series of criminal acts that may have
been committed by him.
xxx xxx xxx
Senator Romulo. To follow up the interpolations of Senator Paterno and Maceda, this
crime of plunder as envisioned here contemplates of a series or a scheme as
responded by the distinguished Sponsor.
Senator Tañada. That is correct, Mr. President. (Record of Senate, June 5, 1989, Vol. IV,
No. 140, P. 1315)
xxx xxx xxx
Senator Romulo. Mr. President, I was going to suggest prior to Senator Maceda that on
line 24: "SHALL THROUGH ONE overt or criminal act OR . . . ." I was just thinking of one
which is really not a "series.",
The President. If there is only one, then he has to be prosecuted under the particular
crime. But when we say "acts of plunder" there should be, at least, two or more. (Record
of the Senate, June 6, 1989, Vol. IV, No. 141, p. 1399).
32. Tarsia v. Nick's Laundry & Linen Supply Co. , 399 P. 2d 28, 29, 239 Or. 562; Words and
Phrases, 38A p. 441.
For purposes of Rule permitting government to charge several defendants under one
indictment if they have participated in same "series" of acts or transactions, a " series"
is something more than mere "similar" acts.
33. Opposition to the Motion to Quash of Accused Joseph Estrada dated June 21, 2001, p.
9.
34. Comment to the Amended Petition dated July 16, 2001, p. 14.
35. United States v. Laub, 385 US 475, 17 L Ed 2d 526, 87 S Ct 574.

36. State v. Nelson, 95 N.W. 2d 678.
37. 22 C.J.S. §24 (2); People v. Bevilacqua , 170 N.Y.S. 2d 423; Lanzetta v. State of New
Jersey, 306 U.S. 451, 59 S Ct 618, 83 L. Ed 888; United States v. DeCadena , D.C. 105 F.
Supp. 202.
38. 21 Am Jur §17 p. 129.
39. Tresolini and Shapiro, American Constitutional Law, 3rd Edition, p. 23.
40. State v. Evans, 245 P. 2d 788, 73 Idaho 50.
41. Abraham, Perry, Freedom and the Court, 1998, p. 25.

EN BANC
[G.R. No. 196231. January 28, 2014.]
EMILIO A. GONZALES III , petitioner, vs . OFFICE OF THE PRESIDENT

OF THE PHILIPPINES, ACTING THROUGH AND REPRESENTED BY
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY
EXECUTIVE SECRETARY JOSE AMOR M. AMORANDO, OFFICER-IN-
CHARGE — OFFICE OF THE DEPUTY EXECUTIVE SECRETARY FOR
LEGAL AFFAIRS, ATTY. RONALDO A. GERON, DIR. ROWENA
TURINGAN-SANCHEZ, AND ATTY. CARLITO D. CATAYONG ,
respondents.
[G.R. No. 196232. January 28, 2014.]
WENDELL BARRERAS-SULIT , petitioner, vs . ATTY. PAQUITO N.

OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE SECRETARY, OFFICE
OF THE PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D.
SULAY AND ATTY. FROILAN D. MONTALBAN, JR., IN THEIR
CAPACITIES AS CHAIRMAN AND MEMBERS OF OFFICE OF
MALACAÑANG LEGAL AFFAIRS , respondents.
DECISION
BRION , J : p
We resolve the O ce of the President's ( OP's) motion for reconsideration of our

September 4, 2012 Decision 1 which ruled on the petitions led by Deputy Ombudsman
Emilio Gonzales III and Special Prosecutor Wendell Barreras-Sulit. Their petitions
challenged the constitutionality of Section 8 (2) of Republic Act (RA) No. 6770. 2
In the challenged Decision, the Court upheld the constitutionality of Section 8 (2)
of RA No. 6770 and ruled that the President has disciplinary jurisdiction over a Deputy
Ombudsman and a Special Prosecutor. The Court, however, reversed the OP ruling
that: (i) found Gonzales guilty of Gross Neglect of Duty and Grave Misconduct
constituting betrayal of public trust; and (ii) imposed on him the penalty of dismissal.
Sulit, who had not then been dismissed and who simply sought to restrain the
disciplinary proceedings against her, solely questioned the jurisdiction of the OP to
subject her to disciplinary proceedings. The Court a rmed the continuation of the
proceedings against her after upholding the constitutionality of Section 8 (2) of RA No.
6770.
The fallo of our assailed Decision reads: cHEATI
WHEREFORE, in G.R. No. 196231, the decision of the O ce of the President in OP

Case No. 10-J-460 is REVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III
is ordered REINSTATED with payment of backwages corresponding to the period
of suspension effective immediately, even as the O ce of the Ombudsman is
directed to proceed with the investigation in connection with the above case
against petitioner. In G.R. No. 196232, We AFFIRM the continuation of OP-DC
Case No. 11-B-003 against Special Prosecutor Wendell Barreras-Sulit for alleged
acts and omissions tantamount to culpable violation of the Constitution and a
betrayal of public trust, in accordance with Section 8(2) of the Ombudsman Act of
1989. 3
In view of the Court's ruling, the OP led the present motion for reconsideration
through the Office of the Solicitor General (OSG).
We brie y narrate the facts that preceded the ling of the petitions and the
present motion for reconsideration.
I. ANTECEDENTS
A. Gonzales' petition (G.R. No. 196231)
a. Factual antecedents
On May 26, 2008, Christian Kalaw led separate charges with the Philippine
National Police Internal Affairs Service (PNP-IAS) and with the Manila City Prosecutor's
O ce against Manila Police District Senior Inspector Rolando Mendoza and four others
(Mendoza, et al.) for robbery, grave threat, robbery extortion and physical injury. 4
On May 29, 2008, Police Senior Superintendent Atty. Clarence Guinto led an
administrative charge for grave misconduct with the National Police Commission
(NAPOLCOM) PNP-NCRPO against Mendoza, et al. based on the same allegations
made by Kalaw before the PNP-IAS. 5
On July 2, 2008, Gonzales, Deputy Ombudsman for Military and Other Law
Enforcement O cers ( MOLEO), directed the NAPOLCOM to turn over the records of
Mendoza's case to his o ce. The O ce of the Regional Director of the NAPOLCOM
duly complied on July 24, 2008. 6 Mendoza, et al. led their position papers with
Gonzales, in compliance with his Order. 7
Pending Gonzales' action on Mendoza, et al.' s case (on August 26, 2008), the
O ce of the City Prosecutor of Manila City dismissed Kalaw's complaint against
Mendoza, et al. for his failure to substantiate his allegations. 8 Similarly, on October 17,
2008, the PNP-IAS recommended the dismissal without prejudice of the administrative
case against Mendoza, et al. for Kalaw's failure to prosecute. 9
On February 16, 2009, after preparing a draft decision on Mendoza, et al.'s case,
Gonzales forwarded the entire records to the O ce of then Ombudsman Merceditas
Gutierrez for her review. 1 0 In his draft decision, Gonzales found Mendoza, et al. guilty of
grave misconduct and imposed on them the penalty of dismissal from the service. 1 1
Mendoza, et al. received a copy of the Ombudsman's decision that approved
Gonzales' recommendation on October 30, 2009. Mendoza, et al. led a motion for
reconsideration 1 2 on November 5, 2009, followed by a Supplement to the Motion for
Reconsideration. 1 3
On December 10, 2009, the MOLEO-Records Section forwarded Mendoza, et al.'s
case records to the Criminal Investigation, Prosecution and Administrative Bureau-
MOLEO. On December 14, 2009, the case was assigned to Graft Investigation and
Prosecution Officer (GIPO) Dennis Garcia for review and recommendation. 1 4 IHCSTE
GIPO Garcia released a draft order 1 5 to his immediate superior, Director Eulogio
S. Cecilio, for appropriate action on April 5, 2010. Dir. Cecilio signed and forwarded
the draft order to Gonzales' o ce on April 27, 2010. Gonzales reviewed the draft and
endorsed the order, together with the case records, on May 6, 2010 for the nal
approval by the Ombudsman. 1 6
On August 23, 2010, pending nal action by the Ombudsman on Mendoza, et al.'s
case, Mendoza hijacked a tourist bus and held the 21 foreign tourists and the four
Filipino tour assistants on board as hostages. While the government exerted earnest
attempts to peacefully resolve the hostage-taking, it ended tragically, resulting in the
deaths of Mendoza and several others on board the hijacked bus.
In the aftermath, President Benigno C. Aquino III directed the Department of
Justice and the Department of the Interior and Local Government to conduct a joint
thorough investigation of the incident. The two departments issued Joint Department
Order No. 01-2010, creating an Incident Investigation and Review Committee (IIRC).
In its September 16, 2010 First Report, the IIRC found the Ombudsman and
Gonzales accountable for their "gross negligence and grave misconduct in handling the
case against Mendoza." 1 7 The IIRC stated that the Ombudsman and Gonzales' failure
to promptly resolve Mendoza's motion for reconsideration, "without justi cation and
despite repeated pleas" . . . "precipitated the desperate resort to hostage-taking." 1 8
The IIRC recommended the referral of its ndings to the OP for further determination of
possible administrative offenses and for the initiation of the proper administrative
proceedings. 1 9
Accordingly, on October 15, 2010, Gonzales was formally charged before the OP
for Gross Neglect of Duty and/or Ine ciency in the Performance of O cial Duty and
for Misconduct in Office. 2 0
b. The OP ruling
On March 31, 2011, the OP found Gonzales guilty as charged and dismissed him
from the service. 2 1 According to the OP, "the inordinate and unjusti ed delay in the
resolution of [Mendoza's] Motion for Reconsideration ['that spanned for nine (9) long
months'] . . . amounted to gross neglect of duty" and "constituted a agrant disregard
of the Office of the Ombudsman's own Rules of Procedure." 2 2
c. The Petition
Gonzales posited in his petition that the OP has no administrative disciplinary
jurisdiction over a Deputy Ombudsman. Under Section 21 of RA No. 6770, it is the
Ombudsman who exercises administrative disciplinary jurisdiction over the Deputy
Ombudsman.
On the merits, Gonzales argued that his o ce received the draft order from GIPO
Garcia on April 27, 2010. On May 6, 2010, he completed his review of the draft,
approved it, and transmitted it to the O ce of the Ombudsman for nal approval. Since
the draft order on Mendoza's motion for reconsideration had to undergo different
levels of preparation, review and approval, the period it took to resolve the motion
could not be unjusti ed, since he himself acted on the draft order only within nine (9)
calendar days from his receipt of the order. 2 3
B. Sulit's petition (G.R. No. 196232)
In April 2005, the O ce of the Ombudsman charged Major General Carlos F.
Garcia and several others, before the Sandiganbayan, with plunder and money
laundering. On May 7, 2007, Garcia led an Urgent Petition for Bail which the
prosecution opposed. The Sandiganbayan denied Garcia's urgent petition for bail on
January 7, 2010, in view of the strength of the prosecution's evidence against Garcia.
On February 25, 2010, the O ce of the Ombudsman, through Sulit and her
prosecutorial staff, entered into a plea bargaining agreement (Agreement) with Garcia.
2 4 Garcia thereby agreed to: (i) withdraw his plea of not guilty to the charge of plunder
and enter a plea of guilty to the lesser offense of indirect bribery; and (ii) withdraw his
plea of not guilty to the charge of money laundering and enter a guilty plea to the lesser
offense of facilitating money laundering. In exchange, he would convey to the
government his ownership, rights and other interests over the real and personal
properties enumerated in the Agreement and the bank deposits alleged in the
information. 2 5 TIDHCc
The Sandiganbayan approved the Agreement on May 4, 2010 2 6 based on the

parties' submitted Joint Motion for Approval. 2 7
The apparent one-sidedness of the Agreement drew public outrage and
prompted the Committee on Justice of the House of Representatives to conduct an
investigation. After public hearings, the Committee found that Sulit, her deputies and
assistants committed culpable violations of the Constitution and betrayal of public
trust — grounds for removal under Section 8 (2) of RA No. 6770. 2 8 The Committee
recommended to the President the dismissal from the service of Sulit and the ling of
appropriate charges against her deputies and assistants before the appropriate
government office.
Accordingly, the OP initiated an administrative disciplinary proceeding against
Sulit. 2 9 On March 24, 2011, Sulit led her Written Explanation, questioning the OP's
jurisdiction. 3 0 The question of jurisdiction notwithstanding, the OP set the case for
preliminary investigation on April 15, 2011, prompting Sulit to seek relief from this
Court.
II. COURT'S RULING
On motion for reconsideration and further re ection, the Court votes to grant
Gonzales' petition and to declare Section 8 (2) of RA No. 6770 unconstitutional with
respect to the O ce of the Ombudsman. (As the full explanation of the Court's vote
describes below, this conclusion does not apply to Sulit as the grant of independence is
solely with respect to the O ce of the Ombudsman which does not include the O ce
of the Special Prosecutor under the Constitution. The prevailing ruling on this latter
point is embodied in the Concurring and Dissenting Opinion of J. Marvic Mario Victor
Leonen).
A. Preliminary considerations :
a. Absence of motion for reconsideration
on the part of the petitioners
At the outset, the Court notes that Gonzales and Sulit did not le a motion for
reconsideration of the Court's September 4, 2012 Decision; only the OP, through the
OSG, moved for the reconsideration of our ruling reinstating Gonzales.
This omission, however, poses no obstacle for the Court's review of its ruling on
the whole case since a serious constitutional question has been raised and is one of the
underlying bases for the validity or invalidity of the presidential action. If the President
does not have any constitutional authority to discipline a Deputy Ombudsman and/or a
Special Prosecutor in the rst place, then any ruling on the legal correctness of the OP's
decision on the merits will be an empty one.
In other words, since the validity of the OP's decision on the merits of the
dismissal is inextricably anchored on the nal and correct ruling on the constitutional
issue, the whole case — including the constitutional issue — remains alive for the
Court's consideration on motion for reconsideration.
b. The justiciability of the constitutional
issue raised in the petitions
We clarify, too, that the issue of whether a Deputy Ombudsman may be subjected
to the administrative disciplinary jurisdiction of the President (concurrently with that of
the Ombudsman) is a justiciable — not a political — question. A justiciable question is
one which is inherently susceptible of being decided on grounds recognized by law, 3 1
as where the court nds that there are constitutionally-imposed limits on the exercise
of the powers conferred on a political branch of the government. 3 2 DTEAHI
In resolving the petitions, we do not inquire into the wisdom of the Congress'
choice to grant concurrent disciplinary authority to the President. Our inquiry is limited
to whether such statutory grant violates the Constitution, particularly whether Section 8
(2) of RA No. 6770 violates the core constitutional principle of the independence of the
Office of the Ombudsman as expressed in Section 5, Art. XI of the Constitution.
To be sure, neither the Executive nor the Legislative can create the power that
Section 8 (2) of RA No. 6770 grants where the Constitution confers none. When
exercised authority is drawn from a vacuum, more so when the authority runs counter
to a core constitutional principle and constitutional intents, the Court is duty-bound to
intervene under the powers and duties granted and imposed on it by Article VIII of the
Constitution.
B. The Deputy Ombudsman: Constitutional Issue
a. The Philippine Ombudsman
Prior to the 1973 Constitution, past presidents established several Ombudsman-
like agencies to serve as the people's medium for airing grievances and for direct
redress against abuses and misconduct in the government. Ultimately, however, these
agencies failed to fully realize their objective for lack of the political independence
necessary for the effective performance of their function as government critic. 3 3
It was under the 1973 Constitution that the O ce of the Ombudsman became a
constitutionally-mandated o ce to give it political independence and adequate
powers to enforce its mandate. Pursuant to the 1973 Constitution, President Ferdinand
Marcos enacted Presidential Decree (PD) No. 1487, as amended by PD No. 1607 and
PD No. 1630, creating the O ce of the Ombudsman to be known as Tanodbayan. It
was tasked principally to investigate, on complaint or motu proprio, any administrative
act of any administrative agency, including any government-owned or controlled
corporation. When the O ce of the Tanodbayan was reorganized in 1979, the powers
previously vested in the Special Prosecutor were transferred to the Tanodbayan
himself. He was given the exclusive authority to conduct preliminary investigation of all
cases cognizable by the Sandiganbayan, le the corresponding information, and control
the prosecution of these cases. 3 4
With the advent of the 1987 Constitution, a new O ce of the Ombudsman was
created by constitutional fiat. Unlike in the 1973 Constitution, its independence was
expressly and constitutionally guaranteed. Its objectives are to enforce the state policy
in Section 27, Article II 3 5 and the standard of accountability in public service under
Section 1, Article XI of the 1987 Constitution. These provisions read:
Section 27. The State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruption.
Section 1. Public o ce is a public trust. Public o cers and employees

must, at all times, be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and e ciency; act with patriotism and justice,
and lead modest lives.
Under Section 12, Article XI of the 1987 Constitution, the O ce of the

Ombudsman is envisioned to be the "protector of the people" against the inept, abusive,
and corrupt in the Government, to function essentially as a complaints and action
bureau. 3 6 This constitutional vision of a Philippine Ombudsman practically intends to
make the Ombudsman an authority to directly check and guard against the ills, abuses
and excesses of the bureaucracy. Pursuant to Section 13 (8), Article XI of the 1987
Constitution, Congress enacted RA No. 6770 to enable it to further realize the vision of
the Constitution. Section 21 of RA No. 6770 provides:
Section 21. O cial Subject to Disciplinary Authority; Exceptions. — The
Office of the Ombudsman shall have disciplinary authority over all elective
and appointive o cials of the Government and its subdivisions,
instrumentalities and agencies, including Members of the Cabinet, local
government, government-owned or controlled corporations and their
subsidiaries, except over o cials who may be removed only by impeachment
or over Members of Congress, and the Judiciary. [emphasis ours, italics supplied]
As the Ombudsman is expected to be an "activist watchman," 3 7 the Court has upheld

its actions, although not squarely falling under the broad powers granted it by the
Constitution and by RA No. 6770, if these actions are reasonably in line with its o cial
function and consistent with the law and the Constitution. 3 8
The Ombudsman's broad investigative and disciplinary powers include all acts of
malfeasance, misfeasance, and nonfeasance of all public o cials, including
Members of the Cabinet and key Executive o cers, during their tenure. To
support these broad powers, the Constitution saw it t to insulate the O ce of the
Ombudsman from the pressures and in uence of o cialdom and partisan politics and
from fear of external reprisal by making it an "independent" o ce. Section 5, Article XI
of the Constitution expressed this intent, as follows: DACIHc
Section 5. There is hereby created the independent O ce of the

Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one
overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A
separate Deputy for the military establishment may likewise be appointed.
[emphasis ours]
Given the scope of its disciplinary authority, the O ce of the Ombudsman is a

very powerful government constitutional agency that is considered "a notch above
other grievance-handling investigative bodies." 3 9 It has powers, both
constitutional and statutory, that are commensurate with its daunting task of
enforcing accountability of public officers. 4 0
b. "Independence" of constitutional
bodies vis-a-vis the Ombudsman's
independence
Under the Constitution, several constitutional bodies have been expressly
labeled as "independent." 4 1 The extent of the independence enjoyed by these
constitutional bodies however varies and is to be interpreted with two signi cant
considerations in mind: rst, the functions performed or the powers involved in a given
case; and second, consistency of any allowable interference to these powers and
functions, with the principle of checks and balances.
Notably, the independence enjoyed by the O ce of the Ombudsman and by the
Constitutional Commissions shares certain characteristics — they do not owe their
existence to any act of Congress, but are created by the Constitution itself; additionally,
they all enjoy scal autonomy. In general terms, the framers of the Constitution
intended that these "independent" bodies be insulated from political pressure to the
extent that the absence of "independence" would result in the impairment of their
core functions.
I n Bengzon v. Drilon, 4 2 involving the scal autonomy of the Judiciary, we ruled
against the interference that the President may bring and maintained that the
independence and the exibility of the Judiciary, the Constitutional Commissions and
the Office of the Ombudsman are crucial to our legal system.
The Judiciary, the Constitutional Commissions, and the Ombudsman must
have the independence and exibility needed in the discharge of their
constitutional duties . The imposition of restrictions and constraints on the
manner the independent constitutional o ces allocate and utilize the funds
appropriated for their operations is anathema to scal autonomy and violative
not only the express mandate of the Constitution but especially as regards the
Supreme Court, of the independence and separation of powers upon which the
entire fabric of our constitutional system is based.
The constitutional deliberations explain the Constitutional Commissions' need

for independence. In the deliberations of the 1973 Constitution, the delegates
amended the 1935 Constitution by providing for a constitutionally-created Civil Service
Commission, instead of one created by law, on the premise that the effectivity of this
body is dependent on its freedom from the tentacles of politics. 4 3 In a similar manner,
the deliberations of the 1987 Constitution on the Commission on Audit highlighted
the developments in the past Constitutions geared towards insulating the Commission
on Audit from political pressure. 4 4 ADcSHC
Notably, the Constitution also created an "independent" Commission on Human

Rights, although it enjoys a lesser degree of independence since it is not granted scal
autonomy in the manner scal autonomy is granted to the constitutional commissions.
The lack of scal autonomy notwithstanding, the framers of the 1987 Constitution
clearly expressed their desire to keep the Commission independent from the executive
branch and other political leaders:
MR. MONSOD.
We see the merits of the arguments of Commissioner Rodrigo. If we explain to
him our concept, he can advise us on how to reconcile his position with
ours. The position of the committee is that we need a body that would be
able to work and cooperate with the executive because the Commissioner
is right. Many of the services needed by this commission would need not
only the cooperation of the executive branch of the government but also of
the judicial branch of government. This is going to be a permanent
constitutional commission over time. We also want a commission to
function even under the worst circumstance when the executive
may not be very cooperative. However, the question in our mind is: Can
it still function during that time? Hence, we are willing to accept
suggestions from Commissioner Rodrigo on how to reconcile this. We
realize the need for coordination and cooperation. We also would like to
build in some safeguards that it will not be rendered useless by
an uncooperative executive.
xxx xxx xxx

MR. GARCIA.
. . . Very often, when international commissions or organizations on human rights
go to a country, the most credible organizations are independent human
rights bodies. Very often these are private organizations, many of which
are prosecuted, such as those we nd in many countries in Latin America.
In fact, what we are proposing is an independent body on human
rights, which would provide governments with credibility precisely
because it is independent of the present administration. Whatever
it says on the human rights situation will be credible because it is not
subject to pressure or control from the present political leadership.
Secondly, we all know how political fortunes come and go. Those who are in
power yesterday are in opposition today and those who are in power today
may be in the opposition tomorrow. Therefore, if we have a
Commission on Human Rights that would investigate and make
sure that the rights of each one is protected, then we shall have a
body that could stand up to any power, to defend the rights of
individuals against arrest, unfair trial, and so on. 4 5
These deliberative considerations abundantly show that the independent

constitutional commissions have been consistently intended by the framers to be
independent from executive control or supervision or any form of political
in uence. At least insofar as these bodies are concerned, jurisprudence is
not scarce on how the "independence" granted to these bodies prevents
presidential interference.
In Brillantes, Jr. v. Yorac, 4 6 we emphasized that the Constitutional Commissions,
which have been characterized under the Constitution as "independent," are not under
the control of the President, even if they discharge functions that are executive in
nature. The Court declared as unconstitutional the President's act of temporarily
appointing the respondent in that case as Acting Chairman of the Comelec "however
well-meaning" 4 7 it might have been.
In Bautista v. Senator Salonga, 4 8 the Court categorically stated that the tenure of
the commissioners of the independent Commission on Human Rights could not be
placed under the discretionary power of the President:
Indeed, the Court nds it extremely di cult to conceptualize how an o ce
conceived and created by the Constitution to be independent — as the
Commission on Human Rights — and vested with the delicate and vital
functions of investigating violations of human rights, pinpointing
responsibility and recommending sanctions as well as remedial measures
therefor, can truly function with independence and effectiveness, when
the tenure in o ce of its Chairman and Members is made dependent
on the pleasure of the President . Executive Order No. 163-A, being
antithetical to the constitutional mandate of independence for the Commission
on Human Rights has to be declared unconstitutional.HcTSDa
Again, in Atty. Macalintal v. Comelec, 4 9 the Court considered even the mere
review of the rules of the Commission on Elections by Congress a "trampling" of the
constitutional mandate of independence of this body. Obviously, the mere review of
rules places considerably less pressure on a constitutional body than the Executive's
power to discipline and remove key o cials of the O ce of the Ombudsman, yet the
Court struck down the law as unconstitutional.
The kind of independence enjoyed by the O ce of the Ombudsman certainly
cannot be inferior — but is similar in degree and kind — to the independence similarly
guaranteed by the Constitution to the Constitutional Commissions since all these
o ces ll the political interstices of a republican democracy that are crucial to its
existence and proper functioning. 5 0
c. Section 8(2) of RA No. 6770
vesting disciplinary authority
in the President over the
Deputy Ombudsman violates
the independence of the Office
of the Ombudsman and is thus
unconstitutional
Our discussions, particularly the Court's expressed caution against presidential
interference with the constitutional commissions, on one hand, and those expressed by
the framers of the 1987 Constitution, on the other, in protecting the independence of
the Constitutional Commissions, speak for themselves as overwhelming reasons to
invalidate Section 8 (2) of RA No. 6770 for violating the independence of the O ce of
the Ombudsman.
In more concrete terms, we rule that subjecting the Deputy Ombudsman to
discipline and removal by the President, whose own alter egos and o cials
in the Executive Department are subject to the Ombudsman's disciplinary
authority, cannot but seriously place at risk the independence of the O ce of
the Ombudsman itself. The O ce of the Ombudsman, by express constitutional
mandate, includes its key o cials, all of them tasked to support the Ombudsman in
carrying out her mandate. Unfortunately, intrusion upon the constitutionally-granted
independence is what Section 8 (2) of RA No. 6770 exactly did. By so doing, the law
directly collided not only with the independence that the Constitution guarantees to the
O ce of the Ombudsman, but inevitably with the principle of checks and balances that
the creation of an Ombudsman office seeks to revitalize.
What is true for the Ombudsman must be equally and necessarily true
for her Deputies who act as agents of the Ombudsman in the performance of
their duties. The Ombudsman can hardly be expected to place her complete trust in
her subordinate o cials who are not as independent as she is, if only because they are
subject to pressures and controls external to her O ce. This need for complete trust is
true in an ideal setting and truer still in a young democracy like the Philippines where
graft and corruption is still a major problem for the government. For these reasons,
Section 8 (2) of RA No. 6770 (providing that the President may remove a
Deputy Ombudsman) should be declared void.
The deliberations of the Constitutional Commission on the independence of the
Ombudsman fully support this position. Commissioner Florenz Regalado of the
Constitutional Commission expressed his apprehension that any form of presidential
control over the O ce of the Ombudsman would diminish its independence. 5 1 The
following exchanges between Commissioners Blas Ople and Christian Monsod further
reveal the constitutional intent to keep the O ce of the Ombudsman independent from
the President: EHTIDA
MR. OPLE.. . .
May I direct a question to the Committee? . . . [W]ill the Committee consider later
an amendment . . ., by way of designating the o ce of the Ombudsman as
a constitutional arm for good government, e ciency of the public service
and the integrity of the President of the Philippines, instead of creating
another agency in a kind of administrative limbo which would be
accountable to no one on the pretext that it is a constitutional body?
MR. MONSOD.
The Committee discussed that during our committee deliberations and when we
prepared the report, it was the opinion of the Committee — and I believe it
still is — that it may not contribute to the effectiveness of this o ce of the
Ombudsman precisely because many of the culprits in ine ciency,
injustice and impropriety are in the executive department. Therefore, as we
saw the wrong implementation of the Tanodbayan which was under the
tremendous in uence of the President, it was an ineffectual body and was
reduced to the function of a special scal. The whole purpose of our
proposal is precisely to separate those functions and to produce a vehicle
that will give true meaning to the concept of Ombudsman. Therefore, we
regret that we cannot accept the proposition. 5 2
The statements made by Commissioner Monsod emphasized a very logical principle:

the Executive power to remove and discipline key o cials of the O ce of
the Ombudsman, or to exercise any power over them, would result in an
absurd situation wherein the O ce of the Ombudsman is given the duty to
adjudicate on the integrity and competence of the very persons who can
remove or suspend its members. Equally relevant is the impression that would be
given to the public if the rule were otherwise. A complainant with a grievance against a
high-ranking o cial of the Executive, who appears to enjoy the President's favor, would
be discouraged from approaching the Ombudsman with his complaint; the
complainant's impression (even if misplaced), that the Ombudsman would be
susceptible to political pressure, cannot be avoided. To be sure, such an impression
would erode the constitutional intent of creating an O ce of the Ombudsman as
champion of the people against corruption and bureaucracy.
d. The mutual protection argument for
crafting Section 8 (2) of RA No. 6770
In crafting Section 8 (2) of RA No. 6770, Congress apparently addressed the
concern that a lack of an external check against the Deputy Ombudsman would result in
mutual protection between the Ombudsman and her Deputies.
While the preceding discussion already su ces to address this concern, it
should be added that this concern stands on shaky grounds since it ignores the
existing checks and balances already in place. On the one hand, the Ombudsman's
Deputies cannot protect the Ombudsman because she is subject to the impeachment
power of Congress. On the other hand, the Ombudsman's attempt to cover up the
misdeeds of her Deputies can be questioned before the Court on appeal or certiorari.
The same attempt can likewise subject her to impeachment.
The judicial recourse available is only consistent with the nature of the Supreme
Court as a non-political independent body mandated by the Constitution to settle
judicial and quasi-judicial disputes, whose judges and employees are not subject to the
disciplinary authority of the Ombudsman and whose neutrality would be less
questionable. The Members of the Court themselves may be subjected to the
impeachment power of Congress.
In these lights, the appeal, if any, of the mutual protection argument becomes
distinctly implausible. At the same time, the Court remains consistent with its
established rulings — that the independence granted to the Constitutional
Commissions bars any undue interference from either the Executive or Congress — and
is in full accord with constitutional intent.
e. Congress' power determines the
manner and causes for the removal
of non-impeachable officers is not
a carte blanch authority
Under Section 2, Article XI of the 1987 Constitution, 5 3 Congress is empowered
to determine the modes of removal from o ce of all public o cers and employees
except the President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman, who are all
impeachable officials.
The intent of the framers of the Constitution in providing that "[a]ll other public
o cers and employees may be removed from o ce as provided by law, but not by
impeachment" in the second sentence of Section 2, Article XI is to prevent Congress
from extending the more stringent rule of "removal only by impeachment" to favored
public o cers. 5 4 Understandably so, impeachment is the most di cult and
cumbersome mode of removing a public o cer from o ce. It is, by its nature, a sui
generis politico-legal process 5 5 that signals the need for a judicious and careful
handling as shown by the process required to initiate the proceeding; 5 6 the one-year
limitation or bar for its initiation; 5 7 the limited grounds for impeachment; 5 8 the defined
instrumentality given the power to try impeachment cases; 5 9 and the number of votes
required for a nding of guilt. 6 0 All these argue against the extension of this removal
mechanism beyond those mentioned in the Constitution.
On the practical side, our nation has witnessed the complications and problems
an impeachment proceeding entails, thus justifying its limited application only to the
o cials occupying the highest echelons of responsibility in our government. To name a
few, some of the negative practical effects of impeachment are: it stalls legislative
work; it is an expensive process in terms of the cost of prosecution alone; and, more
importantly, it is inherently divisive of the nation. 6 1 Thus, in a cost-bene t analysis of
adopting impeachment as a mechanism, limiting Congress' power to otherwise
legislate on the matter is far more advantageous to the country. DHEcCT
It is in these lights that the second sentence in Section 2, Article XI of the 1987
Constitution should be read. Contrary to the implied view of the minority, in no way can
this provision be regarded as blanket authority for Congress to provide for any ground
of removal it deems t. While the manner and cause of removal are left to
congressional determination, this must still be consistent with constitutional
guarantees and principles, namely: the right to procedural and substantive due process;
the constitutional guarantee of security of tenure; the principle of separation of powers;
and the principle of checks and balances. 6 2
In short, the authority granted by the Constitution to Congress to provide for the
manner and cause of removal of all other public o cers and employees does not mean
that Congress can ignore the basic principles and precepts established by the
Constitution.
In the same manner, the congressional determination of the identity of the
disciplinary authority is not a blanket authority for Congress to repose it on
whomsoever Congress chooses without running afoul of the independence enjoyed by
the O ce of the Ombudsman and without disrupting the delicate check and balance
mechanism under the Constitution. Properly viewed from this perspective, the core
constitutional principle of independence is observed and any possible absurdity
resulting from a contrary interpretation is avoided. In other words, while the
Constitution itself vested Congress with the power to determine the manner and cause
of removal of all non-impeachable o cials, this power must be interpreted consistent
with the core constitutional principle of independence of the O ce of the Ombudsman.
Our observation in Macalintal v. Comelec 6 3 is apt:
The ambit of legislative power under Article VI of the Constitution is
circumscribed by other constitutional provisions. One such provision is Section
1 of Article IX-A of the 1987 Constitution ordaining that constitutional
commissions such as the COMELEC shall be "independent."
While one may argue that the grounds for impeachment under Section 8 (2) of RA
No. 6770 is intended as a measure of protection for the Deputy Ombudsman and
Special Prosecutor — since these grounds are not intended to cover all kinds of o cial
wrongdoing and plain errors of judgment — this argument seriously overlooks the
erosion of the independence of the O ce of the Ombudsman that it creates. The mere
fact that a statutorily-created sword of Damocles hangs over the Deputy Ombudsman's
head, by itself, opens up all the channels for external pressures and in uence of
o cialdom and partisan politics. The fear of external reprisal from the very o ce he
is to cheek for excesses and abuses defeats the very purpose of granting
independence to the Office of the Ombudsman.
That a judicial remedy is available (to set aside dismissals that do not conform
to the high standard required in determining whether a Deputy Ombudsman committed
an impeachable offense) and that the President's power of removal is limited to
speci ed grounds are dismally inadequate when balanced with the constitutional
principle of independence. The mere ling of an administrative case against the
Deputy Ombudsman and the Special Prosecutor before the OP can already
result in their suspension and can interrupt the performance of their
functions, in violation of Section 12, Article XI of the Constitution. With only one term
allowed under Section 11, a Deputy Ombudsman or Special Prosecutor, if removable by
the President, can be reduced to the very same ineffective O ce of the Ombudsman
that the framers had foreseen and carefully tried to avoid by making these o ces
independent constitutional bodies.
At any rate, even assuming that the OP has disciplinary authority over the Deputy
Ombudsman, its decision nding Gonzales guilty of Gross Neglect of Duty and Grave
Misconduct constituting betrayal of public trust is patently erroneous. The OP's
decision perfectly illustrates why the requirement of impeachment-grounds in Section 8
(2) of RA No. 6770 cannot be considered, even at a minimum, a measure of protection
of the independence of the Office of the Ombudsman.
C. The Deputy Ombudsman: The Dismissal Issue
a. The Office of the President's
finding of gross negligence
has no legal and factual leg
to stand on
The OP's decision found Gonzales guilty of Gross Neglect of Duty and of Grave
Misconduct. The assailed Decision of the OP reads:
Upon consideration of the First Report, the evidence and allegations of
respondent Deputy Ombudsman himself, and other documentary evidence
gathered, this O ce nds that the inordinate and unjusti ed delay in the
resolution of Captain Mendoza's Motion for Reconsideration timely led on 5
November 2009 . . . amounted to gross neglect of duty and/or ine ciency in the
performance of official duty. 6 4
b. No gross neglect of duty

or inefficiency
Let us again briefly recall the facts.
1. November 5, 2009 — Mendoza led a Motion for Reconsideration of
the decision of the Ombudsman, 6 5 which was followed by a
Supplement to the Motion for Reconsideration; 6 6
2. December 14, 2009 6 7 — GIPO Garcia, who was assigned to review
these motions and make his recommendation for the appropriate
action, received the records of the case;
3. April 5, 2010 — GIPO Garcia released a draft order to be reviewed by
his immediate superior, Dir. Cecilio; 6 8
4. April 27, 2010 — Dir. Cecilio signed and forwarded to Gonzales this
draft order; 6 9
5. May 6, 2010 (or nine days after the records were forwarded
to Gonzales) — Gonzales endorsed the draft order for the nal
approval of the Ombudsman. 7 0
Clearly, when Mendoza hijacked the tourist bus on August 23, 2010, the records of the
case were already pending before Ombudsman Gutierrez.
Gross negligence refers to negligence characterized by the want of even the
slightest care, acting or omitting to act in a situation where there is a duty to act, not
inadvertently but willfully and intentionally, with a conscious indifference to
consequences insofar as other persons may be affected. In the case of public o cials,
there is gross negligence when a breach of duty is flagrant and palpable. 7 1 aIcSED
Gonzales cannot be guilty of gross neglect of duty and/or ine ciency since he
acted on the case forwarded to him within nine days. In nding Gonzales guilty, the
O P 7 2 relied on Section 8, Rule III of Administrative Order No. 7 (or the Rules of
Procedure of the O ce of the Ombudsman, series of 1990, as amended) in ruling that
Gonzales should have acted on Mendoza's Motion for Reconsideration within five days:
Section 8. Motion for reconsideration or reinvestigation: Grounds. — Whenever
allowable, a motion for reconsideration or reinvestigation may only be entertained
if led within ten (10) days from receipt of the decision or order by the party on
the basis of any of the following grounds:
a) New evidence had been discovered which materially affects the order,
directive or decision;
b) Grave errors of facts or laws or serious irregularities have been committed
prejudicial to the interest of the movant.
Only one motion for reconsideration or reinvestigation shall be allowed, and the
Hearing O cer shall resolve the same within ve (5) days from the date of
submission for resolution. [emphasis and underscore ours]
Even if we consider this provision to be mandatory, the period it requires cannot

apply to Gonzales since he is a Deputy Ombudsman whose obligation is to review the
case; he is not simply a Hearing O cer tasked with the initial resolution of the motion.
In Section 6 of Administrative Order No. 7 on the resolution of the case and submission
of the proposed decision, the period for resolving the case does not cover the period
within which it should be reviewed:
Section 6. Rendition of decision. — Not later than thirty (30) days after the
case is declared submitted for resolution, the Hearing O cer shall submit a
proposed decision containing his ndings and recommendation for the approval
of the Ombudsman. Said proposed decision shall be reviewed by the
Directors, Assistant Ombudsmen and Deputy Ombudsmen concerned.
With respect to low ranking public o cials, the Deputy Ombudsman
concerned shall be the approving authority. Upon approval, copies thereof
shall be served upon the parties and the head of the o ce or agency of which the
respondent is an o cial or employee for his information and compliance with the
appropriate directive contained therein. [italics and emphases supplied]
Thus, the OP's ruling that Gonzales had been grossly negligent for taking nine days,
instead of five days, to review a case was totally baseless.
c. No actionable failure to supervise
subordinates
The OP's claims that Gonzales could have supervised his subordinates to
promptly act on Mendoza's motion and apprised the Tanodbayan of the urgency of
resolving the same are similarly groundless.
The O ce of the Ombudsman is not a corner o ce in our bureaucracy. It
handles numerous cases that involve the potential loss of employment of many other
public employees. We cannot conclusively state, as the OP appears to suggest, that
Mendoza's case should have been prioritized over other similar cases. The Court has
already taken judicial notice of the steady stream of cases reaching the O ce of the
Ombudsman. 7 3 This consideration certainly militates against the OSG's observation
that there was "a grossly inordinate and inexcusable delay" 7 4 on the part of Gonzales.
Equally important, the constitutional guarantee of "speedy disposition of cases"
before, among others, quasi-judicial bodies, 7 5 like the O ce of the Ombudsman, is
itself a relative concept. 7 6 Thus, the delay, if any, must be measured in this objective
constitutional sense. Unfortunately, because of the very statutory grounds relied upon
by the OP in dismissing Gonzales, the political and, perhaps, "practical" considerations
got the better of what is legal and constitutional.
The facts do not show that Gonzales' subordinates had in any way been grossly
negligent in their work. While GIPO Garcia reviewed the case and drafted the order for
more than three months, it is noteworthy that he had not drafted the initial decision and,
therefore, had to review the case for the rst time. 7 7 Even the Ombudsman herself
could not be faulted for acting on a case within four months, given the amount of cases
that her office handles.
The point is that these are not inordinately long periods for the work involved:
examination of the records, research on the pertinent laws and jurisprudence, and
exercise of legal judgment and discretion. If this Court rules that these periods per se
constitute gross neglect of duty, the Ombudsman's constitutional mandate to
prosecute all the erring o cials of this country would be subjected to an unreasonable
and overwhelming constraint. Similarly, if the Court rules that these periods per se
constitute gross neglect of duty, then we must be prepared to reconcile this with the
established concept of the right of speedy disposition of cases — something the Court
may be hard put to justify.
d. No undue interest
The OP also found Gonzales guilty of showing undue interest in Mendoza's case
by having the case endorsed to the O ce of the Ombudsman and by resolving it
against Mendoza on the basis of the unveri ed complaint-a davit of the alleged victim,
Kalaw.
The fact that Gonzales had Mendoza's case endorsed to his o ce lies within his
mandate, even if it were based merely on the request of the alleged victim's father. The
Constitution empowers the Ombudsman and her Deputies to act promptly on
complaints led in any form or manner against any public o cial or employee of the
government. 7 8 This provision is echoed by Section 13 of RA No. 6770, 7 9 and by
Section 3, Rule III of Administrative Order No. 7, series of 1990, as amended. 8 0
HSTCcD
Moreover, Gonzales and his subordinates did not resolve the complaint only on
the basis of the unveri ed a davit of Kalaw. Based on the prosecution o cer's
recommendations, the nding of guilt on the part of Mendoza, et al. was based on their
admissions as well. Mendoza, et al. admitted that they had arrested Kalaw based on
two tra c violations and allowed him to stay the whole night until the following
morning in the police precinct. The next morning, Kalaw was allowed to leave the
precinct despite his failure to show a valid license and based merely on his promise to
return with the proper documents. 8 1 These admissions led Gonzales and his staff to
conclude that Mendoza, et al. irregularly acted in apprehending Kalaw, since the proper
procedure for the apprehension of tra c violators would be to give them a ticket and
to file a case, when appropriate. 8 2
Lastly, we cannot deduce undue interest simply because Gonzales' decision
differs from the decision of the PNP-IAS (which dismissed the complaint against
Mendoza). To be sure, we cannot tie the hands of any judicial or quasi-judicial body by
ruling that it should always concur with the decisions of other judicial or quasi-judicial
bodies which may have also taken cognizance of the case. To do so in the case of a
Deputy Ombudsman would be repugnant to the independence that our Constitution has
speci cally granted to this o ce and would nullify the very purpose for which it was
created.
e. Penalty of dismissal totally
incommensurate with established
facts
Given the lack of factual basis for the charges against Gonzales, the penalty of
removal imposed by the OP necessarily suffers grave in rmity. Basic strictures of
fair play dictate that we can only be held liable for our own misdeeds; we can
be made to account only for lapses in our responsibilities. It is notable that
of all the o cers, it was Gonzales who took the least time — nine days —
followed by Cecilio, who took 21 days; Garcia — the writer of the draft — took
less than four months, and the Ombudsman, less than four months until the
kidnapping incident rendered Mendoza's motion moot.
In these lights, the decision of the OP is clearly and patently wrong. This
conclusion, however, does not preclude the Ombudsman from looking into any other
possible administrative liability of Gonzales under existing Civil Service laws, rules and
regulations.
D. The Special Prosecutor: The Constitutional Issue
The 1987 Constitution created a new, independent O ce of the Ombudsman.
The existing Tanodbayan at the time 8 3 became the O ce of the Special Prosecutor
under the 1987 Constitution. While the composition of the independent O ce of the
Ombudsman under the 1987 Constitution does not textually include the Special
Prosecutor, the weight of the foregoing discussions on the unconstitutionality of
Section 8 (2) of RA No. 6770 should equally apply to the Special Prosecutor on the
basis of the legislative history of the O ce of the Ombudsman as expounded in
jurisprudence.
Under the 1973 Constitution, 8 4 the legislature was mandated to create the
O ce of the Ombudsman, known as the Tanodbayan, with investigative and
prosecutorial powers. Accordingly, on June 11, 1978, President Ferdinand Marcos
enacted PD No. 1487. 8 5
Under PD No. 1486, 8 6 however, the "Chief Special Prosecutor" ( CSP) was given
the "exclusive authority" to conduct preliminary investigation and to prosecute cases
that are within the jurisdiction of the Sandiganbayan. 8 7 PD No. 1486 expressly gave
the Secretary of Justice the power of control and supervision over the
Special Prosecutor. 8 8 Consistent with this grant of power, the law also authorized
the Secretary of Justice to appoint or detail to the O ce of the CSP "any o cer or
employee of Department of Justice or any Bureau or O ce under the executive
supervision thereof" to assist the Office of the CSP.
In December 1978, PD No. 1607 8 9 practically gave back to the Tanodbayan the
powers taken away from it by the O ce of the CSP. The law "created in the O ce of
the Tanodbayan an O ce of the Chief Special Prosecutor" under the Tanodbayan's
c o nt r o l, 9 0 with the exclusive authority to conduct preliminary investigation and
prosecute all cases cognizable by the Sandiganbayan. Unlike the earlier decree, the law
also empowered the Tanodbayan to appoint Special Investigators and subordinate
personnel and/or to detail to the O ce of the CSP any public o cer or employees who
"shall be under the supervision and control of the Chief Special Prosecutor." 9 1 In 1979,
PD No. 1630 further amended the earlier decrees by transferring the powers
previously vested in the Special Prosecutor directly to the Tanodbayan
himself. 9 2
This was the state of the law at the time the 1987 Constitution was rati ed.
Under the 1987 Constitution, an "independent O ce of the Ombudsman" is created. 9 3
The existing Tanodbayan is made the O ce of the Special Prosecutor, "who
shall continue to function and exercise its powers as no w 9 4 or hereafter may be
provided by law." 9 5
Other than the Ombudsman's Deputies, the Ombudsman shall appoint all other
officials and employees of the Office of the Ombudsman. 9 6 Section 13 (8), Article XI of
the 1987 Constitution provides that the Ombudsman may exercise "such other powers
or perform such functions or duties as may be provided by law. " Pursuant to this
constitutional command, Congress enacted RA No. 6770 to provide for the functional
and structural organization of the O ce of the Ombudsman and the extent of its
disciplinary authority.
In terms of composition, Section 3 of RA No. 6770 de nes the composition of
the O ce of the Ombudsman, including in this O ce not only the o ces of the several
Deputy Ombudsmen but the O ce of the Special Prosecutor as well. In terms of
appointment, the law gave the President the authority to appoint the Ombudsman, his
Deputies and the Special Prosecutor, from a list of nominees prepared by the Judicial
and Bar Council. In case of vacancy in these positions, the law requires that the vacancy
be filled within three (3) months from occurrence. 9 7 AIHaCc
The law also imposes on the Special Prosecutor the same quali cations it
imposes on the Ombudsman himself/herself and his/her deputies. 9 8 Their terms of
office, 9 9 prohibitions and quali cations, 1 0 0 rank and salary are likewise the same. 1 0 1
The requirement on disclosure 1 0 2 is imposed on the Ombudsman, the Deputies and
the Special Prosecutor as well. In case of vacancy in the O ce of the Ombudsman, the
Overall Deputy cannot assume the role of Acting Ombudsman; the President may
designate any of the Deputies or the Special Prosecutor as Acting Ombudsman. 1 0 3
The power of the Ombudsman and his or her deputies to require other government
agencies to render assistance to the O ce of the Ombudsman is likewise enjoyed by
the Special Prosecutor. 1 0 4
Given this legislative history, the present overall legal structure of the O ce of
the Ombudsman, both under the 1987 Constitution and RA No. 6770, militates against
an interpretation that would insulate the Deputy Ombudsman from the disciplinary
authority of the OP and yet expose the Special Prosecutor to the same ills that a grant
of independence to the Office of the Ombudsman was designed for.
Congress recognized the importance of the Special Prosecutor as a necessary
adjunct of the Ombudsman, aside from his or her deputies, by making the O ce of the
Special Prosecutor an organic component of the O ce of the Ombudsman and by
granting the Ombudsman control and supervision over that o ce. 1 0 5 This power of
control and supervision includes vesting the O ce of the Ombudsman with the power
to assign duties to the Special Prosecutor as he/she may deem t. Thus, by
constitutional design, the Special Prosecutor is by no means an ordinary
subordinate but one who effectively and directly aids the Ombudsman in the
exercise of his/her duties, which include investigation and prosecution of
officials in the Executive Department.
Under Section 11 (4) of RA No. 6770, the Special Prosecutor handles the
prosecution of criminal cases within the jurisdiction of the Sandiganbayan and this
prosecutorial authority includes high-ranking executive o cials. For emphasis,
subjecting the Special Prosecutor to disciplinary and removal powers of the President,
whose own alter egos and o cials in the Executive Department are subject to the
prosecutorial authority of the Special Prosecutor, would seriously place the
independence of the Office of the Ombudsman itself at risk.
Thus, even if the O ce of the Special Prosecutor is not expressly made part of
the composition of the O ce of the Ombudsman, the role it performs as an organic
component of that O ce militates against a differential treatment between the
Ombudsman's Deputies, on one hand, and the Special Prosecutor himself, on the other.
What is true for the Ombudsman must be equally true, not only for her
Deputies but, also for other lesser o cials of that O ce who act directly as
agents of the Ombudsman herself in the performance of her duties.
I n Acop v. O ce of the Ombudsman, 1 0 6 the Court was confronted with an
argument that, at bottom, the O ce of the Special Prosecutor is not a subordinate
agency of the O ce of the Ombudsman and is, in fact, separate and distinct from the
latter. In debunking that argument, the Court said:
Firstly, the petitioners misconstrue Commissioner Romulo's statement as
authority to advocate that the intent of the framers of the 1987
Constitution was to place the O ce of the Special Prosecutor under the
Office of the President . . . .
In the second place, Section 7 of Article XI expressly provides that the then
existing Tanodbayan, to be henceforth known as the O ce of the Special
Prosecutor, "shall continue to function and exercise its powers as now or hereafter
may be provided by law, except those conferred on the O ce of the Ombudsman
created under this Constitution." The underscored phrase evidently refers to the
Tanodbayan's powers under P.D. No. 1630 or subsequent amendatory legislation.
It follows then that Congress may remove any of the Tanodbayan's/Special
Prosecutor's powers under P.D. No. 1630 or grant it other powers, except those
powers conferred by the Constitution on the Office of the Ombudsman.
Pursuing the present line of reasoning, when one considers that by express
mandate of paragraph 8, Section 13, Article XI of the Constitution, the
Ombudsman may "exercise such other powers or perform functions or duties as
may be provided by law," it is indubitable then that Congress has the power to
place the O ce of the Special Prosecutor under the O ce of the Ombudsman.
107
Thus, under the present Constitution, there is every reason to treat the Special
Prosecutor to be at par with the Ombudsman's deputies, at least insofar as an
extraneous disciplinary authority is concerned, and must also enjoy the same grant of
independence under the Constitution.
III. SUMMARY OF VOTING
In the voting held on January 28, 2014, by a vote of 8-7, 1 0 8 the Court resolved to
reverse its September 4, 2012 Decision insofar as petitioner Gonzales is
concerned (G.R. No. 196231). We declared Section 8 (2) of RA No. 6770
unconstitutional by granting disciplinary jurisdiction to the President over a Deputy
Ombudsman, in violation of the independence of the Office of the Ombudsman.
However, by another vote of 8-7, 1 0 9 the Court resolved to maintain the validity
of Section 8 (2) of RA No. 6770 insofar as Sulit is concerned. The Court did not
consider the O ce of the Special Prosecutor to be constitutionally within the O ce of
the Ombudsman and is, hence, not entitled to the independence the latter enjoys under
the Constitution.
WHEREFORE, premises considered, the Court resolves to declare Section 8 (2)
UNCONSTITUTIONAL . This ruling renders any further ruling on the dismissal of
Deputy Ombudsman Emilio Gonzales III unnecessary, but is without prejudice to the
power of the Ombudsman to conduct an administrative investigation, if warranted, into
the possible administrative liability of Deputy Ombudsman Emilio Gonzales III under
pertinent Civil Service laws, rules and regulations.
SO ORDERED.
Velasco, Jr., Leonardo-de Castro, Bersamin, Abad, Perez and Mendoza, JJ.,
concur.
Sereno, C.J., I join J. Bernabe's opinion.
Carpio, J., I join J. Bernabe's Dissenting Opinion.
Peralta, J., I join J. Bernabe's opinion.
Del Castillo, J., I concur with the position of J. Bernabe.
Villarama, Jr., J., concurs with J. Bernabe's.
Reyes, J., I concur with J. Bernabe's position.
Perlas-Bernabe, J., Pls. see concurring and dissenting opinion.
Leonen, J., see separate concurring and dissenting opinion.
Separate Opinions
PERLAS-BERNABE , J., concurring and dissenting :
I concur with the ponencia in nding the Decision dated March 31, 2011 of the
O ce of the President of the Philippines (OP) to be patently erroneous considering
that the acts therein attributed to petitioner Emilio A. Gonzales III (Gonzales), in his
capacity as Deputy Ombudsman, do not constitute betrayal of public trust. In the
Court's Decision dated September 4, 2012 in the main, 1 it was explained that the
phrase "betrayal of public trust" refers to acts which are just short of being criminal but
constitute gross faithlessness against public trust, tyrannical abuse of power,
inexcusable negligence of duty, favoritism, and gross exercise of discretionary powers.
In other words, acts that should constitute betrayal of public trust as to warrant
removal from o ce may be less than criminal but must be attended by bad faith and of
such gravity and seriousness as the other grounds for impeachment. 2 The OP,
however, dismissed Gonzales based on acts which, as thoroughly detailed and
discussed in the ponencia, do not t the foregoing legal description. Accordingly, its
(OP) decision was tainted with patent error. ADSTCI
Nevertheless, since the majority voted to declare the jurisdictional basis for the
OP's authority to discipline the Deputy Ombudsmen under Section 8 (2) 3 of Republic
Act No. (RA) 6770 4 as unconstitutional, the fallo of the ponencia states that any further
ruling on the dismissal of Gonzales is rendered unnecessary, viz.: 5

WHEREFORE, premises considered, the Court resolves to declare Section 8(2)
UNCONSTITUTIONAL . This ruling renders any further ruling on the dismissal of
Deputy Ombudsman Emilio Gonzales III unnecessary, but is without prejudice to
the power of the Ombudsman to conduct an administrative investigation, if
warranted, into the possible administrative liability of Deputy Ombudsman Emilio
Gonzales III under pertinent Civil Service laws, rules and regulations.
SO ORDERED.
I dissent.
To my mind, Section 8 (2) of RA 6770, which confers the OP with jurisdiction to
discipline not only the Special Prosecutor but also the Deputy Ombudsmen, is wholly
constitutional. To this end, I join the majority in upholding the provision's
constitutionality insofar as the Special Prosecutor is concerned, but register my dissent
against declaring the provision unconstitutional insofar as the Deputy Ombudsmen are
concerned. 6 The reasons therefor are explained in the ensuing discussion.
In dealing with constitutional challenges, one must be cognizant of the rule that
every law is presumed constitutional and therefore should not be stricken down unless
its provisions clearly and unequivocally, and not merely doubtfully, breach the
Constitution. 7 It is well-established that this presumption of constitutionality can be
overcome only by the clearest showing that there was indeed an infraction of the
Constitution, and only when such a conclusion is reached by the required majority may
the Court pronounce, in the discharge of the duty it cannot escape, that the challenged
act must be struck down. 8
I n Victoriano v. Elizalde Rope Workers' Union, 9 the judicious instruction is that
the "challenger must negate all possible bases" and the adjudicating tribunal must not
concern itself with the "wisdom, justice, policy, or expediency of a statute"; "if any
reasonable basis may be conceived which supports the statute, it will be upheld": 1 0
All presumptions are indulged in favor of constitutionality; one who attacks a
statute, alleging unconstitutionality must prove its invalidity beyond a reasonable
doubt, that a law may work hardship does not render it unconstitutional; that if
any reasonable basis may be conceived which supports the statute, it
will be upheld, and the challenger must negate all possible bases; that
the courts are not concerned with the wisdom, justice, policy, or
expediency of a statute; and that a liberal interpretation of the constitution in
favor of the constitutionality of legislation should be adopted. (Emphasis
supplied)
Similarly, as held in Salvador v. Mapa, 1 1 it was held that an "arguable implication"

is not enough to strike down the statute subject of constitutional scrutiny; thus, the
guiding notion is that "to doubt is to sustain ": 1 2
The constitutionality of laws is presumed. To justify nulli cation of a law, there
must be a clear and unequivocal breach of the Constitution, not a doubtful or
arguable implication; a law shall not be declared invalid unless the con ict
with the Constitution is clear beyond reasonable doubt. The presumption is
always in favor of constitutionality. To doubt is to sustain. . . . . (Emphases
supplied)
Applying this framework, Section 8 (2) of RA 6770, both with respect to the OP's
disciplinary authority over the Special Prosecutor and the Deputy Ombudsmen, should
be upheld in its entirety since it has not been shown that said provision "clearly and
unequivocally" offends any constitutional principle. By constitutional design, disciplinary
authority over non-impeachable o cers, such as the Special Prosecutor and Deputy
Ombudsmen, was left to be determined by future legislation. This much is clear from
the text of the Constitution. Section 2, Article XI of the 1987 Constitution explicitly
provides that non-impeachable o cers may be removed from o ce as may be
provided by law:
Section 2.The President, the Vice-President, the Members of the Supreme Court,
the Members of the Constitutional Commissions, and the Ombudsman may be
removed from o ce on impeachment for, and conviction of, culpable violation
of the Constitution, treason, bribery, graft and corruption, other high crimes, or
betrayal of public trust. All other public o cers and employees may be
removed from o ce as provided by law , but not by impeachment.
(Emphasis and underscoring supplied)
While Section 5, Article XI of the 1987 Constitution "created the independent

O ce of the Ombudsman" — the provision which is the legal anchor of the majority's
position on this matter — the Constitution neither de nes what this principle of
Ombudsman independence means nor prohibits the o ce's subjection to an external
disciplining authority. Meanwhile, what is discoverable from the deliberations of the
Constitutional Commission on Article XI, particularly those which are quoted in the
ponencia, 1 3 is that the O ce of the Ombudsman was merely intended to be a separate
o ce from the Executive. This idea of organizational separation was meant to obviate
the Executive Department from exercising the encompassing powers of control and
supervision over the O ce of the Ombudsman. It is only in this regard that the O ce of
the Ombudsman was deemed by the Framers as independent.
To be sure, the power of control is the power of an o cer to alter or modify or
set aside what a subordinate o cer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter. An o cer in control lays
down the rules in the doing of an act. If they are not followed, he may, in his discretion,
order the act undone or re-done by his subordinate or he may even decide to do it
himself. On the other hand, the power of supervision means "overseeing or the authority
of an o cer to see to it that the subordinate o cers perform their duties." If the
subordinate o cers fail or neglect to ful ll their duties, the o cial may take such
action or step as prescribed by law to make them perform their duties. Essentially, the
power of supervision means no more than the power of ensuring that laws are faithfully
executed, or that subordinate o cers act within the law. The supervisor or
superintendent merely sees to it that the rules are followed, but he does not lay down
the rules, nor does he have discretion to modify or replace them. 1 4 By virtue of these
de nitions, it is easy to envision how the O ce of the Ombudsman's functions would
be unduly hampered if it was to be subjected to executive control and supervision: with
control, the O ce of the Ombudsman's actions could be altered, modi ed or
substituted by that of the President, and with supervision, the o ce would operate
under constant scrutiny of a separate but superior authority. With this in mind, the
O ce of the Ombudsman's independence should only be construed in the context of
organizational separation which does not, as it should not, obviate the possibility of
having an external disciplining authority over some of its o cials pursuant to the
checks and balances principle. AcIaST
Verily, the principle of checks and balances is not a general apothegm for total
insulation but rather of functional interrelation. It is clear that no one o ce of
government works in absolute autonomy. To determine the gradations and contours of
institutional independence, one must look into the blueprint of the Constitution which
embodies the will and wisdom of the people. This is precisely what Section 2, Article XI
of the 1987 Constitution states: non-impeachable o cers, such as the Special
Prosecutor and the Deputy Ombudsmen, may be removed from o ce as may be
provided by law. Indeed, this provision coupled with the Framers' silence on the
meaning of Ombudsman independence should carve out space for Congress to de ne,
by its plenary legislative power acting as representatives of the people, the parameters
of discipline over these so-called non-impeachable o cers, including, among others,
the Special Prosecutor and the Deputy Ombudsmen.
In any event, without a prohibition that may be clearly and unequivocally
ascertained from the text and deliberations of the Constitution against the disciplinary
authority provided under Section 8 (2) of RA 6770, the overriding approach should
operate — to doubt is to sustain; all doubts are to be construed in favor of
constitutionality.
Accordingly, I vote to uphold the constitutionality of Section 8 (2) of RA 6770 in
its entirety.
LEONEN , J., concurring and dissenting :
I vote to dismiss the motion for partial reconsideration. 1 However, the

constitutional challenge to Section 8, Paragraph (2) of Republic Act No. 6770 2 or the
Ombudsman Act insofar as the Deputy Ombudsman is concerned should succeed.
On August 23, 2010, dismissed Manila Police District Police Senior Inspector
(Captain) Rolando del Rosario Mendoza took hostage a Hong Kong tour group with
three families, two couples, a mother and daughter, and a tour leader at the Quirino
Grandstand. 3 Apparently, he was driven to despondency by many causes. This included
his frustration with a case 4 pending against him at the O ce of the Ombudsman. In a
decision 5 dated February 16, 2009, the O ce of the Ombudsman found Mendoza and
four others liable for grave misconduct. This led to Mendoza's dismissal from the
Philippine National Police as well as the forfeiture of his retirement benefits.
The Ombudsman exercised jurisdiction over this case by virtue of a letter which
was issued motu proprio by petitioner, Emilio Gonzales III, to endorse the pending case
to his o ce for administrative adjudication. 6 This was despite the fact that the same
case against Rolando Mendoza was already "dismissed by the Manila City Prosecutors
O ce for lack of probable cause and by the [Philippine National Police-National Capital
Region] Internal Affairs Service for failure of the complainant to submit evidence and
prosecute the case." 7
According to the O ce of the President, petitioner Gonzales did not state a
reason for the endorsement of the case to the O ce of the Ombudsman. 8 The O ce
of the President also found that the O ce of the Deputy Ombudsman made Atty.
Clarence V. Guinto of the Philippine National Police-Criminal Investigation and
Detection Group-National Capital Region serve as the nominal complainant in the case
against Mendoza. 9 Atty. Guinto did not even summon or compel Christian Kalaw, the
original complainant in the case against Mendoza, to a rm his complaint-a davit 1 0
before the Ombudsman or require Kalaw to "submit any position paper as required." 1 1
At one point during the hostage-taking incident, Manila City Vice Mayor Francisco
"Isko" Moreno interceded. He was already at the O ce of the Ombudsman when he
asked Mendoza if there was someone there that he wanted to talk to. Mendoza was
very thankful to Vice Mayor Moreno and requested if he could talk to a certain Director
Gonzales of the Office of the Ombudsman.
Mendoza spoke to Deputy Ombudsman Gonzales. After some time, Mendoza
was heard shouting and uttering invectives: "Putang ina mo, humihingi ka pa ng
P150,000 para sa kaso ko, kung may mamamatay dito kasalanan mo lahat! (You son of
a bitch, you are asking for P150,000 for my case, if anyone dies here it's all your fault!)."
12
Moreno overheard Gonzales say, "O wala akong alam diyan (I don't know anything
about that)." 1 3
Emilio Gonzales III could have betrayed the public trust.
The O ce of the President acted on what it saw as substantial evidence that
Deputy Ombudsman Gonzales delayed acting on the motion for reconsideration 1 4 of
the late Rolando Mendoza and that Gonzales asked for P150,000.00 to decide on the
case. This was also the nding of the Incident Investigation and Review Committee 1 5
created after the hostage-taking incident.
The duties of the Ombudsman and Deputy Ombudsman are provided for in
Article XI, Section 13 of the 1987 Constitution. 1 6 These include the duty to direct any
public o cial or employee of the government to perform and expedite any act or duty
required by law, or to stop, prevent, and correct any abuse or impropriety in the
performance of duties. 1 7 Certainly, it would be betrayal of public trust in the highest
order when a Deputy Ombudsman himself committed actions that he is constitutionally
mandated to curtail.
This case came to this court through a petition for certiorari 1 8 led by Emilio
Gonzales III (docketed as G.R. No. 196231) alleging grave abuse of discretion on the
part of the O ce of the President for its decision 1 9 dated March 31, 2011. This was
consolidated with G.R. No. 196232, a petition for certiorari and prohibition 2 0 led by
Wendell Barreras-Sulit against the order 2 1 of the Office of the Executive Secretary.
The other case consolidated with the case of Emilio Gonzalez III involves an
order issued by the O ce of the Executive Secretary to petitioner Special Prosecutor
Wendell Barreras-Sulit. The order required her to submit a written explanation why no
disciplinary action should be taken against her, based on her role in securing a plea
bargaining agreement in favor of Major Carlos P. Garcia. DHTCaI
Major Carlos P. Garcia was accused of embezzling millions of pesos and dollars
as well as amassing properties in violation of the Plunder Law. The Committee on
Justice of the House of Representatives found that petitioner Barreras-Sulit committed
acts that were tantamount to culpable violation of the Constitution and betrayal of
public trust. Hence, a case docketed as OP-DC-Case No. 11-B-003 was led by the
O ce of the President against petitioner Barreras-Sulit and was set for preliminary
investigation.
Both cases were consolidated because they raised the issue of the
constitutionality of Section 8, Paragraph (2) of Republic Act No. 6770 or the
Ombudsman Act. Petitioners questioned the constitutionality of this provision, which
states that the Office of the President may remove the Deputy Ombudsman and Special
Prosecutor from o ce on the grounds of removal of the Ombudsman and after due
process.
The initial voting of this court on whether Gonzales could be found liable for
betrayal of the public trust was 14-0. All the Justices then agreed that there was no
substantial basis to support the nding of the O ce of the President. On the
constitutionality of Section 8, Paragraph (2) of the Ombudsman Act, the vote was
evenly split. Seven voted to declare the provision unconstitutional. The other seven
voted to uphold. Thus, in its September 4, 2012 decision, 2 2 this court denied the
challenge to the constitutionality of Section 8, Paragraph (2) of the Ombudsman Act
and ordered the reinstatement of Gonzales and the continuation of the proceedings
against Barreras-Sulit. 2 3 This court then granted Gonzales' petition for certiorari, 2 4
insofar as it reversed the public respondent O ce of the President's decision in OP
Case No. 10-J-460.
The O ce of the Solicitor General then led a motion for partial reconsideration
25 dated October 10, 2012 of the September 4, 2012 decision of this court. As its sole
ground for allowance, the motion for partial reconsideration raised that the O ce of
the President did not gravely abuse its discretion when it found "petitioner Gonzales
guilty of betrayal of public trust and imposed upon him the penalty of dismissal from
office." 2 6
In my view, the motion for partial reconsideration raises three issues that require
discussion.
The rst issue is whether the constitutionality of Section 8, Paragraph (2) of the
Ombudsman Act was reopened even if this was not raised in the actual motion for
partial reconsideration of the Office of the Solicitor General.
The second issue is whether Section 8, Paragraph (2) of the Ombudsman Act is
constitutional.
The third issue is whether the actions of petitioner Emilio Gonzales III constitute
betrayal of public trust and warrant his dismissal from his position, assuming that
Section 8, Paragraph (2) of the Ombudsman Act is constitutional.
I
The motion for partial reconsideration reopens the entire case. These cases
cannot be fully resolved unless the question of the constitutionality of Section 8,
Paragraph (2) of the Ombudsman Act is again decided by this court. The question
whether petitioner Gonzales is guilty of betrayal of public trust also involves the matter
as to whether that ground exists at all. This means that we are constrained to address
the constitutional issue as to whether it is the O ce of the President that can
constitutionally exercise disciplinary powers over the Deputy Ombudsman.
This court is a court of general jurisdiction. It has the ability to determine the
scope of the issues it can decide on in order to ful ll its constitutional duty to exercise
its judicial power. This power must be fully exercised to achieve the ends of justice.
Judicial power includes determining the constitutionality of the actions of a
branch of government. In Luz Farms v. Secretary of the Department of Agrarian Reform,
2 7 this court held:
It has been established that this Court will assume jurisdiction over a
constitutional question only if it is shown that the essential requisites of a judicial
inquiry into such a question are rst satis ed. Thus, there must be an actual case
or controversy involving a con ict of legal rights susceptible of judicial
determination, the constitutional question must have been opportunely raised by
the proper party, and the resolution of the question is unavoidably necessary to
the decision of the case itself . . . .
ScTCIE
However, despite the inhibitions pressing upon the Court when confronted with
constitutional issues, it will not hesitate to declare a law or act invalid when it is
convinced that this must be done. . . . Blandishment is as ineffectual as
intimidation, for all the awesome power of the Congress and Executive, the Court
will not hesitate "to make the hammer fall heavily," where the acts of these
departments, or of any o cial, betray the people's will as expressed in the
Constitution . . . .
Thus, where the legislature or the executive acts beyond the scope of its
constitutional powers, it becomes the duty of the judiciary to declare what the
other branches of the government had assumed to do, as void. This is the
essence of judicial power conferred by the Constitution "(I)n one Supreme Court
and in such lower courts as may be established by law" (Art. VIII, Section 1 of the
1935 Constitution; Article X, Section I of the 1973 Constitution and which was
adopted as part of the Freedom Constitution, and Article VIII, Section 1 of the
1987 Constitution) and which power this Court has exercised in many instances.
(Citations omitted) 2 8
The constitutional challenge must be squarely addressed and threshed out in its
entirety because the constitutionality of the law itself is the very lis mota of the case. In
People v. Vera, 2 9 this court first presented the idea of lis mota:
It is a well-settled rule that the constitutionality of an act of the legislature will not
be determined by the courts unless that question is properly raised and presented
in appropriate cases and is necessary to a determination of the case; i.e., the
issue of constitutionality must be the very lis mota presented. (McGirr vs.
Hamilton and Abreu [1915], 30 Phil. 563, 568; 6 R. C. L., pp. 76, 77; 12 C.J., pp.
780-782, 783.) 3 0
In line with the doctrine of Vera, this court's disposition of the case depends on a
nal determination of the constitutionality of Section 8, Paragraph (2) of Republic Act
No. 6770 or the Ombudsman Act.
While it appears that the constitutionality of the Ombudsman Act was not raised
in the motion for partial reconsideration, no nal determination can be made without
addressing the constitutional point.
Any determination of petitioner Gonzales' liability by this court is contingent on
the constitutionality of Section 8, Paragraph (2) of the Ombudsman Act. This is the
basis of the putative disciplinary authority vested in the O ce of the President over the
Deputy Ombudsman and the O ce of the Special Prosecutor. If this provision is
unconstitutional, then no valid action on this case can emanate from the O ce of the
President.
We cannot be made to issue an incomplete ruling simply because the motion for
reconsideration was partial. We are a full court with full powers with a whole duty to
determine when the Constitution is violated.
In Juco v. Heirs of Tomas Siy Chung Fu, 31 this court elaborated on the effect of a
motion for reconsideration:
A motion for reconsideration has the effect of suspending the statutory period
after which an order, decision, or judgment, in connection with which said
motion was led, becomes nal. In effect, such motion for reconsideration has
prevented the decision from attaining finality. 3 2
This case can be adjudicated in its entirety because the September 4, 2012
decision of this court has not yet achieved finality.
II
When the Judiciary is asked to ascertain constitutional limitations or invalidate
the acts of a co-equal body such as the Executive, what it puts forward is the
supremacy of the Constitution. Since its inception, the Philippine Constitution has
always provided for a structured and evolving system of separation of powers and
checks and balances. The landmark case of Angara v. Electoral Commission 3 3 served
as the jurisprudential benchmark for this system:
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 n 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. 3 4
The principle of checks and balances and the principle of the separation of
powers are not limited to the interaction of the powers of the Executive, Legislative, and
the Judiciary. The principle of checks and balances, as well as separation of powers,
also applies to the interaction of the three branches of government with the other
constitutional organs, particularly the Constitutional Commissions as well as the O ce
of the Ombudsman. Angara itself was an elaborate examination of the relationship of
the three branches with the Electoral Commission, which this court in Angara ruled was,
indeed, an independent constitutional organ.
The principle of checks and balances allows constitutionally enshrined bodies or
organs and governmental departments to correct mistakes and prevent excesses done
by other branches. It also ensures a degree of cooperation while being clear as to what
acts may constitute undue encroachments upon another branch's or organ's
constitutional duties. DaACIH
Section 8, Paragraph (2) of Republic Act No. 6770 provides:

Section 8. Removal; Filling of Vacancy. —
xxx xxx xxx
(2) A Deputy, or the Special Prosecutor, may be removed from o ce by the
President for any of the grounds provided for the removal of the Ombudsman,
and after due process.
In order to determine whether it can pass a constitutional challenge in view of the

facts arising from these consolidated cases, we should start rst with textual
reference. That is, we should check all the relevant and applicable provisions of the
Constitution.
Article XI, Section 5 of the 1987 Constitution reads:
There is hereby created the independent O ce of the Ombudsman, composed
of the Ombudsman to be known as Tanodbayan, one overall Deputy and at
least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for
the military establishment may likewise be appointed. (Emphasis supplied)
In relation to this provision, the Ombudsman is among the o cials enumerated
in Article XI, Section 2 as those who can be removed from o ce only through
impeachment.
The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be
removed from o ce on impeachment for, and conviction of, culpable violation
of the Constitution, treason, bribery, graft and corruption, other high crimes, or
betrayal of public trust. All other public o cers and employees may be removed
from office as provided by law, but not by impeachment. (Emphasis supplied)
The phrase "as provided by law" is the apparent basis for the enactment of
Section 8, Paragraph (2) of Republic Act No. 6770 or the Ombudsman Act. In my view,
this provision cannot be taken in isolation. Any interpretation of this phrase should not
deny the "independent" nature of the O ce of the Ombudsman as provided in Article XI,
Section 5 of the Constitution. The Constitution should be read as a whole document in a
manner that will give effect to all its parts. 3 5
I agree with the positions of Justice Brion and Justice Abad in their dissenting
opinions on the September 4, 2012 decision that the independence of the O ce of the
Ombudsman is of such a fundamental and unequivocal nature. This independence is
essential to carry out the functions and duties of the O ce of the Ombudsman. I agree
with their position that since those in the executive branch are also subject to the
disciplinary authority of the O ce of the Ombudsman, providing the O ce of the
President with the power to remove would be an impediment to the fundamental
independence of the Ombudsman.
We cannot allow a circumvention of the separation of powers by construing
Article XI, Section 2 of the Constitution as delegating plenary and unbounded power to
Congress. The exclusive power of the Ombudsman to discipline her own ranks is
fundamental to the independence of her office.
The Constitution's intention to make the independence of the O ce of the
Ombudsman greater than any other o ce can also be inferred from the authority and
the process of appointment of the o cers constituting that o ce. Hence, Article XI,
Section 9 of the Constitution provides:
Section 9. The Ombudsman and his Deputies shall be appointed by the
President from a list of at least six nominees prepared by the Judicial and Bar
Council, and from a list of three nominees for every vacancy thereafter. Such
appointments shall require no con rmation. All vacancies shall be lled within
three months after they occur. 3 6
The President is granted the power to appoint but only from a list of nominees
vetted by the Judicial and Bar Council. Furthermore, the President needs to exercise
that power to appoint within three months from the vacancy of either the Ombudsman
or any of her Deputies.
Furthermore, the Constitution provides in Section 6 of the same Article:
Section 6. The o cials and employees of the O ce of the Ombudsman,
other than the Deputies, shall be appointed by the Ombudsman, according to the
Civil Service Law. 3 7
This is similar to the provisions for Constitutional Commissions. Article IX,

Section 4 of the Constitution provides: ISHCcT

Section 4. The Constitutional Commissions shall appoint their o cials and
employees in accordance with law. 3 8
It is clear that there is a different treatment of the Deputies of the Ombudsman

from all the other staff of the Office of the Ombudsman.
The Ombudsman is assisted by the Deputy Ombudsman. There are several
deputies for Luzon, Visayas, Mindanao, and the military. All these deputies take their
direction from the Ombudsman. By constitutional at, they cannot take direction from
any other constitutional o cer. It is di cult to imagine how the independence of the
Ombudsman can be preserved when the President has concurring powers to remove
her deputies.
Furthermore, it is not di cult to imagine that the President and Congress can
negate the elaborate process of appointing a Deputy Ombudsman simply by using their
alleged power of removal. While this may not have been the situation in this case, the
possibility exists especially when we consider that the Ombudsman does have
jurisdiction also to investigate both the executive and legislative branches. The real fear
of the deputies can hobble the Office of the Ombudsman.
During the deliberations of this case, a question was raised as to whether the
President can have the authority to discipline non-impeachable o cers and employees
of Constitutional Commissions and the O ce of the Ombudsman when the law so
provides. This court's construction of constitutional provisions should be framed only
by the actual controversies presented by the facts of the case at bar. The issue in this
case is only about the power of the President to remove the Deputy Ombudsman and
the Special Prosecutor for causes provided by law. It does not involve the power of the
President to remove any other civil servant appointed by the Ombudsman.
In its September 4, 2012 decision, this court cited Hon. Hagad v. Hon.
Gozodadole 3 9 and O ce of the Ombudsman v. Delijero, Jr. 4 0 to show that the O ce
of the President has concurrent disciplinary jurisdiction with the O ce of the
Ombudsman. These cases, however, are not applicable. Hon. Hagad involved
prosecution and discipline of the Mayor and Vice Mayor as well as a member of the
Sangguniang Panlungsod of Mandaue City. The Constitution puts local governments
within the general supervision of the President. 4 1 They are, therefore, also within the
authority of the Office of the President to discipline.
In O ce of the Ombudsman v. Delijero, Jr., there was a law, namely, Republic Act
No. 4670, which provided a separate set of procedural requirements for administrative
proceedings involving public school teachers. Thus, this court held that it would have
been more prudent for the O ce of the Ombudsman to refer the case to the
Department of Education. Public school teachers do not enjoy the constitutional
independence similar to that of the Office of the Ombudsman.
In his concurring opinion on the September 4, 2012 decision, Justice Carpio
presents the view that the independence of the O ce of the Ombudsman does not
mean that it is insulated from all governmental scrutiny. According to Justice Carpio,
Congress has the power to legislate the o cials that may be subject to dismissal and
disciplinary action, if the Constitution allows. He cites the records of the Constitutional
Commissions, particularly that of Commissioner Regalado, who sought the amendment
to include the sentence, "ALL OTHER PUBLIC OFFICERS AND EMPLOYEES MAY BE
REMOVED FROM OFFICE AS PROVIDED BY LAW BUT NOT BY IMPEACHMENT," under
Article XI, Section 2. Thus, Congress has the plenary power to provide for the o cials
that may be removed and the manner by which they are to be removed as well.
I agree with Justice Carpio that the O ce of the Ombudsman is also
constitutionally accountable. I cannot agree, however, that this accountability can be
extracted by allowing her deputies to be answerable to two principals: the Ombudsman
and the President, even if this dual accountability is provided by law.
Reliance on the debates of the framers of the 1987 Constitution is not the only
source for determining the meaning of the text of the Constitution. 4 2 Resorting to the
debates and proceedings of the constitutional convention shows us the views and
standpoints of individual members of the convention. 4 3 It does not show how the
sovereign people read the Constitution at the time of rati cation. The discussion of
those that drafted the present Constitution is advisory. 4 4 The text of the Constitution
should be read by one guided by, but not limited to, the debates that happened when it
was drafted and rati ed. It should also be read in the light of the needs of present
times while being sensitive and addressing precedents existing in our jurisprudence.
The mention in the records of the Constitutional Commission of the phrase "as
provided by law" cannot serve as the sole yardstick by which a de nitive interpretation
of the constitutional provision or its effects is to be determined. "As provided by law"
with respect to the Deputy Ombudsman may, at best, only provide for the standards
under which the Ombudsman may exercise her power of removal. Unless the
Constitution does not intend true operational independence, the clause cannot be
interpreted to mean that Congress has plenary authority to lodge disciplinary power on
any other organ other than the Ombudsman.
I also agree with the concurring opinion of Justice Carpio on the September 4,
2012 decision of this court that there are different degrees of independence among the
o ces enumerated by the Constitution. Congress is empowered to determine through
subsequent legislation the standards and legislative parameters of the independence
of certain constitutional offices.
The 1987 Constitution provides two distinct types of independence as de ned in
its provisions. The rst type of independence is constitutionally enshrined. This means
that it can neither be subject to any interference by other branches of government nor
can Congress pass laws that abridge or impair its fundamental independence. This
independence is of such a degree and nature that the very essence of the constitutional
body provides for a de nitive barrier against legislative or executive intervention. This is
the type of independence enjoyed by the Constitutional Commissions, 4 5 the O ce of
the Ombudsman, 4 6 and — to a certain extent — the Commission on Human Rights. 4 7
The second type of independence refers to the Constitution itself allowing
Congress to de ne the functions that will ensure the independence of speci c
government o ces or agencies. For instance, unlike the provisions with respect to the
Ombudsman, the Constitution provides that the National Economic Development
Authority 4 8 and the Central Bank 4 9 will be created and further defined by law.HScaCT
III
The treatment of the O ce of the Special Prosecutor is, however, different. In my
view, the Office of the Special Prosecutor may by law be removed by the President. This
is what Section 8, Paragraph (2) of the Ombudsman Act provides.
This conclusion can be seen simply by examining the provisions of Article XI of
the Constitution. There are two constitutional organs created: the O ce of the
Ombudsman and the Tanodbayan, which is the current Office of the Special Prosecutor:
Section 5. There is hereby created the independent O ce of the
Ombudsman, composed of the Ombudsman to be known as Tanodbayan, one
overall Deputy and at least one Deputy each for Luzon, Visayas, and Mindanao. A
separate Deputy for the military establishment may likewise be appointed.
Section 6. The o cials and employees of the O ce of the Ombudsman,
other than the Deputies, shall be appointed by the Ombudsman, according to the
Civil Service Law.
Section 7. The existing Tanodbayan shall hereafter be known as the
O ce of the Special Prosecutor. It shall continue to function and
exercise its powers as now or hereafter may be provided by law, except
those conferred on the O ce of the Ombudsman created under this
Constitution. (Emphasis provided)
Section 5 of Article XI provides that the composition of the O ce of the
Ombudsman includes the O ce of the Ombudsman, the overall Deputy Ombudsman
for Luzon, Visayas, and Mindanao as well as a separate Deputy for the military
establishment. Section 6 of Article XI states that the other o cials and employees of
the O ce of the Ombudsman, outside of the Deputies, shall be appointed by the
Ombudsman in accordance with the Civil Service Law. Section 7 of Article XI provides
that what was then known as the Tanodbayan shall now be known as the O ce of the
Special Prosecutor. It is allowed to exercise its powers as provided by law except
those explicitly provided for in the 1987 Constitution.
Section 7 even distinguishes between all the other o cials and employees of the
Ombudsman and that of the Office of the Special Prosecutor.
The O ce of the Ombudsman's powers are more proactive than the
prosecutorial powers of the O ce of the Special Prosecutor. This can be seen in the
enumeration of her powers in the Constitution. Thus, in Article XI, Section 13:
Sec. 13. The O ce of the Ombudsman shall have the following powers,
functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act or
omission of any public o cial, employee, o ce or agency, when such act or
omission appears to be illegal, unjust, improper, or inefficient.
(2) Direct, upon complaint or at its own instance, any public o cial or
employee' of the Government, or any subdivision, agency or instrumentality
thereof, as well as of any government-owned or controlled corporation with
original charter, to perform and expedite any act or duty required by law, or to
stop, prevent, and correct any abuse or impropriety in the performance of duties.
(3) Direct the o cer concerned to take appropriate action against a public
o cial or employee at fault, and recommend his removal, suspension, demotion,
fine, censure, or prosecution, and ensure compliance therewith.
(4) Direct the o cer concerned, in any appropriate case, and subject to such
limitations as may be provided by law, to furnish it with copies of documents
relating to contracts and transactions entered into by this o ce involving the
disbursement or use of public funds or properties, and report any irregularity to
the Commission on Audit for appropriate action.
(5) Request any government agency for assistance and information
necessary in the discharge of its responsibilities, and to examine, if necessary,
pertinent records and documents.
(6) Publicize matters covered by its investigation when circumstances so
warrant and with due prudence.
(7) Determine the causes of ine ciency, red tape, mismanagement, fraud,
and corruption in the Government and make recommendations for their
elimination and the observance of high standards of ethics and efficiency.
(8) Promulgate its rules and procedure and exercise such other powers or
perform such functions or duties as may be provided by law.
By clear constitutional design, the Tanodbayan or the O ce of the Special

Prosecutor is separate from the O ce of the Ombudsman. Section 7 is explicit on this
point, in that the O ce of the Special Prosecutor is allowed to exercise its powers,
except for those conferred on the O ce of the Ombudsman. While the O ce of the
Special Prosecutor is not automatically a part of the O ce of the Ombudsman, there is,
however, no reason that Congress and the President may, by law and in their political
wisdom, attach the O ce of the Special Prosecutor with the O ce of the Ombudsman.
There is also no constitutional prohibition for the O ce of the Special Prosecutor to be
functionally separate from the O ce of the Ombudsman. This is a matter to be
addressed by the political departments. This may also be viewed as a check of both
Congress and the President on the powers of the Ombudsman. HSaCcE
By clear provision of the Constitution, it is only the O ce of the Ombudsman,

which includes her Deputies, that is endowed with constitutional independence. The
inclusion of the O ce of the Special Prosecutor with the O ce of the Ombudsman in
Section 3 of Republic Act No. 6770 does not ipso facto mean that the O ce of the
Special Prosecutor must be afforded the same levels of constitutional independence
as that of the Ombudsman and the Deputy Ombudsman. The law simply de nes how
the O ce of the Special Prosecutor is attached and, therefore, coordinated with the
Office of the Ombudsman.
Thus, the provision of Section 8, Paragraph (2) of Republic Act No. 6770 which
provides for the power of the President to remove the Special Prosecutor is valid and
constitutional.
IV
This opinion should not be seen as a sweeping dismissal or acquittal of the
liability of petitioner Gonzales due to the unconstitutionality of Section 8, Paragraph (2)
of the Ombudsman Act as far as the O ce of the Deputy Ombudsman is concerned.
Petitioner Gonzales must still be held accountable for his actions. His actions as
described in the report and in the decision of the O ce of the President are troubling.
There is need to continue the investigation so that the public may nally nd closure
concerning these incidents.
Understandably, the O ce of the President wanted to act with due and
deliberate dispatch on this case based on a provision of law which it interpreted to be
valid and constitutional. It acted with the best of motives. But grand intentions cannot
replace constitutional design. Even "daang matuwid" requires that the right course of
action must be effectively and efficiently done in the right way.
I vote to declare that Section 8, Paragraph (2) of the Ombudsman Act, insofar as
the Deputy Ombudsman is subjected to the disciplinary power of the O ce of the
President, is unconstitutional. Petitioner Gonzales may, however, still be subject to
investigation and discipline by the Ombudsman herself. I also vote that, given the facts,
there was substantial evidence of betrayal of public trust on the part of petitioner
Gonzales.
ACCORDINGLY, the motion for partial reconsideration should be denied.
Footnotes
1.Rollo (G.R. No. 196231), pp. 951-1000.
2.The Ombudsman Act of 1989.
3.Rollo (G.R. No. 196231), p. 998.

4.Docketed as I.S. No. 08E-09512; id. at 113-116.
5.Id. at 87.
6.Id. at 231.
7.Id. at 88.
8.Id. at 233-235.
9.Id. at 128.
10.Id. at 91.
11.Id. at 92-97.
12.Id. at 137-152.
13.Id. at 132-136.
14.Id. at 15.
15.Id. at 15, 244-248.
16.Id. at 16.
17.http://www.gov.ph/2010/09/17/first-report-of-the-iirc-on-the-rizal-park-hostage-taking-
incident/ (last accessed on February 2, 2014).
18.Ibid.
19.Ibid.
20.Rollo (G.R. No. 196231), p. 322.

21.Id. at 85.
22.Id. at 80.
23.Id. at 49-50.
24.Rollo (G.R. No. 196232), pp. 27, 36-42.
25.Id. at 37-41.
26.Id. at 98.
27.Id. at 34-35.
28.Id. at 27-30.

29.Id. at 364-365.
30.Id. at 9, 367-375.
31.Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 637 (2000).
32.Separate Opinion of Justice Puno in Integrated Bar of the Philippines v. Zamora; id. at 661.
33.Furthermore, their powers extended to no more than fact- nding and recommending. Uy v.
Sandiganbayan, 407 Phil. 154, 167 (2001).
34.Id. at 169-170.
35.O ce of the Ombudsman v. Samaniego, G.R. No. 175573, September 11, 2008, 564 SCRA
567, 573.
36.Ledesma v. Court of Appeals, 503 Phil. 396, 408; and O ce of the Ombudsman v.
Samaniego, id.
37.O ce of the Ombudsman v. Lucero, G.R. No. 168718, 24 November 2006, 508 SCRA 106,
115.
38.Office of the Ombudsman v. Samaniego, supra note 35.

39.Department of Justice v. Liwag, G.R. No. 149311, February 11, 2005, 491 Phil. 270, 283.
40.It is not only given an "active role" in the enforcement of laws on anti-graft and corrupt
practices and related offenses (Uy v. Sandiganbayan, supra note 33), its
recommendation to a concerned public o cer of taking an appropriate action against
an erring subordinate is not merely advisory but mandatory within the bounds of law
(Ledesma v. Office of the Ombudsman, Section 13(3), Article XI of the 1987 Constitution,
Section 15(3) of RA No. 6770).
41.Referring to the Constitutional Commissions (Commission on Elections, Commission on
Audit, and the Civil Service Commission), the Commission on Human Rights, a central
monetary authority, and, to a certain extent, the National Economic Development
Authority.
42.G.R. No. 103524 and A.M. No. 91-8-225-CA, April 15, 1992, 208 SCRA 133, 150; emphasis
and underscore ours.
43.Speech, Session of February 18, 1972, as cited in "The 1987 Constitution of the Republic of
the Philippines: A Commentary" by Joaquin Bernas, 2003 ed., p. 1009.
DELEGATE GUNIGUNDO . . .
[b] because we believe that the Civil Service created by law has not been able to eradicate the
ills and evils envisioned by the framers of the 1935 Constitution; because we believe that
the Civil Service created by law is beholden to the creators of that law and is therefore
not politics-free, not graft-free and not corruption-free; because we believe that as long
as the law is the re ection of the will of the ruling class, the Civil Service that will be
created and recreated by law will not serve the interest of the people but only the
personal interest of the few and the enhancement of family power, advancement and
prestige.
44.Record of the Constitutional Commission, Vol. 1, July 15, 1986, pp. 532-533.
MR. JAMIR. . . . When the 1935 Constitution was enacted, the auditing o ce was
constitutionalized because of the increasing necessity of empowering the auditing office
to withstand political pressure. Finding a single Auditor to be quite insu cient to
withstand political pressure, the 1973 Constitution established the Commission
consisting of three members — a chairman and two commissioners.
45.Records of the Constitutional Commission, Vol. 3, August 27, 1986, pp. 748-749; emphases
ours.
46.G.R. No. 93867, December 18, 1990, 192 SCRA 358.
47.Id. at 361.
48.254 Phil. 156, 179 (1989); emphases and underscores supplied.
49.453 Phil. 586, 658-659 (2003).

50.Accordingly, there is no point discussing, even for purposes of comparing and contrasting,
the "independence" of the National Economic Development Authority and the central
monetary authority, whose major concern is primarily the direction of the country's
economy, both in its micro and macro aspects.
51.Record of the Constitutional Commission, Vol. 2, July 26, 1986, p. 294.
In other words, Madam President, what actually spawned or caused the failure of the justices
of the Tanodbayan insofar as monitoring and scalizing the government o ces are
concerned was due to two reasons: First, almost all their time was taken up by criminal
cases; and second, since they were under the O ce of the President, their funds came
from that o ce. I have a sneaking suspicion that they were prevented from making
administrative monitoring because of the sensitivity of the then head of that o ce,
because if the Tanodbayan would make the corresponding reports about
failures, malfunctions or omissions of the different ministries, then that
would re ect upon the President who wanted to claim the alleged con dence
of the people.
xxx xxx xxx
It is said here that the Tanodbayan or the Ombudsman would be a toothless or a paper tiger.
That is not necessarily so. If he is toothless, then let us give him a little more teeth by
making him independent of the O ce of the President because it is now a
constitutional creation, so that the insidious tentacles of politics, as has always been our
problem, even with PARGO, PCAPE and so forth, will not deprive him of the opportunity
to render service to Juan de la Cruz. . . . . There is supposed to be created a
constitutional office — constitutionalized to free it from those tentacles of politics — and
we give it more teeth and have the corresponding legislative provisions for its budget,
not a budget under the Office of the President.
xxx xxx xxx
. . . . For that reason, Madam President, I support this committee report on a constitutionally
created Ombudsman and I further ask that to avoid having a toothless tiger, there should
be further provisions for statistical and logistical support. (Emphases ours.)
52.Id. at 294.
53.This provision reads:
Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members
of the Constitutional Commissions, and the Ombudsman may be removed from o ce
on impeachment for, and conviction of, culpable violation of the Constitution, treason,
bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public
o cers and employees may be removed from o ce as provided by law, but not by
impeachment.
54.The Framers' concern in inserting the second sentence of Section 2, Article XI is fully
supported by the intent expressed in the constitutional debates.
55.Dennis Funa, Law on Administrative Accountability of Public O cers, p. 720. Fundamentals
of Impeachment, Antonio R. Tupaz and Edsel C.F. Tupaz, p. 7; See Opinion of Justice
Vitug in Francisco, Jr. v. House of Representatives, 460 Phil. 830, 957 (2003).
56.CONSTITUTION, Art. XI, Section 3(1).

58.CONSTITUTION, Art. XI, Section 2.
60.Ibid.
61.Thus, impeachment is characterized as essentially raising political questions or questions of

policies created by large historical forces. Alexander Hamilton observed:
A well-constituted court for the trial of impeachments is an object not more to be desired than
di cult to be obtained in a government wholly elective. The subjects of its jurisdiction
are those offenses which proceed from the misconduct of public men, or, in other words,
from the abuse or violation of some public trust. They are of a nature which may with
peculiar propriety be denominated POLITICAL, as they relate chie y to injuries done
immediately to the society itself. The prosecution of them, for this reason, will
seldom fail to agitate the passions of the whole community, and to divide it
into parties more or less friendly or inimical to the accused. In many cases it
will connect itself with the pre-existing factions, and will enlist all their
animosities, partialities, in uence, and interest on one side or on the other ;
and in such cases there will always be the greatest danger that the decision will be
regulated more by the comparative strength of parties, than by the real demonstrations
of innocence or guilt. (The Federalist No. 65 [www.constitution.org/fed/federa65,
accessed on February 3, 2014].)
62.Even the second restriction (on due process) on the President's exercise of his power of
removal of the Deputy Ombudsman does not emanate from Congress but from the
Constitution itself. The fact that the O ce of the Ombudsman is a constitutional o ce
that enjoys independence from the three branches of government argues against any
suggestion that the President can remove a Deputy Ombudsman at will without the
requirement of observance of due process under Section 8(2) of RA No. 6770.
63.Supra note 49, at 658.
64.Rollo (G.R. No. 196231), p. 80.

65.Id. at 137-152.
66.Id. at 132-136.
67.Id. at 15, 240.

68.Id. at 241.
69.Id. at 242.
70.Id. at 236 and 343. The case was endorsed to the Ombudsman on May 5, 2010; the period
within which Gonzales nished his work would only be eight days. However, Gonzales
stated in his pleading that it took him nine days to review the Resolution of the Motion
for Reconsideration, and the OP does not dispute this. The records of the case were
forwarded to the Records Section on May 7, 2010.
71.Brucal v. Desierto, 501 Phil. 453, 465-466 (2005).
72.Rollo (G.R. No. 196231), pp. 578-579.
73.In Dansal v. Judge Fernandez, Sr., 383 Phil. 897, 908-910 (2000), the Court said: "Judicial
notice should be taken of the fact that the nature of the O ce of the Ombudsman
encourages individuals who clamor for e cient government service to freely lodge their
Complaints against wrongdoings of government personnel, thus resulting in a steady
stream of cases reaching the Office of the Ombudsman."
74.Motion for Reconsideration, p. 10.

75.CONSTITUTION, Art. III, Section 16.
76.Caballero v. Alfonso, 237 Phil. 154 (1987); Roquero v. The Chancellor of U.P. Manila, G.R.
No. 181851, March 9, 2010, 614 SCRA 723, 732-733. In fact, in Mendoza-Ong v.
Sandiganbayan (483 Phil. 451, 454-455 [2004]), the Court had this to say:
In this case, the Graft Investigation O cer released his resolution nding probable cause
against petitioner on August 16, 1995, less than six months from the time petitioner and
her co-accused submitted their counter-a davits. On October 30, 1995, only two and a
half months later, Ombudsman Aniano Desierto had reviewed the case and had
approved the resolution. Contrary to petitioner's contention, the lapse of only ten months
from the ling of the complaint on December 13, 1994, to the approval of the resolution
on October 30, 1995, is by no means oppressive. "Speedy disposition of cases" is
consistent with reasonable delays.
77.Rollo (G.R. No. 196231), p. 96. The decision was drafted by Graft Investigation and
Prosecution Officer Rebecca A. Guillen-Ubaña.
78.Section 12, Article XI of the 1987 Constitution reads:
Section 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly
on complaints led in any form or manner against public o cials or employees of
the Government, or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations, and shall, in appropriate cases, notify the
complainants of the action taken and the result thereof. [emphasis ours]
79.Section 13 of RA No. 6770 reads:

Section 13. Mandate. — The Ombudsman and his Deputies, as protectors of the people, shall
act promptly on complaints led in any form or manner against o cers or
employees of the Government, or of any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations, and enforce their administrative,
civil and criminal liability in every case where the evidence warrants in order to promote
efficient service by the Government to the people. (emphasis ours)
80.This provision reads:
Section 3. How initiated. — An administrative case may be initiated by a written complaint
under oath accompanied by a davits of witnesses and other evidence in support of the
charge. Such complaint shall be accompanied by a Certi cate of Non-Forum Shopping
duly subscribed and sworn to by the complainant or his counsel. An administrative
proceeding may also be ordered by the Ombudsman or the respective Deputy
Ombudsman on his initiative or on the basis of a complaint originally led as
a criminal action or a grievance complaint or request for assistance.
(emphasis ours)
81.Rollo (G.R. No. 196231), pp. 94-95.
82.Id. at 95. The pertinent part of the decision reads:
Moreover, we nd the defenses of respondents highly unbelievable. The accommodation

afforded to Christian by respondents casts doubt on their purpose of keeping him inside
the station. It is not plausible that policemen who catch a tra c violator require him to
return and show documents to absolve him from liability.
83.Under Section 6, Article XIII of the 1973 Constitution, Congress was mandated to create an
Office of the Ombudsman to be known as the Tanodbayan.
84.1973 CONSTITUTION, Article XIII, Section 6.
85.Known as the Tanodbayan Decree of 1977 (June 11, 1978). Section 17 of PD No. 1487 gave
the Tanodbayan prosecutorial functions.
86.Creating a Special Court to be known as "Sandiganbayan" and for Other Purposes; likewise
enacted on June 11, 1978.
87.PD No. 1486, Section 4.
89.Known as the Tanodbayan Decree, Revising PD No. 1487.
90.The last paragraph of Section 17 of PD 1607 reads:

The Chief Special Prosecutor, Assistant State Prosecutor, Special Prosecutor and those
designated to assist them as herein provided for shall be under the control and
supervision of the Tanodbayan and their resolutions and actions shall not be subject to
review by any administrative agency.
However, the law also allowed the President "to designate the Chief State Prosecutor of the
Ministry of Justice or any other ranking o cial in the prosecutory arm of the
government as Ex-O cio Chief Special Prosecutor and/or Assistant Chief Special
Prosecutor" (Section 17, PD No. 1607).
92.PD No. 1630, Sections 10 and 17.

93.CONSTITUTION, Article XI, Section 5.
94.PD No. 1630.
95.CONSTITUTION, Article XI, Section 7.
96.Under RA No. 6770, however, it is the President himself which appoints the Special
Prosecutor. This may even be an argument of the legislative intent to treat the Special
Prosecutor, in much the same way, as the Ombudsman's Deputies themselves that
justify the same recognition of freedom from the disciplinary authority of the President
on the same ground of independence of the Office of the Ombudsman.
97.RA No. 6770, Section 4.

102.RA No. 6770, Section 10.

103.RA No. 6770, Section 8(3).
104.RA No. 6770, Section 33.
105.RA No. 6770, Section 11(3) and (4).

106.G.R. No. 120422, September 27, 1995, 248 SCRA 568.
107.Id. at 580-581.
108.The eight (8) Justices in the majority are: Presbitero J. Velasco, Jr., Teresita J. Leonardo-de
Castro, Arturo D. Brion, Lucas P. Bersamin, Roberto A. Abad, Jose Portugal Perez, Jose
Catral Mendoza, and Marvic Mario Victor F. Leonen. The seven (7) dissenting Justices
are: Chief Justice Maria Lourdes P. A. Sereno, Antonio T. Carpio, Diosdado M. Peralta,
Mariano C. del Castillo, Martin S. Villarama, Jr., Bienvenido L. Reyes, and Estela M.
Perlas-Bernabe.
109.The eight (8) Justices in the majority are: Chief Justice Maria Lourdes P. A. Sereno, Antonio
T. Carpio, Diosdado M. Peralta, Mariano C. del Castillo, Martin S. Villarama, Jr.,
Bienvenido L. Reyes, Estela M. Perlas-Bernabe and Marvic Mario Victor F. Leonen. The
seven (7) dissenting Justices are: Presbitero J. Velasco, Jr., Teresita J. Leonardo-de
Castro, Arturo D. Brion, Lucas P. Bersamin, Roberto A. Abad, Jose Portugal Perez, and
Jose Catral Mendoza.
PERLAS-BERNABE, J., concurring and dissenting:

1.Gonzales III v. OP, G.R. Nos. 196231 and 196232, September 4, 2012, 679 SCRA 614.
2.Id. at 664-665.
3.Section 8 (2) of RA 6770, otherwise known as the "Ombudsman Act," reads:
Sec. 8.Removal; Filling of Vacancy. —

xxx xxx xxx
(2) A Deputy, or the Special Prosecutor, may be removed from o ce by the President for any
of the grounds provided for the removal of the Ombudsman, and after due process.
4."AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE
OFFICE OF THE OMBUDSMAN AND FOR OTHER PURPOSES."
5.Gonzales III v. OP, G.R. Nos. 196231 and 196232, January 28, 2014, p. 27.
6.Id. The Summary of Voting section of the ponencia reads as follows:
In the voting held on January 28, 2014, by a vote of 8-7, the Court resolved to reverse its
September 4, 2014 Decision insofar as petitioner Gonzales is concerned (G.R. No.
196231). We declared Section 8(2) of RA No. 6770 unconstitutional by granting
disciplinary jurisdiction to the President over a Deputy Ombudsman, in violation of the
independence of the Office of the Ombudsman.
However, by another vote of 8-7, the Court resolved to maintain the validity of Section
8(2) of RA No. 6770 insofar as Sulit is concerned. The Court did not consider the
O ce of the Special Prosecutor to be constitutionally within the O ce of the
Ombudsman and is, hence, not entitled to the independence the latter enjoys under the
Constitution. (Emphases in the original; citations omitted)
7."To justify the nulli cation of the law or its implementation, there must be a clear and
unequivocal, not a doubtful, breach of the Constitution. In case of doubt in the
su ciency of proof establishing unconstitutionality, the Court must sustain legislation
because 'to invalidate [a law] based on . . . baseless supposition is an affront to the
wisdom not only of the legislature that passed it but also of the executive which
approved it."' ( Lawyers Against Monopoly and Poverty [LAMP] v. Secretary of Budget
and Management, G.R. No. 164987, April 24, 2012, 670 SCRA 373, 386-387, citing
ABAKADA GURO Party List v. Purisima, 584 Phil. 246, 268 [2008]; emphasis supplied.)
8.Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135, 140.
9.158 Phil. 60 (1974).
10.Id. at 74.
11.564 Phil. 31 (2007).
12.Id. at 44.
13.The Record of the Constitutional Commission, Vol. 2, July 26, 1986, p. 294, as cited in page
14 of the ponencia reads:
MR. OPLE. . . .
May I direct a question to the Committee? . . . [W]ill the Committee consider later an
amendment . . ., by way of designating the o ce of the Ombudsman as a
constitutional arm for good government , e ciency of the public service and the
integrity of the President of the Philippines, instead of creating another agency in a
kind of administrative limbo which would be accountable to no one on the pretext
that it is a constitutional body?
MR. MONSOD. The Committee discussed that during our committee deliberations and when
we prepared the report, it was the opinion of the Committee — and I believe it still is —
that it may not contribute to the effectiveness of this o ce of the Ombudsman precisely
because many of the culprits in ine ciency, injustice and impropriety are in the
executive department. Therefore, as we saw the wrong implementation of the
Tanodbayan which was under the tremendous in uence of the President, it was an
ineffectual body and was reduced to the function of a special scal. The whole
purpose of our proposal is precisely to separate those functions and to
produce a vehicle that will give true meaning to the concept of Ombudsman.
Therefore, we regret that we cannot accept the proposition. (Emphases supplied)
The Record of the Constitutional Commission, Vol. 2, July 26, 1986, p. 294, as cited in
footnote 50, page 14 of the ponencia reads:
In other words, Madam President, what actually spawned or cause the failure of the justices
of the Tanodbayan insofar as monitoring and scalizing the government o ces are
concerned was due to two reasons: First, almost all their time was taken up by
criminal cases; and second, since they were under the O ces of the
President, their funds came from that o ce. I have a sneaking suspicion that they
were prevented from making administrative monitoring because of the sensitivity of
the then head of that o ce, because if the Tanodbayan would make the
corresponding reports about failures, malfunctions or omissions of the
different ministries, then that would re ect upon the President who wanted to
claim the alleged confidence of the people.
xxx xxx xxx

It is said here that the Tanodbayan or the Ombudsman would be a toothless or a paper tiger.
That is not necessarily so. If he is toothless, then let us give him a little more teeth by
making him independent of the O ce of the President because it is now a
constitutional creation, so that the insidious tentacles of politics, as has always been our
problem, even with PARGO, PCAPE and so forth, will not deprive him of the opportunity
to render service to Juan de la Cruz. . . . . There is supposed to be created a
constitutional o ce — constitutionalized to free it from those tentacles of politics — and
we give it more teeth and have the corresponding legislative provisions for its
budget, not a budget under the Office of the President.
xxx xxx xxx

. . . . For that reason, Madam President, I support this committee report on a constitutionally
created Ombudsman and I further ask that to avoid having a toothless tiger, there should
be further provisions for statistical and logistical support. (Emphases in the original
retained with additional emphases supplied)
(Gonzales III v. OP, supra note 5, pp. 14-15.)
14.Ambil, Jr. v. Sandiganbayan, G.R. Nos. 175457 and 175482, July 6, 2011, 653 SCRA 576,
596.
LEONEN, J., concurring and dissenting:

1.Rollo, pp. 514-535 (G.R. No. 196231).
2.Rep. Act No. 6770 (1989), Sec. 8, par. (2):
Section 8. Removal; Filling of Vacancy. —
xxx xxx xxx

(2) A Deputy, or the Special Prosecutor, may be removed from o ce by the President for any
of the grounds provided for the removal of the Ombudsman, and after due process.
3.Rollo, p. 272 (G.R. No. 196231), First Report of the Incident Investigation and Review
Committee on the August 23, 2010 Rizal Park Hostage-taking Incident: Sequence of
Events, Evaluation and Recommendations, September 16, 2010.
4.OMB-P-A-08-0670-H for: Grave Misconduct.
5.Rollo, pp. 92-97 (G.R. No. 196231), decision, Office of the Ombudsman, Annex D-2.
6.Id. at 73-74, decision in OP Case No. 10-J-460, Office of the President.
7.Id. at 73.
8.Id. at 74.

9.Id.
10.Id. at 87.
11.Id. at 74.
12.Rollo, p. 300, First Report of the Incident Investigation and Review Committee on the August
23, 2010 Rizal Park Hostage-taking Incident: Sequence of Events, Evaluation and
Recommendations, September 16, 2010.
13.Id.
14.Id. at 137-202.
15.Id. at 80-85, decision, O ce of the President; See also rollo, p. 300 (G.R. No. 196231), First
Report of the Incident Investigation and Review Committee on the August 23, 2010 Rizal
Park Hostage-taking Incident: Sequence of Events, Evaluation and Recommendations,
September 16, 2010.
16.Consti., Art. XI, Sec. 13:

The Office of the Ombudsman shall have the following powers, functions, and duties:
1. Investigate on its own, or on complaint by any person, any act or omission of any public
o cial, employee, o ce or agency, when such act or omission appears to be illegal,
unjust, improper, or inefficient.
2. Direct, upon complaint or at its own instance, any public o cial or employee of the
Government, or any subdivision, agency or instrumentality thereof, as well as of any
government-owned or controlled corporation with original charter, to perform and
expedite any act or duty required by law, or to stop, prevent, and correct any abuse or
impropriety in the performance of duties.
3. Direct the o cer concerned to take appropriate action against a public o cial or employee
at fault, and recommend his removal, suspension, demotion, ne, censure, or
prosecution, and ensure compliance therewith.
xxx xxx xxx

7. Determine the causes of ine ciency, red tape, mismanagement, fraud, and corruption in
the Government and make recommendations for their elimination and the observance of
high standards of ethics and efficiency.
17.Consti., Art. XI, Sec. 13, par. (2).
18.Rollo, pp. 6-71 (G.R. No. 196231).
19.Id. at 72-86, decision, Office of the President, Annex "A."

20.Rollo, pp. 3-25 (G.R. No. 196232).
21.Id. at 26, order docketed as OP-DC-Case No. 11-B-003, Annex "A."
22.Gonzales III v. O ce of the President of the Philippines, et al. and Barreras-Sulit v. Ochoa,
G.R. No. 196231 and G.R. No. 196232, September 4, 2012, 679 SCRA 614. The voting in
this decision was the following: Eight (8) voted in favor of the constitutionality of Sec. 8,
Par. (2) of Republic Act No. 6770, and six (6) voted against it. Seven (7) Justices
concurred in the ponencia of Justice Perlas-Bernabe. The concurring Justices included
Chief Justice Sereno, as well as Justices Carpio, Peralta, Del Castillo, Villarama, Jr.,
Mendoza, and Reyes. Six (6) Justices dissented: These were Justices Velasco, Jr.,
Leonardo-de Castro, Brion, Bersamin, Abad, and Perez.
23.Consti., Art. VIII, Sec. 4 (2):
All cases involving the constitutionality of a treaty, international or executive agreement, or

law, which shall be heard by the Supreme Court en banc, and all other cases which under
the Rules of Court are required to be heard en banc, including those involving the
constitutionality, application, or operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations, shall be decided with the concurrence of
a majority of the Members who actually took part in the deliberations on the issues in
the case and voted thereon.
24.Rollo, pp. 6-71 (G.R. No. 196231).

25.Id. at 514-535.
26.Id. at 515.
27.G.R. No. 86889, December 4, 1990, 192 SCRA 51.
28.Id. at 58-59.
29.65 Phil. 56 (1937).
30.Id. at 82.
31.491 Phil. 641 (2005).

32.Id. at 651.
33.63 Phil. 139 (1936) (Per J. Laurel, En Banc).
34.Id. at 156.
35.Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 892 (2003) citing Civil
Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA 317;
Peralta v. Commission on Elections, 172 Phil. 31 (1978); Ang-Angco v. Castillo, 118 Phil.
1468 (1963).
36.Consti., Art. XI, Sec. 9.
37.Consti., Art. XI, Sec. 6.
38.Consti., Art. IX-A, Sec. 4.

39.321 Phil. 604 (1995).
40.G.R. No. 172635, October 20, 2010, 634 SCRA 135.
41.Consti., Art. X, Sec. 4.
42.Refer to my dissenting opinion in Chavez v. Judicial and Bar Council, G.R. No. 202242, April
16, 2013, 696 SCRA 469 citing Civil Liberties Union v. Executive Secretary, G.R. No.
83896, February 22, 1991, 194 SCRA 317 and C. CURTIS, LIONS UNDER THE THRONE 2
(1947).
43.Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991, 194 SCRA
317.
44.C. CURTIS, LIONS UNDER THE THRONE 2 (1947).

45.Consti., Art. IX-A, Sec. 1: The Constitutional Commissions, which shall be independent, are
the Civil Service Commission, the Commission on Elections, and the Commission on
Audit.
46.Consti., Art. XI, Sec. 5: There is hereby created the independent O ce of the Ombudsman,
composed of the Ombudsman to be known as Tanodbayan, one overall Deputy and at
least one Deputy each for Luzon, Visayas, and Mindanao. A separate Deputy for the
military establishment may likewise be appointed.
47.Consti., Art. XIII, Sec. 17: 1. There is hereby created an independent o ce called the
Commission on Human Rights.
48.Consti., Art. XII, Sec. 9: The Congress may establish an independent economic and planning
agency headed by the President, which shall, after consultations with the appropriate
public agencies, various private sectors, and local government units, recommend to
Congress, and implement continuing integrated and coordinated programs and policies
for national development. Until the Congress provides otherwise, the National Economic
and Development Authority shall function as the independent planning agency of the
government.
49.Consti., Art. XII, Sec. 20: The Congress shall establish an independent central monetary
authority, the members of whose governing board must be natural-born Filipino citizens,
of known probity, integrity, and patriotism, the majority of whom shall come from the
private sector. They shall also be subject to such other quali cations and disabilities as
may be prescribed by law. The authority shall provide policy direction in the areas of
money, banking, and credit. It shall have supervision over the operations of banks and
exercise such regulatory powers as may be provided by law over the operations of
nance companies and other institutions performing similar functions. Until the
Congress otherwise provides, the Central Bank of the Philippines operating under
existing laws, shall function as the central monetary authority.

EN BANC
[G.R. No. 140835. August 14, 2000.]
RAMON A. GONZALES , petitioner, vs . HON. ANDRES R. NARVASA, as

Chairman, PREPARATORY COMMISSION ON CONSTITUTIONAL
REFORMS; HON. RONALDO B. ZAMORA, as Executive Secretary;
COMMISSION ON AUDIT; ROBERTO AVENTAJADO, as Presidential
Consultant on Council of Economic Advisers/Economic Affairs;
ANGELITO C. BANAYO, as Presidential Adviser for/on Political
Affairs; VERONICA IGNACIO-JONES, as Presidential
Assistant/Appointment Secretary (In charge of appointments) ,
respondents.
Ramon A. Gonzales for petitioner.

The Solicitor General for respondents.
SYNOPSIS
Petitioner, as a citizen and taxpayer, led this petition for prohibition and mandamus
assailing the constitutionality of the creation of the Preparatory Commission on
Constitutional Reform (PCCR) and of the positions of presidential consultants, advisers
and assistants. Petitioner asked the Court to enjoin the PCCR and said presidential
consultants, advisers and assistants from acting as such and to compel respondent
Zamora to furnish petitioner with information on certain matters.
The Supreme Court held that with respect to the PCCR, this case had become moot
and academic since the PCCR no longer exists. Petitioner lacks standing to seek judicial
redress as a citizen because he has not shown that he has sustained or is in danger of
sustaining any personal injury attributable to the creation of the PCCR. Neither can he le a
taxpayer's action which is proper only when there is an exercise by Congress of its taxing
or spending power. Funds used for the PCCR were taken from funds intended for the
O ce of the President, and not from public funds made by law. Petitioner, however, has
the constitutional and statutory right to be informed on matters which are unquestionably
of public concern — namely, requests for names of executive o cials holding multiple
positions in government, copies of their appointments and a list of the recipients of luxury
vehicles seized by the Bureau of Customs and turned over to Malacañang. Respondent
Zamora, in his o cial capacity as Executive Secretary, was ordered to furnish petitioner
with the information requested.
SYLLABUS
1. REMEDIAL LAW; ACTION; WHEN CONSIDERED "MOOT"; CASE AT BAR. — An

action is considered "moot" when it no longer presents a justiciable controversy because
the issues involved have become academic or dead. Under E.O. No. 43, the PCCR was
instructed to complete its task on or before June 30, 1999. However, on February 19,
1999, the President issued Executive Order No. 70 (E.O. No. 70), which extended the time
frame for the completion of the commission's work, viz — SECTION 6. Section 8 is hereby
amended to read as follows: Time Frame. The Commission shall commence its work on
01 January 1999 and complete the same on or before 31 December 1999. The
Commission shall submit its report and recommendations to the President within fteen
(15) working days from 31 December 1999. The PCCR submitted its recommendations to
the President on December 20, 1999 and was dissolved by the President on the same day.
It had likewise spent the funds allotted to it. Thus, the PCCR has ceased to exist, having
lost its raison d'etre. Subsequent events have overtaken the petition and the Court has
nothing left to resolve. CSHEca
2. ID.; SPECIAL CIVIL ACTIONS; PROHIBITION; DOES NOT LIE TO RESTRAIN AN

ACT THAT IS ALREADY FAIT ACCOMPLI ; CASE AT BAR. — Basically, petitioner asks this
Court to enjoin the PCCR from acting as such. Clearly, prohibition is an inappropriate
remedy since the body sought to be enjoined no longer exists. It is well established that
prohibition is a preventive remedy and does not lie to restrain an act that is already fait
accompli. At this point, any ruling regarding the PCCR would simply be in the nature of an
advisory opinion, which is definitely beyond the permissible scope of judicial power.
3. CONSTITUTIONAL LAW; JUDICIARY; SUPREME COURT POWER OF JUDICIAL
R E V I E W ; LOCUS STANDI , HOW ESTABLISHED; CREATION OF PRESIDENTIAL
COMMISSION ON CONSTITUTIONAL REFORM (PCCR) CANNOT BE QUESTIONED IN CASE
AT BAR. — The question in standing is whether a party has "alleged such a personal stake
in the outcome of the controversy as to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for illumination of
di cult constitutional questions." In assailing the constitutionality of E.O. Nos. 43 and 70,
petitioner asserts his interest as a citizen and taxpayer. A citizen acquires standing only if
he can establish that he has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to the challenged
action; and the injury is likely to be redressed by a favorable action. . . . Coming now to the
instant case, petitioner has not shown that he has sustained or is in danger of sustaining
any personal injury attributable to the creation of the PCCR. . . .. Neither does he claim that
his rights or privileges have been or are in danger of being violated, nor that he shall be
subjected to any penalties or burdens as a result of the PCCR's activities. Clearly, petitioner
has failed to establish his locus standi so as to enable him to seek judicial redress as a
citizen. A taxpayer is deemed to have the standing to raise a constitutional issue when it is
established that public funds have been disbursed in alleged contravention of the law or
the Constitution. Thus, a taxpayer's action is properly brought only when there is an
exercise by Congress of its taxing or spending power. . . . Coming now to the instant case,
it is readily apparent that there is no exercise by Congress of its taxing or spending power.
The PCCR was created by the President by virtue of E.O. No. 43, as amended by E.O. No.
70. Under Section 7 of E.O. No. 43, the amount of P3 million is "appropriated" for its
operational expenses "to be sourced from the funds of the O ce of the President." . . . The
appropriations for the PCCR were authorized by the President, not by Congress. In fact,
there was no appropriation at all. . . . There being no exercise by Congress of its taxing or
spending power, petitioner cannot be allowed to question the creation of the PCCR in his
capacity as a taxpayer.
4. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; MANDAMUS; LIES TO ALLOW
ACCESS TO INFORMATION DEALING WITH MATTERS OF PUBLIC CONCERN; CASE AT
BAR. — Finally, petitioner asks us to issue a writ of mandamus ordering Executive
Secretary Ronaldo B. Zamora to answer his letter dated October 4, 1999 requesting for the
names of executive o cials holding multiple positions in government, copies of their
appointments, and a list of the recipients of luxury vehicles seized by the Bureau of
Customs and turned over to Malacañang. We agree with petitioner that respondent
Zamora, in his o cial capacity as Executive Secretary, has a constitutional and statutory
duty to answer petitioner's letter dealing with matters which are unquestionably of public
concern — that is, appointments made to public o ces and the utilization of public
property. With regard to petitioner's request for copies of the appointment papers of
certain o cials, respondent Zamora is obliged to allow the inspection and copying of the
same subject to the reasonable limitations required for the orderly conduct of o cial
business. IEAacS
DECISION
GONZAGA-REYES , J : p
In this petition for prohibition and mandamus led on December 9, 1999, petitioner
Ramon A. Gonzales, in his capacity as a citizen and taxpayer, assails the constitutionality of
the creation of the Preparatory Commission on Constitutional Reform (PCCR) and of the
positions of presidential consultants, advisers and assistants. Petitioner asks this Court to
enjoin the PCCR and the presidential consultants, advisers and assistants from acting as
such, and to enjoin Executive Secretary Ronaldo B. Zamora from enforcing their advice and
recommendations. In addition, petitioner seeks to enjoin the Commission on Audit from
passing in audit expenditures for the PCCR and the presidential consultants, advisers and
assistants. Finally, petitioner prays for an order compelling respondent Zamora to furnish
petitioner with information on certain matters.
On January 28, 2000, respondent Hon. Andres R. Narvasa, impleaded in his capacity
as Chairman of the PCCR, led his Comment to the Petition. The rest of the respondents,
who are being represented in this case by the Solicitor General, led their Comment with
this Court on March 7, 2000. Petitioner then led a Consolidated Reply on April 24, 2000,
whereupon this case was considered submitted for decision. CAaDSI
I. Preparatory Commission on Constitutional Reform

The Preparatory Commission on Constitutional Reform (PCCR) was created by
President Estrada on November 26, 1998 by virtue of Executive Order No. 43 (E.O. No. 43)
in order "to study and recommend proposed amendments and/or revisions to the 1987
Constitution, and the manner of implementing the same." 1 Petitioner disputes die
constitutionality of the PCCR on two grounds. First, he contends that it is a public o ce
which only the legislature can create by way of a law. 2 Secondly, petitioner asserts that by
creating such a body the President is intervening in a process from which he is totally
excluded by the Constitution — the amendment of the fundamental charter. 3
It is alleged by respondents that, with respect to the PCCR, this case has become
moot and academic. We agree.
An action is considered "moot" when it no longer presents a justiciable controversy
because the issues involved have become academic or dead. 4 Under E.O. No. 43, the
PCCR was instructed to complete its task on or before June 30, 1999. 5 However, on
February 19, 1999, the President issued Executive Order No. 70 (E.O. No. 70), which
extended the time frame for the completion of the commission's work, viz —
SECTION 6. Section 8 is hereby amended to read as follows:
Time Frame. The Commission shall commence its work on 01 January 1999
and complete the same on or before 31 December 1999. The Commission
shall submit its report and recommendations to the President within fteen
(15) working days from 31 December 1999.
The PCCR submitted its recommendations to the President on December 20, 1999 and
was dissolved by the President on the same day. It had likewise spent the funds
allotted to it. 6 Thus, the PCCR has ceased to exist, having lost its raison d'etre.
Subsequent events have overtaken the petition and the Court has nothing left to
resolve.
The staleness of the issue before us is made more manifest by the impossibility of
granting the relief prayed for by petitioner. Basically, petitioner asks this Court to enjoin the
PCCR from acting as such. 7 Clearly, prohibition is an inappropriate remedy since the body
sought to be enjoined no longer exists. It is well established that prohibition is a preventive
remedy and does not lie to restrain an act that is already fait accompli. 8 At this point, any
ruling regarding the PCCR would simply be in the nature of an advisory opinion, which is
definitely beyond the permissible scope of judicial power.
In addition to the mootness of the issue, petitioner's lack of standing constitutes
another obstacle to the successful invocation of judicial power insofar as the PCCR is
concerned.
The question in standing is whether a party has "alleged such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of di cult
constitutional questions." 9 In assailing the constitutionality of E.O. Nos. 43 and 70,
petitioner asserts his interest as a citizen and taxpayer. 1 0 A citizen acquires standing only
if he can establish that he has suffered some actual or threatened injury as a result of the
allegedly illegal conduct of the government; the injury is fairly traceable to the challenged
action; and the injury is likely to be redressed by a favorable action. 1 1 I n Kilosbayan,
Incorporated v. Morato , 1 2 we denied standing to petitioners who were assailing a lease
agreement between the Philippine Charity Sweepstakes O ce and the Philippine Gaming
Management Corporation, stating that,
. . . in Valmonte v. Philippine Charity Sweepstakes O ce , G.R. No. 78716,
Sept. 22, 1987, standing was denied to a petitioner who sought to declare a form
of lottery known as Instant Sweepstakes invalid because, as the Court held,
Valmonte brings the suit as a citizen, lawyer, taxpayer and father of
three (3) minor children. But nowhere in his petition does petitioner claim
that his rights and privileges as a lawyer or citizen have been directly and
personally injured by the operation of the Instant Sweepstakes. The
interest of the person assailing the constitutionality of a statute must be
direct and personal. He must be able to show, not only that the law is
invalid, but also that he has sustained or in immediate danger of
sustaining some direct injury as a result of its enforcement, and not merely
that he suffers thereby in some inde nite 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 complained of.
We apprehend no difference between the petitioner in Valmonte and the

present petitioners. Petitioners do not in fact show what particularized interest
they have for bringing this suit. It does not detract from the high regard for
petitioners as civic leaders to say that their interest falls short of that required to
maintain an action under Rule 3, § 2.
Coming now to the instant case, petitioner has not shown that he has sustained or is
in danger of sustaining any personal injury attributable to the creation of the PCCR. If at all,
it is only Congress, not petitioner, which can claim any "injury" in this case since, according
to petitioner, the President has encroached upon the legislature's powers to create a
public o ce and to propose amendments to the Charter by forming the PCCR. Petitioner
has sustained no direct, or even any indirect, injury. Neither does he claim that his rights or
privileges have been or are in danger of being violated, nor that he shall be subjected to any
penalties or burdens as a result of the PCCR's activities. Clearly, petitioner has failed to
establish his locus standi so as to enable him to seek judicial redress as a citizen.
A taxpayer is deemed to have the standing to raise a constitutional issue when it is
established that public funds have been disbursed in alleged contravention of the law or
the Constitution. 1 3 Thus, a taxpayer's action is properly brought only when there is an
exercise by Congress of its taxing or spending power. 1 4 This was our ruling in a recent
case wherein petitioners Telecommunications and Broadcast Attorneys of the Philippines
(TELEBAP) and GMA Network, Inc. questioned the validity of Section 92 of B.P. No. 881
(otherwise known as the "Omnibus Election Code") requiring radio and television stations
to give free air time to the Commission on Elections during the campaign period. 1 5 The
Court held that petitioner TELEBAP did not have any interest as a taxpayer since the
assailed law did not involve the taxing or spending power of Congress. 1 6
Many other rulings have premised the grant or denial of standing to taxpayers upon
whether or not the case involved a disbursement of public funds by the legislature. In
Sanidad v. Commission on Elections , 1 7 the petitioners therein were allowed to bring a
taxpayers' suit to question several presidential decrees promulgated by then President
Marcos in his legislative capacity calling for a national referendum, with the Court
explaining that —
. . . [i]t is now all ancient rule that the valid source of a statute —
Presidential Decrees are of such nature — may be contested by one who will
sustain a direct injury as a result of its enforcement. At the instance of taxpayers,
laws providing for the disbursement of public funds may be enjoined, upon the
theory that the expenditure of public funds by an o cer of the State for the
purpose of executing an unconstitutional act constitutes a misapplication of such
funds. The breadth of Presidential Decree No. 991 carries an appropriation of Five
Million Pesos for the effective implementation of its purposes. Presidential
Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its
provisions. The interest of the aforenamed petitioners as taxpayers in the lawful
expenditure of these amounts of public money su ciently clothes them with that
personality to litigate the validity of the Decrees appropriating said funds . . .
ECcTaS
In still another case, the Court held that petitioners — the Philippine Constitution
Association, Inc., a non-pro t civic organization — had standing as taxpayers to
question the constitutionality of Republic Act No. 3836 insofar as it provides for
retirement gratuity and commutation of vacation and sick leaves to Senators and
Representatives and to the elective o cials of both houses of Congress. 1 8 And in
Pascual v. Secretary of Public Works , 1 9 the Court allowed petitioner to maintain a
taxpayer's suit assailing the constitutional soundness of Republic Act No. 920
appropriating P85,000.00 for the construction, repair and improvement of feeder roads
within private property. All these cases involved the disbursement of public funds by
means of a law.
Meanwhile, in Bugnay Construction and Development Corporation v. Laron , 2 0 the
Court declared that the trial court was wrong in allowing respondent Ravanzo to bring an
action for injunction in his capacity as a taxpayer in order to question the legality of the
contract of lease covering the public market entered into between the City of Dagupan and
petitioner. The Court declared that Ravanzo did not possess the requisite standing to bring
such taxpayer's suit since "[o]n its face, and there is no evidence to the contrary the lease
contract entered into between petitioner and the City shows that no public funds have
been or will be used in the construction of the market building."
Coming now to the instant case, it is readily apparent that there is no exercise by
Congress of its taxing or spending power. The PCCR was created by the President by
virtue of E.O. No. 43, as amended by E.O. No. 70. Under Section 7 of E.O. No. 43, the
amount of P3 million is "appropriated" for its operational expenses "to be sourced from
the funds of the Office of the President." The relevant provision states —
Appropriations. The initial amount of Three Million Pesos (P3,000,000.00)
is hereby appropriated for the operational expenses of the Commission to be
sourced from funds of the O ce of the President, subject to the usual accounting
and auditing rules and regulations. Additional amounts shall be released to the
Commission upon submission of requirements for expenditures.
The appropriations for the PCCR were authorized by the President, not by Congress. In
fact, there was no appropriation at all. "In a strict sense, appropriation has been de ned
'as nothing more than the legislative authorization prescribed by the Constitution that
money may be paid out of the Treasury,' while appropriation made by law refers to 'the
act of the legislature setting apart or assigning to a particular use a certain sum to be
used in the payment of debt or dues from the State to its creditors.'" 2 1 The funds used
for the PCCR were taken from funds intended for the O ce of the President, in the
exercise of the Chief Executive's power to transfer funds pursuant to Section 25 (5) of
Article VI of the Constitution.
In the nal analysis, it must be stressed that the Court retains the power to decide
whether or not it will entertain a taxpayer's suit. 2 2 In the case at bar, there being no
exercise by Congress of its taxing or spending power, petitioner cannot be allowed to
question the creation of the PCCR in his capacity as a taxpayer, but rather, he must
establish that he has a "personal and substantial interest in the case and that he has
sustained or will sustain direct injury as a result of its enforcement." 2 3 In other words,
petitioner must show that he is a real party in interest — that he will stand to be bene ted
or injured by the judgment or that he will be entitled to the avails of the suit. 2 4 Nowhere in
his pleadings does petitioner presume to make such a representation.
II. Presidential Consultants, Advisers, Assistants
The second issue raised by petitioner concerns the presidential consultants.
Petitioner alleges that in 1995 and 1996, the President created seventy (70) positions in
the O ce of the President and appointed to said positions twenty (20) presidential
consultants, twenty-two (22) presidential advisers, and twenty-eight (28) presidential
assistants. 2 5 Petitioner asserts that, as in the case of the PCCR, the President does not
have the power to create these positions. 2 6
Consistent with the abovementioned discussion on standing, petitioner does not
have the personality to raise this issue before the Court. First of all, he has not proven that
he has sustained or is in danger of sustaining any injury as a result of the appointment of
such presidential advisers. Secondly, petitioner has not alleged the necessary facts so as
to enable the Court to determine if he possesses a taxpayer's interest in this particular
issue. Unlike the PCCR which was created by virtue of an executive order, petitioner does
not allege by what o cial act, whether it be by means of an executive order, administrative
order, memorandum order, or otherwise, the President attempted to "create" the positions
of presidential advisers, consultants and assistants. Thus, it is unclear what act of the
President petitioner is assailing. In support of his allegation, petitioner merely annexed a
copy of the Philippine Government Directory (Annex "C") listing the names and positions of
such presidential consultants, advisers and assistants to his petition. However,
appointment is obviously not synonymous with creation. It would be improvident for this
Court to entertain this issue given the insufficient nature of the allegations in the Petition.
III. Right to Information
Finally, petitioner asks us to issue a writ of mandamus ordering Executive Secretary
Ronaldo B. Zamora to answer his letter (Annex "D") dated October 4, 1999 requesting for
the names of executive o cials holding multiple positions in government, copies of their
appointments, and a list of the recipients of luxury vehicles seized by the Bureau of
Customs and turned over to Malacañang. 2 7
The right to information is enshrined in Section 7 of the Bill of Rights which provides
that —
The right of the people to information on matters of public concern shall
be recognized. Access to o cial records, and to documents, and papers
pertaining to o cial acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
Under both the 1973 2 8 and 1987 Constitution, this is a self-executory provision
which can be invoked by any citizen before the courts. This was our ruling in Legaspi v. Civil
Service Commission, 2 9 wherein the Court classi ed the right to information as a public
right and "when a mandamus proceeding involves the assertion of a public right, the
requirement of personal interest is satis ed by the mere fact that the petitioner is a citizen,
and therefore, part of the general 'public' which possesses the right." However, Congress
may provide for reasonable conditions upon the access to information. Such limitations
were embodied in Republic Act No. 6713, otherwise known as the "Code of Conduct and
Ethical Standards for Public O cials and Employees," which took effect on March 25,
1989. This law provides that, in the performance of their duties, all public o cials and
employees are obliged to respond to letters sent by the public within fteen (15) working
days from receipt thereof and to ensure the accessibility of all public documents for
inspection by the public within reasonable working hours, subject to the reasonable claims
of confidentiality. 3 0
Elaborating on the signi cance of the right to information, the Court said in Baldoza
v. Dimaano 3 1 that "[t]he incorporation of this right in the Constitution is a recognition of
the fundamental role of free exchange of information in a democracy. There can be no
realistic perception by the public of the nation's problems, nor a meaningful democratic
decision making if they are denied access to information of general interest. Information is
needed to enable the members of society to cope with the exigencies of the times." The
information to which the public is entitled to are those concerning "matters of public
concern," a term which "embrace[s] a broad spectrum of subjects which the public may
want to know, either because these directly affect their lives, or simply because such
matters naturally arouse the interest of an ordinary citizen. In the nal analysis, it is for the
courts to determine in a case by case basis whether the matter at issue is of interest or
importance, as it relates to or affects the public." 3 2
Thus, we agree with petitioner that respondent Zamora, in his o cial capacity as
Executive Secretary, has a constitutional and statutory duty to answer petitioner's letter
dealing with matters which are unquestionably of public concern — that is, appointments
made to public o ces and the utilization of public property. With regard to petitioner's
request for copies of the appointment papers of certain o cials, respondent Zamora is
obliged to allow the inspection and copying of the same subject to the reasonable
limitations required for the orderly conduct of official business. 3 3
WHEREFORE, the petition is dismissed, with the exception that respondent Zamora
is ordered to furnish petitioner with the information requested. ESHAIC
SO ORDERED.
Davide, Jr., C.J., Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima,
Pardo, Buena, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., is abroad on official business.
Puno, J., I vote and dismiss on the ground that the case is moot.
Footnotes
1. E.O. No. 43, Sec. 1.
2. Petition, 11-18.
3. Ibid., 18-22.
4. Santiago v. Court of Appeals , 285 SCRA 16 (1998); Garcia v. Commission on Elections,
258 SCRA 754 (1996).
5. E.O. No. 43, Sec. 8.
6. Comment of respondent Narvasa, 7-9.
7. Petition, 29-30.
8. Aguinaldo v. Commission on Elections, 308 SCRA 770 (1998).

9. Kilosbayan, Incorporated v. Morato , 246 SCRA 540 (1995), citing Baker v. Carr , 369 U.S.
186, 7 L. Ed. 2d 633 (1962).
10. Petition, 2.
11. Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission
on Elections, 289 SCRA 337 (1998).
12. 246 SCRA 540 (1995).
13. The Anti-Graft League of the Philippines, Inc. v. San Juan, 260 SCRA 250 (1996).
14. Flast v. Cohen, 392 US 83, 20 L Ed 2d 947, 88 S Ct 1942.
15. Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission
on Elections, 289 SCRA 337 (1998).
16. See also The Anti-Graft League of the Philippines, Inc. v. San Juan, 260 SCRA 250
(1996); Kilosbayan, Incorporated v. Morato , 246 SCRA 540 (1995); Dumlao v. Comelec ,
95 SCRA 392 (1980).
17. 73 SCRA 333 (1976).

18. Philippine Constitution Association, Inc. v. Gimenez, 15 SCRA 479 (1965).
19. 110 Phil. 331 (1960).
20. 176 SCRA 251 (1989).
21. Gonzales v. Raquiza, 180 SCRA 254 (1989).
22. Dumlao v. Commission on Elections , 95 SCRA 392 (1980), citing Tan v. Macapagal , 43
SCRA 677 (1972); Sanidad v. Commission on Elections, 73 SCRA 333 (1976).
23. People v. Vera, 65 Phil. 50 (1937).

24. Rules of Court, Rule 3, Sec. 2; Board of Optometry v. Colet, 260 SCRA 88 (1997).
25. Petition, 6.
26. Ibid., 6-7, 22.
27. Ibid., 1-2, 6.
28. Sec. 6, Article III, 1973 Constitution, provided —
The right of the people to information on matters of public concern shall be
recognized. Access to o cial records, and to documents and papers pertaining to
o cial acts, transactions, or decision, shall be afforded the citizen subject to such
limitations as may be provided by law.
29. 150 SCRA 530 (1987).
30. Republic Act No. 6713, Sec. 5 (a) and (e); see Rules Implementing the Code of Conduct
and Ethical Standards for Public Officials and Employees, Rule IV.
31. 71 SCRA 14 (1976). See Echegaray v. Secretary of Justice, 297 SCRA 754 (1998).
32. Legaspi v. Civil Service Commission, 150 SCRA 530 (1987).

33. Lantaco, Sr. v. Llamas, 108 SCRA 502 (1981).

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/DIR. 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.
RESOLUTION
MELO , J : p
On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent mob

armed with explosives, rearms, 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. TaEIcS
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) led by Pan lo 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 a temporary
restraining order led 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 led
by Ronaldo A. Lumbao; and (4) G.R. No. 147810 for certiorari and prohibition led by the
political party Laban 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. Signi cantly, 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 speci c persons in connection with the "rebellion." He states
that what is extant are general instructions to law enforcement o cers 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 o cer 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
o cer with arbitrary detention. All this is without prejudice to his ling an action for
damages against the arresting o cer 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 (Sections 2 and 3, Rule 65,
Rules of Court).
Aside from the foregoing reasons, several considerations likewise inevitably call for
the dismissal of the petitions at bar. CAScIH
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 led be directed to desist from arraigning and proceeding with the
trial of the case, until the instant petition is nally resolved." This relief is clearly premature
considering that as of this date, no complaints or charges have been led against any of
the petitioners for any crime. And in the event that the same are later led, this Court
cannot enjoin criminal prosecution conducted in accordance with the Rules of Court, for by
that time any arrest would have been in pursuance 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 in Integrated
Bar of the Philippines v. Hon. Zamora, (G.R. No. 141284, August 15, 2000):
. . . The factual necessity of calling out the armed forces is not easily
quanti able 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 di cult 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 classi ed as
highly con dential 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. . . .
(at pp. 22-23)
The Court, in a proper case, may look into the su ciency 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. HITAEC
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 rst 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.
Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban and Gonzaga-Reyes, JJ.,
concur.
Quisumbing, Buena, Ynares-Santiago and De Leon, Jr., JJ., are on leave.
Vitug, J., please see separate opinion.
Kapunan and Sandoval-Gutierrez, JJ., see dissenting opinion.
Panganiban, J., join the dissent of J. Kapunan.
Separate Opinions
VITUG , J.:
I concur insofar as the resolution enjoins any continued warrantless arrests for acts
related to, or connected with, the May 1st incident but respectfully dissent from the order
of dismissal of the petitions for being said to be moot and academic. The petitions have
raised important constitutional issues that, in my view, must likewise be fully addressed.
KAPUNAN , J., dissenting :
The right against unreasonable searches and seizure has been characterized as
belonging "in the catalog of indispensable freedoms."
Among deprivation of rights, none is so effective in cowing a population,
crushing the spirit of the individual and putting terror in every heart. Uncontrolled
search and seizure is one of the rst and most effective weapons in the arsenal
of every arbitrary government. And one need only brie y to have dwelt and
worked among a people possessed of many admirable qualities but deprived of
these rights to know that the human personality deteriorates and dignity and self-
reliance disappear where homes, persons and possessions are subject at any
hour to unheralded search and seizure by the police. 1
Invoking the right against unreasonable searches and seizures, petitioners Pan lo
Lacson, Michael Ray Aquino and Cezar O. Mancao II now seek a temporary restraining
order and/or injunction from the Court against their impending warrantless arrests upon
the order of the Secretary of Justice. 2 Petitioner Laban ng Demokratikong Pilipino (LDP),
likewise, seeks to enjoin the arrests of its senatorial candidates, namely, Senator Juan
Ponce-Enrile, Senator Miriam Defensor-Santiago, Senator Gregorio B. Honasan and General
Pan lo Lacson. 3 Separate petitioners were also led by Senator Juan Ponce Enrile, 4
Former Ambassador Ernesto M. Maceda, 5 Senator Miriam Defensor-Santiago, 6 Senator
Gregorio B. Honasan, 7 and the Integrated Bar of the Philippines (IBP). 8
Brie y, the order for the arrests of these political opposition leaders and police
officers stems from the following facts:
On April 25, 2001, former President Joseph Estrada was arrested upon the warrant
issued by the Sandiganbayan in connection with the criminal case for plunder led against
him. Several hundreds of policemen were deployed to effect his arrest. At the time, a
number of Mr. Estrada's supporters, who were then holding camp outside his residence in
Greenhills Subdivision, sought to prevent his arrest. A skirmish ensued between them and
the police. The police had to employ batons and water hoses to control the rock-throwing
pro-Estrada rallyists and allow the sheriffs to serve the warrant. Mr. Estrada and his son
and co-accused, Mayor Jinggoy Estrada, were then brought to Camp Crame where, with
full media coverage, their fingerprints were obtained and their mug shots taken.
Later that day, and on the succeeding days, a huge gathered at the EDSA Shrine to
show its support for the deposed President. Senators Enrile, Santiago, Honasan,
opposition senatorial candidates including petitioner Lacson, as well as other political
personalities, spoke before the crowd during these rallies.
In the meantime, on April 28, 2001, Mr. Estrada and his son were brought to the
Veterans Memorial Medical Center for a medical check-up. It was announced that from
there, they would be transferred to Fort Sto. Domingo in Sta. Rosa, Laguna.
In the early morning of May 1, 2001, the crowd at EDSA decided to march to
Malacañang Palace. The Armed Forces of the Philippines (AFP) was called to reinforce the
Philippine National Police (PNP) to guard the premises of the presidential residence. The
marchers were able to penetrate the barricades put up by the police at various points
leading to Mendiola and were able to reach Gate 7 of Malacañang. As they were being
dispersed with warning shots, tear gas and water canons, the rallyists hurled stones at the
police authorities. A melee erupted. Scores of people, including some policemen, were
hurt.
At noon of the same day, after the crowd in Mendiola had been dispersed, President
Gloria Macapagal-Arroyo issued Proclamation No. 38 declaring a "state of rebellion" in
Metro Manila:
Presidential Proclamation No. 38
DECLARING STATE OF REBELLION IN THE NATIONAL CAPITAL REGION
WHEREAS, the angry and violent mob, armed with explosives, rearms,
bladed weapons, clubs, stones and other deadly weapons, in great part coming
from the mass gathering at the EDSA Shrine, and other armed groups, having
been agitated and incited and, acting upon the instigation and under the
command and direction of known and unknown leaders, have and continue to
assault and attempt to break into Malacañang with the avowed purpose of
overthrowing the duly constituted Government and forcibly seize power, and have
and continue to rise publicly, shown open hostility, and take up arms against the
duly constituted Government for the purpose of removing from the allegiance to
the Government certain bodies of the Armed Forces of the Philippines and the
Philippine National Police, and to deprive the President of the Republic of the
Philippines, wholly and partially, of her powers and prerogatives which constitute
the continuing crime of rebellion punishable under Article 134 of the Revised
Penal Code; cIADaC
WHEREAS, armed groups recruited by known and unknown leaders,

conspirators, and plotters have continue (sic) to rise publicly by the use of arms to
overthrow the duly constituted Government and seize political power;
WHEREAS, under Article VII, Section 18 of the Constitution, whenever
necessary, the President as the Commander-in-Chief of all armed forces of the
Philippines, may call out such armed forces to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the

powers vested in me by law hereby recognize and con rm the existence of an
actual and on-going rebellion compelling me to declare a state of rebellion;
In view of the foregoing, I am issuing General Order No. 1 in accordance
with Section 18, Article VII of the Constitution calling upon the Armed Forces of
the Philippines and the Philippine National police to suppress and quell the
rebellion.
City of Manila, May 1, 2001.
The President likewise issued General Order No. 1 which reads:

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
WHEREAS, the angry and violent mob, armed with explosives, rearms,
bladed weapons, clubs, stones and other deadly weapons, in great part coming
from the mass gathering at the EDSA Shrine, and other armed groups, having
been agitated and incited and, acting upon the instigation and under the
command and direction of known and unknown leaders, have and continue to
assault and attempt to break into Malacañang with the avowed purpose of
overthrowing the duly constituted Government and forcibly seize political power,
and have and continue to rise publicly, show open hostility, and take up arms
against the duly constituted Government certain bodies of the Armed Forces of
the Philippines and the Philippine National Police, and to deprive the President of
the Republic of the Philippines, wholly and partially, of her powers and
prerogatives which constitute the continuing crime of rebellion punishable under
Article 134 of the Revised Penal Code;
WHEREAS, armed groups recruited by known and unknown leaders,
conspirators, and plotters have continue (sic) to rise publicly by the use of arms to
overthrow the duly constituted Government and seize political power;
WHEREAS, under Article VII, Section 18 of the Constitution, whenever
necessary, the President as the Commander-in-Chief of all armed forces of the
Philippines, may call out such armed forces to suppress the rebellion; DHIaTS
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the

powers vested in me under the Constitution as President of the Republic of the
Philippines and Commander-in-Chief of all armed forces of the Philippines and
pursuant to Proclamation No. 38, dated May 1, 2001, do hereby call upon the
Armed Forces of the Philippines and the Philippine national police to suppress
and quell the rebellion.
I hereby direct the Chief of Staff of the Armed Forces of the Philippines and
the Chief of the Philippine National Police and the o cers and men of the Armed
Forces of the Philippines and the Philippine National Police to immediately carry
out the necessary and appropriate actions and measures to suppress and quell
the rebellion with due regard to constitutional rights.
City of Manila, May 1, 2001.
Pursuant to the proclamation, several key leaders of the opposition were ordered
arrested. Senator Enrile was arrested without warrant in his residence at around 4:00 in the
afternoon. Likewise arrested without warrant the following day was former Ambassador
Ernesto Maceda. Senator Honasan and Gen. Lacson were also ordered arrested but the
authorities have so far failed to apprehend them. Ambassador Maceda was temporarily
released upon recognizance while Senator Ponce Enrile was ordered released by the Court
on cash bond.
The basic issue raised by the consolidated petitions is whether the arrest or
impending arrest without warrant, pursuant to a declaration of "state of rebellion" by the
President of the above-mentioned persons and unnamed other persons similarly situated
suspected of having committed rebellion is illegal, being unquestionably a deprivation of
liberty and violative of the Bill of Rights under the Constitution.
The declaration of a "state of rebellion" is supposedly based on Section 18, Article
VII of the Constitution which reads:
The 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. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place
the Philippines or any part thereof under martial law. Within forty-eight hours from
the proclamation of martial law or the suspension of the writ of habeas corpus,
the President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its Members in
regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following
such proclamation or suspension, convene in accordance with its rules without
need of a call.
The Supreme Court may review, in an appropriate proceeding led by any

citizen, the su ciency of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
ECaSIT
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly connected with
invasion.
During the suspension of the privilege of the writ, any person thus arrested
or detained shall be judicially charged within three days, otherwise he shall be
released.
Section 18 grants the President, as Commander-in-Chief, the power to call out the
armed forces in cases of (1) lawless violence, (2) rebellion and (3) invasion. 9 In the latter
two cases, i.e., rebellion or invasion, the President may, when public safety requires, also
(a) suspend the privilege of the writ of habeas corpus, or (b) place the Philippines or any
part thereof under martial law. However, in the exercise of this calling out power as
Commander-in-Chief of the armed forces, the Constitution does not require the President
to make a declaration of a "state of rebellion" (or, for that matter, of lawless violence or
invasion). The term "state of rebellion" has no legal signi cance. It is vague and amorphous
and does not give the President more power than what the Constitution says, i. e, whenever
it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. As Justice Mendoza observed during the hearing of this
case, such a declaration is "legal surplusage." But whatever the term means, it cannot
diminish or violate constitutionally-protected rights, such as the right to due process, 10
the rights to free speech and peaceful assembly to petition the government for redress of
grievances, 11 and the right against unreasonable searches and seizures, 12 among others.
In Integrated Bar of the Philippines vs. Zamora, et al., 13 the Court held that:
. . . [T]he distinction (between the calling out power, on one hand, and the
power to suspend the privilege of the write of habeas corpus and to declare
martial law, on the other hand) places the calling out power in a different category
from the power to declare martial law and the power to suspend the privilege of
the writ of habeas corpus, otherwise, the framers of the Constitution would have
simply lumped together the three powers and provided for their revocation and
review without any qualification. Expressio unius est exclusio alterius.
xxx xxx xxx

The reason for the difference in the treatment of the aforementioned
powers highlights the intent to grant the President the widest leeway and broadest
discretion in using the "calling out" power because it is considered as the lesser
and more benign power compared to the power to suspend the privilege of the
writ of habeas corpus and the power to impose martial law, both of which involve
the curtailment and suppression of certain basic civil rights and individual
freedoms, and thus necessitating a rmation by Congress and, in appropriate
cases, review by this Court.
On the other hand, if the motive behind the declaration of a "state of rebellion" is to
arrest persons without warrant and detain them without bail and, thus, skirt the
Constitutional safeguards for the citizens' civil liberties, the so called "state of rebellion"
partakes the nature of martial law without declaring it as such. It is a truism that a law or
rule may itself be fair or innocuous on its face, yet, if it is applied and administered by
public authority with an evil eye so as to practically make it unjust and oppressive, it is
within the prohibition of the Constitution. 14 In an ironic sense, a "state of rebellion"
declared as a subterfuge to effect warrantless arrest and detention for an unbailable
offense places a heavier burden on the people's civil liberties than the suspension of the
privilege of the writ of habeas corpus and the declaration of martial law because in the
latter case, built-in safeguards are automatically set on motion: (1) The period for martial
law or suspension is limited to a period not exceeding sixty day; (2) The President is
mandated to submit a report to Congress within forty-eight hours from the proclamation
or suspension; (3) The proclamation or suspension is subject to review by Congress,
which may revoke such proclamation or suspension. If Congress is not in session, it shall
convene in 24 hours without need for call; and (4) The su ciency of the factual basis
thereof or its extension is subject to review by the Supreme Court in an appropriate
proceeding. 15
No right is more fundamental than the right to life and liberty. Without these rights,
all other individual rights may not exist. Thus, the very rst section in our Constitution's Bill
of Rights, Article III, reads:
SECTION 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.
And to assure the fullest protection of the right, more especially against government
impairment, Section 2 thereof provides:
SECTION 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 a rmation 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. TIEHSA
Indeed, there is nothing in Section 18 which authorizes the President or any person
acting under her direction to make unwarranted arrests. The existence of "lawless violence,
invasion or rebellion" only authorizes the President to call out the "armed forces to prevent
or suppress lawless violence, invasion or rebellion."
Not even the suspension of the privilege of the writ of habeas corpus or the
declaration of martial law authorizes the President to order the arrest of any person. The
only signi cant consequence of the suspension of the writ of habeas corpus is to divest
the courts of the power to issue the writ whereby the detention of the person is put in
issue. It does not by itself authorize the President to order the arrest of a person. And even
then, the Constitution in Section 18, Article VII makes the following qualifications:
invasion.
released.
In the instant case, the President did not suspend the writ of habeas corpus. Nor did
she declare martial law. A declaration of a "state of rebellion," at most, only gives notice to
the nation that it exists, and that the armed forces may be called to prevent or suppress it,
as in fact she did. Such declaration does not justify any deviation from the Constitutional
proscription against unreasonable searches and seizures.
As a general rule, an arrest may be made only upon a warrant issued by a court. In
very circumscribed instances, however, the Rules of Court allow warrantless arrests.
Section 5, Rule 113 provides:
SECTION 5. Arrest without warrant; when lawful. — A police o cer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause
to believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; and
xxx xxx xxx
In cases falling under paragraphs (a) and (b) above, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or jail
and shall be proceeded against in accordance with section 7 of Rule 112.
It must be noted that the above are exceptions to the constitutional norm enshrined
in the Bill of Rights that a person may only be arrested on the strength of a warrant of
arrest issued by a "judge" after determining "personally" the existence of "probable cause"
after examination under oath or a rmation of the complainant and the witnesses he may
produce. Its requirements should, therefore, be scrupulously met:
The right of a person to be secure against any unreasonable seizure of his
body and any deprivation of his liberty is a most basic and fundamental one. The
statute or rule which allows exceptions to the requirement of warrants of arrests
is strictly construed. Any exception must clearly fall within the situations when
securing a warrant would be absurd or is manifestly unnecessary as provided by
the Rule. We cannot liberally construe the rule on arrests without warrant or
extend its application beyond the cases speci cally provided by law. To do so
would infringe upon personal liberty and set back a basic right so often violated
and so deserving of full protection. 16
A warrantless arrest may be justi ed only if the police o cer had facts and
circumstances before him which, had they been before a judge, would constitute adequate
basis for a nding of probable cause of the commission of an offense and that the person
arrested is probably guilty of committing the offense. That is why the Rules of Criminal
Procedure require that when arrested, the person "arrested has committed, is actually
committing, or is attempting to commit an offense" in the presence of the arresting
o cer. Or if it be a case of an offense which had "just been committed," that the police
o cer making the arrest "has personal knowledge of facts or circumstances that the
person to be arrested has committed it."
Petitioners were arrested or sought to be arrested without warrant for acts of
rebellion ostensibly under Section 5 of Rule 113. Respondents' theory is based on Umil vs.
Ramos, 17 where this Court held:
The crimes of rebellion, subversion, conspiracy or proposal to commit such
crimes, and crimes or offenses committed in furtherance thereof or in connection
therewith constitute direct assault against the State and are in the nature of
continuing crimes. 18
Following this theory, it is argued that under Section 5(a), a person who "has
committed, is actually committing, or is attempting to commit" rebellion and may be
arrested without a warrant at any time so long as the rebellion persists.
Reliance on Umil is misplaced. The warrantless arrests therein, although effected a
day or days after the commission of the violent acts of petitioners therein, were upheld by
the Court because at the time of their respective arrests, they were members of
organizations such as the Communist Party of the Philippines, the New Peoples Army and
the National United Front Commission, then outlawed groups under the Anti-Subversion
Act. Their mere membership in said illegal organizations amounted to committing the
offense of subversion 19 which justified their arrests without warrants.
In contrast, it has not been alleged that the persons to be arrested for their alleged
participation in the "rebellion" on May 1, 2001 are members of an outlawed organization
intending to overthrow the government. Therefore, to justify a warrantless arrest under
Section 5(a), there must be a showing that the persons arrested or to be arrested has
committed, is actually committing or is attempting to commit the offense of rebellion. 20
In other words, there must be an overt act constitutive of rebellion taking place in the
presence of the arresting o cer. In United States vs. Samonte, 21 the term" in his [the
arresting officer's] presence" was defined thus:
An offense is said to be committed in the presence or within the view of an
arresting o cer or private citizen when such o cer or person sees the offense,
even though at a distance, or hears the disturbance created thereby and proceeds
at once to the scene thereof; or the offense is continuing, or has not been
consummated, at the time the arrest is made. 22
This requirement was not complied with particularly in the arrest of Senator Enrile. In
the Court's Resolution of May 5, 2001 in the petition for habeas corpus led by Senator
Enrile, the Court noted that the sworn statements of the policemen who purportedly
arrested him were hearsay. 23 Senator Enrile was arrested two (2) days after he delivered
allegedly seditious speeches. Consequently, his arrest without warrant cannot be justi ed
under Section 5(b) which states that an arrest without a warrant is lawful when made after
an offense has just been committed and the arresting o cer or private person has
probable cause to believe based on personal knowledge of facts and circumstances that
the person arrested has committed the offense.
At this point, it must be stressed that apart from being inapplicable to the cases at
bar, Umil is not without any strong dissents. It merely re-a rmed Garcia-Padilla vs. Enrile,
24 a case decided during the Marcos martial law regime. 25 It cannot apply when the
country is supposed to be under the regime of freedom and democracy. The separate
opinions of the following Justices in the motion for reconsideration of said case 26 are
apropos:
FERNAN, C.J., concurring and dissenting:
Secondly, warrantless arrests may not be allowed if the arresting o cers
are not sure what particular provision of law had been violated by the person
arrested. True it is that law enforcement agents and even prosecutors are not all
adept at the law. However, erroneous perception, not to mention ineptitude among
their ranks, especially if it would result in the violation of any right of a person,
may not be tolerated. That the arrested person has the "right to insist during the
pre-trial or trial on the merits" (Resolution, p. 18) that he was exercising a right
which the arresting o cer considered as contrary to law, is beside the point. No
person should be subjected to the ordeal of a trial just because the law enforcers
wrongly perceived his action. 27 (Emphasis supplied)
GUTIERREZ, JR., J., concurring and dissenting opinion

Insofar as G.R. No. 81567 is concerned, I join the other dissenting Justices
in their observations regarding "continuing offenses." To base warrantless arrests
on the doctrine of continuing offense is to give a license for the illegal detention
of persons on pure suspicion. Rebellion, insurrection, or sedition are political
offenses where the line between overt acts and simple advocacy or adherence to
a belief is extremely thin. If a court has convicted an accused of rebellion and he
is found roaming around, he may be arrested. But until a person is proved guilty, I
fail to see how anybody can jump to a personal conclusion that the suspect is
indeed a rebel and must be picked up on sight whenever seen. The grant of
authority in the majority opinion is too broad. If warrantless searches are to be
validated, it should be Congress and not this Court which should draw strict and
narrow standards. Otherwise, the non-rebels who are critical, noisy, or obnoxious
will be indiscriminately lumped up with those actually taking up arms against the
Government.
The belief of law enforcement authorities, no matter how well-grounded on

past events, that the petitioner would probably shoot other policemen whom he
may meet does not validate warrantless arrests. I cannot understand why the
authorities preferred to bide their time. await the petitioner's surfacing from
underground, and ounce on him with no legal authority instead of securing
warrants of arrest for his apprehension. 28 (Underscoring supplied)
CRUZ, J., concurring and dissenting:
I submit that the a rmation by this Court of the Garcia-Padilla decision to

justify the illegal arrests made in the cases before us is a step back to that
shameful past when individual rights were wantonly and systematically violated
by the Marcos dictatorship. It seems some of us have short memories of that
repressive regime, but I for one am not one to forget so soon. As the ultimate
defender of the Constitution, this Court should not gloss over the abuses of those
who, out of mistaken zeal, would violate individual liberty in the dubious name of
national security. Whatever their ideology and even if it be hostile to ours, the
petitioners are entitled to the protection of the Bill of Rights, no more and no less
than any other person in this country. That is what democracy is all about. 29
FELICIANO, J., concurring and dissenting:

12. My nal submission, is that, the doctrine of "continuing crimes," which
has its own legitimate function to serve in our criminal law jurisprudence, cannot
be invoked for weakening and dissolving the constitutional guarantee against
warrantless arrest. Where no overt acts comprising all or some of the elements of
the offense charged are shown to have been committed by the person arrested
without warrant, the "continuing crime" doctrine should not be used to dress up
the pretense that a crime, begun or committed elsewhere, continued to be
committed by the person arrested in the presence of the arresting o cer. The
capacity for mischief of such a utilization of the "continuing crimes" doctrine, is
in nitely increased where the crime charged does not consist of unambiguous
criminal acts with a de nite beginning and end in time and space (such as the
killing or wounding of a person or kidnapping and illegal detention or arson) but
rather of such problematic offenses as membership in or a liation with or
becoming a member of, a subversive association or organization. For in such
cases, the overt constitutive acts may be morally neutral in themselves, and the
unlawfulness of the acts a function of the aims or objectives of the organization
involved. Note, for instance, the following acts which constitute prima facie
evidence of "membership in any subversive association:" ESDcIA
a) Allowing himself to be listed as a member in any book or any of the

lists, records, correspondence, or any other document of the organization;
b) Subjecting himself to the discipline of such or association or

organization in any form whatsoever;
c) Giving nancial contribution to such association or organization in
dues, assessments, loans or in any other forms;
xxx xxx xxx

f) Conferring with o cers or other members of such association or
organization in furtherance of any plan or enterprise thereof ;
xxx xxx xxx
g) Preparing documents, pamphlets, lea ets, books, or any other type of

publication to promote the objectives and purposes of such association or
organization;
xxx xxx xxx
k) Participating in any way in the activities, planning action, objectives, or

purposes of such association or organization.
It may well be, as the majority implies, that the constitutional rule against
warrantless arrests and seizures makes the law enforcement work of police
agencies more di cult to carry out. It is not our Court's function, however, and the
Bill of Rights was not designed, to make life easy for police forces but rather to
protect the liberties of private individuals. Our police forces must simply learn to
live with the requirements of the Bill of Rights, to enforce the law by modalities
which themselves comply with the fundamental law. Otherwise they are very
likely to destroy, whether through sheer ineptness or excess of zeal, the very
freedoms which make our policy worth protecting and saving. 30 (Underscoring
supplied)
It is observed that a su cient period has lapsed between the fateful day of May 1,
2001 up to the present. If respondents have ample evidence against petitioners, then they
should forthwith le the necessary criminal complaints in order that the regular procedure
can be followed and the warrants of arrest issued by the courts in the normal course.
When practicable, resort to the warrant process is always to be preferred because "it
interposes an orderly procedure involving 'judicial impartiality' whereby a neutral and
detached magistrate can make informed and deliberate determination on the issue of
probable cause." 31
The neutrality, detachment and independence that judges are supposed to possess
is precisely the reason the framers of the 1987 Constitution have reposed upon them
alone the power to issue warrants of arrest. To vest the same to a branch of government,
which is also charged with prosecutorial powers, would make such branch the accused's
adversary and accuser, his judge and jury. 32
A declaration of a state of rebellion does not relieve the State of its burden of
proving probable cause. The declaration does not constitute a substitute for proof. It does
not in any way bind the courts, which must still judge for itself the existence of probable
cause. Under Section 18, Article VII, the determination of the existence of a state of
rebellion for purposes of proclaiming martial law or the suspension of the privilege of the
writ of habeas corpus rests for which the President is granted ample, though not absolute,
discretion. Under Section 2, Article III, the determination of probable cause is a purely legal
question of which courts are the final arbiters.
Justice Secretary Hernando Perez is reported to have announced that the lifting of
the "state of rebellion" on May 7, 2001 does not stop the police from making warrantless
arrests. 33 If this is so, the pernicious effects of the declaration on the people's civil
liberties have not abated despite the lifting thereof. No one exactly knows who are in the
list or who prepared the list of those to be arrested for alleged complicity in the
"continuing" crime of "rebellion" de ned as such by executive at. The list of the perceived
leaders, nanciers and supporters of the "rebellion" to be arrested and incarcerated could
expand depending on the appreciation of the police. The coverage and duration of
effectivity of the orders of arrest are thus so open-ended and limitless as to place in
constant and continuing peril the people's Bill of Rights. It is of no small signi cance that
four of the petitioners are opposition candidates for the Senate. Their campaign activities
have been to a large extent immobilized. If the arrests and orders of arrest against them
are illegal, then their Constitutional right to seek public o ce, as well as the right of the
people to choose their officials, is violated.
In view of the transcendental importance and urgency of the issues raised in these
cases affecting as they do the basic liberties of the citizens enshrined in our Constitution,
it behooves us to rule thereon now, instead of relegating the cases to trial courts which
unavoidably may come up with con icting dispositions, the same to reach this Court
inevitably for final ruling. As we aptly pronounced in Salonga vs. Cruz Paño: 3 4
The Court also has the duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules. It has the symbolic function
of educating bench and bar on the extent of protection given by constitutional
guarantees.
Petitioners look up in urgent supplication to the Court, considered the last bulwark
of democracy, for relief. If we do not act promptly, justly and fearlessly, to whom will they
turn to?
WHEREFORE, I vote as follows:
(1) Give DUE COURSE to and GRANT the petitions;
(2) Declare as NULL and VOID the orders of arrest issued against
petitioners;
(3) Issue a WRIT OF INJUNCTION enjoining respondents, their agents and all
other persons acting for and in their behalf from effecting warrantless
arrests against petitioners and all other persons similarly situated on
the basis of Proclamation No. 38 and General Order No. 1 of the
President.
SO ORDERED.
SANDOVAL-GUTIERREZ, J., dissenting :
The exercise of certain powers by the President in an atmosphere of civil unrest may
sometimes raise constitutional issues. If such powers are used arbitrarily and capriciously,
they may degenerate into the worst form of despotism.
It is on this premise that I express my dissent.
The chain of events which led to the present constitutional crisis are as follows:
On March 2, 2001, the Supreme Court rendered the landmark decision that would
bar further questions on the legitimacy of Gloria Macapagal-Arroyo's presidency. 1 In a
unanimous decision, the Court declared that Joseph Ejercito Estrada had effectively
resigned his post and that Macapagal-Arroyo is the legitimate President of the Philippines.
Estrada was stripped of all his powers and presidential immunity from suit.

Knowing that a warrant of arrest may at any time be issued against Estrada, his
loyalists rushed to his residence in Polk Street, North Greenhills Subdivision, San Juan,
Metro Manila. They conducted vigil in the vicinity swearing that no one can take away their
"president."
Then the dreadful day for the Estrada loyalists came.
On April 25, 2001, the Third Division of the Sandiganbayan issued warrants of arrest
against Estrada, his son Jinggoy, Charlie "Atong" Ang, Edward Serapio, Yolanda Ricaforte,
Alma Alfaro, Eleuterio Tan and Delia Rajas. 2 Emotions ran high as an estimated 10,000
Estrada loyalists, ranging from tattooed teenagers of Tondo to well-heeled Chinese,
gathered in Estrada's neighborhood. 3 Supporters turned hysterical. Newspapers captured
pictures of raging men and wailing women. 4 When policemen came, riots erupted. Police
had to use their batons as well as water hoses to control the rock-throwing Estrada
loyalists. 5
It took the authorities about four hours to implement the warrant of arrest. At about
3:30 o'clock in the afternoon of the same day, Philippine National Police (PNP) Chief,
Director General Leandro R. Mendoza, with the aid of PNP's Special Action Force and
reinforcements from the Philippine Army and Marines, implemented the warrant of arrest
against Estrada. 6
Like a common criminal, Estrada was ngerprinted and had his mug shots taken at
the detention center of the former Presidential Anti-Organized Task Force at Camp Crame.
The shabby treatment, caught on live TV cameras nationwide, had sparked off a wave of
protest all over the country. Even international news agencies like CNN and BBC were
appalled over the manner of Estrada's arrest calling it "overkill." In a taped message aired
over radio and television, Estrada defended himself and said, "I followed the rule of law to
the letter. I asked our people now to tell the powers to respect our constitution and the
rule of law."
Being loyal to the end, the supporters of Estrada followed him to Camp Crame.
About 3,000 of them massed up in front of the camp. They were shouting "Edsa Three!
Edsa Three! They vowed not to leave the place until Estrada is released. When asked how
long they planned to stay, the protesters said, "Kahit isang buwan, kahit isang taon." 7
At about 6:00 o'clock in the afternoon, also of the same day, the PNP's anti-riot
squads dispersed them. Thus, they proceeded to the Edsa Shrine in Mandaluyong City
where they joined forces with hundreds more who came from North Greenhills. 8 Hordes
of Estrada loyalists began gathering at the historic shrine.
On April 27, 2001, the crowd at Edsa begun to swell in great magnitude. Estrada
loyalists from various sectors, most of them obviously belonging to the "masses," brought
with them placards and streamers denouncing the manner of arrest done to the former
president. 9 In the afternoon, buses loaded with loyalists from the nearby provinces arrived
at the Edsa Shrine. One of their leaders said that the Estrada supporters will stay at Edsa
Shrine until the former president gets justice from the present administration. 10
An estimated 1,500 PNP personnel from the different parts of the metropolis were
deployed to secure the area. 11 On April 28, 2001, the PNP and the Armed Forces declared
a "nationwide red alert." 12 Counter-intelligence agents checked on possible defectors
from the military top officials. Several senators were linked to an alleged junta plot.
During the rally, several Puwersa Ng Masa candidates delivered speeches before the
crowd. Among those who showed up at the rally were Senators Miriam Defensor-Santiago,
Gregorio Honasan, Juan Ponce Enrile, Edgardo Angara, Vicente Sotto and former PNP
Director General Panfilo Lacson and former Ambassador Ernesto Maceda. 13
On April 30, 2001, the government started to prepare its forces. A 2,000-strong
military force backed up by helicopter gunships, Scorpion tanks and armored combat
vehicles stood ready to counter any attempt by Estrada loyalists to mount a coup. And to
show that it meant business, the task force parked two MG-520 attack helicopters armed
to the teeth with rockets on the parade ground at Camp Aguinaldo, Quezon City. Also
deployed were two armored personnel carriers and troops in camou age uniforms. 14
Over 2,500 soldiers from the army, navy, and air force were formed into Task Force Libra
to quell the indignant Estrada loyalists. 15
On May 1, 2001, at about 1:30 o'clock in the morning, the huge crowd at Edsa
started their march to Malacañang. 16 Along the way, they overran the barricades set up by
the members of the PNP Crowd Dispersal Control Management. 17
Shortly past 5:00 o'clock in the morning of the same day, the marchers were at the
gates of Malacañang chanting, dancing, singing and waving flags. 18
At around 10:00 o'clock in the morning, the police, with the assistance of combat-
ready soldiers, conducted dispersal operations. Some members of the dispersal team
were unceasingly ring their high-powered rearms in the air, while the police, armed with
truncheons and shields, were slowly pushing the protesters away from the gates of
Malacañang. Television footages showed protesters hurling stones and rocks on the
advancing policemen, shouting invectives against them and attacking them with clubs.
They burned police cars, a motorcycle, three pick-ups owned by a television station,
construction equipment and a tra c police outpost along Mendiola Street. 19 They also
attacked Red Cross vans, destroyed tra c lights, and vandalized standing structures.
Policemen were seen clubbing protesters, hurling back stones, throwing teargas under the
erce midday sun, and ring guns towards the sky. National Security Adviser Roilo Golez
said the Street had to be cleared of rioters at all costs because "this is like an arrow, a
dagger going all the way to (Malacañang) Gate 7." 20
Before noontime of that same day, the Estrada loyalists were driven away.
The violent street clashes prompted President Macapagal-Arroyo to place Metro
Manila under a "state of rebellion." Presidential Spokesperson Rigoberto Tiglao told
reporters, "We are in a state of rebellion. This is not an ordinary demonstration." 21 After
the declaration, there were threats of arrests against those suspected of instigating the
march to Malacañang.
At about 3:30 o'clock in the afternoon, Senator Juan Ponce Enrile was arrested in his
house in Dasmariñas Village, Makati City by a group led by Reynaldo Berroya, Chief of the
Philippine National Police Intelligence Group. 22 Thereafter, Berroya and his men
proceeded to hunt re-electionist Senator Gregorio Honasan, former PNP Chief Pan lo
Lacson, former Ambassador Ernesto Maceda, Brig. Gen. Jake Malajakan, Senior
Superintendents Michael Ray Aquino and Cesar Mancao II, Ronald Lumbao and Cesar
Tanega of the People's Movement Against Poverty (PMAP).] 23 Justice Secretary
Hernando Perez said that he was "studying" the possibility of placing Senator Miriam
Defensor — Santiago "under the Witness protection program."
Director Victor Batac, former Chief of the PNP Directorate for Police Community
Relations, and Senior Superintendent Diosdado Valeroso, of the Philippine Center for
Transnational Crime, surrendered to Berroya. Both denied having plotted the siege.
On May 2, 2001, former Ambassador Ernesto Maceda was arrested.
The above scenario presents three crucial queries: First, is President Macapagal-
Arroyo's declaration of a "state of rebellion" constitutional? Second, was the
implementation of the warrantless arrests on the basis of the declaration of a "state of
rebellion" constitutional? And third, did the rallyists commit rebellion at the vicinity of
Malacañang Palace on May 1, 2001?
The rst and second queries involve constitutional issues, hence, the basic yardstick
is the 1987 Constitution of the Philippines. The third query requires a factual analysis of
the events which culminated in the declaration of a state of rebellion; hence, an
examination of Article 134 of the Revised Penal Code is in order.
On May 7, 2001, President Macapagal-Arroyo issued Proclamation No. 39,
"DECLARING THAT THE STATE OF REBELLION IN THE NATIONAL CAPITAL REGION HAS
CEASED TO EXIST", which in effect has lifted the previous Proclamation No. 38.
I beg to disagree with the majority opinion in ruling that the instant petitions have
been rendered moot and academic with the lifting by the President of the declaration of a
"state of rebellion".
I believe that such lifting should not render moot and academic the very serious and
unprecedented constitutional issues at hand, considering their grave implications involving
the basic human rights and civil liberties of our people. A resolution of these issues
becomes all the more necessary since, as reported in the papers, there are saturation
drives (sonas) being conducted by the police wherein individuals in Metro Manila are
picked up without warrants of arrest.
Moreover, the acts sought to be declared illegal and unconstitutional are capable of
being repeated by the respondents. In Salva v. Makalintal (G.R. No. 132603, Sept. 18,
2000), this Court held that "courts will decide a question otherwise moot and academic if it
is 'capable of repetition, yet evading review' . . ."
I & II — President Macapagal-Arroyo's declaration
of a "state of rebellion" and the implementation of
the warrantless arrests premised on the said
declaration are unconstitutional.
Nowhere in the Constitution can be found a provision which grants upon the
executive the power to declare a "state of rebellion," much more, to exercise on the basis
of such declaration the prerogatives which a president may validly do under a state of
martial law. President Macapagal-Arroyo committed a constitutional short cut. She
disregarded the clear provisions of the Constitution which provide:
"SECTION 18. The 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.
In case of invasion or rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law. Within forty-
eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined by
the Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following

such proclamation or suspension, convene in accordance with its rules without
need of a call.
The Supreme Court may review, in an appropriate proceeding led by any
citizen, the su ciency of the factual bases of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution,
nor supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
invasion.
released." 24
Obviously, the power of the President in cases when she assumed the existence of
rebellion is properly laid down by the Constitution. I see no reason or justi cation for the
President's deviation from the concise and plain provisions. To accept the theory that the
President could disregard the applicable statutes, particularly that which concerns arrests,
searches and seizures, on the mere declaration of a "state of rebellion" is in effect to place
the Philippines under martial law without a declaration of the executive to that effect and
without observing the proper procedure. This should not be countenanced. In a society
which adheres to the rule of law, resort to extra-constitutional measures is unnecessary
where the law has provided everything for any emergency or contingency. For even if it may
be proven bene cial for a time, the precedent it sets is pernicious as the law may, in a little
while, be disregarded again on the same pretext but for evil purposes. Even in time of
emergency, government action may vary in breath and intensity from more normal times,
yet it need not be less constitutional. 2 5
My fear is rooted in history. Our nation had seen the rise of a dictator into power. As
a matter of fact, the changes made by the 1986 Constitutional Commission on the martial
law text of the Constitution were to a large extent a reaction against the direction which
the Supreme Court took during the regime of President Marcos. 2 6 Now, if this Court
would take a liberal view, and consider that the declaration of a "state of rebellion" carries
with it the prerogatives given to the President during a "state of martial law," then, I say, the
Court is traversing a very dangerous path. It will open the way to those who, in the end,
would turn our democracy into a totalitarian rule. History must not be allowed to repeat
itself. Any act which gears towards possible dictatorship must be severed at its inception.
The implementation of warrantless arrests premised on the declaration of a "state
of rebellion" is unconstitutional and contrary to existing laws. The Constitution provides
that "the right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizure 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
a rmation 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." 2 7 If a state of
martial law "does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians, where civil courts are able to
function, nor automatically suspend the privilege of the writ," 28(a) then it is with more
reason, that a mere declaration of a state of rebellion could not bring about the suspension
of the operation of the Constitution or of the writ of habeas corpus.
Neither can we nd the implementation of the warrantless arrests justi ed under the
Revised Rules on Criminal Procedure. Pertinent is Section 5, Rule 113, thus:
"SECTION 5. Arrest without warrant, when lawful. — A peace o cer or a
private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause
to believe based on personal knowledge of facts and circumstances that the
person to be arrested has committed it; and
xxx xxx xxx."
Petitioners cannot be considered "to have committed, is actually committing, or is

attempting to commit an offense" at the time they were hunted by Berroya for the
implementation of the warrantless arrests. None of them participated in the riot which
took place in the vicinity of the Malacañang Palace. Some of them were on their respective
houses performing innocent acts such as watching television, resting etc. The sure fact
however is that they were not in the presence of Berroya. Clearly, he did not see whether
they had committed, were committing or were attempting to commit the crime of
rebellion. But of course, I cannot lose sight of the legal implication of President
Macapagal-Arroyo's declaration of a "state of rebellion." Rebellion is a continuing offense
and a suspected insurgent or rebel may be arrested anytime as he is considered to be
committing the crime. Nevertheless, assuming ex gratia argumenti that the declaration of
a state of rebellion is constitutional, it is imperative that the said declaration be
reconsidered. In view of the changing times, the dissenting opinion of the noted jurist,
Justice Isagani Cruz, in Umil v. Ramos, 2 8 quoted below must be given a second look.
"I dissent insofar as the ponencia a rms the ruling in Garcia-Padilla vs.
Enrile that subversion is a continuing offense, to justify the arrest without warrant
of any person at any time as long as the authorities say he has been placed under
surveillance on suspicion of the offense. That is a dangerous doctrine. A person
may be arrested when he is doing the most innocent acts, as when he is only
washing his hands, or taking his supper, or even when he is sleeping, on the
ground that he is committing the 'continuing' offense of subversion. Libertarians
were appalled when that doctrine was imposed during the Marcos regime. I am
alarmed that even now this new Court is willing to sustain it. I strongly urge my
colleagues to discard it altogether as one of the disgraceful vestiges of the past
dictatorship and uphold the rule guaranteeing the right of the people against
unreasonable searches and seizures. We can do no less if we are really to reject
the past oppression and commit ourselves to the true freedom. Even if it be
argued that the military should be given every support in our ght against
subversion, I maintain that that ght must be waged honorably, in accordance
with the Bill of Rights. I do not believe that in ghting the enemy we must adopt
the ways of the enemy, which are precisely what we are ghting against. I submit
that our more important motivation should be what are we fighting for."
I need not belabor that at the time some of the suspected instigators were arrested,
(the others are still at-large), a long interval of time already passed and hence, it cannot be
legally said that they had just committed an offense. Neither can it be said that Berroya or
any of his men had "personal knowledge of facts or circumstances that the persons to be
arrested have committed a crime." That would be far from reality.
III — The acts of the rallyists at the vicinity of
Malacañang Palace on May 1, 2001 do not
constitute rebellion.
Article 134 of the Revised Penal Code reads:
"ARTICLE 134. Rebellion or insurrection — How committed. — The crime of
rebellion or insurrection is committed by rising publicly and taking arms against
the Government for the purpose of removing from the allegiance to said
Government or its laws, the territory of the Republic of the Philippines or any part
thereof, of any body of land, naval or other armed forces, or depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or
prerogatives." (As amended by RA No. 6968, O.G. 52, p. 9864, 1990)
From the foregoing provisions, the elements of the crime of rebellion may be
deduced, thus: rst , that there be (a) public uprising and (b) taking arms against the
government; second, that the purpose of the uprising or movement is either (a) to remove
from the allegiance to said government or its laws (1) the territory of the Philippines or any
part thereof; or (2) any body of land, naval or other armed forces; or (b) to deprive the
Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives. 2 9
Looking at the events on a magni ed scale, I am convinced that the two elements of
the crime of rebellion are lacking.
First, there was no "taking of arms" against the government. To my mind, " taking
arms" connotes the multitude's deliberate and conscious resort to arms or weapons for
the purpose of aiding them in accomplishing any of the purposes of rebellion. Admittedly,
the Estrada loyalists pelted the policemen with rocks and stones and attacked them with
sticks and clubs, but such was merely a result of the heightening tension between
opposite camps during the period of dispersal. The stones, rocks, sticks, clubs and other
improvised weapons were not deliberately resorted to by the Estrada loyalists to further
any of the purposes of rebellion. They availed of them, at the precise moment of dispersal
(this explains why their weapons were those which could be easily gathered on the street)
and only for the purpose of stopping the policemen from dispersing them. In this age of
modernity, one who intends to overthrow the government will not only settle for stones,
woods, rocks, sticks or clubs as means to disable the government. It will be extremely
pathetic and the result will only be in vain. Unlike a true rebellion which is organized, what
happened at the vicinity of Malacañang was merely a riot, a mob violence, or a tumultuous
uprising. At this juncture, it bears stressing that the crime of rebellion is a vast movement
of men and a complex net of intrigues and plots. 3 0 It must be distinguished from riot and
offenses connected with mob violence. In rebellion/insurrection, there is an organized and
armed uprising against authority. 3 1
Second, the purpose of the Estrada loyalists was neither (a) to remove from the
allegiance to the government or its laws (1) the territory of the Philippines or any part
thereof; or (2) any part of land, naval or other armed forces; nor (b) to deprive the Chief
Executive or Congress, wholly or partially, of any of their powers or prerogatives. I looked
at the chronology of events, and one thing surfaced — the Estrada loyalists mainly
demanded that their beloved "president" should not be incarcerated. The crowd at Edsa
swelled in great magnitude on April 25, 2001, the day Estrada was arrested. In fact, when
they followed Erap at Camp Crame, they were shouting "Edsa! Edsa! and they vowed not to
leave until Estrada is released." 3 2
One must not be swayed by the theory of respondents that the purpose of those
people who gathered in Edsa and marched to Malacañang was to commit rebellion. For
sure, there were a thousand and one reasons why they proceeded to Edsa. In determining
their purpose, one must trace the roots, — what prompted them to go to Edsa? They were
the Estrada loyalists who wanted him to be freed. If indeed there were minorities who
advocated another cause, the same should not be considered as the prevailing one in the
determination of what crime was committed. Facts should not be stretched just to build a
case of rebellion. This runs counter to the principle of due process.
As a nal word, I subscribe to the principle that the rule of law implies the precept
that similar cases be treated similarly. Men can not regulate their actions by means of rule
if this precept is not followed. Edsa I, Edsa II and Edsa III are all public uprisings.
Statements urging people to overthrow the government were uttered in all these
occasions. Injuries were sustained, policemen were attacked, standing structures were
vandalized . . . in all these scenarios, one cannot be said to be extremely away from the
other. The only difference is that the rst two succeeded, while the last failed. This should
not result to an unbridled or unlimited exercise of power by the duly constituted
authorities. It is during these trying times that fealty to the Constitution is strongly
demanded from all, especially the authorities concerned.
WHEREFORE, I vote to give DUE COURSE to the petitions and GRANT the same and
to enjoin the respondents from arresting the petitioners in G.R. Nos. 147780, 147781, and
147799 without the corresponding warrants.
SO ORDERED.
Footnotes
1. Dissenting Opinion, J. Jackson, in Brinegar vs. United States, 338 U.S. 2084 (1949).
2. G.R. No. 147780, for Prohibition Injunction Mandamus and Habeas Corpus.
3. G.R. No. 147810, for Certiorari and Prohibition.
4. G.R. No. 147785, for Habeas Corpus.
5. G.R. No. 147787 for Habeas Corpus.

6. G.R. No. 147781, for Mandamus.
7. G.R. No. 147818, for Injunction.

8. G.R. No. 147819, for Certiorari and Mandamus.
9. Integrated Bar of the Philippines vs. Zamora, et al. G.R. No. 141284, August 15, 2000.
10. CONSTITUTION, ARTICLE III, SECTION 1.

13. G.R. NO. 141284, supra.
14. See Yick Wo vs. Hopkins, 118 U.S. 356.

15. Id., at Article VII, SECTION 18.
16. People vs. Burgos, 144 SCRA 1, 14 (1986).
17. 187 SCRA 311 (1990).

18. Id., at 318.
19. 187 SCRA 311, 318, 321, 323-24 (1990).
20. Under Article 134 of the Revised Penal Code, these acts would involve rising publicly and
taking up arms against the Government: (1) to remove from the allegiance of the
Government or its laws, the entire, or a portion of Philippine territory, or any body of land,
naval or other armed forces, or (2) to deprive the Chief Executive or the Legislature,
wholly or partially, of any of their powers or prerogatives.
21. 16 Phil 516 (1910).

22. Id., at 519.
23. G.R. No. 147785.
24. 121 SCRA 472 (1983).
25. See Note 396 in BERNAS, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY, p. 180.
26. Umil vs. Ramos, 202 SCRA 251 (1991).
27. Id., at 274.
28. Id., at 279.

29. Id., at 284.
30. Id., at 293-295.
31. LAFAVE, I SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT (1987), pp.
548-549. Citations omitted.
32. Presidential Anti-Dollar Salting Task Force vs. CA, 171 SCRA 348 (1989).
33. Manila Bulletin issue of May 8, 2001 under the heading "Warrantless arrest continue" by Rey
G. Panaligan:
Justice Secretary Hernando Perez said yesterday the lifting of the state of rebellion in Metro
Manila does not ban the police from making warrantless arrest of suspected leaders of
the failed May 1 Malacañang siege.
In a press brie ng, Perez said, "we can make warrantless arrest because that is provided for in
the Rules of Court," citing Rule 113.
34. 134 SCRA 438 (1985).
SANDOVAL-GUTIERREZ, J., dissenting:
1. G.R. Nos. 146710-15; G.R. No. 146738, Estrada v. Desierto et al .; Manila Bulletin, March 3,
2001, Vol. 339, No. 3, p. 1, column 3.
2. Manila Bulletin, April 26, 2001, p. 13.

3. inq7.net, April 26, 2001, p. 1.
5. inq7.net, April 25, 2001, p. 1.

7. Philippine Daily Inquirer (PDI), April 26, 2001, p. A15.
8. PDI, April 26, 2001, p. A15.

10. Ibid.
11. Ibid.
12. Philippine Daily Inquirer, April 28, 2001, p. 1.

13. Ibid., April 29, 2001, p. 1.
14. inq7.net, April 30, 2001, p. 1.
15. philstar.com, May 1, 2001, p. 2.

16. inq7.net, May 2, 2001, p. 1.
17. Ibid., pp. 1-2.
18. Ibid., p. 3.
19. inq7.net, May 2, 2001, p. 1.
20. inq7.net, May 2, 2001, p. 1.
21. inq7.net, May 2, 2001, p. 1.
22. inq7.net, May 1, 2001.

23. inq7.net, May 1, 2001, p. 1.
24. Section 18, Article VII of the 1987 Constitution.
25. Smith/Cotter, Powers of the President During Crises, 1972, p. 13.

26. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines, 1996 Edition, p. 789.
27. Article III, Section 2, 1987 Constitution.
28(a) Article VII, Section 18 (par. 4), Id.
28. 187 SCRA 311 (1990).

29. Reyes, The Revised Penal Code, Book II, Thirteenth Edition, 1993, p. 73.
30. Ibid., p. 74.
31. 46 CJS, section 1, p. 1058.

32. Philippine Daily Inquirer, April 26, 2001, p. A15.

8/25/2018 DeFunis v. Odegaard :: 416 U.S. 312 (1974) :: Justia US Supreme Court Center
U.S. Supreme Court

DeFunis v. Odegaard, 416 U.S. 312 (1974)
DeFunis v. Odegaard
No. 73-235
Argued February 26, 1974
Decided April 23, 1974
416 U.S. 312
CERTIORARI TO THE SUPREME COURT OF WASHINGTON
Syllabus
After being denied admission to a state-operated law school, petitioner brought this suit on
behalf of himself alone for injunctive relief, claiming that the school's admissions policy
racially discriminated against him in violation of the Equal Protection Clause of the
Fourteenth Amendment. The trial court agreed and ordered the school to admit him in the
fall of 1971. The Washington Supreme Court reversed, holding that the school's admissions
policy was not unconstitutional. MR. JUSTICE DOUGLAS, as Circuit Justice, stayed that
judgment pending this Court's final disposition of the case, with the result that petitioner was
in his final school year when this Court considered his petition for certiorari. After oral
argument, the Court was informed that petitioner had registered for his final quarter.
Respondents have assured the Court that this registration is fully effective regardless of the
ultimate disposition of the case.
Held: Because petitioner will complete law school at the end of the term for which he has
registered regardless of any decision this Court might reach on the merits, the Court
cannot, consistently with the limitations of Art. III of the Constitution, consider the
substantive constitutional issues, and the case is moot.
(a) Mootness here does not depend upon a "voluntary cessation" of the school's
admissions practices, but upon the simple fact that petitioner is in his final term, and the
school's fixed policy to permit him to complete the term.
(b) The case presents no question that is "capable of repetition, yet evading review," since
petitioner will never again have to go through the school's admissions process, and since it
does not follow that the issue petitioner raises will in the future evade review merely
because this case did not reach the Court until the eve of petitioner's graduation.
82 Wash.2d 11, 507 P.2d 1169, vacated and remanded.
Page 416 U. S. 314
PER CURIAM.
In 1971, the petitioner Marco DeFunis, Jr., [Footnote 1] applied for admission as a first-year
student at the University of Washington Law School, a state-operated institution. The size of
the incoming first-year class was to be limited to 150 persons, and the Law School received
some 1,600 applications for these 150 places. DeFunis was eventually notified that he had
been denied admission. He thereupon commenced this suit in a Washington trial court,
contending that the procedures and criteria employed by the Law School Admissions
Committee invidiously discriminated against him on account of his race in violation of the
Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
DeFunis brought the suit on behalf of himself alone, and not as the representative of any
class, against the various respondents, who are officers, faculty members, and members of
the Board of Regents of the University of Washington. He asked the trial court to issue a
mandatory injunction commanding the respondents to admit him as a member of the first-
year class entering in September, 1971, on the ground that the Law School admissions
policy had resulted in the unconstitutional denial of his application for admission. The trial
court agreed with his claim and granted the requested relief.
Page 416 U. S. 315
DeFunis was, accordingly, admitted to the Law School and began his legal studies there in
the fall of 1971. On appeal, the Washington Supreme Court reversed the judgment of the
trial court and held that the Law School admissions policy did not violate the Constitution.
By this time, DeFunis was in his second year at the Law School.
He then petitioned this Court for a writ of certiorari, and MR. JUSTICE DOUGLAS, as
Circuit Justice, stayed the judgment of the Washington Supreme Court pending the "final
disposition of the case by this Court." By virtue of this stay, DeFunis has remained in law
school, and was in the first term of his third and final year when this Court first considered
his certiorari petition in the fall of 1973. Because of our concern that DeFunis' third-year
standing in the Law School might have rendered this case moot, we requested the parties
to brief the question of mootness before we acted on the petition. In response, both sides
contended that the case was not moot. The respondents indicated that, if the decision of
the Washington Supreme Court were permitted to stand, the petitioner could complete the
term for which he was then enrolled, but would have to apply to the faculty for permission to
continue in the school before he could register for another term. [Footnote 2]
We granted the petition for certiorari on November 19, 1973. 414 U.S. 1038. The case was
in due course orally argued on February 26, 1974.
In response to questions raised from the bench during the oral argument, counsel for the
petitioner has informed the Court that DeFunis has now registered "for his final
Page 416 U. S. 316
quarter in law school." Counsel for the respondents have made clear that the Law School
will not in any way seek to abrogate this registration. [Footnote 3] In light of DeFunis' recent
registration for the last quarter of his final law school year, and the Law School's assurance
that his registration is fully effective, the insistent question again arises whether this case is
not moot, and to that question we now turn.
The starting point for analysis is the familiar proposition that "federal courts are without
power to decide questions that cannot affect the rights of litigants in the case before
them."North Carolina v. Rice, 404 U. S. 244 246 (1971). The inability of the federal judiciary
"to review moot cases derives from the requirement of Art. III of the Constitution under
which the exercise of judicial power depends upon the existence of a case or controversy."
Liner v. Jafco, Inc., 375 U. S. 301, 375 U. S. 306 n. 3 (1964); see also Powell v.

McCormack, 395 U. S. 486, 395 U. S. 496 n. 7 (1969); Sibron v. New York, 392 U. S.
40, 392 U. S. 50 n. 8 (1368). Although, as a matter of Washington state law, it appears that
this case would be saved from mootness by "the great public interest in the continuing
issues raised by this appeal," 82 Wash.2d 11, 23 n. 6, 507 P.2d 1169, 1177 n. 6 (1973), the
fact remains that, under Art. III,
"[e]ven in cases arising in the state courts, the question of mootness is a federal one which
a federal court must resolve before it assumes jurisdiction."
North Carolina v. Rice, supra, at 404 U. S. 246.
The respondents have represented that, without regard to the ultimate resolution of the
issues in this case,
Page 416 U. S. 317
DeFunis will remain a student in the Law School for the duration of any term in which he
has already enrolled. Since he has now registered for his final term, it is evident that he will
be given an opportunity to complete all academic and other requirements for graduation,
and, if he does so, will receive his diploma regardless of any decision this Court might
reach on the merits of this case. In short, all parties agree that DeFunis is now entitled to
complete his legal studies at the University of Washington and to receive his degree from
that institution. A determination by this Court of the legal issues tendered by the parties is
no longer necessary to compel that result, and could not serve to prevent it. DeFunis did
not cast his suit as a class action, and the only remedy he requested was an injunction
commanding his admission to the Law School. He was not only accorded that remedy, but
he now has also been irrevocably admitted to the final term of the final year of the Law
School course. The controversy between the parties has thus clearly ceased to be "definite
and concrete," and no longer "touch[es] the legal relations of parties having adverse legal
interests." Aetna Life Ins. Co. v. Haworth, 300 U. S. 227,300 U. S. 240-241 (1937).
It matters not that these circumstances partially stem from a policy decision on the part of
the respondent Law School authorities. The respondents, through their counsel, the
Attorney General of the State, have professionally represented that in no event will the
status of DeFunis now be affected by any view this Court might express on the merits of
this controversy. And it has been the settled practice of the Court, in contexts no less
significant, fully to accept representations such as these as parameters for decision. See
Gerende v. Election Board, 341 U. S. 56 (1951); Whitehill v. Elkins, 389 U. S. 54, 389 U. S.
57-58 (1967); Ehlert v. United States, 402 U. S. 99,
Page 416 U. S. 318
402 U. S. 107 (1971); cf. Law Students Research Council v. Wadmond, 401 U. S. 154, 401

U. S. 162-163 (1971).
There is a line of decisions in this Court standing for the proposition that the
"voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to
hear and determine the case, i.e., does not make the case moot."
United States v. W. T. Grant Co., 345 U. S. 629, 345 U. S. 632(1953); United States v.

Trans-Missouri Freight Assn., 166 U. S. 290, 166 U. S. 308-310 (1897); Walling v.
Helmerich & Payne, Inc., 323 U. S. 37, 323 U. S. 43 (1944); Gray v. Sanders, 372 U. S.
368, 372 U. S. 376 (1963); United States v. Phosphate Export Assn., 393 U. S. 199, 393 U.
S. 202-203 (1968). These decisions and the doctrine they reflect would be quite relevant if
the question of mootness here had arisen by reason of a unilateral change in the
admissions procedures of the Law School. For it was the admissions procedures that were
the target of this litigation, and a voluntary cessation of the admissions practices
complained of could make this case moot only if it could be said with assurance "that there
is no reasonable expectation that the wrong will be repeated.'" United States v. W. T. Grant
Co., supra, at 345 U. S. 633. Otherwise, "[t]he defendant is free to return to his old
ways," id. at 345 U. S. 632, and this fact would be enough to prevent mootness because of
the "public interest in having the legality of the practices settled."Ibid. But mootness in the
present case depends not at all upon a "voluntary cessation" of the admissions practices
that were the subject of this litigation. It depends, instead, upon the simple fact that DeFunis
is now in the final quarter of the final year of his course of study, and the settled and
unchallenged policy of the Law School to permit him to complete the term for which he is
now enrolled.
It might also be suggested that this case presents a question that is "capable of repetition,
yet evading
Page 416 U. S. 319
review." Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 219 U. S. 515 (1911); Roe v.

Wade, 410 U. S. 113, 410 U. S. 125(1973), and is thus amenable to federal adjudication
even though it might otherwise be considered moot. But DeFunis will never again be
required to run the gauntlet of the Law School's admission process, and so the question is
certainly not "capable of repetition" so far as he is concerned. Moreover, just because this
particular case did not reach the Court until the eve of the petitioner's graduation from law
school, it hardly follows that the issue he raises will in the future evade review. If the
admissions procedures of the Law School remain unchanged, [Footnote 4] there is no
reason to suppose that a subsequent case attacking those procedures will not come with
relative speed to this Court now that the Supreme Court of Washington has spoken. This
case, therefore, in no way presents the exceptional situation in which the Southern Pacific
Terminal doctrine might permit a departure from
"[t]he usual rule in federal cases . . . that an actual controversy must exist at stages of
appellate or certiorari review, and not simply at the date the action is initiated."
Roe v. Wade, supra, at 410 U. S. 125; United States v. Munsingwear, Inc., 340 U. S.

36 (1950).
Because the petitioner will complete his law school studies at the end of the term for which
he has now registered regardless of any decision this Court might reach on the merits of
this litigation, we conclude that the Court cannot, consistently with the limitations of
Page 416 U. S. 320
Art. III of the Constitution, consider the substantive constitutional issues tendered by the
parties. [Footnote 5] Accordingly, the judgment of the Supreme Court of Washington is
vacated, and the cause is remanded for such proceedings as by that court may be deemed
appropriate.
It is so ordered.
[Footnote 1]
Also included as petitioners are DeFunis' parents and his wife. Hereafter, the singular form
"petitioner" is used.
[Footnote 2]
By contrast, in their response to the petition for certiorari, the respondents had stated that
DeFunis
"will complete his third year [of law school] and be awarded his J.D. degree at the end of
the 1973-74 academic year regardless of the outcome of this appeal."
[Footnote 3]
In their memorandum on the question of mootness, counsel for the respondents

unequivocally stated:
"If Mr. DeFunis registers for the spring quarter under the existing order of this court during
the registration period from February 20, 1974, to March l, 1974 that registration would not
be canceled unilaterally by the university regardless of the outcome of this litigation."
[Footnote 4]
In response to an inquiry from the Court, counsel for the respondents has advised that
some changes have been made in the admissions procedures "for the applicants seeking
admission to the University of Washington law school for the academic year commencing
September, 1974." The respondents' counsel states, however, that
"[these] changes do not affect the policy challenged by the petitioners . . . in that . . . special
consideration still is given to applicants from 'certain ethnic groups.'"
[Footnote 5]
It is suggested in dissent that "[a]ny number of unexpected events -- illness, economic

necessity, even academic failure -- might prevent his graduation at the end of the
term." Post at416 U. S. 348. "But such speculative contingencies afford no basis for our
passing on the substantive issues [the petitioner] would have us decide," Hall v. Beals, 396
U. S. 45,396 U. S. 49 (1969), in the absence of "evidence that this is a prospect
of immediacy and reality.'" Golden v. Zwickler, 394 U. S. 103, 394 U. S.

109 (1969); Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 312 U. S.
273 (1941).
MR. JUSTICE DOUGLAS, dissenting.
I agree with MR. JUSTICE BRENNAN that this case is not moot, and, because of the
significance of the issues raised I think it is important to reach the merits.
I
The University of Washington Law School received 1,601 applications for admission to its
first-year class beginning in September, 1971. There were spaces available for only about
150 students, but in order to enroll this number, the school eventually offered admission to
275 applicants. All applicants were put into two groups, one of which was considered under
the minority admissions program. Thirty-seven of those offered admission had indicated on
an optional question on their application that their "dominant" ethnic origin was either black,
Chicano, American Indian, or Filipino, the four groups included in the minority admissions
program. Answers to this optional question were apparently the sole basis
Page 416 U. S. 321
upon which eligibility for the program was determined. Eighteen of these 37 actually
enrolled in the Law School.
In general, the admissions process proceeded as follows: an index called the Predicted
First Year Average (Average) was calculated for each applicant on the basis of a formula
combining the applicant's score on the Law School Admission Test (LSAT) and his grades
in his last two years in college. [Footnote 2/1] On the basis of its experience with previous
years' applications, the Admission Committee, consisting of faculty, administration, and
students, concluded that the most outstanding applicants were those with averages above
77; the highest average of any applicant was 81. Applicants with averages above 77 were
considered as their applications arrived by random distribution of their files to the members
of the Committee who would read them and report their recommendations back to the
Committee. As a result of the first three Committee meetings in February, March, and April,
1971, 78 applicants from this group were admitted, although virtually no other applicants
were offered admission this early. [Footnote 2/2] By the final conclusion of
Page 416 U. S. 322
the admissions process in August, 1971, 147 applicants with averages above 77 had been
admitted, including all applicants with averages above 78, and 93 of 105 applicants with
averages between 77 and 78.
Also beginning early in the admissions process was the culling out of applicants with
averages below 74.5. These were reviewed by the Chairman of the Admissions Committee,
who had the authority to reject them summarily without further consideration by the rest of
the Committee. A small number of these applications were saved by the Chairman for
Committee consideration on the basis of information in the file indicating greater promise
than suggested by the Average. Finally during the early months, the Committee
accumulated the applications of those with averages between 74.5 and 77 to be considered
at a later time when most of the applications had been received, and thus could be
compared with one another. Since DeFunis' average was 76.23, he was in this middle
group.
Beginning in their May meeting, the Committee considered this middle group of applicants,
whose folders had been randomly distributed to Committee members for their
recommendations to the Committee. Also considered at this time were remaining applicants
with averages below 74.5 who had not been summarily rejected, and some of those with
averages above 77 who had not been summarily admitted, but instead held for further
consideration. Each Committee member would consider the applications competitively,
following rough guidelines
Page 416 U. S. 323
as to the proportion who could be offered admission. After the Committee had extended
offers of admission to somewhat over 200 applicants, a waiting list was constructed in the
same fashion, and was divided into four groups ranked by the Committee's assessment of
their applications. DeFunis was on this waiting list, but was ranked in the lowest quarter. He
was ultimately told in August, 1971, that there would be no room for him.
Applicants who had indicated on their application forms that they were either black,
Chicano, American Indian, or Filipino were treated differently in several respects. Whatever
their Averages, none were given to the Committee Chairman for consideration of summary
rejection, nor were they distributed randomly among Committee members for consideration
along with the other applications. Instead, all applications of black students were assigned
separately to two particular Committee members: a first-year black law student on the
Committee and a professor on the Committee who had worked the previous summer in a
special program for disadvantaged college students considering application to the Law
School. [Footnote 2/3] Applications from among the other three minority groups were
assigned to an assistant dean who was on the Committee. The minority applications, while
considered competitively with one another, were never directly compared to the remaining
applications, either by the subcommittee or by the full Committee. As in the admissions
process generally, the Committee sought to find "within the minority category, those persons
who we thought had the highest probability of
Page 416 U. S. 324
succeeding in Law School." [Footnote 2/4] In reviewing the minority applications, the
Committee attached less weight to the Average "in making a total judgmental evaluation as
to the relative ability of the particular applicant to succeed in law school." 82 Wash.2d 11,
21, 507 P.2d 1169, 1175. In its publicly distributed Guide to Applicants, the Committee
explained that
"[a]n applicant's racial or ethnic background was considered as one factor in our general
attempt to convert formal credentials into realistic predictions. [Footnote 2/5]"
Thirty-seven minority applicants were admitted under this procedure. Of these, 36 had
Averages below DeFunis' 76.23, and 30 had Averages below 74.5, and thus would
ordinarily have been summarily rejected by the Chairman. There were also 48 nonminority
applicants admitted who had Averages below DeFunis. Twenty-three of these were
returning veterans, see n. 2, supra, and 25 were others who presumably were admitted

because of other
Page 416 U. S. 325
factors in their applications that made them attractive candidates despite their relatively low
Averages.
It is reasonable to conclude from the above facts that, while other factors were considered
by the Committee, and were on occasion crucial, the Average was, for most applicants, a
heavily weighted factor, and was, at the extremes, virtually dispositive. [Footnote 2/6] A
different balance was apparently struck, however, with regard to the minority applicants.
Indeed, at oral argument, the respondents' counsel advised us that, were the minority
applicants considered under the same procedure as was generally used, none of those who
eventually enrolled at the Law School would have been admitted.
The educational policy choices confronting a university admissions committee are not
ordinarily a subject for Judicial oversight; clearly it is not for us, but for the law school, to
decide which tests to employ, how heavily to weigh recommendations from professors or
undergraduate grades, and what level of achievement on the chosen criteria are sufficient
to demonstrate that the candidate is qualified for admission. What places this case in a
special category is the fact that the school did not choose one set of criteria but two, and
then determined which to apply to a given applicant on the basis of his race. The
Page 416 U. S. 326
Committee adopted this policy in order to achieve "a reasonable representation" of minority
groups in the Law School. 82 Wash.2d at 20, 507 P.2d at 1175. Although it may be
speculated that the Committee sought to rectify what it perceived to be cultural or racial
biases in the LSAT or in the candidates' undergraduate records, the record in this case is
devoid of any evidence of such bias, and the school has not sought to justify its procedures
on this basis.
Although testifying that "[w]e do not have a quota . . . " the Law School dean explained that
"[w]e want a reasonable representation. We will go down to reach it if we can," without
"taking people who are unqualified in an absolute sense. . . ." Statement of Facts 420. By
"unqualified in an absolute sense," the dean meant candidates who "have no reasonable
probable likelihood of having a chance of succeeding in the study of law. . . ." Ibid. But the
dean conceded that, in "reaching," the school does take "some minority students who at
least, viewed as a group, have a less such likelihood than the majority student group taken
as a whole." Id. at 423.
"Q. Of those who have made application to go to the law school, I am saying you are not
taking the best qualified?"
"A. In total?"
"Q. In total."
"A. In using that definition, yes."
Id. at 423-424.
It thus appears that, by the Committee's own assessment, it admitted minority students
who, by the tests given, seemed less qualified than some white students who were not
accepted, in order to achieve a "reasonable representation." In this regard, it may be
pointed out that, for the year 1969-1970 -- two years before the class to which DeFunis was
seeking admission -- the Law School
Page 416 U. S. 327
reported an enrollment of eight black students out of a total of 356. [Footnote 2/7]
Defendants' Ex. 7. That percentage, approximately 2.2%, compares to a percentage of
blacks in the population of Washington of approximately 2.1%. [Footnote 2/8]
II
There was a time when law schools could follow the advice of Wigmore, who believed that
"the way to find out whether a boy has the makings of a competent lawyer is to see what he
can do in a first year of law studies." Wigmore, Juristic Psychopoyemetrology -- Or, How to
Find Out Whether a Boy Has the Makings of a Lawyer, 24 Ill.L.Rev. 454, 46364 (1929). In
those days, there were enough spaces to admit every applicant who met minimal
credentials, and they all could be given the opportunity to prove themselves at law school.
But by the 1920's, many law schools found that they could not admit all minimally qualified
applicants, and some selection process began. [Footnote 2/9] The pressure to use some
kind of admissions test mounted, and a number of schools instituted them. One early
precursor to the modern day LSAT was the Ferson-Stoddard Law Aptitude examination.
Wigmore conducted his own study of that test with 50 student volunteers, and concluded
that it "had no substantial practical value." Id. at 463. But his conclusions were not
accepted, and the harried law
Page 416 U. S. 328
schools still sought some kind of admissions test which would simplify the process of
judging applicants, and, in 1948, the LSAT was born. It has been with us ever since.
[Footnote 2/10]
The test purports to predict how successful the applicant will be in his first year of law
school, and consists of a few hours' worth of multiple choice questions. But the answers the
student can give to a multiple choice question are limited by the creativity and intelligence
of the test-maker; the student with a better or more original understanding of the problem
than the test-maker may realize that none of the alternative answers are any good, but
there is no way for him to demonstrate his understanding.
"It is obvious from the nature of the tests that they do not give the candidate a significant
opportunity to express himself. If he is subtle in his choice of answers it will go against him;
and yet there is no other way for him to show any individuality. If he is strong-minded,
nonconformist, unusual, original, or creative -- as so many of the truly important people are
-- he must stifle his impulses and conform as best he can to the norms that the multiple
choice testers set up in their unimaginative, scientific way. The more profoundly gifted the
candidate is, the more his resentment will rise against the mental strait jacket into which the
testers would force his mind."
B. Hoffmann, The Tyranny of Testing 91-92 (1962).
Those who make the tests and the law schools which use them point, of course, to the high
correlations between the test scores and the grades at law school the first
year. E.g.,Winterbottom, Comments on "A Study of the Criteria for Legal Education and
Admission to the
Page 416 U. S. 329
Bar," An Article by Dr. Thomas M. Goolsby, Jr., 21 J.Legal Ed. 75 (1968). Certainly the tests
do seem to do better than chance. But they do not have the value that their deceptively
precise scoring system suggests. The proponents' own data show that, for example, most
of those scoring in the bottom 20% on the test do better than that, in law school -- indeed,
six of every 100 of them will be in the top 20 of their law school class. Id. at 79. And no one
knows how many of those who were not admitted because of their test scores would, in
fact, have done well were they given the chance. There are many relevant factors, such as
motivation, cultural backgrounds of specific minorities that the test cannot measure, and
they inevitably must impair its value as a predictor. [Footnote 2/11] Of course, the law
school that admits only those with the highest test scores finds that, on the average they do
much better, and thus the test is a convenient tool for the admissions committee. The price
is paid by the able student who, for unknown reasons, did not achieve that high score --
perhaps even the minority with a different cultural background. Some tests, at least in the
past, have been aimed at eliminating Jews.
The school can safely conclude that the applicant with a score of 750 should be admitted
before one with a score of 500. The problem is that, in many cases, the choice will be
between 643 and 602 or 574 and 528. The numbers create an illusion of difference
standing to overwhelm other factors.
"The wiser testers are well aware of the defects of the multiple choice format and the
danger of placing reliance on any one method of assessment to the exclusion of all others.
What is distressing is how little their caveats have impressed the people who succumb to
the propaganda of the testmakers
Page 416 U. S. 330
and use these tests mechanically as though they were a valid substitute for judgment."
Hoffmann, supra, at 215.
Of course, the tests are not the only thing considered; here, they were combined with the
pre-law grades to produce a new number called the Average. The grades have their own
problems; one school's A is another school's C. And even to the extent that this formula
predicts law school grades, its value is limited. The law student with lower grades may, in
the long pull of a legal career, surpass those at the top of the class.
"[L]aw school admissions criteria have operated within a hermetically sealed system; it is
now beginning to leak. The traditional combination of LSAT and GPA [undergraduate grade
point average] may have provided acceptable predictors of likely performance in law school
in the past. . . . [But] [t]here is no clear evidence that the LSAT and GPA provide particularly
good evaluators of the intrinsic or enriched ability of an individual to perform as a law
student or lawyer in a functioning society undergoing change. Nor is there any clear
evidence that grades and other evaluators of law school performance, and the bar
examination, are particularly good predictors of competence or success as a lawyer."
Rosen, Equalizing Access to Legal Education: Special Programs for Law Students Who Are
Not Admissible by Traditional Criteria, 1970 U.Tol.L.Rev. 321, 332-333.
But, by whatever techniques, the law school must make choices. Neither party has
challenged the validity of the Average employed here as an admissions tool, and therefore
consideration of its possible deficiencies is not presented as an issue. The Law School
presented no evidence to show that adjustments in the process employed were used in
order validly to compare applicants of different races; instead, it chose to avoid making such
comparisons. Finally,
Page 416 U. S. 331
although the Committee did consider other information in the files of all applicants, the Law
School has made no effort to show that it was because of these additional factors that it
admitted minority applicants who would otherwise have been rejected. To the contrary, the
school appears to have conceded that, by its own assessment -- taking all factors into
account -- it admitted minority applicants who would have been rejected had they been
white. We have no choice but to evaluate the Law School's case as it has been made.
III
The Equal Protection Clause did not enact a requirement that law schools employ as the
sole criterion for admissions a formula based upon the LSAT and undergraduate grades,
nor does it prohibit law schools from evaluating an applicant's prior achievements in light of
the barriers that he had to overcome. A black applicant who pulled himself out of the ghetto
into a junior college may thereby demonstrate a level of motivation, perseverance, and
ability that would lead a fair-minded admissions committee to conclude that he shows more
promise for law study than the son of a rich alumnus who achieved better grades at
Harvard. That applicant would be offered admission not because he is black, but because,
as an individual, he has shown he has the potential, while the Harvard man may have taken
less advantage of the vastly superior opportunities offered him. Because of the weight of
the prior handicaps, that black applicant may not realize his full potential in the first year of
law school, or even in the full three years, but in the long pull of a legal career, his
achievements may far outstrip those of his classmates whose earlier records appeared
superior by conventional criteria. There is currently no test available to the Admissions
Page 416 U. S. 332
Committee that can predict such possibilities with assurance, but the Committee may
nevertheless seek to gauge it as best it can, and weigh this factor in its decisions. Such a
policy would not be limited to blacks, or Chicanos or Filipinos, or American Indians,
although undoubtedly groups such as these may in practice be the principal beneficiaries of
it. But a poor Appalachian white, or a second generation Chinese in San Francisco, or
some other American whose lineage is so diverse as to defy ethnic labels, may
demonstrate similar potential, and thus be accorded favorable consideration by the
Committee.
The difference between such a policy and the one presented by this case is that the
Committee would be making decisions on the basis of individual attributes, rather than
according a preference solely en the basis of race. To be sure, the racial preference here
was not absolute -- the Committee did not admit all applicants from the four favored groups.
But it did accord all such applicants a preference by applying, to an extent not precisely
ascertainable from the record, different standards by which to judge their applications, with
the result that the Committee admitted minority applicants who, in the school's own
judgment, were less promising than other applicants who were rejected. Furthermore, it is
apparent that, because the Admissions Committee compared minority applicants only with
one another, it was necessary to reserve some proportion of the class for them, even if, at
the outset, a precise number of places were not set aside. [Footnote 2/12] That proportion,
apparently 15% to
Page 416 U. S. 333
20%, was chosen because the school determined it to be "reasonable," [Footnote 2/13]
although no explanation is provided as to how that number, rather than some other, was
found appropriate. Without becoming embroiled in a semantic debate over whether this
practice constitutes a "quota," it is clear that, given the limitation on the total number of
applicants who could be accepted, this policy did reduce the total number of places for
which DeFunis could compete -- solely on account of his race. Thus, as the Washington
Supreme Court concluded, whatever label one wishes to apply to it, "the minority
admissions policy is certainly not benign with respect to nonminority students who are
displaced by it." 82 Wash.2d at 32, 507 P.2d at 1182. A finding that the state school
employed a racial classification in selecting its students subjects it to the strictest scrutiny
under the Equal Protection Clause.
The consideration of race as a measure of an applicant's qualification normally introduces a

capricious and irrelevant factor working an invidious discrimination, Anderson v. Martin,375
U. S. 399, 375 U. S. 402; Loving v. Virginia, 388 U. S. 1, 388 U. S. 10; Harper v. Virginia
Board of Elections, 383 U. S. 663, 383 U. S. 668. Once race is a starting point, educators
and courts are immediately embroiled in competing claims of different racial and ethnic
groups that should make difficult, manageable standards consistent
Page 416 U. S. 334
with the Equal Protection Clause.
"The clear and central purpose of the Fourteenth Amendment was to eliminate all official
state sources of invidious racial discrimination in the States."
Loving, supra, at 388 U. S. 10. The Law School's admissions policy cannot be reconciled
with that purpose, unless cultural standards of a diverse, rather than a homogeneous
society, are taken into account. The reason is that professional persons, particularly
lawyers, are not selected for life in a computerized society. The Indian who walks to the
beat of Chief Seattle of the Muckleshoot Tribe in Washington [Footnote 2/14] has a different
culture from examiners at law schools.
The key to the problem is the consideration of each application in a racially neutral
way. Since the LSAT reflects questions touching on cultural backgrounds, the Admissions
Committee acted properly, in my view, in setting minority applications apart for separate
processing. These minorities have cultural backgrounds that are vastly different from the
dominant Caucasian. Many Eskimos, American Indians, Filipinos, Chicanos, Asian Indians,
Burmese, and Africans come from such disparate backgrounds that a test sensitively tuned
for most applicants would be wide of the mark for many minorities.
The melting pot is not designed to homogenize people, making them uniform in
consistency. The melting pot, as I understand it, is a figure of speech that depicts the wide
diversities tolerated by the First Amendment under one flag.See 2 S. Morison & H.
Commager, The Growth of the American Republic, c. VIII (4th ed.1950). Minorities in our
midst who are to serve actively in our public affairs should be chosen on talent and
character alone, not on cultural orientation or leanings.
Page 416 U. S. 335
I do know, coming as I do from Indian country in Washington, that many of the young
Indians know little about Adam Smith or Karl Marx, but are deeply imbued with the spirit
and philosophy of Chief Robert B. Jim of the Yakimas, Chief Seattle of the Muckleshoots,
and Chief Joseph of the Nez Perce which offer competitive attitudes towards life, fellow
man, and nature. [Footnote 2/15]
I do not know the extent to which blacks in this country are imbued with ideas of African
Socialism. [Footnote 2/16] Leopold Senghor and Sekou Toure, the most articulate of African
leaders, have held that modern African political philosophy is not oriented either to Marxism
or to capitalism. [Footnote 2/17] How far the reintroduction into educational curricula of
ancient African art and history has reached the minds of young Afro-Americans I do not
know. But at least as respects Indians, blacks, and Chicanos -- as well as those from Asian
cultures -- I think a separate classification of these applicants is warranted, lest race be a
subtle force in eliminating minority members because of cultural differences.
Insofar as LSAT's reflect the dimensions and orientation of the Organization Man, they do a
disservice to minorities. I personally know that admissions tests were once used to
eliminate Jews. How many other minorities they aim at, I do not know. My reaction is that
the presence of an LSAT is sufficient warrant for a school to put racial minorities into a
separate class in order better to probe their capacities and potentials.
The merits of the present controversy cannot, in my view, be resolved on this record. A trial
would
Page 416 U. S. 336
involve the disclosure of hidden prejudices, if any, against certain minorities and the manner
in which substitute measurements of one's talents and character were employed in the
conventional tests. I could agree with the majority of the Washington Supreme Court only if,
on the record, it could be said that the Law School's selection was racially neutral. The
case, in my view, should be remanded for a new trial to consider, inter alia, whether the
established LSAT's should be eliminated so far as racial minorities are concerned.
This does not mean that a separate LSAT must be designed for minority racial groups,
although that might be a possibility. The reason for the separate treatment of minorities as a
class is to make more certain that racial factors do not militate against an applicant or on
his behalf.[Footnote 2/18]
There is no constitutional right for any race to be preferred. The years of slavery did more
than retard the progress of blacks. Even a greater wrong was done the whites by creating
arrogance instead of humility, and by encouraging the growth of the fiction of a superior
race.
Page 416 U. S. 337
There is no superior person by constitutional standards. A DeFunis who is white is entitled

to no advantage by reason of that fact; nor is he subject to any disability, no matter what his
race or color. Whatever his race, he had a constitutional right to have his application
considered on its individual merits in a racially neutral manner.
The slate is not entirely clean. First, we have held that pro ratarepresentation of the races is
not required either on juries, see Cassell v. Texas, 339 U. S. 282, 339 U. S. 286-287, or in
public schools, Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 402 U. S.
24. Moreover, in Hughes v. Superior Court, 339 U. S. 460, we reviewed the contempt
convictions of pickets who sought by their demonstration to force an employer to prefer
Negroes to whites in his hiring of clerks, in order to ensure that 50% of the employees were
Negro. In finding that California could constitutionally enjoin the picketing there involved, we
quoted from the opinion of the California Supreme Court, which noted that the pickets
would
"'make the right to work for Lucky dependent not on fitness for the work nor on an equal
right of all, regardless of race, to compete in an open market, but rather on membership in a
particular race. If petitioners were upheld in their demand, then other races, white, yellow,
brown, and red, would have equal rights to demand discriminatory hiring on a racial basis.'"
Id. at 339 U. S. 463-464. We then noted that
"[t]o deny to California the right to ban picketing in the circumstances of this case would
mean that there could be no prohibition of the pressure of picketing to secure proportional
employment on ancestral grounds of Hungarians in Cleveland, of Poles in Buffalo, of
Germans in Milwaukee, of Portuguese in New Bedford, of Mexicans in San Antonio, of the
Page 416 U. S. 338
numerous minority groups in New York, and so on through the whole gamut of racial and
religious concentrations in various cities."
Id.at 339 U. S. 464.
The reservation of a proportion of the law school class for members of selected minority
groups is fraught with similar dangers, for one must immediately determine which groups
are to receive such favored treatment and which are to be excluded, the proportions of the
class that are to be allocated to each, and even the criteria by which to determine whether
an individual is a member of a favored group. There is no assurance that a common
agreement can be reached, and first the schools and then the courts will be buffeted with
the competing claims. The University of Washington included Filipinos, but excluded
Chinese and Japanese; another school may limit its program to blacks, or to blacks and
Chicanos. Once the Court sanctioned racial preferences such as these, it could not then
wash its hands of the matter, leaving it entirely in the discretion of the school, for then we
would have effectively overruled Sweatt v. Painter, 339 U. S. 629, and allowed imposition of
a "zero" allocation. [Footnote 2/19] But what standard is the Court to apply when a rejected
applicant of Japanese ancestry brings suit to require the University of Washington to extend
the same privileges to his group? The Committee might conclude that the population of
Washington is now 2% Japanese, and that Japanese also constitute 2% of the
Page 416 U. S. 339
Bar, but that, had they not been handicapped by a history of discrimination, Japanese
would now constitute 5% of the Bar, or 20%. Or, alternatively, the Court could attempt to
assess how grievously each group has suffered from discrimination, and allocate
proportions accordingly; if that were the standard, the current University of Washington
policy would almost surely fall, for there is no Western State which can claim that it has
always treated Japanese and Chinese in a fair and evenhanded manner. See, e.g., Yick Wo
v. Hopkins, 118 U. S. 356; Terrace v. Thompson, 263 U. S. 197; Oyama v. California,332 U.
S. 633. This Court has not sustained a racial classification since the wartime cases
of Korematsu v. United States, 323 U. S. 214, and Hirabayashi v. United States, 320 U. S.
81, involving curfews and relocations imposed upon Japanese-Americans. [Footnote 2/20]
Page 416 U. S. 340
Nor, obviously, will the problem be solved if, next year, the Law School included only
Japanese and Chinese, for then Norwegians and Swedes, Poles and Italians, Puerto
Ricans and Hungarians, and all other groups which form this diverse Nation would have just
complaints.
The key to the problem is consideration of such applications in a racially neutral

way. Abolition of the LSAT would be a start. The invention of substitute tests might be made
to get a measure of an applicant's cultural background, perception, ability to analyze, and
his or her relation to groups. They are highly subjective, but, unlike the LSAT, they are not
concealed, but in the open. A law school is not bound by any legal principle to admit
students by mechanical criteria which are insensitive to the potential of such an applicant
which may be realized in a more hospitable environment. It will be necessary under such an
approach to put more effort into assessing each individual than is required when LSAT
scores and undergraduate grades dominate the selection process. Interviews with the
applicant and others who know him is a time-honored test. Some schools currently run
summer programs in which potential students who likely would be bypassed under
conventional admissions criteria are given the opportunity to try their hand at law courses,
[Footnote 2/21] and certainly their performance in such programs could be weighed heavily.
There is, moreover, no bar to considering an individual's prior achievements in
Page 416 U. S. 341
light of the racial discrimination that barred his way, as a factor in attempting to assess his
true potential for a successful legal career. Nor is there any bar to considering on an
individual basis, rather than according to racial classifications, the likelihood that a particular
candidate will more likely employ his legal skills to service communities that are not now
adequately represented than will competing candidates. Not every student benefited by
such an expanded admissions program would fall into one of the four racial groups involved
here, but it is no drawback that other deserving applicants will also get an opportunity they
would otherwise have been denied. Certainly such a program would substantially fulfill the
Law School's interest in giving a more diverse group access to the legal profession. Such a
program might be less convenient administratively than simply sorting students by race, but
we have never held administrative convenience to justify racial discrimination.
The argument is that a "compelling" state interest can easily justify the racial discrimination
that is practiced here. To many, "compelling" would give members of one race even more
than pro rata representation. The public payrolls might then be deluged, say, with Chicanos,
because they are, as a group, the poorest of the poor and need work more than others,
leaving desperately poor individual blacks and whites without employment. By the same
token, large quotas of blacks or browns could be added to the Bar, waiving examinations
required of other groups, so that it would be better racially balanced. [Footnote 2/22]
Page 416 U. S. 342
The State, however, may not proceed by racial classification to force strict population
equivalencies for every group in every occupation, overriding individual preferences. The
Equal Protection Clause commands the elimination of racial barriers, not their creation in
order to satisfy our theory as to how society ought to be organized. The purpose of the
University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for
Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers
for Americans, and not to place First Amendment barriers against anyone. [Footnote 2/23]
That is the point at the heart of all our
Page 416 U. S. 343
school desegregation cases, from Brown v. Board of Education,347 U. S. 483,

through Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1. A segregated
admissions process creates suggestions of stigma and caste no less than a segregated
classroom, and, in the end, it may produce that result despite its contrary intentions. One
other assumption must be clearly disapproved: that blacks or browns cannot make it on
their individual merit. That is a stamp of inferiority that a State is not permitted to place on
any lawyer.
If discrimination based on race is constitutionally permissible when those who hold the reins
can come up with "compelling" reasons to justify it, then constitutional guarantees acquire
an accordion-like quality. Speech is closely brigaded with action when it triggers a
fight, Chaplinsky v. New Hampshire, 315 U. S. 568, as shouting "fire" in a crowded theater
triggers a riot. It may well be that racial strains, racial susceptibility to certain diseases,
racial sensitiveness to environmental conditions that other races do not experience, may, in
an extreme situation, justify differences in racial treatment that no fair-minded person would
call "invidious" discrimination. Mental ability is not in that category. All races can compete
fairly at all professional levels. So
Page 416 U. S. 344
far as race is concerned, any state-sponsored preference to one race over another in that
competition is, in my view, "invidious" and violative of the Equal Protection Clause.
The problem tendered by this case is important and crucial to the operation of our
constitutional system, and educators must be given leeway. It may well be that a whole
congeries of applicants in the marginal group defy known methods of selection.
Conceivably, an admissions committee might conclude that a selection by lot of, say, the
last 20 seats is the only fair solution. Courts are not educators; their expertise is limited; and
our task ends with the inquiry whether, judged by the main purpose of the Equal Protection
Clause -- the protection against racial discrimination [Footnote 2/24] -- there has been an
"invidious" discrimination.
We would have a different case if the suit were one to displace the applicant who was
chosen in lieu of DeFunis. What the record would show concerning his potentials would
have to be considered and weighed. The educational decision, provided proper guidelines
were used, would reflect an expertise that courts should honor. The problem is not tendered
here, because the physical facilities were apparently adequate to take DeFunis in addition
to the others. My view is only that I cannot say by the tests used and applied he was
invidiously discriminated against because of his race.
I cannot conclude that the admissions procedure of the Law School of the University of
Washington that excluded DeFunis is violative of the Equal Protection Clause of the
Fourteenth Amendment. The judgment of the Washington Supreme Court should be
vacated, and the case remanded for a new trial.
Page 416 U. S. 345
|416 U.S. 312app|
APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING
The following are excerpts from the Law School's current admissions policy, as provided to
the Court by counsel for the respondents.
ADMISSIONS
A. Policy Statement Regarding Admission to Entering Classes of Juris Doctor Program --

Adopted by the Law Faculty December 4, 1973.
§ 1. The objectives of the admissions program are to select and admit those applicants who
have the best prospect of high quality academic work at the law school and, in the minority
admissions program described below, the further objective there stated.
§ 2. In measuring academic potential, the law school relies primarily on the undergraduate
grade-point average and the performance on the Law School Admission Test (LSAT). The
weighting of these two indicators is determined statistically by reference to past experience
at this school. For most applicants, the resulting applicant ranking is the most nearly
accurate of all available measures of relative academic potential. In truly exceptional
cases, i.e., those in which the numerical indicators clearly appear to be an inaccurate
measure of academic potential, the admission decision indicated by them alone may be
altered by a consideration of the factors listed below. The number of these truly exceptional
cases in any particular year should fall somewhere from zero to approximately forty. These
factors are used, however, only as an aid in assessing the applicant's academic potential in
its totality, without undue emphasis or reliance upon one or a few, and without an attempt to
quantify in advance the strength of their
Page 416 U. S. 346
application, singly or as a whole, in a particular case. They are:
a) the difficulty or ease of the undergraduate curriculum track pursued;
b) the demanding or non-demanding quality of the undergraduate school or department;
c) the attainment of an advanced degree, the nature thereof, and difficulty or ease of its
attainment;
d) the applicant's pursuits subsequent to attainment of the undergraduate degree and the
degree of success therein, as bearing on the applicant's academic potential;
e) the possibility that an applicant many years away from academic work may do less well
on the LSAT than his or her counterpart presently or recently in academic work;
f) substantial change in mental or physical health that indicates prospect for either higher or
lower quality of academic work;
g) substantial change in economic pressures or other circumstances that indicates prospect

for either higher or lower quality of academic work;
h) exceptionally good or bad performance upon the writing test ingredient of the LSAT, if the
current year's weighting of the numerical indicators does not otherwise take the writing
score into account;
i) the quality and strength of recommendations bearing upon the applicant's academic
potential;
j) objective indicators of motivation to succeed at the academic study of law;
k) variations in the level of academic achievement over time; and
l) any other indicators that serve the objective stated above.
****
§ 6. Because certain ethnic groups in our society
Page 416 U. S. 347
have historically been limited in their access to the legal profession, and because the
resulting underrepresentation can affect the quality of legal services available to members
of such groups, as well as limit their opportunity for full participation in the governance of
our communities, the faculty recognizes a special obligation in its admissions policy to
contribute to the solution of the problem.
Qualified minority applicants are therefore admitted under the minority admissions program
in such number that the entering class will have a reasonable proportion of minority
persons, in view of the obligation stated above and of the overall objective of the law school
to provide legal education for qualified persons generally. For the purpose of determining
the number to be specially admitted under the program, and not as a ceiling on minority
admissions generally, the faculty currently believes that approximately 15 to 20 percent is
such a reasonable proportion if there are sufficient qualified applicants available. Under the
minority admissions program, admission is offered to those applicants who have a
reasonable prospect of academic success at the law school, determined in each case by
considering the numerical indicators along with the listed factors in Section 2, above, but
without regard to the restriction upon number contained in that section.
No particular internal percentage or proportion among various minority groups in the

entering class is specified; rather, the law school strives for a reasonable internal balance
given the particular makeup of each year's applicant population.
As to some or all ethnic groups within the scope of the minority admissions program, it may
be appropriate to give a preference in some degree to residents of the state; that
determination is made each year in view of
Page 416 U. S. 348
all the particulars of that year's situation, and the preference is given when necessary to
meet some substantial local need for minority representation.
[Footnote 2/1]
The grades are calculated on a conventional 4.0 scale, and the LSAT is scored on a scale
ranging from 200 to 800. A Writing Test given on the same day as the LSAT and
administered with it is also included in the formula; it is scored on a scale of 20 to 80. The
Admissions Committee combines these scores into the Average by calculating the sum of
51.3, 3.4751 x the grade-point average, .0159 x LSAT score, and .0456 x the Writing Test
score. App. 24. For a brief discussion of the use of the LSAT in combination with
undergraduate grades to predict law school success, see Winterbottom, Comments on "A
Study of the Criteria for Legal Education and Admission to the Bar," An Article by Dr.
Thomas M. Goolsby, Jr., 21 J.Legal Ed. 75 (1968).
[Footnote 2/2]
The only other substantial group admitted at this point were 19 "military" applicants. These
were students who had previously been admitted to the school but who had either been
unable to come, or forced to leave during their tenure, because of the draft. They were
given preferential treatment upon reapplication after completing their military obligation.
Since neither party has raised any issue concerning this group of applicants, the remaining
consideration of the admissions procedure will not discuss them. Four minority applicants
were also admitted at this time, although none apparently had scores above 77. App. 31.
Their admission was presumably pursuant to the procedure for minority applicants
described below.
[Footnote 2/3]
This was a Council on Legal Education Opportunities program, federally funded by the
Office of Economic Opportunity and sponsored by the American Bar Association, the
Association of American Law Schools, the National Bar Association, and the Law School
Admissions Council.
[Footnote 2/4]
Testimony of the Chairman of the Admissions Committee, Statement of Facts 353.
[Footnote 2/5]
The Guide to Applicants explained:
"We gauged the potential for outstanding performance in law school not only from the
existence of high test scores and grade point averages, but also from careful analysis of
recommendations, the quality of work in difficult analytical seminars, courses, and writing
programs, the academic standards of the school attended by the applicant, the applicant's
graduate work (if any), and the nature of the applicant's employment (if any), since
graduation."
"An applicant's ability to make significant contributions to law school classes and the
community at large was assessed from such factors as his extracurricular and community
activities, employment, and general background."
"We gave no preference to, but did not discriminate against, either Washington residents or
women in making our determinations. An applicant's racial or ethnic background was
considered as one factor in our general attempt to convert formal credentials into realistic
predictions."
82 Wash.2d 11, 18-19, 507 P.2d 1169, 1174.
[Footnote 2/6]
The respondents provided the following table in response to an interrogatory during the
proceedings in the state court:
Predicted Number of Number
First Year Averages Applications Received Accepted
81 1 1
80 2 2
79 11 11
78 42 42
77 105 93
76 169 53
75 210 22
App. 34.
[Footnote 2/7]
Although there is apparently no evidence in point in the record, respondents suggest that,
at least some of these eight students were also admitted on a preferential basis. Brief for
Respondents 40 n. 27.
[Footnote 2/8]
United States Bureau of the Census, Census of Population: 1970, General Population
Characteristics, Washington, Final Report PC(1) -- B49, Table 18.
[Footnote 2/9]
For a history of gradual acceptance among law schools of standardized tests as an

admission tool, see Ramsey, Law School Admissions: Science, Art, or Hunch?, 12 J. Legal
Ed. 503 (1960).
[Footnote 2/10]
For a survey of the use of the LSAT by American law schools as of 1965, see Lunneborg &
Radford, The LSAT: A Survey of Actual Practice, 18 J.Legal Ed. 313 (1966).
[Footnote 2/11]
Rock, Motivation, Moderators, and Test Bias, 1970 U.Tol.L.Rev. 527, 535.
[Footnote 2/12]
At the outset, the Committee may have chosen only a range with the precise number to be
determined later in the process as the total number of minority applicants, and some
tentative assessment of their quality, could be determined. This appears to be the current
articulated policy, see App. to this opinion § 6, and we are advised by the respondents that
§ 6 "represents a more formal statement of the policy which was in effect in 1971 . . . , but
does not represent any change in policy." Letter to the Court dated March 19, 1974, p. 1.
The fact that the Committee did not set a precise number in advance is obviously irrelevant
to the legal analysis. Nor does it matter that there is some minimal level of achievement
below which the Committee would not reach in order to achieve its stated goal as to the
proportion of the class reserved for minority groups, so long as the Committee was willing,
in order to achieve that goal, to admit minority applicants who, in the Committee's own
judgment, were less qualified than other rejected applicants and who would not otherwise
have been admitted.
[Footnote 2/13]
See n. 12, supra, and App. to this opinion § 6.
[Footnote 2/14]
Uncommon Controversy, Report Prepared for American Friends Service Committee 29-30
(1970).
[Footnote 2/15]
See C. Fee, Chief Joseph, The Biography of a Great Indian (1936)
[Footnote 2/16]
See F. Brockway, African Socialism (1963); African Socialism (W. Friedland & C. Rosberg
ed.1964).
[Footnote 2/17]
See L. Senghor, On African Socialism (M. Cook ed.1964).
[Footnote 2/18]
We are not faced here with a situation where barriers are overtly or covertly put in the path
of members of one racial group which are not required by others. There was also no
showing that the purpose of the school's policy was to eliminate arbitrary and irrelevant
barriers to entry by certain racial groups into the legal profession groups. Griggs v. Duke
Power Co., 401 U. S. 424. In Swann v. Charlotte-Mecklenburg Board of Education, 402 U.
S. 1, 402 U. S. 16, we stated that, as a matter of educational policy, school authorities
could, within their broad discretion, specify that each school within its district have a
prescribed ratio of Negro to white students reflecting the proportion for the district as a
whole, in order to disestablish a dual school system. But there is a crucial difference
between the policy suggested in Swann and that under consideration here:
the Swann policy would impinge on no person's constitutional rights, because no one would
be excluded from a public school and no one has a right to attend a segregated public
school.
[Footnote 2/19]
Sweatt held that a State could not justify denying a black admission to its regular law school
by creating a new law school for blacks. We held that the new law school did not meet the
requirements of "equality" set forth in Plessy v. Ferguson, 163 U. S. 537.
The student, we said, was entitled to
"legal education equivalent to that offered by the State to students of other races. Such
education is not available to him in a separate law school as offered by the State."
339 U.S. at 339 U. S. 635.
[Footnote 2/20]
Those cases involved an exercise of the war power, a great leveler of other rights. Our
Navy was sunk at Pearl Harbor, and no one knew where the Japanese fleet was. We were
advised on oral argument that, if the Japanese landed troops on our west coast, nothing
could stop them west of the Rockies. The military judgment was that, to aid in the
prospective defense of the west coast, the enclaves of Americans of Japanese ancestry
should be moved inland, lest the invaders, by donning civilian clothes, would wreak even
more serious havoc on our western ports. The decisions were extreme, and went to the
verge of wartime power; and they have been severely criticized. It is, however, easy in
retrospect to denounce what was done, as there actually was no attempted Japanese
invasion of our country. While our Joint Chiefs of Staff were worrying about Japanese
soldiers landing on the west coast, they actually were landing in Burma and at Kota Bharu
in Malaya. But those making plans for defense of the Nation had no such knowledge, and
were planning for the worst. Moreover, the day we decided Korematsu, we also decided Ex
parte Endo, 323 U. S. 283, holding that, while evacuation of the Americans of Japanese
ancestry was allowable under extreme war conditions, their detention after evacuation was
not. We said:
"A citizen who is concededly loyal presents no problem of espionage or sabotage. Loyalty is
a matter of the heart and mind, not of race, creed, or color. He who is loyal is, by definition,
not a spy or a saboteur. When the power to detain is derived from the power to protect the
war effort against espionage and sabotage, detention which has no relationship to that
objective is unauthorized."
Id. at 323 U. S. 302.
[Footnote 2/21]
See n. 3, supra.
[Footnote 2/22]
In Johnson v. Committee on Examinations, 407 U.S. 915, we denied certiorari in a case

presenting a similar issue. There, the petitioner claimed that the bar examiners
reconsidered the papers submitted by failing minority applicants whose scores were close
to the cutoff point, with the result that some minority applicants were admitted to the Bar
although they initially had examination scores lower than those of white applicants who
failed.
As the Arizona Supreme Court denied Johnson admission summarily, in an original

proceeding, there were no judicial findings either sustaining or rejecting his factual claims of
racial bias, putting the case in an awkward posture for review here. Johnson subsequently
brought a civil rights action in Federal District Court, seeking both damages and injunctive
relief. The District Court dismissed the action, and the Court of Appeals affirmed, holding
that the lower federal courts did not have jurisdiction to review the decisions of the Arizona
Supreme Court on admissions to the state Bar. Johnson then sought review here, and we
denied his motion for leave to file a petition for mandamus, prohibition and/or certiorari on
February 19, 1974. Johnson v. Wilmer, 415 U.S. 911. Thus, in the entire history of the case,
no court had ever actually sustained Johnson's factual contentions concerning racial bias in
the bar examiners' procedures. DeFunis thus appears to be the first case here squarely
presenting the problem.
[Footnote 2/23]
Underlying all cultural background tests are potential ideological issues that have plagued
bar associations and the courts. In re Summers, 325 U. S. 561, involved the denial of the
practice of law to a man who could not conscientiously bear arms. The vote against him
was five to four. Konigsberg v. State Bar, 353 U. S. 252, followed, after remand,
by Konigsberg v. State Bar, 366 U. S. 36, resulted in barring one from admission to a state
bar because of his refusal to answer questions concerning Communist Party membership.
He, too, was excluded five to four. The petitioner in Schware v. Board of Bar
Examiners, 353 U. S. 232, was, however, admitted to practice even though he had, about
10 years earlier, been a member of the Communist Party. But In re Anastaplo, 366 U. S. 82,
a five-to-four decision, barred a man from admission to a state bar not because he invoked
the Fifth Amendment when asked about membership in the Communist Party, but because
he asserted that the First and Fourteenth Amendments protected him from that
inquiry. Baird v. State Bar of Arizona, 401 U. S. 1, held by a divided vote that a person could
not be kept out of the state bar for refusing to answer whether he had ever been a member
of the Communist Party; and see In re Stolar, 401 U. S. 23.
[Footnote 2/24]
See Slaughter House Cases, 16 Wall. 36, 83 U. S. 81.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE WHITE,
and MR. JUSTICE MARSHALL concur, dissenting.
I respectfully dissent. Many weeks of the school term remain, and petitioner may not
receive his degree despite respondents' assurances that petitioner will be allowed to
complete this term's schooling regardless of our decision. Any number of unexpected
events -- illness, economic necessity, even academic failure -- might prevent his graduation
at the end of the term. Were that misfortune to befall, and were petitioner required to
register for yet another term, the prospect that he would again face the hurdle of the
admissions policy is real, not fanciful; for respondents warn that
"Mr. DeFunis would have to take some appropriate action to request continued admission
for the remainder of his law school education, and some discretionary action by the
University on such request would have to be taken."
Respondents' Memorandum on the Question of Mootness 3-4 (emphasis supplied). Thus,

respondents' assurances have not dissipated the possibility that petitioner might once again
have to run the gauntlet of the University's allegedly unlawful admissions policy. The Court
therefore proceeds on an erroneous premise in resting its mootness holding on a supposed
inability to render any judgment that may affect one way or the other petitioner's completion
of his law studies. For surely if we were to reverse the Washington Supreme Court, we
could insure that, if for some reason petitioner did not graduate this spring, he would be
entitled to reenrollment at a later time on the same basis as others who have not faced the
hurdle of the University's allegedly unlawful admissions policy.
Page 416 U. S. 349
In these circumstances, and because the University's position implies no concession that its
admissions policy is unlawful, this controversy falls squarely within the Court's long line of
decisions holding that the "[m]ere voluntary cessation of allegedly illegal conduct does not
moot a case." United States v. Phosphate Export Assn., 393 U. S. 199, 393 U. S.
203 (1968); see Gray v. Sanders, 372 U. S. 368 (1963); United States v. W. T. Grant
Co., 345 U. S. 629 (1953); Walling v. Helmerich & Payne, Inc., 323 U. S. 37 (1944); FTC v.
Goodyear Tire & Rubber Co., 304 U. S. 257 (1938); United States v. Trans-Missouri Freight

Assn.,166 U. S. 290 (1897). Since respondents' voluntary representation to this Court is
only that they will permit petitioner to complete this term's studies, respondents have not
borne the "heavy burden," United States v. Phosphate Export Assn., supra, at 393 U. S.
203, of demonstrating that there was not even a "mere possibility" that petitioner would
once again be subject to the challenged admissions policy.United States v. W. T. Grant Co.,
supra, at 345 U. S. 633. On the contrary, respondents have positioned themselves so as to
be "free to return to [their] old ways." Id. at 345 U. S. 632.
I can thus find no justification for the Court's straining to rid itself of this dispute. While we
must be vigilant to require that litigants maintain a personal stake in the outcome of a
controversy to assure that
"the questions will be framed with the necessary specificity, that the issues will be contested
with the necessary adverseness, and that the litigation will be pursued with the necessary
vigor to assure that the constitutional challenge will be made in a form traditionally thought
to be capable of judicial resolution,"
Flast v. Cohen, 392 U. S. 83, 392 U. S. 106 (1968), there is no want of an adversary contest

in this case. Indeed, the Court concedes that, if petitioner has lost his stake in this
controversy, he did so only when he
Page 416 U. S. 350
registered for the spring term. But petitioner took that action only after the case had been
fully litigated in the state courts, briefs had been filed in this Court, and oral argument had
been heard. The case is thus ripe for decision on a fully developed factual record with
sharply defined and fully canvassed legal issues. Cf. Sibron v. New York, 392 U. S. 40, 392
U. S. 57 (1968).
Moreover, in endeavoring to dispose of this case as moot, the Court clearly disserves the
public interest. The constitutional issues which are avoided today concern vast numbers of
people, organizations, and colleges and universities, as evidenced by the filing of twenty-
six amicus curiae briefs. Few constitutional questions in recent history have stirred as much
debate, and they will not disappear. They must inevitably return to the federal courts, and
ultimately again to this Court. Cf. Richardson v. Wright, 405 U. S. 208, 405 U. S. 212(1972)
(dissenting opinion). Because avoidance of repetitious litigation serves the public interest,
that inevitability counsels against mootness determinations, as here, not compelled by the
record. Cf. United States v. W. T. Grant Co., supra, at 345 U. S. 632; Parker v. Ellis, 362 U.
S. 574, 362 U. S. 594 (1960) (dissenting opinion). Although the Court should, of course,
avoid unnecessary decisions of constitutional questions, we should not transform principles
of avoidance of constitutional decisions into devices for sidestepping resolution of difficult
cases. Cf. 19 U. S. Virginia, 6 Wheat. 264, 19 U. S. 404-405 (1821) (Marshall, C.J.).
On what appears in this case, I would find that there is an extant controversy and decide
the merits of the very important constitutional questions presented.
EN BANC
PROF. RANDOLF S. DAVID, LORENZO G.R. No. 171396

TA„ADA III, RONALD LLAMAS, H.
HARRY L. ROQUE, JR., JOEL RUIZ Present:
BUTUYAN, ROGER R. RAYEL, GARY S.
MALLARI, ROMEL REGALADO PANGANIBAN, C.J.,
BAGARES, CHRISTOPHER F.C. *PUNO,
BOLASTIG, QUISUMBING,
Petitioners, YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
- versus - CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
GLORIA MACAPAGAL- CARPIO MORALES,
ARROYO, AS PRESIDENT CALLEJO, SR.,
AND COMMANDER-IN-CHIEF, AZCUNA,
EXECUTIVE SECRETARY EDUARDO TINGA,
ERMITA, HON. AVELINO CRUZ II, CHICO-NAZARIO,
SECRETARY OF NATIONAL DEFENSE, GARCIA, and
GENERAL GENEROSO SENGA, CHIEF VELASCO, JJ.
OF STAFF, ARMED FORCES OF THE
PHILIPPINES, DIRECTOR GENERAL Promulgated:
ARTURO LOMIBAO, CHIEF,
PHILIPPINE NATIONAL POLICE, May 3, 2006
Respondents.
x-------------------------------------------------x
NI„EZ CACHO-OLIVARES AND G.R. No. 171409
TRIBUNE PUBLISHING CO., INC.,
Petitioners,
- versus -
HONORABLE SECRETARY EDUARDO

ERMITA AND HONORABLE DIRECTOR
GENERAL ARTURO C. LOMIBAO,
Respondents.
x-------------------------------------------------x
FRANCIS JOSEPH G. ESCUDERO,
JOSEPH A. SANTIAGO, TEODORO A. G.R. No. 171485
CASINO, AGAPITO A. AQUINO,
MARIO J. AGUJA, SATUR C. OCAMPO,
MUJIV S. HATAMAN, JUAN EDGARDO
ANGARA, TEOFISTO DL. GUINGONA
III, EMMANUEL JOSEL J.
VILLANUEVA, LIZA L. MAZA, IMEE R.
MARCOS, RENATO B. MAGTUBO,
JUSTIN MARC SB. CHIPECO, ROILO
GOLEZ, DARLENE ANTONINO-
CUSTODIO, LORETTA ANN P.
ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C.
REMULLA, FLORENCIO G. NOEL, ANA
THERESIA HONTIVEROS-BARAQUEL,
IMELDA C. NICOLAS, MARVIC M.V.F.
LEONEN, NERI JAVIER COLMENARES,
MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT
INCIONG,
Petitioners,
- versus -
EDUARDO R. ERMITA, EXECUTIVE

SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V. PUNO,
SECRETARY, DILG, GENEROSO
SENGA, AFP CHIEF OF STAFF,
ARTURO LOMIBAO, CHIEF PNP,
Respondents.
x-------------------------------------------------x
KILUSANG MAYO UNO,
REPRESENTED BY ITS CHAIRPERSON
ELMER C. LABOG AND SECRETARY G.R. No. 171483
GENERAL JOEL MAGLUNSOD,
NATIONAL FEDERATION OF LABOR
UNIONS Ð KILUSANG MAYO UNO
(NAFLU-KMU), REPRESENTED BY ITS
NATIONAL PRESIDENT, JOSELITO V.
USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR.,
AND ROQUE M. TAN,
Petitioners,
- versus -
HER EXCELLENCY, PRESIDENT

GLORIA MACAPAGAL-ARROYO, THE
HONORABLE EXECUTIVE
SECRETARY, EDUARDO ERMITA, THE
CHIEF OF STAFF, ARMED FORCES OF
THE PHILIPPINES, GENEROSO SENGA,
AND THE PNP DIRECTOR GENERAL,
ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC.
(ALG),
Petitioner,
- versus -
G.R. No. 171400
EXECUTIVE SECRETARY EDUARDO

R. ERMITA, LT. GEN. GENEROSO
SENGA, AND DIRECTOR GENERAL
ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------x
JOSE ANSELMO I. CADIZ, FELICIANO
M. BAUTISTA, ROMULO R. RIVERA,
JOSE AMOR M. AMORADO, ALICIA A.
RISOS-VIDAL, FELIMON C. ABELITA
III, MANUEL P. LEGASPI, J.B. JOVY C. G.R. No. 171489
BERNABE, BERNARD L. DAGCUTA,
ROGELIO V. GARCIA AND
INTEGRATED BAR OF THE
PHILIPPINES (IBP),
Petitioners,
- versus -
HON. EXECUTIVE SECRETARY

EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS CAPACITY
AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO
LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF,
Respondents.
x-------------------------------------------------x
LOREN B. LEGARDA,
Petitioner,
- versus - G.R. No. 171424
GLORIA MACAPAGAL-ARROYO, IN
HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO
LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE
PHILIPPINE NATIONAL POLICE (PNP);
GENEROSO SENGA, IN HIS CAPACITY
AS CHIEF OF STAFF OF THE ARMED
FORCES OF THE PHILIPPINES (AFP);
AND EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE
SECRETARY,
Respondents.
x---------------------------------------------------------------------------------------------x
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula are
necessary.[1] Superior strength Ð the use of force Ð cannot make wrongs into rights. In this
regard, the courts should be vigilant in safeguarding the constitutional rights of the citizens,
specifically their liberty.
Chief Justice Artemio V. PanganibanÕs philosophy of liberty is thus most relevant. He
said: ÒIn cases involving liberty, the scales of justice should weigh heavily against
government and in favor of the poor, the oppressed, the marginalized, the dispossessed and
the weak.Ó Laws and actions that restrict fundamental rights come to the courts Òwith a heavy
presumption against their constitutional validity.Ó[2]
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President
Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that
respondent officials of the Government, in their professed efforts to defend and preserve
democratic institutions, are actually trampling upon the very freedom guaranteed and protected
by the Constitution. Hence, such issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How does
the Constitution of a free people combine the degree of liberty, without which, law becomes
tyranny, with the degree of law, without which, liberty becomes license?[3]
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People
Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the

Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the
powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that:
ÒThe President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or
suppress. . .rebellion. . .,Ó and in my capacity as their Commander-in-Chief, do hereby command
the Armed Forces of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion
and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction; and as provided in Section 17, Article 12 of the
Constitution do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have conspired
with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme
Right, represented by military adventurists Ð the historical enemies of the democratic
Philippine State Ð who are now in a tactical alliance and engaged in a concerted and systematic
conspiracy, over a broad front, to bring down the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State Ð by obstructing

governance including hindering the growth of the economy and sabotaging the peopleÕs
confidence in government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the democratic
Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation
of the democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral

effects constitute a clear and present danger to the safety and the integrity of the Philippine State
and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists - the historical enemies of the democratic Philippine State Ð and
who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican
government;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing

governance, including hindering the growth of the economy and sabotaging the peopleÕs confidence
in the government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme
Right the opening to intensify their avowed aims to bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of
the democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and collateral

effects constitute a clear and present danger to the safety and the integrity of the Philippine State and
of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of
National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers

vested in me under the Constitution as President of the Republic of the Philippines, and Commander-
in-Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February
24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers
and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions
and measures to suppress and prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national emergency
and after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation
No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of
national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which
were issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and
the Philippine National Police (PNP), were directed to maintain law and order throughout the
Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and to
undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts
lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic

of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of
national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that
the proximate cause behind the executive issuances was the conspiracy among some military
officers, leftist insurgents of the New PeopleÕs Army (NPA), and some members of the political
opposition in a plot to unseat or assassinate President Arroyo.[4] They considered the aim to oust
or assassinate the President and take-over the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the facts
leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no
refutation from petitionersÕ counsels.
The Solicitor General argued that the intent of the Constitution is to give full discretionary
powers to the President in determining the necessity of calling out the armed forces. He
emphasized that none of the petitioners has shown that PP 1017 was without factual bases. While
he explained that it is not respondentsÕ task to state the facts behind the questioned
Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of
the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny
Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted
in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public
statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the
people to Òshow and proclaim our displeasure at the sham regime. Let us demonstrate our
disgust, not only by going to the streets in protest, but also by wearing red bands on our left
arms.Ó [5]
On February 17, 2006, the authorities got hold of a document entitled ÒOplan Hackle I Ó
which detailed plans for bombings and attacks during the Philippine Military Academy Alumni
Homecoming in Baguio City. The plot was to assassinate selected targets including some
cabinet members and President Arroyo herself.[6] Upon the advice of her security, President
Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas
province. Found in his possession were two (2) flash disks containing minutes of the meetings
between members of the Magdalo Group and the National PeopleÕs Army (NPA), a tape
recorder, audio cassette cartridges, diskettes, and copies of subversive documents.[7] Prior to his
arrest, Lt. San Juan announced through DZRH that the ÒMagdaloÕs D-Day would be on
February 24, 2006, the 20th Anniversary of Edsa I.Ó
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members
of the PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF
Commanding General Marcelino Franco, Jr. to ÒdisavowÓ any defection. The latter promptly
obeyed and issued a public statement: ÒAll SAF units are under the effective control of
responsible and trustworthy officers with proven integrity and unquestionable loyalty.Ó
On the same day, at the house of former Congressman Peping Cojuangco, President Cory
AquinoÕs brother, businessmen and mid-level government officials plotted moves to bring down
the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon,
longtime Arroyo critic, called a U.S. government official about his groupÕs plans if President
Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen.
Danilo Lim, Commander of the ArmyÕs elite Scout Ranger. Lim said Òit was all systems go for
the planned movement against Arroyo.Ó[8]
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen.
Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge
number of soldiers would join the rallies to provide a critical mass and armed component to the
Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there
was no way they could possibly stop the soldiers because they too, were breaking the chain of
command to join the forces foist to unseat the President. However, Gen. Senga has remained
faithful to his Commander-in-Chief and to the chain of command. He immediately took custody
of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in
Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within
the military and the police establishments in order to forge alliances with its members and key
officials. NPA spokesman Gregorio ÒKa RogerÓ Rosal declared: ÒThe Communist Party and
revolutionary movement and the entire people look forward to the possibility in the coming year
of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to
weaken and unable to rule that it will not take much longer to end it.Ó[9]
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at
North Central Mindanao, publicly announced: ÒAnti-Arroyo groups within the military and
police are growing rapidly, hastened by the economic difficulties suffered by the families of AFP
officers and enlisted personnel who undertake counter-insurgency operations in the field.Ó He
claimed that with the forces of the national democratic movement, the anti-Arroyo conservative
political parties, coalitions, plus the groups that have been reinforcing since June 2005, it is
probable that the PresidentÕs ouster is nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell sites
in Bulacan and Bataan was also considered as additional factual basis for the issuance of PP 1017
and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3)
soldiers. And also the directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass
protests.[10]
By midnight of February 23, 2006, the President convened her security advisers and
several cabinet members to assess the gravity of the fermenting peace and order situation. She
directed both the AFP and the PNP to account for all their men and ensure that the chain of
command remains solid and undivided. To protect the young students from any possible trouble
that might break loose on the streets, the President suspended classes in all levels in the entire
National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017
and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs and
activities related to the 20th anniversary celebration of Edsa People Power I; and revoked the
permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales
stated that political rallies, which to the PresidentÕs mind were organized for purposes of
destabilization, are cancelled. Presidential Chief of Staff Michael Defensor announced that
Òwarrantless arrests and take-over of facilities, including media, can already be
implemented.Ó[11]
Undeterred by the announcements that rallies and public assemblies would not be allowed,
groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor
Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with
the intention of converging at the EDSA shrine. Those who were already near the EDSA site
were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the marching
groups, and scatter the massed participants. The same police action was used against the
protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street and
EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration rally held
along Ayala Avenue and Paseo de Roxas Street in Makati City.[12]
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the
dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant)
petitioner Randolf S. David, a professor at the University of the Philippines and newspaper
columnist. Also arrested was his companion, Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5,
raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by
reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp
Crame in Quezon City were stationed inside the editorial and business offices of the newspaper;
while policemen from the Manila Police District were stationed outside the building.[13]
A few minutes after the search and seizure at the Daily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister publication, the
tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is Òmeant to show a
Ôstrong presence,Õ to tell media outlets not to connive or do anything that would help the rebels
in bringing down this government.Ó The PNP warned that it would take over any media
organization that would not follow Òstandards set by the government during the state of national
emergency.Ó Director General Lomibao stated that Òif they do not follow the standards Ð and
the standards are - if they would contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 Ð we will recommend a
Ôtakeover.ÕÓ National TelecommunicationsÕ Commissioner Ronald Solis urged television and
radio networks to ÒcooperateÓ with the government for the duration of the state of national
emergency. He asked for Òbalanced reportingÓ from broadcasters when covering the events
surrounding the coup attempt foiled by the government. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set out for media
coverage when the national security is threatened.[14]
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing
the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse
in Bulacan. The police showed a warrant for his arrest dated 1985. BeltranÕs lawyer explained
that the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos
regime, had long been quashed. Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told
they could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and
detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him
during a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel
and Art, were taken into custody.
Retired Major General Ramon Monta–o, former head of the Philippine Constabulary, was
arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmari–as,
Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative

Rafael Mariano, Bayan Muna Representative Teodoro Casi–o and Gabriela Representative Liza
Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in
Davao City. Later, he was turned over to the custody of the House of Representatives where the
ÒBatasan 5Ó decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives
Beltran, Satur Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and
G.O. No. 5 were filed with this Court against the above-named respondents. Three (3) of these
petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds
that (1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the
constitutional requirements for the imposition of martial law; and (3) it violates the constitutional
guarantees of freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc.
challenged the CIDGÕs act of raiding the Daily Tribune offices as a clear case of ÒcensorshipÓ
or Òprior restraint.Ó They also claimed that the term ÒemergencyÓ refers only to tsunami,
typhoon, hurricane and similar occurrences, hence, there is Òabsolutely no emergencyÓ that
warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and
twenty one (21) other members of the House of Representatives, including Representatives Satur
Ocampo, Rafael Mariano, Teodoro Casi–o, Liza Maza, and Josel Virador. They asserted that PP
1017 and G.O. No. 5 constitute Òusurpation of legislative powersÓ; Òviolation of freedom of
expressionÓ and Òa declaration of martial law.Ó They alleged that President Arroyo Ògravely
abused her discretion in calling out the armed forces without clear and verifiable factual basis of
the possibility of lawless violence and a showing that there is necessity to do so.Ó
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP
1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the
power to enact laws and decrees; (2) their issuance was without factual basis; and (3) they violate
freedom of expression and the right of the people to peaceably assemble to redress their
grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017
and G.O. No. 5 are unconstitutional because they violate (a) Section 4[15] of Article II, (b)
Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section 23[19] of Article VI, and (d) Section
17[20] of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an
Òarbitrary and unlawful exercise by the President of her Martial Law powers.Ó And assuming
that PP 1017 is not really a declaration of Martial Law, petitioners argued that Òit amounts to an
exercise by the President of emergency powers without congressional approval.Ó In addition,
petitioners asserted that PP 1017 Ògoes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code.Ó
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and
G.O. No. 5 are Òunconstitutional for being violative of the freedom of expression, including its
cognate rights such as freedom of the press and the right to access to information on matters of
public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution.Ó In this
regard, she stated that these issuances prevented her from fully prosecuting her election protest
pending before the Presidential Electoral Tribunal.
In respondentsÕ Consolidated Comment, the Solicitor General countered that: first, the
petitions should be dismissed for being moot; second, petitioners in G.R. Nos. 171400
(ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz
et al.) have no legal standing; third, it is not necessary for petitioners to implead President
Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does
not violate the peopleÕs right to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the above
interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400
(ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have
legal standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept of
judicial review enunciated in Marbury v. Madison.[21] This concept rests on the extraordinary
simple foundation --
The Constitution is the supreme law. It was ordained by the people, the ultimate source of all
political authority. It confers limited powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must be some authority
competent to hold it in control, to thwart its unconstitutional attempt, and thus to vindicate
and preserve inviolate the will of the people as expressed in the Constitution. This power the
courts exercise. This is the beginning and the end of the theory of judicial review.[22]
But the power of judicial review does not repose upon the courts a Òself-starting
capacity.Ó[23] Courts may exercise such power only when the following requisites are present:
first, there must be an actual case or controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at the earliest opportunity; and
fourth, the decision of the constitutional question must be necessary to the determination of the
case itself.[24]
Respondents maintain that the first and second requisites are absent, hence, we shall limit
our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is Òdefinite and concrete, touching the legal relations of
parties having adverse legal interest;Ó a real and substantial controversy admitting of specific
relief.[25] The Solicitor General refutes the existence of such actual case or controversy,
contending that the present petitions were rendered Òmoot and academicÓ by President
ArroyoÕs issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by virtue
of supervening events,[26] so that a declaration thereon would be of no practical use or value.
[27] Generally, courts decline jurisdiction over such case[28] or dismiss it on ground of
mootness.[29]
The Court holds that President ArroyoÕs issuance of PP 1021 did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police
officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017 and
G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the
vital issues that must be resolved in the present petitions. It must be stressed that Òan
unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative.Ó[30]
The Òmoot and academicÓ principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic,
if: first, there is a grave violation of the Constitution;[31] second, the exceptional character of the
situation and the paramount public interest is involved;[32] third, when constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the public;[33] and
fourth, the case is capable of repetition yet evading review.[34]
All the foregoing exceptions are present here and justify this CourtÕs assumption of
jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O.
No. 5 violates the Constitution. There is no question that the issues being raised affect the
publicÕs interest, involving as they do the peopleÕs basic rights to freedom of expression, of
assembly and of the press. Moreover, the Court has the duty to formulate guiding and
controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating
the bench and the bar, and in the present petitions, the military and the police, on the extent of
the protection given by constitutional guarantees.[35] And lastly, respondentsÕ contested actions
are capable of repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice
Artemio V. PanganibanÕs Separate Opinion in Sanlakas v. Executive Secretary.[36] However,
they failed to take into account the Chief JusticeÕs very statement that an otherwise ÒmootÓ
case may still be decided Òprovided the party raising it in a proper case has been and/or
continues to be prejudiced or damaged as a direct result of its issuance.Ó The present case falls
right within this exception to the mootness rule pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it
imperative to have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as Òa right of appearance in a court of justice on a given

question.Ó[37] In private suits, standing is governed by the Òreal-parties-in interestÓ rule as
contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It provides that
Òevery action must be prosecuted or defended in the name of the real party in interest.Ó
Accordingly, the Òreal-party-in interestÓ is Òthe party who stands to be benefited or injured
by the judgment in the suit or the party entitled to the avails of the suit.Ó[38] Succinctly put,
the plaintiffÕs standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff
who asserts a Òpublic rightÓ in assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person who is affected no differently from any
other person. He could be suing as a Òstranger,Ó or in the category of a Òcitizen,Ó or
Ôtaxpayer.Ó In either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a ÒcitizenÓ or Òtaxpayer.
Case law in most jurisdictions now allows both ÒcitizenÓ and ÒtaxpayerÓ standing in
public actions. The distinction was first laid down in Beauchamp v. Silk,[39] where it was held
that the plaintiff in a taxpayerÕs suit is in a different category from the plaintiff in a citizenÕs
suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins:[40] ÒIn matter of mere public right,
howeverÉthe people are the real partiesÉIt is at least the right, if not the duty, of every
citizen to interfere and see that a public offence be properly pursued and punished, and
that a public grievance be remedied.Ó With respect to taxpayerÕs suits, Terr v. Jordan[41]
held that Òthe right of a citizen and a taxpayer to maintain an action in courts to restrain
the unlawful use of public funds to his injury cannot be denied.Ó
However, to prevent just about any person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus hinders the activities of governmental
agencies engaged in public service, the United State Supreme Court laid down the more stringent
Òdirect injuryÓ test in Ex Parte Levitt,[42] later reaffirmed in Tileston v. Ullman.[43] The same
Court ruled that for a private individual to invoke the judicial power to determine the validity of
an executive or legislative action, he must show that he has sustained a direct injury as a
result of that action, and it is not sufficient that he has a general interest common to all
members of the public.
This Court adopted the Òdirect injuryÓ test in our jurisdiction. In People v. Vera,[44] it
held that the person who impugns the validity of a statute must have Òa personal and
substantial interest in the case such that he has sustained, or will sustain direct injury as a
result.Ó The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of the
Senate,[45] Manila Race Horse TrainersÕ Association v. De la Fuente,[46] Pascual v. Secretary
of Public Works[47] and Anti-Chinese League of the Philippines v. Felix.[48]
However, being a mere procedural technicality, the requirement of locus standi may be
waived by the Court in the exercise of its discretion. This was done in the 1949 Emergency
Powers Cases, Araneta v. Dinglasan,[49] where the Òtranscendental importanceÓ of the cases
prompted the Court to act liberally. Such liberality was neither a rarity nor accidental. In
Aquino v. Comelec,[50] this Court resolved to pass upon the issues raised due to the Òfar-
reaching implicationsÓ of the petition notwithstanding its categorical statement that petitioner
therein had no personality to file the suit. Indeed, there is a chain of cases where this liberal
policy has been observed, allowing ordinary citizens, members of Congress, and civic
organizations to prosecute actions involving the constitutionality or validity of laws, regulations
and rulings.[51]
Thus, the Court has adopted a rule that even where the petitioners have failed to show direct
injury, they have been allowed to sue under the principle of Òtranscendental importance.Ó
Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled that the
enforcement of the constitutional right to information and the equitable
diffusion of natural resources are matters of transcendental importance which
clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,[53] wherein the Court held

that Ògiven the transcendental importance of the issues involved, the Court may
relax the standing requirements and allow the suit to prosper despite the lack of
direct injury to the parties seeking judicial reviewÓ of the Visiting Forces
Agreement;
(3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners
may not file suit in their capacity as taxpayers absent a showing that ÒBalikatan 02-
01Ó involves the exercise of CongressÕ taxing or spending powers, it
reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,[55] that in cases
of transcendental importance, the cases must be settled promptly and definitely
and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to sue,
provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the
election law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the CourtÕs attitude toward
legal standing.
In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a
peopleÕs organization does not give it the requisite personality to question the validity of the on-
line lottery contract, more so where it does not raise any issue of constitutionality. Moreover, it
cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue
as a concerned citizen as it does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[57]

the Court reiterated the Òdirect injuryÓ test with respect to concerned citizensÕ cases involving
constitutional issues. It held that Òthere must be a showing that the citizen personally suffered
some actual or threatened injury arising from the alleged illegal official act.Ó
In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any
injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are
members of Congress have standing to sue, as they claim that the PresidentÕs declaration of a
state of rebellion is a usurpation of the emergency powers of Congress, thus impairing their
legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society,
the Court declared them to be devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is
beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares and
Tribune Publishing Co. Inc. They alleged Òdirect injuryÓ resulting from Òillegal arrestÓ and
Òunlawful searchÓ committed by police operatives pursuant to PP 1017. Rightly so, the
Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of
legislative powers. They also raised the issue of whether or not the concurrence of Congress is
necessary whenever the alarming powers incident to Martial Law are used. Moreover, it is in the
interest of justice that those affected by PP 1017 can be represented by their Congressmen in
bringing to the attention of the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,
[60] Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,[61] Association of
Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,[62] Basco v.

Philippine Amusement and Gaming Corporation,[63] and Ta–ada v. Tuvera,[64] that when the
issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in
the execution of the laws.
In G.R. No. 171483, KMUÕs assertion that PP 1017 and G.O. No. 5 violated its right to
peaceful assembly may be deemed sufficient to give it legal standing. Organizations may be
granted standing to assert the rights of their members.[65] We take judicial notice of the
announcement by the Office of the President banning all rallies and canceling all permits for
public assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated
Bar of the Philippines (IBP) have no legal standing, having failed to allege any direct or potential
injury which the IBP as an institution or its members may suffer as a consequence of the issuance
of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,[66] the Court
held that the mere invocation by the IBP of its duty to preserve the rule of law and nothing more,
while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too
general an interest which is shared by other groups and the whole citizenry. However, in view of
the transcendental importance of the issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant
petition as there are no allegations of illegal disbursement of public funds. The fact that she is a
former Senator is of no consequence. She can no longer sue as a legislator on the allegation that
her prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that
she is a media personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation. Her submission that
she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no
relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of
her case. But considering once more the transcendental importance of the issue involved, this
Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to the
bigger question of proper exercise of judicial power. This is the underlying legal tenet of the
Òliberality doctrineÓ on legal standing. It cannot be doubted that the validity of PP No. 1017
and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people.
To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the
ruling of this Court on this very critical matter. The petitions thus call for the application of the
Òtranscendental importanceÓ doctrine, a relaxation of the standing requirements for the
petitioners in the ÒPP 1017 cases.Ó
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the

doctrine that the President, during his tenure of office or actual incumbency,[67] may not be sued
in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It
will degrade the dignity of the high office of the President, the Head of State, if he can be
dragged into court litigations while serving as such. Furthermore, it is important that he be freed
from any form of harassment, hindrance or distraction to enable him to fully attend to the
performance of his official duties and functions. Unlike the legislative and judicial branch, only
one constitutes the executive branch and anything which impairs his usefulness in the discharge
of the many great and important duties imposed upon him by the Constitution necessarily impairs
the operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the people[68] but he
may be removed from office only in the mode provided by law and that is by impeachment.[69]
B. SUBSTANTIVE
I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not ÒnecessaryÓ for
President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the PresidentÕs exercise of
his Commander-in-Chief power has reached its distilled point - from the indulgent days of
Barcelon v. Baker[70] and Montenegro v. Castaneda[71] to the volatile era of
Lansang v. Garcia,[72] Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The
tug-of-war always cuts across the line defining Òpolitical questions,Ó particularly those
questions Òin regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government.Ó[75] Barcelon and Montenegro were in unison in declaring
that the authority to decide whether an exigency has arisen belongs to the President and his
decision is final and conclusive on the courts. Lansang took the opposite view. There, the
members of the Court were unanimous in the conviction that the Court has the authority to
inquire into the existence of factual bases in order to determine their constitutional sufficiency.
From the principle of separation of powers, it shifted the focus to the system of checks and
balances, Òunder which the President is supreme, x x x only if and when he acts within the
sphere allotted to him by the Basic Law, and the authority to determine whether or
not he has so acted is vested in the Judicial Department, which in this respect, is,
in turn, constitutionally supreme.Ó[76] In 1973, the unanimous Court of
Lansang was divided in Aquino v. Enrile.[77] There, the Court was almost evenly
divided on the issue of whether the validity of the imposition of Martial Law is a
political or justiciable question.[78] Then came Garcia-Padilla v. Enrile which greatly diluted
Lansang. It declared that there is a need to re-examine the latter case, ratiocinating that Òin
times of war or national emergency, the President must be given absolute control for the
very life of the nation and the government is in great peril. The President, it intoned, is
answerable only to his conscience, the People, and God.Ó[79]
The Integrated Bar of the Philippines v. Zamora[80] -- a recent case most pertinent to these
cases at bar -- echoed a principle similar to Lansang. While the Court considered the
PresidentÕs Òcalling-outÓ power as a discretionary power solely vested in his wisdom, it
stressed that Òthis does not prevent an examination of whether such power was exercised
within permissible constitutional limits or whether it was exercised in a manner constituting
grave abuse of discretion.Ó This ruling is mainly a result of the CourtÕs reliance on Section
1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an
appropriate action the validity of the acts of the political departments. Under the new definition
of judicial power, the courts are authorized not only Òto settle actual controversies involving
rights which are legally demandable and enforceable,Ó but also Òto 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.Ó The latter part of the authority
represents a broadening of judicial power to enable the courts of justice to review what was
before a forbidden territory, to wit, the discretion of the political departments of the
government.[81] It speaks of judicial prerogative not only in terms of power but also of duty.
[82]
As to how the Court may inquire into the PresidentÕs exercise of power, Lansang adopted
the test that Òjudicial inquiry can go no further than to satisfy the Court not that the PresidentÕs
decision is correct,Ó but that Òthe President did not act arbitrarily.Ó Thus, the standard laid
down is not correctness, but arbitrariness.[83] In Integrated Bar of the Philippines, this Court
further ruled that Òit is incumbent upon the petitioner to show that the PresidentÕs decision
is totally bereft of factual basisÓ and that if he fails, by way of proof, to support his assertion,
then Òthis Court cannot undertake an independent investigation beyond the pleadings.Ó
Petitioners failed to show that President ArroyoÕs exercise of the calling-out power, by
issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor GeneralÕs
Consolidated Comment and Memorandum shows a detailed narration of the events leading to the
issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the
escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the
military, particularly in the Philippine Marines, and the reproving statements from the communist
leaders. There was also the Minutes of the Intelligence Report and Security Group of the
Philippine Army showing the growing alliance between the NPA and the military. Petitioners
presented nothing to refute such events. Thus, absent any contrary allegations, the Court is
convinced that the President was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to
simply fold her arms and do nothing to prevent or suppress what she believed was lawless
violence, invasion or rebellion. However, the exercise of such power or duty must not stifle
liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists

on the Power of the President
in Times of Emergency
This case brings to fore a contentious subject -- the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English
doctrine of prerogative to cope with the problem of emergency. In times of danger to the nation,
positive law enacted by the legislature might be inadequate or even a fatal obstacle to the
promptness of action necessary to avert catastrophe. In these situations, the Crown retained a
prerogative Òpower to act according to discretion for the public good, without the
proscription of the law and sometimes even against it.Ó[84] But Locke recognized that this
moral restraint might not suffice to avoid abuse of prerogative powers. Who shall judge the
need for resorting to the prerogative and how may its abuse be avoided? Here, Locke
readily admitted defeat, suggesting that Òthe people have no other remedy in this, as in all
other cases where they have no judge on earth, but to appeal to Heaven.Ó[85]
Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic
processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them bring about, at a time of
crisis, the ruin of the StateÉ
It is wrong therefore to wish to make political institutions as strong as to render it impossible

to suspend their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the laws and suspend
for a moment the sovereign authority. In such a case, there is no doubt about the general will, and it
clear that the peopleÕs first intention is that the State shall not perish.[86]
Rosseau did not fear the abuse of the emergency dictatorship or Òsupreme magistracyÓ
as he termed it. For him, it would more likely be cheapened by Òindiscreet use.Ó He was
unwilling to rely upon an Òappeal to heaven.Ó Instead, he relied upon a tenure of office of
prescribed duration to avoid perpetuation of the dictatorship.[87]
John Stuart Mill concluded his ardent defense of representative government: ÒI am far
from condemning, in cases of extreme necessity, the assumption of absolute power in the
form of a temporary dictatorship.Ó[88]
Nicollo MachiavelliÕs view of emergency powers, as one element in the whole scheme of
limited government, furnished an ironic contrast to the Lockean theory of prerogative. He
recognized and attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra Ðconstitutional

measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if the
practice is once established for good objects, they will in a little while be disregarded under that
pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided
for everything, having a remedy for every emergency and fixed rules for applying it.[89]
Machiavelli Ð in contrast to Locke, Rosseau and Mill Ð sought to incorporate into the
constitution a regularized system of standby emergency powers to be invoked with suitable
checks and controls in time of national danger. He attempted forthrightly to meet the problem of
combining a capacious reserve of power and speed and vigor in its application in time of
emergency, with effective constitutional restraints.[90]
Contemporary political theorists, addressing themselves to the problem of response to

emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship.[91] Frederick M. Watkins saw Òno reason why absolutism should not be used as
a means for the defense of liberal institutions,Ó provided it Òserves to protect established
institutions from the danger of permanent injury in a period of temporary emergency and
is followed by a prompt return to the previous forms of political life.Ó[92] He recognized
the two (2) key elements of the problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while at the same time
Òimposing limitation upon that power.Ó[93] Watkins placed his real faith in a scheme of
constitutional dictatorship. These are the conditions of success of such a dictatorship: ÒThe
period of dictatorship must be relatively shortÉDictatorship should always be strictly
legitimate in characterÉFinal authority to determine the need for dictatorship in any given
case must never rest with the dictator himselfÉÓ[94] and the objective of such an emergency
dictatorship should be Òstrict political conservatism.Ó
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.[95] ÒIt is a
problem of concentrating power Ð in a government where power has consciously been divided Ð
to cope withÉ situations of unprecedented magnitude and gravity. There must be a broad grant of
powers, subject to equally strong limitations as to who shall exercise such powers, when, for how
long, and to what end.Ó[96] Friedrich, too, offered criteria for judging the adequacy of any of
scheme of emergency powers, to wit: ÒThe emergency executive must be appointed by
constitutional means Ð i.e., he must be legitimate; he should not enjoy power to determine
the existence of an emergency; emergency powers should be exercised under a strict time
limitation; and last, the objective of emergency action must be the defense of the
constitutional order.Ó[97]
Clinton L. Rossiter, after surveying the history of the employment of emergency powers in
Great Britain, France, Weimar, Germany and the United States, reverted to a description of a
scheme of Òconstitutional dictatorshipÓ as solution to the vexing problems presented by
emergency.[98] Like Watkins and Friedrich, he stated a priori the conditions of success of the
Òconstitutional dictatorship,Ó thus:
1) No general regime or particular institution of constitutional dictatorship should be

initiated unless it is necessary or even indispensable to the preservation of the State and its
constitutional orderÉ
2) Éthe decision to institute a constitutional dictatorship should never be in the

hands of the man or men who will constitute the dictatorÉ
3) No government should initiate a constitutional dictatorship without making

specific provisions for its terminationÉ
4) Éall uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirementsÉ
5) É no dictatorial institution should be adopted, no right invaded, no regular

procedure altered any more than is absolutely necessary for the conquest of the particular
crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship

should never be permanent in character or effectÉ
7) The dictatorship should be carried on by persons representative of every part of

the citizenry interested in the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a

constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to

institute one should never be in the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis
for which it was institutedÉ
11) Éthe termination of the crisis must be followed by a complete return as possible to
the political and governmental conditions existing prior to the initiation of the constitutional
dictatorshipÉ[99]
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers
than did Watkins. He would secure to Congress final responsibility for declaring the existence
or termination of an emergency, and he places great faith in the effectiveness of congressional
investigating committees.[100]
Scott and Cotter, in analyzing the above contemporary theories in light of recent
experience, were one in saying that, Òthe suggestion that democracies surrender the control
of government to an authoritarian ruler in time of grave danger to the nation is not based
upon sound constitutional theory.Ó To appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not
whether the term ÒdictatorÓ is used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency powers. However used,
Òconstitutional dictatorshipÓ cannot be divorced from the implication of suspension of the
processes of constitutionalism. Thus, they favored instead the Òconcept of constitutionalismÓ
articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of

emergency powers, and which is consistent with the findings of this study, is that formulated by
Charles H. McIlwain. While it does not by any means necessarily exclude some indeterminate
limitations upon the substantive powers of government, full emphasis is placed upon procedural
limitations, and political responsibility. McIlwain clearly recognized the need to repose adequate
power in government. And in discussing the meaning of constitutionalism, he insisted that the
historical and proper test of constitutionalism was the existence of adequate processes for
keeping government responsible. He refused to equate constitutionalism with the enfeebling of
government by an exaggerated emphasis upon separation of powers and substantive limitations on
governmental power. He found that the really effective checks on despotism have consisted not in
the weakening of government but, but rather in the limiting of it; between which there is a great and
very significant difference. In associating constitutionalism with ÒlimitedÓ as distinguished
from ÒweakÓ government, McIlwain meant government limited to the orderly procedure of
law as opposed to the processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary
power and a complete political responsibility of government to the governed.[101]
In the final analysis, the various approaches to emergency of the above political theorists
Ð- from LockÕs Òtheory of prerogative,Ó to WatkinsÕ doctrine of Òconstitutional dictatorshipÓ
and, eventually, to McIlwainÕs Òprinciple of constitutionalismÓ --- ultimately aim to solve one
real problem in emergency governance, i.e., that of allotting increasing areas of discretionary
power to the Chief Executive, while insuring that such powers will be exercised with a sense
of political responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive
regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to
create a government in the concept of Justice JacksonÕs Òbalanced power structure.Ó[102]
Executive, legislative, and judicial powers are dispersed to the President, the Congress, and the
Supreme Court, respectively. Each is supreme within its own sphere. But none has the
monopoly of power in times of emergency. Each branch is given a role to serve as limitation
or check upon the other. This system does not weaken the President, it just limits his
power, using the language of McIlwain. In other words, in times of emergency, our Constitution
reasonably demands that we repose a certain amount of faith in the basic integrity and wisdom of
the Chief Executive but, at the same time, it obliges him to operate within carefully prescribed
procedural limitations.
a. ÒFacial ChallengeÓ
Petitioners contend that PP 1017 is void on its face because of its Òoverbreadth.Ó They
claim that its enforcement encroached on both unprotected and protected rights under Section 4,
Article III of the Constitution and sent a Òchilling effectÓ to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing
Òon their facesÓ statutes in free speech cases, also known under the American Law as First
Amendment cases.[103]
A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-
related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless
violence. In United States v. Salerno,[104] the US Supreme Court held that Òwe have not
recognized an ÔoverbreadthÕ doctrine outside the limited context of the First
AmendmentÓ (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that
Òreflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct.Ó Undoubtedly, lawless violence, insurrection and rebellion
are considered ÒharmfulÓ and Òconstitutionally unprotected conduct.Ó In Broadrick v.
Oklahoma,[105] it was held:
It remains a Ômatter of no little difficultyÕ to determine when a law may properly be held
void on its face and when Ôsuch summary actionÕ is inappropriate. But the plain import of our
cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional
rules of practice and that its function, a limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to sanction moves from Ôpure speechÕ toward
conduct and that conduct Ðeven if expressive Ð falls within the scope of otherwise valid
criminal laws that reflect legitimate state interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by
their terms, seek to regulate only Òspoken wordsÓ and again, that Òoverbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct.Ó[106] Here, the incontrovertible fact remains
that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to
state regulation.
Second, facial invalidation of laws is considered as Òmanifestly strong medicine,Ó to be

used Òsparingly and only as a last resort,Ó and is Ògenerally disfavored;Ó[107] The reason
for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the
principle that a person to whom a law may be applied will not be heard to challenge a law on the
ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations
not before the Court.[108] A writer and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception
to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims
that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts
carve away the unconstitutional aspects of the law by invalidating its improper applications on
a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth analysis, those rules give
way; challenges are permitted to raise the rights of third parties; and the court invalidates the
entire statute Òon its face,Ó not merely Òas applied forÓ so that the overbroad law becomes
unenforceable until a properly authorized court construes it more narrowly. The factor that
motivates courts to depart from the normal adjudicatory rules is the concern with the Òchilling;Ó
deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The
Court assumes that an overbroad lawÕs Òvery existence may cause others not before the court to
refrain from constitutionally protected speech or expression.Ó An overbreadth ruling is designed to
remove that deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to
examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to
petitioners, but on the assumption or prediction that its very existence may cause others not
before the Court to refrain from constitutionally protected speech or expression. In Younger v.
Harris,[109] it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate
task for the judiciary. The combination of the relative remoteness of the controversy, the impact
on the legislative process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes,...ordinarily results in a kind of
case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might
be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge to
mount successfully, since the challenger must establish that there can be no instance when the
assailed law may be valid. Here, petitioners did not even attempt to show whether this situation
exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This,
too, is unwarranted.
Related to the ÒoverbreadthÓ doctrine is the Òvoid for vagueness doctrineÓ which holds
that Òa law is facially invalid if men of common intelligence must necessarily guess at its
meaning and differ as to its application.Ó[110] It is subject to the same principles governing
overbreadth doctrine. For one, it is also an analytical tool for testing Òon their facesÓ statutes in
free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its
face only if it is vague in all its possible applications. Again, petitioners did not even attempt
to show that PP 1017 is vague in all its application. They also failed to establish that men of
common intelligence cannot understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision:
Òby virtue of the power vested upon me by Section 18, Artilce VII É do
hereby command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence as well
any act of insurrection or rebellionÓ
Second provision:
Òand to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;Ó
Third provision:
Òas provided in Section 17, Article XII of the Constitution do hereby declare
a State of National Emergency.Ó
First Provision: Calling-out Power
The first provision pertains to the PresidentÕs calling-out power. In

Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that
Section 18, Article VII of the Constitution reproduced as follows:
Sec. 18. The 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. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall not be set aside by the President.
Upon the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation
or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege
of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from
its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged for
rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall
be judicially charged within three days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a ÒsequenceÓ of graduated powers. From the

most to the least benign, these are: the calling-out power, the power to suspend the privilege of
the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the
Philippines v. Zamora,[112] the Court ruled that the only criterion for the exercise of the calling-
out power is that Òwhenever it becomes necessary,Ó the President may call the armed forces
Òto prevent or suppress lawless violence, invasion or rebellion.Ó Are these conditions present
in the instant cases? As stated earlier, considering the circumstances then prevailing, President
Arroyo found it necessary to issue PP 1017. Owing to her OfficeÕs vast intelligence network,
she is in the best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But
every act that goes beyond the PresidentÕs calling-out power is considered illegal or ultra vires.
For this reason, a President must be careful in the exercise of his powers. He cannot invoke a
greater power when he wishes to act under a lesser power. There lies the wisdom of our
Constitution, the greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the PresidentÕs authority
to declare a Òstate of rebellionÓ (in Sanlakas) and the authority to proclaim a state of national
emergency. While President ArroyoÕs authority to declare a Òstate of rebellionÓ emanates from
her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2,
Book II of the Revised Administrative Code of 1987, which provides:
SEC. 4. Ð Proclamations. Ð Acts of the President fixing a date or declaring a status or

condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations which
shall have the force of an executive order.
President ArroyoÕs declaration of a Òstate of rebellionÓ was merely an act declaring a

status or condition of public moment or interest, a declaration allowed under Section 4 cited
above. Such declaration, in the words of Sanlakas, is harmless, without legal significance, and
deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national
emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a
provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She
also relied on Section 17, Article XII, a provision on the StateÕs extraordinary power to take
over privately-owned public utility and business affected with public interest. Indeed, PP 1017
calls for the exercise of an awesome power. Obviously, such Proclamation cannot be deemed
harmless, without legal significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of

Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain
therein that what the President invoked was her calling-out power.
The declaration of Martial Law is a Òwarn[ing] to citizens that the military power has been
called upon by the executive to assist in the maintenance of law and order, and that, while the
emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will
in any way render more difficult the restoration of order and the enforcement of law.Ó[113]
In his ÒStatement before the Senate Committee on JusticeÓ on March 13, 2006, Mr.
Justice Vicente V. Mendoza,[114] an authority in constitutional law, said that of the three powers
of the President as Commander-in-Chief, the power to declare Martial Law poses the most severe
threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot
be used to stifle or persecute critics of the government. It is placed in the keeping of the
President for the purpose of enabling him to secure the people from harm and to restore order so
that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more
than a call by the President to the armed forces to prevent or suppress lawless violence. As such,
it cannot be used to justify acts that only under a valid declaration of Martial Law can be done.
Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to
its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press
censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the
President as Commander-in-Chief only where there is a valid declaration of Martial Law or
suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial
Law. It is merely an exercise of President ArroyoÕs calling-out power for the armed forces to
assist her in preventing or suppressing lawless violence.
Second Provision: ÒTake CareÓ Power
The second provision pertains to the power of the President to ensure that the laws be
faithfully executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,[115] the primary function of the
President is to enforce the laws as well as to formulate policies to be embodied in existing laws.
He sees to it that all laws are enforced by the officials and employees of his department. Before
assuming office, he is required to take an oath or affirmation to the effect that as President of the
Philippines, he will, among others, Òexecute its laws.Ó[116] In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the Commander-in-Chief of
all the armed forces of the country,[117] including the Philippine National Police[118] under the
Department of Interior and Local Government.[119]
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael

Mariano, Teodoro Casi–o, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as
it arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1,
Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the
clause Òto enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction.Ó
PetitionersÕ contention is understandable. A reading of PP 1017 operative clause shows

that it was lifted[120] from Former President MarcosÕ Proclamation No. 1081, which partly
reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by
virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do
hereby place the entire Philippines as defined in Article 1, Section 1 of the Constitution under
martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well as any act of insurrection or rebellion and to
enforce obedience to all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its
enabling clause states: Òto enforce obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my direction.Ó Upon the other hand, the
enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws
and to all decrees, orders and regulations promulgated by me personally or upon my
direction.Ó
Is it within the domain of President Arroyo to promulgate ÒdecreesÓ?
PP 1017 states in part: Òto enforce obedience to all the laws and decrees x x x
promulgated by me personally or upon my direction.Ó
The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order
No. 292 (Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. Ñ Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory powers shall be
promulgated in executive orders.
Sec. 3. Administrative Orders. Ñ Acts of the President which relate to particular aspect of
governmental operations in pursuance of his duties as administrative head shall be promulgated in
administrative orders.
Sec. 4. Proclamations. Ñ Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of a specific law
or regulation is made to depend, shall be promulgated in proclamations which shall have the force of
an executive order.
Sec. 5. Memorandum Orders. Ñ Acts of the President on matters of administrative detail or
of subordinate or temporary interest which only concern a particular officer or office of the
Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. Ñ Acts of the President on matters relating to internal
administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or compliance, shall be
embodied in memorandum circulars.
Sec. 7. General or Special Orders. Ñ Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special
orders.
President ArroyoÕs ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential
Decrees are laws which are of the same category and binding force as statutes because they were
issued by the President in the exercise of his legislative power during the period of Martial Law
under the 1973 Constitution.[121]
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants
President Arroyo the authority to promulgate Òdecrees.Ó Legislative power is peculiarly
within the province of the Legislature. Section 1, Article VI categorically states that Ò[t]he
legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives.Ó To be sure, neither Martial Law nor a state of
rebellion nor a state of emergency can justify President ArroyoÕs exercise of legislative power
by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows
that these decrees are void and, therefore, cannot be enforced. With respect to Òlaws,Ó she
cannot call the military to enforce or implement certain laws, such as customs laws, laws
governing family and property relations, laws on obligations and contracts and the like. She can
only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless
violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and
regulations promulgated by me personally or upon my direction; and as provided in
Section 17, Article XII of the Constitution do hereby declare a state of national
emergency.
The import of this provision is that President Arroyo, during the state of national
emergency under PP 1017, can call the military not only to enforce obedience Òto all the laws
and to all decrees x x xÓ but also to act pursuant to the provision of Section 17, Article XII
which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the State may,
during the emergency and under reasonable terms prescribed by it, temporarily take over or direct
the operation of any privately-owned public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when she
issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP 1017
purports to grant the President, without any authority or delegation from Congress, to take over
or direct the operation of any privately-owned public utility or business affected with public
interest.
This provision was first introduced in the 1973 Constitution, as a product of the Òmartial
lawÓ thinking of the 1971 Constitutional Convention.[122] In effect at the time of its approval
was President MarcosÕ Letter of Instruction No. 2 dated September 22, 1972 instructing the
Secretary of National Defense to take over Òthe management, control and operation of the
Manila Electric Company, the Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines,
Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government
of its effort to contain, solve and end the present national emergency.Ó
Petitioners, particularly the members of the House of Representatives, claim that President
ArroyoÕs inclusion of Section 17, Article XII in PP 1017 is an encroachment on the
legislatureÕs emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the PresidentÕs authority to declare Òa state of

national emergencyÓ and to exercise emergency powers. To the first, as elucidated by the
Court, Section 18, Article VII grants the President such power, hence, no legitimate constitutional
objection can be raised. But to the second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution
of the Congress, such powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to
war but also to Òother national emergency.Ó If the intention of the Framers of our Constitution
was to withhold from the President the authority to declare a Òstate of national emergencyÓ
pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like the
declaration of the existence of a state of war), then the Framers could have provided so. Clearly,
they did not intend that Congress should first authorize the President before he can declare a
Òstate of national emergency.Ó The logical conclusion then is that President Arroyo could
validly declare the existence of a state of national emergency even in the absence of a
Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned public
utility or business affected with public interest, is a
different matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be construed
together. Otherwise stated, different clauses, sections, and provisions of a constitution which
relate to the same subject matter will be construed together and considered in the light of each
other.[123] Considering that Section 17 of Article XII and Section 23 of Article VI, previously
quoted, relate to national emergencies, they must be read together to determine the limitation of
the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the tenor
of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a
body cannot delegate a power not reposed upon it. However, knowing that during grave
emergencies, it may not be possible or practicable for Congress to meet and exercise its powers,
the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to
the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by
Congress.[124]
Section 17, Article XII must be understood as an aspect of the emergency powers clause.
The taking over of private business affected with public interest is just another facet of the
emergency powers generally reposed upon Congress. Thus, when Section 17 states that the Òthe
State may, during the emergency and under reasonable terms prescribed by it, temporarily
take over or direct the operation of any privately owned public utility or business affected
with public interest,Ó it refers to Congress, not the President. Now, whether or not the
President may exercise such power is dependent on whether Congress may delegate it to him
pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al.
v. Sawyer,[125] held:
It is clear that if the President had authority to issue the order he did, it must be found in
some provision of the Constitution. And it is not claimed that express constitutional language grants
this power to the President. The contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article
II which say that ÒThe executive Power shall be vested in a President . . . .;Ó that Òhe shall take
Care that the Laws be faithfully executed;Ó and that he Òshall be Commander-in-Chief of the Army
and Navy of the United States.
The order cannot properly be sustained as an exercise of the PresidentÕs military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number
of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater
of war. Such cases need not concern us here. Even though Òtheater of warÓ be an expanding
concept, we cannot with faithfulness to our constitutional system hold that the Commander-in-
Chief of the Armed Forces has the ultimate power as such to take possession of private
property in order to keep labor disputes from stopping production. This is a job for the
nationÕs lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions
that grant executive power to the President. In the framework of our Constitution, the
PresidentÕs power to see that the laws are faithfully executed refutes the idea that he is to be a
lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the President is to
execute. The first section of the first article says that ÒAll legislative Powers herein granted
shall be vested in a Congress of the United States. . .Ó[126]
Petitioner Cacho-Olivares, et al. contends that the term ÒemergencyÓ under Section 17,
Article XII refers to Òtsunami,Ó Òtyphoon,Ó ÒhurricaneÓ and Òsimilar occurrences.Ó
This is a limited view of Òemergency.Ó
Emergency, as a generic term, connotes the existence of conditions suddenly intensifying
the degree of existing danger to life or well-being beyond that which is accepted as normal.
Implicit in this definitions are the elements of intensity, variety, and perception.[127]
Emergencies, as perceived by legislature or executive in the United Sates since 1933, have been
occasioned by a wide range of situations, classifiable under three (3) principal heads: a)
economic,[128] b) natural disaster,[129] and c) national security.[130]
ÒEmergency,Ó as contemplated in our Constitution, is of the same breadth. It may include

rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of
nationwide proportions or effect.[131] This is evident in the Records of the Constitutional
Commission, thus:
MR. GASCON. Yes. What is the CommitteeÕs definition of Ònational emergencyÓ which
appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or
natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and
riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term Ònational emergency.Ó
MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.[132]
x x x x x x
MR. TINGSON. May I ask the committee if Ònational emergencyÓ refers to military national
emergency or could this be economic emergency?Ó
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.[133]
It may be argued that when there is national emergency, Congress may not be able to
convene and, therefore, unable to delegate to the President the power to take over privately-
owned public utility or business affected with public interest.
In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through which
extraordinary measures are exercised, remains in Congress even in times of crisis.
Òx x x
After all the criticisms that have been made against the efficiency of the system of the
separation of powers, the fact remains that the Constitution has set up this form of
government, with all its defects and shortcomings, in preference to the commingling of
powers in one man or group of men. The Filipino people by adopting parliamentary
government have given notice that they share the faith of other democracy-loving peoples in
this system, with all its faults, as the ideal. The point is, under this framework of
government, legislation is preserved for Congress all the time, not excepting periods of crisis
no matter how serious. Never in the history of the United States, the basic features of whose
Constitution have been copied in ours, have specific functions of the legislative branch of
enacting laws been surrendered to another department Ð unless we regard as legislating the
carrying out of a legislative policy according to prescribed standards; no, not even when that
Republic was fighting a total war, or when it was engaged in a life-and-death struggle to
preserve the Union. The truth is that under our concept of constitutional government, in
times of extreme perils more than in normal circumstances Ôthe various branches, executive,
legislative, and judicial,Õ given the ability to act, are called upon Ôto perform the duties and
discharge the responsibilities committed to them respectively.Ó
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in
issuing PP 1017, this Court rules that such Proclamation does not authorize her during the
emergency to temporarily take over or direct the operation of any privately owned public utility
or business affected with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national
emergency, however, without legislation, he has no power to take over privately-owned public
utility or business affected with public interest. The President cannot decide whether
exceptional circumstances exist warranting the take over of privately-owned public
utility or business affected with public interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the President has no power to point
out the types of businesses affected with public interest that should be taken over. In short, the
President has no absolute authority to exercise all the powers of the State under Section 17,
Article VII in the absence of an emergency powers act passed by Congress.
c. ÒAS APPLIED CHALLENGEÓ
One of the misfortunes of an emergency, particularly, that which pertains to security, is that
military necessity and the guaranteed rights of the individual are often not compatible. Our
history reveals that in the crucible of conflict, many rights are curtailed and trampled upon. Here,
the right against unreasonable search and seizure; the right against warrantless arrest; and
the freedom of speech, of expression, of the press, and of assembly under the Bill of Rights
suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate Òdirect injury.Ó
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they
were arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People
Power I. The arresting officers cited PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed
that on February 25, 2006, the CIDG operatives Òraided and ransacked without warrantÓ their
office. Three policemen were assigned to guard their office as a possible Òsource of
destabilization.Ó Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their
members were Òturned away and dispersedÓ when they went to EDSA and later, to Ayala
Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the Òdirect injuriesÓ allegedly suffered by the said petitioners shows that they
resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these
illegal acts? In general, does the illegal implementation of a law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they
may be abused and misabused[135] and may afford an opportunity for abuse in the manner
of application.[136] The validity of a statute or ordinance is to be determined from its general
purpose and its efficiency to accomplish the end desired, not from its effects in a particular
case.[137] PP 1017 is merely an invocation of the PresidentÕs calling-out power. Its general
purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion.
It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But
there is nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest,
search or violate the citizensÕ constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the validity of the
statute or ordinance is to be measured is the essential basis for the exercise of power, and not a
mere incidental result arising from its exertion.[138] This is logical. Just imagine the
absurdity of situations when laws maybe declared unconstitutional just because the officers
implementing them have acted arbitrarily. If this were so, judging from the blunders committed
by policemen in the cases passed upon by the Court, majority of the provisions of the Revised
Penal Code would have been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General
orders are Òacts and commands of the President in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines.Ó They are internal rules issued by the executive officer to his
subordinates precisely for the proper and efficient administration of law. Such rules and
regulations create no relation except between the official who issues them and the official who
receives them.[139] They are based on and are the product of, a relationship in which power is
their source, and obedience, their object.[140] For these reasons, one requirement for these rules
to be valid is that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the Ònecessary and
appropriate actions and measures to suppress and prevent acts of terrorism and lawless
violence.Ó
Unlike the term Òlawless violenceÓ which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with Òinvasion, insurrection or rebellion,Ó the
phrase Òacts of terrorismÓ is still an amorphous and vague concept. Congress has yet to enact a
law defining and punishing acts of terrorism.
In fact, this Òdefinitional predicamentÓ or the Òabsence of an agreed definition of

terrorismÓ confronts not only our country, but the international
community as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the Òfight against terrorismÓ has
become one of the basic slogans when it comes to the justification of the use of force against certain
states and against groups operating internationally. Lists of states Òsponsoring terrorismÓ and of
terrorist organizations are set up and constantly being updated according to criteria that are not
always known to the public, but are clearly determined by strategic interests.
The basic problem underlying all these military actions Ð or threats of the use of force as the
most recent by the United States against Iraq Ð consists in the absence of an agreed definition of
terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence either
by states, by armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying ÒOne countryÕs terrorist is another
countryÕs freedom fighter.Ó The apparent contradiction or lack of consistency in the use of the
term ÒterrorismÓ may further be demonstrated by the historical fact that leaders of national
liberation movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or
Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by those
who controlled the territory at the time, but later became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts Ð the differentia specifica
distinguishing those acts from eventually legitimate acts of national resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in vain to
reach a consensus on the basic issue of definition. The organization has intensified its efforts
recently, but has been unable to bridge the gap between those who associate ÒterrorismÓ with any
violent act by non-state groups against civilians, state functionaries or infrastructure or military
installations, and those who believe in the concept of the legitimate use of force when resistance
against foreign occupation or against systematic oppression of ethnic and/or religious groups within
a state is concerned.
The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation
Organization (PLO) Ð which is a terrorist group for Israel and a liberation movement for Arabs and
Muslims Ð the Kashmiri resistance groups Ð who are terrorists in the perception of India, liberation
fighters in that of Pakistan Ð the earlier Contras in Nicaragua Ð freedom fighters for the United
States, terrorists for the Socialist camp Ð or, most drastically, the Afghani Mujahedeen (later to
become the Taliban movement): during the Cold War period they were a group of freedom fighters
for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go
on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any
way Ð because of opposing political interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and evaluations of
one and the same group and its actions be explained? In our analysis, the basic reason for these
striking inconsistencies lies in the divergent interest of states. Depending on whether a state is in the
position of an occupying power or in that of a rival, or adversary, of an occupying power in a given
territory, the definition of terrorism will ÒfluctuateÓ accordingly. A state may eventually see itself
as protector of the rights of a certain ethnic group outside its territory and will therefore speak of a
Òliberation struggle,Ó not of ÒterrorismÓ when acts of violence by this group are concerned, and
vice-versa.
The United Nations Organization has been unable to reach a decision on the definition of
terrorism exactly because of these conflicting interests of sovereign states that determine in each and
every instance how a particular armed movement (i.e. a non-state actor) is labeled in regard to the
terrorists-freedom fighter dichotomy. A Òpolicy of double standardsÓ on this vital issue of
international affairs has been the unavoidable consequence.
This Òdefinitional predicamentÓ of an organization consisting of sovereign states Ð and not

of peoples, in spite of the emphasis in the Preamble to the United Nations Charter! Ð has become
even more serious in the present global power constellation: one superpower exercises the decisive
role in the Security Council, former great powers of the Cold War era as well as medium powers are
increasingly being marginalized; and the problem has become even more acute since the terrorist
attacks of 11 September 2001 I the United States.[141]
The absence of a law defining Òacts of terrorismÓ may result in abuse and oppression on
the part of the police or military. An illustration is when a group of persons are merely engaged
in a drinking spree. Yet the military or the police may consider the act as an act of terrorism and
immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on
their part. It must be remembered that an act can only be considered a crime if there is a law
defining the same as such and imposing the corresponding penalty thereon.
So far, the word ÒterrorismÓ appears only once in our criminal laws, i.e., in P.D. No. 1835
dated January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree
is entitled ÒCodifying The Various Laws on Anti-Subversion and Increasing The Penalties for
Membership in Subversive Organizations.Ó The word ÒterrorismÓ is mentioned in the
following provision: ÒThat one who conspires with any other person for the purpose of
overthrowing the Government of the Philippines x x x by force, violence, terrorism, x x x shall
be punished by reclusion temporal x x x.Ó
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define Òacts of terrorism.Ó Since there is no law defining Òacts of terrorism,Ó
it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts
constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently,
there can be indiscriminate arrest without warrants, breaking into offices and residences, taking
over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly
to the administration. All these can be effected in the name of G.O. No. 5. These acts go far
beyond the calling-out power of the President. Certainly, they violate the due process clause of
the Constitution. Thus, this Court declares that the Òacts of terrorismÓ portion of G.O. No. 5 is
unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit
acts beyond what are necessary and appropriate to suppress and prevent lawless violence, the
limitation of their authority in pursuing the Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)

The Constitution provides that Òthe right of the people to be secured in their persons,
houses, papers and effects against unreasonable search and seizure 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.Ó[142] The plain import of the
language of the Constitution is that searches, seizures and arrests are normally unreasonable
unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection given by this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.[143]
In the Brief Account[144] submitted by petitioner David, certain facts are established: first,
he was arrested without warrant; second, the PNP operatives arrested him on the basis of PP
1017; third, he was brought at Camp Karingal, Quezon City where he was fingerprinted,
photographed and booked like a criminal suspect; fourth, he was treated brusquely by policemen
who Òheld his head and tried to push himÓ inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880[145] and Inciting to Sedition; sixth, he
was detained for seven (7) hours; and seventh, he was eventually released for insufficiency of
evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner DavidÕs
warrantless arrest. During the inquest for the charges of inciting to sedition and violation of
BP 880, all that the arresting officers could invoke was their observation that some
rallyists were wearing t-shirts with the invective ÒOust Gloria NowÓ and their erroneous
assumption that petitioner David was the leader of the rally.[146] Consequently, the Inquest
Prosecutor ordered his immediate release on the ground of insufficiency of evidence. He noted
that petitioner David was not wearing the subject t-shirt and even if he was wearing it, such fact
is insufficient to charge him with inciting to sedition. Further, he also stated that there is
insufficient evidence for the charge of violation of BP 880 as it was not even known whether
petitioner David was the leader of the rally.[147]
But what made it doubly worse for petitioners David et al. is that not only was their right
against warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances.
ÒAssemblyÓ means a right on the part of the citizens to meet peaceably for consultation in
respect to public affairs. It is a necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of expression, this right is not to be
limited, much less denied, except on a showing of a clear and present danger of a substantive
evil that Congress has a right to prevent. In other words, like other rights embraced in the
freedom of expression, the right to assemble is not subject to previous restraint or censorship. It
may not be conditioned upon the prior issuance of a permit or authorization from the government
authorities except, of course, if the assembly is intended to be held in a public place, a permit for
the use of such place, and not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were
exercising their right to peaceful assembly. They were not committing any crime, neither was
there a showing of a clear and present danger that warranted the limitation of that right. As can
be gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were
mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the
arresting officersÕ conduct. In De Jonge v. Oregon,[148] it was held that peaceable assembly
cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings
for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings
cannot be branded as criminals on that score. The question, if the rights of free speech and peaceful
assembly are not to be preserved, is not as to the auspices under which the meeting was held but as
to its purpose; not as to the relations of the speakers, but whether their utterances transcend the
bounds of the freedom of speech which the Constitution protects. If the persons assembling have
committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public
peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it
is a different matter when the State, instead of prosecuting them for such offenses, seizes upon
mere participation in a peaceable assembly and a lawful public discussion as the basis for a
criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and arrest
of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was
done merely on the basis of Malaca–angÕs directive canceling all permits previously issued by
local government units. This is arbitrary. The wholesale cancellation of all permits to rally is a
blatant disregard of the principle that Òfreedom of assembly is not to be limited, much less
denied, except on a showing of a clear and present danger of a substantive evil that the State
has a right to prevent.Ó[149] Tolerance is the rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and present danger that the State may deny the
citizensÕ right to exercise it. Indeed, respondents failed to show or convince the Court that the
rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket
revocation of permits, the distinction between protected and unprotected assemblies was
eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the
local government units. They have the power to issue permits and to revoke such permits after
due notice and hearing on the determination of the presence of clear and present danger. Here,
petitioners were not even notified and heard on the revocation of their permits.[150] The first
time they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect.
When a personÕs right is restricted by government action, it behooves a democratic government
to see to it that the restriction is fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e.,
the freedom of the press. PetitionersÕ narration of facts, which the Solicitor General failed to
refute, established the following: first, the Daily TribuneÕs offices were searched without
warrant; second, the police operatives seized several materials for publication; third, the search
was conducted at about 1:00 oÕ clock in the morning of February 25, 2006; fourth, the search
was conducted in the absence of any official of the Daily Tribune except the security guard of the
building; and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of Staff
Michael Defensor was quoted as saying that such raid was Òmeant to show a Ôstrong
presence,Õ to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government.Ó Director General Lomibao further stated that Òif they do
not follow the standards Ðand the standards are if they would contribute to instability in
the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No.
1017 Ð we will recommend a Ôtakeover.ÕÓ National Telecommunications Commissioner
Ronald Solis urged television and radio networks to ÒcooperateÓ with the government for the
duration of the state of national emergency. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for media coverage
during times when the national security is threatened.[151]
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the
steps in the conduct of search and seizure. Section 4 requires that a search warrant be issued
upon probable cause in connection with one specific offence to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other premise be made in
the presence of the lawful occupant thereof or any member of his family or in the absence of
the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the
same locality. And Section 9 states that the warrant must direct that it be served in the daytime,
unless the property is on the person or in the place ordered to be searched, in which case a
direction may be inserted that it be served at any time of the day or night. All these rules were
violated by the CIDG operatives.
Not only that, the search violated petitionersÕ freedom of the press. The best gauge of a
free and democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v.
Chief of Staff[152] this Court held that --
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We ForumÓ newspapers. As a consequence of the search and seizure,
these premises were padlocked and sealed, with the further result that the printing and
publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the

freedom of the press guaranteed under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state of being is patently anathematic
to a democratic framework where a free, alert and even militant press is essential for the
political enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the ÒMetropolitan
MailÓ and ÒWe ForumÓ newspapers in the above case, yet it cannot be denied that the CIDG
operatives exceeded their enforcement duties. The search and seizure of materials for
publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the
arrogant warning of government officials to media, are plain censorship. It is that officious
functionary of the repressive government who tells the citizen that he may speak only if allowed
to do so, and no more and no less than what he is permitted to say on pain of punishment should
he be so rash as to disobey.[153] Undoubtedly, the The Daily Tribune was subjected to these
arbitrary intrusions because of its anti-government sentiments. This Court cannot tolerate the
blatant disregard of a constitutional right even if it involves the most defiant of our citizens.
Freedom to comment on public affairs is essential to the vitality of a representative democracy. It
is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any
stealthy encroachments thereon. The motto should always be obsta principiis.[154]
Incidentally, during the oral arguments, the Solicitor General admitted that the search of
the TribuneÕs offices and the seizure of its materials for publication and other papers are illegal;
and that the same are inadmissible Òfor any purpose,Ó thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen,
when inspected the Tribune for the purpose of gathering evidence and you
admitted that the policemen were able to get the clippings. Is that not in
admission of the admissibility of these clippings that were taken from the
Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and
I know, Your Honor, and these are inadmissible for any purpose.[155]
xxx xxx xxx

SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you
have to do is to get those past issues. So why do you have to go there at 1
oÕclock in the morning and without any search warrant? Did they become
suddenly part of the evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
Are you saying that the act of the policeman is illegal, it is not based on any
law, and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in

1017 which says that the police could go and inspect and gather clippings
from Daily Tribune or any other newspaper.
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I donÕt know if it is
premature to say this, we do not condone this. If the people who have been
injured by this would want to sue them, they can sue and there are
remedies for this.[156]
Likewise, the warrantless arrests and seizures executed by the police were, according to the
Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:
I donÕt know whether this will clarify. The acts, the supposed illegal or
unlawful acts committed on the occasion of 1017, as I said, it cannot be condoned.
You cannot blame the President for, as you said, a misapplication of the law. These
are acts of the police officers, that is their responsibility.[157]
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every
aspect and Òshould result in no constitutional or statutory breaches if applied according to their
letter.Ó
The Court has passed upon the constitutionality of these issuances. Its ratiocination has
been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the
calling out by the President of the military to prevent or suppress lawless violence, invasion or
rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the
police committed acts which violate the citizensÕ rights under the Constitution, this Court has to
declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. PanganibanÕs concurring opinion, attached

hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 Ð a supervening event Ð
would have normally rendered this case moot and academic. However, while PP 1017 was still
operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no
guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been
media reports on April 30, 2006 that allegedly PP 1017 would be reimposed Òif the May 1
ralliesÓ become Òunruly and violent.Ó Consequently, the transcendental issues raised by the
parties should not be Òevaded;Ó they must now be resolved to prevent future constitutional
aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by
the President for the AFP to prevent or suppress lawless violence. The proclamation is sustained
by Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier.
However, PP 1017Õs extraneous provisions giving the President express or implied power (1) to
issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to
lawless violence as well as decrees promulgated by the President; and (3) to impose standards on
media or any form of prior restraint on the press, are ultra vires and unconstitutional. The Court
also rules that under Section 17, Article XII of the Constitution, the President, in the absence of a
legislation, cannot take over privately-owned public utility and private business affected with
public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President Ð
acting as Commander-in-Chief Ð addressed to subalterns in the AFP to carry out the provisions
of PP 1017. Significantly, it also provides a valid standard Ð that the military and the police
should take only the Ònecessary and appropriate actions and measures to suppress and
prevent acts of lawless violence.Ó But the words Òacts of terrorismÓ found in G.O. No. 5
have not been legally defined and made punishable by Congress and should thus be deemed
deleted from the said G.O. While ÒterrorismÓ has been denounced generally in media, no law
has been enacted to guide the military, and eventually the courts, to determine the limits of the
AFPÕs authority in carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear
that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the
dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the
imposition of standards on media or any prior restraint on the press; and (4) the warrantless
search of the Tribune offices and the whimsical seizures of some articles for publication and
other materials, are not authorized by the Constitution, the law and jurisprudence. Not even by
the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of action
and/or relevant criminal Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil, criminal or
administrative liabilities.
It is well to remember that military power is a means to an end and substantive civil
rights are ends in themselves. How to give the military the power it needs to protect the
Republic without unnecessarily trampling individual rights is one of the eternal balancing
tasks of a democratic state. During emergency, governmental action may vary in breadth and
intensity from normal times, yet they should not be arbitrary as to unduly restrain our peopleÕs
liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority to cope
with crises without surrendering the two vital principles of constitutionalism: the maintenance
of legal limits to arbitrary power, and political responsibility of the government to the
governed.[158]
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is
CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-Arroyo on
the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017
commanding the AFP to enforce laws not related to lawless violence, as well as decrees
promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision
in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is
CONSTITUTIONAL, but such declaration does not authorize the President to take over
privately-owned public utility or business affected with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the
PNP should implement PP 1017, i.e. whatever is Ònecessary and appropriate actions and
measures to suppress and prevent acts of lawless violence.Ó Considering that Òacts of
terrorismÓ have not yet been defined and made punishable by the Legislature, such portion of
G.O. No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of
proof that these petitioners were committing acts constituting lawless violence, invasion or
rebellion and violating BP 880; the imposition of standards on media or any form of prior
restraint on the press, as well as the warrantless search of the Tribune offices and whimsical
seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
(On leave)
REYNATO S. PUNO LEONARDO A. QUISUMBING
Associate Justice Associate Justice
CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

ADOLFO S. AZCUNA DANTE O. TINGA

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

PRESBITERO J. VELASCO, JR.

Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, 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.
ARTEMIO V. PANGANIBAN
Chief Justice
* On leave.
[1] Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. Clark Ð Lecturer, Volume XIX, 1971, p. 29.
[2] Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006.
[3] Articulated in the writings of the Greek philosopher, Heraclitus of Ephesus, 540-480 B.C., who propounded universal impermanence and
that all things, notably opposites are interrelated.
[4] RespondentsÕ Comment dated March 6, 2006.
[5] Ibid.
[6] Ibid.
[7] Minutes of the Intelligence Report and Security Group, Philippine Army, Annex ÒIÓ of RespondentsÕ Consolidated Comment.
[8] RespondentsÕ Consolidated Comment.
[9] Ibid.
[10] Ibid.
[11] Petition in G.R. No. 171396, p. 5.
[12] Police action in various parts of Metro Manila and the reactions of the huge crowds being dispersed were broadcast as Òbreaking
newsÓ by the major television stations of this country.

[14] Ibid.
[15] The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the State
and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal military or civil service.
[16] 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.
[17] 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.
[18] No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble
and petition the Government for redress of grievances.
[19] (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to
declare the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to
such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.
[20] In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public
interest.
[21] 1 Cranch 137 [1803].
[22] Howard L. MacBain, ÒSome Aspects of Judicial Review,Ó Bacon Lectures on the Constitution of the United States (Boston: Boston
University Heffernan Press, 1939), pp. 376-77.
[23] The Court has no self-starting capacity and must await the action of some litigant so aggrieved as to have a justiciable case. (Shapiro
and Tresolini, American Constitutional Law, Sixth Edition, 1983, p. 79).
[24] Cruz, Philippine Political Law, 2002 Ed., p. 259.
[25] Ibid.
[26] Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.
[27] Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March 10, 2004, 425 SCRA 129; Vda. De Dabao v. Court
of Appeals, G.R. No. 1165, March 23, 2004, 426 SCRA 91; and Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415
SCRA 590.
[28] Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421 SCRA 21; Vda. De Dabao v. Court
of Appeals, supra.
[29] Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.
[30] Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby, 118 U.S. 425.
[31] Province of Batangas v. Romulo, supra.
[32] Lacson v. Perez, supra.
[33] Province of Batangas v. Romulo, supra.
[34] Alba–a v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855, July 2,
2002, 383 SCRA 577, Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656.
[35] Salonga v. Cruz Pa–o, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.
[36] G.R. No. 159085, February 3, 2004, 421 SCRA 656.
[37] BlackÕs Law Dictionary, 6th Ed. 1991, p. 941.
[38] Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).
[39] 275 Ky 91, 120 SW2d 765 (1938).
[40] 19 Wend. 56 (1837).
[41] 232 NC 48, 59 SE2d 359 (1950).
[42] 302 U.S. 633.
[43] 318 U.S. 446.
[44] 65 Phil. 56 (1937).
[45] G.R. No. 117, November 7, 1945 (Unreported).
[46] G.R. No. 2947, January 11, 1959 (Unreported).
[47] 110 Phil. 331 (1960).
[48] 77 Phil. 1012 (1947).
[49] 84 Phil. 368 (1949) The Court held: ÒAbove all, 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.Ó
[50] L-No. 40004, January 31, 1975, 62 SCRA 275.
[51] Ta–ada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held that where the question is one of public
duty and the enforcement of a public right, the people are the real party in interest, and it is sufficient that the petitioner is a citizen
interested in the execution of the law;
Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, where the Court held that in cases involving
an assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen and part of the
general public which possesses the right.
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988, 163 SCRA 371, where the
Court held that objections to taxpayersÕ lack of personality to sue may be disregarded in determining the validity of the VAT law;
Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held that while no expenditure of public funds was
involved under the questioned contract, nonetheless considering its important role in the economic development of the country and the
magnitude of the financial consideration involved, public interest was definitely involved and this clothed petitioner with the legal
personality under the disclosure provision of the Constitution to question it.
Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA
343, where the Court ruled that while petitioners are strictly speaking, not covered by the definition of a Òproper party,Ó nonetheless, it
has the discretion to waive the requirement, in determining the validity of the implementation of the CARP.
Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where the Court held that it enjoys the open
discretion to entertain taxpayerÕs suit or not and that a member of the Senate has the requisite personality to bring a suit where a
constitutional issue is raised.
Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court held that petitioner as a taxpayer, has the
personality to file the instant petition, as the issues involved, pertains to illegal expenditure of public money;
Osme–a v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750, where the Court held that where
serious constitutional questions are involved, the Òtranscendental importanceÓ to the public of the cases involved demands that they be
settled promptly and definitely, brushing aside technicalities of procedures;
De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held that the importance of the issues involved
concerning as it does the political exercise of qualified voters affected by the apportionment, necessitates the brushing aside of the
procedural requirement of locus standi.
[52] G.R. No. 133250, July 9, 2002, 384 SCRA 152.
[53] G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449.
[54] G.R. No. 151445, April 11, 2002, 380 SCRA 739.
[55] Supra.
[56] G.R. No. 118910, November 16, 1995, 250 SCRA 130.
[57] G.R. No. 132922, April 21, 1998, 289 SCRA 337.
[58] G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.
[59] G.R. No. 159085, February 3, 2004, 421 SCRA 656.
[60] 235 SCRA 506 (1994).
[61] Supra.
[62] Supra.
[63] 197 SCRA 52, 60 (1991).
[64] Supra.
[65] See NAACP v. Alabama, 357 U.S. 449 (1958).
[66] G.R. No. 141284, August 15, 2000, 338 SCRA 81.
[67] From the deliberations of the Constitutional Commission, the intent of the framers is clear that the immunity of the President from suit
is concurrent only with his tenure and not his term. (De Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302).
[68] Section 1, Article XI of the Constitution provides: Public Office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead
modest lives.
[69] Ibid., Sec. 2.
[70] No. 2908, September 30, 2005, 471 SCRA 87.

[71] 91 Phil. 882 (1952).
[72] No. L-33964, December 11, 1971, 42 SCRA 448.
[73] No. L-35546, September 17, 1974, 59 SCRA 183.
[74] No. L-61388, April 20, 1983, 121 SCRA 472.
[75] Ta–ada v. Cuenco, 103 Phil. 1051 (1957).
[76] Lansang v. Garcia, supra, pp. 473 and 481.
[77] Supra.
[78] ÒFive Justices Ð Antonio, Makasiar, Esguerra, Fernandez, and Aquino Ð took the position that the proclamation of martial law and the
arrest and detention orders accompanying the proclamation posed a Òpolitical questionÓ beyond the jurisdiction of the Court. Justice
Antonio, in a separate opinion concurred in by Makasiar, Fernandez, and Aquino, argued that the Constitution had deliberately set up a
strong presidency and had concentrated powers in times of emergency in the hands of the President and had given him broad authority
and discretion which the Court was bound to respect. He made reference to the decision in Lansang v. Garcia but read it as in effect
upholding the Òpolitical questionÓ position. Fernandez, in a separate opinion, also argued Lansang, even understood as giving a narrow
scope of review authority to the Court, affirmed the impossible task of ÔcheckingÕ the action taken by the President. Hence, he
advocated a return to Barcelon v. Baker. Similarly, Esguerra advocated the abandonment of Lansang and a return to Barcelon. And,
although Justices Castro, Fernando, Mu–oz- Palma, and, implicitly, Teehankee, lined up on the side of justiciability as enunciated in
Lansang, x x x Barredo, however, wanted to have the best of both worlds and opted for the view that Òpolitical questions are not per se
beyond the CourtÕs jurisdiction ... but that as a matter of policy implicit in the Constitution itself the Court should abstain from
interfering with the ExecutiveÕs Proclamation.Ó (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996
Edition, p. 794.)
[79] See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamora, supra.
[80] Supra.
[81] Cruz, Philippine Political Law, 2002 Ed., p. 247.
[82] Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.
[83] Supra, 481-482.
[84] Smith and Cotter, Powers of the President during Crises, 1972, p. 6.
[85] Ibid.
[86] The Social Contract (New York: Dutton, 1950), pp. 123-124.
[87] Smith and Cotter, Powers of the President during Crises, 1972, pp. 6-7.
[88] Representative Government, New York, Dutton, 1950, pp. 274, 277-78.
[89] The Discourses, Bk. 1, Ch. XXXIV.
[90] Smith and Cotter, Powers of the President During Crises, 1972. p. 8.
[91] Ibid.
[92] See The Problem of Constitutional Dictatorship, p. 328.
[93] Ibid., p. 353.
[94] Ibid., pp. 338-341.
[95] Smith and Cotter, Powers of the President During Crises, 1972, p. 9.
[96] Constitutional Government and Democracy, Ch. XXVI, rev. ed., Boston: Ginn & Co., 1949, p. 580.
[97] Ibid, pp. 574-584.
[99] Rossiter, Constitutional Dictatorship, Princeton: Princeton University Press, 1948, pp. 298-306.
[102] Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952), See Concurring Opinion J. Jackson.
[103] See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001, 369 SCRA 393.
[104] 481 U.S. 739, 95 L. Ed. 2d 697 (1987).

[105] Supra.
[106] See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, supra.
[107] Broadrick v. Oklahoma, 413 U.S. 601 (1973).
[108] Ibid.
[109] 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees, State
Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388 (1989).
[110] Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-24693, July 31, 1967, 20 SCRA 849 (1967).
[111] G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this Court sustained President ArroyoÕs declaration of a Òstate of
rebellionÓ pursuant to her calling-out power.
[112] Supra.
[113] Westel Willoughby, Constitutional Law of the United States 1591 [2d Ed. 1929, quoted in Aquino v. Ponce Enrile, 59 SCRA 183
(1974), (Fernando, J., concurring)].
[114] Retired Associate Justice of the Supreme Court.
[115] Section 1, Article VII of the Constitution.
[118] Section 6, Article XVI of the Constitution.
[119] See Republic Act No. 6975.
[120] Ironically, even the 7th Whereas Clause of PP 1017 which states that ÒArticle 2, Section 4 of our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of GovernmentÓ replicates more closely Section 2, Article 2
of the 1973 Constitution than Section 4, Article 2 of the 1987 Constitution which provides that, Ò[t[he prime duty of the Government is
to serve and protect the people.Ó
[121] Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of Finance, 115 SCRA 418 (1982); Garcia-
Padilla v. Ponce-Enrile, supra. Aquino v. Commission on Election, supra.
[122] Section 17, Article XIV of the 1973 Constitution reads: ÒIn times of national emergency when the public interest so requires, the
State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest.Ó
[123] Antieau, Constitutional Construction, 1982, p.21.
[124] Cruz, Philippine Political Law, 1998, p. 94.
[125] 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).
[126] Tresolini, American Constitutional Law, 1959, Power of the President, pp. 255-257.
[127] Smith and Cotter, Powers of the President During Crises, 1972, p. 14
[128] The Federal Emergency Relief Act of 1933 opened with a declaration that the economic depression created a serious emergency, due to wide-
spread unemployment and the inadequacy of State and local relief funds, . . . making it imperative that the Federal Government cooperate more
effectively with the several States and Territories and the District of Columbia in furnishing relief to their needy and distressed people. President
Roosevelt in declaring a bank holiday a few days after taking office in 1933 proclaimed that Òheavy and unwarranted withdrawals of gold and
currency from É banking institutions for the purpose of hoarding; ... resulting in Òsever drains on the NationÕs stocks of gold É have created a
national emergency,Ó requiring his action. Enacted within months after JapanÕs attack on Pearl Harbor, the Emergency Price Control Act of 1942
was designed to prevent economic dislocations from endangering the national defense and security and the effective prosecution of the war. (Smith
and Cotter, Powers of the President During Crises, 1972, p.18)
[129] The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet the emergency and necessity for relief in stricken agricultural areas
and in another section referred to Òthe present drought emergency.Ó[129] The India Emergency Food Aid Act of 1951 provided for emergency
shipments of food to India to meet famine conditions then ravaging the great Asian sub-continent. The Communication Act of 1934 and its 1951
amendment grant the President certain powers in time of Òpublic peril or disaster.Ó The other statutes provide for existing or anticipated
emergencies attributable to earthquake, flood, tornado, cyclone, hurricane, conflagration an landslides.[129] There is also a Joint Resolution of April
1937. It made Òfunds available for the control of incipient or emergency outbreaks of insect pests or plant diseases, including grasshoppers, Mormon
crickets, and chinch bugs. (66 Stat 315, July 1, 1952, Sec. 2 [a]) Supra.
[130] National Security may be cataloged under the heads of (1) Neutrality, (2) Defense, (3) Civil Defense, and (4) Hostilities or War. (p. 22) The
Federal Civil Defense Act of 1950 contemplated an attack or series of attacks by an enemy of the United States which conceivably would cause
substantial damage or injury to civilian property or persons in the United States by any one of several means; sabotage, the use of bombs, shellfire, or
atomic, radiological, chemical, bacteriological means or other weapons or processes. Such an occurrence would cause a ÒNational Emergency for
Civil Defense Purposes,Ó or Òa state of civil defense emergency,Ó during the term which the Civil Defense Administrator would have recourse to
extraordinary powers outlined in the Act. The New York-New Jersey Civil Defense Compact supplies an illustration in this context for emergency
cooperation. ÒEmergencyÓ as used in this compact shall mean and include invasion, or other hostile action, disaster, insurrection or imminent
danger thereof. ( Id., p.15-16)
[131] Cruz, Philippine Political Law, 1998, p. 95.

[132] Record of the Constitutional Commission, Vol. III, pp. 266-267.
[133] Record of the Constitutional Convention, pp. 648-649.
[134] 84 Phil. 368 (1949).
[135] Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.
[136] Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR 1261, cert den 280 US 610, 74 L ed 653, 50 S Ct
158.
[137] Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 211 NY 309, 105 NE 548.
[138] Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370.
[139] De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 115.
[140] Ibid.
[141] In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary Lecture Series, Hans Koechler, Professor of
Philosophy at the University of Innsbruck (Austria) and President of the International Progress Organization, speaking on ÒThe United
Nations, The International Rule of Law and TerrorismÓ cited in the Dissenting Opinion of Justice Kapunan in Lim v. Executive
Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739.
[142] Section 2, Article III of the 1987 Constitution.
[143] Bernas, The 1987 Constitution of the Republic of the Philippines, A Reviewer-Primer, p. 51.
[144] Annex ÒAÓ of the Memorandum in G.R. No. 171396, pp. 271-273.
[145] An Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble and Petition the Government for Other
Purposes.
[146] Annex ÒAÓ of the Memorandum in G.R. No. 171396, pp. 271-273.
[147] Ibid.
[148] 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.

[149] Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553.
[150] Section 5. Application requirements - All applications for a permit shall comply with the following guidelines:
x x x x x x
(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the applicant who must be heard on the matter.

[152] No. L-64161, December 26, 1984, 133 SCRA 816.
[153] Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections, G.R. Nos. 102653, 102925 & 102983, March 5, 1992,
207 SCRA 1.
[154] Boyd v. United States, 116 U.S. 616 (1886).
[155] Transcript of Stenographic Notes, Oral Arguments, March 7, 2006, p. 470.

[156] Ibid., pp. 432-433.
[157] Ibid, pp. 507-508.
[158] Smith and Cotter, Powers of the President During Crisis, 1972, p. 146.
FIRST DIVISION
[G.R. No. 115381. December 23, 1994.]
KILUSANG MAYO UNO LABOR CENTER , petitioner, vs. HON. JESUS B.

GARCIA, JR., the LAND TRANSPORTATION FRANCHISING AND
REGULATORY BOARD, and the PROVINCIAL BUSES OPERATORS
ASSOCIATION OF THE PHILIPPINES , respondents.
DECISION
KAPUNAN , J : p
Public utilities are privately owned and operated businesses whose service are
essential to the general public. They are enterprises which specially cater to the needs
of the public and conduce to their comfort and convenience. As such, public utility
services are impressed with public interest and concern. The same is true with respect
to the business of common carrier which holds such a peculiar relation to the public
interest that there is superinduced upon it the right of public regulation when private
properties are affected with public interest, hence, they cease to be juris privati only.
When, therefore, one devotes his property to a use in which the public has an interest,
he, in effect grants to the public an interest in that use, and must submit to the control
by the public for the common good, to the extent of the interest he has thus created. 1
An abdication of the licensing and regulatory government agencies of their
functions as the instant petition seeks to show, is indeed lamentable. Not only is it an
unsound administrative policy but it is inimical to public trust and public interest as
well.
The instant petition for certiorari assails the constitutionality and validity of
certain memoranda, circulars and/or orders of the Department of Transportation and
Communications (DOTC) and the Land Transportation Franchising and Regulatory
Board LTFRB) 2 which, among others, (a) authorize provincial bus and jeepney
operators to increase or decrease the prescribed transportation fares without
application therefor with the LTFRB and without hearing and approval thereof by said
agency in violation of Sec. 16(c) of Commonwealth Act No. 146, as amended, otherwise
known as the Public Service Act, and in derogation of LTFRB's duty to x and determine
just and reasonable fares by delegating that function to bus operators, and (b)
establish a presumption of public need in favor of applicants for certi cates of public
convenience (CPC) and place on the oppositor the burden of proving that there is no
need for the proposed service, in patent violation not only of Sec. 16(c) of CA 146, as
amended, but also of Sec. 20(a) of the same Act mandating that fares should be "just
and reasonable." It is, likewise, violative of the Rules of Court which places upon each
party the burden to prove his own af rmative allegations. 3 The offending provisions
contained in the questioned issuances pointed out by petitioner, have resulted in the
introduction into our highways and thoroughfares thousands of old and smoke-
belching buses, many of which are right-hand driven, and have exposed our consumers
to the burden of spiraling costs of public transportation without hearing and due
process. cdrep
The following memoranda, circulars and/or orders are sought to be nulli ed by

the instant petition, viz: (a) DOTC Memorandum Order 90-395, dated June 26, 1990
relative to the implementation of a fare range scheme for provincial bus services in the
country; (b) DOTC Department Order No. 92-587, dated March 30, 1992, de ning the
policy framework on the regulation of transport services; (c) DOTC Memorandum
dated October 8, 1992, laying down rules and procedures to implement Department
Order No. 92-587; (d) LTFRB Memorandum Circular No. 92-009, providing
implementing guidelines on the DOTC Department Order No. 92-587; and (e) LTFRB
Order dated March 24, 1994 in Case No. 94-3112.
The relevant antecedents are as follows:
On June 26, 1990, then Secretary of DOTC, Oscar M. Orbos, issued Memorandum
Circular No. 90-395 to then LTFRB Chairman, Remedios A.S. Fernando allowing
provincial bus operators to charge passengers rates within a range of 15% above and
15% below the LTFRB of cial rate for a period of one (1) year. The text of the
memorandum order reads in full:
One of the policy reforms and measures that is in line with the thrusts and the
priorities set out in the Medium-Term Philippine Development Plan (MTPDP) 1987
— 1992) is the liberalization of regulations in the transport sector. Along this line,
the Government intends to move away gradually from regulatory policies and
make progress towards greater reliance on free market forces.
Based on several surveys and observations, bus companies are already charging
passenger rates above and below the of cial fare declared by LTFRB on many
provincial routes. It is in this context that some form of liberalization on public
transport fares is to be tested on a pilot basis.
In view thereof, the LTFRB is hereby directed to immediately publicize a fare range
scheme for all provincial bus routes in country (except those operating within
Metro Manila). Transport operators shall be allowed to charge passengers within
a range of fifteen percent (15%) above and fifteen percent (15%) below the LTFRB
official rate for a period of one year.
Guidelines and procedures for the said scheme shall be prepared by LTFRB in
coordination with the DOTC Planning Service.
The implementation of the said fare range scheme shall start on 6 August 1990.
For compliance. (Emphasis ours.)
Finding the implementation of the fare range scheme "not legally feasible,"
Remedios A.S. Fernando submitted the following memorandum to Oscar M. Orbos on
July 24, 1990, to wit:
With reference to DOTC Memorandum Order No. 90-395 dated 26 June
1990 which the LTFRB received on 19 July 1990, directing the Board "to
immediately publicize a fare range scheme for all provincial bus routes in the
country (except those operating within Metro Manila)" that will allow operators "to
charge passengers within a range of fteen percent (15%) above and fteen
percent (15%) below the LTFRB of cial rate for a period of one year" the
undersigned is respectfully adverting the Secretary's attention to the following for
his consideration:
1. Section 16 (c) of the Public Service Act prescribes the
following for the xing and determination of rates -- (a) the rates to be
approved should be proposed by public service operators; (b) there should
be a publication and notice to concerned or affected parties in the territory
affected; (c) a public hearing should be held for the xing of the rates;
hence, implementation of the proposed fare range scheme on August 6
without complying with the requirements of the Public Service Act may not
be legally feasible.
2. To allow bus operators in the country to charge fares fteen
(15%) above the present LTFRB fares in the wake of the devastation, death
and suffering caused by the July 16 earthquake will not be socially
warranted and will be politically unsound; most likely public criticism
against the DOTC and the LTFRB will be triggered by the untimely motu
propio implementation of the proposal by the mere expedient of
publicizing the fare range scheme without calling a public hearing, which
scheme many as early as during the Secretary's predecessor know through
newspaper reports and columnists' comments to be Asian Development
Bank and World Bank inspired.
3. More than inducing a reduction in bus fares by fteen
percent (15%) the implementation of the proposal will instead trigger an
upward adjustment in bus fares by fteen percent (15%) at a time when
hundreds of thousands of people in Central and Northern Luzon,
particularly in Central Pangasinan, La Union, Baguio City, Nueva Ecija, and
the Cagayan Valley are suffering from the devastation and havoc caused
by the recent earthquake.
4. In lieu of the said proposal, the DOTC with its agencies
involved in public transportation can consider measures and reforms in the
industry that will be socially uplifting, especially for the people in the areas
devastated by the recent earthquake.
In view of the foregoing considerations, the undersigned respectfully
suggests that the implementation of the proposed fare range scheme this year be
further studied and evaluated.
On December 5, 1990, private respondent Provincial Bus Operators Association
of the Philippines, Inc. (PBOAP) led an application for fare rate increase. An across-
the-board increase of eight and a half centavos (P0.085) per kilometer for all types of
provincial buses with a minimum-maximum fare range of fifteen (15%) percent over and
below the proposed basic per kilometer fare rate, with the said minimum-maximum
fare range applying only to ordinary, rst class and premium class buses and a fty-
centavo (P0.50) minimum per kilometer fare for aircon buses, was sought.
On December 6, 1990, private respondent PBOAP reduced its applied proposed
fare to an across-the-board increase of six and a half (P0.065) centavos per kilometer
for ordinary buses. The decrease was due to the drop in the expected price of diesel. llcd
The application was opposed by the Philippine Consumers Foundation, Inc. and
Perla C. Bautista alleging that the proposed rates were exorbitant and unreasonable
and that the application contained no allegation on the rate of return of the proposed
increase in rates.
On December 14, 1990, public respondent LTFRB rendered a decision granting
the fare rate increase in accordance with the following schedule of fares on a straight
computation method, viz:
AUTHORIZED FARES
LUZON
MIN. OF 5 KMS. SUCCEEDING KM.
REGULAR P1.50 P0.37
STUDENT P1.15 P0.28
VISAYAS/MINDANAO
REGULAR P1.60 P0.375
STUDENT P1.20 P0.285
FIRST CLASS (PER KM.)
LUZON P0.385
VISAYAS/MINDANAO P0.395
PREMIERE CLASS (PER KM.)
LUZON P0.395
VISAYAS/ MINDANAO P0.405
AIRCON (PER KM.) P0.415.4
On March 30, 1992, then Secretary of the Department of Transportation
and Communications Pete Nicomedes Prado issued Department Order No.
92-587 de ning the policy framework on the regulation of transport services.
The full text of the said order is reproduced below in view of the importance
of the provisions contained therein:
WHEREAS, Executive Order No. 125 as amended, designates the

Department of Transportation and Communications (DOTC) as the
primary policy, planning, regulating and implementing agency on
transportation;
WHEREAS, to achieve the objective of a viable, ef cient, and
dependable transportation system, the transportation regulatory
agencies under or attached to the DOTC have to harmonize their
decisions and adopt a common philosophy and direction;
WHEREAS, the government proposes to build on the successful
liberalization measures pursued over the last ve years and bring the
transport sector nearer to a balanced longer term regulatory framework;
NOW, THEREFORE, pursuant to the powers granted by laws to the
DOTC, the following policies and principles in the economic regulation
of land, air, and water transportation services are hereby adopted:
1. Entry into and exit out of the industry. Following the
Constitutional dictum against monopoly, no franchise holder shall be
permitted to maintain a monopoly on any route. A minimum of two
franchise holders shall be permitted to operate on any route.
The requirements to grant a certi cate to operate, or certi cate of
public convenience, shall be: proof of Filipino citizenship, nancial
capability, public need, and suf cient insurance cover to protect the
riding public.
In determining public need, the presumption of need for a service
shall be deemed in favor of the applicant. The burden of proving that
there is no need for a proposed service shall be with the oppositor(s).
In the interest of providing ef cient public transport services, the
use of the 'prior operator' and the 'priority of ling' rules shall be
discontinued. The route measured capacity test or other similar tests of
demand for vehicle/vessel eet on any route shall be used only as a
guide in weighing the merits of each franchise application and not as a
limit to the services offered .
Where there are limitations in facilities, such as congested road
space in urban areas, or at airports and ports, the use of demand
management measures in conformity with market principles may be
considered.
The right of an operator to leave the industry is recognized as a
business decision, subject only to the ling of appropriate notice and
following a phase-out period, to inform the public and to minimize
disruption of services.
2. Rate and Fare Setting. Freight rates shall be freed gradually
from government controls. Passenger fares shall also be deregulated,
except for the lowest class of passenger service (normally third class
passenger transport) for which the government will x indicative or
reference fares. Operators of particular services may x their own fares
within a range 15% above and below the indicative or reference rate .
Where there is lack of effective competition for services, or on
speci c routes, or for the transport of particular commodities,
maximum mandatory freight rates or passenger fares shall be set
temporarily by the government pending actions to increase the level of
competition.
For unserved or single operator routes, the government shall
contract such services in the most advantageous terms to the public
and the government, following public bids for the services. The
advisability of bidding out the services or using other kinds of
incentives on such routes shall be studied by the government.
3. Special Incentives and Financing for Fleet Acquisition. As a
matter of policy, the government shall not engage in special nancing
and incentive programs, including direct subsidies for eet acquisition
and expansion. Only when the market situation warrants government
intervention shall programs of this type be considered. Existing
programs shall be phased out gradually.
The Land Transportation Franchising and Regulatory Board, the
Civil Aeronautics Board, the Maritime Industry Authority are hereby
directed to submit to the of ce of the Secretary, within forty- ve (45)
days of this Order, the detailed rules and procedures for the
Implementation of the policies herein set forth. In the formulation of
such rules, the concerned agencies shall be guided by the most recent
studies on the subjects, such as the Provincial Road Passenger
Transport Study, the Civil Aviation Master Plan, the Presidential Task
Force on the Inter-island Shipping Industry, and the Inter-island Liner
Shipping Rate Rationalization Study.
For the compliance of all concerned. (Emphasis ours)
On October 8, 1992, public respondent Secretary of the Department of
Transportation and Communications Jesus B. Garcia, Jr. issued a
memorandum to the Acting Chairman of the LTFRB suggesting swift action
on the adoption of rules and procedures to implement above-quoted
Department Order No. 92-587 that laid down deregulation and other
liberalization policies for the transport sector. Attached to the said
memorandum was a revised draft of the required rules and procedures
covering (i) Entry Into and Exit Out of the Industry and (ii) Rate and Fare
Setting, with comments and suggestions from the World Bank incorporated
therein. Likewise, resplendant from the said memorandum is the statement
of the DOTC Secretary that the adoption of the rules and procedures is a pre-
requisite to the approval of the Economic Integration Loan from the World
Bank. 5
On February 17, 1993, the LTFRB issued Memorandum Circular No. 92-
009 promulgating the guidelines for the implementation of DOTC Department
Order No. 92-587. The Circular provides, among others, the following
challenged portions:
xxx xxx xxx
IV. Policy Guidelines on the Issuance of Certi cate of Public
Convenience:
The issuance of a Certi cate of Public Convenience is determined
by public need. The presumption of public need for a service shall be
deemed in favor of the applicant, while burden of proving that there is
no need for the proposed service shall be the oppositor's .
xxx xxx xxx
V. Rate and Fare Setting
The control in pricing shall be liberalized to introduce price competition
complementary with the quality of service, subject to prior notice and
public hearing. Fares shall not be provisionally authorized without
public hearing.
A. On the General Structure of Rates
1. The existing authorized fare range system of plus or
minus 15 per cent for provincial buses and jeepneys shall be
widened to 20% and -25% limit in 1994 with the authorized fare to
be replaced by an indicative or reference rate as the basis for the
expanded fare range .
2. Fare systems for aircon buses are liberalized to cover
first class and premier services.
xxx xxx xxx
(Emphasis ours).
Sometime in March, 1994, private respondent PBOAP, availing itself of
the deregulation policy of the DOTC allowing provincial bus operators to
collect plus 20% and minus 25% of the prescribed fare without rst having
led a petition for the purpose and without the bene t of a public hearing,
announced a fare increase of twenty (20%) percent of the existing fares. Said
increased fares were to be made effective on March 16, 1994.
On March 16, 1994, petitioner KMU led a petition before the LTFRB
opposing the upward adjustment of bus fares.
On March 24, 1994, the LTFRB issued one of the assailed orders
dismissing the petition for lack of merit. The dispositive portion reads:
PREMISES CONSIDERED, this Board after considering the
arguments of the parties, hereby DISMISSES FOR LACK OF MERIT the
petition led in the above-entitled case. This petition in this case was
resolved with dispatch at the request of petitioner to enable it to
immediately avail of the legal remedies or options it is entitled under
existing laws.
SO ORDERED. 6
Hence, the instant petition for certiorari with an urgent prayer for
issuance of a temporary restraining order.
The Court, on June 20, 1994, issued a temporary restraining order
enjoining, prohibiting and preventing respondents from implementing the bus
fare rate increase as well as the questioned orders and memorandum
circulars. This meant that provincial bus fares were rolled back to the levels
duly authorized by the LTFRB prior to March 16, 1994. A moratorium was
likewise enforced on the issuance of franchises for the operation of buses,
jeepneys, and taxicabs.
Petitioner KMU anchors its claim on two (2) grounds. First, the
authority given by respondent LTFRB to provincial bus operators to set a fare
range of plus or minus fteen (15) percent, later increased to plus twenty
(20%) and minus twenty- ve (-25%) percent, over and above the existing
authorized fare without having to le a petition for the purpose, is
unconstitutional, invalid and illegal. Second, the establishment of a
presumption of public need in favor of an applicant for a proposed transport
service without having to prove public necessity, is illegal for being violative
of the Public Service Act and the Rules of Court.
In its Comment, private respondent PBOAP, while not actually touching
upon the issues raised by the petitioner, questions the wisdom and the
manner by which the instant petition was led. It asserts that the petitioner
has no legal standing to sue or has no real interest in the case at bench and
in obtaining the reliefs prayed for.
In their Comment led by the Of ce of the Solicitor General, public
respondents DOTC Secretary Jesus B. Garcia, Jr. and the LTFRB asseverate
that the petitioner does not have the standing to maintain the instant suit.
They further claim that it is within DOTC and LTFRB's authority to set a fare
range scheme and establish a presumption of public need in applications for
certificates of public convenience.
We find the instant petition impressed with merit.
At the outset, the threshold issue of locus standi must be struck.
Petitioner KMU has the standing to sue.
The requirement of locus standi inheres from the de nition of judicial
power. Section 1 of Article VIII of the Constitution provides:
xxx xxx xxx

Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.
I n Lamb v. Phipps , 7 we ruled that judicial power is the power to hear
and decide causes pending between parties who have the right to sue in the
courts of law and equity. Corollary to this provision is the principle of locus
standi of a party litigant. One who is directly affected by and whose interest
is immediate and substantial in the controversy has the standing to sue. The
rule therefore 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. 8
In the case at bench, petitioner, whose members had suffered and
continue to suffer grave and irreparable injury and damage from the
implementation of the questioned memoranda, circulars and/or orders, has
shown that it has a clear legal right that was violated and continues to be
violated with the enforcement of the challenged memoranda, circulars and/or
orders. KMU members, who avail of the use of buses, trains and jeepneys
everyday, are directly affected by the burdensome cost of arbitrary increase
in passenger fares. They are part of the millions of commuters who comprise
the riding public. Certainly, their rights must be protected, not neglected nor
ignored. cdll
Assuming arguendo that petitioner is not possessed of the standing to

sue, this court is ready to brush aside this barren procedural in rmity and
recognize the legal standing of the petitioner in view of the transcendental
importance of the issues raised. And this act of liberality is not without
judicial precedent. As early as the Emergency Powers Cases , this Court had
exercised its discretion and waived the requirement of proper party. In the
recent case of Kilosbayan, Inc., et al. v. Teo sto Guingona, Jr., et a l . , 9 we
ruled in the same lines and enumerated some of the cases where the same
policy was adopted, viz :
. . . 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 the issues raised. In the landmark Emergency
Powers Cases , [G.R. No. L-2044 (Araneta v. Dinglasan); G.R. No. L-2756
(Araneta v. Angeles); G.R. No. L-3054 (Rodriguez v. Tesorero de
Filipinas); G.R. No. L-3055 (Guerrero v. Commissioner of Customs); and
G.R. No. L-3056 (Barredo v. Commission on Elections), 84 Phil. 368
(1949)], this Court brushed aside this technicality because 'the
transcendental importance to the public of these cases demands that
they be settled promptly and de nitely, brushing aside, if we must,
technicalities of procedure. (Avelino vs. Cuenco, G.R. No. L-2621).'
Insofar as taxpayers' suits are concerned, this Court had declared that
it 'is not devoid of discretion as to whether or not it should be
entertained,' (Tan v. Macapagal, 43 SCRA 677, 680 [1972]) or that it
'enjoys an open discretion to entertain the same or not.' [Sanidad v.
COMELEC, 73 SCRA 333 (1976)].
xxx xxx xxx
In line with the liberal policy of this Court on locus standi ,
ordinary taxpayers, members of Congress, and even association of
planters, and non-pro t civic organizations were allowed to initiate and
prosecute actions before this court to question the constitutionality or
validity of laws, acts, decisions, rulings, or orders of various
government agencies or instrumentalities. Among such cases were
those assailing the constitutionality of (a) R.A. No. 3836 insofar as it
allows retirement gratuity and commutation of vacation and sick leave
to Senators and Representatives and to elective of cials of both
Houses of Congress (Philippine Constitution Association, Inc. v.
Gimenez, 15 SCRA 479 [1965]); (b) Executive Order No. 284, issued by
President Corazon C. Aquino on 25 July 1987, which allowed members
of the cabinet, their undersecretaries, and assistant secretaries to hold
other government of ces or positions (Civil Liberties Union v. Executive
Secretary, 194 SCRA 317 [1991]); (c) the automatic appropriation for
debt service in the General Appropriations Act (Guingona v. Carague,
196 SCRA 221 [1991]; (d) R.A. No. 7056 on the holding of
desynchronized elections (Osmeña v. Commission on Elections, 199
SCRA 750 [1991]; (e) P.D. No. 1869 (the charter of the Philippine
Amusement and Gaming Corporation) on the ground that it is contrary
to morals, public policy, and order (Basco v. Philippine Gaming and
Amusement Corp., 197 SCRA 52 [1991]); and (f) R.A. No. 6975,
establishing the Philippine National Police. (Carpio v. Executive
Secretary, 206 SCRA 290 [1992]).
Other cases where we have followed a liberal policy regarding
locus standi include those attacking the validity or legality of (a) an
order allowing the importation of rice in the light of the prohibition
imposed by R.A. No. 3452 (Iloilo Palay and Corn Planters Association,
Inc. v. Feliciano, 13 SCRA 377 [1965]; (b) P.D. Nos. 991 and 1033
insofar as they proposed amendments to the Constitution and P.D. No.
1031 insofar as it directed the COMELEC to supervise, control, hold, and
conduct the referendum-plebiscite on 16 October 1976 (Sanidad v.
Commission on Elections, supra ); (c) the bidding for the sale of the
3,179 square meters of land at Roppongi, Minato-ku, Tokyo, Japan
(Laurel v. Garcia, 187 SCRA 797 [1990]); (d) the approval without
hearing by the Board of Investments of the amended application of the
Bataan Petrochemical Corporation to transfer the site of its plant from
Bataan to Batangas and the validity of such transfer and the shift of
feedstock from naphtha only to naphtha and/or liquefied petroleum gas
(Garcia v. Board of Investments, 177 SCRA 374 [1989]; Garcia v. Board
of Investments, 191 SCRA 288 [1990]); (e) the decisions, orders, rulings,
and resolutions of the Executive Secretary, Secretary of Finance,
Commissioner of Internal Revenue, Commissioner of Customs, and the
Fiscal Incentives Review Board exempting the National Power
Corporation from indirect tax and duties (Maceda v. Macaraig, 197
SCRA 771 [1991]); (f) the orders of the Energy Regulatory Board of 5
and 6 December 1990 on the ground that the hearings conducted on the
second provisional increase in oil prices did not allow the petitioner
substantial cross-examination; (Maceda v. Energy Regulatory Board,
199 SCRA 454 [1991]); (g) Executive Order No. 478 which levied a
special duty of P0.95 per liter of imported oil products (Garcia v.
Executive Secretary, 211 SCRA 219 [1992]); (h) resolutions of the
Commission on Elections concerning the apportionment, by district, of
the number of elective members of Sanggunians (De Guia vs.
Commission on Elections, 208 SCRA 420 [1992]); and (i) memorandum
orders issued by a Mayor affecting the Chief of Police of Pasay City
(Pasay Law and Conscience Union, Inc. v. Cuneta, 101 SCRA 662
[1980]).
In the 1975 case of Aquino v. Commission on Elections (62 SCRA
275 [1975]), this Court, despite its unequivocal ruling that the
petitioners therein had no personality to le the petition, resolved
nevertheless to pass upon the issues raised because of the far-reaching
implications of the petition. We did no less in De Guia v. COMELEC
(S upra) where, although we declared that De Guia 'does not appear to
have locus standi , a standing in law, a personal or substantial interest,'
we brushed aside the procedural in rmity 'considering the importance
of the issue involved, concerning as it does the political exercise of
quali ed voters affected by the apportionment, and petitioner alleging
abuse of discretion and violation of the Constitution by respondent.'
Now on the merits of the case.

On the fare range scheme.
Section 16 (c) of the Public Service Act, as amended, reads:
Sec. 16. Proceedings of the Commission, upon notice and
hearing . — The Commission shall have power, upon proper notice and
hearing in accordance with the rules and provisions of this Act, subject
to the limitations and exceptions mentioned and saving provisions to
the contrary:
xxx xxx xxx
(c) To x and determine individual or joint rates, tolls,
charges, classi cations, or schedules thereof, as well as commutation,
mileage kilometrage, and other special rates which shall be imposed,
observed, and followed thereafter by any public service: Provided , That
the Commission may, in its discretion, approve rates proposed by public
services provisionally and without necessity of any hearing; but it shall
call a hearing thereon within thirty days thereafter, upon publication
and notice to the concerns operating in the territory affected: Provided,
further , That in case the public service equipment of an operator is
used principally or secondarily for the promotion of a private business,
the net pro ts of said private business shall be considered in relation
with the public service of such operator for the purpose of xing the
rates. (Emphasis ours).
xxx xxx xxx
Under the foregoing provision, the Legislature delegated to the defunct
Public Service Commission the power of xing the rates of public services.
Respondent LTFRB, the existing regulatory body today, is likewise vested
with the same under Executive Order No. 202 dated June 19, 1987. Section 5
(c) of the said executive order authorizes LTFRB "to determine, prescribe,
approve and periodically review and adjust, reasonable fares, rates and other
related charges, relative to the operation of public land transportation
services provided by motorized vehicles."
Such delegation of legislative power to an administrative agency is

permitted in order to adapt to the increasing complexity of modern life. As
subjects for governmental regulation multiply, so does the dif culty of
administering the laws. Hence, specialization even in legislation has become
necessary. Given the task of determining sensitive and delicate matters as
route- xing and rate-making for the transport sector, the responsible
regulatory body is entrusted with the power of subordinate legislation. With
this authority, an administrative body and in this case, the LTFRB, may
implement broad policies laid down in a statute by " lling in" the details
which the Legislature may neither have time or competence to provide.
However, nowhere under the aforesaid provisions of law are the regulatory
bodies, the PSC and LTFRB alike, authorized to delegate that power to a
common carrier, a transport operator, or other public service.
In the case at bench, the authority given by the LTFRB to the provincial
bus operators to set a fare range over and above the authorized existing fare,
is illegal and invalid as it is tantamount to an undue delegation of legislative
authority. Potestas delegata non delegari potest . What has been delegated
cannot be delegated. This doctrine is based on the ethical principle that such
as delegated power constitutes not only a right but a duty to be performed
by the delegate through the instrumentality of his own judgment and not
through the intervening mind of another. 1 1 The policy of allowing the
provincial bus operators to change and increase their fares at will would
result not only to a chaotic situation but to an anarchic state of affairs. This
would leave the riding public at the mercy of transport operators who may
increase fares every hour, every day, every month or every year, whenever it
pleases them or whenever they deem it "necessary" to do so. In Panay
Autobus Co. v. Philippine Railway Co ., 1 2 where respondent Philippine Railway
Co. was granted by the Public Service Commission the authority to change its
freight rates at will, this Court categorically declared that:
In our opinion, the Public Service Commission was not authorized
by law to delegate to the Philippine Railway Co. the power of altering
its freight rates whenever it should nd it necessary to do so in order to
meet the competition of road trucks and autobuses, or to change its
freight rates at will, or to regard its present rates as maximum rates,
and to x lower rates whenever in the opinion of the Philippine Railway
Co. it would be to its advantage to do so .
The mere recital of the language of the application of the
Philippine Railway Co. is enough to show that it is untenable. The
Legislature has delegated to the Public Service Commission the power
of xing the rates of public services, but it has not authorized the
Public Service Commission to delegate that power to a common carrier
or other public service . The rates of public services like the Philippine
Railway Co. have been approved or xed by the Public Service
Commission, and any change in such rates must be authorized or
approved by the Public Service Commission after they have been shown
to be just and reasonable. The public service may, of course, propose
new rates, as the Philippine Railway Co. did in case No. 31827, but it
cannot lawfully make said new rates effective without the approval of
the Public Service Commission, and the Public Service Commission
itself cannot authorize a public service to enforce new rates without the
prior approval of said rates by the commission. The commission must
approve new rates when they are submitted to it, if the evidence shows
them to be just and reasonable, otherwise it must disapprove them.
Clearly, the commission cannot determine in advance whether or not
the new rates of the Philippine Railway Co. will be just and reasonable,
because it does not know what those rates will be.
In the present case the Philippine Railway Co. in effect asked for
permission to change its freight rates at will. It may change them every
day or every hour, whenever it deems it necessary to do so in order to
meet competition or whenever in its opinion it would be to its
advantage. Such a procedure would create a most unsatisfactory state
of affairs and largely defeat the purposes of the public service law. 1 3
(Emphasis ours).
One veritable consequence of the deregulation of transport fares is a
compounded fare . If transport operators will be authorized to impose and
collect an additional amount equivalent to 20% over and above the authorized
fare over a period of time, this will unduly prejudice a commuter who will be
made to pay a fare that has been computed in a manner similar to those of
compounded bank interest rates.
Picture this situation. On December 14, 1990, the LTFRB authorized
provincial bus operators to collect a thirty-seven (P0.37) centavo per
kilometer fare for ordinary buses. At the same time, they were allowed to
impose and collect a fare range of plus or minus 15% over the authorized
rate. Thus P0.37 centavo per kilometer authorized fare plus P0.05 centavos
(which is 15% of P0.37 centavo) is equivalent to P0.42 centavos, the allowed
rate in 1990. Supposing the LTFRB grants another ve (P0.05) centavo
increase per kilometer in 1994, then, the base or reference for computation
would have to be P0.47 centavos (which is P0.42 + P0.05 centavos). If bus
operators will exercise their authority to impose an additional 20% over and
above the authorized fare, then the fare to be collected shall amount to P0.56
(that is, P0.47 authorized LTFRB rate plus 20% of P0.47 which is P0.29). In
effect, commuters will be continuously subject, not only to a double fare
adjustment but to a compounding fare as well. On their part, transport
operators shall enjoy a bigger chunk of the pie. Aside from fare increase
applied for, they can still collect an additional amount by virtue of the
authorized fare range. Mathematically, the situation translates into the
following:
Year * LTFRB Fare Range Fare to be
authorized collected
rate ** per kilometer
1990 P0.37 15% (P0.05) P0.42
1994 P0.42 + 0.05 = 0.47 20% (P0.09) P0.56
1998 P0.56 + 0.05 = 0.61 20% (P0.12) P0.73
2002 P0.73 + 0.05 = 0.78 20% (P0.16) P0.94
Moreover, rate making or rate xing is not an easy task. It is a delicate
and sensitive government function that requires dexterity of judgment and
sound discretion with the settled goal of arriving at a just and reasonable
rate acceptable to both the public utility and the public. Several factors, in
fact, have to be taken into consideration before a balance could be achieved.
A rate should not be con scatory as would place an operator in a situation
where he will continue to operate at a loss. Hence, the rate should enable
public utilities to generate revenues suf cient to cover operational costs and
provide reasonable return on the investments. On the other hand, a rate which
is too high becomes discriminatory. It is contrary to public interest. A rate,
therefore, must be reasonable and fair and must be affordable to the end
user who will utilize the services.
Given the complexity of the nature of the function of rate- xing and its
far-reaching effects on millions of commuters, government must not
relinquish this important function in favor of those who would bene t and
pro t from the industry. Neither should the requisite notice and hearing be
done away with. The people, represented by reputable oppositors, deserve to
be given full opportunity to be heard in their opposition to any fare increase.
The present administrative procedure, 1 4 to our mind, already mirrors an
orderly and satisfactory arrangement for all parties involved. To do away with
such a procedure and allow just one party, an interested party at that, to
determine what the rate should be will undermine the right of the other
parties to due process. The purpose of a hearing is precisely to determine
what a just and reasonable rate is. 15 Discarding such procedural and
constitutional right is certainly inimical to our fundamental law and to public
interest.
On the presumption of public need .
A certi cate of public convenience (CPC) is an authorization granted by
the LTFRB for the operation of land transportation services for public use as
required by law. Pursuant to Section 16(a) of the Public Service Act, as
amended, the following requirements must be met before a CPC may be
granted, to wit: (i) the applicant must be a citizen of the Philippines, or a
corporation or co-partnership, association or joint-stock company
constituted and organized under the laws of the Philippines, at least 60 per
centum of its stock or paid-up capital must belong entirely to citizens of the
Philippines; (ii) the applicant must be nancially capable of undertaking the
proposed service and meeting the responsibilities incident to its operation;
and (iii) the applicant must prove that the operation of the public service
proposed and the authorization to do business will promote the public
interest in a proper and suitable manner . It is understood that there must be
proper notice and hearing before the PSC can exercise its power to issue a
CPC.
While adopting in toto the foregoing requisites for the issuance of a
C P C , LTFRB Memorandum Circular No. 92-009, Part IV, provides for yet
incongruous and contradictory policy guideline on the issuance of a CPC. The
guidelines states:
The issuance of a Certi cate of Public Convenience is determined
by public need. The presumption of public need for a service shall be
deemed in favor of the applicant, while the burden of proving that there
is no need for the proposed service shall be the oppositor's . (Emphasis
ours).
The above-quoted provision is entirely incompatible and inconsistent
wit h Section 16(c)(iii) of the Public Service Act which requires that before a
CPC will be issued, the applicant must prove by proper notice and hearing
that the operation of the public service proposed will promote public interest
in a proper and suitable manner. On the contrary, the policy guideline states
that the presumption of public need for a public service shall be deemed in
favor of the applicant. In case of con ict between a statute and an
administrative order, the former must prevail.
By its terms, public convenience or necessity generally means

something tting or suited to the public need. 1 6 As one of the basic
requirements for the grant of a CPC, public convenience and necessity exists
when the proposed facility or service meets a reasonable want of the public
and supply a need which the existing facilities do not adequately supply. The
existence or non-existence of public convenience and necessity is therefore a
question of fact that must be established by evidence, real and/or
testimonial; empirical data; statistics and such other means necessary, in a
public hearing conducted for that purpose. The object and purpose of such
procedure, among other things, is to look out for, and protect, the interests
of both the public and the existing transport operators.
Verily, the power of a regulatory body to issue a CPC is founded on the
condition that after full-dress hearing and investigation, it shall nd, as a
fact, that the proposed operation is for the convenience of the public. 1 7
Basic convenience is the primary consideration for which a CPC is issued,
and that fact alone must be consistently borne in mind. Also, existing
operators is subject routes must be given an opportunity to offer proof and
oppose the application. Therefore, an applicant must, at all times, be required
to prove his capacity and capability to furnish the service which he has
undertaken to render. 1 8 And all this will be possible only if a public hearing
were conducted for that purpose. LLjur
Otherwise stated, the establishment of public need in favor of an

applicant reverses well-settled and institutionalized judicial, quasi-judicial
and administrative procedures. It allows the party who initiates the
proceedings to prove, by mere application, his af rmative allegations.
Moreover, the offending provisions of the LTFRB memorandum circular in
question would in effect amend the Rules of Court by adding another
disputable presumption in the enumeration of 37 presumptions under Rule
131, Section 5 of the Rules of Court. Such usurpation of this Court's authority
cannot be countenanced as only this Court is mandated by law to promulgate
rules concerning pleading, practice and procedure. 1 9
Deregulation, while it may be ideal in certain situations, may not be
ideal at all in our country given the present circumstances. Advocacy of
liberalized franchising and regulatory process is tantamount to an abdication
by the government of its inherent right to exercise police power, that is, the
right of government to regulate public utilities for protection of the public
and the utilities themselves.
While we recognize the authority of the DOTC and the LTFRB to issue
administrative orders to regulate the transport sector, we nd that they
committed grave abuse of discretion in issuing DOTC Department Order No.
92-587 de ning the policy framework on the regulation of transport services
and LTFRB Memorandum Circular No. 92-009 promulgating the implementing
guidelines on DOTC Department Order No. 92-587, the said administrative
issuances being amendatory and violative of the Public Service Act and the
Rules of Court. Consequently, we rule that the twenty (20%) per centum fare
increase imposed by respondent PBOAP on March 16, 1994 without the
bene t of a petition and a public hearing is null and void and of no force and
effect. No grave abuse of discretion however was committed in the issuance
of DOTC Memorandum Order No. 90-395 and DOTC Memorandum dated
October 8, 1992, the same being merely internal communications between
administrative officers.
WHEREFORE, in view of the foregoing, the instant petition is hereby
GRANTED and the challenged administrative issuances and orders, namely:
DOTC Department Order No. 92-587, LTFRB Memorandum Circular No. 92-
009, and the order dated March 24, 1994 issued by respondent LTFRB are
hereby DECLARED contrary to law and invalid insofar as they affect
provisions therein (a) delegating to provincial bus and jeepney operators the
authority to increase or decrease the duly prescribed transportation fares;
and (b) creating a presumption of public need for a service in favor of the
applicant for a certi cate of public convenience and placing the burden of
proving that there is no need for the proposed service to the oppositor. LexLib
The Temporary Restraining Order issued on June 20, 1994 is hereby

MADE PERMANENT insofar as it enjoined the bus fare rate increase granted
under the provisions of the aforementioned administrative circulars,
memoranda and/or orders declared invalid.
No pronouncement as to costs.
SO ORDERED.
Padilla, Davide, Jr., Bellosillo and Quiason, JJ., concur.
Footnotes
1. Pantranco v. Public Service Commission, 70 Phil. 221.

2. The 20th century ushered in the birth and growth of public utility regulation
in the country. After the Americans introduced public utility regulation at the
turn of the century, various regulatory bodies were created. They were the
Coastwise Rate Commission under Act No. 520 passed by the Philippine
Commission on November 17, 1902; the Board of Rate Regulation under Act
No. 1779 dated October 12, 1907; the Board of Public Utility Commission
under Act No. 2307 dated December 19, 1913; and the Public Utility
Commission under Act No. 3108 dated March 19, 1923.
During the Commonwealth period, the National Assembly passed a more

comprehensive public utility law. This was Commonwealth Act No. 146, as
amended or the Public Service Act, as amended. Said law created a
regulatory and franchising body known as the Public Service Commission
(PSC). The Commission (PSC) existed for thirty-six (36) years from 1936 up
to 1972.
On September 24, 1972, Presidential Decree No. 1 was issued and

declared "part of the law of the land." The same effected a major revamp of
the executive department. Under Article III, Part X of P.D. No. 1, the Public
Service Commission (PSC) was abolished and replaced by three (3)
specialized regulatory boards. These were the Board of Transportation, the
Board of Communications, and the Board of Power and Waterworks.
The Board of Transportation (BOT) lasted for thirteen (13) years. On

March 20, 1985, Executive Order No. 1011 was issued abolishing the Board
of Transportation and the Bureau of Land Transportation. Their powers and
functions were merged into the Land Transportation Commission (LTC).
Two (2) years later, LTC was abolished by Executive Order Nos. 125
dated January 30, 1987 and 125-A dated April 13, 1987 which reorganized
the Department of Transportation and Communications. On June 19, 1987,
the Land Transportation Franchising and Regulatory Board (LTFRB) was
created by Executive Order No. 202. The LTFRB, successor of LTC, is the
existing franchising and regulatory body for overland transportation today.
3. Sec. 1, Rule 131, Rules of Court.

4. Decision of LTFRB in Case No. 90-4794, p. 4; Rollo , p. 59.
5. Rollo , p. 42.
6. Order of LTFRB, p. 4; Rollo , p. 55.
7. 22 Phil. 456 [1912].
8. Warth v. Seldin, 422 U.S. 490, 498-499, 45 L. Ed. 2d 343, 95 S. Ct. 2197
[1975]; Guzman v. Marrero, 180 U.S. 81, 45 L. Ed. 436, 21 S.Ct. 293 [1901];
McMicken v. United States, 97 U.S. 204, 24 L.Ed. 947 [1978]; Silver Star
Citizens' Committee v. Orlando Fla. 194 So. 2d 681 [1967]; In Re Kenison's
Guardianship, 72 S.D. 180, 31 N.W. 2d 326 [1948].
9. G.R. No. 113375, May 5, 1994.
10. United States v. Barrias, 11 Phil. 327, 330 [1908]; People v. Vera, 65 Phil.
56, 113 [1937].
11. Cruz, Philippine Political Law, 1991 Edition, p. 84.
12. 57 Phil. 872 [1933].

13. Id ., at pp. 878-879.
* Assume a four-year interval in fare adjustment as a constant.
** Assume further a constant P0.05 centavo increase in fare every four (4)
years.
14. Steps in the Filing of Petition for Rate Increase:

A Petition For Adjustment of Rate (either for increase or reduction) may
be led only by a grantee of a CPC. Therefore, when franchise/CPC grantees
or existing public utility operators foresee that the new oil price increase,
wage hikes or similar factors would threaten the survival and viability of
their operations, they may then institute a petition for increase of rates.
Thus in the case of public utilities engaged in transportation,
telecommunications, energy supply (electricity) and others, the following
steps are usually undertaken in seeking, particularly upwards adjustments
of rates:
1. Filing of formal Petition for Rate Increase. — This petition alleges

therein among others, the present schedule of rates, the reasons why the
same is no longer economically viable and the revised schedule of rates it
proposes to charge. Attached to said Petition for nancial statements,
projections/studies showing possible losses from oil price or wage hikes
under the old or existing rates and the possible margin of pro t (which
should be within the 12% allowable limit) under the new or revised rates;
2. After the petition is docketed, a date is set for hearing for which a
Notice of Hearing is issued, the same to be published in a newspaper of
general circulation in the area;
3. The parties affected by the application are required to be furnished

copies of the petition and the Notice of Hearing usually by registered mail
with return card. The Solicitor General is also separately noti ed since he is
the counsel for the Government;
4. The Technical Staff of the regulatory body concerned evaluates the

documentary evidence attached to the petition to determine whether there is
warrant to the request for rate revision;
5. The Commission on Audit (COA) is requested by the regulatory
body to conduct an audit and examination of the books of accounts and
other pertinent nancial records of the public utility operator seeking the
rate revision if the applicants/petitioners are numerous, a representative
number for examination purposes would do; and the period of operation
covered usually ranges from six (6) months to one (1) year;
COA audit report is compared with that of the regulatory body. Copies of
these audit reports are furnished the petitioners and oppositors may submit
their exceptions or objections thereto.
6. Then hearings are conducted. The petitioners may present

accountants or such rate experts to explain their plea for rate revision.
Oppositors are also allowed to rebut such evidence-in-chief with their own
witnesses and documents. After the hearings, the corresponding resolution
is issued.
To obviate protracted hearings, the parties may agree to submit their

respective Position Papers in lieu of oral testimonies.
15. Ynchausti Steamship Co. v. Public Utility Commissioner, 42 Phil. 621, 631
[1922]).
16. Black's Law Dictionary, 5th Edition, p. 1105.
17. Batangas Transportation Co. v. Orlanes, 52 Phil. 455 [1928]).

18. Manila Electric Co. v. Pasay Transportation Co., 57 Phil. 825 [1932]; Please
see also Raymundo Transportation v. Perez, 56 Phil. 274 [1931]; Pampanga
Bus Co. v. Enriquez, 38 O.G. 374; Dela Rosa v. Corpus, 38 O.G. 2069.
19. Article VIII, Section 6, 1987 Constitution.

EN BANC
[G.R. No. 141284. August 15, 2000]
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B.

ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and
GEN. ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a
temporary restraining order seeking to nullify on constitutional grounds the order of President
Joseph Ejercito Estrada commanding the deployment of the Philippine Marines (the Marines) to
join the Philippine National Police (the PNP) in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings
and carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct
joint visibility patrols for the purpose of crime prevention and suppression. The Secretary of
National Defense, the Chief of Staff of the Armed Forces of the Philippines (the AFP), the Chief of
the PNP and the Secretary of the Interior and Local Government were tasked to execute and
implement the said order. In compliance with the presidential mandate, the PNP Chief, through
Police Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000[1] (the LOI)
which detailed the manner by which the joint visibility patrols, called Task Force Tulungan, would be
conducted.[2] Task Force Tulungan was placed under the leadership of the Police Chief of Metro
Manila.
Subsequently, the President confirmed his previous directive on the deployment of the Marines
in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP
Chief.[3] In the Memorandum, the President expressed his desire to improve the peace and order
situation in Metro Manila through a more effective crime prevention program including increased
police patrols.[4] The President further stated that to heighten police visibility in the metropolis,
augmentation from the AFP is necessary.[5] Invoking his powers as Commander-in-Chief under
Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP
Chief to coordinate with each other for the proper deployment and utilization of the Marines to
assist the PNP in preventing or suppressing criminal or lawless violence.[6] Finally, the President
declared that the services of the Marines in the anti-crime campaign are merely temporary in nature
and for a reasonable period only, until such time when the situation shall have improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine
Marines partnership in the conduct of visibility patrols in Metro Manila for the suppression of crime
prevention and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by
organized syndicates whose members include active and former police/military personnel whose
training, skill, discipline and firepower prove well-above the present capability of the local police
alone to handle. The deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police
visibility patrol in urban areas will reduce the incidence of crimes specially those perpetrated by
active or former police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility
patrols to keep Metro Manila streets crime-free, through a sustained street patrolling to minimize or
eradicate all forms of high-profile crimes especially those perpetrated by organized crime
syndicates whose members include those that are well-trained, disciplined and well-armed active or
former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police
Office] and the Philippine Marines to curb criminality in Metro Manila and to preserve the internal
security of the state against insurgents and other serious threat to national security, although the
primary responsibility over Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes
perpetrated by organized crime syndicates operating in Metro Manila. This concept requires the
military and police to work cohesively and unify efforts to ensure a focused, effective and holistic
approach in addressing crime prevention. Along this line, the role of the military and police aside
from neutralizing crime syndicates is to bring a wholesome atmosphere wherein delivery of basic
services to the people and development is achieved. Hand-in-hand with this joint NCRPO-
Philippine Marines visibility patrols, local Police Units are responsible for the maintenance of peace
and order in their locality.
c. To ensure the effective implementation of this project, a provisional Task Force TULUNGAN shall
be organized to provide the mechanism, structure, and procedures for the integrated planning,
coordinating, monitoring and assessing the security situation.
xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City),
Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT
Stations and the NAIA and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant petition to
annul LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and
unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE

CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN

ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK;
HENCE, SAID DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE
CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A

CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF
ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY

TO PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS

UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY
BE UNDER THE CONSTITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to
uphold the rule of law and the Constitution, the IBP questions the validity of the deployment and
utilization of the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution,[11] dated 25 January
2000, required the Solicitor General to file his Comment on the petition. On 8 February 2000, the
Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the President in
deploying the Marines, contending, among others, that petitioner has no legal standing; that the
question of deployment of the Marines is not proper for judicial scrutiny since the same involves a
political question; that the organization and conduct of police visibility patrols, which feature the
team-up of one police officer and one Philippine Marine soldier, does not violate the civilian
supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal standing;
(2) Whether or not the Presidents factual determination of the necessity of calling the armed forces
is subject to judicial review; and, (3) Whether or not the calling of the armed forces to assist the
PNP in joint visibility patrols violates the constitutional provisions on civilian supremacy over the
military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to
raise the issues in the petition. Second, the President did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction nor did he commit a violation of the civilian supremacy
clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its power of
judicial review only if the following requisites are complied with, namely: (1) the existence of an
actual and appropriate case; (2) a personal and substantial interest of the party raising the
constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and
(4) the constitutional question is the lis mota of the case.[12]
The IBP has not sufficiently complied with the requisites of standing in this case.
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.[13] 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.[14] 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
the presentation of issues upon which the court depends for illumination of difficult constitutional
questions.[15]
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold
the rule of law and the Constitution. Apart from this declaration, however, the IBP asserts no other
basis in support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule
of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this
case. This is too general an interest which is shared by other groups and the whole citizenry. Based
on the standards above-stated, the IBP has failed to present a specific and substantial interest in
the resolution of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules
of Court, is to elevate the standards of the law profession and to improve the administration of
justice is alien to, and cannot be affected by the deployment of the Marines. It should also be noted
that the interest of the National President of the IBP who signed the petition, is his alone, absent a
formal board resolution authorizing him to file the present action. To be sure, members of the BAR,
those in the judiciary included, have varying opinions on the issue. Moreover, the IBP, assuming
that it has duly authorized the National President to file the petition, has not shown any specific
injury which it has suffered or may suffer by virtue of the questioned governmental act. Indeed,
none of its members, whom the IBP purportedly represents, has sustained any form of injury as a
result of the operation of the joint visibility patrols. Neither is it alleged that any of its members has
been arrested or that their civil liberties have been violated by the deployment of the Marines. What
the IBP projects as injurious is the supposed militarization of law enforcement which might threaten
Philippine democratic institutions and may cause more harm than good in the long run. Not only is
the presumed injury not personal in character, it is likewise too vague, highly speculative and
uncertain to satisfy the requirement of standing. Since petitioner has not successfully established a
direct and personal injury as a consequence of the questioned act, it does not possess the
personality to assail the validity of the deployment of the Marines. This Court, however, does not
categorically rule that the IBP has absolutely no standing to raise constitutional issues now or in the
future. The IBP must, by way of allegations and proof, satisfy this Court that it has sufficient stake
to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the discretion to take
cognizance of a suit which does not satisfy the requirement of legal standing when paramount
interest is involved.[16] In not a few cases, the Court has adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to craft an issue of transcendental significance to
the people.[17] Thus, when the issues raised are of paramount importance to the public, the Court
may brush aside technicalities of procedure.[18] In this case, a reading of the petition shows that the
IBP has advanced constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Moreover, because peace and order are under
constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by the
Mindanao insurgency problem, the legal controversy raised in the petition almost certainly will not
go away. It will stare us in the face again. It, therefore, behooves the Court to relax the rules on
standing and to resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the factual determination of the President of
the necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility
patrols. In this regard, the IBP admits that the deployment of the military personnel falls under the
Commander-in-Chief powers of the President as stated in Section 18, Article VII of the Constitution,
specifically, the power to call out the armed forces to prevent or suppress lawless violence,
invasion or rebellion. What the IBP questions, however, is the basis for the calling of the Marines
under the aforestated provision. According to the IBP, no emergency exists that would justify the
need for the calling of the military to assist the police force. It contends that no lawless violence,
invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that this Court
review the sufficiency of the factual basis for said troop [Marine] deployment.[19]
The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of
calling the armed forces is not proper for judicial scrutiny since it involves a political question and
the resolution of factual issues which are beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential powers and limits,
and the extent of judicial review. But, while this Court gives considerable weight to the parties
formulation of the issues, the resolution of the controversy may warrant a creative approach that
goes beyond the narrow confines of the issues raised. Thus, while the parties are in agreement that
the power exercised by the President is the power to call out the armed forces, the Court is of the
view that the power involved may be no more than the maintenance of peace and order and
promotion of the general welfare.[20] For one, the realities on the ground do not show that there
exist a state of warfare, widespread civil unrest or anarchy. Secondly, the full brunt of the military is
not brought upon the citizenry, a point discussed in the latter part of this decision. In the words of
the late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidents powers as protector of the
peace. [Rossiter, The American Presidency]. The power of the President to keep the peace is not
limited merely to exercising the commander-in-chief powers in times of emergency or to leading the
State against external and internal threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day
problems of maintaining peace and order and ensuring domestic tranquility in times when no
foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by the relative want of an
emergency specified in the commander-in-chief provision. For in making the President commander-
in-chief the enumeration of powers that follow cannot be said to exclude the Presidents exercising
as Commander-in-Chief powers short of the calling of the armed forces, or suspending the privilege
of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain
public order and security.
xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents power to call out
the armed forces to prevent or suppress lawless violence, invasion or rebellion, the resolution of
the controversy will reach a similar result.
We now address the Solicitor Generals argument that the issue involved is not susceptible to
review by the judiciary because it involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate
for court review.[22] It pertains to issues which are inherently susceptible of being decided on
grounds recognized by law. Nevertheless, the Court does not automatically assume jurisdiction
over actual constitutional cases brought before it even in instances that are ripe for resolution. One
class of cases wherein the Court hesitates to rule on are political questions. The reason is that
political questions are concerned with issues dependent upon the wisdom, not the legality, of a
particular act or measure being assailed. Moreover, the political question being a function of the
separation of powers, the courts will not normally interfere with the workings of another co-equal
branch unless the case shows a clear need for the courts to step in to uphold the law and the
Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of government.
Thus, if an issue is clearly identified by the text of the Constitution as matters for discretionary
action by a particular branch of government or to the people themselves then it is held to be a
political question. In the classic formulation of Justice Brennan in Baker v. Carr,[24] [p]rominent on
the surface of any case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a courts
undertaking independent resolution without expressing lack of the respect due coordinate branches
of government; or an unusual need for unquestioning adherence to a political decision already
made; or the potentiality of embarassment from multifarious pronouncements by various
departments on the one question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he Judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by
law. Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.[25] Under this definition, the Court cannot agree with
the Solicitor General that the issue involved is a political question beyond the jurisdiction of this
Court to review. When the grant of power is qualified, conditional or subject to limitations, the issue
of whether the prescribed qualifications or conditions have been met or the limitations respected, is
justiciable - the problem being one of legality or validity, not its wisdom.[26] Moreover, the
jurisdiction to delimit constitutional boundaries has been given to this Court.[27] When political
questions are involved, the Constitution limits the determination as to whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
official whose action is being questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that
is patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion or hostility.[29] Under this definition, a court is
without power to directly decide matters over which full discretionary authority has been delegated.
But while this Court has no power to substitute its judgment for that of Congress or of the
President, it may look into the question of whether such exercise has been made in grave abuse of
discretion.[30] A showing that plenary power is granted either department of government, may not
be an obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise to
justiciable controversy.[31]
When the President calls the armed forces to prevent or suppress lawless violence, invasion or
rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. This is clear
from the intent of the framers and from the text of the Constitution itself. The Court, thus, cannot be
called upon to overrule the Presidents wisdom or substitute its own. However, this does not prevent
an examination of whether such power was exercised within permissible constitutional limits or
whether it was exercised in a manner constituting grave abuse of discretion. In view of the
constitutional intent to give the President full discretionary power to determine the necessity of
calling out the armed forces, it is incumbent upon the petitioner to show that the Presidents
decision is totally bereft of factual basis. The present petition fails to discharge such heavy burden
as there is no evidence to support the assertion that there exist no justification for calling out the
armed forces. There is, likewise, no evidence to support the proposition that grave abuse was
committed because the power to call was exercised in such a manner as to violate the
constitutional provision on civilian supremacy over the military. In the performance of this Courts
duty of purposeful hesitation[32] before declaring an act of another branch as unconstitutional, only
where such grave abuse of discretion is clearly shown shall the Court interfere with the Presidents
judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the President full
discretionary power to call out the armed forces and to determine the necessity for the exercise of
such power. Section 18, Article VII of the Constitution, which embodies the powers of the President
as Commander-in-Chief, provides in part:
The 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. In case of invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus, or
place the Philippines or any part thereof under martial law.
xxx
The full discretionary power of the President to determine the factual basis for the exercise of
the calling out power is also implied and further reinforced in the rest of Section 18, Article VII
which reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of
the writ of habeas corpus, the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular
or special session, may revoke such proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or
the extension thereof, and must promulgate its decision thereon within thirty days from its filing.
The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion
or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or suspension and
the Court may review the sufficiency of the factual basis thereof. However, there is no such
equivalent provision dealing with the revocation or review of the Presidents action to call out the
armed forces. The distinction places the calling out power in a different category from the power to
declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise,
the framers of the Constitution would have simply lumped together the three powers and provided
for their revocation and review without any qualification. Expressio unius est exclusio alterius.
Where the terms are expressly limited to certain matters, it may not, by interpretation or
construction, be extended to other matters.[33] That the intent of the Constitution is exactly what its
letter says, i.e., that the power to call is fully discretionary to the President, is extant in the
deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the
President as Commander-in-Chief. First, he can call out such Armed Forces as may be necessary
to suppress lawless violence; then he can suspend the privilege of the writ of habeas corpus, then
he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the writ of
habeas corpus, his judgment is subject to review. We are making it subject to review by the
Supreme Court and subject to concurrence by the National Assembly. But when he exercises this
lesser power of calling on the Armed Forces, when he says it is necessary, it is my opinion that his
judgment cannot be reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled
by the first sentence: The President may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. So we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can
be handled by the First Sentence: The President....may call out such Armed Forces to prevent or
suppress lawless violence, invasion or rebellion. So we feel that that is sufficient for handling
imminent danger, of invasion or rebellion, instead of imposing martial law or suspending the writ of
habeas corpus, he must necessarily have to call the Armed Forces of the Philippines as their
Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to
judicial review.[34]
The reason for the difference in the treatment of the aforementioned powers highlights the
intent to grant the President the widest leeway and broadest discretion in using the power to call
out because it is considered as the lesser and more benign power compared to the power to
suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of
which involve the curtailment and suppression of certain basic civil rights and individual freedoms,
and thus necessitating safeguards by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to
suspend the privilege of the writ of habeas corpus or to impose martial law, two conditions must
concur: (1) there must be an actual invasion or rebellion and, (2) public safety must require it.
These conditions are not required in the case of the power to call out the armed forces. The only
criterion is that whenever it becomes necessary, the President may call the armed forces to prevent
or suppress lawless violence, invasion or rebellion." The implication is that the President is given
full discretion and wide latitude in the exercise of the power to call as compared to the two other
powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted without
factual basis, then this Court cannot undertake an independent investigation beyond the pleadings.
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. Indeed, the decision to call out the military to prevent or suppress lawless violence must
be done swiftly and decisively if it were to have any effect at all. Such a scenario is not farfetched
when we consider the present situation in Mindanao, where the insurgency problem could spill over
the other parts of the country. The determination of the necessity for the calling out power if
subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as such power
may be unduly straitjacketed by an injunction or a temporary restraining order every time it is
exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-
in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is
necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless
the petitioner can show that the exercise of such discretion was gravely abused, the Presidents
exercise of judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling the armed
forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like bank/store
robberies, holdups, kidnappings and carnappings continue to occur in Metro Manila...[35] We do not
doubt the veracity of the Presidents assessment of the situation, especially in the light of present
developments. The Court takes judicial notice of the recent bombings perpetrated by lawless
elements in the shopping malls, public utilities, and other public places. These are among the areas
of deployment described in the LOI 2000. Considering all these facts, we hold that the President
has sufficient factual basis to call for military aid in law enforcement and in the exercise of this
constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause nor does it
infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the calling of the
Marines, the IBP asserts that by the deployment of the Marines, the civilian task of law enforcement
is militarized in violation of Section 3, Article II[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian
supremacy clause. The calling of the Marines in this case constitutes permissible use of military
assets for civilian law enforcement. The participation of the Marines in the conduct of joint visibility
patrols is appropriately circumscribed. The limited participation of the Marines is evident in the
provisions of the LOI itself, which sufficiently provides the metes and bounds of the Marines
authority. It is noteworthy that the local police forces are the ones in charge of the visibility patrols
at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the
overall leader of the PNP-Philippine Marines joint visibility patrols.[37] Under the LOI, the police
forces are tasked to brief or orient the soldiers on police patrol procedures.[38] It is their
responsibility to direct and manage the deployment of the Marines.[39] It is, likewise, their duty to
provide the necessary equipment to the Marines and render logistical support to these soldiers.[40]
In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian
authority. Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian
character of the police force. Neither does it amount to an insidious incursion of the military in the
task of law enforcement in violation of Section 5(4), Article XVI of the Constitution.[41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by
his alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in
derogation of the aforecited provision. The real authority in these operations, as stated in the LOI,
is lodged with the head of a civilian institution, the PNP, and not with the military. Such being the
case, it does not matter whether the AFP Chief actually participates in the Task Force Tulungan
since he does not exercise any authority or control over the same. Since none of the Marines was
incorporated or enlisted as members of the PNP, there can be no appointment to civilian position to
speak of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy the
civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than assistance
required in conducting the patrols. As such, there can be no insidious incursion of the military in
civilian affairs nor can there be a violation of the civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various forms persists in
Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the
assistance of the military in the implementation and execution of certain traditionally civil functions.
As correctly pointed out by the Solicitor General, some of the multifarious activities wherein military
aid has been rendered, exemplifying the activities that bring both the civilian and the military
together in a relationship of cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross;[43]
3. Relief and rescue operations during calamities and disasters;[44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts;[46]
6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities;[50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students;[52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices;[57]
17. Peace and order policy formulation in local government units.[58]

This unquestionably constitutes a gloss on executive power resulting from a systematic,
unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never before
questioned.[59] What we have here is mutual support and cooperation between the military and
civilian authorities, not derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of military
force for domestic purposes has persisted,[60] and whose Constitution, unlike ours, does not
expressly provide for the power to call, the use of military personnel by civilian law enforcement
officers is allowed under circumstances similar to those surrounding the present deployment of the
Philippine Marines. Under the Posse Comitatus Act[61] of the US, the use of the military in civilian
law enforcement is generally prohibited, except in certain allowable circumstances. A provision of
the Act states:
1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act
of Congress, willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to
execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or
both.[62]
To determine whether there is a violation of the Posse Comitatus Act in the use of military
personnel, the US courts[63] apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee
in such a manner that the military personnel subjected the citizens to the exercise of military power
which was regulatory, proscriptive, or compulsory[64] George Washington Law Review, pp. 404-433 (1986),
which discusses the four divergent standards for assessing acceptable involvement of military personnel in civil law
enforcement. See likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH
MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either presently or prospectively?
xxx
When this concept is transplanted into the present legal context, we take it to mean that military
involvement, even when not expressly authorized by the Constitution or a statute, does not violate
the Posse Comitatus Act unless it actually regulates, forbids or compels some conduct on the part
of those claiming relief. A mere threat of some future injury would be insufficient. (emphasis
supplied)
Even if the Court were to apply the above rigid standards to the present case to determine
whether there is permissible use of the military in civilian law enforcement, the conclusion is
inevitable that no violation of the civilian supremacy clause in the Constitution is committed. On this
point, the Court agrees with the observation of the Solicitor General:
3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory, proscriptive, or
compulsory military power. First, the soldiers do not control or direct the operation. This is evident from Nos. 6,[66]
8(k)[67] and 9(a)[68] of Annex A. These soldiers, second, also have no power to prohibit or condemn. In No. 9(d)[69]
of Annex A, all arrested persons are brought to the nearest police stations for proper disposition. And last, these
soldiers apply no coercive force. The materials or equipment issued to them, as shown in No. 8(c)[70] of Annex A,
are all low impact and defensive in character. The conclusion is that there being no exercise of regulatory,
proscriptive or compulsory military power, the deployment of a handful of Philippine Marines constitutes no
impermissible use of military power for civilian law enforcement.[71]
It appears that the present petition is anchored on fear that once the armed forces are
deployed, the military will gain ascendancy, and thus place in peril our cherished liberties. Such
apprehensions, however, are unfounded. The power to call the armed forces is just that - calling out
the armed forces. Unless, petitioner IBP can show, which it has not, that in the deployment of the
Marines, the President has violated the fundamental law, exceeded his authority or jeopardized the
civil liberties of the people, this Court is not inclined to overrule the Presidents determination of the
factual basis for the calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January, 2000, not a single
citizen has complained that his political or civil rights have been violated as a result of the
deployment of the Marines. It was precisely to safeguard peace, tranquility and the civil liberties of
the people that the joint visibility patrol was conceived. Freedom and democracy will be in full
bloom only when people feel secure in their homes and in the streets, not when the shadows of
violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De
Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.
SEPARATE OPINION
PUNO, J.:
If the case at bar is significant, it is because of the government attempt to foist the political
question doctrine to shield an executive act done in the exercise of the commander-in-chief
powers from judicial scrutiny. If the attempt succeeded, it would have diminished the power of
judicial review and weakened the checking authority of this Court over the Chief Executive
when he exercises his commander-in-chief powers. The attempt should remind us of the
tragedy that befell the country when this Court sought refuge in the political question
doctrine and forfeited its most important role as protector of the civil and political rights of
our people. The ongoing conflict in Mindanao may worsen and can force the Chief Executive
to resort to the use of his greater commander-in-chief powers, hence, this Court should be
extra cautious in assaying similar attempts. A laid back posture may not sit well with our
people considering that the 1987 Constitution strengthened the checking powers of this
Court and expanded its jurisdiction precisely to stop any act constituting xxx grave abuse
of jurisdiction xxx on the part of any branch or instrumentality of the Government.1
The importance of the issue at bar includes this humble separate opinion. We can best
perceive the different intersecting dimensions of the political question doctrine by viewing them
from the broader canvass of history. Political questions are defined as those questions which under
the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive branch of
government.2 They have two aspects: (1) those matters that are to be exercised by the people in
their primary political capacity and (2) matters which have been specifically delegated to some
other department or particular office of the government, with discretionary power to act.3 The
exercise of the discretionary power of the legislative or executive branch of government was often
the area where the Court had to wrestle with the political question doctrine.4
A brief review of some of our case law will thus give us a sharper perspective of the political
question doctrine. This question confronted the Court as early as 1905 in the case of Barcelon v.
Baker.5 The Governor-General of the Philippine Islands, pursuant to a resolution of the Philippine
Commission, suspended the privilege of the writ of habeas corpus in Cavite and Batangas based
on a finding of open insurrection in said provinces. Felix Barcelon, who was detained by
constabulary officers in Batangas, filed a petition for the issuance of a writ of habeas corpus
alleging that there was no open insurrection in Batangas. The issue to resolve was whether or not
the judicial department may investigate the facts upon which the legislative (the Philippine
Commission) and executive (the Governor-General) branches of government acted in suspending
the privilege of the writ.
The Court ruled that under our form of government, one department has no authority to inquire
into the acts of another, which acts are performed within the discretion of the other department.6
Surveying American law and jurisprudence, it held that whenever a statute gives discretionary
power to any person, to be exercised by him upon his own opinion of certain facts, the statute
constitutes him the sole judge of the existence of those facts.7 Since the Philippine Bill of 1902
empowered the Philippine Commission and the Governor-General to suspend the privilege of the
writ of habeas corpus, this power is exclusively within the discretion of the legislative and
executive branches of government. The exercise of this discretion is conclusive upon the
courts.8
The Court further held that once a determination is made by the executive and legislative
departments that the conditions justifying the assailed acts exists, it will presume that the conditions
continue until the same authority decide that they no longer exist.9 It adopted the rationale that the
executive branch, thru its civil and military branches, are better situated to obtain information
about peace and order from every corner of the nation, in contrast with the judicial department, with
its very limited machinery.10 The seed of the political question doctrine was thus planted in
Philippine soil.
The doctrine barring judicial review because of the political question doctrine was next
applied to the internal affairs of the legislature. The Court refused to interfere in the legislative
exercise of disciplinary power over its own members. In the 1924 case of Alejandrino v.
Quezon,11 Alejandrino, who was appointed Senator by the Governor-General, was declared by
Senate Resolution as guilty of disorderly conduct for assaulting another Senator in the course of a
debate, and was suspended from office for one year. Senator Alejandrino filed a petition for
mandamus and injunction to compel the Senate to reinstate him. The Court held that under the
Jones Law, the power of the Senate to punish its members for disorderly behavior does not
authorize it to suspend an appointive member from the exercise of his office. While the Court found
that the suspension was illegal, it refused to issue the writ of mandamus on the ground that "the
Supreme Court does not possess the power of coercion to make the Philippine Senate take any
particular action. [T]he Philippine Legislature or any branch thereof cannot be directly controlled in
the exercise of their legislative powers by any judicial process."12
The issue revisited the Court twenty-two (22) years later. In 1946, in Vera v. Avelino,13 three
senators-elect who had been prevented from taking their oaths of office by a Senate resolution
repaired to this Court to compel their colleagues to allow them to occupy their seats contending that
only the Electoral Tribunal had jurisdiction over contests relating to their election, returns and
qualifications. Again, the Court refused to intervene citing Alejandrino and affirmed the inherent
right of the legislature to determine who shall be admitted to its membership.
In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators and eight representatives who
were proclaimed elected by Comelec were not allowed by Congress to take part in the voting for
the passage of the Parity amendment to the Constitution. If their votes had been counted, the
affirmative votes in favor of the proposed amendment would have been short of the necessary
three-fourths vote in either House of Congress to pass the amendment. The amendment was
eventually submitted to the people for ratification. The Court declined to intervene and held that a
proposal to amend the Constitution is a highly political function performed by Congress in its
sovereign legislative capacity.15
In the 1955 case of Arnault v. Balagtas,16 petitioner, a private citizen, assailed the legality of
his detention ordered by the Senate for his refusal to answer questions put to him by members of
one of its investigating committees. This Court refused to order his release holding that the process
by which a contumacious witness is dealt with by the legislature is a necessary concomitant of the
legislative process and the legislature's exercise of its discretionary authority is not subject to
judicial interference.
In the 1960 case of Osmena v. Pendatun,17 the Court followed the traditional line.
Congressman Sergio Osmena, Jr. was suspended by the House of Representatives for serious
disorderly behavior for making a privilege speech imputing "malicious charges" against the
President of the Philippines. Osmena, Jr. invoked the power of review of this Court but the Court
once more did not interfere with Congress' power to discipline its members.
The contours of the political question doctrine have always been tricky. To be sure, the Court
did not always stay its hand whenever the doctrine is invoked. In the 1949 case of Avelino v.
Cuenco,18 Senate President Jose Avelino, who was deposed and replaced, questioned his
successor's title claiming that the latter had been elected without a quorum. The petition was
initially dismissed on the ground that the selection of Senate President was an internal matter and
not subject to judicial review.19 On reconsideration, however, the Court ruled that it could assume
jurisdiction over the controversy in light of subsequent events justifying intervention among which
was the existence of a quorum.20 Though the petition was ultimately dismissed, the Court declared
respondent Cuenco as the legally elected Senate President.
In the 1957 case of Tanada v. Cuenco,21 the Court assumed jurisdiction over a dispute
involving the formation and composition of the Senate Electoral Tribunal. It rejected the Solicitor
General's claim that the dispute involved a political question. Instead, it declared that the Senate is
not clothed with "full discretionary authority" in the choice of members of the Senate Electoral
Tribunal and the exercise of its power thereon is subject to constitutional limitations which are
mandatory in nature.22 It held that under the Constitution, the membership of the Senate Electoral
Tribunal was designed to insure the exercise of judicial impartiality in the disposition of election
contests affecting members of the lawmaking body.23 The Court then nullified the election to the
Senate Electoral Tribunal made by Senators belonging to the party having the largest number of
votes of two of their party members but purporting to act on behalf of the party having the second
highest number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed judgment on whether Congress
had formed the Commission on Appointments in accordance with the Constitution and found that it
did not. It declared that the Commission on Appointments is a creature of the Constitution and its
power does not come from Congress but from the Constitution.
The 1967 case of Gonzales v. Comelec25 and the 1971 case of Tolentino v. Comelec26
abandoned Mabanag v. Lopez-Vito. The question of whether or not Congress, acting as a
constituent assembly in proposing amendments to the Constitution violates the Constitution was
held to be a justiciable and not a political issue. In Gonzales, the Court ruled:
"It is true that in Mabanag v. Lopez-Vito, this Court characterizing the issue submitted thereto as a
political one, declined to pass upon the question whether or not a given number of votes cast in
Congress in favor of a proposed amendment to the Constitution-which was being submitted to the
people for ratification-satisfied the three-fourths vote requirement of the fundamental law. The force
of this precedent has been weakened, however, by Suanes v. Chief Accountant of the Senate,
Avelino v. Cuenco, Tanada v. Cuenco, and Macias v. Commission on Elections. In the first, we held
that the officers and employees of the Senate Electoral Tribunal are under its supervision and
control, not of that of the Senate President, as claimed by the latter; in the second, this Court
proceeded to determine the number of Senators necessary for a quorum in the Senate; in the third,
we nullified the election, by Senators belonging to the party having the largest number of votes in
said chamber, purporting to act on behalf of the party having the second largest number of votes
therein, of two (2) Senators belonging to the first party, as members, for the second party, of the
Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress
purporting to apportion the representative districts for the House of Representatives upon the
ground that the apportionment had not been made as may be possible according to the number of
inhabitants of each province. Thus, we rejected the theory, advanced in these four cases, that the
issues therein raised were political questions the determination of which is beyond judicial review.27
The Court explained that the power to amend the Constitution or to propose amendments
thereto is not included in the general grant of legislative powers to Congress. As a constituent
assembly, the members of Congress derive their authority from the fundamental law and they do
not have the final say on whether their acts are within or beyond constitutional limits.28 This ruling
was reiterated in Tolentino which held that acts of a constitutional convention called for the
purpose of proposing amendments to the Constitution are at par with acts of Congress acting as a
constituent assembly.29
In sum, this Court brushed aside the political question doctrine and assumed
jurisdiction whenever it found constitutionally-imposed limits on the exercise of powers
conferred upon the Legislature.30
The Court hewed to the same line as regards the exercise of Executive power. Thus, the
respect accorded executive discretion was observed in Severino v. Governor-General,31 where it
was held that the Governor-General, as head of the executive department, could not be compelled
by mandamus to call a special election in the town of Silay for the purpose of electing a municipal
president. Mandamus and injunction could not lie to enforce or restrain a duty which is
discretionary. It was held that when the Legislature conferred upon the Governor-General powers
and duties, it did so for the reason that he was in a better position to know the needs of the country
than any other member of the executive department, and with full confidence that he will perform
such duties as his best judgment dictates.32
Similarly, in Abueva v. Wood,33 the Court held that the Governor-General could not be
compelled by mandamus to produce certain vouchers showing the various expenditures of the
Independence Commission. Under the principle of separation of powers, it ruled that it was not
intended by the Constitution that one branch of government could encroach upon the field of duty
of the other. Each department has an exclusive field within which it can perform its part within
certain discretionary limits.34 It observed that "the executive and legislative departments of
government are frequently called upon to deal with what are known as political questions, with
which the judicial department of government has no intervention. In all such questions, the courts
uniformly refused to intervene for the purpose of directing or controlling the actions of the other
department; such questions being many times reserved to those departments in the organic law of
the state."35
In Forties v. Tiaco,36 the Court also refused to take cognizance of a case enjoining the Chief
Executive from deporting an obnoxious alien whose continued presence in the Philippines was
found by him to be injurious to the public interest. It noted that sudden and unexpected conditions
may arise, growing out of the presence of untrustworthy aliens, which demand immediate action.
The President's inherent power to deport undesirable aliens is universally denominated as political,
and this power continues to exist for the preservation of the peace and domestic tranquility of the
nation.37
In Manalang v. Quitoriano,38 the Court also declined to interfere in the exercise of the
President's appointing power. It held that the appointing power is the exclusive prerogative of the
President, upon which no limitations may be imposed by Congress, except those resulting from the
need of securing concurrence of the Commission on Appointments and from the exercise of the
limited legislative power to prescribe qualifications to a given appointive office.
We now come to the exercise by the President of his powers as Commander-in-Chief vis-
a-vis the political question doctrine. In the 1940's, this Court has held that as Commander-in-Chief
of the Armed Forces, the President has the power to determine whether war, in the legal sense, still
continues or has terminated. It ruled that it is within the province of the political department and not
of the judicial department of government to determine when war is at end.39
In 1952, the Court decided the landmark case of Montenegro v. Castaneda.40 President
Quirino suspended the privilege of the writ of habeas corpus for persons detained or to be detained
for crimes of sedition, insurrection or rebellion. The Court, citing Barcelon, declared that the
authority to decide whether the exigency has arisen requiring the suspension of the privilege
belongs to the President and his decision is final and conclusive on the courts.41
Barcelon was the ruling case law until the 1971 case of Lansang v. Garcia came.42 Lansang
reversed the previous cases and held that the suspension of the privilege of the writ of habeas
corpus was not a political question. According to the Court, the weight of Barcelon was diluted by
two factors: (1) it relied heavily on Martin v. Mott, which involved the U.S. President's power to call
out the militia which is a much broader power than suspension of the privilege of the writ; and (2)
the privilege was suspended by the American Governor-General whose act, as representative of
the sovereign affecting the freedom of its subjects, could not be equated with that of the President
of the Philippines dealing with the freedom of the sovereign Filipino people.
The Court declared that the power to suspend the privilege of the writ of habeas corpus
is neither absolute nor unqualified because the Constitution sets limits on the exercise of
executive discretion on the matter. These limits are: (1) that the privilege must not be suspended
except only in cases of invasion, insurrection or rebellion or imminent danger thereof; and (2) when
the public safety requires it, in any of which events the same may be suspended wherever during
such period the necessity for the suspension shall exist. The extent of the power which may be
inquired into by courts is defined by these limitations.43
On the vital issue of how the Court may inquire into the President's exercise of power, it ruled
that the function of the Court is not to supplant but merely to check the Executive; to ascertain
whether the President has gone beyond the constitutional limits of his jurisdiction, not to exercise
the power vested in him or to determine the wisdom of his act. Judicial inquiry is confined to the
question of whether the President did not act arbitrarily.44 Using this yardstick, the Court found that
the President did not.
The emergency period of the 1970's flooded the Court with cases which raised the political
question defense. The issue divided the Court down the middle. Javellana v. Executive
Secretary45 showed that while a majority of the Court held that the issue of whether or not the
1973 Constitution had been ratified in accordance with the 1935 Constitution was justiciable, a
majority also ruled that the decisive issue of whether the 1973 Constitution had come into force and
effect, with or without constitutional ratification, was a political question.46
The validity of the declaration of martial law by then President Marcos was next litigated before
the Court. In Aquino, Jr. v. Enrile,47 it upheld the President's declaration of martial law. On
whether the validity of the imposition of martial law was a political or justiciable question, the Court
was almost evenly divided. One-half embraced the political question position and the other half
subscribed to the justiciable position in Lansang. Those adhering to the political question doctrine
used different methods of approach to it.48
In 1983, the Lansang ruling was weakened by the Court in Garcia-Padilla v. Enrile.49 The
petitioners therein were arrested and detained by the Philippine Constabulary by virtue of a
Presidential Commitment Order (PCO). Petitioners sought the issuance of a writ of habeas corpus.
The Court found that the PCO had the function of validating a person's detention for any of the
offenses covered in Proclamation No. 2045 which continued in force the suspension of the privilege
of the writ of habeas corpus. It held that the issuance of the PCO by the President was not subject
to judicial inquiry.50 It went further by declaring that there was a need to re-examine Lansang with a
view to reverting to Barcelon and Montenegro. It observed that in times of war or national
emergency, the President must be given absolute control for the very life of the nation and
government is in great peril. The President, it intoned, is answerable only to his conscience, the
people, and God.51
But barely six (6) days after Garcia-Padilla, the Court promulgated Morales, Jr. v. Enrile52
reiterating Lansang. It held that by the power of judicial review, the Court must inquire into every
phase and aspect of a person's detention from the moment he was taken into custody up to the
moment the court passes upon the merits of the petition. Only after such a scrutiny can the court
satisfy itself that the due process clause of the Constitution has been met.53
It is now history that the improper reliance by the Court on the political question
doctrine eroded the people's faith in its capacity to check abuses committed by the then
Executive in the exercise of his commander-in-chief powers, particularly violations against
human rights. The refusal of courts to be pro-active in the exercise of its checking power
drove the people to the streets to resort to extralegal remedies. They gave birth to EDSA.
Two lessons were not lost to the members of the Constitutional Commission that drafted the
1987 Constitution. The first was the need to grant this Court the express power to review the
exercise of the powers as commander-in-chief by the President and deny it of any discretion to
decline its exercise. The second was the need to compel the Court to be pro-active by
expanding its jurisdiction and, thus, reject its laid back stance against acts constituting grave abuse
of discretion on the part of any branch or instrumentality of government. Then Chief Justice
Roberto Concepcion, a member of the Constitutional Commission, worked for the insertion of the
second paragraph of Section 1, Article VIII in the draft Constitution,54 which reads:
"Sec. 1. x x x.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government."
The language of the provision clearly gives the Court the power to strike down acts amounting to
grave abuse of discretion of both the legislative and executive branches of government.
We should interpret Section 18, Article VII of the 1987 Constitution in light of our constitutional
history. The provision states:
"Sec. 18. The 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. In case of invasion or rebellion,
when the public safety requires it, he may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or place the Philippines or any part thereof under
martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to
Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular
or special session, may revoke such proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President, the Congress may, in the same manner,
extend such proclamation or suspension for a period to be determined by Congress, if the invasion
or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon
within thirty days from its filing.
x x x."
It is clear from the foregoing that the President, as Commander-in-Chief of the armed forces
of the Philippines, may call out the armed forces subject to two conditions: (1) whenever it
becomes necessary; and (2) to prevent or suppress lawless violence, invasion or rebellion.
Undeniably, these conditions lay down the sine qua requirement for the exercise of the
power and the objective sought to be attained by the exercise of the power. They define the
constitutional parameters of the calling out power. Whether or not there is compliance with
these parameters is a justiciable issue and is not a political question.
I am not unaware that in the deliberations of the Constitutional Commission, Commissioner
Bernas opined that the President's exercise of the "calling out power," unlike the suspension of the
privilege of the writ of habeas corpus and the declaration of martial law, is not a justiciable issue but
a political question and therefore not subject to judicial review.
It must be borne in mind, however, that while a member's opinion expressed on the floor of the
Constitutional Convention is valuable, it is not necessarily expressive of the people's intent.55 The
proceedings of the Convention are less conclusive on the proper construction of the fundamental
law than are legislative proceedings of the proper construction of a statute, for in the latter case it is
the intent of the legislature the courts seek, while in the former, courts seek to arrive at the intent of
the people through the discussions and deliberations of their representatives.56 The conventional
wisdom is that the Constitution does not derive its force from the convention which framed it, but
from the people who ratified it, the intent to be arrived at is that of the people.57
It is true that the third paragraph of Section 18, Article VII of the 1987 Constitution
expressly gives the Court the power to review the sufficiency of the factual bases used by
the President in the suspension of the privilege of the writ of habeas corpus and the
declaration of martial law. It does not follow, however, that just because the same provision
did not grant to this Court the power to review the exercise of the calling out power by the
President, ergo, this Court cannot pass upon the validity of its exercise.
Given the light of our constitutional history, this express grant of power merely means
that the Court cannot decline the exercise of its power because of the political question
doctrine as it did in the past. In fine, the express grant simply stresses the mandatory duty
of this Court to check the exercise of the commander-in-chief powers of the President. It
eliminated the discretion of the Court not to wield its power of review thru the use of the
political question doctrine.
It may be conceded that the calling out power may be a "lesser power" compared to the power
to suspend the privilege of the writ of habeas corpus and the power to declare martial law. Even
then, its exercise cannot be left to the absolute discretion of the Chief Executive as Commander-in-
Chief of the armed forces, as its impact on the rights of our people protected by the Constitution
cannot be downgraded. We cannot hold that acts of the commander-in-chief cannot be reviewed on
the ground that they have lesser impact on the civil and political rights of our people. The exercise
of the calling out power may be "benign" in the case at bar but may not be so in future cases.
The counsel of Mr. Chief Justice Enrique M. Fernando, in his Dissenting and Concurring
Opinion in Lansang that it would be dangerous and misleading to push the political question
doctrine too far, is apropos. It will not be complementary to the Court if it handcuffs itself to
helplessness when a grievously injured citizen seeks relief from a palpably unwarranted use of
presidential or military power, especially when the question at issue falls in the penumbra between
the "political" and the "justiciable. "58
We should not water down the ruling that deciding whether a matter has been committed by the
Constitution to another branch of government, or whether the action of that branch exceeds
whatever authority has been committed, is a delicate exercise in constitutional interpretation, and is
a responsibility of the Court as ultimate interpreter of the fundamental law.59 When private
justiciable rights are involved in a suit, the Court must not refuse to assume jurisdiction even though
questions of extreme political importance are necessarily involved.60 Every officer under a
constitutional government must act according to law and subject to the controlling power of the
people, acting through the courts, as well as through the executive and legislative. One department
is just as representative of the other, and the judiciary is the department which is charged with the
special duty of determining the limitations which the law places upon all official action.61 This
historic role of the Court is the foundation stone of a government of laws and not of men.62
I join the Decision in its result.
SEPARATE OPINION
VITUG, J.:
In the equation of judicial power, neither of two extremes - one totalistic and the other bounded
- is acceptable nor ideal. The 1987 Constitution has introduced its definition of the term "judicial
power" to be that which -
x x x includes the duty of the courts of justice to settle actual controversies involving rights which
are legally demandable and enforceable, and to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.1
It is not meant that the Supreme Court must be deemed vested with the awesome power of
overseeing the entire bureaucracy, let alone of institutionalizing judicial absolutism, under its
mandate. But while this Court does not wield unlimited authority to strike down an act of its two co-
equal branches of government, it must not wither under technical guise on its constitutionally
ordained task to intervene, and to nullify if need be, any such act as and when it is attended by
grave abuse of discretion amounting to lack or excess of jurisdiction. The proscription then
against an interposition by the Court into purely political questions, heretofore known, no longer
holds within that context.
Justice Feria, in the case of Avelino vs. Cuenco,2 has aptly elucidated in his concurring opinion:
"x x x [I] concur with the majority that this Court has jurisdiction over cases like the present x x x so
as to establish in this country the judicial supremacy, with the Supreme Court as the final arbiter, to
see that no one branch or agency of the government transcends the Constitution, not only in
justiceable but political questions as well."3
It is here when the Court must have to depart from the broad principle of separation of powers that
disallows an intrusion by it in respect to the purely political decisions of its independent and
coordinate agencies of government.
The term grave abuse of discretion is long understood in our jurisprudence as being, and
confined to, a capricious and whimsical or despotic exercise of judgment amounting to lack or
excess of jurisdiction. Minus the not-so-unusual exaggerations often invoked by litigants in the duel
of views, the act of the President in simply calling on the Armed Forces of the Philippines, an
executive prerogative, to assist the Philippine National Police in "joint visibility patrols" in
the metropolis does not, I believe, constitute grave abuse of discretion that would now warrant an
exercise by the Supreme Court of its extraordinary power as so envisioned by the fundamental law.
Accordingly, I vote for the dismissal of the petition.
MENDOZA, J., concurring and dissenting:
I concur in the opinion of the Court insofar as it holds petitioner to be without standing to
question the validity of LOI 02/2000 which mandates the Philippine Marines to conduct "joint
visibility" patrols with the police in Metro Manila. But I dissent insofar as the opinion dismisses the
petition in this case on other grounds. I submit that judgment on the substantive constitutional
issues raised by petitioner must await an actual case involving real parties with "injuries" to show
as a result of the operation of the challenged executive action. While as an organization for the
advancement of the rule of law petitioner has an interest in upholding the Constitution, its interest is
indistinguishable from the interest of the rest of the citizenry and falls short of that which is
necessary to give petitioner standing.
As I have indicated elsewhere, a citizens' suit challenging the constitutionality of governmental
action requires that (1) the petitioner must have suffered an "injury in fact" of an actual or imminent
nature; (2) there must be a causal connection between the injury and the conduct complained of;
and (3) the injury is likely to be redressed by a favorable action by this Court.1 The "injury in fact"
test requires more than injury to a cognizable interest. It requires that the party seeking review be
himself among those injured.2
My insistence on compliance with the standing requirement is grounded in the conviction that
only a party injured by the operation of the governmental action challenged is in the best position to
aid the Court in determining the precise nature of the problem presented. Many a time we have
adverted to the power of judicial review as an awesome power not to be exercised save in the most
exigent situation. For, indeed, sound judgment on momentous constitutional questions is not likely
to be reached unless it is the result of a clash of adversary arguments which only parties with direct
and specific interest in the outcome of the controversy can make. This is true not only when we
strike down a law or official action but also when we uphold it.
In this case, because of the absence of parties with real and substantial interest to protect, we
do not have evidence on the effect of military presence in malls and commercial centers, i.e.,
whether such presence is coercive or benign. We do not know whether the presence of so many
marines and policemen scares shoppers, tourists, and peaceful civilians, or whether it is reassuring
to them. To be sure, the deployment of troops to such places is not like parading them at the
Luneta on Independence Day. Neither is it, however, like calling them out because of actual fighting
or the outbreak of violence.
We need to have evidence on these questions because, under the Constitution, the President's
power to call out the armed forces in order to suppress lawless violence, invasion or rebellion is
subject to the limitation that the exercise of this power is required in the interest of public safety.3
Indeed, whether it is the calling out of the armed forces alone in order to suppress lawless
violence, invasion or rebellion or also the suspension of the privilege of the writ of habeas corpus or
the proclamation of martial law (in case of invasion or rebellion), the exercise of the President's
powers as commander-in-chief, requires proof - not mere assertion.4 As has been pointed out,
"Standing is not àn ingenious academic exercise in the conceivable' . . . but requires . . . a factual
showing of perceptible harm."5
Because of the absence of such record evidence, we are left to guess or even speculate on
these questions. Thus, at one point, the majority opinion says that what is involved here is not even
the calling out of the armed forces but only the use of marines for law enforcement. (p. 13) At
another point, however, the majority opinion somersaults and says that because of bombings
perpetrated by lawless elements, the deployment of troops in shopping centers and public utilities
is justified. (p. 24)
We are likely to err in dismissing the suit brought in this case on the ground that the calling out
of the military does not violate the Constitution, just as we are likely to do so if we grant the petition
and invalidate the executive issuance in question. For indeed, the lack of a real, earnest and vital
controversy can only impoverish the judicial process. That is why, as Justice Laurel emphasized in
the Angara case, "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."6
We are told, however, that the issues raised in this case are of "paramount interest" to the
nation. It is precisely because the issues raised are of paramount importance that we should all the
more forego ruling on the constitutional issues raised by petitioner and limit the dismissal of this
petition on the ground of lack of standing of petitioner. A Fabian policy of leaving well enough alone
is a counsel of prudence.
For these reasons and with due appreciation of the scholarly attention lavished by the majority
opinion on the constitutional questions raised, I am constrained to limit my concurrence to the
dismissal of this suit on the ground of lack of standing of petitioner and the consequent lack of an
actual case or controversy.
1 Sec. 1, Article VIII, 1987 Constitution.

2 Tanada v. Cuenco, 103 Phil. 1051, 1067 [1957], citing 16 C.J.S. 413.
3 Tanada v. Cuenco, supra, 1067, quoting In re McConaughy, 119 NW 408 [1909].
4 Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 859 [1996].
5 5 Phil. 87 [1905].
6 Id. at 97.
7 Id. at 104.
8 See Cruz, Philippine Political law, p. 87 [1998].
9 Id. at 113-114.
10 Id. at 106-107.
11 46 Phil. 83 [1924].
12 Id. at 97.
13 77 Phil. 192 [1946].
14 78 Phil. 1 [1947].
15 Id. at 4-5. The court also adopted the enrolled bill theory which, like findings under the political question doctrine, imports absolute
verity on the courts-at 12.
16 97 Phil. 358 [1955].
17 109 Phil. 863 [1960].
18 83 Phil. 17 [1949].
19 Id. at 21-22.
20 Id. at 68-69.
21 103 Phil. 1051 [1957].
22 Id. at 1068.
23 Id. at 1083.
24 5 SCRA 1 [1962].
25 21 SCRA 774 [1967].
26 41 SCRA 702 [1971].
27 Id. at 785-786.
28 Id. at 787.
29 41 SCRA at 713.
30 Bernas, The 1987 Constitution of the Republic of the Philippines A Commentary, p. 861 [1996].
31 16 Phil. 366 [1910].
32 Id. at 401.
33 45 Phil. 612 [1924].
34 Id. At 630.
35 Id. at 637-638.
36 16 Phil. 534 [1910].
37 Id. at 568-569, 576.
38 94 Phil. 903 [1954].
39 Untal v. Chief of Staff, AFP, 84 Phil. 586 [1949]; Raquiza v. Bradford, 75 Phil. 50 [1945].
40 91 Phil. 882 [1952].
41 Id. at 887.
42 42 SCRA 448 [1971].
43 Id. at 474.
44 Id. at 480-481.
45 50 SCRA 30 [1973].
46 Id. at 138, 140-141.
47 59 SCRA 183 [1973].
48 Ibid.
49 121 SCRA 472 [1983].
50 Id. at 490-491.
51 Id. at 500-501.
52 121 SCRA 538 [1983].
53 Id. at 563.
54 See Concepcions sponsorship speech, I Record 434-435; see also Bernas, the Constitution of the Republic of the Philippines A
Commentary, p. 863 [1996].
55 J.M. Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, 423-426 [1970].
56 Vera v. Avelino, 77 Phil. 192, 215 [1946]; see also Agpalo, Statutory Construction, 4th ed., p. 454 [1998].
57 Black, Handbook on the Construction and Interpretation of the laws, 2d ed., p. 39 [1911].
58 SCRA at 506-507, see also Rossiter, The Supreme Court and the Commander-in-Chief, pp. 16-17 [1951].
59 Baker v. Carr, 7 L Ed 2d at 682.
60 Willoughby on the Constitution of the United States, vol. 3, 2d ed., p. 1336 [1929].
61 Tanada v. Macapagal, 103 Phil. At 1067, quoting In re McConaughy, 119 NW 408 [1909].
62 Id.
1 Section 1, Article VIII of the Constitution.
2 83 Phil. 17.
3 Sen. Miriam Defensor Santiago, et al. vs. Sen. Teofisto Guingona, Jr., et al., 298 SCRA 756.
1 Tatad v. Garcia, 243 SCRA 436, 473 (1995) (concurring). Accord, Telecommunication and Broadcast Attorneys of the Philippines v.
COMELEC, 289 SCRA 343 (1998).
2 Lujan v. Defenders of Wildlife, 504 U.S. 555, 119 L. Ed. 2d 351 (1992).
3 See CONST., ART. VII, 18.
4 See Lansang v. Garcia, 42 SCRA 448 (1971).
5 Lujan v. Defenders of Wildlife, supra.
6 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936)
[1] Rollo, pp. 17-21.
[2] As of 19 May 2000, the Marines have been recalled from their areas of deployment to join the military operations in Mindanao,
and replaced by Air Force personnel who took over their functions in the joint visibility patrols. The Air Force personnel, just like the
Marines, were ordered to assist the PNP, also by virtue of LOI 2/2000. Since both the Marines and Air Force belong to the Armed
Forces, the controversy has not been rendered moot and academic by the replacement of the former by the latter. The validity of the
deployment of the armed forces in the joint visibility patrols thus remain an issue.
[3] Rollo, pp. 75-76.
[4] Id., at 75.
[5] Id.
[6] Id.
[7] Rollo, p. 75.
[8] Id., at 17-18.
[9] Id.
[10] Rollo, p. 7.
[11] Id., at 24.
[12] Philippine Constitution Association v. Enriquez, 235 SCRA 506 (1994) citing Luz Farms v. Secretary of the Department of
Agrarian Reform, 192 SCRA 51 (1990); Dumlao v. Commission on Elections, 95 SCRA 392 (1980); and, People v. Vera, 65 Phil. 56
(1937).
[13] Joya v. Presidential Commission on Good Govenment, 225 SCRA 568, 576 (1993).
[14] Ibid., citing House International Building Tenants Association, Inc. v. Intermediate Appellate Court, 151 SCRA 703 (1987).
[15] Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7L. Ed. 2d 663, 678 (1962).
[16] Joya v. Presidential Commission on Good Government, supra note 13, at 579 citing Dumlao v. Commission on Elections, 95
SCRA 392 (1980).
[17] Tatad v. Secretary of the Department of Energy, 281 SCRA 330, 349 (1997) citing Garcia v. Executive Secretary, 211 SCRA 219
(1992); Osmea v. COMELEC, 199 SCRA 750 (1991); Basco v. Pagcor, 197 SCRA 52 (1991); and, Araneta v. Dinglasan, 84 Phil. 368
(1949).
[18] Santiago v. COMELEC, 270 SCRA 106 (1997); Joya v. Presidential Commission on Good Government, 225 SCRA 568 (1993);
Daza v. Singson, 180 SCRA 496 (1989). As formulated by Mr. Justice (now Chief Justice) Hilario G. Davide, Jr. in Kilosbayan, Inc.
vs. Guingona, Jr., [232 SCRA 110 (1994)] "(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 the issues raised," favorably citing our ruling in the Emergency Powers
Cases [L-2044 (Araneta v. Dinglasan); L-2756 (Araneta v. Angeles); L-3054 (Rodriquez v. Tesorero de Filipinas); and L-3056
(Barredo v. COMELEC), 84 Phil. 368 (1940)] where 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, technical rules of
procedure." An inflexible rule on locus standi would result in what Mr. Justice Florentino P. Feliciano aptly described as a doctrinal
ball and chain xxx clamped on our own limbs." [Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995)].
[19] Rollo, p. 12
[20] Article II, Sections 4 and 5 of the Constitution provide:
Sec. 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to defend the
State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal, military or civil
service.
Sec. 5. The 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.
[21] 177 SCRA 668, 694 (1989).
[22] WESTS LEGAL THESAURUS/DICTIONARY (Special Deluxe Edition) p. 440 (1986).
[23] 103 Phil. 1051 (1957).
[24] 369 U.S. 186, 82 S ct. 691, 7 L. Ed. 2d 663, 678 (1962).
[25] Article VIII, Sec. 1 of the 1987 CONSTITUTION.
[26] Santiago v. Guingona, Jr., 298 SCRA 756 (1998).
[27] Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767 (1991).
[28] Marcos v. Manglapus,, supra note 21, see also Daza v. Singson, 180 SCRA 496 (1988); Coseteng v. Mitra, 187 SCRA 377 (1990).
[29] Sinon v. Civil Service Commission, 215 SCRA 410 (1992); See also Producers Bank v. NLRC, 165 SCRA 284 (1988); Litton
Mills v. Galleon Trader, Inc., 163 SCRA 494 (1988).
[30] Ledesma v. Court of Appeals, 278 SCRA 659 (1997).
[31] Bondoc v. Pineda, 201 SCRA 792 (1991).
[32] Drilon v. Lim, 235 SCRA 135 (1994).
[33] Sarmiento v. Mison, 156 SCRA 549 (1987).
[34] II RECORD OF THE CONSTITUTIONAL COMMISSION: PROCEEDINGS AND DEBATES, pp. 409, 412 (1986).
[35] Rollo, p. 75.
[36] Section 3, provides:
Civilian authority, is at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the
State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.
[37] No. 9 of the LOI provides: COORDINATING INSTRUCTIONS:
a. RD, NCRPO is designated as Task Force Commander TULUNGAN.

[38] No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MARINES:
b. Before their deployment/employment, receiving units shall properly brief/orient the troops on police patrol/visibility procedures.
[39] No. 8 of the LOI provides: TASKS:
k. POLICE DISTRICTS/STATIONS
-Provide direction and manage the deployment of all Philippine Marines personnel deployed in your AOR for police visibility
operations.
-Conduct briefing/orientation to Philippine Marines personnel on the dos and donts of police visibility patrols.
-Provide transportation to Philippine Marines from districts headquarters to different stations and PCPs.
-Perform other tasks as directed.
[40] No. 8 of the LOI states: TASKS:
c. RLD/R4
-Coordinate with the Directorate for Logistics for the issuance of the following equipments (sic) to be utilize (sic) by the Philippine
Marines personnel: 500 pieces Probaton, 500 whistle (sic), 500 pieces brazzard blazoned.
-Coordinate with the Directorate for Logistics for the issuance of the following for use of PNP personnel involved in the visibility
patrol operations:
1,000 sets of PNP GOA Uniform
500 each raincoats

500 each Probaton
500 each Whistle
500 each handcuffs

500 each Combat Boots
500 each low cut shoes

-Provide transportation to the Philippine Marines personnel in coordination with LSS, NHQ PNP.
-Provide additional gas allocation to Philippine Marines members of the Inspection Teams.
- Perform other tasks as directed.40

[41] Sec. 5(4), Article XVI, provides:
No member of the Armed Forces in the active service shall, at any time, be appointed in the government including government-owned
and controlled corporations or any of their subsidiaries.
[42] CONSTITUTION, Article IX-C, Section 2; Comelec Resolution No. 3071 (1999), which is entitled In Re Guidelines for the
Designation of Registration Centers and the Accountable Officers for the Polaroid Instant Cameras for Purposes of the Registration of
Voters on 8-9 May 1999 in the Autonomous Region in Muslim Mindanao; Comelec Resolution No. 3059 (1999), which is entitled, In
the Matter of Deputizing the Armed Forces of the Philippines and the Three (3) AFP Components, Namely: Philippine Army,
Philippine Navy and Philippine Air Force, for the Purpose of Ensuring Free, Orderly, Honest and Peaceful Precinct Mapping,
Registration of Voters and the Holding of the September 13, 1999 Elections in the Autonomous Region in Muslim Mindanao
(ARMM); Republic Act No. 7166 (1991), Section 33, which is entitled An Act Providing for Synchronized National and Local
Elections and for Electoral Reforms, Authorizing Appropriations therefor, and for other Purposes; Administrative Code of 1987, Book
V, Title I, Subtitle C, Chapter 1, Sections 2 (4) and 3; Batas Pambansa Blg. 881, Article VI, Sections 52 (b) and 57 (3) (1985), which is
also known as Omnibus Election Code.
[43] Republic Act No. 95 (1947), Section 5, which is entitled An Act to Incorporate the Philippine National Red Cross Section;
Republic Act No. 855 (1953), Section 1, which is entitled An Act to Amend Section V of Republic Act Numbered Ninety-Five,
entitled An Act to Incorporate the Philippine National Red Cross.
[44] Republic Act No. 7077 (1991), Article III, Section 7, which is entitled An Act Providing for the Development, Administration,
Organization, Training, Maintenance and Utilization of the Citizen Armed Forces of the Armed Forces of the Philippines and for other
Purposes.
[45] Republic Act No. 6847 (1990), Section 7, which is entitled An Act Creating and Establishing The Philippine Sports Commission,
Defining its Powers, Functions and Responsibilities, Appropriating Funds therefor, and for other Purposes.
[46] Republic Act No. 8492 (1998), Section 20, which is entitled An Act Establishing a National Museum System, Providing for its
Permanent Home and for other Purposes.
[47] Republic Act No. 8550 (1998), Section 124, which is entitled An Act Providing for the Development, Management and
Conservation of the Fisheries and Aquatic Resources, Integrating All Laws Pertinent Thereto, and for other Purposes; Memorandum
Circular No. 150 (1996), which is entitled Amending Memorandum Circular No. 128, dated July 20, 1995 by Reorganizing the
Presidential Task Force on Tubbataha Reef National Marine Park; Executive Order No. 544 (1979), Letter I, which is entitled Creating
a Presidential Committee for the Conservation of the Tamaraw, Defining its Powers and for other Purposes.
[48] Executive Order No. 129-A (1987) Section 5 (m), which is entitled Modifying Executive Order No. 129 Reorganizing and
Strengthening the Department of Agrarian Reform and for other Purposes.
[49] Republic Act No. 1937 (1957), Section 2003, which is entitled An Act to Revised and Codify the Tariff and Customs Laws of the
Philippines; Executive Order No. 45 (1998), which is entitled Creating a Presidential Anti-Smuggling Task Force to Investigate and
Prosecute Crimes Involving Large-Scale Smuggling and other Frauds upon Customs and Providing Measures to Expedite Seizure
Proceedings;
[50] These cases involved joint military and civilian law enforcement operations: People v. Escalante, G.R No. 106633, December 1,
1994; People v. Bernardo, G.R. No. 97393, March 17, 1993; People v. De la Cruz, G.R. No. 83260, April 18, 1990; Guanzon v. de
Villa, 181 SCRA 623, 631 (1990). (This case recognizes the complementary roles of the PNP and the military in conducting anti-crime
campaigns, provided that the peoples rights are not violated in these words: If the military and the police must conduct concerted
campaigns to flush out and catch criminal elements, such drives must be consistent with the constitutional and statutory rights of all
people affected by such actions. The creation of the Task Force also finds support in Valmonte v. de Villa, 185 SCRA 665 (1990).
Executive Order No. 62 (1999), which is entitled Creating the Philippine Center on Transnational Crime to Formulate and Implement
a Concerted Program of Action of All Law Enforcement, Intelligence and other Agencies for the Prevention and Control of
Transnational Crime; Executive Order No. 8 (1998), which is entitled Creating a Presidential Anti-Organized Crime Commission and
a Presidential Anti-Organized Crime Task Force, to Investigate and Prosecute Criminal Elements in the Country; Executive Order No.
280 (1995), which is entitled Creating a Presidential Task Force of Intelligence and Counter-Intelligence to Identify, Arrest and Cause
the Investigation and Prosecution of Military and other Law Enforcement Personnel on their Former Members and Their Cohorts
Involved in Criminal Activities.
[51] Memorandum Circular No. 141 (1996), which is entitled Enjoining Government Agencies Concerned to Extend Optimum
Support and Assistance to the Professional Regulation Commission in its Conduct of Licensure Examinations.
[52] Memorandum Circular No. 32 (1999), which is entitled Directing the Government Agencies Concerned to Extend Maximum
Support and Assistance to the National Educational Testing and Research Center (NETRC) of the Department of Education, Culture
and Sports (DECS) in the Conduct of Tests of National Coverage.
[53] Executive Order No. 61 (1999), which is entitled Creating the National Drug Law Enforcement and Prevention Coordinating
Center to Orchestrate Efforts of national Government Agencies, Local Government Units, and Non-Government Organizations for a
More Effective Anti-Drug Campaign.
[54] Republic Act No. 4089 (1964), which is entitled An Act Making the City Health Officer of Bacolod City the Local Civil
Registrar, Amending for the Purpose Section Forty-Three of the Charter of said City;" Republic Act No. 537 (1950), which is entitled
"An Act to Revise the Charter of Quezon City; Commonwealth Act No. 592 (1940), which is entitled An Act to Create the City of
Dansalan; Commonwealth Act No. 509 (1939), which is entitled An Act to Create Quezon City; Commonwealth Act No. 326 (1938),
which is entitled An Act Creating the City of Bacolod; Commonwealth Act No. 39 (1936), which is entitled An Act Creating the City
of Zamboanga; Commonwealth Act No. 51 (1936), which is entitled An Act Creating the City of Davao.
[55] Republic Act No. 36 (1946), which is entitled Census Act of Nineteen Hundred and Forty-Six.
[56] Republic Act No. 776 (1952), Section 5, which is entitled An Act to Reorganize the Civil Aeronautics Board and the Civil
Aeronautics Administration, To Provide for the Regulation of Civil Aeronautics in the Philippines and Authorizing the Appropriation
of Funds Therefor.
[57] Republic Act No. 6613 (1972), Section 4, which is entitled An Act Declaring a Policy of the State to Adopt Modern Scientific
Methods to Moderate Typhoons and Prevent Destruction by Floods, Rains and Droughts, Creating a Council on Typhoons and Prevent
Destruction by Flood, Rains and Droughts, Creating a Council on Typhoon Moderation and Flood Control Research and Development,
Providing for its Powers and Functions and Appropriating Funds Therefor.
[58] Local Government Code of 1991, Book I, Title Seven, Section 116.
[59] This theory on gloss of executive power was advanced by Justice Frankfurter in his concurring opinion in Youngstown Sheet and
Tube v. Sawyer, 343 US 579, 610-611 (1952).
[60] Bissonette v. Haig, 766 F.2d 1384, 1389 (1985).
[61] 18 U.S.C.A 1385 (1878).

[62] Ibid.
[63] Bissonette v. Haig, supra note 60, at 1390.
[64] A power regulatory in nature is one which controls or directs. It is proscriptive if it prohibits or condemns and compulsory if it
exerts some coercive force. See US v. Yunis, 681 F.Supp. 891 (D.D.C., 1988). See also FOURTH AMENDMENT AND POSSE
COMITATUS ACT RESTRICTIONS ON MILITARY INVOLVEMENT IN CIVIL LAW ENFORCEMENT,
[65] L.O.I. 02/2000, TULUNGAN, Rollo, pp. 17-22.
[66] No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT NCRPO-PHILIPPINE MARINES:
a. The PNP NCPRO thru Police Districts will continue to deploy uniformed PNP personnel dedicated for police visibility patrols in
tandem with the Philippine Marines.
b. Before their deployment/employment, receiving units shall properly brief/orient the troops on police patrol/visibility
procedures.66
[67] Supra note 34.
[68] Supra note 32.
[69] No. 9 of the LOI states:
d. In case of apprehensions, arrested person/s shall be brought to the nearest police stations/PCPs.
[70] Supra note 35.
[71] Rollo, p. 70.

EN BANC
[G.R. No. 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 Of ce, and FLORENDO S. PABLO, in
his capacity as Director, Bureau of Printing , respondents.
Lorenzo M. Tañada, Abraham F. Sarmiento, Mabini Legal Aid Committee for petitioners
Solicitor General for respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE; LEGAL

PERSONALITY OF PETITIONERS TO FILE MANDAMUS TO COMPEL PUBLICATION,
RECOGNIZED. — The subject of the petition is to compel the performance of a public duty
and petitioners maintain they need not show any speci c interest for their petition to be
given due course. The right sought to be enforced by petitioners 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 dif cult to conceive of any other person to
initiate the same, considering that the Solicitor General, the government of cer generally
empowered to represent the people, has entered his appearance for respondents in this
case.
2. ID.; ID.; ID.; ARTICLE 2 CIVIL CODE DOES NOT PRECLUDE PUBLICATION IN THE
OFFICIAL GAZETTE EVEN IF THE LAW ITSELF PROVIDES FOR DATE OF ITS EFFECTIVITY.
— That publication in the Of cial Gazette is not a sine qua non requirement for the
effectivity of laws where the laws themselves provide for their own effectivity dates is
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.
3. ID.; ID.; ID.; RATIONALE. — The clear object of Article 2 of the Civil Code 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.
4. ID.; ID.; ID.; PUBLICATION OF PRESIDENTIAL ISSUANCES "OF A PUBLIC NATURE" OR "OF
GENERAL APPLICABILITY," A REQUIREMENT OF DUE PROCESS; UNPUBLISHED
PRESIDENTIAL ISSUANCES WITHOUT FORCE AND EFFECT. — The publication of all
presidential issuances "of a public nature" or "of general applicability" is mandated by law.
Obviously, presidential decrees that provide for nes, forfeitures or penalties for their
violation or otherwise impose a burden on the people, such as tax and revenue measures,
fall within this category. Other presidential issuances which apply only to particular
persons such as administrative and executive orders need not be published on the
assumption that they have been circularized to all concerned. (People vs. Que Po Lay, 94
Phil. 640; Balbuena, et al. vs. Secretary of Education, et al., 110 Phil. 150) 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 rst be of cially and speci cally informed of its contents. The
Court therefore declares that presidential issuances of general application, which have not
been published, shall have no force and effect.
5. ID.; ID.; ID.; DECLARATION OF INVALIDITY OF UNPUBLISHED PRESIDENTIAL DECREES
DOES NOT AFFECT THOSE WHICH HAVE BEEN ENFORCED OR IMPLEMENTED PRIOR TO
THEIR PUBLICATION. — The implementation/enforcement of presidential decrees prior to
their publication in the Of cial 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."
FERNANDO, C.J., concurring with qualification:
1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION REQUIREMENT NEED NOT BE
CONFINED TO THE OFFICIAL GAZETTE. — 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. But such publication required need not be con ned to the Of cial Gazette.
From the pragmatic standpoint, there is an advantage to be gained. It conduces to
certainty. That is to 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 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 Of cial Gazette. There is no such requirement in the
Constitution.
2. ID.; ID.; ID.; ID.; REQUIREMENT IN ART. 2 CIVIL CODE DOES NOT HAVE THE JUDICIAL
FORCE OF A CONSTITUTIONAL COMMAND. — The Chief Justice's quali ed concurrence
goes no further than to af rm that publication is essential to the effectivity of a legislative
or executive act of a general application. He is not in agreement with the view that such
publication must be in the Of cial Gazette. The Civil Code itself in its Article 2 expressly
recognizes that the rule as to laws taking effect after fteen days following the completion
of their publication in the Of cial 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.
3. ID.; ID.; ID.; TO DECLARE UNPUBLISHED PRESIDENTIAL ISSUANCES WITHOUT LEGAL
FORCE AND EFFECT WOULD RESULT IN UNDESIRABLE CONSEQUENCES. — Nor does the
Chief Justice agree with the rather sweeping conclusion in the opinion of Justice Escolin
that presidential decrees and executive acts not thus previously published in the Of cial
Gazette would be devoid of any legal character. That would be, in his opinion, to go too far.
It may be fraught, as earlier noted, with undesirable consequences. He nds himself
therefore unable to yield assent to such a pronouncement.
TEEHANKEE, J., concurring:
1. CONSTITUTIONAL LAW; STATUTES, PUBLICATION IN THE OFFICIAL GAZETTE;
NECESSARY PURSUANT TO THE BASIC CONSTITUTIONAL REQUIREMENTS OF DUE
PROCESS. — The Rule of Law connotes a body of norms and laws published and
ascertainable and of equal application to all similarly circumstanced and not subject to
arbitrary change but only under certain set procedure. The Court had 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," (People vs. de Dios, G.R. No. L-11003, August 31, 1959, per the
late Chief Justice Paras) 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 rst be published and the people of cially and
specially informed of said contents and its penalties." Without of cial publication in the
Of cial Gazette as required by Article 2 of the Civil Code and Revised Administrative Code,
there would be no basis nor justi cation 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 of cial repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith."
2. ID.; ID.; ID.; RESPONDENTS' CONTENTION THAT "ONLY LAWS WHICH ARE SILENT AS
TO THEIR EFFECTIVITY DATE NEED TO BE PUBLISHED IN THE OFFICIAL GAZETTE FOR
THEIR EFFECTIVITY," UNTENABLE. — The plain text and meaning of the Civil Code is that
"laws shall take effect after fteen days following the completion of their publication in the
Of cial 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 had 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." To sustain respondents misreading
that "most laws or decrees specify the date of their effectivity and for this reason,
publication in the Of cial Gazette is not necessary for their effectivity" would be to nullify
and render nugatory the Civil Code's indispensable and essential requirement of prior
publication in the Of cial 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 xed by the Civil Code for its proper
dissemination.
MELENCIO-HERRERA, J., concurring:
CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE;
RETROACTIVITY IN EFFECTIVITY DATE NOT ALLOWED WHERE IT WILL RUN COUNTER TO
CONSTITUTIONAL RIGHTS OR DESTROY VESTED RIGHTS. — There cannot be any question
but that even if a decree provides for a date of effectivity, it has to be published. When a
date effectivity is mentioned in the decree but the decree becomes effective only fteen
(15) days after its publication in the Of cial 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., separate opinion:

1. CONSTITUTIONAL LAW; STATUTES; PUBLICATION IN THE OFFICIAL GAZETTE NOT
ESSENTIAL FOR EFFECTIVITY FOR EFFECTIVITY OF LAWS. — 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 Of cial Gazette. The due process clause is not that
precise. Neither is the publication in the Of cial Gazette required by any statute as a
prerequisite for their effectivity, if said laws already provide for their effectivity date.
2. ID.; ID.; PUBLICATION MAY BE MADE ELSEWHERE THAN IN THE OFFICIAL GAZETTE. —
Article 2 of the Civil Code provides that "laws shall take effect after fteen days following
the completion of their publication in the Of cial 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.
3. ID.; ID.; COMMONWEALTH ACT 638 CANNOT NULLIFY OR RESTRICT OPERATION OF A
STATUTE WITH A PROVISION AS TO ITS EFFECTIVITY. — Not all legislative acts are
required to be published in the Of cial Gazette but only "important" ones "of a public
nature." Moreover, Commonwealth Act No. 638 does not provide that publication in the
Of cial 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 the role.
DECISION
ESCOLIN , J : p
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 Of cial Gazette or otherwise
effectively promulgated, petitioners seek a writ of mandamus to compel respondent
public of cials to publish, and or cause the publication in the Of cial 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: Cdpr
"SEC. 3. Petition for Mandamus. — When any tribunal, corporation, board or

person unlawfully neglects the performance of an act which the law speci cally
enjoins as a duty resulting from an of ce, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or of ce 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 le a veri ed petition in the
proper court alleging the facts with certainty and praying that judgment be
rendered commanding the defendant, immediately or at some other speci ed
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 rst 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 of cers 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 suf cient 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: Cdpr
"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 of cer 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 dif cult to conceive of any other person to initiate the same, considering that the
Solicitor General, the government of cer generally empowered to represent the people,
has entered his appearance for respondents in this case.
Respondents further contend that publication in the Of cial 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 Of cial
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 fteen 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 Of cial
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 fteenth 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 Of cial 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 Of cial Gazette [1] all important
legislative 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
suf cient 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. cdphil
Perhaps at no time since the establishment of the Philippine Republic has the publication
of laws taken so vital signi cance 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 de nite way of informing themselves of the speci c contents
and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion
genrica de leyes, se comprenden tambin 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 rst clause of Section 1 of Commonwealth Act 638 reads: "There shall be
published in the Of cial Gazette . . ." The word "shall" used therein imposes upon
respondent of cials 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 of cial 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 nes, forfeitures or
penalties for their violation or otherwise impose a burden on 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 rst be of cially and speci cally 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 Of cial Gazette as the of cial 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: LLjur
"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, I. & 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 quali cations. 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 of cial.
Questions of rights claimed to have become vested, of status, of prior
determinations deemed to have nality 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 dif cult 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 Of cial 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 Of cial Gazette, only
Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have
not been so published. 1 0 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. In Pesigan vs. Angeles, 1 1 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 of cials 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
Of cial 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 Of cial 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., concur.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.
Gutierrez, Jr., J., 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., 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 unquali edly
impose the requirement of publication in the Of cial 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 con ned to the Of cial 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 Of cial 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 clari cation 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
rst 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
Of cial Gazette. The due process clause is not that precise." 1 I am likewise in agreement
with its closing paragraph: "In ne, 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 suf ces, 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 Of cial 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
Of cial 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, retroactively 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 in rmity. 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 quali ed concurrence goes no further than to af rm 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
Of cial Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as to
laws taking effect after fteen days following the completion of their publication in the
Of cial 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 Of cial
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 nd 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 circumstanced 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 rst be published and the people
officially and specially informed of said contents and its penalties."
Without of cial publication in the Of cial Gazette as required by Article 2 of the Civil Code
and the Revised Administrative Code, there would be no basis nor justi cation 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 of cial 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 Of cial Gazette
for their effectivity" is manifestly untenable. The plain text and meaning of the Civil Code is
that "laws shall take effect after fteen days following the completion of their publication
in the Of cial 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 Of cial 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 Of cial 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 xed by the Civil Code for its proper
dissemination. LLpr

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 fteen (15) days after its publication in the Of cial 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 and dissenting:
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 Of cial Gazette. The
due process clause is not that precise. Neither is the publication of laws in the Official
Gazette required 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 fteen days following
the completion of their publication in the Of cial 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 Of cial Gazette. The said law is simply "An Act to
Provide for the Uniform Publication and Distribution of the Of cial Gazette." Conformably
therewith, it authorizes the publication of the Of cial Gazette, determines its frequency,
provides for its sale and distribution, and de nes the authority of the Director of Printing in
relation thereto. It also enumerates what shall be published in the Of cial 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 Of cial Gazette but only "important" ones "of a public nature."
Moreover, the said law does not provide that publication in the Of cial 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 ne, 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 andAlampay, JJ., concur.
Footnotes
1. "Section 6. The right of the people to information on matters of public concern shall be
recognized, access to of cial records, and to documents and papers pertaining to
of cial acts, transactions, or decisions, shall 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. Aldanese, 45 Phil. 345; Almario vs.
City Mayor, 16 SCRA 151; Palting 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. Encarnacion, 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 Of ce, failed to respond to her letter-request regarding the
respective dates of publication in the Of cial 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, C.J., concurring:

1. Separate Opinion of Justice Plana, rst paragraph. He mentioned in this 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., concurring:

1. People vs. de Dios, G.R. No. 11003, Aug. 31, 1959, per the late Chief Justice Paras.
2. Notes in brackets supplied.

3. Respondents' comment, pp. 14-15.
PLANA, J., concurring and dissenting:

* 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 State
ex rel. White vs. Grand Superior Ct., 71 ALR 1354, citing the Constitution of Indiana,
U.S.A.

EN BANC
[G.R. No. 127685. July 23, 1998.]
BLAS 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
CENTER and CHAIRMAN OF THE COMMISSION ON AUDIT ,
respondents.
SYNOPSIS
Administrative Order No. 308, entitled "Adoption of a National Computerized

Identi cation Reference System," was issued by the President on December 12, 1996.
Petitioner challenges the constitutionality of said Administrative Order on two (2) grounds,
namely: (1) it is a usurpation of the power of Congress to legislate; and (2) its
impermissibility intrudes on our citizenry's protected zone of privacy. Petitioner contends
that the Administrative Order is not a mere administrative order but a law and, hence,
beyond the power of the President to issue. He further alleges that said Administrative
Order establishes a system of identi cation 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.
In declaring the Administrative Order null and void for being unconstitutional, the
Supreme Court held that the Administrative Order involves a subject that is not appropriate
to be covered by said administrative order. An administrative order is an ordinance issued
by the President which relates to speci c 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.
The essence of privacy is the right to be let alone. The right to privacy is recognized
and enshrined in several provisions of the Constitution. Zones of privacy are likewise
recognized and protected in our laws. 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 justi ed by some compelling state
interest and that it is narrowly drawn. What is not arguable is the broadness, the
vagueness, the overbreath of A. O. No. 308 which if implemented will put our people's right
to privacy in clear and present danger. CaDSHE
A. O. No. 308 falls short of assuring that personal information which will be gathered
about our people will only be processed for unequivocally speci ed purposes. Even while
we strike down A. O. No. 308, we spell out that the Court is not per se against the use of
computers to accumulate, store, process, retrieve and transmit data to improve our
bureaucracy. 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.
SYLLABUS

1. POLITICAL LAW; LEGISLATIVE DEPARTMENT; LEGISLATIVE POWER;
CONSTRUED. — Legislative power is "the authority, under the Constitution, to make laws,
and to alter and repeal them." 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.
The grant of legislative power to Congress is broad, general and comprehensive. The
legislative body possesses plenary power for all purposes of civil government. Any power,
deemed to be legislative by usage and tradition, is necessarily possessed by Congress,
unless the Constitution has lodged it elsewhere. In ne, except as limited by the
Constitution, either expressly or impliedly, legislative power embraces all subject and
extends to matters of general concern or common interest.
2. ID.; EXECUTIVE DEPARTMENT; EXECUTIVE POWER IS VESTED IN THE
PRESIDENT. — While Congress is vested with the power to enact laws, the President
executes the laws. The executive power is vested in the President. It is generally de ned as
the power to enforce and administer the laws. It is the power of carrying the laws into
practical operation and enforcing their due observance. 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 o cials and employees of this department.
He has control over the executive department, bureaus and o ces. This means that he has
the authority to assume directly the functions of the executive department, bureau and
o ce, or interfere with the discretion of its o cials. 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
o ces under his control to enable him to discharge his duties effectively. Administrative
power is concerned with the work of applying policies and enforcing orders as determined
by proper governmental organs. It enables the President to x a uniform standard of
administrative e ciency and check the o cial conduct of his agents. To this end, he can
issue administrative orders, rules and regulations.
3. ID.; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM (A. O.
No. 308); DOES NOT IMPLEMENT THE LEGISLATIVE POLICY OF THE ADMINISTRATIVE
CODE OF 1987; REASONS THEREFOR. — 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 an ordinance issued by the President which relates to
speci c 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. 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
uni ed document the major structural, functional and procedural principles of governance"
and "embodies changes in administrative structures and procedures designed to serve the
people." 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 O ce 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
o ces 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 o cials on private
individuals or parties outside government. It cannot be simplistically argued that A.O. No.
308 merely implements the Administrative Code of 1987. It establishes for the rst time a
National Computerized Identi cation 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 rede nes 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.
4. ID.; ID.; CANNOT PASS CONSTITUTIONAL MUSTER AS AN ADMINISTRATIVE
LEGISLATION BECAUSE FACIALLY IT VIOLATES THE RIGHT TO PRIVACY. — 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.
5. ID.; ID.; ID.; REASON THEREFOR. — 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 le of the agency. The individual's le 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 les. 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. We can
even grant, arguendo, that the computer data le will be limited to the name, address and
other basic personal information about the individual. Even that hospitable assumption will
not save. A.O. No. 308 from constitutional in rmity 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. 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. 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 speci ed purposes .
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 con dential information and
circumvent the right against self-incrimination; it may pave the way for " shing
expeditions" by government authorities and evade the right against unreasonable searches
and seizures. 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. They
threaten the very abuses that the Bill of Rights seeks to prevent. cSTHaE
6. ID.; ID.; ID.; THE USE OF BIOMETRICS AND COMPUTER TECHNOLOGY DOES
NOT ASSURE THE INDIVIDUAL OF A REASONABLE EXPECTATION OF PRIVACY. — 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 an reasonable. The factual
circumstances of the case determines the reasonableness of the expectation. However,
other factors, such as customs, physical surroundings and practices of a particular
activity, may serve to create or diminish this expectation. The use of biometrics and
computer technology in A.O. No. 308 does not assure the individual of a reasonable
expectation of privacy. As technology advances, the level of reasonably expected privacy
decreases. The measure of protection granted by the reasonable expectation diminishes
as relevant technology becomes more widely accepted. The security of the computer data
le depends not only on the physical inaccessibility of the le 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.
ROMERO, J., separate opinion:
POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM, VIOLATES A PERSON'S RIGHT TO PRIVACY. — Whether viewed as a personal or a
property right, if found its way in Philippine Constitutions and statutes; this, in spite of the
fact that Philippine culture can hardly be said to provide a fertile eld for the burgeoning of
said right. In fact, our lexicographers have yet to coin a word for it in the Filipino language.
Customs and practices, being what they have always been, Filipinos think it perfectly
natural and in good taste to inquire into each other's intimate affairs. One has only to sit
through a televised talk show to be convinced that what passes for wholesome
entertainment is actually an invasion into one's private life, leaving the interviewee
embarrassed and outrage by turns. With the overarching in uence of common law and the
recent advent of the Information Age with its high-tech devices, the right to privacy has
expanded to embrace its public law aspect. The Bill of Rights of our evolving Charters, a
direct transplant form that of the United States, contains in essence facets of the right to
privacy which constitutes limitations on the far-reaching powers government. So terrifying
are the possibilities of a law such as Administrative Order No. 308 in making inroads into
the private lives of the citizens, a virtual Big Brother looking over our shoulders, that it must
without delay, be "slain upon sight" before our society turns totalitarian with each of us, a
mindless robot.
VITUG, J., separate opinion:
SYSTEM, AN UNDUE AND IMPERMISSIBLE EXERCISE OF LEGISLATIVE POWER BY THE
EXECUTIVE. — Administrative Order No. 308 appears to be so extensively drawn that
could, indeed, allow unbridled options to become available to its implementors beyond the
reasonable comfort of the citizens and of residents alike. Prescinding from the foregoing
and most importantly to this instance, the subject covered by the questioned
administrative order can have far-reaching consequences that can tell on all individuals,
their liberty and privacy, that, to my mind, should make it indispensable and appropriate to
have the matter speci cally addressed by the Congress of the Philippines, the policy-
making body of our government, to which the task should initially belong and to which the
authority to formulate and promulgate that policy is constitutionally lodged. Wherefore, I
vote for the nulli cation of Administrative Order No. 308 for being an undue and
impermissible exercise of legislative power by the Executive.
PANGANIBAN, J., separate opinion:
SYSTEM (AO 308), SUBJECT MATTER THEREOF IS BEYOND THE POWERS OF THE
PRESIDENT TO REGULATE WITHOUT A LEGISLATIVE ENACTMENT. — I concur only in the
result and only on the ground that an executive issuance is not legally su cient to
establish an all — encompassing computerized system of identi cation in the country. The
subject matter contained in AO 308 is beyond the powers of the President to regulate
without a legislative enactment.
KAPUNAN, J., dissenting opinion:
1. POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM; PURPOSE. — The National Computerized Identi cation Reference System, to
which the NSO, GSIS and SSS are linked as lead members of the IACC is intended to
establish uniform standards for ID cards issued by key government agencies (like the SSS)
for the "e cient identi cation of persons." Under the new system, only on retaliate and
tamper-proof I.D. need be presented by the cardholder instead of several identi cation
papers such as passports and driver's license, to able to transact with government
agencies. The improved ID can be used to facilitate public transactions such as: 1.
Payment of SSS and GSIS bene ts 2. Applications for driver's license, BIR TIN, passport,
marriage license, death certi cate, NBI and police clearance and business permits. 3.
Availment of Medicare services in hospitals 4. Availment of welfare services 5. Application
for work/ employment 6. Pre-requisite for voter's ID. The card may also be used for private
transactions such as: 1. Opening of bank accounts 2. Encashment of checks 3.
Applications for loans, credit cards, water, power, telephones, pagers, etc. 4. Purchase of
stocks 5. Application for work/employment 6. Insurance claims 7. Receipt of payments,
checks, letters, valuables, etc. The new identi cation system would tremendously improve
and uplift public service in our country to the bene t of Filipino citizens and resident aliens.
It would promote, facilitate and speed up legitimate transactions with government o ces
as well as with private and business entities. Experience tells us of the constant delays and
inconveniences the public has to suffer in availing of basic public services and social
security bene ts because of ine cient and not too reliable means of identi cation of the
beneficiaries.
2. ID.; ID.; SALIENT FEATURES. — Thus, in the "Primer on the Social Security Card
and Administrative Order No. 308" issued by the SSS, a lead agency in the implementation
of the said order, the following salient features are mentioned: 1. A.O. 308 merely
establishes the standards for I.D. cards issued by key government agencies such as SSS
and GSIS. 2. It does not establish a national I.D. system; neither does it require a national
I.D. card for every person. 3. The use of the I.D. is voluntary. 4. The I.D. is not required for
delivery of any government service. Everyone has the right to basic government services
as long as he is quali ed under existing laws. 5. The I.D. cannot and will not in any way be
used to prevent one to travel. 6. There will be no discrimination. Non-holders of the
improved I.D. are still entitled to the same services but will be subjected to the usual rigid
identification and verification beforehand.
3. ID.; ID.; EXERCISE OF PRESIDENT'S QUASI-LEGISLATIVE POWER VESTED TO
HIM UNDER ADMINISTRATIVE CODE OF 1987. — The Administrative Code of 1987 has
unequivocally vested the President with quasi-legislative powers in the form of executive
orders, administrative orders, proclamations, memorandum orders and circulars and
general or special orders. An administrative order, like the one under which the new
identi cation system is embodied, has its peculiar meaning under the 1987 Administrative
Code. The National Computerized Identi cation Reference system was established
pursuant to the aforequoted provision precisely because its principal purpose, as
expressly stated in the order, is to provide the people with "the facility to conveniently
transact business" with the various government agencies providing basic services. Being
the "administrative head," it is unquestionably the responsibility of the President to nd
ways and means to improve the government bureaucracy, and make it more professional,
e cient and reliable, specially those government agencies and instrumentalities which
provide basic services and which the citizenry constantly transact with, like the
Government Service Insurance System (GSIS), Social Security System (SSS) and National
Statistic O ce (NSO). The National computerized ID system is one such advancement. To
emphasize, the new identi cation reference system is created to streamline the
bureaucracy, cut the red tape and ultimately achieve administrative e ciency. The project,
therefore, relates to, is an appropriate subject and falls squarely within the ambit of the
Chief Executive's administrative power under which, in order to successfully carry out his
administrative duties, he has been granted by law quasi-legislative powers, quoted above.
A.O. No. 308 was promulgated by the President pursuant to the quasi-legislative powers
expressly granted to him by law and in accordance with his duty as administrative head.
Hence, the contention that the President usurped the legislative prerogatives of Congress
has no firm basis.
4. ID.; ID.; PREMATURE FOR JUDICIAL INQUIRY. — Having resolved that the
President has the authority and prerogative to issue A.O. No. 308, I submit that it is
premature for the Court to determine the constitutionality or unconstitutionality of the
National Computerized Identi cation Reference System. Basic in constitutional law is the
rule that before the court assumes jurisdiction over and decide constitutional issues, the
following requisites must rst be satis ed: 1) there must be an actual case or controversy
involving a con ict of rights susceptible of judicial determination; 2) the constitutional
question must be raised by a proper party; 3) the constitutional question must be raised at
the earliest opportunity; and 4) the resolution of the constitutional question must be
necessary to the resolution of the case. In this case, it is evident that the rst element is
missing. Judicial intervention calls for an actual case or controversy which is de ned as
"an existing case or controversy that is appropriate or ripe for determination, not
conjectural or anticipatory." Justice Isagani A. Cruz further expounds that "(a) justi able
controversy is thus distinguished from a difference or dispute of a hypothetical or abstract
character or from one that is academic or moot. The controversy must be de nite and
concrete, touching the legal relations of parties having adverse legal interests. It must be a
real and substantial controversy admitting of special relief through a decree that is
conclusive in character, as distinguished from an opinion advising what the law would be
upon a hypothetical state of facts. . . ." A.O. No. 308 does not create any concrete or
substantial controversy. It provides the general framework of the National Computerized
Identi cation Reference System and lays down the basic standards (e ciency,
convenience and prevention of fraudulent transactions) for its creation. But as manifestly
indicated in the subject order, it is the Inter-Agency Coordinating Committee (IACC) which
is tasked to research, study and formulate the guidelines and parameters for the use of
Biometrics Technology and in computer application designs that will de ne and give
substance to the new system. This petition is, thus, premature considering that the IACC is
still in the process of doing the leg work and has yet to codify and formalize the details of
the new system.
5. ID.; ID.; DOES NOT VIOLATE THE CONSTITUTIONAL RIGHT TO PRIVACY. —
There is nothing in A.O. No. 308, as it is worded, to suggest that the advanced methods of
the Biometrics Technology. Consequently, the choice of the particular form and extent of
Biometrics Technology that may pose danger to the right of privacy will be adopted. The
standards set in A.O. No. 308 for the adoption of the new system are clear-cut and
unequivocably spelled out in the "WHEREASES" and body of the order, namely, the need to
provide citizens and foreign residents with the facility to conveniently transact business
with basic service and social security providers and other government instrumentalities;
the computerized system is intended to properly and e ciently identify persons seeking
basic services or social security and reduce, if not totally eradicate fraudulent transactions
and misrepresentation; the national identi cation reference system is established among
the key basic services and social security providers; and nally, the IACC Secretariat shall
coordinate with different Social Security and Services Agencies to establish the standards
in the use of Biometrics Technology. Consequently, the choice of the particular form and
extent of Biometrics Technology that will be applied and the parameters for its use (as will
be de ned in the guidelines) will necessarily and logically be guided, limited and
circumscribed by the afore-stated standards. The fear entertained by the majority on the
potential dangers of this new technology is thus securedly allayed by the speci c
limitations set by the above-mentioned standards. More than this, the right to privacy is
well-ensconced in and directly protected by various provisions of the Bill of Rights, the Civil
Code, the Revised Penal Code, and certain special laws, all so painstakingly and
resourcefully catalogued in the majority opinion. Many of these laws provide penalties for
their violation in the form of imprisonment, nes, or damages. These laws will serve as
powerful deterrents not only in the establishment of any administrative rule that will violate
the constitutionally protected right to privacy, but also to would-be transgressors of such
right.
6. ID.; ID.; DOES NOT REQUIRE THE TRANSFER OF APPROPRIATION BUT A
POOLING OF FUNDS AND RESOURCES BY THE VARIOUS GOVERNMENT AGENCIES
INVOLVED IN THE PROJECT. — On the issue of funding, the majority submits that Section
6 of A.O. No. 308, which allows the government agencies included in the new system to
obtain funding from their respective budgets, is unconstitutional for being an illegal
transfer of appropriations. It is not so. The budget for the national identi cation system
cannot be deemed a transfer of funds since the same is composed of and will be
implemented by the member government agencies. Moreover, these agencies particularly
the GSIS and SSS have been issuing some form of identi cation or membership card. The
improved ID cards that will be issued under this new system would just take place of the
old identi cation cards and budget-wise, the funds that were being used to manufactured
the old ID cards, which are usually accounted for under the "Supplies and Materials" item of
the Government Accounting and Auditing Manual, could now be utilized to fund the new
cards. Hence, what is envisioned is not a transfer of appropriations but a pooling of funds
and resources by the various government agencies involved in the project.
MENDOZA, J., dissenting opinion:
1. POLITICAL LAW; NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM (A. O. NO. 308); BASED ON DATA WHICH THE GOVERNMENT AGENCIES
INVOLVED HAVE ALREADY BEEN REQUIRING INDIVIDUALS MAKING USE OF THEIR
SERVICES TO GIVE. — J. Mendoza does not see how from the bare provisions of the Order,
the full text of which is set forth in the majority opinion, petitioner and the majority can
conclude that the Identi cation Reference System establishes such comprehensive
personal information dossiers that can destroy individual privacy. So far as the Order
provides, all that is contemplated is an identi cation system based on data which the
government agencies involved have already been requiring individuals making use of their
services to give.
2. ID.; ID.; SIMPLY ORGANIZES SERVICE AGENCIES OF THE GOVERNMENT TO
FACILITATE THE IDENTIFICATION OF PERSONS SEEKING BASIC SERVICES AND SOCIAL
SECURITY. — More speci cally, the question is whether the establishment of the
Identi cation Reference System will not result in the compilation of massive dossiers on
individuals which, beyond their use for identi cation, can become instruments of thought
control. So far, the text of A.O. No. 308 affords no basis for believing that the data
gathered can be used for such sinister purpose. As already stated, nothing that is not
already being required by the concerned agencies of those making use of their services is
required by the Order in question. The Order simply organizes service agencies of the
government into a System for the purpose of facilitating the identi cation of persons
seeking basic services and social security. Thus, the whereas clauses of A.O. No. 308
state: . . . . . . . . . The application of biometric technology and the standardization of
computer designs can provide service agencies with precise identi cation of individuals,
but what is wrong with that?
3. ID.; ID.; NO MORE THAN A DIRECTIVE TO GOVERNMENT AGENCIES WHICH
THE PRESIDENT HAS ISSUED IN HIS CAPACITY AS ADMINISTRATIVE HEAD. — A.O. No.
308 is no more than a directive to government agencies which the President of the
Philippines has issued in his capacity as administrative head. It is not a statute. It confers
no right; it imposes no duty; it affords no protection; it creates no o ce. It is, as its name
indicates, a mere administrative order, the precise nature of which is given in the following
excerpt from the decision in the early case of Olsen & Co. v. Herstein : [It] is nothing more
or less than a command from a superior to an inferior. It creates no relation except
between the o cial who issues it and the o cial who receives it . Such orders, whether
executive or departmental, have for their object simply the e cient and economical
administration of the affairs of the department to which or in which they are issued in
accordance with the law governing the subject-matter. They are administrative in their
nature and do not pass beyond the limits of the department to which they are directed or
in which they are published, and, therefore, create no rights in third persons. They are
based on, and are the product of, a relationship in which power is their source and
obedience their object. Disobedience to or deviation from such an order can be punished
only by the power which issued it; and, if that power fails to administer the corrective, then
the disobedience goes unpunished. In that relationship no third person or o cial may
intervene,. not even the courts. Such orders may be very temporary, they being subject to
instant revocation or modi cation by the power which published them. Their very nature,
as determined by the relationship which produced them, demonstrates clearly, the
impossibility of any other person enforcing them except the one who created them. An
attempt on the part of the courts to enforce such orders would result not only in confusion
but, substantially, in departmental anarchy also.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO PRIVACY; DOES NOT
BAR ALL INCURSIONS INTO INDIVIDUAL PRIVACY. — Indeed, the majority concedes that
"the right of privacy does not bar all incursions into individual privacy. . . [only that such]
incursions into the right must be accompanied by proper safeguards and well-de ned
standards to prevent unconstitutional invasions." In the case of the Identi cation
Reference System, the purpose is to facilitate the transaction of business with service
agencies of the government and to prevent fraud and misrepresentation. The personal
identi cation of an individual can facilitate his treatment in any government hospital in
case of emergency. On the other hand, the delivery of material assistance, such as free
medicines, can be protected from fraud or misrepresentation as the absence of a data
base makes it possible for unscrupulous individuals to obtain assistance from more than
one government agency. caIDSH
DECISION
PUNO , J : p
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 Identi cation 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. cdphil
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
e ciently 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:
SEC. 1. Establishment of a National Computerized Identi cation
Reference System. — A decentralized Identi cation 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

O ce of the Press Secretary, in coordination with the National Statistics O ce,
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 led 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 speci cally, 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 in rmed 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 Identi cation (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 identi cation 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 identi cation 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. 1 0 The legislative body
possesses plenary power for all purposes of civil government. 1 1 Any power, deemed to be
legislative by usage and tradition, is necessarily possessed by Congress, unless the
Constitution has lodged it elsewhere. 1 2 In ne, 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. 1 3
While Congress is vested with the power to enact laws, the President executes the
laws. 1 4 The executive power is vested in the President. 1 5 It is generally de ned as the
power to enforce and administer the laws. 1 6 It is the power of carrying the laws into
practical operation and enforcing their due observance. 1 7
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
o cials and employees of his department. 1 8 He has control over the executive
department, bureaus and o ces. This means that he has the authority to assume directly
the functions of the executive department, bureau and o ce, or interfere with the
discretion of its o cials. 1 9 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 o ces under his
control to enable him to discharge his duties effectively. 2 0
Administrative power is concerned with the work of applying policies and enforcing
orders as determined by proper governmental organs. 2 1 It enables the President to x a
uniform standard of administrative e ciency and check the o cial conduct of his agents .
2 2 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." 2 3
An administrative order is an ordinance issued by the President which relates to

speci c 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. 2 4 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 uni ed document the major structural, functional and procedural
principles of governance" 2 5 and "embodies changes in administrative structures and
procedures designed to serve the people." 2 6 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 O ce 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 o ces 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 o cials on private individuals or parties outside
government. 2 7
It cannot be simplistically argued that A.O. No. 308 merely implements the
Administrative Code of 1987. It establishes for the rst time a National Computerized
Identi cation 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 o ce. Under
A.O. No. 308, a citizen cannot transact business with government agencies delivering basic
services to the people without the contemplated identi cation card. No citizen will refuse
to get this identi cation card for no one can avoid dealing with government. It is thus clear
as daylight that without the ID, a citizen will have di culty 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 de ning the traditional limits of
administrative legislation. As well stated by Fisher: ". . . 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." 2 8
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:
"Speci c guarantees in the Bill of Rights have penumbras formed by
emanations from these guarantees that help give them life and substance . . .
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 a rms 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, 3 2 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 xxx 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 identi cation 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, rmly
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 nd that the right of privacy is
recognized and enshrined in several provisions of our Constitution. 3 3 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: 3 4
"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 a rmation 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.
xxx xxx xxx

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.
xxx xxx xxx.
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. 3 5 It also holds a public o cer
or employee or any private individual liable for damages for any violation of the rights and
liberties of another person, 3 6 and recognizes the privacy of letters and other private
communications. 3 7 The Revised Penal Code makes a crime the violation of secrets by an
o cer, 3 8 the revelation of trade and industrial secrets, 3 9 and trespass to dwelling. 4 0
Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, 4 1 the
Secrecy of Bank Deposits Act 4 2 and the Intellectual Property Code. 4 3 The Rules of Court
on privileged communication likewise recognize the privacy of certain information. 4 4
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." 4 5 The term "biometrics" has
now evolved into a broad category of technologies which provide precise con rmation of
an individual's identity through the use of the individual's own physiological and behavioral
characteristics. 4 6 A physiological characteristic is a relatively stable physical
characteristic such as a ngerprint, retinal scan, hand geometry or facial features. A
behavioral characteristic is in uenced by the individual's personality and includes voice
print, signature and keystroke. 4 7 Most biometric identi cation systems use a card or
personal identi cation number (PIN) for initial identi cation. 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. 4 8
A most common form of biological encoding is nger-scanning where technology
scans a ngertip 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 ngertip 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 nger 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 infrared 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 ctions are now science facts. Today, biometrics is no longer limited to the use of
ngerprint to identify an individual . It is a new science that uses various technologies in
encoding any and all biological characteristics of an individual for identi cation. It is
noteworthy that A.O. No. 308 does not state what speci c 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
identi cation purposes . In fact, the Solicitor General claims that the adoption of the
Identi cation Reference System will contribute to the "generation of population data for
development planning." 5 4 This is an admission that the PRN will not be used solely for
identi cation but for the generation of other data with remote relation to the avowed
purposes of A.O. No. 308. Clearly, the inde niteness 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 le of the agency. The individual's le
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 les . 5 5 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. 5 6
We can even grant, arguendo, that the computer data le will be limited to the name,
address and other basic personal information about the individual. 5 7 Even that hospitable
assumption will not save A.O. No. 308 from constitutional in rmity 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. 5 8 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. 5 9
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 speci ed purposes . 6 0 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 con dential information and circumvent the right against self-incrimination; it may
pave the way for " shing expeditions" by government authorities and evade the right
against unreasonable searches and seizures. 6 1 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. 6 2 They threaten the very abuses that the Bill of Rights
seeks to prevent. 6 3
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. 6 4 The computer is capable of producing a
comprehensive dossier on individuals out of information given at different times and for
varied purposes. 6 5 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
nds its way into the computer, it can be extracted together with other data on the subject.
6 6 Once extracted, the information is putty in the hands of any person. The end of privacy
begins. cdphil
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. 6 7 The factual circumstances of the case determines the reasonableness of
the expectation. 6 8 However, other factors, such as customs, physical surroundings and
practices of a particular activity, may serve to create or diminish this expectation. 6 9 The
use of biometrics and computer technology in A.O. No. 308 does not assure the individual
of a reasonable expectation of privacy. 7 0 As technology advances, the level of reasonably
expected privacy decreases. 7 1 The measure of protection granted by the reasonable
expectation diminishes as relevant technology becomes more widely accepted. 7 2 The
security of the computer data le depends not only on the physical inaccessibility of the
le 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 ne. 7 3 Republic Act No.
1161 prohibits public disclosure of SSS employment records and reports. 7 4 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. 7 5 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. 7 6
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 o cer 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 o cial 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 su ciently 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 le 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-
identi cation 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 justi ed 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 e ciency 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 e cient management of
credit and insurance programs, improvement of telecommunications and streamlining of
nancial activities. 8 1 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. 8 2 The bene ts of the computer has revolutionized
information technology. It developed the internet, 8 3 introduced the concept of cyberspace
8 4 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 sti e scienti c and
technological advancements that enhance public service and the common good. It merely
requires that the law be narrowly focused 8 5 and a compelling interest justify such
intrusions. 8 6 Intrusions into the right must be accompanied by proper safeguards and
well-de ned 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, rmly
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 Identi cation Reference System" declared null and
void for being unconstitutional.
SO ORDERED.
Bellosillo and Martinez, JJ ., concur.
Regalado, J ., in the result.
Separate Opinions
ROMERO , J ., concurring :
What marks off a man from a beast? cda
Aside from the distinguishing physical characteristics, man is a rational being, one
who is endowed with intellect which allows him to apply reasoned judgment to problems
at hand; he has the innate spiritual faculty which can tell, not only what is right but, as well,
what is moral and ethical. Because of his sensibilities, emotions and feelings, he likewise
possesses a sense of shame. In varying degrees as dictated by diverse cultures, he erects
a wall between himself and the outside world wherein he can retreat in solitude, protecting
himself from prying eyes and ears and their extensions, whether from individuals, or much
later, from authoritarian intrusions.
Piercing through the mists of time, we nd the original Man and Woman defying the
injunction of God by eating of the forbidden fruit in the Garden. And when their eyes were
"opened," forthwith "they sewed g leaves together, and made themselves aprons." 1 Down
the corridors of time, we nd man fashioning " g leaves" of sorts or setting up gurative
walls, the better to insulate themselves from the rest of humanity.
Such vague stirrings of the desire "to be left alone," considered "anti-social" by some,
led to the development of the concept of "privacy," unheard of among beasts. Different
branches of science, have made their own studies of this craving of the human spirit —
psychological, anthropological, sociological and philosophical, with the legal nally giving
its imprimatur by elevating it to the status of a right, specifically a private right.
Initially recognized as an aspect of tort law, it created giant waves in legal circles
with the publication in the Harvard Law Review 2 of the trail-blazing article, "The Right to
Privacy," by Samuel D. Warren and Louis D. Brandeis.
Whether viewed as a personal or a property right, it found its way in Philippine
Constitutions and statutes; this, in spite of the fact that Philippine culture can hardly be
said to provide a fertile eld for the burgeoning of said right. In fact, our lexicographers
have yet to coin a word for it in the Filipino language. Customs and practices, being what
they have always been, Filipinos think it perfectly natural and in good taste to inquire into
each other's intimate affairs.
One has only to sit through a televised talk show to be convinced that what passes
for wholesome entertainment is actually an invasion into one's private life, leaving the
interviewee embarrassed and outraged by turns.
With the overarching in uence of common law and the recent advent of the
Information Age with its high-tech devices, the right to privacy has expanded to embrace
its public law aspect. The Bill of Rights of our evolving Charters, a direct transplant from
that of the United States, contains in essence facets of the right to privacy which
constitute limitations on the far-reaching powers of government.
So terrifying are the possibilities of a law such as Administrative Order No. 308 in
making inroads into the private lives of the citizens, a virtual Big Brother looking over our
shoulders, that it must, without delay, be "slain upon sight" before our society turns
totalitarian with each of us, a mindless robot.
I, therefore, VOTE for the nullification of A.O. No. 308.
VITUG, J ., concurring :
One can appreciate the concern expressed by my esteemed colleague, Mr. Justice
Reynato S. Puno, echoing that of the petitioner, the Honorable Blas F. Ople, on the issuance
of Administrative Order No. 308 by the President of the Philippines and the dangers its
implementation could bring. I nd it hard, nevertheless, to peremptorily assume at this
time that the administrative order will be misused and to thereby ignore the possible
bene ts that can be derived from or the merits of, a nationwide computerized
identi cation reference system. The great strides and swift advances in technology render
it inescapable that one day we will, at all events, have to face up with the reality of seeing
extremely sophisticated methods of personal identi cation and any attempt to stop the
inevitable may either be short-lived or even futile. The imperatives, I believe, would instead
be to now install speci c safeguards and control measures that may be calculated best to
ward-off probable ill effects of any such device. Here, it may be apropos to recall the
pronouncement of this Court in People vs. Nazario 1 that —
"As a rule, a statute or [an] act may be said to be vague when it lacks
comprehensible standards that men 'of common intelligence must necessarily
guess at its meaning and differ as to its application.' It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle." 2
Administrative Order No. 308 appears to be so extensively drawn that could, indeed,
allow unbridled options to become available to its implementors beyond the
reasonable comfort of the citizens and of residents alike.
Prescinding from the foregoing, and most importantly to this instance, the subject
covered by the questioned administrative order can have far-reaching consequences that
can tell on all individuals, their liberty and privacy, that, to my mind, should make it
indispensable and appropriate to have the matter speci cally addressed by the Congress
of the Philippines, the policy-making body of our government, to which the task should
initially belong and to which the authority to formulate and promulgate that policy is
constitutionally lodged.
WHEREFORE, I vote for the nulli cation of Administrative Order No. 308 for being an
undue and impermissible exercise of legislative power by the Executive.
PANGANIBAN, J ., concurring :
I concur only in the result and only on the ground that an executive issuance is not
legally su cient to establish an all-encompassing computerized system of identi cation
in the country. The subject matter contained in AO 308 is beyond the powers of the
President to regulate without a legislative enactment.
I reserve judgment on the issue of whether a national ID system is an infringement
of the constitutional right to privacy or of the freedom of thought until after Congress
passes, if ever, a law to this effect. Only then, and upon the ling of a proper petition, may
the provisions of the statute be scrutinized by the judiciary to determine their
constitutional foundation. Until such time, the issue is premature; and any decision thereon,
speculative and academic. 1
Be that as it may, the scholarly discussions of Justices Romero, Puno, Kapunan and
Mendoza on the constitutional right to privacy and freedom of thought may still become
useful guides to our lawmakers, when and if Congress should deliberate on a bill
establishing a national identification system. cdll
Let it be noted that this Court, as shown by the voting of the justices, has not
de nitively ruled on these points. The voting is decisive only on the need for the
appropriate legislation, and it is only on this ground that the petition is granted by this
Court.
Davide, Jr., J ., concurs.
KAPUNAN, J ., dissenting :
The pioneering efforts of the executive to adopt a national computerized

identi cation reference system has met erce opposition. It has spun dark predictions of
sinister government ploys to tamper with the citizen's right to privacy and ominous
forecasts of a return to authoritarianism. Lost in the uproar, however, is the simple fact
that there is nothing in the whole breadth and length of Administrative Order No. 308 that
suggests a taint of constitutional infirmity.
A.O. No. 308 issued by President Fidel V. Ramos on 12 December 1996 reads:
ADMINISTRATIVE ORDER NO. 308
ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM
with the facility to conveniently transact business with basic services and social
e ciently identify persons seeking basic services and social security and reduce,
if not totally eradicate, fraudulent transactions and misrepresentations;

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:
SEC. 1. Establishment of a National Computerized Identi cation

Reference System. — A decentralized Identi cation 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
O ce of the Press Secretary, in coordination with the National Statistics O ce,
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.
In seeking to strike down A.O. No. 308 as unconstitutional, petitioner argues:
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.
The National Computerized Identi cation Reference System, to which the NSO, GSIS
and SSS are linked as lead members of the IACC is intended to establish uniform
standards for ID cards issued by key government agencies (like the SSS) 1 for the "e cient
identi cation of persons." 2 Under the new system, only one reliable and tamper-proof I.D.
need be presented by the cardholder instead of several identi cation papers such as
passports and driver's license, 3 to able to transact with government agencies. The
improved ID can be used to facilitate public transactions such as:
1. Payment of SSS and GSIS benefits
2. Applications for driver's license, BIR TIN, passport, marriage license, death
certificate, NBI and police clearances, and business permits
3. Availment of Medicare services in hospitals

4. Availment of welfare services
5. Application for work/employment
6. Pre-requisite for voter's ID. 4
The card may also be used for private transactions such as:
1. Opening of bank accounts
2. Encashment of checks
3. Applications for loans, credit cards, water, power, telephones, pagers, etc.
4. Purchase of stocks
5. Application for work/employment

6. Insurance claims
7. Receipt of payments, checks, letters, valuables, etc. 5
The new identi cation system would tremendously improve and uplift public service
in our country to the bene t of Filipino citizens and resident aliens. It would promote,
facilitate and speed up legitimate transactions with government o ces as well as with
private and business entities. Experience tells us of the constant delays and
inconveniences the public has to suffer in availing of basic public services and social
security bene ts because of ine cient and not too reliable means of identi cation of the
beneficiaries.
Thus, in the "Primer on the Social Security Card and Administrative Order No. 308"
issued by the SSS, a lead agency in the implementation of the said order, the following
salient features are mentioned:
1. A.O. 308 merely establishes the standards for I.D cards issued by
key government agencies such as SSS and GSIS.
2. It does not establish a national I.D. system; neither does it require a
national I.D. card for every person.
3. The use of the I.D. is voluntary.
4. The I.D. is not required for delivery of any government service.

Everyone has the right to basic government services as long as he is quali ed
under existing laws.
5. The I.D. cannot and will not in any way be used to prevent one to
travel.
6. There will be no discrimination. Non-holders of the improved I.D. are
still entitled to the same services but will be subjected to the usual rigid
identification and verification beforehand.
I
The issue that must rst be hurdled is: was the issuance of A.O No. 308 an exercise
by the President of legislative power properly belonging to Congress?
It is not.
The Administrative Code of 1987 has unequivocally vested the President with quasi-
legislative powers in the form of executive orders, administrative orders, proclamations,
memorandum orders and circulars and general or special orders. 6 An administrative order,
like the one under which the new identi cation system is embodied, has its peculiar
meaning under the 1987 Administrative Code:
SEC. 3. Administrative Orders. — Acts of the President which relate to
particular aspects of governmental operations in pursuance of his duties as
administrative head shall be promulgated in administrative orders.
The National Computerized Identi cation Reference System was established

pursuant to the aforequoted provision precisely because its principal purpose, as
expressly stated in the order, is to provide the people with "the facility to conveniently
transact business" with the various government agencies providing basic services. Being
the "administrative head," it is unquestionably the responsibility of the President to nd
ways and means to improve the government bureaucracy, and make it more professional,
e cient and reliable, specially those government agencies and instrumentalities which
provide basic services and which the citizenry constantly transact with, like the
Government Service Insurance System (GSIS), Social Security System (SSS) and National
Statistics Office (NSO). The national computerized ID system is one such advancement. To
emphasize, the new identi cation reference system is created to streamline the
bureaucracy, cut the red tape and ultimately achieve administrative e ciency. The project,
therefore, relates to, is an appropriate subject and falls squarely within the ambit of the
Chief Executive's administrative power under which, in order to successfully carry out his
administrative duties, he has been granted by law quasi-legislative powers, quoted above.
Understandably, strict adherence to the doctrine of separation of powers spawns
differences of opinion. For we cannot divide the branches of government into water-tight
compartments. Even if such is possible, it is neither desirable nor feasible. Bernard
Schwartz, in his work Administrative Law, A Casebook, thus states:
To be sure, if we think of the separation of powers as carrying out the
distinction between legislation and administration with mathematical precision
and as dividing the branches of government into watertight compartments, we
would probably have to conclude that any exercise of lawmaking authority by an
agency is automatically invalid. Such a rigorous application of the constitutional
doctrine is neither desirable nor feasible; the only absolute separation that has
ever been possible was that in the theoretical writings of a Montesquieu, who
looked across at foggy England from his sunny Gascon vineyards and completely
misconstrued what he saw. 7
A mingling of powers among the three branches of government is not a novel

concept. This blending of powers has become necessary to properly address the
complexities brought about by a rapidly developing society and which the traditional
branches of government have difficulty coping with. 8
It has been said that:
The true meaning of the general doctrine of the separation of powers
seems to be that the whole power of one department should not be exercised by
the same hands which possess the whole power of either of the other
departments, and that no one department ought to possess directly or indirectly
an overruling in uence over the others. And it has been held that this doctrine
should be applied only to the powers which because of their nature are assigned
by the constitution itself to one of the departments exclusively. Hence, it does not
necessarily follow that an entire and complete separation is either desirable or
was ever intended, for such a complete separation would be impracticable if not
impossible; there may be — and frequently are — areas in which executive,
legislative, and judicial powers blend or overlap; and many o cers whose duties
cannot be exclusively placed under any one of these heads.
The courts have perceived the necessity of avoiding a narrow construction
of a state constitutional provision for the division of the powers of the
government into three distinct departments, for it is impractical to view the
provision from the standpoint of a doctrinaire. Thus, the modern view of
separation of powers rejects the metaphysical abstractions and reverts instead to
a more pragmatic, exible, functional approach, giving recognition to the fact that
there may be a certain degree of blending or admixture of the three powers of the
government. Moreover, the doctrine of separation of powers has never been
strictly or rigidly applied, and indeed could not be, to all the rami cations of state
or national governments; government would prove abortive if it were attempted to
follow the policy of separation to the letter. 9
In any case, A.O. No. 308 was promulgated by the President pursuant to the quasi-
legislative powers expressly granted to him by law and in accordance with his duty as
administrative head. Hence, the contention that the President usurped the legislative
prerogatives of Congress has no firm basis.
II
Having resolved that the President has the authority and prerogative to issue A.O.
No. 308, I submit that it is premature for the Court to determine the constitutionality or
unconstitutionality of the National Computerized Identification Reference System.
Basic in constitutional law is the rule that before the court assumes jurisdiction over
and decide constitutional issues, the following requisites must first be satisfied:
1) there must be an actual case or controversy involving a con ict of
rights susceptible of judicial determination;
2) the constitutional question must be raised by a proper party;

3) the constitutional question must be raised at the earliest
opportunity; and cda
4) the resolution of the constitutional question must be necessary to

the resolution of the case. 1 0
In this case, it is evident that the rst element is missing. Judicial intervention calls
for an actual case or controversy which is de ned as "an existing case or controversy that
is appropriate or ripe for determination, not conjectural or anticipatory." 1 1 Justice Isagani
A. Cruz further expounds that "(a) justi able controversy is thus distinguished from a
difference or dispute of a hypothetical or abstract character or from one that is academic
or moot. The controversy must be de nite and concrete, touching the legal relations of
parties having adverse legal interests. It must be a real and substantial controversy
admitting of special relief through a decree that is conclusive in character, as distinguished
from an opinion advising what the law would be upon a hypothetical state of facts. . ." 1 2
A.O. No. 308 does not create any concrete or substantial controversy. It provides the
general framework of the National Computerized Identi cation Reference System and lays
down the basic standards (e ciency, convenience and prevention of fraudulent
transactions) for its creation. But as manifestly indicated in the subject order, it is the
Inter-Agency Coordinating Committee (IACC) which is tasked to research, study and
formulate the guidelines and parameters for the use of Biometrics Technology and in
computer application designs that will de ne and give substance to the new system. 1 3
This petition is, thus, premature considering that the IACC is still in the process of doing
the leg work and has yet to codify and formalize the details of the new system.
The majority opines that the petition is ripe for adjudication even without the
promulgation of the necessary guidelines in view of the fact that respondents have begun
implementation of A.O. No. 308. The SSS, in particular, has started advertising in
newspapers the invitation to bid for the production of the I.D. cards. 1 4
I beg to disagree. It is not the new system itself that is intended to be implemented
in the invitation to bid but only the manufacture of the I.D. cards. Biometrics Technology is
not and cannot be used in the I.D. cards as no guidelines therefor have yet been laid down
by the IACC. Before the assailed system can be set up, it is imperative that the guidelines
be issued first.
III
Without the essential guidelines, the principal contention for invalidating the new
identi cation reference system — that it is an impermissible encroachment on the
constitutionally recognized right to privacy — is plainly groundless. There is nothing in A.O.
No. 308 to serve as su cient basis for a conclusion that the new system to be evolved
violates the right to privacy. Said order simply provides the system's general framework.
Without the concomitant guidelines, which would spell out in detail how this new
identification system would work, the perceived violation of the right to privacy amounts to
nothing more than mere surmise and speculation.
What has caused much of the hysteria over the National Computerized Identi cation
Reference System is the possible utilization of Biometrics Technology which refers to the
use of automated matching of physiological or behavioral characteristics to identify a
person that would violated the citizen's constitutionally protected right to privacy.
The majority opinion has enumerated various forms and methods of Biometrics
Technology which if adopted in the National Computerized Identi cation Reference
System would seriously threaten the right to privacy. Among which are biocrypt, retinal
scan, arti cial nose and thermogram. The majority also points to certain alleged
deficiencies of A O. No. 308. Thus:
1) A.O. No. 308 does not specify the particular Biometrics Technology
that shall be used for the new identification system;
2) The order does not state whether encoding of data is limited to
biological information alone for identification purposes;
3) There is no provision as to who shall control and access the data,

under what circumstances and for what purpose; and
4) There are no controls to guard against leakage of information, thus
heightening the potential for misuse and abuse.
We should not be overwhelmed by the mere mention of the Biometrics Technology

and its alleged, yet unfounded "far-reaching effects."
There is nothing in A.O. No. 308, as it is worded, to suggest that the advanced
methods of the Biometrics Technology that may pose danger to the right of privacy will be
adopted. LexLib
The standards set in A.O. No. 308 for the adoption of the new system are clear-cut
and unequivocably spelled out in the "WHEREASES" and body of the order, namely, the
need to provide citizens and foreign residents with the facility to conveniently transact
business with basic service and social security providers and other government
instrumentalities; the computerized system is intended to properly and efficiently identify
persons seeking basic services or social security and reduce, if not totally eradicate
fraudulent transactions and misrepresentation; the national identi cation reference
system is established among the key basic services and social security providers; and
nally, the IACC Secretariat shall coordinate with different Social Security and Services
Agencies to establish the standards in the use of Biometrics Technology. Consequently,
the choice of the particular form and extent of Biometrics Technology that will be applied
and the parameters for its use (as will be de ned in the guidelines) will necessarily and
logically be guided, limited and circumscribed by the afore-stated standards. The fear
entertained by the majority on the potential dangers of this new technology is thus
securedly allayed by the speci c limitations set by the above-mentioned standards. More
than this, the right to privacy is well-ensconced in and directly protected by various
provisions of the Bill of Rights, the Civil Code, the Revised Penal Code, and certain special
laws, all so painstakingly and resourcefully catalogued in the majority opinion. Many of
these laws provide penalties for their violation in the form of imprisonment, nes, or
damages. These laws will serve as powerful deterrents not only in the establishment of
any administrative rule that will violate the constitutionally protected right to privacy, but
also to would-be transgressors of such right.
Relevant to this case is the ruling of the U.S. Supreme Court in Whalen v. Roe. 1 5 In
that case, a New York statute was challenged for requiring physicians to identify patients
obtaining prescription drugs of the statute's "Schedule II'' category (a class of drugs
having a potential for abuse and a recognized medical use) so the names and addresses
of the prescription drug patients can be recorded in a centralized computer le maintained
by the New York State Department of Health. Some patients regularly receiving
prescription for "Schedule II" drugs and doctors who prescribed such drugs brought an
action questioning the validity of the statute on the ground that it violated the plaintiffs
constitutionally protected rights of privacy.
In a unanimous decision, the US Supreme Court sustained the validity of the statute
on the ground that the patient identi cation requirement is a reasonable exercise of the
State's broad police powers. The Court also held that there is no support in the record for
an assumption that the security provisions of the statute will be administered improperly.
Finally, the Court opined that the remote possibility that judicial supervision of the
evidentiary use of particular items of stored information will not provide adequate
protection against unwarranted disclosures is not a su cient reason for invalidating the
patient-identification program.
To be sure, there is always a possibility of an unwarranted disclosure of con dential
matters enormously accumulated in computerized data banks and in government records
relating to taxes, public health, social security bene ts, military affairs, and similar matters.
But as previously pointed out, we have a su cient number of laws prohibiting and
punishing any such unwarranted disclosures. Anent this matter, the observation in Whalen
vs. Roe is instructive:
. . . We are not unaware of the threat to privacy implicit in the accumulation
of vast amounts of personal information in computerized data banks or other
massive government les. The collection of taxes, the distribution of welfare and
social security bene ts, the supervision of public health, the direction of our
Armed Forces and the enforcement of the criminal laws all require the orderly
preservation of great quantities of information, much of which is personal in
character and potentially embarrassing or harmful if disclosed. The right to
collect and use such data for public purposes is typically accompanied by a
concomitant statutory or regulatory duty to avoid unwarranted disclosures. . . 1 6
The majority laments that as technology advances, the level of reasonably expected
privacy decreases. That may be true. However, courts should tread daintily on the eld of
social and economic experimentation lest they impede or obstruct the march of
technology to improve public services just on the basis of an unfounded fear that the
experimentation violates one's constitutionally protected rights. In the sobering words of
Mr. Justice Brandeis:
To stay experimentation in things social and economic is a grave
responsibility. Denial of the right to experiment may be fraught with serious
consequences to the Nation. It is one of the happy incidents of the federal system
that a single courageous State may, if it citizens choose, serve as a laboratory;
and try novel social and economic experiments without risk to the rest of the
country. This Court has the power to prevent an experiment. We may strike down
the statute which embodies it on the ground that, in our opinion, the measure is
arbitrary, capricious or unreasonable. We have power to do this, because the due
process clause has been held by the Court applicable to matters of substantive
law as well as to matters of procedure. But in the exercise of this high power, we
must be ever on our guard, lest we erect our prejudices into legal principles. If we
would guide by the light of reason, we must let our minds be bold. 17
Again, the concerns of the majority are premature precisely because there are as yet
no guidelines that will direct the Court and serve as solid basis for determining the
constitutionality of the new identi cation system. The Court cannot and should not
anticipate the constitutional issues and rule on the basis of guesswork. The guidelines
would, among others, determine the particular biometrics method that would be used and
the speci c personal data that would be collected, provide the safeguards (if any) and
supply the details on how this new system is supposed to work. The Court should not
jump the gun on the Executive.
III
On the issue of funding, the majority submits that Section 6 of A.O. No. 308, which
allows the government agencies included in the new system to obtain funding from their
respective budgets, is unconstitutional for being an illegal transfer of appropriations.
It is not so. The budget for the national identi cation system cannot be deemed a
transfer of funds since the same is composed of and will be implemented by the member
government agencies. Moreover, these agencies particularly the GSIS and SSS have been
issuing some form of identi cation or membership card. The improved ID cards that will
be issued under this new system would just take place of the old identi cation cards and
budget-wise, the funds that were being used to manufacture the old ID cards, which are
usually accounted for under the "Supplies and Materials" item of the Government
Accounting and Auditing Manual, could now be utilized to fund the new cards. Hence, what
is envisioned is not a transfer of appropriations but a pooling of funds and resources by
the various government agencies involved in the project.
WHEREFORE, I vote to dismiss the petition.
Narvasa, C .J ., Melo and Quisumbing, JJ ., concur.
MENDOZA, J ., dissenting :
My vote is to dismiss the petition in this case. LibLex
First. I cannot nd anything in the text of Administrative Order No. 308 of the
President of the Philippines that would warrant a declaration that it is violative of the right
of privacy. So far as I can see, all the Administrative Order does is
• establish an Identi cation Reference System involving the following
service agencies of the government:
o Presidential Management Staff
o National Economic Development Authority
o Department of the Interior and Local Government
o Department of Health
o Government Service Insurance System
o Social Security System
o National Statistics Office
o National Computer Center
• create a committee, composed of the heads of the agencies
concerned, to draft rules for the System;
• direct the use of the Population Reference Number (PRN) generated by
the National Census and Statistics O ce as the common reference
number to link the participating agencies into an Identi cation
Reference System, and the adoption by the agencies of standards in
the use of biometrics technology and computer designs; and
• provide for the funding of the System from the budgets of the
agencies concerned.
Petitioner argues, however, that "the implementation of A.O. No. 308 will mean that
each and every Filipino and resident will have a le with the government containing, at the
very least, his P RN and physiological biometrics such as, but not limited to, his facial
features, hand geometry, retinal or iris pattern, DNA pattern, ngerprints, voice
characteristics, and signature analysis."
In support of his contention, petitioner quotes the following publication surfed from
the Internet:
The use of biometrics is the means by which an individual may be
conclusively identi ed . There are two types of biometric identi ers : Physical and
behavioral characteristics. Physiological biometrics include facial features, hand
geometry, retinal and iris patterns, DNA, and ngerprints . Behavioral
characteristics include voice characteristics and signature analysis. 1
I do not see how from the bare provisions of the Order, the full text of which is set
forth in the majority opinion, petitioner and the majority can conclude that the Identification
Reference System establishes such comprehensive personal information dossiers that
can destroy individual privacy. So far as the Order provides, all that is contemplated is an
identi cation system based on data which the government agencies involved have already
been requiring individuals making use of their services to give.
For example, under C.A. No. 591, §2(a) the National Statistics O ce collects "by
enumeration, sampling or other methods, statistics and other information concerning
population . . . social and economic institutions, and such other statistics as the President
may direct." In addition, it is in charge of the administration of the Civil Register, 2 which
means that it keeps records of information concerning the civil status of persons, i. e., (a)
births, (b) deaths, (c) marriages and their annulments; (d) legitimations, (e) adoptions, (f)
acknowledgments of natural children, (g) naturalizations, and (h) changes of name. 3
Other statutes giving government agencies the power to require personal
information may be cited. R.A. No. 4136, §23 gives the Land Transportation O ce the
power to require applicants for a driver's license to give information regarding the
following: their full names, date of birth, height, weight, sex, color of eyes, blood type,
address, and right thumbprint; 4 while R.A. No. 8239, §5 gives the Department of Foreign
Affairs the power to require passport applicants to give information concerning their
names, place of birth, date of birth, religious affiliation, marital status, and citizenship.
Justice Romero, tracing the origin of privacy to the attempt of the rst man and
woman to cover their nakedness with g leaves, bemoans the fact that technology and
institutional pressures have threatened our sense of privacy. On the other hand, the
majority would have none of the Identi cation Reference System "to prevent the shrinking
of the right to privacy, once regarded as 'the most comprehensive of rights and the right
most valued by civilized men." 5 Indeed, techniques such as ngerprinting or electronic
photography in banks have become commonplace. As has been observed, the teaching
hospital has come to be accepted as offering medical services that compensate for the
loss of the isolation of the sickbed; the increased capacity of applied sciences to utilize
more and more kinds of data and the consequent calls for such data have weakened
traditional resistance to disclosure. As the area of relevance, political or scienti c,
expands, there is strong psychological pressure to yield some ground of privacy. 6
But this is a fact of life to which we must adjust, as long as the intrusion into the
domain of privacy is reasonable. In Morfe v. Mutuc, 7 this Court dealt the coup de grace to
claims of latitudinarian scope for the right of privacy by quoting the pungent remark of an
acute observer of the social scene, Carmen Guerrero-Nakpil:
Privacy? What's that? There is no precise word for it in Filipino, and as far
as I know any Filipino dialect and there is none because there is no need for it.
The concept and practice of privacy are missing from conventional Filipino life.
The Filipino believes that privacy is an unnecessary imposition, an eccentricity
that is barely pardonable or, at best, an esoteric Western afterthought smacking
of legal trickery. 8
Justice Romero herself says in her separate opinion that the word privacy is not even in
the lexicon of Filipinos.
As to whether the right of privacy is "the most valued right," we do well to remember
the encomiums paid as well to other constitutional rights. For Professor Zechariah Chafee,
"The writ of habeas corpus is 'the most important human rights provision in the
fundamental law."' 9 For Justice Cardozo, on the other hand, freedom of expression "is the
matrix, the indispensable condition, of nearly every other form of freedom." 1 0
The point is that care must be taken in assigning values to constitutional rights for
the purpose of calibrating them on the judicial scale, especially if this means employing
stricter standards of review for regulations alleged to infringe certain rights deemed to be
"most valued by civilized men."
Indeed, the majority concedes that "the right of privacy does not bar all incursions
into individual privacy . . . [only that such] incursions into the right must be accompanied by
proper safeguards and well-de ned standards to prevent unconstitutional invasions." 1 1 In
the case of the Identi cation Reference System, the purpose is to facilitate the transaction
of business with service agencies of the government and to prevent fraud and
misrepresentation. The personal identi cation of an individual can facilitate his treatment
in any government hospital in case of emergency. On the other hand, the delivery of
material assistance, such as free medicines, can be protected from fraud or
misrepresentation as the absence of a data base makes it possible for unscrupulous
individuals to obtain assistance from more than one government agency.
Second. Thus, the issue in this case is not really whether A.O. No. 308 violates the
right of privacy formed by emanations from the several constitutional rights cited by the
majority. 1 2 The question is whether it violates freedom of thought and of conscience
guaranteed in the following provisions of our Bill of Rights (Art. III):
SEC. 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances.
SEC. 5. No law shall be made respecting an establishment of religion,

or prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall be
forever be allowed. No religious test shall be required for the exercise of civil or
political rights.
More speci cally, the question is whether the establishment of the Identi cation
Reference System will not result in the compilation of massive dossiers on individuals
which, beyond their use for identi cation, can become instruments of thought control. So
far, the text of A.O. No. 308 affords no basis for believing that the data gathered can be
used for such sinister purpose. As already stated, nothing that is not already being
required by the concerned agencies of those making use of their services is required by
the Order in question. The Order simply organizes service agencies of the government into
a System for the purpose of facilitating the identi cation of persons seeking basic
services and social security. Thus, the whereas clauses of A.O. No. 308 state:
with the facility to conveniently transact business with basic services and social
e ciently identify persons seeking basic services and social security and reduce,
if not totally eradicate, fraudulent transactions and misrepresentations;
The application of biometric technology and the standardization of computer designs

can provide service agencies with precise identi cation of individuals, but what is
wrong with that? LexLib
Indeed, A.O. No. 308 is no more than a directive to government agencies which the
President of the Philippines has issued in his capacity as administrative head. 13 It is not a
statute. It confers no right; it imposes no duty; it affords no protection; it creates no o ce.
14 It is, as its name indicates, a mere administrative order, the precise nature of which is
given in the following excerpt from the decision in the early case of Olsen & Co. v. Herstein:
15
[It] is nothing more or less than a command from a superior to an inferior.

It creates no relation except between the o cial who issues it and the o cial
who receives it. Such orders, whether executive or departmental, have for their
object simply the e cient and economical administration of the affairs of the
department to which or in which they are issued in accordance with the law
governing the subject-matter. They are administrative in their nature and do not
pass beyond the limits of the department to which they are directed or in which
they are published, and, therefore, create no rights in third persons. They are
based on, and are the product of, a relationship in which power is their source and
obedience their object. Disobedience to or deviation from such an order can be
punished only by the power which issued it; and, if that power fails to administer
the corrective, then the disobedience goes unpunished. In that relationship no
third person or o cial may intervene, not even the courts . Such orders may be
very temporary, they being subject to instant revocation or modi cation by the
power which published them. Their very nature, as determined by the relationship
which produced them, demonstrates clearly the impossibility of any other person
enforcing them except the one who created them. An attempt on the part of the
courts to enforce such orders would result not only in confusion but, substantially,
in departmental anarchy also. 1 6
Third. There is no basis for believing that, beyond the identi cation of individuals, the
System will be used for illegal purposes. Nor are sanctions lacking for the unauthorized
use or disclosure of information gathered by the various agencies constituting the System.
For example, as the Solicitor General points out, C.A. No. 591, §4 penalizes the
unauthorized use or disclosure of data furnished the NSO with a ne of not more than
P600.00 or imprisonment for not more than six months or both.
At all events, at this stage, it is premature to pass on the claim that the Identi cation
Reference System can be used for the purpose of compiling massive dossiers on
individuals that can be used to curtail basic civil and political rights since, if at all, this can
only be provided in the implementing rules and regulations which have yet to be
promulgated. We have already stated that A.O. No. 308 is not a statute. Even in the case of
statutes, however, where implementing rules are necessary to put them into effect, it has
been held that an attack on their constitutionality would be premature. 1 7 As Edgar in King
Lear puts it, "Ripeness is all." 1 8 For, to borrow some more Shakespearean lines,
The canker galls the infants of the spring
Too oft before their buttons be disclos'd. 1 9
That, more than any doctrine of constitutional law I can think of, succinctly expresses
the rule on ripeness, prematurity, and hypothetical, speculative, or conjectural claims.
Of special relevance to this case is Laird v. Tatum. 2 0 There, a class suit was brought
seeking declaratory and injunctive relief on the claim that a U.S. Army intelligence
surveillance of civilian political activity having "a potential for civil disorder" exercised "a
present inhibiting effect on [respondents'] full expression and utilization of their First
Amendment rights." In holding the case nonjusticiable, the U.S. Supreme Court, in an
opinion by Chief Justice Burger, said: 2 1
In recent years this Court has found in a number of cases that
constitutional violations may arise from the deterrent, or "chilling," effect of
governmental regulations that fall short of a direct prohibition against the
exercise of First Amendment rights. [Citation of cases omitted] In none of these
cases, however, did the chilling effect arise merely from the individual's
knowledge that a governmental agency was engaged in certain activities or from
the individual's concomitant fear that, armed with the fruits of those activities, the
agency might in the future take some other and additional action detrimental to
that individual. Rather, in each of these cases, the challenged exercise of
governmental power was regulatory, proscriptive, or compulsory in nature, and the
complainant was either presently or prospectively subject to the regulations,
proscriptions, or compulsions that he was challenging . . .
[T]hese decisions have in no way eroded the "established principle that to
entitle a private individual to invoke the judicial power to determine the validity of
executive or legislative action he must show that he was sustained or is
immediately in danger of sustaining a direct injury as the result of that action . . ."
The respondents do not meet this test; [the] alleged "chilling" effect may
perhaps be seen as arising from respondents' perception of the system as
inappropriate to the Army's role under our form of government, or as arising from
respondents' beliefs that it is inherently dangerous for the military to be
concerned with activities in the civilian sector, or as arising from respondents' less
generalized yet speculative apprehensiveness that the Army may at some future
date misuse the information in some way that would cause direct harm to
respondents. Allegations of a subjective "chill'' are not an adequate substitute for
a claim of speci c present objective harm or a threat of speci c future harm; "the
federal courts established pursuant to Article III of the Constitution do not render
advisory opinions." United Public Workers v. Mitchell, 330 US 75, 89, 91 L Ed 754,
766, 67 S Ct 556 (1947).
Fourth. Given the fact that no right of privacy is involved in this case and that any
objection to the Identi cation Reference System on the ground that it violates freedom of
thought is premature, speculative, or conjectural pending the issuance of the implementing
rules, it is clear that petitioner Blas F. Ople has no cause of action and, therefore, no
standing to bring this action. Indeed, although he assails A.O. No. 308 on the ground that it
violates the right of privacy, he claims no personal injury suffered as a result of the Order in
question. Instead, he says he is bringing this action as taxpayer, Senator, and member of
the Government Service Insurance System.
Insofar as petitioner claims an interest as taxpayer, it is su cient to say that A.O.
No. 308 does not involve the exercise of the taxing or spending power of the government.
Insofar as he purports to sue as a member of the GSIS, neither does petitioner have
an interest su cient to enable him to litigate a constitutional question. Petitioner claims
that in providing that the funds necessary for implementing the System shall be taken from
the budgets of the concerned agencies, A.O. No. 308 violates Art. VI, §25(5) which
provides:
No law shall be passed authorizing any transfer of appropriations;
however, the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item in
the general appropriations law for their respective o ces from savings in other
items of their respective appropriations.
But, as the Solicitor General states:

Petitioner's argument is anchored on two erroneous assumptions; one, that
all the concerned agencies, including the SSS and the GSIS, receive budgetary
support from the national government; and two, that the GAA is the only law
whereby public funds are appropriated. Both assumptions are wrong.
The SSS and GSIS do not presently receive budgetary support from the
National Government. They have achieved self-supporting status such that the
contributions of their members are su cient to nance their expenses. One
would be hard pressed to nd in the GAA an appropriation of funds to the SSS
and the GSIS.
Furthermore, their respective charters authorize the SSS and the GSIS to
disburse their funds (Rep. Act No. 1161 [1954], as amended, Sec. 25; Pres. Decree
No. 1146 [1977], as amended, Sec. 29) without the need for a separate
appropriation from the Congress.
Nor as Senator can petitioner claim standing since no power of Congress is alleged
to have been impaired by the Administrative Order in question. 2 2 As already stated, in
issuing A.O. No. 308, the President did not exercise the legislative power vested by the
Constitution in Congress. He acted on the basis of his own powers as administrative head
of the government, as distinguished from his capacity as the Executive. Dean Sinco
elucidates the crucial distinction thus:
The Constitution of the Philippines makes the President not only the
executive but also the administrative head of the government. . . Executive power
refers to the legal and political function of the President involving the exercise of
discretion. Administrative power, on the other hand, concerns itself with the work
of applying policies and enforcing orders as determined by proper governmental
organs. These two functions are often confused by the public; but they are
distinct from each other. The President as the executive authority has the duty of
supervising the enforcement of laws for the maintenance of general peace and
public order. As administrative head, his duty is to see that every government
o ce is managed and maintained properly by the persons in charge of it in
accordance with pertinent laws and regulations.
. . . The power of control vested in him by the Constitution makes for a
strongly centralized administrative system. It reinforces further his position as the
executive of the government, enabling him to comply more effectively with his
constitutional duty to enforce the laws. It enables him to fix a uniform standard of
administrative e ciency and to check the o cial conduct of his agents . The
decisions of all the o cers within his department are subject to his power of
revision, either on his own motion or on the appeal of some individual who might
deem himself aggrieved by the action of an administrative o cial. In case of
serious dereliction of duty, he may suspend or remove the officials concerned. 2 3
For the foregoing reasons, the petition should be DISMISSED.
Footnotes
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.
xxx xxx xxx
AMENDMENT 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.
39. Articles 290-292, 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/secl.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 Foundations 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].
ROMERO, J., concurring:
1. 3 Genesis 7.
2. 4 Harvard Law Review, 193-220 (1890).

VITUG, J., concurring:
1. 165 SCRA 186.

2. At p. 195.
PANGANIBAN, J., concurring:
1. Basic is the doctrine that constitutional issues should not be used to decide a
controversy, if there are other available grounds, as in this case. (See Justice Isagani
Cruz, Constitutional Law, 1995 ed., pp. 29-31.)
1. SSS, Primer on the Social Security Card & A.O. No. 308, p. 1.
2. Id., at 2.
3. Ibid.
4. Ibid.
5. Id., at 3.
6. Secs. 2 to 7, Chapter 2, Title I, Book III of the Administrative Code of 1987.
7. Schwartz, Bernard, Administrative Law, a Casebook, Fourth Edition 1994, pp. 78-79.
8. Carlo Cruz, Philippine Administrative Law, 1991 ed., pp. 1-3.
9. 16 Am. Jur. 2d, Constitutional Law, Sec. 299. Emphasis supplied.
10. Board of Optometry v. Colet, 260 SCRA 88 (1996).
11. Ibid.
12. Isagani A. Cruz, Philippine Political Law, 1991 ed., p. 235.
13. Sec. 2, A.O. No. 308.
14. Annex E, Petition.
15. 429 US 589 (1977).
16. Id., at 77.
17. New State Ice Co. v. Liebmann, 285 US 262 (Dissenting Opinion) cited in Whalen v. Roe,
249 US 589.
MENDOZA, J., dissenting:
1. "Congress Poised To Mandate Government Registration and Tracking of All Americans,"
Privacy International, February 1996; IDCARD .HTM at www.involved.com (emphasis by
petitioner).
2. C.A. No. 591, §1(f).
3. Act No. 3753, §1.
4. R.A. No. 4136, §23.
5. Dissenting Opinion of Justice Brandeis in Olmstead v. United States, 438, 478 (1928).
6. "Paul A. Freund, Privacy : One Concept or Many , in PRIVACY 188 (R. Pennock and J.
Chapman, eds., 1971).
7. 22 SCRA 424 (1968).
8. Id., at 445, n. 66.
9. Zechariah Chafee, The Most Important Human Right in the Constitution, 32 BOSTON
UNIV. LAW REV. 143 (1947), quoted in Gumabon v. Director of Prisons, 37 SCRA 420,
423 (1971) (per Fernando, J.).
10. Palko v. Connecticut, 302 U.S. 319, 327, 82 L.Ed. 288, 293 (1937).
11. Majority Opinion, pp. 30-31.
12. The majority cites Art. III, §§1, 2, 6, 8 and 17 of the Constitution.

13. ADMINISTRATIVE CODE OF 1987, Bk III, Tit I, Ch. I, §3 provides:
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.
14. See Norton v. Shelby County, 118 U.S. 425, 30 L.Ed. 178, 186 (1886).
15. 32 Phil. 520 (1915) (emphasis added).
16. Id., at 532.
17. Garcia v. Executive Secretary, 204 SCRA 516 (1991).
18. King Lear, Act V, Sc. ii, line 9.
19. Hamlet, Act 1, Sc. iii, lines 41-42.
20. 408 U.S. 1, 33 L.Ed.2d 154 (1972).
21. Id., 408 U.S. at 13-14, 33 L.Ed.2d at 163-164.
22. Philconsa v. Enriquez, 235 SCRA 506 (1994); Gonzales v. Macaraig, 191 SCRA 452
(1990); Raines v. Byrd, No. 96-1671, June 26, 1997 (Legislators whose votes have been
sufficient to defeat (or enact) a specific legislative act have standing to sue if that
legislative action goes into effect (or does not go into effect), on the ground that their
votes have been completely nullified.")
23. VINCENT G. SINCO, PHILIPPINE POLITICAL LAW 234-235 (11th ed., 1962) (emphasis
added).

EN BANC
[G.R. No. 159139. January 13, 2004.]
INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES,

MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO H. LOPEZ, AUGUSTO
C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY SALCEDO, and
MANUEL ALCUAZ JR. , petitioners, vs . COMMISSION ON ELECTIONS;
COMELEC CHAIRMAN BENJAMIN ABALOS SR.; COMELEC BIDDING
and AWARD COMMITTEE CHAIRMAN EDUARDO D. MEJOS and
MEMBERS GIDEON DE GUZMAN, JOSE F. BALBUENA, LAMBERTO P.
LLAMAS, and BARTOLOME SINOCRUZ JR.; MEGA PACIFIC
eSOLUTIONS, INC.; and MEGA PACIFIC CONSORTIUM , respondents.
DECISION
PANGANIBAN , J : p
There is grave abuse of discretion (1) when an act is done contrary to the
Constitution, the law or jurisprudence; 1 or (2) when it is executed whimsically,
capriciously or arbitrarily out of malice, ill will or personal bias. 2 In the present case, the
Commission on Elections approved the assailed Resolution and awarded the subject
Contract not only in clear violation of law and jurisprudence, but also in reckless
disregard of its own bidding rules and procedure. For the automation of the counting
and canvassing of the ballots in the 2004 elections, Comelec awarded the Contract to
"Mega Paci c Consortium" an entity that had not participated in the bidding. Despite
this grant, the poll body signed the actual automation Contract with "Mega Paci c
eSolutions, Inc.," a company that joined the bidding but had not met the eligibility
requirements.
Comelec awarded this billion-peso undertaking with inexplicable haste, without
adequately checking and observing mandatory nancial, technical and legal
requirements. It also accepted the proferred computer hardware and software even if,
at the time of the award, they had undeniably failed to pass eight critical requirements
designed to safeguard the integrity of elections, especially the following three items:
• They failed to achieve the accuracy rating criteria of 99.9995 percent set-up by
the Comelec itself
• They were not able to detect previously downloaded results at various
canvassing or consolidation levels and to prevent these from being
inputted again
• They were unable to print the statutorily required audit trails of the
count/canvass at different levels without any loss of data
Because of the foregoing violations of law and the glaring grave abuse of
discretion committed by Comelec, the Court has no choice but to exercise its solemn
"constitutional duty" 3 to void the assailed Resolution and the subject Contract. The
illegal, imprudent and hasty actions of the Commission have not only desecrated legal
and jurisprudential norms, but have also cast serious doubts upon the poll body's ability
and capacity to conduct automated elections. Truly, the pith and soul of democracy —
credible, orderly, and peaceful elections — has been put in jeopardy by the illegal and
gravely abusive acts of Comelec.
The Case
Before us is a Petition 4 under Rule 65 of the Rules of Court, seeking (1) to
declare null and void Resolution No. 6074 of the Commission on Elections (Comelec),
which awarded "Phase II of the Modernization Project of the Commission to Mega
Pacific Consortium (MPC);" (2) to enjoin the implementation of any further contract that
may have been entered into by Comelec "either with Mega Paci c Consortium and/or
Mega Paci c eSolutions, Inc. (MPEI);" and (3) to compel Comelec to conduct a re-
bidding of the project.
The Facts
The following facts are not disputed. They were culled from o cial documents,
the parties' pleadings, as well as from admissions during the Oral Argument on October
7, 2003.
On June 7, 1995, Congress passed Republic Act 8046, 5 which authorized
Comelec to conduct a nationwide demonstration of a computerized election system
and allowed the poll body to pilot-test the system in the March 1996 elections in the
Autonomous Region in Muslim Mindanao (ARMM).
On December 22, 1997, Congress enacted Republic Act 8436 6 authorizing
Comelec to use an automated election system (AES) for the process of voting,
counting votes and canvassing/consolidating the results of the national and local
elections. It also mandated the poll body to acquire automated counting machines
(ACMs), computer equipment, devices and materials; and to adopt new electoral forms
and printing materials.
Initially intending to implement the automation during the May 11, 1998
presidential elections, Comelec — in its Resolution No. 2985 dated February 9, 1998 7 —
eventually decided against full national implementation and limited the automation to
the Autonomous Region in Muslim Mindanao (ARMM). However, due to the failure of
the machines to read correctly some automated ballots in one town, the poll body later
ordered their manual count for the entire Province of Sulu. 8
In the May 2001 elections, the counting and canvassing of votes for both national
and local positions were also done manually, as no additional ACMs had been acquired
for that electoral exercise allegedly because of time constraints.
On October 29, 2002, Comelec adopted in its Resolution 02-0170 a
modernization program for the 2004 elections. It resolved to conduct biddings for the
three (3) phases of its Automated Election System; namely, Phase I — Voter
Registration and Validation System; Phase II — Automated Counting and Canvassing
System; and Phase III — Electronic Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order
No. 172, which allocated the sum of P2.5 billion to fund the AES for the May 10, 2004
elections. Upon the request of Comelec, she authorized the release of an additional
P500 million.
On January 28, 2003, the Commission issued an "Invitation to Apply for Eligibility
and to Bid," which we quote as follows:
"INVITATION TO APPLY FOR ELIGIBILITY AND TO BID
The Commission on Elections (COMELEC), pursuant to the mandate of

Republic Act Nos. 8189 and 8436, invites interested offerors, vendors, suppliers or
lessors to apply for eligibility and to bid for the procurement by purchase, lease,
lease with option to purchase, or otherwise, supplies, equipment, materials and
services needed for a comprehensive Automated Election System, consisting of
three (3) phases: (a) registration/veri cation of voters, (b) automated counting
and consolidation of votes, and (c) electronic transmission of election results,
with an approved budget of TWO BILLION FIVE HUNDRED MILLION
(Php2,500,000,000) Pesos. EICDSA
Only bids from the following entities shall be entertained:
a. Duly licensed Filipino citizens/proprietorships;
b. Partnerships duly organized under the laws of the Philippines and of

which at least sixty percent (60%) of the interest belongs to citizens
of the Philippines;
c. Corporations duly organized under the laws of the Philippines, and of

which at least sixty percent (60%) of the outstanding capital stock
belongs to citizens of the Philippines;
d. Manufacturers, suppliers and/or distributors forming themselves into a
joint venture, i.e., a group of two (2) or more manufacturers,
suppliers and/or distributors that intend to be jointly and severally
responsible or liable for a particular contract, provided that Filipino
ownership thereof shall be at least sixty percent (60%); and
e. Cooperatives duly registered with the Cooperatives Development

Authority.
Bid documents for the three (3) phases may be obtained starting 10
February 2003, during o ce hours from the Bids and Awards Committee (BAC)
Secretariat/O ce of Commissioner Resurreccion Z. Borra, 7th Floor, Palacio del
Governador, Intramuros, Manila, upon payment at the Cash Division, Commission
on Elections, in cash or cashier's check, payable to the Commission on Elections,
of a non-refundable amount of FIFTEEN THOUSAND PESOS (Php15,000.00) for
each phase. For this purpose, interested offerors, vendors, suppliers or lessors
have the option to participate in any or all of the three (3) phases of the
comprehensive Automated Election System.
A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the
Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila.
Should there be questions on the bid documents, bidders are required to submit
their queries in writing to the BAC Secretariat prior to the scheduled Pre-Bid
Conference.
Deadline for submission to the BAC of applications for eligibility and bid
envelopes for the supply of the comprehensive Automated Election System shall
be at the Session Hall, Commission on Elections, Postigo Street, Intramuros,
Manila on 28 February 2003 at 9:00 a.m.
The COMELEC reserves the right to review the quali cations of the bidders
after the bidding and before the contract is executed. Should such review uncover
any misrepresentation made in the eligibility statements, or any changes in the
situation of the bidder to materially downgrade the substance of such statements,
the COMELEC shall disqualify the bidder upon due notice without any obligation
whatsoever for any expenses or losses that may be incurred by it in the
preparation of its bid." 9
On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain
eligibility criteria for bidders and the schedule of activities for the project bidding, as
follows:
"1.) Open to Filipino and foreign corporation duly registered and licensed to do
business and is actually doing business in the Philippines, subject to Sec.
43 of RA 9184 (An Act providing in the Modernization Standardization and
Regulation of the Procurement Activities of the Government and for other
purposes etc.)
2.) Track Record:
a) For counting machines — should have been used in at least one (1)
political exercise with no less than Twenty Million Voters;
b) For veri cation of voters — the reference site of an existing data base
installation using Automated Fingerprint Identi cation System
(AFIS) with at least Twenty Million.
3.) Ten percent (10%) equity requirement shall be based on the total project cost;
and
4.) Performance bond shall be twenty percent (20%) of the bid offer.
RESOLVED moreover, that:
1) A. Due to the decision that the eligibility requirements and the rest of the Bid
documents shall be released at the same time, and the memorandum of
Comm. Resurreccion Z. Borra dated February 7, 2003, the documents to be
released on Friday, February 14, 2003 at 2:00 o'clock p.m. shall be the
eligibility criteria, Terms of Reference (TOR) and other pertinent
documents;
B. Pre-Bid conference shall be on February 18, 2003; and
C. Deadline for the submission and receipt of the Bids shall be on March 5, 2003.
2) The aforementioned documents will be available at the following offices:
a) Voters Validation: Office of Comm. Javier

b) Automated Counting Machines: Office of Comm. Borra
c) Electronic Transmission: Office of Comm. Tancangco" 1 0
On February 17, 2003, the poll body released the Request for Proposal (RFP) to
procure the election automation machines. The Bids and Awards Committee (BAC) of
Comelec convened a pre-bid conference on February 18, 2003 and gave prospective
bidders until March 10, 2003 to submit their respective bids.
Among others, the RFP provided that bids from manufacturers, suppliers and/or
distributors forming themselves into a joint venture may be entertained, provided that
the Philippine ownership thereof shall be at least 60 percent. Joint venture is de ned in
the RFP as "a group of two or more manufacturers, suppliers and/or distributors that
intend to be jointly and severally responsible or liable for a particular contract." 1 1
Basically, the public bidding was to be conducted under a two-envelope/two
stage system. The bidder's first envelope or the Eligibility Envelope should establish the
bidder's eligibility to bid and its quali cations to perform the acts if accepted. On the
other hand, the second envelope would be the Bid Envelope itself. The RFP outlines the
bidding procedures as follows:
"25. Determination of Eligibility of Prospective Bidders
"25.1 The eligibility envelopes of prospective Bidders shall be opened rst
to determine their eligibility. In case any of the requirements speci ed in Clause
20 is missing from the rst bid envelope, the BAC shall declare said prospective
Bidder as ineligible to bid. Bid envelopes of ineligible Bidders shall be immediately
returned unopened.
"25.2 The eligibility of prospective Bidders shall be determined using
simple 'pass/fail' criteria and shall be determined as either eligible or ineligible. If
the prospective Bidder is rated 'passed' for all the legal, technical and nancial
requirements, he shall be considered eligible. If the prospective Bidder is rated
'failed' in any of the requirements, he shall be considered ineligible.
"26. Bid Examination/Evaluation

"26.1 The BAC will examine the Bids to determine whether they are
complete, whether any computational errors have been made, whether required
securities have been furnished, whether the documents have been properly
signed, and whether the Bids are generally in order.
"26.2 The BAC shall check the submitted documents of each Bidder
against the required documents enumerated under Clause 20, to ascertain if they
are all present in the Second bid envelope (Technical Envelope). In case one (1) or
more of the required documents is missing, the BAC shall rate the Bid concerned
as 'failed' and immediately return to the Bidder its Third bid envelope (Financial
Envelope) unopened. Otherwise, the BAC shall rate the rst bid envelope as
'passed'.
"26.3 The BAC shall immediately open the Financial Envelopes of the
Bidders whose Technical Envelopes were passed or rated on or above the passing
score. Only Bids that are determined to contain all the bid requirements for both
components shall be rated 'passed' and shall immediately be considered for
evaluation and comparison.
"26.4 In the opening and examination of the Financial Envelope, the BAC
shall announce and tabulate the Total Bid Price as calculated. Arithmetical errors
will be recti ed on the following basis: If there is a discrepancy between words
and gures, the amount in words will prevail. If there is a discrepancy between the
unit price and the total price that is obtained by multiplying the unit price and the
quantity, the unit price shall prevail and the total price shall be corrected
accordingly. If there is a discrepancy between the Total Bid Price and the sum of
the total prices, the sum of the total prices prevail and the Total Bid Price shall be
corrected accordingly. HcSaAD
"26.5 Financial Proposals which do not clearly state the Total Bid Price
shall be rejected. Also, Total Bid Price as calculated that exceeds the approved
budget for the contract shall also be rejected.
27. Comparison of Bids

"27.1 The bid price shall be deemed to embrace all costs, charges and fees
associated with carrying out all the elements of the proposed Contract, including
but not limited to, license fees, freight charges and taxes.
"27.2 The BAC shall establish the calculated prices of all Bids rated
'passed' and rank the same in ascending order.
xxx xxx xxx
"29. Postqualification
"29.1 The BAC will determine to its satisfaction whether the Bidder
selected as having submitted the lowest calculated bid is quali ed to
satisfactorily perform the Contract.
"29.2 The determination will take into account the Bidder's nancial,
technical and production capabilities/resources. It will be based upon an
examination of the documentary evidence of the Bidder's quali cation submitted
by the Bidder as well as such other information as the BAC deems necessary and
appropriate.
"29.3 A bid determined as not substantially responsive will be rejected by
the BAC and may not subsequently be made responsive by the Bidder by
correction of the non-conformity.
"29.4 The BAC may waive any informality or non-conformity or irregularity
in a bid which does not constitute a material deviation, provided such waiver does
not prejudice or affect the relative ranking of any Bidder.
"29.5 Should the BAC find that the Bidder complies with the legal, financial
and technical requirements, it shall make an a rmative determination which
shall be a prerequisite for award of the Contract to the Bidder. Otherwise, it will
make a negative determination which will result in rejection of the Bidder's bid, in
which event the BAC will proceed to the next lowest calculated bid to make a
similar determination of that Bidder's capabilities to perform satisfactorily." 1 2
Out of the 57 bidders, 1 3 the BAC found MPC and the Total Information
Management Corporation (TIMC) eligible. For technical evaluation, they were referred
to the BAC's Technical Working Group (TWG) and the Department of Science and
Technology (DOST).
In its Report on the Evaluation of the Technical Proposals on Phase II, DOST said
that both MPC and TIMC had obtained a number of failed marks in the technical
evaluation. Notwithstanding these failures, Comelec en banc, on April 15, 2003,
promulgated Resolution No. 6074 awarding the project to MPC. The Commission
publicized this Resolution and the award of the project to MPC on May 16, 2003.
On May 29, 2003, ve individuals and entities (including the herein Petitioners
Information Technology Foundation of the Philippines, represented by its president,
Alfredo M. Torres; and Ma. Corazon Akol) wrote a letter 1 4 to Comelec Chairman
Benjamin Abalos Sr. They protested the award of the Contract to Respondent MPC "due
to glaring irregularities in the manner in which the bidding process had been
conducted." Citing therein the noncompliance with eligibility as well as technical and
procedural requirements (many of which have been discussed at length in the Petition),
they sought a re-bidding.
In a letter-reply dated June 6, 2003, 1 5 the Comelec chairman — speaking through
Atty. Jaime Paz, his head executive assistant — rejected the protest and declared that
the award "would stand up to the strictest scrutiny."
Hence, the present Petition. 1 6
The Issues
In their Memorandum, petitioners raise the following issues for our
consideration:
"1. The COMELEC awarded and contracted with a non-eligible entity; . . .
"2. Private respondents failed to pass the Technical Test as required in the RFP.
Notwithstanding, such failure was ignored. In effect, the COMELEC
changed the rules after the bidding in effect changing the nature of the
contract bidded upon.
"3. Petitioners have locus standi.
"4. Instant Petition is not premature. Direct resort to the Supreme Court is
justified." 1 7
In the main, the substantive issue is whether the Commission on Elections, the
agency vested with the exclusive constitutional mandate to oversee elections, gravely
abused its discretion when, in the exercise of its administrative functions, it awarded to
MPC the contract for the second phase of the comprehensive Automated Election
System.
Before discussing the validity of the award to MPC, however, we deem it proper
to rst pass upon the procedural issues: the legal standing of petitioners and the
alleged prematurity of the Petition.
This Court's Ruling
The Petition is meritorious.
First Procedural Issue:
Locus Standi of Petitioners
Respondents chorus that petitioners do not possess locus standi, inasmuch as
they are not challenging the validity or constitutionality of RA 8436. Moreover,
petitioners supposedly admitted during the Oral Argument that no law had been
violated by the award of the Contract. Furthermore, they allegedly have no actual and
material interest in the Contract and, hence, do not stand to be injured or prejudiced on
account of the award.
On the other hand, petitioners — suing in their capacities as taxpayers, registered
voters and concerned citizens — respond that the issues central to this case are "of
transcendental importance and of national interest." Allegedly, Comelec's awed
bidding and questionable award of the Contract to an unquali ed entity would impact
directly on the success or the failure of the electoral process. Thus, any taint on the
sanctity of the ballot as the expression of the will of the people would inevitably affect
their faith in the democratic system of government. Petitioners further argue that the
award of any contract for automation involves disbursement of public funds in
gargantuan amounts; therefore, public interest requires that the laws governing the
transaction must be followed strictly.
We agree with petitioners. Our nation's political and economic future virtually
hangs in the balance, pending the outcome of the 2004 elections. Hence, there can be
no serious doubt that the subject matter of this case is "a matter of public concern and
imbued with public interest"; 1 8 in other words, it is of "paramount public interest" 1 9
and "transcendental importance." 2 0 This fact alone would justify relaxing the rule on
legal standing, following the liberal policy of this Court whenever a case involves "an
issue of overarching signi cance to our society." 2 1 Petitioners' legal standing should
therefore be recognized and upheld.
Moreover, this Court has held that taxpayers are allowed to sue when there is a
claim of "illegal disbursement of public funds," 2 2 or if public money is being "de ected
to any improper purpose"; 2 3 or when petitioners seek to restrain respondent from
"wasting public funds through the enforcement of an invalid or unconstitutional law." 2 4
In the instant case, individual petitioners, suing as taxpayers, assert a material interest
in seeing to it that public funds are properly and lawfully used. In the Petition, they claim
that the bidding was defective, the winning bidder not a quali ed entity, and the award
of the Contract contrary to law and regulation. Accordingly, they seek to restrain
respondents from implementing the Contract and, necessarily, from making any
unwarranted expenditure of public funds pursuant thereto. Thus, we hold that
petitioners possess locus standi.
Second Procedural Issue:
Alleged Prematurity Due to Non-Exhaustion
of Administrative Remedies
Respondents claim that petitioners acted prematurely, since they had not rst
utilized the protest mechanism available to them under RA 9184, the Government
Procurement Reform Act, for the settlement of disputes pertaining to procurement
contracts.
Section 55 of RA 9184 states that protests against decisions of the Bidding and
Awards Committee in all stages of procurement may be lodged with the head of the
procuring entity by ling a veri ed position paper and paying a protest fee. Section 57
of the same law mandates that in no case shall any such protest stay or delay the
bidding process, but it must first be resolved before any award is made.
On the other hand, Section 58 provides that court action may be resorted to only
after the protests contemplated by the statute shall have been completed. Cases led
in violation of this process are to be dismissed for lack of jurisdiction. Regional trial
courts shall have jurisdiction over final decisions of the head of the procuring entity, and
court actions shall be instituted pursuant to Rule 65 of the 1997 Rules of Civil
Procedure. cECTaD
Respondents assert that throughout the bidding process, petitioners never

questioned the BAC Report nding MPC eligible to bid and recommending the award of
the Contract to it (MPC). According to respondents, the Report should have been
appealed to the Comelec en banc, pursuant to the aforementioned sections of RA
9184. In the absence of such appeal, the determination and recommendation of the
BAC had become final.

The Court is not persuaded.
Respondent Comelec came out with its en banc Resolution No. 6074 dated April
15, 2003, awarding the project to Respondent MPC even before the BAC managed to
issue its written report and recommendation on April 21, 2003. Thus, how could
petitioners have appealed the BAC's recommendation or report to the head of the
procuring entity (the chairman of Comelec), when the Comelec en banc had already
approved the award of the contract to MPC even before petitioners learned of the BAC
recommendation?
It is claimed 2 5 by Comelec that during its April 15, 2003 session, it received and
approved the verbal report and recommendation of the BAC for the award of the
Contract to MPC, and that the BAC subsequently re-a rmed its verbal report and
recommendation by submitting it in writing on April 21, 2003. Respondents insist that
the law does not require that the BAC Report be in writing before Comelec can act
thereon; therefore, there is allegedly nothing irregular about the Report as well as the en
banc Resolution.
However, it is obvious that petitioners could have appealed the BAC's report and
recommendation to the head of the procuring entity (the Comelec chair) only upon their
discovery thereof, which at the very earliest would have been on April 21, 2003, when
the BAC actually put its report in writing and nally released it. Even then, what would
have been the use of protesting/appealing the report to the Comelec chair, when by
that time the Commission en banc (including the chairman himself) had already
approved the BAC Report and awarded the Contract to MPC?
And even assuming arguendo that petitioners had somehow gotten wind of the
verbal BAC report on April 15, 2003 (immediately after the en banc session), at that
point the Commission en banc had already given its approval to the BAC Report along
with the award to MPC. To put it bluntly, the Comelec en banc itself made it legally
impossible for petitioners to avail themselves of the administrative remedy that the
Commission is so impiously harping on. There is no doubt that they had not been
accorded the opportunity to avail themselves of the process provided under Section 55
of RA 9184, according to which a protest against a decision of the BAC may be led
with the head of the procuring entity. Nemo tenetur ad impossible , 2 6 to borrow private
respondents' favorite Latin excuse. 2 7
Some Observations on the BAC Report to the Comelec
We shall return to this issue of alleged prematurity shortly, but at this interstice,
we would just want to put forward a few observations regarding the BAC Report and
the Comelec en banc's approval thereof.
First, Comelec contends that there was nothing unusual about the fact that the
Report submitted by the BAC came only after the former had already awarded the
Contract, because the latter had been asked to render its report and recommendation
orally during the Commission's en banc session on April 15, 2003. Accordingly,
Comelec supposedly acted upon such oral recommendation and approved the award
to MPC on the same day, following which the recommendation was subsequently
reduced into writing on April 21, 2003. While not entirely outside the realm of the
possible, this interesting and unique spiel does not speak well of the process that
Comelec supposedly went through in making a critical decision with respect to a multi-
billion-peso contract.
We can imagine that anyone else standing in the shoes of the Honorable
Commissioners would have been extremely conscious of the overarching need for utter
transparency. They would have scrupulously avoided the slightest hint of impropriety,
preferring to maintain an exacting regularity in the performance of their duties, instead
of trying to break a speed record in the award of multi-billion-peso contracts. After all,
between April 15 and April 21 were a mere six (6) days. Could Comelec not have waited
out six more days for the written report of the BAC, instead of rushing pell-mell into the
arms of MPC? Certainly, respondents never cared to explain the nature of the
Commission's dire need to act immediately without awaiting the formal, written BAC
Report.
In short, the Court nds it di cult to reconcile the uncommon dispatch with
which Comelec acted to approve the multi-billion-peso deal, with its claim of having
been impelled by only the purest and most noble of motives.
At any rate, as will be discussed later on, several other factors combine to lend
negative credence to Comelec's tale.
Second, without necessarily ascribing any premature malice or premeditation on
the part of the Comelec o cials involved, it should nevertheless be conceded that this
cart-before-the-horse maneuver (awarding of the Contract ahead of the BAC's written
report) would de nitely serve as a clever and effective way of averting and frustrating
any impending protest under Section 55.
Having made the foregoing observations, we now go back to the question of
exhausting administrative remedies. Respondents may not have realized it, but the
letter addressed to Chairman Benjamin Abalos Sr. dated May 29, 2003 2 8 serves to
eliminate the prematurity issue as it was an actual written protest against the decision
of the poll body to award the Contract. The letter was signed by/for, inter alia, two of
herein petitioners: the Information Technology Foundation of the Philippines,
represented by its president, Alfredo M. Torres; and Ma. Corazon Akol.
Such letter-protest is su cient compliance with the requirement to exhaust
administrative remedies particularly because it hews closely to the procedure outlined
in Section 55 of RA 9184.
And even without that May 29, 2003 letter-protest, the Court still holds that
petitioners need not exhaust administrative remedies in the light of Paat v. Court of
Appeals. 2 9 Paat enumerates the instances when the rule on exhaustion of
administrative remedies may be disregarded, as follows:
"(1) when there is a violation of due process,
(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting to lack or excess
of jurisdiction,
(4) when there is estoppel on the part of the administrative agency concerned,
(5) when there is irreparable injury,

(6) when the respondent is a department secretary whose acts as an alter ego of
the President bears the implied and assumed approval of the latter,
(7) when to require exhaustion of administrative remedies would be
unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case proceedings,
(10) when the rule does not provide a plain, speedy and adequate remedy, and
(11) when there are circumstances indicating the urgency of judicial intervention."
30
The present controversy precisely falls within the exceptions listed as Nos. 7, 10
and 11: "(7) when to require exhaustion of administrative remedies would be
unreasonable; (10) when the rule does not provide a plain, speedy and adequate
remedy, and (11) when there are circumstances indicating the urgency of judicial
intervention." As already stated, Comelec itself made the exhaustion of administrative
remedies legally impossible or, at the very least, "unreasonable."
In any event, the peculiar circumstances surrounding the unconventional rendition
of the BAC Report and the precipitate awarding of the Contract by the Comelec en banc
— plus the fact that it was racing to have its Contract with MPC implemented in time for
the elections in May 2004 (barely four months away) — have combined to bring about
the urgent need for judicial intervention, thus prompting this Court to dispense with the
procedural exhaustion of administrative remedies in this case.
Main Substantive Issue:
Validity of the Award to MPC
We come now to the meat of the controversy. Petitioners contend that the award
is invalid, since Comelec gravely abused its discretion when it did the following:
1. Awarded the Contract to MPC though it did not even participate in the
bidding
2. Allowed MPEI to participate in the bidding despite its failure to meet the
mandatory eligibility requirements
3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC
despite the issuance by the BAC of its Report, which formed the basis
of the assailed Resolution, only on April 21, 2003 3 1
4. Awarded the Contract, notwithstanding the fact that during the bidding
process, there were violations of the mandatory requirements of RA
8436 as well as those set forth in Comelec's own Request for
Proposal on the automated election system IHaECA
5. Refused to declare a failed bidding and to conduct a re-bidding despite

the failure of the bidders to pass the technical tests conducted by the
Department of Science and Technology
6. Failed to follow strictly the provisions of RA 8436 in the conduct of the
bidding for the automated counting machines
After reviewing the slew of pleadings as well as the matters raised during the
Oral Argument, the Court deems it su cient to focus discussion on the following major
areas of concern that impinge on the issue of grave abuse of discretion:
A. Matters pertaining to the identity, existence and eligibility of MPC as a
bidder

B. Failure of the automated counting machines (ACMs) to pass the DOST
technical tests
C. Remedial measures and re-testings undertaken by Comelec and DOST
after the award, and their effect on the present controversy
A.
Failure to Establish the Identity, Existence and Eligibility
of the Alleged Consortium as a Bidder
On the question of the identity and the existence of the real bidder, respondents
insist that, contrary to petitioners' allegations, the bidder was not Mega Paci c
eSolutions, Inc. (MPEI), which was incorporated only on February 27, 2003, or 11 days
prior to the bidding itself. Rather, the bidder was Mega Paci c Consortium (MPC), of
which MPEI was but a part. As proof thereof, they point to the March 7, 2003 letter of
intent to bid, signed by the president of MPEI allegedly for and on behalf of MPC. They
also call attention to the o cial receipt issued to MPC, acknowledging payment for the
bidding documents, as proof that it was the "consortium" that participated in the
bidding process.
We do not agree. The March 7, 2003 letter, signed by only one signatory — "Willy
U. Yu, President, Mega Paci c eSolutions, Inc., (Lead Company/Proponent) For: Mega
Paci c Consortium" — and without any further proof, does not by itself prove the
existence of the consortium. It does not show that MPEI or its president have been duly
pre-authorized by the other members of the putative consortium to represent them, to
bid on their collective behalf and, more important, to commit them jointly and severally
to the bid undertakings. The letter is purely self-serving and uncorroborated.
Neither does an o cial receipt issued to MPC, acknowledging payment for the
bidding documents, constitute proof that it was the purported consortium that
participated in the bidding. Such receipts are issued by cashiers without any legally
sufficient inquiry as to the real identity or existence of the supposed payor.
To assure itself properly of the due existence (as well as eligibility and
quali cation) of the putative consortium, Comelec's BAC should have examined the
bidding documents submitted on behalf of MPC. They would have easily discovered the
following fatal flaws.
Two-Envelope, Two-Stage System
As stated earlier in our factual presentation, the public bidding system designed
by Comelec under its RFP (Request for Proposal for the Automation of the 2004
Election) mandated the use of a two-envelope, two-stage system. A bidder's rst
envelope (Eligibility Envelope) was meant to establish its eligibility to bid and its
quali cations and capacity to perform the contract if its bid was accepted, while the
second envelope would be the Bid Envelope itself.
The Eligibility Envelope was to contain legal documents such as articles of
incorporation, business registrations, licenses and permits, mayor's permit, VAT
certi cation, and so forth; technical documents containing documentary evidence to
establish the track record of the bidder and its technical and production capabilities to
perform the contract; and nancial documents , including audited nancial statements
for the last three years, to establish the bidder's financial capacity.
In the case of a consortium or joint venture desirous of participating in the
bidding, it goes without saying that the Eligibility Envelope would necessarily have to
include a copy of the joint venture agreement, the consortium agreement or
memorandum of agreement — or a business plan or some other instrument of similar
import — establishing the due existence, composition and scope of such aggrupation.
Otherwise, how would Comelec know who it was dealing with, and whether these
parties are quali ed and capable of delivering the products and services being offered
for bidding? 3 2
In the instant case, no such instrument was submitted to Comelec during the
bidding process. This fact can be conclusively ascertained by scrutinizing the two-inch
thick "Eligibility Requirements" le submitted by Comelec last October 9, 2003, in
partial compliance with this Court's instructions given during the Oral Argument. This
le purports to replicate the eligibility documents originally submitted to Comelec by
MPEI allegedly on behalf of MPC, in connection with the bidding conducted in March
2003. Included in the le are the incorporation papers and nancial statements of the
members of the supposed consortium and certain certi cates, licenses and permits
issued to them.
However, there is no sign whatsoever of any joint venture agreement, consortium
agreement, memorandum of agreement, or business plan executed among the
members of the purported consortium.
The only logical conclusion is that no such agreement was ever submitted to the
Comelec for its consideration, as part of the bidding process.
It thus follows that, prior the award of the Contract, there was no documentary or
other basis for Comelec to conclude that a consortium had actually been formed
amongst MPEI, SK C&C and WeSolv, along with Election.com and ePLDT. 3 3 Neither
was there anything to indicate the exact relationships between and among these rms;
their diverse roles, undertakings and prestations, if any, relative to the prosecution of
the project, the extent of their respective investments (if any) in the supposed
consortium or in the project; and the precise nature and extent of their respective
liabilities with respect to the contract being offered for bidding. And apart from the
self-serving letter of March 7, 2003, there was not even any indication that MPEI was
the lead company duly authorized to act on behalf of the others.
So, it necessarily follows that, during the bidding process, Comelec had no basis
at all for determining that the alleged consortium really existed and was eligible and
quali ed; and that the arrangements among the members were satisfactory and
sufficient to ensure delivery on the Contract and to protect the government's interest.
Notwithstanding such de ciencies, Comelec still deemed the "consortium"
eligible to participate in the bidding, proceeded to open its Second Envelope, and
eventually awarded the bid to it, even though — per the Comelec's own RFP — the BAC
should have declared the MPC ineligible to bid and returned the Second (Bid) Envelope
unopened.
Inasmuch as Comelec should not have considered MPEI et al. as comprising a
consortium or joint venture, it should not have allowed them to avail themselves of the
provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the Build-Operate-Transfer Law),
as amended by RA 7718. This provision states in part that a joint venture/consortium
proponent shall be evaluated based on the individual or collective experience of the
member-firms of the joint venture or consortium and of the contractor(s) that it has
engaged for the project. Parenthetically, respondents have uniformly argued that the
said IRR of RA 6957, as amended, have suppletory application to the instant case.

Hence, had the proponent MPEI been evaluated based solely on its own
experience, nancial and operational track record or lack thereof, it would surely not
have quali ed and would have been immediately considered ineligible to bid, as
respondents readily admit.
At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily
failing to observe its own rules, policies and guidelines with respect to the bidding
process, thereby negating a fair, honest and competitive bidding.
Commissioners Not Aware of Consortium
In this regard, the Court is beguiled by the statements of Commissioner
Florentino Tuason Jr., given in open court during the Oral Argument last October 7,
2003. The good commissioner a rmed that he was aware, of his own personal
knowledge, that there had indeed been a written agreement among the "consortium"
members, 3 4 although it was an internal matter among them, 3 5 and of the fact that it
would be presented by counsel for private respondent. 3 6
However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice
Jose C. Vitug, Commissioner Tuason in effect admitted that, while he was the
commissioner-in-charge of Comelec's Legal Department, he had never seen, even up to
that late date, the agreement he spoke of. 3 7 Under further questioning, he was likewise
unable to provide any information regarding the amounts invested into the project by
several members of the claimed consortium. 3 8 A short while later, he admitted that the
Commission had not taken a look at the agreement (if any). 3 9
He tried to justify his position by claiming that he was not a member of the BAC.
Neither was he the commissioner-in-charge of the Phase II Modernization project (the
automated election system); but that, in any case, the BAC and the Phase II
Modernization Project Team did look into the aspect of the composition of the
consortium.
It seems to the Court, though, that even if the BAC or the Phase II Team had
taken charge of evaluating the eligibility, quali cations and credentials of the
consortium-bidder, still, in all probability, the former would have referred the task to
Commissioner Tuason, head of Comelec's Legal Department. That task was the
appreciation and evaluation of the legal effects and consequences of the terms,
conditions, stipulations and covenants contained in any joint venture agreement,
consortium agreement or a similar document — assuming of course that any of these
was available at the time. The fact that Commissioner Tuason was barely aware of the
situation bespeaks the complete absence of such document, or the utter failure or
neglect of the Comelec to examine it — assuming it was available at all — at the time the
award was made on April 15, 2003. TIaDHE
In any event, the Court notes for the record that Commissioner Tuason basically
contradicted his statements in open court about there being one written agreement
among all the consortium members, when he subsequently referred 4 0 to the four (4)
Memoranda of Agreement (MOAs) executed by them. 4 1
At this juncture, one might ask: What, then, if there are four MOAs instead of one
or none at all? Isn't it enough that there are these corporations coming together to carry
out the automation project? Isn't it true, as respondent aver, that nowhere in the RFP
issued by Comelec is it required that the members of the joint venture execute a single
written agreement to prove the existence of a joint venture. Indeed, the intention to be
jointly and severally liable may be evidenced not only by a single joint venture
agreement, but also by supplementary documents executed by the parties signifying
such intention. What then is the big deal?
The problem is not that there are four agreements instead of only one. The
problem is that Comelec never bothered to check. It never based its decision on
documents or other proof that would concretely establish the existence of the claimed
consortium or joint venture or agglomeration. It relied merely on the self-serving
representation in an uncorroborated letter signed by only one individual, claiming that
his company represented a "consortium" of several different corporations. It concluded
forthwith that a consortium indeed existed, composed of such and such members, and
thereafter declared that the entity was eligible to bid.
True, copies of nancial statements and incorporation papers of the alleged
"consortium" members were submitted. But these papers did not establish the
existence of a consortium, as they could have been provided by the companies
concerned for purposes other than to prove that they were part of a consortium or joint
venture. For instance, the papers may have been intended to show that those
companies were each quali ed to be a sub-contractor (and nothing more) in a major
project. Those documents did not by themselves support the assumption that a
consortium or joint venture existed among the companies.
In brief, despite the absence of competent proof as to the existence and
eligibility of the alleged consortium (MPC), its capacity to deliver on the Contract, and
the members' joint and several liability therefor, Comelec nevertheless assumed that
such consortium existed and was eligible. It then went ahead and considered the bid of
MPC, to which the Contract was eventually awarded, in gross violation of the former's
own bidding rules and procedures contained in its RFP. Therein lies Comelec's grave
abuse of discretion.
Sufficiency of the Four Agreements
Instead of one multilateral agreement executed by, and effective and binding on,
all the ve "consortium members" — as earlier claimed by Commissioner Tuason in
open court — it turns out that what was actually executed were four (4) separate and
distinct bilateral Agreements. 4 2 Obviously, Comelec was furnished copies of these
Agreements only after the bidding process had been terminated, as these were not
included in the Eligibility Documents. These Agreements are as follows:
• A Memorandum of Agreement between MPEI and SK C&C
• A Memorandum of Agreement between MPEI and WeSolv
• A "Teaming Agreement" between MPEI and Election.com Ltd.
• A "Teaming Agreement" between MPEI and ePLDT
In sum, each of the four different and separate bilateral Agreements is valid and
binding only between MPEI and the other contracting party, leaving the other
"consortium" members total strangers thereto. Under this setup, MPEI dealt separately
with each of the "members," and the latter (WeSolv, SK C&C, Election.com, and ePLDT)
in turn had nothing to do with one another, each dealing only with MPEI.
Respondents assert that these four Agreements were su cient for the purpose
of enabling the corporations to still qualify (even at that late stage) as a consortium or
joint venture, since the first two Agreements had allegedly set forth the joint and several
undertakings among the parties, whereas the latter two clari ed the parties' respective
roles with regard to the Project, with MPEI being the independent contractor and
Election.com and ePLDT the subcontractors.
Additionally, the use of the phrase "particular contract" in the Comelec's Request
for Proposal (RFP), in connection with the joint and several liabilities of companies in a
joint venture, is taken by them to mean that all the members of the joint venture need
not be solidarily liable for the entire project or joint venture, because it is su cient that
the lead company and the member in charge of a particular contract or aspect of the
joint venture agree to be solidarily liable.
At this point, it must be stressed most vigorously that the submission of the four
bilateral Agreements to Comelec after the end of the bidding process did nothing to
eliminate the grave abuse of discretion it had already committed on April 15, 2003.
Deficiencies Have Not Been "Cured"
In any event, it is also claimed that the automation Contract awarded by Comelec
incorporates all documents executed by the "consortium" members, even if these
documents are not referred to therein. The basis of this assertion appears to be the
passages from Section 1.4 of the Contract, which is reproduced as follows:
"All Contract Documents shall form part of the Contract even if they or any
one of them is not referred to or mentioned in the Contract as forming a part
thereof. Each of the Contract Documents shall be mutually complementary and
explanatory of each other such that what is noted in one although not shown in
the other shall be considered contained in all, and what is required by any one
shall be as binding as if required by all, unless one item is a correction of the
other.
"The intent of the Contract Documents is the proper, satisfactory and

timely execution and completion of the Project, in accordance with the Contract
Documents. Consequently, all items necessary for the proper and timely execution
and completion of the Project shall be deemed included in the Contract."
Thus, it is argued that whatever perceived de ciencies there were in the

supplementary contracts — those entered into by MPEI and the other members of the
"consortium" as regards their joint and several undertakings — have been cured. Better
still, such de ciencies have supposedly been prevented from arising as a result of the
above-quoted provisions, from which it can be immediately established that each of the
members of MPC assumes the same joint and several liability as the other members.
The foregoing argument is unpersuasive. First, the contract being referred to,
entitled "The Automated Counting and Canvassing Project Contract," is between
Comelec and MPEI, not the alleged consortium, MPC. To repeat, it is MPEI — not MPC
— that is a party to the Contract. Nowhere in that Contract is there any mention of a
consortium or joint venture, of members thereof, much less of joint and several liability.
Supposedly executed sometime in May 2003, 4 3 the Contract bears a notarization date
of June 30, 2003, and contains the signature of Willy U. Yu signing as president of MPEI
(not for and on behalf of MPC), along with that of the Comelec chair. It provides in
Section 3.2 that MPEI (not MPC) is to supply the Equipment and perform the Services
under the Contract, in accordance with the appendices thereof; nothing whatsoever is
said about any consortium or joint venture or partnership.
Second, the portions of Section 1.4 of the Contract reproduced above do not
have the effect of curing (much less preventing) deficiencies in the bilateral agreements
entered into by MPEI with the other members of the "consortium," with respect to their
joint and several liabilities. The term "Contract Documents," as used in the quoted
passages of Section 1.4, has a well-de ned meaning and actually refers only to the
following documents:
• The Contract itself along with its appendices
• The Request for Proposal (also known as "Terms of Reference") issued by
the Comelec, including the Tender Inquiries and Bid Bulletins
• The Tender Proposal submitted by MPEI
In other words, the term "Contract Documents" cannot be understood as
referring to or including the MOAs and the Teaming Agreements entered into by MPEI
with SK C&C, WeSolv, Election.com and ePLDT. This much is very clear and admits of no
debate. The attempt to use the provisions of Section 1.4 to shore up the MOAs and the
Teaming Agreements is simply unwarranted.
Third and last, we fail to see how respondents can arrive at the conclusion that,
from the above-quoted provisions, it can be immediately established that each of the
members of MPC assumes the same joint and several liability as the other members.
Earlier, respondents claimed exactly the opposite — that the two MOAs (between MPEI
and SK C&C, and between MPEI and WeSolv) had set forth the joint and several
undertakings among the parties; whereas the two Teaming Agreements clari ed the
parties' respective roles with regard to the Project, with MPEI being the independent
contractor and Election.com and ePLDT the subcontractors.
Obviously, given the differences in their relationships, their respective liabilities
cannot be the same. Precisely, the very clear terms and stipulations contained in the
MOAs and the Teaming Agreements — entered into by MPEI with SK C&C, WeSolv,
Election.com and ePLDT — negate the idea that these "members" are on a par with one
another and are, as such, assuming the same joint and several liability. IHTASa
Moreover, respondents have earlier seized upon the use of the term "particular
contract" in the Comelec's Request for Proposal (RFP), in order to argue that all the
members of the joint venture did not need to be solidarily liable for the entire project or
joint venture. It was su cient that the lead company and the member in charge of a
particular contract or aspect of the joint venture would agree to be solidarily liable. The
glaring lack of consistency leaves us at a loss. Are respondents trying to establish the
same joint and solidary liability among all the "members" or not?
Enforcement of Liabilities Problematic
Next, it is also maintained that the automation Contract between Comelec and
the MPEI con rms the solidary undertaking of the lead company and the consortium
member concerned for each particular Contract, inasmuch as the position of MPEI and
anyone else performing the services contemplated under the Contract is described
therein as that of an independent contractor.
The Court does not see, however, how this conclusion was arrived at. In the rst
place, the contractual provision being relied upon by respondents is Article 14,
"Independent Contractors," which states: " Nothing contained herein shall be construed
as establishing or creating between the COMELEC and MEGA the relationship of
employee and employer or principal and agent, it being understood that the position of
MEGA and of anyone performing the Services contemplated under this Contract, is that
of an independent contractor."
Obviously, the intent behind the provision was simply to avoid the creation of an
employer-employee or a principal-agent relationship and the complications that it
would produce. Hence, the Article states that the role or position of MPEI, or anyone
else performing on its behalf, is that of an independent contractor. It is obvious to the
Court that respondents are stretching matters too far when they claim that, because of
this provision, the Contract in effect con rms the solidary undertaking of the lead
company and the consortium member concerned for the particular phase of the
project. This assertion is an absolute non sequitur.
Enforcement of Liabilities Under the Civil Code Not Possible
In any event, it is claimed that Comelec may still enforce the liability of the
"consortium" members under the Civil Code provisions on partnership , reasoning that
MPEI et al. represented themselves as partners and members of MPC for purposes of
bidding for the Project. They are, therefore, liable to the Comelec to the extent that the
latter relied upon such representation. Their liability as partners is solidary with respect
to everything chargeable to the partnership under certain conditions.
The Court has two points to make with respect to this argument. First, it must be
recalled that SK C&C, WeSolv, Election.com and ePLDT never represented themselves
as partners and members of MPC, whether for purposes of bidding or for something
else. It was MPEI alone that represented them to be members of a "consortium" it
supposedly headed. Thus, its acts may not necessarily be held against the other
"members."
Second, this argument of the OSG in its Memorandum 4 4 might possibly apply in
the absence of a joint venture agreement or some other writing that discloses the
relationship of the "members" with one another. But precisely, this case does not deal
with a situation in which there is nothing in writing to serve as reference, leaving
Comelec to rely on mere representations and therefore justifying a falling back on the
rules on partnership. For, again, the terms and stipulations of the MOAs entered into by
MPEI with SK C&C and WeSolv, as well as the Teaming Agreements of MPEI with
Election.com and ePLDT (copies of which have been furnished the Comelec) are very
clear with respect to the extent and the limitations of the firms' respective liabilities.
In the case of WeSolv and SK C&C, their MOAs state that their liabilities, while
joint and several with MPEI, are limited only to the particular areas of work wherein their
services are engaged or their products utilized. As for Election.com and ePLDT, their
separate "Teaming Agreements" speci cally ascribe to them the role of subcontractor
vis-a-vis MPEI as contractor and, based on the terms of their particular agreements,
neither Election.com nor ePLDT is, with MPEI, jointly and severally liable to Comelec. 4 5
It follows then that in the instant case, there is no justi cation for anyone, much less
Comelec, to resort to the rules on partnership and partners' liabilities.
Eligibility of a Consortium Based on the Collective Qualifications of Its Members
Respondents declare that, for purposes of assessing the eligibility of the bidder,
the members of MPC should be evaluated on a collective basis. Therefore, they
contend, the failure of MPEI to submit nancial statements (on account of its recent
incorporation) should not by itself disqualify MPC, since the other members of the
"consortium" could meet the criteria set out in the RFP.
Thus, according to respondents, the collective nature of the undertaking of the
members of MPC, their contribution of assets and sharing of risks, and the community
of their interest in the performance of the Contract lead to these reasonable
conclusions: (1) that their collective quali cations should be the basis for evaluating
their eligibility; (2) that the sheer enormity of the project renders it improbable to
expect any single entity to be able to comply with all the eligibility requirements and
undertake the project by itself; and (3) that, as argued by the OSG, the RFP allows bids
from manufacturers, suppliers and/or distributors that have formed themselves into a
joint venture, in recognition of the virtual impossibility of a single entity's ability to
respond to the Invitation to Bid.
Additionally, argues the Comelec, the Implementing Rules and Regulations of RA
6957 (the Build-Operate-Transfer Law) as amended by RA 7718 would be applicable, as
proponents of BOT projects usually form joint ventures or consortiums. Under the IRR,
a joint venture/consortium proponent shall be evaluated based on the individual or the
collective experience of the member- rms of the joint venture/consortium and of the
contractors the proponent has engaged for the project.
Unfortunately, this argument seems to assume that the "collective" nature of the
undertaking of the members of MPC, their contribution of assets and sharing of risks,
and the "community" of their interest in the performance of the Contract entitle MPC to
be treated as a joint venture or consortium; and to be evaluated accordingly on the
basis of the members' collective quali cations when, in fact, the evidence before the
Court suggest otherwise.
This Court in Kilosbayan v. Guingona 4 6 defined joint venture as "an association of
persons or companies jointly undertaking some commercial enterprise; generally, all
contribute assets and share risks. It requires a community of interest in the
performance of the subject matter, a right to direct and govern the policy in connection
therewith, and [a] duty, which may be altered by agreement to share both in pro t and
losses."
Going back to the instant case, it should be recalled that the automation Contract
with Comelec was not executed by the "consortium" MPC — or by MPEI for and on
behalf of MPC — but by MPEI, period. The said Contract contains no mention
whatsoever of any consortium or members thereof. This fact alone seems to
contradict all the suppositions about a joint undertaking that would normally apply to a
joint venture or consortium: that it is a commercial enterprise involving a community of
interest, a sharing of risks, profits and losses, and so on.
Now let us consider the four bilateral Agreements, starting with the
Memorandum of Agreement between MPEI and WeSolv Open Computing, Inc., dated
March 5, 2003. The body of the MOA consists of just seven (7) short paragraphs that
would easily fit in one page! It reads as follows:
"1. The parties agree to cooperate in successfully implementing the Project
in the substance and form as may be most bene cial to both parties and other
subcontractors involved in the Project.
"2. Mega Paci c shall be responsible for any contract negotiations and
signing with the COMELEC and, subject to the latter's approval, agrees to give
WeSolv an opportunity to be present at meetings with the COMELEC concerning
WeSolv's portion of the Project.
"3. WeSolv shall be jointly and severally liable with Mega Paci c only for
the particular products and/or services supplied by the former for the Project.
"4. Each party shall bear its own costs and expenses relative to this
agreement unless otherwise agreed upon by the parties.
"5. The parties undertake to do all acts and such other things incidental to,
necessary or desirable or the attainment of the objectives and purposes of this
Agreement.
"6. In the event that the parties fail to agree on the terms and conditions of
the supply of the products and services including but not limited to the scope of
the products and services to be supplied and payment terms, WeSolv shall cease
to be bound by its obligations stated in the aforementioned paragraphs.
"7. Any dispute arising from this Agreement shall be settled amicably by
the parties whenever possible. Should the parties be unable to do so, the parties
hereby agree to settle their dispute through arbitration in accordance with the
existing laws of the Republic of the Philippines." (Emphasis supplied.)
Even shorter is the Memorandum of Agreement between MPEI and SK C&C Co.
Ltd., dated March 9, 2003, the body of which consists of only six (6) paragraphs, which
we quote: IDCHTE
"1. All parties agree to cooperate in achieving the Consortium's objective of

successfully implementing the Project in the substance and form as may be most
bene cial to the Consortium members and in accordance with the demand of the
RFP.
"2. Mega Paci c shall have full powers and authority to represent the
Consortium with the Comelec, and to enter and sign, for and in behalf of its
members any and all agreement/s which may be required in the implementation
of the Project.
"3. Each of the individual members of the Consortium shall be jointly and
severally liable with the Lead Firm for the particular products and/or services
supplied by such individual member for the project, in accordance with their
respective undertaking or sphere of responsibility.
"4. Each party shall bear its own costs and expenses relative to this
agreement unless otherwise agreed upon by the parties.
"5. The parties undertake to do all acts and such other things incidental to,
necessary or desirable for the attainment of the objectives and purposes of this
Agreement.
"6. Any dispute arising from this Agreement shall be settled amicably by
the parties whenever possible. Should the parties be unable to do so, the parties
hereby agree to settle their dispute through arbitration in accordance with the
existing laws of the Republic of the Philippines." (Emphasis supplied.)
It will be noted that the two Agreements quoted above are very similar in
wording. Neither of them contains any speci cs or details as to the exact nature and
scope of the parties' respective undertakings, performances and deliverables under the
Agreement with respect to the automation project. Likewise, the two Agreements are
quite bereft of pesos-and-centavos data as to the amount of investments each party
contributes, its respective share in the revenues and/or pro t from the Contract with
Comelec, and so forth — all of which are normal for agreements of this nature. Yet,
according to public and private respondents, the participation of MPEI, WeSolv and SK
C&C comprises fully 90 percent of the entire undertaking with respect to the election
automation project, which is worth about P1.3 billion.

As for Election.com and ePLDT, the separate "Teaming Agreements" they entered
into with MPEI for the remaining 10 percent of the entire project undertaking are
ironically much longer and more detailed than the MOAs discussed earlier. Although
speci cally ascribing to them the role of subcontractor vis-a-vis MPEI as contractor,
these Agreements are, however, completely devoid of any pricing data or payment
terms. Even the appended Schedules supposedly containing prices of goods and
services are shorn of any price data. Again, as mentioned earlier, based on the terms of
their particular Agreements, neither Election.com nor ePLDT — with MPEI — is jointly
and severally liable to Comelec.
It is di cult to imagine how these bare Agreements — especially the rst two —
could be implemented in practice; and how a dispute between the parties or a claim by
Comelec against them, for instance, could be resolved without lengthy and debilitating
litigations. Absent any clear-cut statement as to the exact nature and scope of the
parties' respective undertakings, commitments, deliverables and covenants, one party
or another can easily dodge its obligation and deny or contest its liability under the
Agreement; or claim that it is the other party that should have delivered but failed to.
Likewise, in the absence of definite indicators as to the amount of investments to
be contributed by each party, disbursements for expenses, the parties' respective
shares in the pro ts and the like, it seems to the Court that this situation could readily
give rise to all kinds of misunderstandings and disagreements over money matters.
Under such a scenario, it will be extremely di cult for Comelec to enforce the
supposed joint and several liabilities of the members of the "consortium." The Court is
not even mentioning the possibility of a situation arising from a failure of WeSolv and
MPEI to agree on the scope, the terms and the conditions for the supply of the
products and services under the Agreement. In that situation, by virtue of paragraph 6
of its MOA, WeSolv would perforce cease to be bound by its obligations — including its
joint and solidary liability with MPEI under the MOA — and could forthwith disengage
from the project. Effectively, WeSolv could at any time unilaterally exit from its MOA
with MPEI by simply failing to agree. Where would that outcome leave MPEI and
Comelec?
To the Court, this strange and beguiling arrangement of MPEI with the other
companies does not qualify them to be treated as a consortium or joint venture, at least
of the type that government agencies like the Comelec should be dealing with. With
more reason is it unable to agree to the proposal to evaluate the members of MPC on a
collective basis.
In any event, the MPC members claim to be a joint venture/consortium; and
respondents have consistently been arguing that the IRR for RA 6957, as amended,
should be applied to the instant case in order to allow a collective evaluation of
consortium members. Surprisingly, considering these facts, respondents have not
deemed it necessary for MPC members to comply with Section 5.4 (a) (iii) of the IRR
for RA 6957 as amended.
According to the aforementioned provision, if the project proponent is a joint
venture or consortium, the members or participants thereof are required to submit a
sworn statement that, if awarded the contract, they shall bind themselves to be jointly,
severally and solidarily liable for the project proponent's obligations thereunder . This
provision was supposed to mirror Section 5 of RA 6957, as amended, which states: "In
all cases, a consortium that participates in a bid must present proof that the members
of the consortium have bound themselves jointly and severally to assume responsibility
for any project. The withdrawal of any member of the consortium prior to the
implementation of the project could be a ground for the cancellation of the contract."
The Court has certainly not seen any joint and several undertaking by the MPC
members that even approximates the tenor of that which is described above. We fail to
see why respondents should invoke the IRR if it is for their bene t, but refuse to comply
with it otherwise.
B.
DOST Technical Tests Flunked by the Automated Counting Machines
Let us now move to the second subtopic, which deals with the substantive issue:
the ACM's failure to pass the tests of the Department of Science and Technology
(DOST).
After respondent "consortium" and the other bidder, TIM, had submitted their
respective bids on March 10, 2003, the Comelec's BAC — through its Technical Working
Group (TWG) and the DOST — evaluated their technical proposals. Requirements that
were highly technical in nature and that required the use of certain equipment in the
evaluation process were referred to the DOST for testing. The Department reported
thus:
TEST RESULTS MATRIX 4 7
[ Technical Evaluation of Automated Counting Machine]
KEY REQUIREMENTS MEGA-PACIFIC TOTAL INFORMATION
[QUESTIONS] CONSORTIUM MANAGEMENT
YES NO YES NO
1. Does the machine have
an accuracy rating of at
least 99.995 percent?
At COLD ü ü
environmental
conditions
At NORMAL ü ü
environmental
conditions
At HARSH ü ü
environmental
conditions
2. Accurately records and ü ü
reports the date and time
of the start and end of
counting of ballots per
precinct?
3. Prints election returns ü ü
without any loss of date
during generation of
such reports?
4. Uninterruptible back-up ü ü
power system, that will
engage immediately to
allow operation of at
least 10 minutes after
outage, power surge or
abnormal electrical
occurrences?
5. Machine reads two- ü ü
sided ballots in one Note: This
pass? particular
requirement
needs further
verification
6. Machine can detect ü ü
previously counted
ballots and prevent
previously counted
ballots from being
counted more than
once?
7. Stores results of counted ü ü
votes by precinct in Note: This
external (removable) particular
storage device? requirement
needs further
verification
8. Data stored in external ü ü
media is encrypted? Note: This
particular
requirement
needs further
verification
9. Physical key or similar ü ü
device allows, limits, or
restricts operation of the
machine?
10. CPU speed is at least ü ü
400mHz? Note: This
particular
requirement
needs further
verification
11. Port to allow use of ü ü
dot-matrix printers?
12. Generates printouts of
the election returns in a
format specified by the
COMELEC?
Generates printouts ü ü
In format specified by ü ü
COMELEC
13. Prints election returns ü ü
without any loss of data
during generation of
such report?
14. Generates an audit trail
of the counting
machine, both hard copy
and soft copy?
Hard copy ü ü
Soft copy ü ü
Note: This
particular
requirement
needs further
verification
15. Does the ü ü
City/Municipal Note: This
Canvassing System particular
consolidate results from requirement
all precincts within it needs further
using the encrypted soft verification
copy of the data
generated by the
counting machine and
stored on the removable
data storage device?
16. Does the ü ü
City/Municipal Note: This Note: This
Canvassing System particular particular
consolidate results from requirement requirement
all precincts within it needs further needs further
using the encrypted soft verification verification
copy of the data
generated by the
transmitted through an
electronic transmission
media?
17. Does the system output ü ü
a Zero City/Municipal Note: This
Canvass Report, which particular
is printed on election requirement
day prior to the conduct needs further
of the actual canvass verification
operation, that shows
that all totals for all the
votes for all the
candidates and other
information, are indeed
zero or null?
18. Does the system ü ü
consolidate results from Note: This
all precincts in the particular
city/municipality using requirement
the data storage device needs further
coming from the verification
counting machine?
19. Is the machine 100% ü ü
accurate? Note: This
particular
requirement
needs further
verification
20. Is the Program able to ü ü
detect previously Note: This
downloaded precinct particular
results and prevent these requirement
from being inputted needs further
again into the System? verification
21. The System is able to
print the specified
reports and the audit
trail without any loss of
data during generation
of the above-mentioned
reports?
Prints specified reports ü ü
Audit Trail ü ü
Note: This
particular
requirement
needs further
verification
22. Can the result of the ü ü
city/municipal Note: This
consolidation be stored particular
in a data storage device? requirement
needs further
verification
23. Does the system ü ü
consolidate results from Note: This
all precincts in the particular
provincial/district/ requirement
national using the data needs further
storage device from verification
different levels of
consolidation?
24. Is the system 100% ü ü
accurate? Note: This
particular
requirement
needs further
verification
25. Is the Program able to ü ü
detect previously Note: This
downloaded precinct particular
results and prevent these requirement
from being inputted needs further
again into the System? verification
26. The System is able to
print the specified
reports and the audit
trail without any loss of
data during generation
of the abovementioned
reports?
Prints specified reports ü ü
Audit Trail ü ü
Note: This
particular
requirement
needs further
verification
27. Can the results of the ü ü
provincial/district/ Note: This
national consolidation particular
be stored in a data requirement
storage device? needs further
verification
According to respondents, it was only after the TWG and the DOST had
conducted their separate tests and submitted their respective reports that the BAC, on
the basis of these reports formulated its comments/recommendations on the bids of
the consortium and TIM. HaTSDA
The BAC, in its Report dated April 21, 2003, recommended that the Phase II
project involving the acquisition of automated counting machines be awarded to MPEI.
It said:
"After incisive analysis of the technical reports of the DOST and the
Technical Working Group for Phase II — Automated Counting Machine, the BAC
considers adaptability to advances in modern technology to ensure an effective
and efficient method, as well as the security and integrity of the system.
"The results of the evaluation conducted by the TWG and that of the DOST
(14 April 2003 report), would show the apparent advantage of Mega-Paci c over
the other competitor, TIM.
"The BAC further noted that both Mega-Paci c and TIM obtained some
'failed marks' in the technical evaluation. In general, the 'failed marks' of Total
Information Management as enumerated above affect the counting machine
itself which are material in nature, constituting non-compliance to the RFP. On the
other hand, the 'failed marks' of Mega-Paci c are mere formalities on certain
documentary requirements which the BAC may waive as clearly indicated in the
Invitation to Bid.
"In the DOST test, TIM obtained 12 failed marks and mostly attributed to
the counting machine itself as stated earlier. These are requirements of the RFP
and therefore the BAC cannot disregard the same.
"Mega-Paci c failed in 8 items however these are mostly on the software
which can be corrected by reprogramming the software and therefore can be
readily corrected.
"The BAC verbally inquired from DOST on the status of the retest of the
counting machines of the TIM and was informed that the report will be
forthcoming after the holy week. The BAC was informed that the retest is on a
different parameters they're being two different machines being tested. One
purposely to test if previously read ballots will be read again and the other for the
other features such as two sided ballots.
"The said machine and the software therefore may not be considered the
same machine and program as submitted in the Technical proposal and therefore
may be considered an enhancement of the original proposal.
"Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by

Executive Director Ronaldo T. Viloria of DOST is that the result of the test in the
two counting machines of TIM contains substantial errors that may lead to the
failure of these machines based on the speci c items of the RFP that DOST has
to certify.
OPENING OF FINANCIAL BIDS

"The BAC on 15 April 2003, after notifying the concerned bidders opened
the financial bids in their presence and the results were as follows:
Mega-Pacific:
Option 1 — Outright purchase: Bid Price if Php1,248,949,088.00
Option 2 — Lease option:

70% Down payment of cost of hardware or Php642,755,757.07
Remainder payable over 50 months or a total of Php642,755,757.07
Discount rate of 15% p.a. or 1.2532% per month.

Total Number of Automated Counting Machine — 1,769 ACMs
(Nationwide)
TIM:
Total Bid Price – Php1,297,860,560.00
Total Number of Automated Counting Machine — 2,272 ACMs (Mindanao and

NCR only)
"Premises considered, it appears that the bid of Mega Paci c is the lowest
calculated responsive bid, and therefore, the Bids and Awards Committee (BAC)
recommends that the Phase II project re Automated Counting Machine be
awarded to Mega Pacific eSolutions, Inc." 4 8
The BAC, however, also stated on page 4 of its Report: " Based on the 14 April
2003 report (Table 6) of the DOST, it appears that both Mega-Paci c and TIM (Total
Information Management Corporation) failed to meet some of the requirements. Below
is a comparative presentation of the requirements wherein Mega-Paci c or TIM or both
of them failed: . . .." What followed was a list of "key requirements," referring to technical
requirements, and an indication of which of the two bidders had failed to meet them.
Failure to Meet the Required Accuracy Rating
The first of the key requirements was that the counting machines were to have an
accuracy rating of at least 99.9995 percent. The BAC Report indicates that both Mega
Pacific and TIM failed to meet this standard.
The key requirement of accuracy rating happens to be part and parcel of the
Comelec's Request for Proposal (RFP). The RFP, on page 26, even states that the ballot
counting machines and ballot counting software "must have an accuracy rating of
99.9995% (not merely 99.995%) or better as certi ed by a reliable independent testing
agency."
When questioned on this matter during the Oral Argument, Commissioner Borra
tried to wash his hands by claiming that the required accuracy rating of 99.9995
percent had been set by a private sector group in tandem with Comelec. He added that
the Commission had merely adopted the accuracy rating as part of the group's
recommended bid requirements, which it had not bothered to amend even after being
advised by DOST that such standard was unachievable. This excuse, however, does not
in any way lessen Comelec's responsibility to adhere to its own published bidding rules,
as well as to see to it that the consortium indeed meets the accuracy standard.
Whichever accuracy rating is the right standard — whether 99.995 or 99.9995 percent
— the fact remains that the machines of the so-called "consortium" failed to even reach
the lesser of the two. On this basis alone, it ought to have been disquali ed and its bid
rejected outright.
At this point, the Court stresses that the essence of public bidding is violated by
the practice of requiring very high standards or unrealistic speci cations that cannot be
met — like the 99.9995 percent accuracy rating in this case — only to water them down
after the bid has been award. Such scheme, which discourages the entry of prospective
bona de bidders, is in fact a sure indication of fraud in the bidding, designed to
eliminate fair competition. Certainly, if no bidder meets the mandatory requirements,
standards or speci cations, then no award should be made and a failed bidding
declared.
Failure of Software to Detect Previously Downloaded Data
Furthermore, on page 6 of the BAC Report, it appears that the "consortium" as
well as TIM failed to meet another key requirement — for the counting machine's
software program to be able to detect previously downloaded precinct results and to
prevent these from being entered again into the counting machine. This same
de ciency on the part of both bidders reappears on page 7 of the BAC Report, as a
result of the recurrence of their failure to meet the said key requirement.
That the ability to detect previously downloaded data at different canvassing or
consolidation levels is deemed of utmost importance can be seen from the fact that it
is repeated three times in the RFP. On page 30 thereof, we nd the requirement that the
city/municipal canvassing system software must be able to detect previously
downloaded precinct results and prevent these from being "inputted" again into the
system. Again, on page 32 of the RFP, we read that the provincial/district canvassing
system software must be able to detect previously downloaded city/municipal results
and prevent these from being "inputted" again into the system. And once more, on page
35 of the RFP, we nd the requirement that the national canvassing system software
must be able to detect previously downloaded provincial/district results and prevent
these from being "inputted" again into the system.
Once again, though, Comelec chose to ignore this crucial de ciency, which
should have been a cause for the gravest concern. Come May 2004, unscrupulous
persons may take advantage of and exploit such de ciency by repeatedly downloading
and feeding into the computers results favorable to a particular candidate or
candidates. We are thus confronted with the grim prospect of election fraud on a
massive scale by means of just a few key strokes. The marvels and woes of the
electronic age!
Inability to Print the Audit Trail
But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate that
the ACMs of both bidders were unable to print the audit trail without any loss of data. In
the case of MPC, the audit trail system was "not yet incorporated" into its ACMs.
This particular de ciency is signi cant, not only to this bidding but to the cause
of free and credible elections. The purpose of requiring audit trails is to enable Comelec
to trace and verify the identities of the ACM operators responsible for data entry and
downloading, as well as the times when the various data were downloaded into the
canvassing system, in order to forestall fraud and to identify the perpetrators. CTIDcA
Thus, the RFP on page 27 states that the ballot counting machines and ballot
counting software must print an audit trail of all machine operations for documentation
and veri cation purposes. Furthermore, the audit trail must be stored on the internal
storage device and be available on demand for future printing and verifying. On pages
30–31, the RFP also requires that the city/municipal canvassing system software be
able to print an audit trail of the canvassing operations, including therein such data as
the date and time the canvassing program was started, the log-in of the authorized
users (the identity of the machine operators), the date and time the canvass data were
downloaded into the canvassing system, and so on and so forth. On page 33 of the
RFP, we nd the same audit trail requirement with respect to the provincial/district
canvassing system software; and again on pages 35–36 thereof, the same audit trail
requirement with respect to the national canvassing system software.
That this requirement for printing audit trails is not to be lightly brushed aside by
the BAC or Comelec itself as a mere formality or technicality can be readily gleaned
from the provisions of Section 7 of RA 8436, which authorizes the Commission to use
an automated system for elections.
The said provision which respondents have quoted several times, provides that
ACMs are to possess certain features divided into two classes: those that the statute
itself considers mandatory and other features or capabilities that the law deems
optional. Among those considered mandatory are "provisions for audit trails"! Section 7
reads as follows: "The System shall contain the following features: (a) use of
appropriate ballots; (b) stand-alone machine which can count votes and an automated
system which can consolidate the results immediately; (c) with provisions for audit
trails; (d) minimum human intervention; and (e) adequate safeguard/security
measures." (Italics and emphases supplied.)
In brief, respondents cannot deny that the provision requiring audit trails is
indeed mandatory, considering the wording of Section 7 of RA 8436. Neither can
Respondent Comelec deny that it has relied on the BAC Report, which indicates that the
machines or the software was de cient in that respect. And yet, the Commission
simply disregarded this shortcoming and awarded the Contract to private respondent,
thereby violating the very law it was supposed to implement.
C.
Inadequacy of Post Facto Remedial Measures
Respondents argue that the de ciencies relating to the detection of previously
downloaded data, as well as provisions for audit trails, are mere shortcomings or minor
de ciencies in software or programming, which can be recti ed. Perhaps Comelec
simply relied upon the BAC Report, which states on page 8 thereof that "Mega Paci c
failed in 8 items[;] however these are mostly on the software which can be corrected by
re-programming . . . and therefore can be readily corrected."
The undersigned ponente's questions, some of which were addressed to
Commissioner Borra during the Oral Argument, remain unanswered to this day. First of
all, who made the determination that the eight "fail" marks of Mega Paci c were on
account of the software — was it DOST or TWG? How can we be sure these failures
were not the results of machine defects? How was it determined that the software
could actually be re-programmed and thereby recti ed? Did a quali ed technical expert
read and analyze the source code 4 9 for the programs and conclude that these could be
saved and remedied? (Such determination cannot be done by any other means save by
the examination and analysis of the source code.)
Who was this quali ed technical expert? When did he carry out the study? Did he
prepare a written report on his ndings? Or did the Comelec just make a wild guess? It
does not follow that all defects in software programs can be recti ed, and the
programs saved. In the information technology sector, it is common knowledge that
there are many badly written programs, with signi cant programming errors written
into them; hence it does not make economic sense to try to correct the programs;
instead, programmers simply abandon them and just start from scratch. There's no
telling if any of these programs is unrecti able, unless a quali ed programmer reads
the source code.
And if indeed a quali ed expert reviewed the source code, did he also determine
how much work would be needed to rectify the programs? And how much time and
money would be spent for that effort? Who would carry out the work? After the
recti cation process, who would ascertain and how would it be ascertained that the
programs have indeed been properly recti ed, and that they would work properly
thereafter? And of course, the most important question to ask: could the recti cation
be done in time for the elections in 2004?
Clearly, none of the respondents bothered to think the matter through. Comelec
simply took the word of the BAC as gospel truth, without even bothering to inquire from
DOST whether it was true that the de ciencies noted could possibly be remedied by re-
programming the software. Apparently, Comelec did not care about the software, but
focused only on purchasing the machines.
What really adds to the Court's dismay is the admission made by Commissioner
Borra during the Oral Argument that the software currently being used by Comelec was
merely the "demo" version, inasmuch as the nal version that would actually be used in
the elections was still being developed and had not yet been finalized.
It is not clear when the nal version of the software would be ready for testing
and deployment. It seems to the Court that Comelec is just keeping its ngers crossed
and hoping the nal product would work. Is there a "Plan B" in case it does not? Who
knows? But all these software programs are part and parcel of the bidding and the
Contract awarded to the Consortium. Why is it that the machines are already being
brought in and paid for, when there is as yet no way of knowing if the nal version of the
software would be able to run them properly, as well as canvass and consolidate the
results in the manner required?
The counting machines, as well as the canvassing system, will never work
properly without the correct software programs. There is an old adage that is still valid
to this day: "Garbage in, garbage out." No matter how powerful, advanced and
sophisticated the computers and the servers are, if the software being utilized is
defective or has been compromised, the results will be no better than garbage. And to
think that what is at stake here is the 2004 national elections — the very basis of our
democratic life.
Correction of Defects?
To their Memorandum, public respondents proudly appended 19 Certi cations
issued by DOST declaring that some 285 counting machines had been tested and had
passed the acceptance testing conducted by the Department on October 8–18, 2003.
Among those tested were some machines that had failed previous tests, but had
undergone adjustments and thus passed re-testing.
Unfortunately, the Certi cations from DOST fail to divulge in what manner and by
what standards or criteria the condition, performance and/or readiness of the
machines were re-evaluated and re-appraised and thereafter given the passing mark.
Apart from that fact, the remedial efforts of respondents were, not surprisingly,
apparently focused again on the machines — the hardware. Nothing was said or done
about the software — the de ciencies as to detection and prevention of downloading
and entering previously downloaded data, as well as the capability to print an audit trail.
No matter how many times the machines were tested and re-tested, if nothing was
done about the programming defects and de ciencies, the same danger of massive
electoral fraud remains. As anyone who has a modicum of knowledge of computers
would say, "That's elementary!"
And only last December 5, 2003, an Inq7.net news report quoted the Comelec
chair as saying that the new automated poll system would be used nationwide in May
2004, even as the software for the system remained un nished . It also reported that a
certain Titus Manuel of the Philippine Computer Society, which was helping Comelec
test the hardware and software, said that the software for the counting still had to be
submitted on December 15, while the software for the canvassing was due in early
January.
Even as Comelec continues making payments for the ACMs, we keep asking
ourselves: who is going to ensure that the software would be tested and would work
properly?
At any rate, the re-testing of the machines and/or the 100 percent testing of all
machines (testing of every single unit) would not serve to eradicate the grave abuse of
discretion already committed by Comelec when it awarded the Contract on April 15,
2003, despite the obvious and admitted aws in the bidding process, the failure of the
"winning bidder" to qualify, and the inability of the ACMs and the intended software to
meet the bid requirements and rules.

Comelec's Latest "Assurances" Are Unpersuasive
Even the latest pleadings led by Comelec do not serve to allay our
apprehensions. They merely a rm and compound the serious violations of law and
gravely abusive acts it has committed. Let us examine them.
The Resolution issued by this Court on December 9, 2003 required respondents
to inform it as to the number of ACMs delivered and paid for, as well as the total
payment made to date for the purchase thereof. They were likewise instructed to
submit a certi cation from the DOST attesting to the number of ACMs tested, the
number found to be defective; and "whether the reprogrammed software has been
tested and found to have complied with the requirements under Republic Act No.
8436." 5 0
In its "Partial Compliance and Manifestation" dated December 29, 2003, Comelec
informed the Court that 1,991 ACMs had already been delivered to the Commission as
of that date. It further certi ed that it had already paid the supplier the sum of
P849,167,697.41, which corresponded to 1,973 ACM units that had passed the
acceptance testing procedures conducted by the MIRDC-DOST 5 1 and which had
therefore been accepted by the poll body. ICTcDA
In the same submission, for the very rst time , Comelec also disclosed to the
Court the following:
"The Automated Counting and Canvassing Project involves not only the
manufacturing of the ACM hardware but also the development of three (3) types
of software, which are intended for use in the following:
1. Evaluation of Technical Bids

2. Testing and Acceptance Procedures
3. Election Day Use."
Purchase of the First Type of Software Without Evaluation

In other words, the rst type of software was to be developed solely for the
purpose of enabling the evaluation of the bidder's technical bid. Comelec explained
thus: "In addition to the presentation of the ACM hardware, the bidders were required to
develop a 'base' software program that will enable the ACM to function properly. Since
the software program utilized during the evaluation of bids is not the actual software
program to be employed on election day, there being two (2) other types of software
program that will still have to be developed and thoroughly tested prior to actual
election day use, defects in the 'base' software that can be readily corrected by
reprogramming are considered minor in nature, and may therefore be waived."
In short, Comelec claims that it evaluated the bids and made the decision to
award the Contract to the "winning" bidder partly on the basis of the operation of the
ACMs running a "base" software. That software was therefore nothing but a sample or
"demo" software, which would not be the actual one that would be used on election day.
Keeping in mind that the Contract involves the acquisition of not just the ACMs or the
hardware, but also the software that would run them, it is now even clearer that the
Contract was awarded without Comelec having seen, much less evaluated, the nal
product — the software that would nally be utilized come election day. (Not even the
"near-final" product, for that matter).
What then was the point of conducting the bidding, when the software that was
the subject of the Contract was still to be created and could conceivably undergo
innumerable changes before being considered as being in final form? And that is not all!
No Explanation for Lapses in the Second Type of Software
The second phase, allegedly involving the second type of software, is simply
denominated "Testing and Acceptance Procedures." As best as we can construe,
Comelec is claiming that this second type of software is also to be developed and
delivered by the supplier in connection with the "testing and acceptance" phase of the
acquisition process. The previous pleadings, though — including the DOST reports
submitted to this Court — have not heretofore mentioned any statement, allegation or
representation to the effect that a particular set of software was to be developed
and/or delivered by the supplier in connection with the testing and acceptance of
delivered ACMs.
What the records do show is that the imported ACMs were subjected to the
testing and acceptance process conducted by the DOST. Since the initial batch
delivered included a high percentage of machines that had failed the tests, Comelec
asked the DOST to conduct a 100 percent testing; that is, to test every single one of the
ACMs delivered. Among the machines tested on October 8 to 18, 2003, were some
units that had failed previous tests but had subsequently been re-tested and had
passed. To repeat, however, until now, there has never been any mention of a second
set or type of software pertaining to the testing and acceptance process.
In any event, apart from making that misplaced and uncorroborated claim,
Comelec in the same submission also professes (in response to the concerns
expressed by this Court) that the reprogrammed software has been tested and found
to have complied with the requirements of RA 8436. It reasoned thus: "Since the
software program is an inherent element in the automated counting system, the
certi cation issued by the MIRDC-DOST that one thousand nine hundred seventy-three
(1,973) units passed the acceptance test procedures is an o cial recognition by the
MIRDC-DOST that the software component of the automated election system, which
has been reprogrammed to comply with the provisions of Republic Act No. 8436 as
prescribed in the Ad Hoc Technical Evaluation Committee's ACM Testing and
Acceptance Manual, has passed the MIRDC-DOST tests."
The facts do not support this sweeping statement of Comelec. A scrutiny of the
MIRDC-DOST letter dated December 15, 2003, 5 2 which it relied upon, does not justify
its grand conclusion. For clarity's sake, we quote in full the letter-certi cation, as
follows:
"15 December 2003
"HON. RESURRECCION Z. BORRA
Commissioner-in-Charge
Phase II, Modernization Project

Commission on Elections
Intramuros, Manila
Attention: Atty. Jose M. Tolentino, Jr.

Project Director

"Dear Commissioner Borra:
"We are pleased to submit 11 DOST Test Certi cations representing 11 lots
and covering 158 units of automated counting machines (ACMs) that we have
tested from 02–12 December 2003.
"To date, we have tested all the 1,991 units of ACMs, broken down as
follow: (sic)
1st batch — 30 units 4th batch — 438 units
2nd batch — 288 units 5th batch — 438 units
3rd batch — 414 units 6th batch — 383 units

"It should be noted that a total of 18 units have failed the test. Out of these
18 units, only one (1) unit has failed the retest.
"Thank you and we hope you will find everything in order.
"Very truly yours,

"ROLANDO T. VILORIA, CESO III
Executive Director cum
Chairman, DOST-Technical Evaluation Committee"
Even a cursory glance at the foregoing letter shows that it is completely bereft of
anything that would remotely support Comelec's contention that the "software
component of the automated election system . . . has been reprogrammed to comply
with" RA 8436, and "has passed the MIRDC-DOST tests." There is no mention at all of
any software reprogramming. If the MIRDC-DOST had indeed undertaken the supposed
reprogramming and the process turned out to be successful, that agency would have
proudly trumpeted its singular achievement.
How Comelec came to believe that such reprogramming had been undertaken is
unclear. In any event, the Commission is not forthright and candid with the factual
details. If reprogramming has been done, who performed it and when? What exactly did
the process involve? How can we be assured that it was properly performed? Since the
facts attendant to the alleged reprogramming are still shrouded in mystery, the Court
cannot give any weight to Comelec's bare allegations.
The fact that a total of 1,973 of the machines has ultimately passed the MIRDC-
DOST tests does not by itself serve as an endorsement of the soundness of the
software program, much less as a proof that it has been reprogrammed. In the rst
place, nothing on record shows that the tests and re-tests conducted on the machines
were intended to address the serious de ciencies noted earlier. As a matter of fact, the
MIRDC-DOST letter does not even indicate what kinds of tests or re-tests were
conducted, their exact nature and scope, and the speci c objectives thereof. 5 3 The
absence of relevant supporting documents, combined with the utter vagueness of the
letter, certainly fails to inspire belief or to justify the expansive con dence displayed by
Comelec. In any event, it goes without saying that remedial measures such as the
alleged reprogramming cannot in any way mitigate the grave abuse of discretion
already committed as early as April 15, 2003.
Rationale of Public Bidding Negated by the Third Type of Software
Respondent Comelec tries to assuage this Court's anxiety in these words: " The
reprogrammed software that has already passed the requirements of Republic Act No.
8436 during the MIRDC-DOST testing and acceptance procedures will require further
customization since the following additional elements, among other things, will have to
be considered before the nal software can be used on election day : 1. Final Certi ed
List of Candidates . . . 2. Project of Precincts . . . 3. O cial Ballot Design and Security
Features . . . 4. Encryption, digital certi cates and digital signatures . . . The certi ed list
of candidates for national elective positions will be nalized on or before 23 January
2004 while the nal list of projects of precincts will be prepared also on the same date.
Once all the above elements are incorporated in the software program, the Test
Certi cation Group created by the Ad Hoc Technical Evaluation Committee will conduct
meticulous testing of the final software before the same can be used on election day. In
addition to the testing to be conducted by said Test Certi cation Group, the Comelec
will conduct mock elections in selected areas nationwide not only for purposes of
public information but also to further test the nal election day program. Public
respondent Comelec, therefore, requests that it be given up to 16 February 2004 to
comply with this requirement."
The foregoing passage shows the imprudent approach adopted by Comelec in
the bidding and acquisition process. The Commission says that before the software
can be utilized on election day, it will require "customization" through addition of data —
like the list of candidates, project of precincts, and so on. And inasmuch as such data
will become available only in January 2004 anyway, there is therefore no perceived need
on Comelec's part to rush the supplier into producing the nal (or near- nal) version of
the software before that time. In any case, Comelec argues that the software needed
for the electoral exercise can be continuously developed, tested, adjusted and
perfected, practically all the way up to election day, at the same time that the
Commission is undertaking all the other distinct and diverse activities pertinent to the
elections.
Given such a frame of mind, it is no wonder that Comelec paid little attention to
the counting and canvassing software during the entire bidding process, which took
place in February–March 2003. Granted that the software was defective, could not
detect and prevent the re-use of previously downloaded data or produce the audit trail
— aside from its other shortcomings — nevertheless, all those de ciencies could still be
corrected down the road. At any rate, the software used for bidding purposes would
not be the same one that will be used on election day, so why pay any attention to its
defects? Or to the Comelec's own bidding rules for that matter? HcTIDC
Clearly, such jumbled ratiocinations completely negate the rationale underlying

the bidding process mandated by law.
At the very outset, the Court has explained that Comelec agrantly violated the
public policy on public biddings (1) by allowing MPC/MPEI to participate in the bidding
even though it was not quali ed to do so; and (2) by eventually awarding the Contract
to MPC/MPEI. Now, with the latest explanation given by Comelec, it is clear that the
Commission further desecrated the law on public bidding by permitting the winning
bidder to change and alter the subject of the Contract (the software), in effect allowing
a substantive amendment without public bidding.
This stance is contrary to settled jurisprudence requiring the strict application of
pertinent rules, regulations and guidelines for public bidding for the purpose of placing
each bidder, actual or potential, on the same footing . The essence of public bidding is,
after all, an opportunity for fair competition, and a fair basis for the precise comparison
of bids. In common parlance, public bidding aims to "level the playing eld." That means
each bidder must bid under the same conditions; and be subject to the same
guidelines, requirements and limitations, so that the best offer or lowest bid may be
determined, all other things being equal.
Thus, it is contrary to the very concept of public bidding to permit a variance
between the conditions under which bids are invited and those under which proposals
are submitted and approved; or, as in this case, the conditions under which the bid is
won and those under which the awarded Contract will be complied with. The
substantive amendment of the contract bidded out, without any public bidding — after
the bidding process had been concluded — is violative of the public policy on public
biddings, as well as the spirit and intent of RA 8436. The whole point in going through
the public bidding exercise was completely lost. The very rationale of public bidding
was totally subverted by the Commission.
From another perspective, the Comelec approach also fails to make sense.
Granted that, before election day, the software would still have to be customized to
each precinct, municipality, city, district, and so on, there still was nothing at all to
prevent Comelec from requiring prospective suppliers/bidders to produce, at the very
start of the bidding process, the "next-to- nal" versions of the software (the best
software the suppliers had) — pre-tested and ready to be customized to the nal list of
candidates and project of precincts, among others, and ready to be deployed
thereafter. The satisfaction of such requirement would probably have provided far
better bases for evaluation and selection, as between suppliers, than the so-called
demo software.
Respondents contend that the bidding suppliers' counting machines were
previously used in at least one political exercise with no less than 20 million voters. If
so, it stands to reason that the software used in that past electoral exercise would
probably still be available and, in all likelihood, could have been adopted for use in this
instance. Paying for machines and software of that category (already tried and proven
in actual elections and ready to be adopted for use) would de nitely make more sense
than paying the same hundreds of millions of pesos for demo software and empty
promises of usable programs in the future.
But there is still another gut-level reason why the approach taken by Comelec is
reprehensible. It rides on the perilous assumption that nothing would go wrong; and
that, come election day, the Commission and the supplier would have developed,
adjusted and "re-programmed" the software to the point where the automated system
could function as envisioned. But what if such optimistic projection does not
materialize? What if, despite all their herculean efforts, the software now being hurriedly
developed and tested for the automated system performs dismally and inaccurately or,
worse, is hacked and/or manipulated? 5 4 What then will we do with all the machines and
defective software already paid for in the amount of P849 million of our tax money?
Even more important, what will happen to our country in case of failure of the
automation?
The Court cannot grant the plea of Comelec that it be given until February 16,
2004 to be able to submit a "certi cation relative to the additional elements of the
software that will be customized," because for us to do so would unnecessarily delay
the resolution of this case and would just give the poll body an unwarranted excuse to
postpone the 2004 elections. On the other hand, because such certi cation will not
cure the gravely abusive actions complained of by petitioners, it will be utterly useless.
Is this Court being overly pessimistic and perhaps even engaging in speculation?
Hardly. Rather, the Court holds that Comelec should not have gambled on the
unrealistic optimism that the supplier's software development efforts would turn out
well. The Commission should have adopted a much more prudent and judicious
approach to ensure the delivery of tried and tested software, and readied alternative
courses of action in case of failure. Considering that the nation's future is at stake here,
it should have done no less.
Epilogue
Once again, the Court nds itself at the crossroads of our nation's history. At
stake in this controversy is not just the business of a computer supplier, or a
questionable proclamation by Comelec of one or more public o cials. Neither is it
about whether this country should switch from the manual to the automated system of
counting and canvassing votes. At its core is the ability and capacity of the
Commission on Elections to perform properly, legally and prudently its legal mandate
to implement the transition from manual to automated elections.
Unfortunately, Comelec has failed to measure up to this historic task. As stated
at the start of this Decision, Comelec has not merely gravely abused its discretion in
awarding the Contract for the automation of the counting and canvassing of the ballots.
It has also put at grave risk the holding of credible and peaceful elections by shoddily
accepting electronic hardware and software that admittedly failed to pass legally
mandated technical requirements. Inadequate as they are, the remedies it proffers post
facto do not cure the grave abuse of discretion it already committed (1) on April 15,
2003, when it illegally made the award; and (2) "sometime" in May 2003 when it
executed the Contract for the purchase of defective machines and non-existent
software from a non-eligible bidder.
For these reasons, the Court nds it totally unacceptable and unconscionable to
place its imprimatur on this void and illegal transaction that seriously endangers the
breakdown of our electoral system. For this Court to cop-out and to close its eyes to
these illegal transactions, while convenient, would be to abandon its constitutional duty
of safeguarding public interest.
As a necessary consequence of such nullity and illegality, the purchase of the
machines and all appurtenances thereto including the still-to-be-produced (or in
Comelec's words, to be "reprogrammed") software, as well as all the payments made
therefor, have no basis whatsoever in law. The public funds expended pursuant to the
void Resolution and Contract must therefore be recovered from the payees and/or
from the persons who made possible the illegal disbursements, without prejudice to
possible criminal prosecutions against them.
Furthermore, Comelec and its officials concerned must bear full responsibility for
the failed bidding and award, and held accountable for the electoral mess wrought by
their grave abuse of discretion in the performance of their functions. The State, of
course, is not bound by the mistakes and illegalities of its agents and servants.
True, our country needs to transcend our slow, manual and archaic electoral
process. But before it can do so, it must rst have a diligent and competent electoral
agency that can properly and prudently implement a well-conceived automated election
system.
At bottom, before the country can hope to have a speedy and fraud-free
automated election, it must rst be able to procure the proper computerized hardware
and software legally, based on a transparent and valid system of public bidding. As in
any democratic system, the ultimate goal of automating elections must be achieved by
a legal, valid and above-board process of acquiring the necessary tools and skills
therefor. Though the Philippines needs an automated electoral process, it cannot
accept just any system shoved into its bosom through improper and illegal methods.
As the saying goes, the end never justi es the means. Penumbral contracting will not
produce enlightened results.
WHEREFORE, the Petition is GRANTED. The Court hereby declares NULL and
VOID Comelec Resolution No. 6074 awarding the contract for Phase II of the CAES to
Mega Paci c Consortium (MPC). Also declared null and void is the subject Contract
executed between Comelec and Mega Paci c eSolutions (MPEI). 5 5 Comelec is further
ORDERED to refrain from implementing any other contract or agreement entered into
with regard to this project.
Let a copy of this Decision be furnished the Office of the Ombudsman which shall
determine the criminal liability, if any, of the public o cials (and conspiring private
individuals, if any) involved in the subject Resolution and Contract. Let the O ce of the
Solicitor General also take measures to protect the government and vindicate public
interest from the ill effects of the illegal disbursements of public funds made by reason
of the void Resolution and Contract.
SO ORDERED.
Carpio, Austria-Martinez, Carpio Morales and Callejo, Sr., JJ., concur.
Davide, Jr., C.J., Vitug and Ynares-Santiago, JJ., see separate opinion.
Puno, J ., concur, and also joins the opinion of J . Ynares-Santiago.
Quisumbing, J., concurs in the result.
Sandoval-Gutierrez, J., see concurring opinion.
Corona and Azcuna, JJ., join the dissent of J. Tinga.
Tinga, J., please see dissenting opinion.
Separate Opinions
DAVIDE, JR., C.J.:
I join Mr. Justice Jose C. Vitug in his separate opinion and strongly recommend,
for the reasons therein stated, that this case be DISMISSED.
Let me further add other compelling reasons which strengthen my view that this
case should be dismissed.
The Court did not issue a Temporary Restraining Order in this case. This showed
an initial nding that on its face the allegations in the petition were insu cient to justify
or warrant the grant of a temporary restraining order. In the meantime then the parties
were not barred from performing their respective obligations under the contract. As of
today, the COMELEC has already paid a large portion of its contracted obligation and
the private respondent has delivered the contracted equipment for automation. It is to
be reasonably presumed that during the same period the COMELEC focused its
attention, time and resources toward the full and successful implementation of the
comprehensive Automated Election System for the May 2004 elections. Setting aside
the contract in question at this late hour may have unsettling, disturbing and even
destabilizing effect. For one, it will leave the COMELEC insu cient time to prepare for a
non-automated electoral process, i.e., the manual process, which would necessarily
include the acquisition of the security paper and the purchase of a "dandy roll" to
watermark the ballot paper, printing of other election forms, as well as the bidding and
acquisition of the ballot boxes. For another, the law on Automated Election System
(R.A. 8436) and Executive Order No. 172 (24 January 2003) which allocated the sum of
P2.5 Billion, and Executive Order No. 175 (10 February 2003) which allocated the
additional sum of P500 Million for the implementation in the May 2004 elections of the
Automated Election System would be put to naught as there is absolutely no more time
to conduct a re-bidding.
Finally, there is no suggestion that graft and corruption attended the bidding
process, or that the contract price is excessive or unreasonable. All that the petitioners
claim is that "the bidding and the award process was fatally awed. The public
respondents acted without or excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction when it [sic] awarded the project."
It may be precipitate for this Court to declare void the contract in question.
VITUG, J.:
While the Supreme Court exercises original jurisdiction over petitions for
certiorari and prohibition (along with petitions for prohibition, mandamus, quo
warranto, habeas corpus and injunction), that jurisdiction, however, is not exclusive. 1 A
direct recourse to the Supreme Court, for the issuance of these writs, in disregard of
the rule on hierarchy, should be appropriate only when, besides the attendance of
clearly exceptional and compelling reasons clearly set out in the petition, 2 there are no
contentious factual assertions of the parties that need to be threshed out before any
objective and definitive conclusion can be reached.
What appears to be a signi cant issue in the instant petition is the legality of
respondent COMELEC's award of the contract relative to the procurement of
automated counting machines to respondent Mega Paci c under alleged questionable
circumstances. The Supreme Court is not a trier of facts; indeed, a review of the
evidence is not the proper o ce of a petition for certiorari, prohibition or mandamus. 3
These proceedings are availed of only when there can be no other plain, adequate and
speedy remedy in the ordinary course of law.
In certiorari or prohibition, issues affecting the jurisdiction of the tribunal, board
and o cers involved may be resolved solely on the basis of undisputed facts. 4 The
enormity of the factual disputes in the instant petition, among which include the
eligibility of Mega Paci c to participate in the bidding process, the veracity and
effectivity of the testing, and the technical evaluation conducted by the Department of
Science and Technology (DOST) on the automated counting machine of the bidders,
would essentially require an extensive inquiry into the facts. An insistence that it be
resolved despite unsettled factual points would be inadequate to allow an intrusion by
the Court. 5
The Supreme Court is not expected, whenever one is simply minded, to pass
judgment on an action of a government agency upon which authority, as well as
corresponding duty, devolves. The Court neither controls nor supervises the exercise of
authority and the discharge of function by another government o ce. If it were
otherwise, the act of governance and the responsibility that thereto attaches are then
effectively shifted from where they belong over to where they should not be. The Court
is bound merely to construe and to apply the law, regardless of its wisdom and
salutariness, and to strike it down only when constitutional proscriptions are
disregarded. It is what the fundamental law mandates, and it is what the Court must do.
The electoral process, it is true, should be of paramount and immediate concern
to every Filipino. It is also probably true that the computerization/automation of our
electoral process, as well as the progress that it brings, is just as important.
Nevertheless, it could also be unwise for the Court, for that sake alone, to precipitately
take on the case; after all, we have been without it for decades. The opinions expressed
by my colleagues, collectively and individually, should indeed give compelling reasons
for the Commission on Elections to perhaps take notice and, on its own, to forthwith
reexamine the assailed bidding process.
Accordingly, at this stage, I am constrained to vote against the Court's taking
cognizance of the case.
YNARES-SANTIAGO, J., concurring:
I am mindful of our ruling, expressed only recently in Makalintal v. COMELEC, 1

that the Commission on Elections ("COMELEC"), being an independent constitutional
body, ought to be given considerable latitude in the discharge of its functions. The key
point to be remembered is the fundamental objective which all of the COMELEC's
actuations should be destined to achieve, i.e. the accomplishment of free, orderly and
honest elections. If the means adopted by the COMELEC run clearly contrary to its
fundamental objective, it is our right — more, our duty — to nullify the COMELEC's
actuations.
Our experience during the May 11, 1998 regular elections held in the
Autonomous Region in Muslim Mindanao (ARMM) 2 should have taught us that the
Philippines may be unprepared for the use of automated counting machines. Whereas it
is successfully adopted in many countries around the world, this sophisticated
technological advancement seems beyond the reach of the Philippines at this stage in
our country's development. If we persist in attempting the use thereof, even if — as in
this case — such machines do not meet the standards of accuracy that our own laws
demand, we would be tampering with the conduct of free, orderly and honest elections,
and thus we would be distorting the will of the electorate.
As pointed out by the Honorable Justice Jose C. Vitug in his Separate Opinion,
this Court is not a trier of facts, and a review of the technical evidence is not the proper
o ce of a petition for certiorari, prohibition and mandamus. 3 The questions of law,
however, and the questions of the COMELEC's grave abuse of discretion, are squarely
within the purview of this Court in this case.
In my opinion, there are three main grounds which warrant granting the instant
petition. First, I believe that the special circumstances availing in this case warrant the
relaxation of the rule on exhaustion of administrative remedies. Second, the COMELEC
gravely abused its discretion when it clearly contracted with a non-eligible entity, and
therefore the contract for the second phase of the automated counting system is null
and void. Finally, even assuming the eligibility of the other contracting party, the
COMELEC gravely abused its discretion when it changed the technical requirements for
accuracy of the automated machines and software, which warrants the nulli cation of
the contract.
I.
On Non-Exhaustion of Administrative Remedies
A long line of cases establishes the basic rule that regular courts of justice
should not interfere in matters which are addressed to the sound discretion of
government agencies entrusted with the regulation of activities coming under the
special technical knowledge and training of such agencies. 4 The underlying principle of
the rule on exhaustion of administrative remedies rests on the presumption that when
the administrative body, or grievance machinery, is afforded a chance to pass upon the
matter, it will decide the same correctly. 5
The principle of exhaustion of administrative remedies is not an ironclad rule.
This doctrine is relative, and its exibility is called upon by the peculiarity and
uniqueness of the factual and circumstantial settings of a case. 6
In the past, the principle has been disregarded when (1) there is a violation of due
process; 7 (2) the issue involved is purely a legal question; 8 (3) the administrative
action is patently illegal amounting to lack or excess of jurisdiction; 9 (4) there is
estoppel on the part of the administrative agency concerned; 1 0 (5) there is irreparable
injury; 1 1 (6) the respondent is a department secretary whose acts, as an alter ego of
the President, bear the implied and assumed approval of the latter; 1 2 (7) to require
exhaustion of administrative remedies would be unreasonable; 1 3 (8) it would amount
to a nulli cation of a claim; 1 4 (9) the subject matter is a private land in land case
proceedings; 1 5 (10) the rule does not provide a plain, speedy and adequate remedy;
and (11) there are circumstances indicating the urgency of judicial intervention, 1 6 as
when public interest is involved. 1 7
There is no plainer example of a case in which the issues are of transcendental
importance. The preservation of an honest, upright system of electing our nation's
public o cers bears urgent public interest considerations. More, as I will discuss
below, the administrative action involved here is patently illegal, amounting to lack or
excess of jurisdiction.
These two reasons warrant the relaxation of the rule of exhaustion of
administrative remedies.
II.
On the Non-Eligibility of Private Respondents.
I am not persuaded by the argument that the individual members of the so-called
"Consortium" bound themselves to perform particular obligations under individual
agreements executed with MPEI, and that these separate agreements su ce to
constitute an eligible "joint venture" under the Request For Proposal ("RFP")
promulgated by the COMELEC. The fact that WeSolv, SK C & C, Election.Com and
ePLDT bound themselves to MPEI does not mean that a joint venture was executed.
These individual entities are merely the sub-contractors of MPEI, and their liability for
any breach is only to MPEI.
Under the RFP, a "joint venture" has been given a very strict de nition. To be
eligible to submit a bid, the following criteria must be met:
Manufacturers, suppliers and/or distributors forming themselves into a
joint venture, that intend to be jointly and severally liable for a particular contract,
provided Filipino ownership thereof shall be 60%. 1 8 (emphasis supplied)
There are therefore three quali cations for eligibility under the RFP. First, the
manufacturers, suppliers and/or distributors must expressly form themselves into a
joint venture. Second, this joint venture must demonstrate an intent that the individual
members be jointly and severally liable for a particular contract. Finally, the Filipino
ownership of the joint venture must be 60%.
Whereas the RFP does not require the members of the joint venture to execute a
single document to constitute the joint venture, there must be su cient evidence that
such a joint venture was indeed formed, whether this evidence is a single document, or
a multiplicity of documents. It is plain that the "joint venture" must be formed as a
single entity, responsible for the entirety of the contract, even if separate agreements
among the individual members of the joint venture would lay out the speci c tenor of
their obligations to each other; otherwise, it would be impossible to evaluate the
nationality of this joint venture, which nationality is the third requirement for eligibility.
Conspicuously absent from the records of this case are documents that
demonstrate that the individual members of the so-called "Consortium" actually formed
or constituted themselves into a joint venture. Jurisprudence discussing a joint venture
lays out the rule that such an entity "presupposes generally a parity of standing
between the joint co-ventures or partners, in which each party has an equal proprietary
interest in the capital or property contributed, and where each party exercises equal
rights in the conduct of the business." 1 9
I n Aurbach, et al. v. Sanitary Wares Manufacturing Corporation, et al . , 2 0 we
expressed the view that a joint venture may be likened to a partnership, thus:
The legal concept of a joint venture is of common law origin. It has no
precise legal de nition, but it has been generally understood to mean an
organization formed for some temporary purpose. It is hardly distinguishable
from the partnership, since their elements are similar — community of interest in
the business, sharing of pro ts and losses, and a mutual right of control. The
main distinction cited by most opinions in common law jurisdiction is that the
partnership contemplates a general business with some degree of continuity,
while the joint venture is formed for the execution of a single transaction, and is
thus of a temporary nature. This observation is not entirely accurate in this
jurisdiction, since under the Civil Code, a partnership may be particular or
universal, and a particular partnership may have for its object a speci c
undertaking. It would seem therefore that under Philippine law, a joint venture is a
form of partnership and should thus be governed by the law of partnerships. The
Supreme Court has however recognized a distinction between these two business
forms, and has held that although a corporation cannot enter into a partnership
contract, it may however engage in a joint venture with others. (citations omitted)
In other words, the legal concept of a "joint venture", since akin to a partnership,
involves a common agreement — in which all individuals and entities party to the joint
venture bind themselves, jointly, to perform a common undertaking or undertakings.
The definition of a "joint venture" under the RFP is in line with this legal definition.
There is nothing in the records that would indicate that any such entity was
created by the individual members of the so-called "Consortium". In the absence of any
evidence, we must conclude that no such agreement exists.
Since we are unable to conclude that the "joint venture" has any legal existence, it
is impossible to evaluate whether or not the third criterion — setting out the nationality
requirement for an eligible joint venture — has been met by the so-called "Consortium".
The so-called "Consortium", therefore, has failed to meet the first and third criteria.
There is also a gross failure on the part of the private respondents to meet the
second criterion. There is a marked absence of intent that the individual members of
the so-called "Consortium" be jointly and severally liable for the contract.
The records contain particular individual agreements that MPEI entered into with
other entities. A perusal of the individual agreements that MPEI entered into with the
other entities readily demonstrates that it was always the intent of MPEI to have direct
and primary liability for any breach of the Contract with COMELEC.
Part of the records are so-called "Teaming Agreements" which MPEI entered into
with Election.Com Ltd. 2 1 and ePLDT Inc., 2 2 both dated March 3, 2003. An examination
of the language of these "Teaming Agreements" would once more demonstrate that it
was MPEI, and MPEI alone, which intended to bid for the Contract with the COMELEC,
and intended to be bound thereby. First, both these "Teaming Agreements" contain
stipulations designating MPEI as the "Contractor" and the other party as merely the
"Subcontractor". 2 3 Each of these "Teaming Agreements" acknowledges that the
agreements were entered into in the expectation that COMELEC would award the
Contract to the Contractor, MPEI. 2 4 Absent from either of these "Teaming Agreements"
is any reference to the possibility that COMELEC would contract with the so-called
"Consortium".
Moreover, both of these agreements state that the obligation of the
Subcontractor was the delivery of equipment or provision of services to the Contractor,
MPEI, 2 5 and indeed expressly limit the Subcontractor's role in the entire project to be
merely that of a provider of the equipment and services. 2 6 Liability for failure to
perform these obligations is expressly limited. The Subcontractors would be liable only
to MPEI, and not to the COMELEC.
Also part of the records is the "Memorandum of Agreement" entered into
between MPEI and WeSolv Open Computing, Inc. 2 7 The very rst preambulatory clause
thereof reads:
WHEREAS, pursuant to an open competitive bidding to be conducted by
the Commission on Elections ("COMELEC") of the Philippine Government, Mega
Pacific intends to submit a bid for Phase II: Automated Counting and Canvassing
System (the "Project") of the Modernization Program of the Philippine Electoral
System; 2 8 (emphasis supplied)
"Mega Paci c", the entity referred to, is de ned as "Mega Paci c eSolutions, Inc."
29 and not the so-called "Consortium" . In other words, MPEI and WeSolv understood
that MPEI would be bidding for the Contract, and MPEI alone would be contracting with
COMELEC.
The expression of "joint and several liability" of "WeSolv" does not transform the
agreement into a joint venture. There is a clear limit to the extent of this liability. As
plainly stated in the Memorandum of Agreement:
WeSolv shall be jointly and severally liable with Mega Paci c only for the
particular products and/or services supplied by the former for the Project. 3 0
The very rst reference to any so-called "Consortium" is in the "Memorandum of
Agreement" dated March 9, 2003, between MPEI and SK C & C, "a corporation
organized and existing under and by virtue of the laws of the Republic of Korea". 3 1 The
initial preambulatory clause reads:

WHEREAS, pursuant to an open competitive bidding to be conducted by
the Commission on Elections ("COMELEC") of the Philippine Government, the
Mega Paci c Consortium shall bid for Phase II: Automated Counting and
Canvassing System (the "Project") of the Modernization Program of the Philippine
Electoral System; . . . 3 2
That Memorandum of Agreement also contains the following clause:

Each of the individual members of the Consortium shall be jointly and
respective undertaking or sphere of responsibility. 3 3
Three things are significant about this Memorandum of Agreement.

First, whereas there is reference to a "Consortium", the speci c composition of
the "Consortium" is not speci ed. Thus, the records are bereft of any evidence that
would demonstrate which entities, if any, would be parties to this "Consortium". It is
therefore impossible to make a factual determination as regards whether the
"Consortium" would meet the strict requirements for a quali ed bidder outlined in the
RFP.
Second, the Memorandum of Agreement speci cally limits the liability of each
member of this "Consortium" only in accordance with their respective undertaking or
sphere of responsibility. Thus, the "joint and several" liability of each member of the
Consortium would again be only within a very limited application, i.e., only to the extent
of its individual undertaking.
Third, and most signi cant, the Memorandum of Agreement is only between
MPEI and SK C & C. There is no evidence of any similar Memorandum of Agreement,
referring to a Consortium, entered into between MPEI and any other entity. The joint and
several liability referred to in the quoted paragraph, therefore, would pertain only to
MPEI and SK C & C, since these are the only two parties to this particular contract, and
not to any other member of the Consortium, if any. In the absence of evidence, it is
impossible to conclude that there are other members of the Consortium, and equally
impossible to determine the extent of their liability, if any.
In sum, therefore, there is a conspicuous dearth of evidence to demonstrate that
there was, indeed, a Consortium; if there was a Consortium, the speci c composition
thereof; and, if there was a Consortium, the liability of its individual members, for breach
of the contract to COMELEC.
All this demonstrates that, even if the other contracting party were the so-called
"Consortium", this "Consortium" would be ineligible to enter into the contract with the
COMELEC.
However, it is plain that the COMELEC entered into a contract not with this
"Consortium", but rather with MPEI — an entity which, it is acknowledged, would per se
be ineligible to bid. A plain reading of the contract denominates the parties to be:
COMMISSION ON ELECTIONS, the government institution charged with the
enforcement and administration of laws relative to the conduct of elections, with
principal o ce address at Postigo Street, Intramuros, Manila, Philippines,
represented in this act by its Chairman, Hon. Benjamin S. Abalos, hereinafter
referred to as the "COMELEC".
— and —
MEGA PACIFIC eSOLUTIONS, INC., a corporation duly organized and
existing under and by virtue of the laws of the Republic of the Philippines, with
principal o ce address at Suite 707, Tower One & Exchange Plaza, Ayala
Triangle, Ayala Avenue, Makati City, Philippines, represented in this act by its
President, Willy U. Yu, hereinafter referred to as "MEGA". 3 4
The "Contract Documents" referred to are the following:
1.4. Contract Documents

The following documents, referred to collectively as the Contract
Documents, are hereby incorporated and made integral parts of the Contract:
(1) this Contract together with its Appendices;
(2) the Request for Proposal (also known as "Terms of Reference") issued by the
Comelec including Tender Inquiries and Bid Bulletins;
(3) Tender Proposal as submitted by Mega.
All Contract Documents shall form part of the Contract even if they or any
one of them is not referred to or mentioned in the Contract as forming a part
the other shall be as binding as if required by all, unless one item is a correction
of the other.
The Intent of the Contract Documents is the proper, satisfactory, and timely
execution and completion of the Project in accordance with the Contract
and completion of the Project shall be deemed included in the Contract.
Again, conspicuously absent from this contractual de nition of a "Contract

Document" is any mention of any subsidiary agreement between a purported
"Consortium" and the COMELEC. Indeed, a plain reading of the de nition of the
"Contract Document" would indicate that, insofar as the parties to the contract were
concerned, the bid itself was submitted by MPEI and not the "Consortium".
Moreover, the de nition of "Contract Document" could easily have integrated the
subsidiary agreements, incorporating them by reference, in the same way that the
"Request for Proposal" and "Tender Proposal" were incorporated by reference.
These contracts were not even appended as annexes to the main contract. The
appendices to the main contract are: "Products and Services to be Acquired from, and
Provided by, Mega Paci c Solutions, Inc., and Technical Speci cations"; 3 5 "Ballot
Counting System"; 3 6 "Canvassing of Votes System/Software"; 3 7 "Project Management
Approach"; 3 8 "Implementation and Roll-Out Plan"; 3 9 "Timelines"; 4 0 "List of Goods"; 4 1
"List of Documentation"; 4 2 "Training Summary"; 4 3 "List of Services"; 4 4 "Schedule of
Communication/Information Dissemination Materials"; 4 5 and "Global Price Summary".
46
Moreover, an examination of the various obligations in the contract readily

demonstrates that all those obligations pertain only to either COMELEC or MPEI. None
of the other entities under the so-called "Consortium" has any obligations to COMELEC
under the Contract. It is apparent that only COMELEC and MPEI are bound thereunder.
The argument that the "Consortium", as an entity, bound itself to perform particular
obligations under the contract is easily debunked by an examination of the contract
itself.
Various other documents also support the fact that only MPEI, not any so-called
"Consortium", contracted with COMELEC. For instance, there is the Secretary's
Certi cate, dated March 5, 2003, executed by Enrique T. Tansipek, the Corporate
Secretary of MPEI, which attests to the corporate authority given by the MPEI board to
enable MPEI (not the so-called "Consortium") to participate in the bidding, in its own
behalf, and not in behalf of any so-called "Consortium". 4 7 There are various "A davits
of Undertaking" dated March 7, 2003, executed by Willy U. Yu, President of MPEI, which
attest that (1) MPEI (not any so-called "Consortium") will be participating in the bid for
the contract; and (2) the other entities, such as WeSolv, Oracle, and Election.com Ltd.,
are referred to merely as the "foreign suppliers", 4 8 and not as joint venture partners, or
as individual members of a so-called "Consortium".
III.
On the Failure of Private Respondents to Meet the Requirements for Eligible Bids.
Finally, even if we were to concede that the COMELEC contracted with an eligible
entity, it appears that the counting machines and ballot-counting software submitted by
the so-called "Consortium" simply failed to meet the accuracy rating required by the
RFP.
In the RFP, the COMELEC required that both the counting machines and ballot-
counting software should have an accuracy rating of 99.9995 or better.
After the bids were submitted, the accuracy criteria were suddenly changed to
99.995 percent.
Only very recently, in the Piatco 4 9 case, we held:
An essential element of a publicly bidded contract is that all bidders must
be on equal footing. Not simply in terms of application of the procedural rules
and regulations imposed by the relevant government agency, but more
importantly, on the contract bidded upon. Each bidder must be able to bid on the
same thing. The rationale is obvious. If the winning bidder is allowed to later
include or modify certain provisions in the contract awarded such that the
contract is altered in any material respect, then the essence of fair competition in
the public bidding is destroyed. A public bidding would indeed be a farce if after
the contract is awarded, the winning bidder may modify the contract and include
provisions which are favorable to it that were not previously made available to the
other bidders.
It is inherent in public biddings that there shall be a fair competition among the
bidders. The speci cations in such biddings provide the common ground or basis for
the bidders. The speci cations should, accordingly, operate equally or indiscriminately
upon all bidders. 5 0
To change the eligibility requirements mid-stream, and after bids had already
been submitted, completely subverts the integrity of the bidding process and warrants
the nulli cation of the award of the contract, whether the other contracting party was
MPEI or the so-called "Consortium".
In sum, the serious defects in the bidding process indicate a grave abuse of
discretion on the part of public respondent COMELEC, which seemed to display a
marked bias in favor of awarding the contract to the private respondent MPEI or the so-
called "Consortium". Whereas automated counting might greatly speed up our election
process, we should take great pains to make certain that the machines used are not
awed. To my mind, the subversion of the bidding process already makes the
automation of the 2004 elections inherently suspect, which will have a potential
negative effect on the integrity of the results. At this stage in our nation's history, we
should all strive toward restoring the public's faith in the stability of our government
institutions, and the use of suspect machines in counting votes cannot but subvert that
faith.
IN VIEW WHEREOF, I CONCUR with the majority opinion and vote to GRANT the
petition, speci cally, to: (1) declare NULL and VOID Resolution No. 6074 of the
COMELEC awarding the contract for the second phase of the automated counting and
canvassing system of the Modernization Program of the Philippine Electoral System to
either Mega Paci c eSolutions, Inc. or the Mega Paci c Consortium; (2) PROHIBIT the
COMELEC from implementing any contract entered into with either Mega Paci c
eSolutions, Inc. or the Mega Paci c Consortium for the second phase of the automated
counting and canvassing system of the Modernization Program of the Philippine
Electoral System; and (3) COMPEL the COMELEC to conduct a re-bidding of the second
phase of the automated counting and canvassing system of the Modernization
Program of the Philippine Electoral System.
"Hasty and adventurous schemes are at rst view attering, in execution

difficult, and in the issue disastrous." 1
Election is indeed the bedrock of every democratic institution. Thus, when it
comes to automating the election system, the standards must be as high as the stakes.
The government and the suppliers of the voting machines carry the burden of proof that
the machines are working correctly and that the election results will be accurate. All of
democracy is founded on the idea that the loser of an election understands that he lost
fair and square and that the election represents the will of the electorate. If we get into
elections with outcomes that people do not believe in, where the candidates challenge
the integrity of the machine, people are going to feel less and less con dent in the
results of elections run on these machines. 2
The petition before us raises a number of serious concerns about the viability of
the automated voting machines intended for the May 2004 Elections. The matter
strikes at the heart of our democratic system. If the system fails, there again looms a
threat to our country's stability. More than any other time, what we need today is a
system that will bolster the legitimacy of our government.
With the foregoing premise, I vote to grant the petition and declare Comelec
Resolution No. 6074 null and void.
The facts are undisputed.
On December 22, 1997, Congress enacted Republic Act No. 8436 3 authorizing
the Commission on Elections (COMELEC) to use an automated election system for the
process of voting, counting of votes and consolidating results of the national and local
elections. It mandated the COMELEC to acquire automated counting machines (ACM),
computer equipment, devices and materials. 4
Accordingly, the COMELEC issued an Invitation to Bid on January 28, 2003,
inviting interested bidders to apply for eligibility and to bid for the supply and delivery
of the ACM with an estimated budget of P2,500,000,000.00. 5
On February 17, 2003, the COMELEC released to the public the "Request for
Proposal" providing that bids from manufacturers, suppliers and/or distributors
forming themselves into a joint venture may be entertained as long as the Filipino
ownership thereof shall be at least 60%. For this purpose, a joint venture was de ned as
"a group of two (2) or more manufacturers, suppliers and/or distributors that intend to
be jointly and severally responsible or liable for the contract." 6
The next day, February 18, 2003, the Bids and Awards Committee (BAC)
convened a pre-bid conference and gave prospective bidders until March 10, 2003 to
submit their bid proposals.
On March 10, 2003, Mega Paci c Consortium ( MP CONSORTIUM ) submitted its
bid. Enclosed in it bidding documents was a letter dated March 7, 2003 expressing that
Mega Paci c eSolutions, Inc. ( MPEI), Election.Com, Ltd. (Election.Com), WeSolv Open
Computing, Inc. (WeSolv), SK CeC, ePLDT and Oracle System (Philippines), Inc. (Oracle)
have agreed to form a consortium to bid for the Project. In the same letter, MPEI,
through its President, made known its role as the lead company and proponent of MP
CONSORTIUM.
Of more than 57 bidders, the BAC found MP CONSORTIUM and Total Information
Management Corporation (TIMC) eligible to bid. Their bid proposals were thereafter
referred to the BAC's Technical Working Group (TWG) and the Department of Science
and Technology (DOST) for technical evaluation.
Thereafter, the TWG prepared a Technical Evaluation Form listing the minimum
requirements for the Project with columns to indicate whether the bidder "passed" or
"failed" to meet certain requirements. Requirements that were highly technical in nature
and called for technical equipment for evaluation were referred to the DOST.
Based on the ndings of the TWG and the DOST, the BAC submitted a Report 7
noting that both MP CONSORTIUM and TIMC obtained some failed marks in the
technical evaluation. Regardless thereof, the COMELEC en banc, in Resolution No. 6074
awarded the Project to MP CONSORTIUM on April 15, 2003. It publicized this
Resolution on May 16, 2003.
Unsatis ed with the COMELEC's bidding process, ve individuals and entities
(including petitioner Information Technology Foundation of the Philippines) wrote a
letter dated May 29, 2003 to COMELEC Chairman Benjamin Abalos, Sr. protesting the
award of the contract to MP CONSORTIUM. They cited MP CONSORTIUM's non-
compliance with eligibility as well as technical requirements.
On June 6, 2003, COMELEC Chairman Abalos rejected the protest and declared
that the award "would stand up to strictest scrutiny."
Undaunted, Information Technology Foundation of the Philippines (ITFP), Ma
Corazon M. Akol, Miguel Uy, Eduardo H. Lopez, Augusto C. Lagman, Rex C. Drilon, Miguel
Hilado, Ley Salcedo and Manuel Alcuaz, Jr., petitioners herein, led the present petition
for prohibition and mandamus seeking (1) to declare null and void COMELEC's
Resolution No. 6074; (2) to enjoin the implementation of the contract that may have
been entered into by COMELEC either with MP CONSORTIUM or MPEI; and (3) to
compel COMELEC to conduct a re-bidding of the Project.
After carefully reviewing the records of this case, I nd the exhaustive ponencia
of Mr. Justice Artemio V. Panganiban worthy of my fullest concurrence.
First, I must deal with the procedural roadblocks.
Petitioners come to us via a petition for prohibition and mandamus, thus, it is
argued that the recourse taken is improper. It is a well established rule, particularly in
public biddings, that courts cannot compel an agency to do a particular act or to enjoin
such act within its prerogative or discretion. This is not an iron-clad rule. One noted
exception is when in the exercise of its authority it gravely abuses or exceeds its
jurisdiction. 8 Judicial review may be justi ed on the grounds of grave abuse of
discretion, arbitrary rejection of bids, and lack of freedom of competition among
bidders. 9 In the case at bar, petitioners alleged in their petition that public respondents
"acted without or in excess of its jurisdiction or with grave abuse of discretion" 1 0 when
they awarded the Project to MPEI. Thus, the following pronouncement of this Court in
JG Summit Holdings, Inc. vs. Court of Appeals 1 1 deserves reiteration:
Be that as it may, the Court of Appeals erred when it dismissed the petition
on the sole ground of the impropriety of the special civil action of mandamus. It
must be stressed that the petition was also one for certiorari, seeking to nullify the
award of the sale to private respondent of the PHILSECO shares. Verily, the
petition alleges that 'respondents COP and APT have committed such a grave
abuse of discretion tantamount to lack or excess of their jurisdiction in insisting
on awarding the bid to Philyards, for the various reasons stated herein,
particularly since the right of rst refusal and the right to top the bid are
unconstitutional, contrary to law and public policy.' Petitioner's failure to include
certiorari in its caption should not negate the fact that the petition charged public
respondent with grave abuse of discretion in awarding the sale to private
respondent. Well-settled is the rule that it is not the caption of the pleading but the
allegations therein that determine the nature of the action and the Court shall
grant relief warranted by the allegations and the proof even if no such relief is
prayed for.
Neither can I subscribe to respondents' view that petitioners have no legal

standing to le the present case and that the petition should be dismissed for their
failure to exhaust administrative remedies.
Section 7 of R.A. No. 8436 provides that the COMELEC, in the procurement of an
automated election system, shall create an "Advisory Council to be composed of
technical experts from the Department of Science and Technology (DOST), the
Information Technology Foundation of the Philippines (ITFP) , the University of the
Philippines (UP) and two (2) representatives form the private sector recommended by
the Philippine Computer Society (PCS)."
Obviously, petitioner ITFP is a member of the Advisory Council mandated to aid
the COMELEC in the procurement of the ACM. As such, it has "actual and material
interest" to ensure that in the procurement of the ACM, the bidding procedures are
followed and the technical requirements are complied with. The same interest
redounds to petitioners who are members of the ITFP and who, in addition, are suing as
"taxpayers, registered voters and concerned citizens of the Philippines." In Del Mar vs.
Philippine Amusement and Gaming Corporation, 1 2 we ruled that taxpayers are allowed
to sue (1) where there is a claim of illegal disbursement of public funds, (2) or that
public money is being de ected to any improper purpose, (3) or where petitioners seek
to restrain respondent from wasting public funds through the enforcement of an invalid
or unconstitutional law. Considering that the assailed award involves the disbursement
of billions of pesos from the public treasury, I must say that petitioners possess the
required locus standi.
Anent petitioners' failure to exhaust administrative remedies, su ce it to say that
their letter dated May 29, 2003 to COMELEC Chairman Abalos objecting to the process
which led to the award of the contract to MPEI satis es the above procedural
condition. Certainly, petitioners could not be expected to follow the protest
mechanisms outlined in Section 55, 1 3 Rule XVII of Republic Act No. 9184 1 4
considering that the assailed award was made known to the public only on May 16,
2003 or more than one (1) month from the time Resolution No. 6074 was promulgated.
Respondents would argue that under the subsequent provision, Section 58 1 5 of the
same Rule, the court which has jurisdiction over nal decisions of the head of the
procuring entity is the Regional Trial Court. This is not really a legal obstacle. In
Commission on Elections vs. Quijano-Padilla, 1 6 we ruled that: "[T]he doctrine of
hierarchy of courts is not an iron-clad dictum. On several instances where this Court
was confronted with cases of national interest and of serious implications, it never
hesitated to set aside the rule and proceed with the judicial determination of the case.
1 7 The case at bar is of similar import. It is in the interest of the State that questions
relating to government contracts be settled without delay. This is more so when the
alleged contract involves the disbursement of public funds and the modernization of
our country's election process."
The substantive issues in this case may be reduced into two queries: first, Did the
Comelec abuse its discretion when it allowed MPEI to actively participate in the bidding
despite its failure to meet the mandatory eligibility requirement?; and second, Did the
COMELEC abuse its discretion when it awarded the contract to MPEI?
At this juncture, it bears stressing that MPEI was incorporated only on February
27, 2003 as evidenced by its Certi cate of Incorporation. 1 8 This goes to show that
from the time the COMELEC issued its Invitation to Bid (January 28, 2003 ) and Request
for Proposal (February 17, 2003 ) up to the time it convened the Pre-bid Conference
(February 18, 2003 ), MPEI was literally a non-existent entity. It came into being only on
February 27, 2003 or eleven (11) days prior to the submission of its bid, i.e. March 10,
2003. This poses a legal obstacle to its eligibility as a bidder. The Request for Proposal
requires the bidder to submit nancial documents that will establish to the BAC's
satisfaction its financial capability which include:
"(1) audited nancial statements of the Bidder's rm for the last three (3)
calendar years, stamped "RECEIVED" by the appropriate government agency, to
show its capacity to nance the manufacture and supply of Goods called for and
a statement or record of volumes of sales;
(2) Balance Sheet;
(3) Income Statement; and

(4) Statement of Cash Flow."
As correctly pointed out by petitioners, how could MPEI comply with the above
requirement of audited nancial statements for the last three (3) calendar years if it
came into existence only eleven (11) days prior to the bidding?
To do away with such complication, MPEI asserts that it was MP CONSORTIUM
who submitted the bid on March 10, 2003. It pretends compliance with the
requirements by invoking the nancial capabilities and long time existence of the
alleged members of the MP CONSORTIUM, namely, Election.Com, WeSolv, SK CeC,
ePLDT and Oracle. It wants this Court to believe that it is MP CONSORTIUM who was
actually dealing with the COMELEC and that its (MPEI) participation is merely that of a
"lead company and proponent" of the joint venture. This is hardly convincing. For one,
the contract for the supply and delivery of ACM was between COMELEC and MPEI, not
MP CONSORTIUM. 1 9 As a matter of fact, there cannot be found in the contract any
reference to the MP CONSORTIUM or any member thereof for that matter . 2 0 For
another, the agreements among the alleged members of MP CONSORTIUM do not
show the existence of a joint-venture agreement. Worse, MPEI cannot produce the
agreement as to the "joint and several liability" of the alleged members of the MP
CONSORTIUM as required by this Court in its Resolution dated October 7, 2003.
What is apparent from the four (4) agreements I gathered is the existence of
either a "contractor-subcontractor" or "buyer-supplier" relationship between MPEI on
the one hand and the alleged members of the MP CONSORTIUM. There was no
assumption of a "joint and several liability" over the entire Project of the COMELEC nor
an intention to enter directly into a contract with COMELEC.
In the "Memorandum of Agreement" between MPEI and WeSolv, the latter only
agreed to be one of its suppliers. Contrary to MPEI's asseveration that it was MP
CONSORTIUM which bid for the project, the Memorandum clearly states that MPEI "will
undertake negotiations with the COMELEC for the purpose of nalizing the contract for
the said Project in the event that it [MPEI] is declared as the winning bidder and the
Project is awarded in its [MPEI] favor." As if to emphasize the absence of "joint and
several liability" over the entire Project, the Memorandum expressly provides that
WeSolv shall be jointly and severally liable with MPEI "only for the particular products
and/or services supplied by the former for the Project" and that "in the event that they
failed to agree on the terms and conditions of the supply of the products and services
including but not limited to the scope of the products and services to be supplied and
payment terms, WeSolv shall cease to be bound by its obligations." The same
provisions are to be found in the "Memorandum of Agreement" between MPEI and SK C
& C. 2 1
The "Teaming Agreement " between MPEI and Election.Com 2 2 also negates
MPEI's assertion that it was MP CONSORTIUM that bid for the Project. Here, MPEI is
singled out as the one who intended to submit a proposal to the COMELEC. Under the
Teaming Agreement, MPEI "has identi ed the subcontractor [Election.Com] as one of
its suppliers." It was stipulated therein that " the parties shall each be individually liable
for any penalties or liabilities incurred by them in connection with the Project, if it can be
shown that the said penalties or liabilities are a direct result of errors in data or, non-
performance of products and/or services supplied." The same limitation on liability is
present in the "Teaming Agreement" between MPEI and ePLDT. 2 3
Surely, it is grave abuse of discretion on the part of the COMELEC to award a
billion worth of contract to an entity whose existence and eligibility is highly
questionable. It risks the accomplishment of a great undertaking such as the
automation of our country's election system. From a brief survey of the four (4)
agreements, I am convinced that the COMELEC, and ultimately the people, stand on the
losing end should the Project fail because of the obvious di culty in determining where
the culpability lies.
It bears reiterating for the consumption of our public o cers that in the exercise
of their contracting prerogative, they should be the rst judges of the legality, propriety
and wisdom of the contract they entered into. They must exercise a high degree of
caution so that the Government may not be the victim of ill-advised or improvident
action. 2 4 Prudence should be their primordial virtue. Thus, even though they have broad
discretion to determine the quali cations of the bidders, it may not act arbitrarily and
they must conform to statutory requirements governing the awarding of public
contracts. 2 5 Reason must govern the acts of such o cials, and courts will not hesitate
to interfere when it is clearly made to appear that they have acted arbitrarily,
dishonestly or beyond the reasonable limits of the discretion conferred upon them.
Another arbitrary act of the COMELEC is its awarding of the contract to MPEI
despite the fact that it failed in some of the technical requirements.
"Below is a comparative presentation of the requirements wherein Mega-
Pacific or TIM or both of them failed.
KEY REQUIREMENTS BIDDER/S THAT FAILED
Does the machine have an
accuracy rating of at least
99.995 percent? (Item No. 1,
Table 6, DOST Report)
At normal environment Mega TIM

At harsh environment Mega
Uninterruptible back-up power
system, that will engage
immediately to allow operation of
at least 10 minutes after outrage,
power surge or abnormal
electrical occurrences? (Item No. TIM
4, Table 6, DOST Report)
Machines read two sided ballots TIM*
in one pass? (Item No. 5,
Machine can detect previously
counted ballots and prevent
previously counted ballots from TIM
being counted more than once?
(Item No. 6, Table 6, DOST
Report)
Store results of counted votes by

precinct in external (removable) TIM
storage device? (Item No. 7,
Data stored in external media is TIM
encrypted? (Item No. 8, Table 6,
DOST Report)
CPU speed is at least 400 mHz? TIM
Report)
Generates printouts of the
election returns in a format
specified by the Comelec?
(Item No. 12, Table 6, DOST Mega TIM
Report)
Generates an audit trail of the
counting machine, both hard and
soft copy? (Item No. 14, Table 6,
DOST Report) TIM*
Soft copy
Does the city/municipal
canvassing system consolidates
results from all precincts within it
using the encrypted soft copy of
the data generated by the
counting machine and stored on
the removable data storage
device? (Item No. 15, Table 6, TIM*
DOST Report)
Does the city/municipality
canvassing system consolidate TIM*
results from all precincts within
it using the encrypted soft copy
of the data generated by
transmitted through an
electronic transmission media? Mega
Report)
Note: No facilities/resources
available to test the transmission
of data through electronic means.
Does the system output a Zero
City/Municipal Canvass Report, TIM*
which is printed on election day
prior to the conduct of the actual
canvass operation, that shows
that all totals for all the votes for
all the candidates and other
information are indeed zero or
null? (Item No. 17, Table 6, DOST
Report)
Does the system consolidate
results from all precincts in the
city/municipality using the data TIM*
storage device coming from the
counting machine? (Item No. 18,
Is the machine 100% accurate?
(Item No. 19, Table 6, DOST TIM*
Report)
Is the Program able to detect
previously downloaded
precinct results and prevent
these from being inputted again Mega Mega
into the System? (Item No. 20,
The System is able to print the
specified reports and the audit
trail without any loss of data
during generation of the
abovementioned reports? (Item
No. 21, Table 6, DOST Report)
Print specified reports
Audit trail Mega TIM*
(Note: Audit TIM*
trail not yet
incorporated)
Can the result of the
city/municipal consolidation be
stored in a data storage device? TIM*
Report)
Does the System consolidate
results from all precincts in the
provincial/district/national using
the data storage device from
different levels of consolidation?
Report) TIM*
Is the System 100% accurate?
Report)
Is the Program able to detect
previously downloaded precinct
results and prevent these from
being imported again into the
System? (Item No. 25, Table 6,
DOST Report)
The System is able to print the
specified reports and the audit
trail without any loss of data
during generation of the
abovementioned reports? (Item
No. 26, Table 6, DOST Report)
Print specified reports?
Audit trail? TIM*
Mega TIM*
(Audit trail not
yet incorporated)
Can the results of the provincial/
district/national consolidation be
stored in a data storage device? TIM*
Report)
Notwithstanding the above failed marks the COMELEC still awarded the contract
to MPEI. This is highly irregular. The above requirements where MPEI failed cannot be
considered as insubstantial. They have a bearing on the required features of the
automated election system under Section 7 of R.A. No. 8436, such as (1) use of
appropriate ballots, (2) stand-alone machine which can count votes and an automated
system which can consolidate the results immediately, (c) with provisions for audit
trails, (d) minimum human intervention, and (e) adequate safeguard/security measures.
COMELEC's stance that it can waive certain requirements is misplaced in the
present case because what it waives are those which concerns the integrity and
accuracy of the ACM and thus, affect the substance and the validity of the bids.
Statutory or regulatory mandatory requirements with respect to bidding on public
contracts cannot be waived. Presidential Decree No. 1594, 2 6 for one, expressly states
that the Government, in the evaluation of bid received, "reserves the right to waive the
consideration of minor deviations in the bids received which do not affect the
substance and validity of the bids." Thus, while a reservation in the advertisement of the
right to reject any bid generally vests in the authorities a wide discretion as to who is
the best and most advantageous bidder, however, it may not be used as a shield to a
fraudulent award. 2 7 Should this be the case, judicial interference would be justified.
WHEREFORE, I vote to GRANT the Petition. COMELEC Resolution No. 6074 is
declared NULL and VOID.
TINGA, J., dissenting:
Prologue
Once again, the Court availing of its extraordinary powers or so-called "certiorari"
jurisdiction has struck down a government contract, sealed no less by the respondent
Commission on Elections (COMELEC) in the exercise of its administrative powers
granted by the Constitution in relation to the conduct of elections. Apparently, the Court
has opted to trudge the trail it blazed recently in the Amari 1 and PIATCO 2 cases. Amari
voided the Manila Bay reclamation project on constitutional grounds 3 a n d PIATCO
struck down the NAIA Terminal III contract for violations of the Constitution 4 and some
other laws 5 to boot.
But in this case, no constitutional provision or letter of a statute was alleged to
have been violated. The Court nulli ed the contract for an automated election system
("AES") simply on the ground that in making the award the COMELEC has allegedly
violated its bidding rules and an unfounded apprehension that the counting machines
would not work on election day. On the other hand, not one of the losing bidders has
joined the petition, as neither they nor the petitioners questioned the fairness of the
price tag for the machines.
The year 2004 could have well been marked in the annals of the Philippines by
the maiden use of the automated election. But the country was deprived of the golden
chance to join the growing roster of states with modern election systems which include
developing countries such as Kenya, Mali, Zambia, Romania, Albania, Mexico and
Argentina because of the Decision of the Court.
In the process, the Court has disregarded the fundamental postulates by which
this case should have been decided. They are the following:
First. The instant original petition is one for prohibition and mandamus under
Rule 65 of the 1997 Rules of Civil Procedure. Prohibition is an extraordinary writ
directed against any tribunal, corporation, board, o cer or person, whether exercising
judicial, quasi-judicial or ministerial functions, commanding the respondent to desist
from further proceedings when said proceedings are without or in excess of the
respondent's jurisdiction or are attended with grave abuse of discretion amounting to
lack or excess of jurisdiction and there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law. 6 Mandamus, on the other hand, is an
extraordinary writ commanding a tribunal, corporation, board, o cer or person,
immediately or at some other speci ed time, to do the act required to be done, when
the respondent unlawfully neglects the performance of an act which the law speci cally
enjoins as a duty resulting from an o ce, trust, or station, or when the respondent
excludes another from the use and enjoyment of a right or o ce to which such other is
entitled, and there is no other plain, speedy and adequate remedy in the ordinary course
of law. 7
Second. In deciding the instant case, the Court shall consider only the undisputed
or admitted facts and resolve only the speci c questions raised by the parties. 8 The
Court is not a repository of remedies or a "super-legal-aid bureau." 9 We cannot grant
relief for every perceived violation of the law or worse, on the basis of prophetic
wisdom. Paraphrasing an old decision, Mr. Justice Felix Frankfurter wrote: "Judicial
power, however large, has an orbit more or less strictly de ned by well-recognized
presuppositions regarding the kind of business that properly belongs to courts. Their
business is adjudication, not speculation. They are concerned with actual, living
controversies, and not abstract disputation." 1 0
Third. The Court does not, as indeed it cannot, guarantee the success of the
automation or the integrity of the coming elections. It is not the Court's function to
actively ensure that the automation is successfully implemented or that the elections
are made free of fraud, violence, terrorism and other threats to the sanctity of the
ballot. This duty lies primarily with the COMELEC. 1 1
Fourth. The Court has constantly underscored the importance of giving the
COMELEC considerable latitude in adopting means and methods that will insure the
accomplishment of the objective for which it was created — to promote free, orderly,
honest, peaceful and credible elections. Thus, in the past we have prudently declined to
interfere with the COMELEC's exercise of its administrative functions absent any
showing of grave abuse of discretion. 1 2 As luminously stated in Sumulong v.
COMELEC, 1 3 "[I]n the matter of the administration of the laws relative to the conduct of
elections, as well as in the appointment of election inspectors, we must not by any
excessive zeal take away from the Commission on Elections the initiative which by
constitutional and legal mandates properly belongs to it. Due regard to the independent
character of the Commission, as ordained in the Constitution, requires that the power
of this court to review the acts of that body should, as a general proposition, be used
sparingly, but firmly in appropriate cases." 1 4
For the reasons I shall discuss hereunder, I nd myself unable to subscribe to the
ponencia and join the ranks of my colleagues in the majority.
Let me rst mention that at the opening part of the Decision, the Court opined
that there is grave abuse of discretion when the assailed act is contrary to
"jurisprudence." Yet, the 99-page Decision failed to mention a single Court decision
which the respondents have defied.
Petitioners failed to exhaust administrative remedies
I agree with the respondents that the petitioners failed to exhaust, or better still
avail of, the administrative remedies outlined in R.A. 9184, as follows:
"SEC. 55. Protests on Decisions of the BAC. — Decisions of the BAC in all
stages of procurement may be protested to the head of the procuring entity and
shall be in writing. Decisions of the BAC may be protested by ling a veri ed
position paper and paying a non-refundable protest fee. The amount of the
protest fee and the periods during which the protests may be led and resolved
shall be specified in the IRR.
SEC. 56. Resolution of Protests. — The protests shall be resolved strictly on

the basis of the records of the BAC. Up to a certain amount to be speci ed in the
IRR, the decisions of the Head of the Procuring Entity shall be final.
SEC. 57. Non-interruption of the Bidding Process. — In no case shall any
protest taken from any decision treated in this Article stay or delay the bidding
process. Protests must first be resolved before any award is made.
SEC. 58. Resort to Regular Courts; Certiorari. — Court action may be
resorted to only after the protests contemplated in this Article shall be have been
completed. Cases that are led in violation of the process speci ed in this Article
shall be dismissed for lack of jurisdiction. The regional trial court shall have
jurisdiction over nal decisions of the head of the procuring entity. Court actions
shall be governed by Rule 65 of the 1997 Rules of Civil Procedure.
This provision is without prejudice to any law conferring on the Supreme
Court the sole jurisdiction to issue temporary restraining orders and injunctions
relating to Infrastructure Projects of Government." [Emphasis supplied]
As correctly pointed out by the respondents, at no time during the entire bidding
process did the petitioners question the determination of the COMELEC Bids and
Awards Committee (BAC) finding Mega Pacific Consortium (MPC) eligible to bid. Under
R.A. 9184, decisions of the BAC should be appealed to the COMELEC en banc.
Consequently, the determination of the BAC that M P C was eligible to bid, adopted
subsequently by the COMELEC, became final.
The doctrine of exhaustion of administrative remedies requires that when an
administrative remedy is provided by law, relief must be sought by exhausting this
remedy before the courts will act. No recourse can be had until all such remedies have
been exhausted and special civil actions against administrative o cers should not be
entertained if superior administrative officers could grant relief. 1 5 In Hon. Carale v. Hon.
Abarintos, 1 6 the Court enunciated the reasons for the doctrine, thus:
Observance of the mandate regarding exhaustion of administrative
remedies is a sound practice and policy. It ensures an orderly procedure which
favors a preliminary sifting process, particularly with respect to matters peculiarly
within the competence of the administrative agency, avoidance of interference
with functions of the administrative agency by withholding judicial action until
the administrative process had run its course, and prevention of attempts to
swamp the courts by a resort to them in the rst instance. The underlying
principle of the rule rests on the presumption that the administrative agency, if
afforded a complete chance to pass upon the matter, will decide the same
correctly. There are both legal and practical reasons for this principle. The
administrative process is intended to provide less expensive and more speedy
solutions to disputes. Where the enabling statute indicates a procedure for
administrative review, and provides a system of administrative appeal, or
reconsideration, the courts, for reasons of law, comity and convenience, will not
entertain the case unless the available administrative remedies have been
resorted to and the appropriate authorities have been given an opportunity to act
and correct the errors committed in the administrative forum.
Accordingly, the party with an administrative remedy must not merely
initiate the prescribed administrative procedure to obtain relief, but also pursue it
to its appropriate conclusion before seeking judicial intervention in order to give
the administrative agency an opportunity to decide the matter by itself correctly
and prevent unnecessary and premature resort to the court. 1 7 [Emphasis
supplied]
Moreover, under the Rules of Court, judicial review of administrative decisions

may be availed of only through special civil actions. Such proceedings cannot lie if there
is an appeal, or any other plain, speedy, and adequate remedy in the ordinary course of
law. 1 8
In Paat vs. Court of Appeals, 1 9 the Court enumerated the instances when the rule
on exhaustion of administrative remedies may be disregarded:
. . . (1) when there is a violation of due process, (2) when the issue involved
is purely a legal question, (3) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction, (4) when there is estoppel on the part
of the administrative agency concerned, (5) when there is irreparable injury, (6)
when the respondent is a department secretary whose acts as an alter ego of the
President bear the implied and assumed approval of the latter, (7) when to require
exhaustion of administrative remedies would be unreasonable, (8) when it would
amount to a nulli cation of a claim, (9) when the subject matter is a private land
in land case proceedings, (10) when the rule does not provide a plain, speedy and
adequate remedy, and (11) when there are circumstances indicating the urgency
of judicial intervention. 2 0
The petitioners' allegations do not bring their case within the jurisprudentially
recognized exceptions to the rule on exhaustion of administrative remedies. It is
noteworthy that the protest mechanism outlined in R.A. 9184, in allowing protests of
decisions of the BAC "in all stages of procurement," 2 1 reinforces and even
institutionalizes the exhaustion doctrine insofar as public bidding is concerned. Hence,
had petitioners intended to pursue the available administrative remedies, they could
have easily asked for a reconsideration the moment the BAC determined MPC eligible
to bid, failing which, they could have filed a protest with the COMELEC en banc itself.
Petitioners did neither. Instead they sat in waiting until the nal hour and now
insist that the Court disregard the rule on exhaustion of administrative remedies on the
puerile reason that there was no opportunity for the protest mechanism instituted in
R.A. 9184 to apply because the BAC rendered its report and recommendation in open
session on April 15, 2003, the same day and on the same occasion that the COMELEC
issued the assailed Resolution No. 6074 awarding the Contract to MPC.
The majority opinion posits that it would have been futile for petitioners to
protest/appeal the BAC report to the COMELEC chair since by the time they could have
made the move the COMELEC had already approved the report. Not necessarily so. The
petitioners could have, or better still, should have appealed directly to the COMELEC en
banc. After all, matters of this nature have to be decided by the COMELEC as a collegial
body. To state that the poll body would not act on the appeal is to uncharitably state
that it would disregard its duty to respond as required by the Code of Ethical Conduct.
2 2 Thus, the Court's statement that the COMELEC en banc made it impossible for
petitioners to make use of the administrative remedy is simply baseless.
Be it noted that the petitioners wasted nearly ve (5) months from the time the
BAC Report was released on April 21, 2003 before they led the instant Petition on
August 6, 2003. The signi cant time gap precludes the availability of the exceptions to
the exhaustion doctrine. Speci cally, the petitioners cannot successfully claim that to
require exhaustion of administrative remedies would be unreasonable, or that the rule
does not provide a plain, speedy and adequate remedy, or that judicial intervention has
become urgent because of the circumstances.
Considering the circumstances, it is my view that the premature invocation of
this Court's judicial power is fatal to the petitioners' cause of action.
MPC, the consortium, participated in the bidding
According to the Court, the rst major concern which bears on the issue of grave
abuse of discretion relates to the identity and existence of the M P C as a bidder.
Petitioners claim that the real bidder was Mega Paci c eSolutions, Inc. ( MPEI). On the
other hand, the respondents insist that the bidder was MPC of which MPEI was the lead
member.
On record are the following documents:
1. Letter of MPEI's President, Willy Yu, dated March 7, 2003, which states:
March 7, 2003
BIDS AND AWARDS COMMITTEE
Commission on Elections
Intramuros, Manila
Sir:
In response to your Invitation to Bid for the COMELEC Modernization
Project corresponding to the various phases which are as follows:
Phase I : Voters Registration – Voters Validation System
Phase II : Vote Counting and Canvassing — Automated

Counting/Canvassing
Phase III : Transmission & Dissemination of Results — Electronic
Transmission/Consolidation & Dissemination of
Result
The following companies listed below have agreed to form a consortium to
bid for the said project;
Mega Pacific eSolutions, Inc.
Election.Com Ltd
EPLDT
SK C & C
WeSolv Open Computing, Inc. (Subsidiary of Fujitsu Phils. Inc.)
Oracle System (Philippines) Inc.
Very truly yours,
(Sgd.) WILLY U. YU
President
MEGA PACIFIC eSOLUTIONS, INC.

(Lead Company/Proponent)
For: MEGA PACIFIC CONSORTIUM
2. Agreements among the members of the consortium, namely:

(a) Memorandum of Agreement between MPEI and WeSolv Open Computing, Inc.
(WeSolv) dated March 5, 2003 and notarized on March 7, 2003;
(b) Memorandum of Agreement between MPEI and SK C&C Co. Ltd. (SK C&C)
dated March 9, 2003 and notarized on March 9, 2003;
(c) Teaming Agreement between MPEI and Election.Com Ltd. (Election.Com)
dated March 3, 2003 and notarized on March 9, 2003; and
(d) Agreement between MPEI and ePLDT dated March 3, 2003 and notarized on
March 9, 2003.
These documents all bear execution and notarization dates prior to the
submission by MPC of its bid documents on March 10, 2003.
Contrary to the Court's assessment, the fair assumption to make is that the letter
o f MPEI's President on behalf of M P C and the agreements between MPEI and the
members of the consortium had already been submitted to the COMELEC when the
BAC evaluated the bids and the poll body acted upon the BAC's recommendation and
accordingly resolved to award the Contract to MPC.
On the basis of the bid documents submitted by MPEI on behalf MPC, including
the consortium agreements, the COMELEC awarded Phase II of the AES (Project) to
MPC per Resolution No. 6074 dated April 15, 2003. The full text of the Resolution reads,
thus:
RESOLUTION NO. 6074
This pertains to the Award of the Contract for Phase II (Automated
Counting Machine) of Modernization Program of the Commission.
Two (2), out of the three, bidders passed the eligibility requirements,
namely:
1. MEGA Pacific Consortium
2. Total Information Management Corporation (TIM)
In consonance with the mandate of Republic Act No. 8436, the
Commission sought the assistance of Department of Science and Technology in
the technical evaluation on identified key requirements, outlined in the Request for
Proposal (RFP) and Section 7 of the aforecited law, mainly covering various
parameters pertaining to vote counting accuracy, consolidation/canvassing
accuracy, ballot counting speed, security features (both hardware and software),
and system reliability of the Automated Counting Machines (ACMs).
Upon receipt of the test results on the ACMs provided by the two
prospective suppliers, the BAC proceeded with the evaluation of their nancial
bids, and thereafter made a recommendation to the Commission while the same
was in session on 15 April 2003.
After a thorough deliberation on the matter, the Commission had solid
basis to award the project.
Earlier the Chairman was given authority by the Commission in Resolution
No. 5989 promulgated 27 March 2003 to award to the winning bidders the three
(3) phases of the modernization program. However, considering the present
discussion, with the members of the BAC in attendance and recommending
award of the project to Mega Paci c, the Chairman have the matter passed upon
by the Commission.
Meantime, Commissioner Mehol K. Sadain submitted a memorandum

stated in this wise:
"xxx xxx xxx
With regard to the Automated Counting Machines award of the contract,
undersigned would have preferred to register his vote, however, the BAC
report which is the basis for the award, has not yet been submitted to the
Commissioners as of this writing.
At this juncture, undersigned would just like to inform the bank that, in case
of a vote, he will be voting on the basis of the results of the rst test
participated by both bidders as called for under the terms of the bid."
In view of the foregoing, the Commission RESOLVED, as it hereby
RESOLVES, to award Phase II of the Modernization Project of the Commission to
Mega Paci c Consortium , having been declared as the bidder that submitted the
lowest calculated responsive bid for the Automated Counting Machines.
[Emphasis supplied]
Yet, the Court disputes the authority of MPEI or its President to represent the
consortium.
In the Memorandum of Agreement (MOA) between MPEI a n d WeSolv dated
March 5, 2003, which was reproduced in the Decision, the following stipulations are
found:
2. Mega Paci c shall be responsible for any contract negotiations and
signing with the COMELEC and, subject to the latter's approval, agrees to give
WeSolv an opportunity to be present at meetings with the COMELEC concerning
WeSolv's portion of the Project.
3. WeSolv shall be jointly and severally liable with Mega Paci c only for
the particular products and/or services supplied by the former for the Project.
[Emphasis supplied]
The MOA between MPEI and SK C&C dated March 9, 2003, also reproduced in
the Decision, contains similar provisions:
2. Mega Paci c shall have full powers and authority to represent the
Consortium with the Comelec, and to enter and sign, for and in behalf of its
members any and all agreement/s which may be required in the implementation
of the Project.
3. Each of the individual members of the Consortium shall be jointly and
respective undertaking or sphere of responsibility. [Emphasis supplied]
It appears that the Court assumed that the documents which establish the
existence of the consortium were not with the COMELEC and it had no basis for
determining that the consortium had existence 2 3 during the bidding process simply
because the documents were not included in the "Eligibility Requirements" folder it
submitted to the Court on October 9, 2003. 2 4 With due respect, let me state nothing is
farther from the truth.
The Court required the submission of the documents bearing on the existence of
the consortium only after the oral arguments on October 7, 2003. The directive is
contained in the Court's Resolution of even date quoted below:
In open court, Atty. Lazaro, counsel for private respondent Mega Paci c
eSolutions, Inc., was DIRECTED by the Court to submit the following documents, a
day after the hearing:
(a) contract executed between consortium represented by Mega Paci c
eSolutions, Inc. and COMELEC;
(b) agreement among the consortium members;
(c) financial statements of the members of the consortium;

(d) agreement as to the joint and several liability of the members of the
consortium;
(e) status report of the Department of Science and Technology (DOST) as
to whether the machines are already free of the eight (8) defects or
failing marks it mentioned in a previous report or if the software has
been reprogrammed successfully to eliminate the defects or failing
marks.
Clearly, the directive was addressed to Atty. Alfredo Lazaro, Jr. So, it was he who
had to submit the documents and he did so on October 10, 2003. The COMELEC was
not required to submit any document. But since the DOST status report which is among
the documents mentioned in the Resolution was not in the custody of MPEI, the
COMELEC elected to submit it along with the "Eligibility Requirements" folder.
Obviously to prop up the hypothesis that the COMELEC was unaware of the
consortium agreements during the bidding process, the majority picked on
Commissioner Florentino Tuason, Jr. and portions of his answers to the questions
asked of him during the oral arguments. Although he was evidently not the
Commissioner assigned to speak on behalf of the COMELEC but Commissioner
Resureccion Borra, Commissioner Tuason deferred to the Court and responded to the
questions as best as he could. To put the answers in context, I quote them in full along
with the questions.
JUSTICE QUISUMBING:
May I know if somebody from the Commission on Elections who knows the
elements of the so-called verbal agreement on solidary liability of all the
parties of this Mega Pacific, whatever it is?
Do you know anybody from the COMELEC who knows the elements of this oral
agreement if any?
CHIEF JUSTICE:
Yes, would Commissioner Borra be willing to help the Assistant Sol. Gen.?
ASG RAMOS:
Perhaps Commissioner Tuason could speak to this Court with regard to that
matter.
CHIEF JUSTICE:
Commissioner Tuason.
Yes, Commissioner Tuazon would you be able to enlighten the Court on the
questions profounded (sic) by Justice Vitug and the request of Justice
Quisumbing?
COMMISSIONER TUASON:
Good morning, Your Honors, I am sorry for my attire (interrupted)
CHIEF JUSTICE:
It is okay, we did not expect you really to argue but there seems to be an orderly
information for the enlightenment of the Court.
As far as I know, your Honor, I am not in-charge of the, I am not In-charge of the
phase 2, which is the Modernization Program, I am here because I am in-
charge of the Legal Department and I oversee the legal activities of
COMELEC.
CHIEF JUSTICE:
Who is in-charge then?
Insofar as a written agreement among the members of the consortium there is
Your Honor, I was privy to the fact that when we were having conferences
with the legal counsel of the private respondent there is indeed an
agreement among the members of the consortium. That is my personal
knowledge, Your Honor.
CHIEF JUSTICE:

Writing or (interrupted)
In writing, Your Honor, because the so-called agreement amongst the members of
the consortium is of course an internal affair or an internal matter between
the members of the consortium. But I do, I am aware of the fact that there
is indeed a written agreement, Your Honor. And I am sure that when the
time that the counsel for the private respondent will argue before this
Honorable Court he will be presenting the written agreement amongst the
members of the consortium.
JUSTICE VITUG:
Are you telling us that the COMELEC did not look into this matter?
I do think that they did, Your Honor, because I am not a member of the BAC, I am
not the Commissioner-in-charge of the Phase II but I am aware that there is
such agreement, Your Honor, which will be presented today and I think that
this was taken into consideration (interrupted) 2 5
xxx xxx xxx
We did Your Honor because we asked the BAC on whether all these documents
including the joint venture agreement or consortium agreement or
agreement among the parties were taken into consideration.
JUSTICE PANGANIBAN:
You took the word of the BAC?

Of course, your Honor, because they are the ones mandated at that particular
time, Your Honor, I did not personally.
JUSTICE PANGANIBAN:
All right, did you also look at the joint and several undertaking of the consortium
members?
The condition under the request for proposal Your Honor is that manufacturers,
suppliers and/or distributors forming themselves into a joint venture, a
group of two or more manufacturers, suppliers, and or distributors that
intend to be jointly and severally responsible or liable for a particular
contract provided that Filipino ownership is 60%.
In other words, it is not a mandatory requirement that they be jointly and severally
liable, Your Honor.
JUSTICE PANGANIBAN:
Now, That is interesting because you are contracting with a consortium that does
not by itself have an independent legal personality.
Yes, that is right, Your Honor. 2 6
The responses of Commissioner Tuason attest to the existence of the

agreement and in essence do not contradict the provisions thereof. So do the answers
of Atty. Lazaro, counsel for MPEI, who was queried quite extensively on the matter. 2 7
The consortium agreements were not submitted to the Court obviously because
the Petition did not raise any question about the joint and several undertaking of the
members of the consortium. It was only during the oral arguments that the Court saw
the need to secure copies of the documents. Thus, the Court issued the Resolution of
October 7, 2003.
All told, MPEI as lead member of MPC submitted as part of the bid documents
not only the letter dated March 7, 2003 but the following agreements, to wit:
(a) Memorandum of Agreement between MPEI and WeSolv dated March 5, 2003
and notarized on March 7, 2003;
(b) Memorandum of Agreement between MPEI and SK C&C dated March 9, 2003
and notarized on March 9, 2003;
(c) Teaming Agreement between MPEI and Election.Com dated March 3, 2003
and notarized on March 9, 2003; and
(d) Agreement between MPEI and ePLDT dated March 3, 2003 and notarized on
March 9, 2003.
before the deadline for submission of bids. Any contrary conclusion is baseless in fact
and founded on pure conjecture.
The consortium agreements are sufficient
The majority opinion, nonetheless, insinuates that it is not su cient that a joint
venture be formed, but that the members of the joint venture all bind themselves jointly
and severally liable for the performance of the Contract. It asserts that there was no
joint venture agreement, much less a joint and several undertaking, among the
members of the alleged consortium. Thus, the BAC should not have found MPC eligible
to bid.
I cannot subscribe to this position. The RFP speci cally de nes a joint venture as
a group of two (2) or more manufacturers, suppliers and/or distributors that intend to
be jointly and severally responsible or liable for the contract. 2 8 Nowhere in the RFP is it
required that the members of the joint venture execute a single written agreement to
prove the existence of a joint venture. Indeed, the intention to be jointly and severally
liable may be evidenced not only by a single joint venture agreement but by
supplementary documents executed by the parties signifying such intention.
As the respondents pointed out, separate agreements were entered into by and
between MPEI on the one hand and WeSolv, SK C&C, Election.Com, and ePLDT on the
other. The Memorandum of Agreement 2 9 between MPEI and WeSolv and MPEI and SK
C&C set forth the joint and several undertakings among the parties. On the other hand,
t he Teaming Agreements 3 0 between MPEI and Election.Com and MPEI a n d ePLDT
clari ed their respective roles with regard to the Project, with MPEI being the
"independent contractor" and Election.Com and ePLDT the "subcontractors".
The ponencia mistakenly attributes to the respondents the argument that the
phrase "particular contract" in the RFP should be taken to mean that all the members of
the joint venture need not be solidarily liable for the entire project, it being su cient
that the lead company and the member in charge of a "particular contract" or aspect of
the joint venture agree to be solidarily liable. Nowhere in any of the respondents'
pleadings was this argument ever raised. If it was, inestimable gain goes to the
respondents because this contention is ultimately logical and coherent.
The RFP itself lays down the organizational structure of the joint venture and the
liability dynamics of the members thereof. It reads:
"d. Manufacturers, suppliers and/or distributors forming themselves into a
joint venture, i.e., a group of two (2) or more manufacturers, suppliers and/or
distributors that intend to be jointly and severally responsible or reliable for a
particular contract, provided that Filipino ownership thereof shall be at least sixty
percent (60%)." 3 1 [Emphasis supplied]
So, the RFP adverts to "particular contract." It does not speak of "entire Project"
or "joint venture," from which the phrase "particular contract" should be distinguished.
The clear signi cation is that all the members of the joint venture need not be solidarily
liable for the entire Project or joint venture; it is su cient that the lead company and the
member in charge of a particular contract or aspect of the joint venture agree to be
solidarily liable.
In any case, the Contract 3 2 incorporates all documents executed by the
consortium members even if the same are not referred to therein. It provides:
"1.4 Contract Documents
The following documents referred to collectively as the Contract
Documents, are hereby incorporated and made integral parts of the Contract:
(1) this Contract together with its Appendices;
(2) the Request for Proposal (also known as 'Terms of Reference') issued
by the Comelec including the Tender Inquiries and Bid Bulletins;
(3) Tender Proposal submitted by Mega.
All Contract Documents shall form part of the Contract even if they or any
one of them is (sic) not referred to or mentioned in the Contract as forming a part
the other shall be considered contained in all, and what is required by any one
shall be as binding as if required by all, unless one item is a correction of the
other.
The intent of the Contract Documents is the proper, satisfactory and timely
execution and completion of the Project, in accordance with the Contract
and completion of the Project shall be deemed included in the Contract." 3 3
[Emphasis supplied]
Clearly, whatever perceived de ciencies there are in the supplementary contracts

entered into by MPEI and the other members of the consortium as regards their joint
and several undertaking were cured, or better still prevented from arising, by the above-
quoted provisions from which it can be immediately established that each of the
members of MPC is solidarily liable with the lead company, MPEI, albeit only for the
particular contract or aspect of the joint venture of which it is in charge.
Moreover, the Contract provides several options which the COMELEC may take in
case of MPC's breach or non-performance of the material terms thereof. It provides:
"12.5. In the event of termination of this Contract pursuant to Article 12.2
hereof, COMELEC may exercise any or all of the following remedies:
12.5.1 Procure the facilities from another supplier, charging the amount
over an (sic) above the contract price stipulated in this Contract, if any, to
the account of MEGA;
12.5.2 Impose penalty for late delivery at the rate of 1/10 of 1% (0.001) for
everyday of delay of the total value of the undelivered item(s);
12.5.3 Terminate this Contract;
12.5.4 Execute on MEGA's Performance Security." 3 4
Significantly, MPEI posted a performance bond which amounts to 20% of the bid
offer 3 5 against which the COMELEC may execute in case of breach.
COMELEC is protected under the contract and the Civil Code
But the Court dismisses the respondents' use of the Contract as basis for the
enforcement of the claims of COMELEC against the consortium on the premise that the
Contract is between the COMELEC and MPEI, not MPC. 3 6 That is so because MPEI, as
lead member of the consortium, is empowered by WeSolv and SK C&C, which along
with MPEI itself, represent 90% of the total consortium interest, to represent them. This
is clear from the stipulations in their MOAs. 3 7 Thus, as the Contract was executed by
MPEI as the authorized representative of the key members of the MPC, it is the same
as if MPC itself was the named party thereto.
From the foregoing, it is clear that the absence of a single formal joint venture
agreement among all the members of the joint venture does not preclude the
COMELEC from enforcing their liability in case of breach. In any event, the COMELEC
may still enforce the liability of the consortium members under the general provisions
of the Civil Code on partnership as correctly pointed out by the OSG in its
Memorandum, 3 8 thus:
"Respondent COMELEC is not and will not be precluded from asserting the
solidary liability of all consortium members who represented themselves to be
such. In the absence of a joint venture agreement, and in cadence with [the] rule
on partnership that a partner is considered as the agent of his co-partners and of
the partnership in respect of all partnership transactions (Article 1803, Civil Code),
private respondent's members acted as agents of each other and are as such
solidarily bound by their own and the other members' undertaking. Further, the
rule is that when a person, by words spoken or written or by conduct, represents
himself, or consents to another representing him to anyone, as a partner in an
existing partnership or with one or more persons not actual partners, he is liable to
any such persons to whom such representation has been made, who has, on the
faith of such representation, given credit to the actual or apparent partnership,
and if [he] has made such representation or consented to its being made in a
public manner he is liable to such person, whether the representation has or has
not been made or communicated to such person so giving credit by or with the
knowledge of the apparent partner making the representation or consenting to its
being made. When a partnership liability results, he is liable as though he was an
actual member of the partnership. (Article 1825, Civil Code)"
It should be recalled that MPEI, SK C&C, WeSolv, Election.Com and ePLDT
represented themselves and/or allowed themselves to be represented as partners and
members of MPC for purposes of bidding for the Project. They are, therefore, liable to
the COMELEC to the extent that the latter relied upon such representation. 3 9 Their
liability as partners is solidary with respect to everything chargeable to the partnership
under certain conditions. The Civil Code provides:
"Art. 1822. Where, by any wrongful act or omission of any partner acting in
the ordinary course of the business of the partnership or with the authority of his
co-partners, loss or injury is caused to any person, not being a partner in the
partnership, or any penalty is incurred, the partnership is liable therefore to the
same extent as the partner so acting or omitting to act.
Art. 1823. The partnership is bound to make good the loss:
(1) where one partner acting within the scope of his apparent authority
receives money or property of a third person and misapplies it; and
(2) Where the partnership in the course of its business receives money or
property of a third person and the money or property so received is
misapplied by any partner while it is in the custody of the
partnership.
Art. 1824. All partners are liable solidarily with the partnership for
everything chargeable to the partnership under Articles 1822 and 1823."
[Emphasis supplied]
Thus, the solidary liability of the members of the consortium is inescapable,

whether by the language of their own contracts inter se or the provisions of the Civil
Code.
The consortium is eligible
The ponencia further echoes the petitioners' objection to the BAC's conclusion,
nding MPC eligible to bid notwithstanding the absence of some nancial documents
of its member corporations, particularly MPEI which was incorporated only on February
27, 2003.
Under the RFP, the bidder shall furnish, as part of its bid, an eligibility envelope,
consisting of legal, technical and nancial documents, which should establish the
bidder's eligibility to bid and its quali cations to perform the Contract if its bid is
accepted. The documentary evidence of the bidder's eligibility to bid shall establish to
the BAC's satisfaction that the bidder, at the time of submission of its bid, is eligible to
bid. 4 0 The eligibility envelope shall include the bidder's legal, technical and nancial
documents, viz:
"(a) Legal Documents which shall include:
(1) Articles of Incorporation issued by the Securities and Exchange
Commission, Business Registration, current licenses and permits,
DTI Certi cate of Registration, Mayor's Permit, or by appropriate
government agencies and VAT certification, if applicable;
(2) Approval of the Board of Directors for the Bidder to participate and
enter into a contract with the COMELEC;
(3) Waiver of execution by its President under the authority of its Board
that it is submitting to the jurisdiction of the Philippine government
and thereby waives its right to question the jurisdiction of Philippine
courts;
(4) Waiver executed by the President under the authority of its Board, to
seek and obtain writ of injunctions (sic) or prohibition or restraining
order against Purchaser to prevent and restrain the bidding
procedures related thereto, the holding of bidding and any procedure
related thereto, the negotiating and award of a contract to a
successful bidder, and the carrying out of the awarded contract;
(5) Certi cate issued by bidder's duly authorized representative that, it has
no record of suspension and that it is not presently suspended nor
blacklisted by any Philippine government agency or by any
international institution, whether in its individual capacity or as a
member of a Joint Venture/Consortium;
(6) Certi cate that the Bidder is licensed by the Bidder's country to export
the goods to be supplied under the contract.
(b) Technical Documents which shall contain documentary evidence to establish
to the BAC's satisfaction the Bidder's technical and production capabilities
necessary to perform the Contract. It shall include:
(1) Single sale/lease transaction with a contract value of at least ONE
HUNDRED MILLION PESOS (Php100,000,000.00) for same and
similar type of equipment for the last three (3) years. Bidder shall be
required to submit contracts and/or certi cate/s of acceptance by
the concerned Purchaser indicating therein the contract value;
(2) ISO 9000 Certificate or its equivalent;
(3) Literature and brochures describing the equipment, the manufacturer's
factory, manufacturing facilities, products and service centers;
(4) Certi cation from the Environmental Protection Agency (EPA) or similar
government agency of the country of origin that the product meets
the environment protection requirements therein;
(5) Certi cate that if awarded the project, Bidder will submit a warranty for
a minimum of two (2) years from date of delivery for units found to
be imperfect or damaged due to factory defect.
(c) Financial Documents shall contain documentary evidence to establish to the
BAC's satisfaction the Bidder's nancial capability. Such evidence shall
include:
(1) audited nancial statements of the Bidder's rm for the last three (3)
calendar years, stamped "RECEIVED" by the appropriate government
agency, to show its capacity to nance the manufacture and supply
of Goods called for and a statement or record of volume of sales;
(2) Balance Sheet;

(3) Income Statement; and
(4) Statement of Cash Flow.

The bidders shall be evaluated according to their liquidity, solvency and
stability. The company's current assets should be more than its current liabilities.
Its long term assets should be more than its long term liabilities. The BAC may
disqualify companies that are having nancial di culty and thus, making its
long term prospects dim. This will eventually affect their ability to deliver and
meet the requirements for the election automated machines."
On the other hand, the Bid Envelope shall contain the technical speci cations and the
bid price. 4 1
According to the documents it submitted to substantiate eligibility, MPEI was
incorporated only on February 27, 2003. Thus, it was not able to submit the required
nancial documents, i.e., Audited Financial Statements for the last three (3) years,
Balance Sheet, Income Statement and Statement of Cash Flow.
However, the failure of MPEI to submit its nancial documents due to its newly-
acquired corporate personality should not by itself disqualify MPC. It should be pointed
out that the purpose of the RFP in requiring the submission of the nancial documents
of the bidder is to determine the nancial soundness of the latter and its capacity to
perform the Contract if its bid is accepted. This purpose may well be attained by
examining the nancial documents submitted by the other members of the joint
venture. In this regard, the respondents emphasized that SK C&C, ePLDT and WeSolv
submitted the required nancial documents. Moreover, MPEI has a paid in capital of
P300,000,000.00, an amount which is substantially over and above the 10% equity
based on the total project cost required by the RFP. 4 2 Thus, I cannot subscribe to the
majority's myopic interpretation of the RFP that each of the members of M P C must
comply with all the requirements thereunder.
I n Kilosbayan v. Guingona , 4 3 we de ned a joint venture as "an association of
persons or companies jointly undertaking some commercial enterprise; generally all
contribute assets and share risks. It requires a community of interest in the
performance of the subject matter, a right to direct and govern the policy in connection
therewith, and duty, which may be altered by agreement to share both in pro t and
losses." 4 4
The collective nature of the undertaking of the members of MPC, their
contribution of assets and sharing of risks, and the community of their interest in the
performance of the Contract all lead to the reasonable conclusion that their collective
quali cations should be the basis for evaluating their eligibility. Practical wisdom
dictates this to be so because the sheer enormity of the Project renders it improbable
to expect any single entity to be able to comply with all the eligibility requirements and
undertake the Project by itself. As emphasized by the OSG, the RFP precisely allowed
bids from manufacturers, suppliers and/or distributors forming themselves into a joint
venture in recognition of the virtual impossibility that a single entity would be able to
respond to the Invitation to Bid.
Further, as pointed out by the COMELEC, the Implementing Rules and Regulations
("IRR") of R.A. No. 6957, 4 5 as amended by R.A. No. 7718, 4 6 is instructive since
proponents of Build-Operate-Transfer projects usually form joint ventures or
consortiums. Under said IRR, "[A] joint venture/consortium proponent shall be evaluated
based on the individual or collective experience of the member- rms of the joint
venture/consortium and of the contractor(s) that it has engaged for the project." 4 7
On another point, the RFP provides that the documentary evidence of the bidder's
quali cations to perform the contract if its bid is accepted shall establish to the
satisfaction of the BAC that in case a bidder offering to supply goods under the
contract did not manufacture or otherwise produce the goods itself, the bidder must
show that it is an established dealer of the goods for at least ve (5) years and shall
produce documentary evidence to show that he has been duly authorized by the goods'
manufacturer or producer to supply the goods to the Philippines. 4 8
The RFP also requires that the documents submitted shall show that the bidders
have the nancial, technical and production capability necessary to perform the
contract. For this purpose, the primary technology proponent, i.e., the manufacturer of
the counting machine itself, and the creator of the consolidation software, should have
a minimum of ve (5) years corporate existence in good standing, whereas the
members of the consortium providing ancillary services, i.e., project management and
human resources training, should show documentary evidence that their services have
been contracted for at least one (1) political exercise with at least 20,000,000 voters
and their companies have been issued an ISO certi cation. Finally, the ACMs should
have been used in at least one (1) political exercise with no less than 20,000,000 voters.
49
The Comment 5 0 of the OSG and Memorandum 5 1 submitted by MPC detailed

the quali cations and track record of the members of MPC, viz: SK C&C, the primary
technology proponent and manufacturer of the ACMs, is a corporation in good standing
in South Korea since 1991. The ACMs have been used in two (2) Korean national
elections with more than 20,000,000 voters. Election.Com, which shall be responsible
for system integration, is a corporation in good standing in Delaware, U.S.A. since 1991
and has experience with more than 400 elections in the U.S.A. and Europe. WeSolv,
which is responsible for the rollout, training and maintenance functions of MPC, is a
Philippine corporation in good standing since 1994. Oracle, which shall provide
complete information solutions, is a Philippine corporation in good standing since
1996. ePLDT, the provider of computer security and encryption, is a wholly-owned
subsidiary of Philippine Long Distance Telephone Company. Finally, MPEI, which shall
install and maintain the ACMs, provide system integration services and project
leadership, is a Philippine corporation incorporated on February 27, 2003. Clearly, all
these show that MPC has the financial, technical and production capability necessary to
perform the Contract.
Noticeably, the petitioners failed to contest the quali cations of the members of
the consortium in any of their pleadings. The Decision, uncharacteristically silent on this
matter except for its general objection to the inability of MPEI to submit some of the
nancial documents required by the RFP, seemingly concedes that the members of the
consortium are eligible and qualified to perform the Contract.
In my opinion, these paper requirements should yield to the reality that,
collectively, the members of the consortium have furnished the COMELEC with
su cient information to enable it to judiciously gauge MPC's eligibility and
quali cations. The strict and in exible adherence to the bidding requirements by each
and every component of the consortium advanced by the petitioners would negate the
salutary purpose of R.A. 8436 and frustrate the long-anticipated modernization of the
electoral system.
Counting machines supplied by MPC meet the features prescribed by law
Unfortunately, the ponencia's nitpicking did not stop there. It asserts that MPC
failed the technical evaluation conducted by the DOST. Hence, the COMELEC should
have disqualified MPC.
It should be recalled that the COMELEC required prospective suppliers/bidders
to submit a certi ed accuracy rating for both the vote counting and consolidation
system from the DOST for each model of counting machine and canvassing system
that they intend to offer. The machine must be certi ed by the DOST that it will operate
properly and accurately under various working conditions. For this purpose, the
COMELEC identi ed key requirements for evaluation, namely: vote counting accuracy,
consolidation/canvassing accuracy, ballot counting speed, security features for both
the hardware and software, and system reliability. 5 2
In its Report, the BAC noted the results of the evaluation conducted by its
Technical Working Group (TWG) and by the DOST as follows:
"The BAC further noted that both Mega-Paci c and TIM obtained some
'failed marks' in the technical evaluation. In general, the 'failed marks' of Total
Information Management as enumerated above affect the counting machine
itself that are material in nature, constituting non-compliance to (sic) the RFP. On
the other hand, the 'failed marks' of Mega-Paci c are mere formalities on certain
documentary requirements, which the BAC may waive, as clearly indicated in the
Invitation to Bid.
In the DOST test, TIM obtained 12 failed marks mostly attributed to the
counting machine itself as stated earlier. These are requirements of the RFP and
therefore the BAC cannot disregard the same.
Mega-Paci c in 8 items however these are mostly on the software, which
can be corrected by reprogramming the software and therefore can be readily
corrected." 5 3 [Emphasis supplied]
Parenthetically, in his sponsorship remarks on R.A. No. 8436, 5 4 Rep. Abueg
underscored the salient features which must be found in the AES. He said:
"a. The system shall utilize appropriate technology for voting and electronic
devices for counting of votes and canvassing of results;
b. A stand-alone machine that is not hooked to any centralized computer or other
device through which data may be manipulated. The machine will admit
no data or input source other than from a valid, o cial ballot. This feature
is different from the computer networking systems of banks, cellular
phones, radios and from machines employing other voting systems where
keyboards and other devices are used precisely to input data or modify
that previously inputted;
c. Utilizes visible light technology that allows the scanner to read marks similar to
the human eye;
d. Can read 150 ballots per minute and accepts only valid ballots;
e. Provides audit trail;

f. Entails minimal human intervention;
g. To get the result per precinct, the election o cer presses one button on the
keypad and the precinct report is instantly generated. Multiple copies of the
results/report are also available;
h. Accumulation of totals in seconds — At the counting center, totals are read in
seconds, providing precincts detail reports, cumulative reports, and the
o cial canvass. Reports may be displayed in monitors or large screen TV
for the media, candidates or general public." 5 5
Accordingly, R.A. 8436 categorized into mandatory and optional the features
which the AES must contain, thus:
"Sec. 7. Features of the System. — The System shall utilize appropriate
technology for voting, and electronic devices for counting of votes and
canvassing of results. For this purpose, the Commission shall acquire automated
counting machines, computer equipment, devices and materials and adopt new
forms and printing materials. The System shall contain the following features: (a)
use of appropriate ballots, (b) stand-alone machine which can count votes and an
automated system which can consolidate the results immediately, (c) with
provisions for audit trails, (d) minimum human intervention and (e) adequate
safeguard/security measures. In addition, the System shall as far as practicable
have the following features:
1. It must be user-friendly and need not require computer-literate operators;
2. The machine security must be built-in and multi-layer existent on hardware and
software with minimum human intervention using latest technology like
encrypted coding system;
3. The security key control must be embedded inside the machine sealed against
human intervention;
4. The Optical Mark Reader (OMR) must have a built-in printer for numbering the
counted ballots and also for printing the individual precinct number on the
counted ballots;
5. The ballot paper for the OMR counting machine must be of the quality that
passed the international standard like ISO-1831, JIS-X 9004 or its
equivalent for optical character recognition;
6. The ballot feeder must be automatic;
7. The machine must be able to count from 100 to 150 ballots per minute;
8. The counting machine must be able to detect fake or counterfeit ballots and
must have a fake ballot rejector;
9. The counting machine must be able to detect and reject previously counted
ballots to prevent duplication;
10. The counting machine must have the capability to recognize the ballot's
individual precinct and city or municipality before counting or
consolidating the votes;
11. The System must have a printer that has the capacity to print in one stroke or
operation seven (7) copies (original plus six (6) copies) of the consolidated
reports on carbonless paper;
12. The printer must have at least 128 kilobytes of Random Access Memory
(RAM) to facilitate the expeditious processing of the printing of the
consolidated reports;
13. The machine must have a built-in oppy disk drive in order to save the
processed data on a diskette;
14. The machine must also have a built-in hard disk to store the counted and
consolidated data for future printout and verification;
15. The machine must be temperature-resistant and rust-proof;
16. The optical lens of the OMR must have a self-cleaning device;
17. The machine must not be capable of being connected to external computer
peripherals for the process of vote consolidation;
18. The machine must have an Uninterrupted Power Supply (UPS);
19. The machine must be accompanied with operating manuals that will guide
the personnel of the Commission on the proper use and maintenance of
the machine;
20. It must be so designed and built that add-ons may immediately be

incorporated into the System at minimum expense;
21. It must provide the shortest time needed to complete the counting of votes
and canvassing of the results of the election;
22. The machine must be able to generate consolidated reports like the election
return, statement of votes and certificate of votes at different levels; and
23. The accuracy of the count must be guaranteed, the margin of error must be
disclosed and backed by warranty under such terms and conditions as
may be determined by the Commission. . . ." [Emphasis supplied]
It is well to note that all the 1,991 ACMs supplied by MPC under the Contract
were found to have satis ed the mandatory requirements of the AES, to wit: (a) use of
appropriate ballots, (b) stand-alone machine 5 6 which can count votes and an
automated system which can consolidate the results immediately, (c) with provisions
for audit trails, (d) minimum human intervention and (e) adequate safeguard/security
measures. As stated in the BAC Report, the failed marks of MPC were mere formalities
in certain documentary requirements. Further, these failed marks were attributable to
the software which can be readily corrected by reprogramming. The failed marks,
therefore, were not material in nature and were, at worst, mere optional features of the
System. 5 7 The RFP clearly authorizes the BAC to waive any informality, non-conformity
or irregularity in a bid which does not constitute a material deviation, provided that such
waiver does not prejudice or affect the relative ranking of any bidder. 5 8
As regards the issue relating to the accuracy rating of 99.9995% mandated for
the counting machine by the RFP, right off I observe that the petitioners made
pronounced changes in their position at every turn. In the Petition, they simply alleged
that the COMELEC had erred when it "failed to declare a failed bidding and to conduct a
re-bidding of the project despite the failure of the bidders to pass the technical tests,"
including the test on the accuracy rating of the machine. 5 9 At the oral arguments,
however, they claimed that the COMELEC had "waived the accuracy requirement." 6 0
Finally, in their Memorandum they accused the poll body of having "changed the
accuracy criteria from 99.9995 percent to only 99.995 percent." 6 1
However, there is no competent evidence on record that the COMELEC had
waived or changed the prescribed accuracy rating. In fact, in the Contract between
COMELEC and MPEI, the same accuracy rating of 99.9995 percent was required. Also
in the letter dated October 24, 2003 of DOST, it clari ed its Report 6 2 stating that upon
further veri cation, it found that "except for 1 ACM (with an accuracy rating of
99.998%), all of the 456 machines (including the retested 9 units) that were tested by
the DOST (as of October 20, 2003) have an accuracy rating of 100% provided that the
ballots are shaded correctly and fed into the ACMs following the right orientation." 6 3
Notably, the DOST Report itself states that the machines are 100% accurate. 6 4 This
o cial evaluation has mooted the petitioners' challenge and rendered the pursuit
thereof an inconsequential exercise.
Harping on the requirement for audit trail, the ponencia proceeds to conclude
that the ACMs are deficient because of their alleged inability to print the audit trail.
It should be emphasized that Table 6 of the DOST Report 6 5 shows that the
tested ACM of MPC generates audit trails which re ect the exact date and time of the
start and end of counting of ballots per precinct. 6 6 The ACM was also able to generate
hard and soft copies of the audit trail of the counting machine, with hard copies
generated regularly. 6 7 Moreover, R.A. 8436 itself merely requires that the AES shall
have "provisions for audit trail," which the ACM, as tested, has complied with.
Anent the inability of the machine to detect previously downloaded data and
prevent these from being inputted again into the system, su ce it to state that this is
neither a mandatory nor an optional feature of the AES under R.A. 8436. In any case, it is
deemed satisfied with DOST's final favorable evaluation.
In compliance with the Resolution dated December 9, 2003, the COMELEC led
its Partial Compliance and Manifestation dated December 24, 2003 informing the Court
that 1,991 units of ACMs have already been delivered to the Commission. Of these, a
total of P849,167,697.41, corresponding to 1,973 ACMs which have passed DOST
testing, has been paid to MPC.
The misgivings regarding the alleged de ciencies in the software are largely
explained by the Commission in their Partial Compliance and Manifestation. According
to the Commission, the Project involved the development of three (3) types of software
for use during the evaluation of technical bids, testing and acceptance procedures and
on election day.
For purposes of the evaluation of technical bids, the bidders were asked to
develop a "base" software program that will enable the ACMs to function properly. The
base software is not the actual software to be used on election day. Hence, the
software defects were considered minor in nature, and accordingly, waived.
On the other hand, for purposes of the technical and acceptance procedures, a
Testing and Acceptance Manual (Manual) was prepared by the Ad Hoc Technical
Evaluation Committee, which ensured compliance of the Manual with the Terms of
Reference approved by the COMELEC and the provisions of R.A. 8436. The software
used for the ACMs was reprogrammed to comply with the Manual. Upon testing, the
DOST certified that 1,973 units passed the technical and acceptance procedures. 6 8
Anent the software to be used on election day, additional elements such as the
nal certi ed list of candidates, project of precincts, o cial ballot design and security
features, and encryption, digital certi cates and digital signatures have to be integrated
into the software. Understandably, because of the timeline followed with regard to
these additional elements, the software has not yet been nalized. The ponencia,
however, chooses to view these circumstances with insularity. It even holds suspect
the certi cations issued by the DOST declaring that the ACMs had passed the
acceptance tests conducted by the Department.
It is not amiss to state at this juncture that these declarations should be
accorded full faith and credit there being no justi cation for a contrary stance.
Reckoned from the standpoint of the established legal presumptions of validity of
o cial acts and regularity in the performance of o cial duty, I nd it unjusti ed to
speculate, as theponencia does, on the good or bad motives that impelled the
COMELEC to award the Contract to MPC.
Epilogue
In view of the foregoing, the majority's position that the COMELEC should have
conducted a re-bidding of the Project is plainly injudicious. The procedure is warranted
only if no bid is received or quali ed as the lowest calculated and responsive bid. It is
not amiss to mention again that there were more than 50 bidders 6 9 for the Project, out
of which MPC was quali ed as the lowest calculated and responsive bid. A re-bidding
of the Project would not serve any further purpose because the bidding had actually
drawn the participation of as many bidders as realistically possible and that
considering the enormity of the Project, a new bidding would not reasonably attract
new bidders. There is therefore no basis to conclude that there was a failure of bidding,
and the contract should be re-advertised and re-bid. 7 0 Remarkably besides, none of the
losing bidders questioned the process undertaken by the BAC. The logical conclusion is
that the losing bidders have conceded MPC's eligibility and quali cations and deferred
to the decision of the COMELEC to award the Contract to MPC.
It is also to the COMELEC's credit that its award of the Contract to M P C has
resulted in substantial savings for the government. The paramount objective of public
bidding is to ensure that the government obtains the lowest and best price in the
market. 7 1 This objective was undoubtedly attained by the award of the Contract to
MPC. As emphasized in the respondents' pleadings and in newspaper advertisements,
7 2 MPC's bid covering nationwide automation was P49,000,000.00 lower than that
submitted by TIMC, with its coverage restricted to Mindanao and the National Capital
Region. 7 3
As stated at the outset, the Court has unfailingly stressed the importance of
giving the COMELEC considerable latitude in adopting means and methods that will
insure the accomplishment of the objective for which it was created — to promote free,
orderly, honest, peaceful and credible elections — and perforce prudently declined to
interfere with COMELEC's exercise of its administrative functions absent any showing
of grave abuse of discretion. I see no justi cation for the departure from this principle
in the instant case.
Let it be noted that R.A. No. 8436 was precisely intended as an initial step
towards the modernization of the Philippine electoral system which seeks to ensure
free, orderly, honest, peaceful and credible elections. The COMELEC must be given
enough latitude to bring into fruition this laudable purpose.
All the challenges, whether factual or legal, to the acts of COMELEC, to my mind,
have been adequately explained and clarified.
The most crucial point raised against the respondents is the alleged non-
submission of the consortium agreements before the bidding deadline. The ponencia
adverted to it no less than ve times. But the assertion which is one of fact is debunked
by the consortium agreements themselves which were notarized not later than March 9,
2003, or before the bidding deadline. To ignore the public character of the documents
is to unfairly ascribe bad faith to COMELEC.
As for the fact that MPEI was made the party to the Contract with COMELEC, this
was so simply because MPEI was authorized to sign in behalf of the other consortium
members.
Seemingly, the ultimate resolution of this case has narrowed down to the
question of which prognostication of the technical performance of the counting
machines on election day is accurate: That of the COMELEC's or this Court's? But that
would lead the Court to tread on unfamiliar waters. More fundamentally, the question
was not raised in the Petition.
In closing, I refer to the de nition of "grave abuse of discretion" which the Court
made in Tañada v. Angara, 7 4 cited at the opening of the Decision: 7 5
By grave abuse of discretion is meant such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of
discretion is not enough. It must be grave abuse of discretion as when the power
is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and must be so patent and so gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law. Failure on the part of the petitioner to show grave abuse of
discretion will result in the dismissal of the petition.
In rendering this Decision, this Court never forgets that the Senate, whose
act is under review, is one of two sovereign houses of Congress and is thus
entitled to great respect in its actions. It is itself a constitutional body independent
and coordinate, and thus its actions are presumed regular and done in good faith.
Unless convincing proof and persuasive arguments are presented to overthrow
such presumptions, this Court will resolve every doubt in its favor. Using the
foregoing well-accepted de nition of grave abuse of discretion and the
presumption of regularity in the Senate's processes, this Court cannot nd any
cogent reason to impute grave abuse of discretion to the Senate's exercise of its
power of concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of
the Constitution. 7 6
Like the Senate to which the Court graciously deferred in the cited ruling, I
respectfully submit, the COMELEC deserves the same degree of deferential treatment
given its status as a constitutional body. But quite lamentably, the Decision would bring
disrepute to and even cause havoc on the COMELEC as an institution. It will never be
the same.
I therefore vote to dismiss the instant Petition.
Footnotes
1. Republic v. Cocofed, 372 SCRA 462, 493, December 14, 2001.
2. Tañada v. Angara, 272 SCRA 18, 79, May 2, 1997.

3. Francisco v. House of Representatives , G.R. No. 160261 and consolidated cases, November
10, 2003, per Morales, J .
4. Rollo, Vol. I, pp. 3-48. While petitioners labeled their pleading as one for prohibition and
mandamus, its allegations qualify it also as one for certiorari.
5. An act authorizing the Commission on Elections to conduct a nationwide demonstration of a
computerized election system and pilot-test it in the March 1996 elections in the
Autonomous Region in Muslim Mindanao (ARMM) and for other purposes.
6. An act authorizing the Commission on Elections to use an automated election system in the
May 11, 1998 national or local elections and in subsequent national and local electoral
exercises, providing funds therefor and for other purposes.
7. Section 6 of RA 8436 provides "[i]f in spite of its diligent efforts to implement this mandate in
the exercise of this authority, it becomes evident by February 9, 1998 that the
Commission cannot fully implement the automated election system for national
positions in the May 11, 1998 elections, the elections for both national and local
positions shall be done manually except in the Autonomous Region in Muslim Mindanao
(ARMM) where the automated election system shall be used for all positions."
8. Loong v. Comelec , 365 Phil. 386, April 14, 1999; see also Panganiban, Leadership by
Example, 1999 ed., pp. 201-249.
9. Annex "7" of the Comment of Private Respondents MPC and MPEI, rollo, Vol. II, p. 638.
10. Annex "8" of the Comment of Private Respondents MPC and MPEI, rollo, Vol. II, pp. 641-642.
11. Annex "G" of the Petition, Request for Proposal, p. 12; rollo, Vol. I, p. 71.
12. Id., pp. 21-23 & 80-82.
13. According to Public Respondent Comelec's Memorandum prepared by the OSG, p. 8; rollo,
Vol. IV, p. 2413.
14. Photocopy appended as Annex "B" of the Petition; rollo, Vol. I, pp. 52-53.
15. Photocopy appended as Annex "C" of the Petition; rollo, Vol. I, pp. 54-55.
16. The case was deemed submitted for decision on November 5, 2003, upon this Court's
receipt of Private Respondent MPC/MPEI's Memorandum, which was signed by Attys.
Alfredo V. Lazaro Jr., Juanito I. Velasco Jr. and Ma. Concepcion V. Murillo of the Lazaro
Law Firm. On October 27, 2003, the Court received petitioners' Memorandum, which was
signed by Atty. Alvin Jose B. Felizardo of Pastelero Law O ce, and Public Respondent
Comelec's Memorandum, signed by Comelec Comm. Florentino A. Tuason Jr. Apart from
these, the O ce of the Solicitor General (OSG) led another Memorandum on behalf of
Comelec, also on October 27, 2003, signed by Asst. Sol. Gen. Carlos N. Ortega, Asst. Sol.
Gen. Renan E. Ramos, Sol. Jane E. Yu and Asso. Sol. Catherine Joy R. Mallari, with a
note that Sol. Gen. Alfredo L. Benipayo "inhibited himself." The writing of the Decision in
this case was initially ra ed to Justice Dante O. Tinga. However, during the Court's
deliberations, the present ponente's then "Dissenting Opinion" to the draft report of
Justice Tinga was upheld by the majority. Hence, the erstwhile Dissent was rewritten into
this full ponencia.
17. Page 11; rollo, Vol. IV, p. 2390. During the Oral Argument on October 7, 2003, the Court
limited the issues to the following: (1) locus standi of petitioners; (2) prematurity of the
Petition because of non-exhaustion of administrative remedies for failure to avail of
protest mechanisms; and (3) validity of the award and the Contract being challenged in
the Petition.
18. Chavez v. Presidential Commission on Good Government , 360 Phil. 133, December 9, 1998,
per Panganiban, J .
19. Kilosbayan, Inc. v. Morato, 320 Phil. 171, November 16, 1995, per Mendoza, J .
20. Tatad v. Secretary of the Department of Energy , 346 Phil. 321, November 5, 1997, per Puno,
J.
21. Del Mar v. Philippine Amusement and Gaming Corporation , 346 SCRA 485, November 29,
2000, per Puno, J .
22. Kilosbayan, Inc. v. Morato, supra.

23. Dumlao v. Comelec, 95 SCRA 392, January 22, 1980, per Melencio-Herrera, J.
24. Philconsa v. Mathay , 124 Phil. 890, October 4, 1966, per Reyes J.B.L., J .
25. Respondent Comelec's Memorandum, pp. 50-51.
26. The law obliges no one to perform the impossible.
27. See private respondents' Memorandum, p. 60.
28. Photocopy appended as Annex "B" of the petition.
29. 334 Phil. 146, January 10, 1997.

30. Id., p. 153, per Torres Jr., J .
31. Although by its Resolution 6074, Comelec awarded the bid to MPC, the actual Contract was
entered into by Comelec with MPEI. The Contract did not indicate an exact date of
execution (except that it was allegedly done on the "____ day of May,") but it was
apparently notarized on June 30, 2003.
32. In connection with this, public respondents, in their Memorandum made reference to the
Implementing Rules and Regulations of RA 6957 as amended by RA 7718 (the Build-
Operate-Transfer Law), and considered said IRR as being applicable to the instant case
on a suppletory basis, pending the promulgation of implementing rules for RA 9184 (the
Government Procurement Act). For our purposes, it is well worth noting that Sec. 5.4 of
the IRR for RA 6957 as amended, speaks of prequali cation requirements for project
proponents, and in sub-section (b)(i), it provides that, for purposes of evaluating a joint
venture or consortium, it shall submit as part of its prequalification statement a business
plan which shall among others identify its members and its contractor(s), and the
description of the respective roles said members and contractors shall play or undertake
in the project. If undecided on a speci c contractor, the proponent may submit a short
list of contractors from among which it will select the nal contractor. Short listed
contractors are required to submit a statement indicating willingness to participate in the
project and capacity to undertake the requirements of the project. The business plan
shall disclose which of the members of the joint venture/consortium shall be the lead
member, the nancing arm, and/or facility operator(s), and the contractor(s). In other
words, since public respondents argue that the IRR of RA 6957 as amended would be
suppletorily applicable to this bidding, they could not have been unaware of the
requirement under Sec. 5.4 (b)(i) thereof, in respect of submission of the requisite
business plan by a joint venture or consortium participating in a bidding.
33. Now, what would prevent an enterprising individual from obtaining copies of the Articles of
Incorporation and nancial statements of, let us say, San Miguel Corporation and Ayala
Corporation from the SEC, and using these to support one's claim that these two giant
conglomerates have formed a consortium with one's own penny-ante company for the
purpose of bidding for a multi-billion peso contract? As far as Comelec is concerned, the
answer seems to be: Nothing.
34. TSN, October 7, 2003, p. 104.

35. Ibid.
36. Id., pp. 104-105.
37. Id., pp. 103-108.

38. Id., pp. 108-114.
39. Id., pp. 142-145.
40. On pp. 42-43 of the Memorandum of public respondents, filed with this Court on October 27,
2003, Comm. Tuason himself signed this pleading in his capacity as counsel of all the
public respondents.
41. Copies of these four agreements were belatedly submitted to this Court by MPEI through a
Manifestation with Profuse Apologies filed on October 9, 2003.
42. Copies of the four separate bilateral agreements were submitted to the Court last October 9,
2003.
43. The date was carelessly stated as "____ May, 2003."
44. At p. 38.
45. During the Oral Argument, counsel for public respondents admitted that Comelec was
aware that not all the members of the "consortium" had agreed to be jointly and
solidarily liable with MPEI.
46. 232 SCRA 110, 144, May 5, 1994, per Davide Jr., J . (now CJ).
47. Culled from table 6, DOST Report; rollo, Vol. II, pp. 1059-1072.
48. Annex "I" of the Petition, Vol. I, pp. 116-118.
49. Source code is the program instructions in their original form. Initially, a programmer writes
a computer program in a particular programming language. This form of the program is
called the source program, or more generically, source code. To execute the program,
however, the programmer must translate it into machine language, the language that the
computer understands. Source code is the only format that is readable by humans.
When you purchase programs, you usually receive them in their machine-language
format. This means that you can execute them directly, but you cannot read or modify
them. Some software manufacturers provide source code, but this is useful only if you
are an experienced programmer.
50. The key passages of the Court's Resolution of December 9, 2003 were cited and reproduced
verbatim in the Comelec's Partial Compliance and Manifestation.
51. Metals Industry Research and Development Center (MIRDC) of the Department of Science &
Technology (DOST).
52. Photocopy of the MIRDC-DOST letter of Dec. 15, 2003 is attached as Annex "A" to
Respondent Comelec's Partial Compliance and Manifestation. However, the 11 Test
Certi cations of the DOST (covering 11 lots or 158 ACMs) which were purportedly
attached to this letter, have not been reproduced and submitted to the Court, for reasons
known only to respondents.
53. For example, one can conduct tests to see if certain machines will tip over and fall on their
sides when accidentally bumped, or if they have a tendency to collapse under their own
weight. A less frivolous example might be that of conducting the same tests, but
lowering the bar or passing mark.
54. In the December 15, 2003 issue of the Philippine Daily Inquirer is an item titled 'Digital
'dagdag-bawas': a nonpartisan issue" by Dean Jorge Bocobo, from which the following
passages appear:
"The Commission on Elections will use automated counting machines to tally paper ballots in
the May elections, and a telecommunications network to transmit the results to
headquarters, along with CDs of the data. Yet, with only ve months to go, the
application software packages for that crucial democratic exercise — several hundred
thousand lines of obscure and opaque code — has not yet even been delivered in its nal
form, Comelec Chairman Benjamin Abalos admitted last week.
"My jaw dropped in amazement. Having built software for General Electric Co.'s medical
systems business and military aircraft engines division (in another lifetime), I have
learned the hard and painful way that 90 percent of unintended fatal problems with
complex software lies in the last 10 percent of the code produced. From experience, I can
assure you now with metaphysical certainty that not even the people furiously writing
that software know whether it will actually work as intended on May 10, much less
guarantee it. Simply put, the proposed software-hardware combination has neither been
tested completely nor verified to comply with specifications."
55. Dated "____ May, 2003" but notarized on June 30, 2003.
VITUG, J.:
1. People v. Cuaresma, 172 SCRA 415.
2. Santiago v. Vasquez, 217 SCRA 633.

3 . People v. Chavez, 358 SCRA 810.
4 . Matuguina Integrated Wood Products, Inc. vs. Court of Appeals, 263 SCRA 490; Mafinco
Trading Corp. vs. Ople, et al., 70 SCRA 139.
5. See Article VIII, Section 17 of the 1987 Constitution.
YNARES-SANTIAGO, J., concurring:

1. G.R. No. 157013, 10 July 2003.
2. See Loong v. Commission on Elections, 365 Phil. 386 (1999).
3. Separate Opinion, Vitug, J., at p. 2.
4. Sta. Ines Melale Forest Products Corporation v. Macaraig , 359 Phil. 831 (1998); Felipe
Ysmael, Jr. and Co. v. Deputy Executive Secretary , G.R. No. 79538, 18 October 1990, 190
SCRA 673; Concerned O cials of MWSS v. Vasquez , 310 Phil. 549 (1995). See
SEVERIANO S. TABIOS, Annotation on Failure to Exhaust Administrative Remedies as a
Ground for Motion To Dismiss, 165 SCRA 352, 357-362 (1988).
5. Union Bank of the Philippines v. Court of Appeals , 352 Phil. 808 (1998); University of the
Philippines v. Catungal, Jr., 338 Phil. 808 (1997).
6. Paat v. Court of Appeals, 334 Phil. 146 (1997).
7. Quisumbing v. Judge Gumban , G.R. No. 85156, 5 February 1991, 193 SCRA 520; Salinas v.
NLRC, G.R. No. 114671, 24 November 1999, 319 SCRA 54; Samson v. NLRC, 32 Phil. 135
(1996). See SEVERIANO S. TABIOS, Annotation on Failure to Exhaust Administrative
Remedies as a Ground for Motion to Dismiss, 165 SCRA 352, 357-362 (1988).
8. Eastern Shipping Lines v. POEA , G.R. No. L-76633, 18 October 1988, 166 SCRA 533; Paat v.
Court of Appeals, 334 Phil. 146 (1997).
9. Industrial Power Sales, Inc. v. Sinsuat, G.R. No. L-29171, 15 April 1988, 160 SCRA 19.
10. Vda. De Tan v. Veterans Backpay Commission, 105 Phil. 377 (1959).
11. De Lara v. Cloribel, 121 Phil. 1062 (1965).

12. Demaisip v. Court of Appeals, 106 Phil. 237 (1959).
13. Cipriano v. Marcelino, 150 Phil. 336 (1972).
14. Alzate v. Aldana, 107 Phil. 298 (1960).
15. Soto v. Jareno, G.R. No. L-38962, 15 September 1986, 144 SCRA 116.
16. Quisumbing v. Judge Gumban , G.R. No. 85156, 5 February 1991, 193 SCRA 520; Indiana
Aerospace University v. Commission on Higher Education (CHED), G.R. No. 139371, 4
April 2001, 356 SCRA 367.
17. Indiana Aerospace University v. Commission on Higher Education (CHED), G.R. No. 139371,
4 April 2001, 356 SCRA 367, citing Liberty Insurance Corp. v. Court of Appeals , 222 SCRA
37, 47 (1993); Alindao v. Joson, 264 SCRA 211, 220 (1996); Tan v. Court of Appeals , 275
SCRA 568, 574-575 (1997); and Tan Jr. v. Sandiganbayan , 292 SCRA 452, 457-458
(1998).
18. RFP, at p. 12.
19. Sevilla v. Court of Appeals, G.R. Nos. L-41182-83, 15 April 1988, 160 SCRA 171.
20. G.R. No. 75875, 15 December 1989, 180 SCRA 130.
21. Rollo, p. 2355.
22. Id., p. 2364.
23. Id., pp. 2355 and 2364.
24. Id., pp. 2358 and 2367.
25. Id., pp. 2355 and 2364.

26. Id.
27. Id., p. 2348.
28. Id.
29. Id.
30. Id., p. 2349.
31. Id., p. 2352.
32. Id.
33. Id., p. 2353.
34. "Automated Counting and Canvassing Project Contract", Rollo, at p. 2198.
35. Id., Appendix A, Rollo, at p. 2218.
36. Id., Appendix B, Rollo, at p. 2238.
37. Id., Appendix C, Rollo, at p. 2259.
38. Id., Appendix D, Rollo, at p. 2275.

39. Id., Appendix E, Rollo, at p. 2292.
40. Id., Appendix F, Rollo, at p. 2310.
41. Id., Appendix H, Rollo, at p. 2314. Appendix G, if any, is not part of the records.
42. Id., Appendix I, Rollo, at p. 2322.
43. Id., Appendix J, Rollo, at p. 2326.
44. Id., Appendix K, Rollo, at p. 2335.

45. Id., Appendix L, Rollo, at p. 2341.
46. Id., Appendix M, Rollo, at p. 2344.
47. Rollo, p. 1408.
48. Id., pp. 1870; 1954; 2052.
49. Lopez v. Piatco, G.R. No. 155661, 5 May 2003.
50. A. Cobacha & D. Lucenario, LAW ON PUBLIC BIDDING AND GOVERNMENT CONTRACTS 13
(1960).
1. LIVY, History. Bk. XXXV, ch. 32.
2. Electronic Voting: What You Need To Know , William Rivers Pitt, Interview of David L. Dill, a
Professor of Computer Science at Stanford University. Monday, 20 October 2003.
3. An act authorizing the Commission on Elections to use an automated election system in the
May 11, 1998 national or local elections and in subsequent national and local electoral
exercises, providing funds therefore and for other purposes.
4. Section 7.
5. President Gloria Macapagal-Arroyo had earlier issued Executive Order (EO) No. 172 on
January 24, 2003, allocating P2,500,000,000.00 to fund the AES. To augment this
amount, the President issued EO No. 175 on February 10, 2003, allocating an additional
P500,000,000.00 for the Project. The COMELEC recon gured the modernization program
into the three (3) phases mentioned above and reallocated the budget as follows: (a) P1
Billion for Phase I; (2) P1.7 Billion for Phase II; and (3) P300 Million for Phase III.
6. Rollo at 124.
7. Report on the Evaluation of the Technical Proposal on Phase II.
8. Republic of the Philippines vs. Silerio, G.R. No. 108869, May 6, 1997, 272 SCRA 280, citing
Provident Tree Farms, Inc. vs. Batario, Jr ., 231 SCRA 471 (1994); Lim, Sr. v. Secretary of
Agriculture and Natural Resources, 34 SCRA 751 (1970).

9. 50 SCRA 498-499 (1973).
10. Petition at 39.
11. G.R. No. 124293, November 20, 2000, 345 SCRA 143.
12. G.R. No. 138298, November 29, 2000, 346 SCRA 485.
13. Section 55. Protests on Decisions of the BAC
55.1 Decisions of the BAC with respect to the conduct of bidding may be protested in writing
to the head of the procuring entity; Provided, however, That a prior motion for
reconsideration should have been led by the party concerned within the reglementary
periods speci ed in this IRR-A and the same has been resolved. The protest must be
resolved led within seven (7) calendar days from receipt by the party concerned of the
resolution of the BAC denying its motion for reconsideration. A protest may be made by
ling a veri ed position paper with the head of the procuring agency concerned,
accompanied by the payment of a non-refundable protest fee. The non-refundable
protest fee shall be in an amount equivalent to no less than one percent (1%) of the ABC.
14. An Act Providing for the Modernization, Standardization, and Regulation of the Procurement
Activities of the Government and for Other Purposes.
15. Section 58. Resort to Regular Courts: Certiorari.
58.1 Court action may be resorted to only after the protests contemplated in this Rule shall
have been completed, i.e., resolved by the head of the procuring entity with nality. The
regional trial court shall have jurisdiction over nal decisions of the head of the
procuring entity. Court actions shall be governed by Rule 65 of the 1997 Rules of Civil
Procedure.
17. See Buklod ng Kawaning EIIB vs. Zamora, G.R. Nos. 142801-802, July 10, 2001; Dario vs.
Mison, G.R. No. 81954, August 8, 1989, 176 SCRA 84; Fortich vs. Corona, G.R. No.
131457, April 24, 1998, 289 SCRA 624.
18. Rollo, Vol. IV at 1784.
19. In open court, Atty. Lazaro, counsel for private respondent Mega Pacific eSolutions, Inc. was
directed by this Court to submit the following documents:
(a) contract executed between consortium represented by Mega Paci c eSolutions, Inc. and
COMELEC;
(b) agreement among the consortium members;
(c) financial statements of the members of the consortium;
(d) agreement as to the joint and several liability of the members of the consortium; status
report of the Department of Science and Technology (DOST) as to whether the machines
are already free of the eight (8) defects or failing marks. (Resolution dated October 7,
2003, Rollo, Vol. II at 1221-1222.)
20. Rollo, Vol. IV at 2198.
21. The MOA between MPEI and SK C & C was entered only on March 9, 2003.
22. Rollo, Vol. IV at 2355-2363.
23. Id. at 2364-2371.
24. Rivera vs. Maclang, G.R. No. L-15948, January 31, 1963, 7 SCRA 57.
25. 64 Am Jur 2d § 64.
26. Prescribing Policies, Guidelines, Rules and Regulations for Government Infrastructure
Contracts; Promulgated June 11, 1978.
27. Fernandez, Jr., A Treatise on Government Contracts Under Philippine Law , 2001 at 30-31,
citing Borromeo vs. City of Manila, 62 Phil. 512 (1960); Jalandoni vs. NARRA, 108 Phil.
486 (1935); Filipinas Engineering vs. Ferrer, G.R. No. L-31455, February 28, 1985, 135
SCRA 25.
TINGA, J., dissenting:
1. G.R. No. 133250, July 9, 2002.
2. G.R. No. 155001, May 5, 2003.
3. Secs. 2 & 3, Art. XII, 1987 CONST.
4. Sections 17 & 19, Art. XII, 1987 CONST.
5. BOT Law and its Implementing Rules and Regulations.
6. Sec. 2.
7. Sec. 3.
8. For instance, issues covering Phase I (Voters' Registration and Validation System) and Phase
III (Electronic Transmission) which were raised in the media are not before the Court.
9. Dissenting opinion of Mr. Justice Felix Frankfurter, Uveges v. Commonwealth of
Pennsylvania, 335 U.S. 437.
10. Frankfurter, Felix Frankfurter on the Supreme Court Extra Judicial Essays on the Court and
the Constitution, 1970, p. 339, citing United States v. Ferreira, 1 How. 40 (1851).
11. E.g., the COMELEC has to promulgate new rules on casting of votes, appreciation, counting
and canvassing of ballots, conduct a voters' education program on the automated
system and train personnel who will operate the ACMs.
12. Cauton v. COMELEC, G.R. No. L-25467, April 27, 1967, 19 SCRA 911.
13. 73 Phil. 288 (1942).
14. Id. at 295-296.
15. Gonzales, Administrative Law — A text, 1979, p. 137.
16. 336 Phil. 126 (1997).
17. Id. at 135-136.
18. Sec. 1, Rule 65, 1997 Rules of Civil Procedure.
19. 334 Phil. 146, citations omitted.
20. Id. at 153.
21. Sec. 55.
22. Pars. (a) & (d) Sec. 5, Code of Conduct and Ethical Standards for Public O cials and
Employees.
23. Decision, pp. 33 & 34.
24. Resolution, p. 3.
25. TSN, October 7, 2003, pp. 101-105.
26. TSN, October 7, 2003, pp. 144-146.
27. TSN, October 7, 2003, pp. 264-278.
28. Rollo, p. 71.
29. Id. at 2348-2351 and 2352-2354, respectively.
30. Id. at 2355-2363 and 2364-2373, respectively.
31. Id. at 71.
32. Id. at 2199-2217.
33. Id. at 2200.

34. Id. at 2212.
35. Id. at 72.
37. Supra, infra, p.15.
38. Supra, note 28 at 2427.
39. Art. 1825, Civil Code.
41. Id. at 76-79.
42. Id. at 72.
43. G.R. No. 113375, May 5, 1994, 232 SCRA 110.
44. Id. at 144.
45. "An Act Authorizing The Financing, Construction, Operation And Maintenance Of
Infrastructure Projects By The Private Sector And For Other Purposes." It is otherwise
known as the BOT Law.
46. "An Act Amending Certain Sections Of Republic Act No. 6957, Entitled "An Act Authorizing
The Financing, Construction, Operation And Maintenance Of Infrastructure Projects By
The Private Sector, And For Other Purposes."
47. Sec. 5.4, b (i).

49. Id. at 74-75.
50. Id. at 384-385.
51. Id. at 2598-2599.
52. Report on the Testing and Technical Evaluation of Automated Counting Machines by the
DOST, April 1-3, 2003, p. 1.
53. Supra, note 28 at 2431-2432.
54. Sponsorship Remarks of Rep. Abueg at the House of Representatives, May 20, 1997; TSN,
pp. 7-8.
55. Id. at 10-11.
56. During the oral arguments, Com. Borra asserted that the ACMs are stand alone machines in
that they do not have inputs or outputs that enable them to be networked. TSN, October
7, 2003, pp. 176-179.
58. Id. at 81.
59. Id. at 31-33.
60. TSN, October 7, 2003, p. 26.
62. Supra note 52.
63. Supra, note 28 at 2541-2542, letter from the Executive Director cum Chairman of the DOST
Technical Evaluation Committee, Mr. Rolando Viloria, addressed to Com. Borra.
65. Id. at 1257.
66. Id. at 1258.
67. Id. at 1264.
68. The letter dated December 15, 2003 addressed to Com. Borra from Rolando T. Viloria,
Executive Director and Chairman of the DOST-Technical Evaluation Committee states
that the DOST tested a total of 1,991 ACMs. Of these, 18 units failed the test. Out of the
18 units, only one (1) unit failed the retest.
69. The Memorandum of the OSG (Rollo, p. 2428) states that there were more than 50
prospective bidders for the Project.
71. Cobacha and Lucenario, Law on Public Bidding and Government Contracts, 1960, p. 7.
72. Philippine Daily Inquirer, November 20, 2003.
73. Supra, note 28 at 2503-2504.

74. G.R. No. 118295, 272 SCRA 18.
75. Decision, p. 2.
76. Supra, note 77 at 79-80.

EN BANC
[G.R. No. 113375. May 5, 1994.]
KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A.

RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO,
EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE,
CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL
V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN.
FREDDIE WEBB, SEN. WIGBERTO TAÑADA, and REP. JOKER P.
ARROYO, petitioners, vs. TEOFISTO GUINGONA, JR., in his capacity as
Executive Secretary, Of ce of the President; RENATO CORONA, in
his capacity as Assistant Executive Secretary and Chairman of the
Presidential Review Committee on the Lotto, Of ce of the
President; PHILIPPINE CHARITY SWEEPSTAKES OFFICE; and
PHILIPPINE GAMING CORPORATION, respondent.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; PARTY; A PARTY'S STANDING IN THE HIGH COURT IS A

PROCEDURAL TECHNICALITY WHICH MAY BE SET ASIDE WHERE ISSUES RAISED ARE OF
PARAMOUNT PUBLIC INTEREST; CASE AT BAR. — The preliminary issue on the locus
standi of the petitioners should, indeed, be resolved in their favor. 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 the 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
de nitely, brushing aside, if we must, technicalities of procedure. ( Avelino vs. Cuenco, G.R.
No. L-2821)." Insofar as taxpayers' suits are concerned, this Court had declared that it "is
not devoid of discretion as to whether or not it should be entertained," or that it "enjoys an
open discretion to entertain the same or not." We nd the instant petition to be of
transcendental importance to the public. The issues it raised are of paramount public
interest and of a category even higher than those involved in many of the aforecited cases.
The rami cations of such issues immeasurably affect the social, economic, and moral
well-being of the people even in the remotest barangays of the country and the counter-
productive and retrogressive effects of the envisioned on-line lottery system are as
staggering as the billions in pesos it is expected to raise. The legal standing then of the
petitioners deserves recognition and, in the exercise of its sound discretion, this Court
hereby brushes aside the procedural barries which the respondents tried to take
advantage of.
2. ID.; ID.; ID.; ID. — In line with the liberal policy of this Court on locus standi, ordinary
taxpayers, members of Congress, and even association of planters, and non-pro t civic
organizations were allowed to initiate and prosecute actions before this Court to question
the constitutionality or validity of laws, acts, decisions, ruling, or orders of various
government agencies or instrumentalities.
3. ADMINISTRATIVE LAW; PUBLIC CORPORATIONS; PHILIPPINE CHARITY
SWEEPSTAKES OFFICE; PROHIBITED FROM HOLDING AND CONDUCTING LOTTERIES IN
COLLABORATION, ASSOCIATION OR JOINT VENTURE WITH ANY PERSON, ASSOCIATION,
COMPANY OR ENTITY. — Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, prohibits
the PCSO from holding and conducting lotteries "in collaboration, association or joint
venture with any person, association, company on entity, whether domestic or foreign." The
language of the section is indisputably clear that with respect to its franchise or privilege
"to hold and conduct charity sweepstakes races, lotteries and other similar activities," the
PCSO cannot exercise it "in collaboration, association or joint venture" with any other party.
This is the unequivocal meaning and import of the phrase "except for the activities
mentioned in the preceding paragraph (A)," namely, " charity sweepstakes races, lotteries
and other similar activities."
4. ID.; ID.; ID.; ID.; NO INTERPRETATION ALLOWED TO RELAX OR CIRCUMVENT
PROHIBITION; REASON. — No interpretation of the said provision to relax or circumvent
the prohibition can be allowed since the privilege to hold or conduct charity sweepstakes,
races, lotteries, or other similar activities is a franchise granted by the legislature to the
PCSO. It is a settled rule that "in all grants by the government to individuals or corporations
of rights, privileges and franchises, the words are to be taken most strongly against the
grantee . . . . [o]ne who claims a franchise or privilege in derogation of the common rights
of the public must prove his title thereto by a grant which is clearly and de nitely
expressed, and he cannot enlarge it by equivocal or doubtful provisions or by probable
inferences. Wherever is not unequivocally granted is withheld. Nothing passes by mere
implication." In short then, by the exception explicitly made in paragraph B, Section 1 of its
charter, the PCSO cannot share its franchise with another by way of collaboration,
association or joint venture. Neither can it assign, transfer, or lease such franchise. It has
been said that "the rights and privileges conferred under a franchise may, without doubt, be
assigned or transferred when the grant is to the grantee and assigns, or is authorized by
statute. On the other hand, the right of transfer or assignment may be restricted by statute
or the constitution, or be made subject to the approval of the grantor or a governmental
agency, such as a public utilities commission, except that an existing right of assignment
cannot be impaired by subsequent legislation."
5. STATUTORY CONSTRUCTION; STATUTE AUTHORIZING CARRYING ON OF
GAMBLING ACTIVITY, STRICTLY CONSTRUED. — It may also be pointed out that the
franchise granted to the PCSO to hold and conduct lotteries allows it to hold and conduct
a species of gambling. It is settled that "a statute which authorizes the carrying on of a
gambling activity or business should be strictly construed and every reasonable doubt so
resolved as to limit the powers and rights claimed under its authority."
SWEEPSTAKES OFFICE; PROHIBITED FROM HOLDING & CONDUCTING LOTTERIES IN
COLLABORATION, ASSOCIATION OR JOINT VENTURE WITH ANY PERSON, ASSOCIATION,
COMPANY OR ENTITY; "LEASE" ENTERED IN CONTRAVENTION THEREOF, NULL & VOID;
CASE AT BAR. — Does the challenged Contract of Lease violate or contravene the
exception in Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits the
PCSO from holding and conducting lotteries "in collaboration, association or joint venture
with" another? We agree with the petitioners that it does, notwithstanding its denomination
or designation as a Contract of Lease. We are neither convinced nor moved or fazed by the
insistence and forceful arguments of the PGMC that it does not because in reality it is only
an independent contractor for a piece of work, i.e., the building and maintenance of a
lottery system to be used by the PCSO in the operation of its lottery franchise. A careful
analysis and evaluation of the provisions of the contract and a consideration of the
contemporaneous acts of the PCSO and PGMC indubitably disclose that the contract is
not in reality a contract of lease under which the PGMC is merely an independent
contractor for a piece of work, but one where the statutorily proscribed collaboration or
association, in the least, or joint venture, at the most, exists between the contracting
parties. Collaboration is de ned as the acts of working together in a joint project.
Association means the act of a number of persons in uniting together for some special
purpose or business. Joint venture is de ned as an association of person or companies
jointly undertaking some commercial enterprise; generally all contribute assets and share
risks. It requires a community of interest in the performance of the subject matter, a right
to direct and govern the policy in connection therewith, and duty, which may be altered by
agreement to share both in pro t and losses. We thus declare that the challenged Contract
of Lease violates the exception provided for in paragraph B, Section 1 of R.A. No. 1169, as
amended by B.P. Blg. 42, and is, therefore, invalid for being contrary to law. This conclusion
renders unnecessary further discussion on the other issues raised by the petitioners.
7. CIVIL LAW; OBLIGATIONS AND CONTRACTS; CONTRACTS DECIDED BY INTENT OF
PARTIES NOT BY DESIGNATION OR TITLE THEREOF; CASE AT BAR. — Whether the
contract in question is one of lease or whether the PGMC is merely an independent
contractor should not be decided on the basis of the title or designation of the contract
but by the intent of the parties, which may be gathered from the provisions of the contract
itself. Animus hominis est anima scripti. The intention of the party is the soul of the
instrument. In order to give life or effect to an instrument, it is essential to look to the
intention of the individual who executed it. And, pursuant to Article 1371 of the Civil Code,
"to determine the intention of the contracting parties, their contemporaneous and
subsequent acts shall be principally considered." To put it more bluntly, no one should be
deceived by the title or designation of a contract. Undoubtedly, then, the Berjaya Group
Berhad knew all along that in connection with an on-line lottery system, the PCSO had
nothing but its franchise, which it solemnly guaranteed it had in the General Information of
the RFP. Howsoever viewed then, from the very inception, the PCSO and the PGMC
mutually understood that any arrangement between them would necessarily leave to the
PGMC the technical, operations, and management aspects of the on-line lottery system
while the PCSO would, primarily, provide the franchise. The words Gaming and
Management in the corporate name of respondent Philippine Gaming Management
Corporation could not have been conceived just for euphemistic purposes. Of course, the
RFP cannot substitute for the Contract of Lease which was subsequently executed by the
PCSO and the PGMC. Nevertheless, the Contract of Lease incorporates their intention and
understanding. The so-called Contract of Lease is not, therefore, what it purports to be. Its
denomination as such is a crafty device, carefully conceived, to provide a built-in defense in
the event that the agreement is questioned as violative of the exception in Section 1(B) of
the PCSO's charter. The acuity or skill of its draftsmen to accomplish that purpose easily
manifests itself in the Contract of Lease. It is outstanding for its careful and meticulous
drafting designed to give an immediate impression that it is a contract of lease. Yet, woven
therein are provisions which negate its title and betray the true intention of the parties to
be in or have a joint venture for a period of eight years in the operation and maintenance of
the on-line lottery system.
CRUZ, J., concurring :

SWEEPSTAKES OFFICE (PCSO); PROHIBITED FROM OPERATING A LOTTERY "IN
ASSOCIATION, COLLABORATION OR JOINT VENTURE WITH ANY PERSON, ASSOCIATION,
COMPANY OR ENTITY; CONTRACT OF "LEASE" WITH PGMC, A VIOLATION THEREOF. — I
am happy to join Mr. Justice Hilario G. Davide, Jr. in his excellent ponencia. I will add the
following personal observations only for emphasis as it is not necessary to supplement
his thorough exposition. It should be quite clear, from the adroit way the contract has been
drafted, that the primary objective was to avoid the conclusion that PCSO will be operating
a lottery "in association, collaboration or joint venture with any person, association,
company or entity," which is prohibited by Section 1 of Rep. Act No. 1169 as amended by
B.P. Blg. 42. Citing the self-serving provisions of the contract, the respondents would have
us believe that the contract is perfectly lawful because all it does is provide for the lease to
PCSO of the technical know-how and equipment of PGMC, with PCSO acting as "the sole
and individual operator" of the lottery. I am glad we are not succumbing to this sophistry.
Despite the artfulness of the contract (authorship of which was pointedly denied by both
counsel for the government and the private respondent during the oral argument on this
case), a careful study will reveal telling stipulations that it is PGMC and not PCSO that will
actually be operating the lottery. Even on the assumption that it is PCSO that will be
operating the lottery at the very start, the authority granted to PGMC by the agreement will
readily show that PCSO will not be acting alone, as the respondents pretend. In fact, it
cannot. PGMC is an indispensable co-worker because it has the equipment and the
technology and the management skills that PCSO does not have at this time for the
operation of the lottery. PCSO cannot deny that it needs the assistance of PGMC for this
purpose, which was its reason for entering into the contract in the rst place. And when
PCSO does avail itself of such assistance, how will it be operating the lottery?
Undoubtedly, it will be doing so "in collaboration, association or joint venture" with PGMC,
which, let it be added, will not be serving as a mere "hired help" of PCSO subject to its
control. PGMC will be functioning independently in the discharge of its own assigned role
as stipulated in detail under the contract. PGMC is plainly a partner of PCSO in violation of
law, no matter how PGMC's assistance is called or the contract is denominated.
2. REMEDIAL LAW; ACTIONS; PARTIES; RULE ON LOCUS STANDI , NOT ABSOLUTE. —
Concerning the doctrine of locus standi, I cannot agree that out of the sixty million Filipinos
affected by the proposed lottery, not a single solitary citizen can question the agreement.
Locus standi is not such an absolute rule that it cannot admit of exceptions under certain
conditions or circumstances like those attending this transaction. As I remarked in my
dissent in Guazon v. De Villa, 181 SCRA 623, "It is not only the owner of the burning house
who has the right to call the remen. Every one has the right and responsibility to prevent
the fire from spreading even if he lives in the other block."
MELO, J., dissenting :
1. REMEDIAL LAW; ACTIONS; PARTIES; LOCUS STANDI ; ABSENCE OF PERSONAL
STAKE IN THE OUTCOME OF THE CONTROVERSY OF PETITIONERS IN THE CASE AT BAR.
— I submit that the petition before the Court deserves no less than outright dismissal for
the reason that petitioners, as concerned citizens and as taxpayers and as members of
Congress, do not possess the necessary legal standing to assail the validity of the
contract of lease entered into by the Philippine Charity Sweepstakes Of ce and the
Philippine Gaming Management Corporation relative to the establishment and operation of
an "On-line Hi-Tech Lottery System" in the country. As announced in Lamb vs. Phipps (22
Phil. [1912], 559), "[J]udicial power in its nature, is the power to hear and decide causes
pending between parties who have the right to sue and be sued in the courts of law and
equity." Necessarily, this implies that a party must show a personal stake in the outcome
of the controversy or an injury to himself that can be addressed by a favorable decision so
as to warrant his invocation of the court's jurisdiction and to justify the court's remedial
powers in his behalf (Whart vs. Seldin, 422 U.S. 490; Guzman vs. Marrero, 180 U.S. 81;
McMicken vs. United States, 97 U.S. 204). Here, we have yet to see any of petitioners
acquiring a personal stake in the outcome of the controversy or being placed in a situation
whereby injury may be sustained if the contract of lease in question is implemented. It may
be that the contract has somehow evoked public interest which petitioners claim to
represent. But the alleged public interest which they pretend to represent is not only
abroad and encompassing but also strikingly and veritably indeterminate that one cannot
truly say whether a handful of the public, like herein petitioners, may lay a valid claim of
representation in behalf of the millions of citizens spread all over the land who may have
just as many varied reactions relative to the contract in question.
2. ID.; ID.; ID.; ID.; TAXPAYER'S SUIT; ILLEGAL DISBURSEMENT OF PUBLIC FUNDS
INDISPENSABLE THERETO; ABSENCE THEREOF IN CASE AT BAR. — Any effort to infuse
personality on petitioners by considering the present case as a "taxpayer's suit" could not
cure the lack of locus standi on the part of petitioners. As understood in this jurisdiction, a
"taxpayer's suit" refers to a case where the act complained of directly involves the illegal
disbursement of public funds derived from taxation (Pascual vs. Secretary of Public
Works, 110 Phil. [1960] 331; Maceda vs. Macaraig, 197 SCRA [1991]; Lozada vs.
COMELEC, 120 SCRA [1983] 337; Dumlao vs. COMELEC, 95 SCRA [1980] 392; Gonzales
vs. Marcos, 65 SCRA [1975] 624). It cannot be overstressed that no public fund raised by
taxation is involved in this case. In fact, it is even doubtful if the rentals which the PCSO will
pay to the lessor for its operation of the lottery system may be regarded as "public fund."
The PCSO is not a revenue-collecting arm of the government. Income or money realized by
it from its operations will not and need not be turned over to the National Treasury. Rather,
this will constitute corporate funds which will remain with the corporation to nance its
various activities as authorized in its charter. And if ever some semblance of "public
character" may be said to attach to its earnings, it is simply because PCSO is a
government-owned or controlled entity and not a purely private enterprise. The case
before us is not a challenge to the validity of a statute or an attempt to restrain
expenditure of public funds pursuant to an alleged invalid congressional enactment. What
petitioners ask us to do is to nullify a simple contract of lease entered into by a
government-owned corporation with a private entity. That contract, as earlier pointed out,
does not involve the disbursement of public funds but of strictly corporate money. If every
taxpayer, claiming to have interest in the contract, no matter how remote, could come to
this Court and seek nulli cation of said contract, the day may come when the activities of
government corporate entities will ground to a standstill on account of nuisance suits led
against them by persons whose supposed interest in the contract is as remote and as
obscure as the interest of any man in the street. The dangers attendant thereto are not
hard to discern and this Court must not allow them to come to pass.
3. ID.; SUPREME COURT; INTERPRETATION OF CONTRACT, BEYOND ITS POWER TO
REVIEW. — One nal observation must be emphasized. When the petition at bench was
led, the Court decided to hear the case on oral argument on the initial perception that a
constitutional issue could be involved. However, it now appears that no question of
constitutional dimension is at stake as indeed the majority barely touches on such an
issue, concentrating as it does on its interpretation of the contract between the Philippine
Charity Sweepstakes Of ce and the Philippine Gaming Management Corporation. I,
therefore, vote to dismiss the petition.
FELICIANO, J., concurring :

SWEEPSTAKES OFFICE (PCSO); PROHIBITED FROM OPERATING A LOTTERY "IN
ASSOCIATION, COLLABORATION OR JOINT VENTURE WITH ANY PERSON, ASSOCIATION,
COMPANY OR ENTITY; CONTRACT OF LEASE ENTERED INTO BY PCSO AND PGMC, NULL
AND VOID. — I agree with the conclusions reached by my distinguished brother in the Court
Davide, Jr., J., both in respect of the questions of locus standi and in respect of the merits
of this case, that is, the issues of legality and constitutionality of the Contract of Lease
entered into between the Philippine Charity Sweepstakes Of ce (PCSO) and the Philippine
Gaming Management Corporation (PGMC).
2. REMEDIAL LAW; ACTIONS; PARTIES; RULE ON LOCUS STANDI , NOT ABSOLUTE. —
There is little substantive dispute that the possession of locus standi is not, in each and
every case, a rigid and absolute requirement for access to the courts. Certainly that is the
case where great issues of public law are at stake, issues which cannot be approached in
the same way that a court approaches a suit for the collection of a sum of money or a
complaint for the recovery of possession of a particular piece of land. The broad question
is when, or in what types of cases, the court should insist on a clear showing of locus
standi understood as a direct and personal interest in the subject matter of the case at
bar, and when the court may or should relax that apparently stringent requirement and
proceed to deal with the legal or constitutional issues at stake in a particular case.
3. ID.; ID.; ID.; ID.; SPECIFIC CONSIDERATIONS THEREFOR MUST BE INDICATED. — I
submit, with respect, that it is not enough for the Court simply to invoke "public interest" or
even "paramount considerations of national interest," and to say that the speci c
requirements of such public interest can only be ascertained on a "case to case" basis. For
one thing, such an approach is not intellectually satisfying. For another, such an answer
appears to come too close to saying that locus standi exists whenever at least a majority
of the Members of this Court participating in a case feel that an appropriate case for
judicial intervention has arisen. This is not, however, to say that there is somewhere an
over-arching juridical principle or theory, waiting to be discovered, that permits a ready
answer to the question of when, or in what types of cases, the need to show locus standi
may be relaxed in greater or lesser degree. To my knowledge, no satisfactory principle or
theory has been discovered and none has been crafted, whether in our jurisdiction or in the
United States. I have neither the competence nor the opportunity to try to craft such
principle or formula. It might, however, be useful to attempt to indicate the considerations
of principle which, in the present case, appear to me to require an af rmative answer to the
question of whether or not petitioners are properly regarded as imbued with the standing
necessary to bring and maintain the present petition.
4. ID.; ID.; ID.; ID.; ID.; CHARACTER OF THE FUNDS OR OTHER ASSETS INVOLVED, OF
MAJOR IMPORTANCE; CASE AT BAR. — Firstly, the character of the funds or other assets
involved in the case is of major importance. In the case presently before the Court, the
funds involved are clearly public in nature. The funds to be generated by the proposed
lottery are to be raised from the population at large. Should the proposed operation be as
successful as its proponents project, those funds will come from well-nigh every town and
barrio of Luzon. The funds here involved are public in another very real sense: they will
belong to the PCSO, a government owned or controlled corporation and an instrumentality
of the government and are destined for utilization in social development projects which, at
least in principle, are designed to bene t the general public. My learned brothers Melo,
Puno and Vitug, JJ. concede that taxpayers' suits have been recognized as an exception to
the traditional requirement of recognized as an exception to the traditional requirement of
locus standi. They insist, however, that because the funds here involved will not have been
generated by the exercise of the taxing power of the Government, the present petition
cannot be regarded as a taxpayer's suit and therefore, must be dismissed by the Court. It
is my respectful submission that that constitutes much too narrow a conception of the
taxpayer's suit and of the public policy that it embodies. It is also to overlook the fact that
tax monies, strictly so called, constitute only one (1) of the major categories of funds
today raised and used for public purposes. It is widely known that the principal sources of
funding for government operations today include, not just taxes and customs duties, but
also revenues derived from activities of the Philippine Amusement Gaming Corporation
(PAGCOR), as well as the proceeds of privatization of government owned or controlled
corporations and other government owned assets. The interest of a private citizen in
seeing to it that public funds, from whatever source they may have been derived, go only to
the uses directed and permitted by law is as real and personal and substantial as the
interest of a private taxpayer in seeing to it that tax monies are not intercepted on their
way to the public treasury or otherwise diverted from uses prescribed or allowed by law. It
is also pertinent to note that the more successful the government is in raising revenues by
non-traditional methods such as PAGCOR operations and privatization measures, the
lesser will be the pressure upon the traditional sources of public revenues, i.e., the pocket
books of individual taxpayers and importers.
5. ID.; ID.; ID.; ID.; ID.; PRESENCE OF CLEAR CASE OF DISREGARD OF
CONSTITUTIONAL OR STATUTORY PROHIBITION; CASE AT BAR. — A second factor of
high relevance is the presence of a clear case of disregard of a constitutional or statutory
prohibition by the public respondent agency or instrumentality of the government. A
showing that a constitutional or legal provision is patently being disregarded by the
agency or instrumentality whose act is being assailed, can scarcely be disregarded by
court. The concept of locus standi — which is part and parcel of the broader notion of
ripeness of the case — "does not operate independently and is not alone decisive. . . . [I]t is
in substantial part a function of a judge's estimate of the merits of the constitutional [or
legal] issue." The notion of locus standi and the judge's conclusions about the merits of the
case, in other words, interact with each other. Where the Court perceives a serious issue of
violation of some constitutional or statutory limitation, it will be much less dif cult for the
Court to nd locus standi in the petitioner and to confront the legal or constitutional issue.
In the present case, the majority of the Court considers that a very substantial showing has
been made that the Contract of Lease between the PCSO and the PGMC ies in the face of
legal limitations.
6. ID.; ID.; ID.; ID.; ID.; LACK OF ANY OTHER PARTY WITH A MORE DIRECT AND
SPECIFIC INTEREST; CASE AT BAR. — A third consideration of importance in the present
case is the lack of any other party with a more direct and speci c interest in raising the
questions here being raised. Though a public bidding was held, no losing or dissatis ed
bidder has come before the Court. The Of ce of the Ombudsman has not, to the
knowledge of the Court, raised questions about the legality or constitutionality of the
Contract of Lease here involved. The National Government itself, through the Of ce of the
Solicitor General, is defending the PCSO Contract (though it had not participated in the
drafting thereof). In a situation like that here obtaining, the submission may be made that
the institution, so well known in corporation law and practice, of the corporate
stockholders' derivative suit furnishes an appropriate analogy and that on the basis of
such an analogy, a taxpayer's derivative suit should be recognized as available.
7. ID.; ID.; ID.; ID.; ID.; WIDE RANGE OF IMPACT OF THE ASSAILED CONTRACT; CASE
AT BAR. — The wide range of impact of the Contract of Lease here assailed and of its
implementation, constitutes still another consideration of signi cance. In the case at bar,
the agreement if implemented will be practically nationwide in its scope and reach (the
PCSO-PGMC Contract is limited in its application to the Island of Luzon; but if the PCSO
Contracts with the other two [2] private "gaming management" corporations in respect of
the Visayas and Mindanao are substantially similar to PCSO's Contract with PGMC, then
the Contract before us may be said to be national indeed in its implications and
consequences). Necessarily, the amounts of money expected to be raised by the
proposed activities of the PCSO and PGMC will be very substantial, probably in the
hundreds of millions of pesos. It is not easy to conceive of a contract with greater and
more far-reaching consequences, literally speaking, for the country than the Contract of
Lease here involved. Thus, the subject matter of the petition is not something that the
Court may casually pass over as unimportant and as not warranting the expenditure of
significant judicial resources.
KAPUNAN, J., dissenting :
1. REMEDIAL LAW; SUPREME COURT; POWER OF PREVIEW, LIMITED. — Moral or legal
questions aside, I believe that there are unfortunately certain standards that have to be
followed in the exercise of this Court's awesome power of review before this Court could
even begin to assay the validity of the contract between the PCSO and the PGMC. This, in
spite of the apparent expansion of judicial power granted by Section 1 of Article VIII of the
1987 Constitution. It is fundamental that such standards be complied with before this
Court could even begin to explore the substantive issues raised by any controversy
brought before it, for no issue brought before this court could possibly be so fundamental
and paramount as to warrant a relaxation of the requisite rules for judicial review
developed by settled jurisprudence in order to avoid entangling this court in controversies
which properly belong to the legislative or executive branches of our government. The
potential harm to our system of government, premised on the concept of separation of
powers, by the Court eager to exercise its powers and prerogatives at every turn, cannot
be gainsaid. The Constitution does not mandate this Court to wield the power of judicial
review with excessive vigor and alacrity in every area or at every turn, except in appropriate
cases and controversies which meet established requirements for constitutional
adjudication. Article VIII, Sec. 1 of the Constitution notwithstanding, there are questions
which I believe are still beyond the pale of judicial power. Moreover, it is my considered
opinion that the instant petition does not meet the requirements set by this court for a
valid exercise of judicial review.
2. ID.; ID.; ID.; ACTUAL CASE AND CONTROVERSY, INDISPENSABLE. — Our Constitution
expressly de nes judicial power as including "the duty to settle actual cases and
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 a lack
or excess of jurisdiction on the part of any branch or instrumentality of the government."
This constitutional requirement for an actual case and controversy limits this Court's
power of review to precisely those suits between adversary litigants with real interests at
stake thus preventing it from making all sorts of hypothetical pronouncements on
abstract, contingent and amorphous issues. The Court will therefore not pass upon the
validity of an act of government or a statute passed by a legislative body without a
requisite showing of injury. A personal stake is essential, which absence renders our
pronouncements gratuitous and certainly violative of the constitutional requirement for
actual cases and controversies.

3. ID.; ID.; ID.; LOCUS STANDI , REQUIRED. — The requirement for standing based on
personal injury may of course be bypassed, as the petitioners in this case attempt to do,
by considering the case as a "taxpayer suit" which would thereby clothe them with the
personality they would lack under ordinary circumstances. However, the act assailed by
the petitioners on the whole involves the generation rather than disbursement of public
funds. In a line of cases starting from Pascual v. Secretary of Public Works "taxpayer suits"
have been understood to refer only to those cases where the act or statute assailed
involves the illegal or unconstitutional disbursement of public funds derived from taxation.
The main premise behind the "taxpayer suit" is that the pecuniary interest of the taxpayer is
involved whenever there is an illegal or wasteful use of public funds which grants them the
right to question the appropriation or disbursement on the basis of their contribution to
government funds. Since it has not been alleged that an illegal appropriation or
disbursement of a fund derived from taxation would be made in the instant case, I fail to
see how the petitioners in this case would be able to satisfy the locus standi requirement
on the basis of a "taxpayer's suit". This alone should inhibit this Court from proceeding with
the case at bench. The interest alleged and the potential injury asserted are far too general
and hypothetical for us to rush into a judicial determination of what to me appears to be
judgment better left to executive branch of our government.
4. CONSTITUTIONAL LAW; SEPARATION OF POWERS; SHOULD NOT BE SLIGHTLY

BRUSHED ASIDE ON THE MERE SUPPOSITION THAT ISSUE BEFORE THE HIGH TRIBUNAL
IS OF PARAMOUNT PUBLIC INTEREST. — This brings me to one more important point: The
idea that a norm of constitutional adjudication could be lightly brushed aside on the mere
supposition that an issue before the Court is of paramount public concern does great
harm to a democratic system which espouses a delicate balance between three separate
but co-equal branches of government. It is equally of paramount public concern, certainly
paramount to the survival of our democracy, that acts of the other branches of
government are accorded due respect by this Court. Such acts, done within their sphere of
competence, have been — and should always be - accorded with a presumption of
regularity. When such acts are assailed as illegal or unconstitutional, the burden falls upon
those who assail these acts to prove that they satisfy the essential norms of constitutional
adjudication, because when we nally proceed to declare an act of the executive or
legislative branch of our government unconstitutional or illegal, what we actually
accomplish is the thwarting of the will of the elected representatives of the people in the
executive or legislative branches of government. Notwithstanding Article VIII, Section 1 of
the Constitution, since the exercise of the power of judicial review by this Court is
inherently antidemocratic, this Court should exercise a becoming modesty in acting as a
revisor of an act of the executive or legislative branch. The tendency of a frequent and easy
resort to the function of judicial review, particularly in areas of economic policy has
become lamentably too common as to dwarf the political capacity of the people
expressed through their representatives in the policy making branches of government and
to deaden their sense of moral responsibility.
5. REMEDIAL LAW; SUPREME COURT; WITHOUT JURISDICTION OVER DISPUTES ON
VALIDITY OF CONTRACTS; CASE AT BAR. — The instant petition was brought to this Court
on the assumption that the issue at bench raises primarily constitutional issues. As it has
ultimately turned out, the core foundation of the petitioner's objections to the LOTTO
operations was based on the validity of the contract between the PCSO and the PGMC in
the light of Section 1 of R.A. 1169 as amended by B.P. Blg. 427. It might have been much
more appropriate for the issue to have taken its normal course in the courts below.
PUNO, J., dissenting :
1. CONSTITUTIONAL LAW; JUDICIAL POWER, DEFINED. — Judicial power includes the
duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
2. REMEDIAL LAW; ACTIONS; LOCUS STANDI ; REQUIREMENTS BEFORE ONE CAN
COME TO COURT TO LITIGATE A CONSTITUTIONAL ISSUE. — The phrase "actual
controversies involving rights which are legally demandable and enforceable" in Section 1
of Article VIII of the Constitution has acquired a cultivated meaning given by courts. It
spells out the requirements that must be satis ed before one can come to court to litigate
a constitutional issue. Our distinguished colleague, Mr. Justice Isagani A. Cruz, gives a
shorthand summary of these requirements when he states that no constitutional question
will be heard and decided by courts unless there is a showing of the following: . . . (1) there
must be an actual case or controversy; (2) the question of constitutionality must be raised
by the proper party; (3) the constitutional question must be raised at the earliest possible
opportunity; and (4) the decision of the constitutional question must be necessary to the
determination of the case itself.
3. ID.; ID.; ID.; RULE THEREON RELAXED BUT NOT ELIMINATED. — The complexion of
the rule on locus standi has been undergoing a change. Mr. Justice Cruz has observed the
continuing relaxation of the rule on standing. Last July 30, 1993, we further relaxed the rule
on standing in Oposa, et al. v. Hon. Fulgencio S. Factoran, Jr., where we recognized the
locus standi of minors representing themselves as well as generations unborn to protect
their constitutional right to a balanced and healthful ecology. I am perfectly at peace with
the drift of our decisions liberalizing the rule on locus standi. The once stubborn
disinclination to decide constitutional issues due to lack of locus standi is incompatible
with the expansion of judicial power mandated in section 1 of Article VIII of the
Constitution, i.e., "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." As we held thru the ground breaking ponencia of Mr. Justice Cruz in Daza
v. Singson , this provision no longer precludes the Court from resolving political questions
in proper cases. But even perusing this provision as a constitutional warrant for the court
to enter the once forbidden political thicket, it is clear that the requirement of locus standi
has not been jettisoned by the Constitution for it still commands courts in no uncertain
terms to settle only "actual controversies involving rights which are legally demandable
and enforceable." Stated otherwise, courts are neither free to decide all kinds of cases
dumped into their laps nor are they free to open their doors to all parties or entities
claiming a grievance.
4. ID.; ID.; ID.; ID.; RATIONALE. — The rationale for this constitutional requirement of
locus standi is by no means tri e. It is intended "to assure a vigorous adversary
presentation of the case, and, perhaps more importantly to warrant the judiciary's
overruling the determination of a coordinate, democratically elected organ of government."
It thus goes to the very essence of representative democracies. A lesser but not
insigni cant reason for screening the standing of persons who desire to litigate
constitutional issues is economic in character. Given the sparseness of our resources, the
capacity of courts to render ef cient judicial service to our people is severely limited. For
courts to indiscriminately open their doors to all types of suits and suitors is for them to
unduly overburden their dockets, and ultimately render themselves ineffective dispensers
of justice. To be sure, this is an evil that clearly confronts our judiciary today.
5. ID.; ID.; ID.; PETITIONERS IN CASE AT BAR HAVE NOT SUSTAINED OR ARE IN
IMMEDIATE DANGER OF SUSTAINING AN INJURY AS A RESULT OF THE SAID CONTRACT
OF LEASE. — Prescinding from these premises, and with great reluctance, I am not
prepared to concede the standing to sue of petitioners. On a personal level, they have not
shown the elemental injury in fact which will endow them with a standing to sue. It must be
stressed that petitioners are in the main, seeking the nullity not of a law but of a Contract
of Lease. Not one of the petitioners is a party to the Contract of Lease executed between
PCSO and PGMC. None of the petitioners participated in the bidding, and hence they are
not losing bidders. They are complete strangers to the contract. They stand neither to gain
nor to lose economically by its enforcement. It seems to me unusual that an unaffected
third party to a contract could be allowed to question its validity. Petitioner Kilosbayan
cannot justify this of cious interference on the ground of its commitment to "truth, justice
and national renewal." Such commitment to truth, justice and national renewal, however
noble it may be, cannot give Kilosbayan a roving commission to check the validity of
contracts entered into by the government and its agencies. Kilosbayan is not a private
commission on audit. Neither can I perceive how the other petitioners can be personally
injured by the Contract of Lease between PCSO and PGMC even if petitioner Salonga
assails as unmitigated fraud the statistical probability of winning the lotto as he compared
it to the probability of being struck twice by lightning. The reason is obvious: none of the
petitioners will be exposed to this alleged fraud for all of them profess to abjure playing
the lotto. It is self-evident that lotto cannot physically or spiritually injure him who does not
indulge in it.
6. ID.; ID.; ID.; TAXPAYER'S SUIT; CASE AT BAR DOES NOT INVOLVE EXPENDITURE OF
PUBLIC MONEY DERIVED FROM TAXATION. — Petitioners also contend they have locus
standi as taxpayers. But the case at bench does not involve any expenditure of public
money on the part of PCSO. In fact, paragraph 2 of the Contract of Lease provides that it is
PGMC that shall build, furnish, and maintain at its own expense and risk the facilities for
the On-Line Lottery System of PCSO and shall bear all maintenance and other costs. Thus,
PGMC alleged it has already spent P245M in equipment and xtures and would be
investing close to P1 billion to supply adequately the technology and other requirements
of PCSO. If no tax money is being illegally de ected in the Contract of Lease between
PCSO and PGMC, petitioners have no standing to impugn its validity as taxpayers.
7. ID.; ID.; ID.; CITIZEN SUIT; REQUIREMENTS. — Next, petitioners plead their standing
as "concerned citizens." As citizens, petitioners are pleading that they be allowed to
advocate the constitutional rights of other persons who are not before the court and
whose protection is allegedly their concern. A citizen qua citizen suit urges a greater
relaxation of the rule on locus standi. I feel no aversion to the further relaxation of the rule
on standing to accommodate what in other jurisdiction is known as an assertion of jus
tertii in constitutional litigation provided the claimant can demonstrate: (1) an injury in fact
to himself, and (2) the need to prevent the erosion of a preferred constitutional right of a
third person. As stressed before, the rst requirement of injury in fact cannot be
abandoned for it is an essential element for the exercise of judicial power. The second
requirement recognized society's right in the protection of certain preferred rights in the
Constitution even when the rightholders are not before the court. The theory is that their
dilution has a substantial fall out detriment to the rights of others, hence the latter can
vindicate them.

8. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. — In the case at bench, it is dif cult to see how
petitioners can satisfy these two requirements to maintain a jus tertii claim. They claim
violation of two constitutional provisions, to wit: "Section 1, Article XIII and Section 11,
Article XII." Section 1, Article XIII of the Constitution cannot be the matrix of petitioners' jus
tertii claim for it expresses no more than a policy direction to the legislative in the
discharge of its ordained duty - to 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. Whether the act of the legislature in amending the
charter of PCSO by giving it the authority to conduct lotto and whether the Contract of
Lease entered into between PCSO and PGMC are incongruent to the policy direction of this
constitutional provision is a highly debatable proposition and can be endlessly argued.
Respondents steadfastly insist that the operation of lotto will increase the revenue base of
PCSO and enable government to provide a wider range of social services to the people.
They also allege that the operation of high-tech lotto will eradicate illegal jueteng .
Petitioners are scandalized by this submission. They dismiss gambling as evil per se and
castigate government for attempting to correct a wrong by committing another wrong. In
any event, the proper forum for this debate, however cerebrally exciting it may be, is not
this court but congress.
9. ID.; ID.; ID.; NOT CONFERRED BY MERELY ADVOCATING THE RIGHTS OF
HYPOTHETICAL THIRD PARTIES NOT BEFORE THE COURT. — I am not also convinced that
petitioners can justify their locus standi to advocate the rights of hypothetical third parties
not before the court by invoking the need to keep inviolate Section 11, Article XII of the
Constitution which imposes a nationality requirement on operators of a public utility. For
even assuming arguendo that PGMC is a public utility, still, the records do not at the
moment bear out the claim of petitioners that PGMC is a foreign owned and controlled
corporation. This factual issue remains unsettled and is still the subject of litigation by the
parties in the Securities and Exchange Commission. We are not at liberty to anticipate the
verdict on this contested factual issue. But over and above this consideration, I
respectfully submit that this constitutional provision does not confer on third parties any
right of a preferred status comparable to the Bill of Rights whose dilution will justify
petitioners to vindicate them in behalf of its rightholders. The legal right of hypothetical
third parties they profess to advocate is to my mind too impersonal, too unsubstantial, too
indirect, too amorphous to justify their access to this Court and the further lowering of the
constitutional barrier of locus standi.
10. ID.; ID.; ID.; NOT CONFERRED BY MERE FACT OF BEING LEGISLATORS. — Again,
with regret, I do not agree that the distinguished status of some of the petitioners as
lawmakers gives them the appropriate locus standi. I cannot perceive how their
constitutional rights and prerogatives as legislators can be adversely affected by the
contract in question. Their right to enact laws for the general conduct of our society
remains unimpaired and undiminished. Their status as legislators, notwithstanding, they
have to demonstrate that the said contract has caused them to suffer a personal, direct,
and substantial injury in fact. They cannot simply advance a generic grievance in common
with the people in general.
11. ID.; ID.; ID.; NOT A PLAIN PROCEDURAL RULE BUT A CONSTITUTIONAL
REQUIREMENT. — I am not unaware of our ruling in De Guia v. Comelec, G.R. No. 104712,
May 6, 1992, 208 SCRA 420. It is my respectful submission, however, that we should re-
examine de Guia. It treated the rule on locus standi as a mere procedural rule. It is not a
plain procedural rule but a constitutional requirement derived from Section 1, Article VIII of
the Constitution which mandates courts of justice to settle only "actual controversies
involving rights which are legally demandable and enforceable." The phrase has been
construed since time immemorial to mean that a party in a constitutional litigation must
demonstrate a standing to sue. By downgrading the requirement on locus standi as a
procedural rule which can be discarded in the name of public interest, we are in effect
amending the Constitution by judicial fiat.
12. ID.; ID.; ID.; SHOULD NOT BE BRUSHED ASIDE WHERE A CASE RAISES AN
IMPORTANT ISSUE. — De Guia would also brush aside the rule on locus standi if a case
raises an important issue. In this regard, I join the learned observation of Mr. Justice
Feliciano: "that it is not enough for the Court simply to invoke 'public interest' or even
paramount considerations of national interest,' and to say that the speci c requirements
of such public interest can only be ascertained on a 'case to case' basis. For one thing,
such an approach is not intellectually satisfying. For another, such an answer appears to
come too close to saying that locus standi exists whenever at least a majority of the
Members of this Court participating in a case feel that an appropriate case for judicial
intervention has arisen."
PADILLA, J., concurring :
1. REMEDIAL LAW; ACTIONS; PARTIES; PROCEDURAL RULE ON LOCUS STANDI
RELAXED WHERE ISSUES RAISED ARE OF GREAT IMPORTANCE; CASE AT BAR. —
Considering the importance of the issue involved, concerning as it does the political
exercise of qualified voters affected by the apportionment, and petitioner alleging abuse of
discretion and violation of the Constitution by respondent, We resolved to brush aside the
question of procedural in rmity, even as We perceive the petition to be one of declaratory
relief. We so held similarly through Mr. Justice Edgardo L. Paras in Osmeña vs.
Commission on Elections." (De Guia vs. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA
420) I view the present case as falling within the De Guia case doctrine. For, when the
contract of lease in question seeks to establish and operate a nationwide gambling
network with substantial if not controlling foreign participation, then the issue is of
paramount national interest and importance as to justify and warrant a relaxation of the
above-mentioned procedural rule on locus standi.
SWEEPSTAKES OFFICE (PCSO); PROHIBITED FROM UNDERTAKING OR ENGAGING IN
LOTTERIES IN "COLLABORATION, ASSOCIATION OR JOINT VENTURES WITH OTHERS;
RATIONALE. — It is at once clear from Republic Act No. 1109 as amended by BP. No. 42
that, while the PCSO charter allows the PCSO to itself engage in lotteries, it does not
however permit the PCSO to undertake or engage in lotteries in "collaboration, association
or joint venture" with others. The palpable reason for this prohibition is, that PCSO should
not and cannot be made a vehicle for an otherwise prohibited foreign or domestic entity to
engage in lotteries (gambling activities) in the Philippines.
3. ID.; ID.; ID.; ID.; LEASE CONTRACT ENTERED INTO BY PCSO WITH PGMC, A JOINT
VENTURE. — The core question then is whether the lease contract between PCSO and
PGMC is a device whereby PCSO will engage in lottery in collaboration, association or joint
venture with another, i.e. PGMC. On a slightly different plane and, perhaps simpli ed, I
consider the agreement or arrangement between the PCSO and PGMC a joint venture
because each party to the contract contributes its share in the enterprise or project. PGMC
contributes its facilities, equipment and know-how (expertise). PCSO contributes (aside
from its charter) the market, directly or through dealers — and this to me is most
important — in the totality or mass of the Filipino gambling elements who will invest in
lotto tickets. PGMC will get its 4.9% of gross receipts (with assumption of certain risks in
the course of lotto operations); the residue of the whole exercise will go to PCSO. To any
person with a minimum of business know-how, this a joint venture between PCSO and
PGMC, plain and simple. But assuming ex gratia argumenti that such arrangement
between PCSO and PGMC is not a joint venture between the two of them to install and
operate an "on-line hi-tech lotto system" in the country, it can hardly be denied that it is, at
the very least, an association or collaboration between PCSO and PGMC. For one cannot
do without the other in the installation, operation and, most importantly, marketing of the
entire enterprise or project in this country.
4. ID.; ID.; ID.; ID.; ID.; CONTRACT, NULL AND VOID. — Indeed, the contract of lease in
question is a clear violation of Republic Act No. 1169 as amended by BP No.. 42 (the PCSO
charter). Having arrived at the conclusion that the contract of lease in question between
the PCSO and PGMC is illegal and, therefore, invalid. I nd it unnecessary to dwell on the
other issues raised in the pleadings and arguments of the parties.
VITUG, J., Separate Opinion:
1. CONSTITUTIONAL LAW; COURTS; JUDICIAL POWER, CONSTRUED. — Judicial power
encompasses both an authority and duty to resolve "actual controversies involving rights
which are legally demandable and enforceable" (Article VIII, Section 1, 1987 Constitution).
As early as the case of Lamb vs. Phipps, this Court ruled: "Judicial power, in its nature, is
the power to hear and decide causes pending between parties who have the right to sue in
the courts of law and equity."
2. REMEDIAL LAW; ACTIONS; PARTIES; LOCUS STANDI ; DEFINED. — An essential part
of, and corollary to, this principle is the locus standi of a party litigant, referring to one who
is directly affected by, and whose interest is immediate and substantial in, the controversy.
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 his
invocation of the court's jurisdiction and to justify the exercise of the court's remedial
powers in his behalf. If it were otherwise, the exercise of that power can easily become too
unwieldy by its sheer magnitude and scope to a point that may, in no small degree,
adversely affect its intended essentiality, stability and consequentiality.
3. ID.; ID.; ID.; ID.; TAXPAYER'S SUIT, AN EXCEPTION THERETO; BASIS. — Locus standi,
nevertheless, admits of the so-called "taxpayer's suit." Taxpayer's suits are actions or
proceedings initiated by one or more taxpayers in their own behalf or, conjunctively, in
representation of others similarly situated for the purpose of declaring illegal or
unauthorized certain acts of public of cials which are claimed to be injurious to their
common interests as such taxpayers (Cf. 71 Am Jur 2d., 179-180). The principle is
predicated upon the theory that taxpayers are, in equity, the cestui que trust of tax funds,
and any illegal diminution thereof by public of cials constitutes a breach of trust even as it
may result in an increased burden on taxpayers (Haddock vs. Board of Public Education,
86 A 2d 157; Henderson vs. McCormick, 17 ALR 2d 470).
4. ID.; ID.; ID.; ID.; ID.; CASE MUST INVOLVE ILLEGAL DISBURSEMENT OF PUBLIC
FUNDS DERIVED FROM TAXATION. — A "taxpayer's suit," enough to confer locus standi to
a party, we have held before, is understood to be a case where the act complained of
directly involves illegal disbursement of public funds derived from taxation. It is not
enough that the dispute concerns public funds. A contrary rule could easily lead to a
limitless application of the term "taxpayer's suit," already by itself a broad concept, since a
questioned act of government would almost so invariably entail, as a practical matter, a
financial burden of some kind.
5. CONSTITUTIONAL LAW; COURTS; JUDICIAL POWER, DEFINED. — A provision which
has been introduced by the 1987 Constitution is a de nition, for the rst time in our
fundamental law, of the term "judicial power," as such authority and duty of courts of
justice "to settle actual controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a grave abuse of discretion,
amounting to lack or excess of jurisdiction, on the part of any branch or instrumentality of
the Government" (Article VIII, Section 1, Constitution).
6. REMEDIAL LAW; ACTIONS; PARTIES; RULE ON LOCUS STANDI , JURISDICTIONAL. —
While any act of government, be it executive in nature or legislative in character, may be
struck down and declared a nullity either because it contravenes an express provision of
the Constitution or because it is perceived and found to be attended by or the result of
grave abuse of discretion, amounting to lack or excess of jurisdiction, that issue, however,
must rst be raised in a proper judicial controversy. The Court's authority to look into and
grant relief in such cases would necessitate locus standi on the part of party litigants. This
requirement, in my considered view, is not merely procedural or technical but goes into the
essence of jurisdiction and the competence of courts to take cognizance of justiciable
disputes.
7. ID.; SUPREME COURT; WITHOUT JURISDICTION TO RESOLVE FACTUAL ISSUES;
CASE AT BAR. — A further set-back in entertaining the petition is that it unfortunately
likewise strikes at factual issues. The allegations to the effect that irregularities have been
committed in the processing and evaluation of the bids to favor respondent PGMC; that
the Malacañang Special Review Committee did not verify warranties embodied in the
contract; that the operation of telecommunication facilities is indispensable in the
operation of the lottery system; the involvement of multi-national corporations in the
operation of the on-line "hi-tech" lottery system, and the like, require the submission of
evidence. This Court is not a trier of facts, and it cannot, at this time, resolve the above
issues. Just recently, the Court has noted petitioners' manifestation of its petition with the
Securities and Exchange Commission "for the nulli cation of the General Information
Sheets of PGMC" in respect particularly to the nationality holdings in the corporation. The
doctrine of primary jurisdiction would not justify a disregard of the jurisdiction of, nor
would it permit us to now preempt, said Commission on the matter.
8. CONSTITUTIONAL LAW; SUPREME COURT; POWER OF REVIEW, LIMITED. — The
Court must recognize the limitations of its own authority. Courts neither legislate nor
ignore legal mandates. Republic Act No. 1169, as amended, explicitly gives public
respondent PCSO the authority and power "to hold and conduct sweepstakes races,
lotteries, and other similar activities. In People vs. Dionisio, cited by the petitioners
themselves, we remarked: "What evils should be corrected as pernicious to the body
politic, and how correction should be done, is a matter primarily addressed to the
discretion of the legislative department, not of the courts . . ." The constraints on judicial
power are clear. I feel, the Court must thus beg off, albeit not without reluctance, from
giving due course to the instant petition.
DECISION
DAVIDE, JR. , J : p
This is a special civil action for prohibition and injunction, with a prayer for a temporary
restraining order and preliminary injunction, which seeks to prohibit and restrain the
implementation of the "Contract of Lease" executed by the Philippine Charity Sweepstakes
Of ce (PCSO) and the Philippine Gaming Management Corporation (PGMC) in connection
with the on-line lottery system, also known as "lotto."
Petitioner Kilosbayan, Incorporated (KILOSBAYAN) avers that it is a non-stock domestic
corporation composed of civic-spirited citizens, pastors, priests, nuns, and lay leaders who
are committed to the cause of truth, justice, and national renewal. The rest of the
petitioners, except Senators Freddie Webb and Wigberto Tañada and Representative Joker
P. Arroyo, are suing in their capacities as members of the Board of Trustees of
KILOSBAYAN and as taxpayers and concerned citizens. Senators Webb and Tañada and
Representative Arroyo are suing in their capacities as members of Congress and as
taxpayers and concerned citizens of the Philippines.
The pleadings of the parties disclose the factual antecedents which triggered off the ling
of this petition.
Pursuant to Section 1 of the charter of the PCSO (R.A. No. 1169, as amended by B.P. Blg.
42) which grants it the authority to hold and conduct "charity sweepstakes races, lotteries
and other similar activities," the PCSO decided to establish an on-line lottery system for the
purpose of increasing its revenue base and diversifying its sources of funds. Sometime
before March 1993, after learning that the PCSO was interested in operating an on-line
lottery system, the Berjaya Group Berhad, "a multinational company and one of the ten
largest public companies in Malaysia," long "engaged in, among others, successful lottery
operations in Asia, running both Lotto and Digit games, thru its subsidiary, Sports Toto
Malaysia," with its "af liate, the International Totalizator Systems, Inc., . . . an American
public company engaged in the international sale or provision of computer systems,
softwares, terminals, training and other technical services to the gaming industry,"
"became interested to offer its services and resources to PCSO." As an initial step, Berjaya
Group Berhad (through its individual nominees) organized with some Filipino investors in
March 1993 a Philippine corporation known as the Philippine Gaming Management
Corporation (PGMC), which "was intended to be the medium through which the technical
and management services required for the project would be offered and delivered to
PCSO." 1
Before August 1993, the PCSO formally issued a Request for Proposal (RFP) for the Lease
Contract of an on-line lottery system for the PCSO. 2 Relevant provisions of the RFP are the
following:
"1. EXECUTIVE SUMMARY
xxx xxx xxx
1.2 PCSO is seeking a suitable contractor which shall build, at its own
expense, all the facilities ('Facilities') needed to operate and maintain a
nationwide on-line lottery system. PCSO shall lease the Facilities for a
xed percentage of quarterly gross receipts. All receipts from ticket sales
shall be turned over directly to PCSO. All capital, operating expenses and
expansion expenses and risks shall be for the exclusive account of the
Lessor.

xxxx xxx xxx
1.4 The lease shall be for a period not exceeding fifteen (15) years.
1.5 The Lessor is expected to submit a comprehensive nationwide lottery
development plan ('Development Plan') which will include the game, the
marketing of the games, and the logistics to introduce the games to all the
cities and municipalities of the country within five (5) years.
xxx xxx xxx

1.7 The Lessor shall be selected based on its technical expertise, hardware
and software capability, maintenance support, and nancial resources.
The Development Plan shall have a substantial bearing on the choice of
the Lessor. The Lessor shall be a domestic corporation, with at least sixty
percent (60%) of its shares owned by Filipino shareholders. . .
The of ce of the President, the National Disaster Control Coordinating
Council, the Philippine National Police, and the National Bureau of
Investigation shall be authorized to use the nationwide
telecommunications system of the Facilities Free of Charge.
1.8 Upon expiration of the lease, the Facilities shall be owned by PCSO
without any additional consideration. 3
xxx xxx xxx
2.2 OBJECTIVES
The objectives of PCSO in leasing the Facilities from a private entity are as
follows:
xxx xxx xxx

2.2.2 Enable PCSO to operate a nationwide on-line lottery system at no
expense or risk to the government.
xxx xxx xxx

2.4 DUTIES AND RESPONSIBILITIES OF THE LESSOR
xxx xxx xxx

2.4.2 THE LESSOR
The Proponent is expected to furnish and maintain the Facilities,

including the personnel needed to operate the computers, the
communications network and sales of ces under a build-lease
basis. The printing of tickets shall be undertaken under the
supervision and control of PCSO. The Facilities shall enable PCSO
to computerize the entire gaming system.
The Proponent is expected to formulate and design consumer-

oriented Master Games Plan suited to the marketplace, especially
geared to Filipino gaming habits and preferences. In addition, the
Master Games Plan is expected to include to Product Plan for each
game and explain how each will be introduced into the market. This
will be an integral part of the Development Plan which PCSO will
require from the Proponent.
xxx xxx xxx
The Proponent is expected to provide upgrades to modernize the

entire gaming over the life of the lease contract.
The Proponent is expected to provide technology transfer to PCSO
personnel. 4
xxx xxx xxx

7. GENERAL GUIDELINES FOR PROPONENTS
xxx xxx xxx
Finally, the Proponent must be able to stand the acid test of proving that it is
an entity able to take on the role of responsible maintainer of the on-line
lottery system, and able to achieve PCSO's goal of formalizing an on-line
lottery system to achieve its mandated objective. 5
xxx xxx xxx

16. DEFINITION OF TERMS
Facilities: All capital equipment, computers, terminals, software, nationwide
telecommunication network, ticket sales of ces, furnishings, and xtures;
printing costs; costs of salaries and wages; advertising and promotion
expenses; maintenance costs; expansion and replacement costs; security
and insurance, and all other related expenses needed to operate
nationwide on-line lottery system." 6
Considering the above citizenship requirement, the PGMC claims that the Berjaya Group
"undertook to reduce its equity stakes in PGMC to 40%," by selling 35% out of the original
75% foreign stockholdings to local investors.
On 15 August 1993, PGMC submitted its bid to the PCSO. 7
The bids were evaluated by the Special Pre-Quali cation Bids and Awards Committee
(SPBAC) for the on-line lottery and its Bid Report was thereafter submitted to the Of ce of
the President. 8 The submission was preceded by complaints by the Committee's
Chairperson, Dr. Mita Pardo de Tavera. 9
On 21 October 1993, the Of ce of the President announced that it had given the
respondent PGMC the go-signal to operate the country's on-line lottery system and that
the corresponding implementing contract would be submitted not later than 8 November
1993 "for nal clearance and approval by the Chief Executive." 1 0 This announcement was
published in the Manila Standard, Philippine Daily Inquirer, and the Manila Times on 29
October 1993. 1 1
On 4 November 1993, KILOSBAYAN sent an open letter to President Fidel V. Ramos
strongly opposing the setting up of the on-line lottery system on the basis of serious
moral and ethical considerations. 1 2
At the meeting of the Committee on Games and Amusements of the Senate on 12
November 1993, KILOSBAYAN reiterated its vigorous opposition to the on-line lottery on
account of its immorality and illegality. 1 3
On 19 November 1993, the media reported that despite the opposition, "Malacañang will
push through with the operation of an on-line lottery system nationwide" and that it is
actually the respondent PCSO which will operate the lottery while the winning corporate
bidders are merely "lessors." 1 4
On 1 December 1993, KILOSBAYAN requested copies of all documents pertaining to the
lottery award from Executive Secretary Teo sto Guingona, Jr. In his answer of 17
December 1993, the Executive Secretary informed KILOSBAYAN that the requested
documents would be duly transmitted before the end of the month. 1 5 However, on that
same date, an agreement denominated as "Contract of Lease" was nally executed by
respondent PCSO and respondent PGMC. 1 6 The President, per the press statement
issued by the Office of the President, approved it on 20 December 1993. 1 7
In view of their materiality and relevance, we quote the following salient provisions of the
Contract of Lease:
"1. DEFINITIONS
The following words and terms shall have the following respective meaning:
1.1 Rental Fee — Amount to be paid by PCSO to the LESSOR as
compensation for the ful llment of the obligations of the LESSOR
under this Contract, including, but not limited to the Lease of the
Facilities.
xxx xxx xxx

1.3 Facilities — All capital equipment, computers, terminals, software
(including source codes for the On-Line Lottery application software
for the terminals, telecommunications and central systems),
technology, intellectual property rights, telecommunications
network, and furnishings and fixtures.
1.4 Maintenance and Other Costs — All costs and expenses relating to
printing, manpower, salaries and wages, advertising and promotion,
maintenance expansion and replacement, security and insurance,
and all other related expenses needed to operate an On-Line Lottery
System, which shall be for the account of the LESSOR. All expenses
relating to the setting-up, operation and maintenance of ticket sales
offices of dealers and retailers shall be borne by PCSO's dealers and
retailers.
1.5 Development Plan — The detailed plan of all games, the marketing
thereof, number of players, value of winnings and the logistics
required to introduce the games, including the Master Games Plan
as approved by PCSO, attached hereto as Annex "A", modi ed as
necessary by the provisions of this Contract.
xxx xxx xxx
1.8 Escrow Deposit — The proposal deposit in the sum of Three

Hundred Million Pesos (P300,000,000.00) submitted by the LESSOR
to PCSO pursuant to the requirements of the Request for Proposals.
2. SUBJECT MATTER OF THE LEASE

The LESSOR shall build, furnish and maintain at its own expense and risk
the Facilities for the On-Line Lottery System of PCSO in the Territory on an
exclusive basis. The LESSOR shall bear all Maintenance and Other Costs
as defined herein.
xxx xxx xxx

3. RENTAL FEE
For and in consideration of the performance by the LESSOR of its

obligations herein, PCSO shall pay LESSOR a xed Rental Fee equal to
four point nine percent (4.9%) of gross receipts from ticket sales, payable
net of taxes required by law to be withheld, on a semi-monthly basis.
Goodwill, franchise and similar fees shall belong to PCSO.
4. LEASE PERIOD
The period of the lease shall commence ninety (90) days from the date of
effectivity of this Contract and shall run for a period of eight (8) years
thereafter, unless sooner terminated in accordance with this Contract.
5. RIGHTS AND OBLIGATIONS OF PCSO AS OPERATOR OF THE ON-LINE

LOTTERY SYSTEM
PCSO shall be the sole and individual operator of the On-Line Lottery
System. Consequently:
5.1 PCSO shall have sole responsibility to decide whether to

implement, fully or partially, the Master Games Plan of the LESSOR.
PCSO shall have the sole responsibility to determine the time for
introducing new games to the market. The Master Games Plan
included in Annex "A" hereof is hereby approved by PCSO.
5.2 PCSO shall have control over revenues and receipts of whatever
nature from the On-Line Lottery System. After paying the Rental Fee
to the LESSOR, PCSO shall have exclusive responsibility to
determine the Revenue Allocation Plan; Provided, that the same
shall be consistent with the requirement of R.A. No. 1169, as
amended, which xes a prize fund of fty ve percent (55%) on the
average.
5.3 PCSO shall have exclusive control over the printing of tickets,
including but not limited to the design, text, and contents thereof.
5.4 PCSO shall have sole responsibility over the appointment of

dealers or retailers throughout the country. PCSO shall appoint the
dealers and retailers in a timely manner with due regard to the
implementation timetable of the On-Line Lottery System. Nothing
herein shall preclude the LESSOR from recommending dealers or
retailers for appointment by PCSO, which shall act on said
recommendation within forty-eight (48) hours.
5.5 PCSO shall designate the necessary personnel to monitor and

audit the daily performance of the On-Line Lottery System. For this
purpose, PCSO designees shall be given, free of charge, suitable and
adequate space, furniture and xtures, in all of ces of the LESSOR,
including but not limited to its headquarters, alternate site, regional
and area offices.
5.6 PCSO shall have the responsibility to resolve, and exclusive
jurisdiction over, all matters involving the operation of the On-Line
Lottery System not otherwise provided in this Contract.
5.7 PCSO shall promulgate procedural and coordinating rules

governing all activities relating to the On-Line Lottery System.
5.8 PCSO will be responsible for the payment of prize monies,
commissions to agents and dealers, and taxes and levies (if any)
chargeable to the operator of the On-Line Lottery System. The
LESSOR will bear all other Maintenance and Other Costs, except as
provided in Section 1.4.
5.9 PCSO shall assist the LESSOR in the following:
5.9.1 Work permits for the LESSOR's staff;

5.9.2 Approvals for importation of the Facilities;
5.9.3 Approvals and consents for the On-Line Lottery System;

and
5.9.4 Business and premises licenses for all of cers of the

LESSOR and licenses for the telecommunications network.
5.10 In the event that PCSO shall pre-terminate this Contract or

suspend the operation of the On-Line Lottery System, in breach of
this Contract and through no fault of the LESSOR, PCSO shall
promptly, and in any event not later than sixty (60) days, reimburse
the LESSOR the amount of its total investment cost associated with
the On-Line Lottery System, including but not limited to the cost of
the Facilities, and further compensate the LESSOR for loss of
expected net pro t after tax, computed over the unexpired term of
the lease.
6. DUTIES AND RESPONSIBILITIES OF THE LESSOR
The LESSOR is one of not more than three (3) lessors of similar facilities for
the nationwide On-Line Lottery System of PCSO. It is understood that the
rights of the LESSOR are primarily those of a lessor of the Facilities, and
consequently, all rights involving the business aspects of the use of the
Facilities are within the jurisdiction of PCSO. During the term of the lease,
the LESSOR shall:
6.1 Maintain and preserve its corporate existence, rights and privileges,
and conduct its business in an orderly, ef cient, and customary
manner.
6.2 Maintain insurance coverage with insurers acceptable to PCSO on
all Facilities.
6.3 Comply with all laws, statues, rules and regulations, orders and
directives, obligations and duties by which it is legally bound.

6.4 Duly pay and discharge all taxes, assessments and government
charges now and hereafter imposed of whatever nature that may be
legally levied upon it.
6.5 Keep all the Facilities in fail safe condition and, if necessary,
upgrade, replace and improve the Facilities from time to time as
new technology develops, in order to make the On-Line Lottery
System more cost-effective and/or competitive, and as may be
required by PCSO. PCSO shall not impose such requirements
unreasonably nor arbitrarily.
6.6 Provide PCSO with management terminals which will allow real-
time monitoring of the On-Line Lottery System.
6.7 Upon effectivity of this Contract, commence the training of PCSO
and other local personnel and the transfer of technology and
expertise, such that at the end of the term of this Contract, PCSO will
be able to effectively take-over the Facilities and ef ciently operate
the On-Line Lottery System.
6.8 Undertake a positive advertising and promotions campaign for
both institutional and product lines without engaging in negative
advertising against other lessors.
6.9 Bear all expenses and risks relating to the Facilities including, but
not limited to, Maintenance and Other Costs and;
xxx xxx xxx
6.10 Bear all risks if the revenues from ticket sales, on an annualized
basis, are insufficient to pay the entire prize money.
6.11 Be, and is hereby, authorized to collect and retain for its own
account, a security deposit from dealers and retailers, in an amount
determined with the approval of PCSO, in respect of equipment
supplied by the LESSOR. PCSO's approval shall not be
unreasonably withheld . . .
6.12 Comply with procedural and coordinating rules issued by PCSO.
7. REPRESENTATIONS AND WARRANTIES

The LESSOR represents and warrants that:
7.1 The LESSOR is a corporation duly organized and existing under the
laws of the Republic of the Philippines, at least sixty percent (60%)
of the outstanding capital stock of which is owned by Filipino
shareholders. The minimum required Filipino equity participation
shall not be impaired through voluntary or involuntary transfer,
disposition, or sale of shares of stock by the present stockholders.
7.2 The LESSOR and its Af liates have the full corporate and legal
power and authority to own and operate their properties and to carry
on their business in the place where such properties are now or may
be conducted. . .
7.3 The LESSOR has or has access to all the nancing and funding
requirements to promptly and effectively carry out the terms of this
Contract. . .
7.4 The LESSOR has or has access to all the managerial and technical
expertise to promptly and effectively carry out the terms of this
Contract. . .
xxx xxx xxx

10. TELECOMMUNICATIONS NETWORK
The LESSOR shall establish a telecommunications network that will connect
all municipalities and cities in the Territory in accordance with, at the
LESSOR's option, either of the LESSOR's proposals (or a combinations of
both such proposals) attached hereto as Annex "B," and under the
following PCSO schedule:
xxx xxx xxx
PCSO may, at its option, require the LESSOR to establish the

telecommunications network in accordance with the above Timetable in
provinces where the LESSOR has not yet installed terminals. Provided, that
such provinces have existing nodes. Once a municipality or city is serviced
by land lines of a licensed public telephone company, and such lines are
connected to Metro Manila, then the obligation of the LESSOR to connect
such municipality or city through a telecommunications network shall
cease with respect to such municipality or city.
The voice facility will cover the four of ces of the Of ce of the President,
National Disaster Control Coordinating Council, Philippine National Police
and the National Bureau of Investigation, and each city and municipality in
the Territory except Metro Manila, and those cities and municipalities
which have easy telephone access from these four of ces. Voices calls
from the four of ces shall be transmitted via radio or VSAT to the remote
municipalities which will be connected to this voice facility through wired
network or by radio. The facility shall be designed to handle four private
conversations at any one time.
xxx xxx xxx
13. STOCK DISPERSAL PLAN

Within two (2) years from the effectivity of this Contract, the LESSOR shall
cause itself to be listed in the local stock exchange and offer at least
twenty five percent (25%) of its equity to the public.
14. NON-COMPETITION
The LESSOR shall not, directly or indirectly, undertake any activity or
business in competition with or adverse to the On-Line Lottery System of
PCSO unless it obtains the latter's prior written consent thereto.
15. HOLD HARMLESS CLAUSE
15.1 The LESSOR shall at all times protect and defend, at its cost and
expense, PCSO from and against any and all liabilities and claims
for damages and/or suits for or by reason of any deaths of, or any
injury or injuries to any person or persons, or damages to property of
any kind whatsoever, caused by the LESSOR, its subcontractors, its
authorized agents or employees, from any cause or causes
whatsoever.
15.2 The LESSOR hereby covenants and agrees to indemnify and hold
PCSO harmless from all liabilities, charges, expenses (including
reasonable counsel fees) and costs on account of or by reason of
any such death or deaths, injury or injuries, liabilities, claims, suits or
losses caused by the LESSOR's fault or negligence.
15.3 The LESSOR at all times protect and defend, at its own cost and
expense, its title to the facilities and PCSO's interest therein from
and against any and all claims for the duration of the Contract until
transfer to PCSO of ownership of the serviceable Facilities.
16. SECURITY
16.1 To ensure faithful compliance by the LESSOR with the terms of
the Contract, the LESSOR shall secure a Performance Bond from a
reputable insurance company or companies acceptable to PCSO.
16.2 The Performance Bond shall be in the initial amount of Three
Hundred Million Pesos (P300,000,000.00), to its U.S. dollar
equivalent, and shall be renewed to cover the duration of the
Contract. However, the Performance Bond shall be reduced
proportionately to the percentage of unencumbered terminals
installed; Provided, that the Performance Bond shall in no case be
less than One Hundred Fifty Million Pesos (P150,000,000.00).
16.3 The LESSOR may at its option maintain its Escrow Deposit as the
Performance Bond. . .
17. PENALTIES
17.1 Except as may be provided in Section 17.2, should the LESSOR

fail to take remedial measures within seven (7) days, and rectify the
breach within thirty (30) days, from written notice by PCSO of any
wilfull or grossly negligent violation of the material terms and
conditions of this Contract, all unencumbered Facilities shall
automatically become the property of PCSO without consideration
and without need for further notice or demand by PCSO. The
Performance Bond shall likewise be forfeited in favor of PCSO.
17.2 Should the LESSOR fail to comply with the terms of the
Timetables provided in Section 9 and 10, it shall be subject to an
initial Penalty of Twenty Thousand Pesos (P20,000.00), per city or
municipality per every month of delay; Provided, that the Penalty
shall increase, every ninety (90) days, by the amount of Twenty
Thousand Pesos (P20,000.00) per city or municipality per month,
whilst shall failure to comply persists. The penalty shall be
deducted by PCSO from the rental fee.
xxx xxx xxx
20. OWNERSHIP OF THE FACILITIES

After expiration of the term of the lease as provided in Section 4, the
Facilities directly required for the On-Line Lottery System mentioned in
Section 1.3 shall automatically belong in full ownership to PCSO without
any further consideration other than the Rental Fees already paid during
the effectivity of the lease.
21. TERMINATION OF THE LEASE
PCSO may terminate this Contract for any breach of the material provisions
of this Contract, including the following:
21.1 The LESSOR is insolvent or bankrupt or unable to pay its debts,
stops or suspends or threatens to stop or suspend payment of all or
a material part of its debts, or proposes or makes a general
assignment or an arrangement or compositions with or for the
benefit of its creditors; or
21.2 An order is made or an effective resolution passed for the winding
up or dissolution of the LESSOR or when it cease or threatens to
cease to carry on all or a material part of its operations or business;
or
21.3 Any material statement, representation or warranty made or

furnished by the LESSOR proved to be materially false or
misleading;
said termination to take effect upon receipt of written notice of termination

by the LESSOR and failure to take remedial action within seven (7) days
and cure or remedy the same within thirty (30) days from notice.
Any suspension, cancellation or termination of this Contract shall not relieve
the LESSOR of any liability that may have already accrued hereunder."
xxx xxx xxx
Considering the denial by the Of ce of the President of its protest and the statement of
Assistant Executive Secretary Renato Corona that "only a court injunction can stop
Malacañang," and the imminent implementation of the Contract of Lease in February 1994,
KILOSBAYAN, with its co-petitioners, filed on 28 January 1994 this petition.
In support of the petition, the petitioners claim that:
". . . THE OFFICE OF THE PRESIDENT, ACTING THROUGH RESPONDENTS
EXECUTIVE SECRETARY AND/OR ASSISTANT EXECUTIVE SECRETARY FOR
LEGAL AFFAIRS, AND THE PCSO GRAVELY ABUSE[D] THEIR DISCRETION
AND/OR FUNCTIONS TANTAMOUNT TO LACK OF JURISDICTION AND/OR
AUTHORITY IN RESPECTIVELY: (A) APPROVING THE AWARD OF THE CONTRACT
TO, AND (B) ENTERING INTO THE SO-CALLED 'CONTRACT OF LEASE' WITH,
RESPONDENT PGMC FOR THE INSTALLATION, ESTABLISHMENT AND
OPERATION OF THE ON-LINE LOTTERY AND TELECOMMUNICATION SYSTEMS
REQUIRED AND/OR AUTHORIZED UNDER THE SAID CONTRACT, CONSIDERING
THAT:
a) Under Section 1 of the Charter of the PCSO, the PCSO is

prohibited from holding and conducting Lotteries 'in collaboration,
association or joint venture with any person, association, company or entity';
b) Under Act No. 3846 and established jurisprudence, a
Congressional franchise is required before any person may be allowed to
establish and operate said telecommunications system;
c) Under Section 11, Article XII of the Constitution, a less than 60%
Filipino-owned and/or controlled corporation, like the PGMC, is disquali ed
from operating a public service, like the said telecommunications system;
and
d) Respondent PGMC is not authorized by its charter and under
the Foreign Investment Act (R.A. No. 7042) to install, establish and operate
the on-line Lotto and telecommunications systems." 1 8
Petitioners submit that the PCSO cannot validly enter into the assailed Contract of Lease
with the PGMC because it is an arrangement wherein the PCSO would hold and conduct
the on-line lottery system in "collaboration" or "association" with the PGMC, in violation of
Section 1 (B) of R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits the PCSO from
holding and conducting charity sweepstakes races, lotteries, and other similar activities "in
collaboration, association or joint venture with any person, association, company or entity,
foreign or domestic." Even granting arguendo that a lease of facilities is not within the
contemplation of "collaboration" or "association," an analysis, however, of the Contract of
Lease clearly shows that there is a "collaboration, association, or joint venture between
respondents PCSO and PGMC in the holding of the On-Line Lottery System," and that there
are terms and conditions of the Contract "showing that respondent PGMC is the actual
lotto operator and not respondent PCSO." 1 9
The petitioners also point out that paragraph 10 of the Contract of Lease requires or
authorizes PGMC to establish a telecommunications network that will connect all the
municipalities and cities in the territory. However, PGMC cannot do that because it has no
franchise from Congress to construct, install, establish, or operate the network pursuant to
Section 1 of Act No. 3846, as amended. Moreover, PGMC is a 75% foreign-owned or
controlled corporation and cannot, therefore, be granted a franchise for that purpose
because of Section 11, Article XII of the 1987 Constitution. Furthermore, since, "the
subscribed foreign capital" of the PGMC "comes to about 75%, as shown by paragraph
EIGHT of its Articles of Incorporation," it cannot lawfully enter into the contract in question
because all forms of gambling — and lottery is one of them — are included in the so-called
foreign investments negative list under the Foreign Investments Act (R.A. No. 7042) where
only up to 40% foreign capital is allowed. 2 0
Finally, the petitioners insist that the Articles of Incorporation of PGMC do not authorize it
to establish and operate an on-line lottery and telecommunications systems. 2 1
Accordingly, the petitioners pray that we issue a temporary restraining order and a writ of
preliminary injunction commanding the respondents or any person acting in their places or
upon their instructions to cease and desist from implementing the challenged Contract of
Lease and, after hearing the merits of the petition, that we render judgment declaring the
Contract of Lease void and without effect and making the injunction permanent. 2 2
We required the respondents to comment on the petition.
In its Comment led on 1 March 1994, private respondent PGMC asserts that "(1) [it] is
merely an independent contractor for a piece of work, (i.e., the building and maintenance of
a lottery system to be used by PCSO in the operation of its lottery franchise); and (2) as
such independent contractor, PGMC is not a co-operator of the lottery franchise with
PCSO, nor is PCSO sharing its franchise, 'in collaboration, association or joint venture' with
PGMC — as such statutory limitation is viewed from the context, intent, and spirit of
Republic Act 1169, as amended by Batas Pambansa 42." It further claims that as an
independent contractor for a piece of work, it is neither engaged in "gambling" nor in
"public service" relative to the telecommunications network, which the petitioners even
consider as an "indispensable requirement" of an on-line lottery system. Finally, it states
that the execution and implementation of the contract does not violate the Constitution
and the laws; that the issue on the "morality" of the lottery franchise granted to the PCSO is
political and not judicial or legal, which should be ventilated in another forum; and that the
"petitioners do not appear to have the legal standing or real interest in the subject contract
and in obtaining the reliefs sought." 2 3
In their Comment led by the Of ce of the Solicitor General, public respondents Executive
Secretary Teo sto Guingona, Jr., Assistant Executive Secretary Renato Corona, and the
PCSO maintain that the contract of lease in question does not violate Section 1 of R.A. No.
1169, as amended by B.P. Blg. 42, and that the petitioners' interpretation of the phrase "in
collaboration, association or joint venture" in Section 1 is "much too narrow, strained and
utterly devoid of logic" for it "ignores the reality that PCSO, as a corporate entity, is vested
with the basic and essential prerogative to enter into all kinds of transactions or contracts
as may be necessary for the attainment of its purposes and objectives." What the PCSO
charter "seeks to prohibit is that arrangement akin to a 'joint venture' or partnership where
there is 'community of interest in the business, sharing of pro ts and losses, and a mutual
right of control,' a characteristic which does not obtain in a contract of lease." With respect
to the challenged Contract of Lease, the "role of PGMC is limited to that of a lessor of the
facilities" for the on-line lottery system; in "strict technical and legal sense," said contract
"can be categorized as a contract for a piece of work as de ned in Articles 1467, 1713 and
1644 of the Civil Code."
They further claim that the establishment of the telecommunications system stipulated in
the Contract of Lease does not require a congressional franchise because PGMC will not
operate a public utility; moreover, PGMC's "establishment of a telecommunications
system is not intended to establish a telecommunications business," and it has been held
that where the facilities are operated "not for business purposes but for its own use," a
legislative franchise is not required before a certi cate of public convenience can be
granted. 2 4 Even granting arguendo that PGMC is a public utility, pursuant to Albano s.
Reyes, 2 5 "it can establish a telecommunications system even without a legislative
franchise because not every public utility is required to secure a legislative franchise
before it could establish, maintain, and operate the service"; and, in any case, "PGMC's
establishment of the telecommunications system stipulated in its contract of lease with
PCSO falls within the exceptions under Section 1 of Act No. 3846 where a legislative
franchise is not necessary for the establishment of radio stations."
They also argue that the contract does not violate the Foreign Investment Act of 1991; that
the Articles of Incorporation of PGMC authorize it to enter into the Contract of Lease; and
that the issues of "wisdom, morality and propriety of acts of the executive department are
beyond the ambit of judicial review."
Finally, the public respondents allege that the petitioners have no standing to maintain the
instant suit, citing our resolution in Valmonte vs. Philippine Charity Sweepstakes Office. 2 6
Several parties led motions to intervene as petitioners in this case, 2 7 but only the motion
of Senators Alberto Romulo, Arturo Tolentino, Francisco Tatad, Gloria Macapagal-Arroyo,
Vicente Sotto III, John Osmena, Ramon Revilla, and Jose Lina 2 8 was granted, and the
respondents were required to comment on their petition in intervention, which the public
respondents and PGMC did.
In the meantime, the petitioners led with the Securities and Exchange Commission on 29
March 1994 a petition against PGMC for the nullification of the latter's General Information
Sheets. That case, however, has no bearing in this petition.
On 11 April 1994, we heard the parties in oral arguments. Thereafter, we resolved to
consider the matter submitted for resolution and pending resolution of the major issues in
this case, to issue a temporary restraining order commanding the respondents or any
person acting in their place or upon their instructions to cease and desist from
implementing the challenged Contract of Lease.
In the deliberation on this case on 26 April 1994, we resolved to consider only these
issues: (a) the locus standi of the petitioners, and (b) the legality and validity of the
Contract of Lease in the light of Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42,
which prohibits the PCSO from holding and conducting lotteries "in collaboration,
association or joint venture with any person, association, company or entity, whether
domestic or foreign." On the rst issue, seven Justices voted to sustain the locus standi of
the petitioners, while six voted not to. On the second issue, the seven Justice were of the
opinion that the Contract of Lease violates the exception to Section 1(B) of R.A. No. 1169,
as amended by B.P. Blg. 42, and is, therefore, invalid and contrary to law. The six Justices
stated that they wished to express no opinion thereon in view of their stand on the rst
issue. The Chief Justice took no part because one of the Directors of the PCSO is his
brother-in-law.
This case was then assigned to this ponente for the writing of the opinion of the Court.
The preliminary issue on the locus standi of the petitioners should, indeed, be resolved in
their favor. 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 the issues raised. In
the landmark Emergency Powers Cases, 2 9 this Court brushed aside this technicality
because "the transcendental importance to the public of these cases demands that they
be settled promptly and de nitely, brushing aside, if we must, technicalities of procedure.
(Avelino vs. Cuenco, G.R. No. L-2821)." Insofar as taxpayers' suits are concerned, this Court
had declared that it "is not devoid of discretion as to whether or not it should be
entertained," 3 0 or that it "enjoys an open discretion to entertain the same or not." 3 1 In De
La Llana vs. Alba, 3 2 this Court declared:
"1. The argument as to the lack of standing of petitioners is easily resolved.

As far as Judge de la Llana is concerned, he certainly falls within the principle set
forth in Justice Laurel's opinion in People vs. Vera [65 Phil. 56 (1937)]. Thus: 'The
unchallenged rule is that the person who impugns the validity of a statute must
have a personal and substantial interest in the case such that he has sustained,
or will sustain, direct injury as a result of its enforcement [Ibid, 89].' The other
petitioners as members of the bar and of cers of the court cannot be considered
as devoid of 'any personal and substantial interest' on the matter. There is
relevance to this excerpt form a separate opinion in Aquino, Jr. v. Commission on
Elections [L-40004, January 31, 1975, 62 SCRA 275]: 'Then there is the attack on
the standing of petitioners, as vindicating at most what they consider a public
right and not protecting their rights as individuals. This is to conjure the specter of
the public right dogma as an inhibition to parties intent on keeping public officials
staying on the path of constitutionalism. As was so well put by Jaffe: "The
protection of private rights is an essential constituent of public interest and,
conversely, without a well-ordered state there could be no enforcement of private
rights. Private and public interests are, both in a substantive and procedural
sense, aspects of the totality of the legal order." Moreover, petitioners have
convincingly shown that in their capacity as taxpayers, their standing to sue has
been amply demonstrated. There would be a retreat from the liberal approach
followed in Pascual v. Secretary of Public Works, foreshadowed by the very
decision of People v. Vera where the doctrine was rst fully discussed, if we act
differently now. I do not think we are prepared to take that step. Respondents,
however, would hark back to the American Supreme Court doctrine in Mellon v.
Frothingham, with their claim that what petitioners possess "is an interest which
is shared in common by other people and is comparatively so minute and
indeterminate as to afford any basis and assurance that the judicial process can
act on it." That is to speak in the language of a bygone era, even in the United
States. For as Chief Justice Warren clearly pointed out in the later case of Flast v.
Cohen, the barrier thus set up if not breached has definitely been lowered."
In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, 3 3 reiterated

in Basco vs. Philippine Amusements and Gaming Corporation, 3 4 this Court stated:
"Objections to taxpayers' suits for lack of suf cient personality standing or
interest are, however, in the main procedural matters. Considering the importance
to the public of the cases at bar, and in keeping with the Court's duty, under the
1987 Constitution, to determine whether or not the other branches of government
have kept themselves within the limits of the Constitution and the laws and that
they have not abused the discretion given to them, this Court has brushed aside
technicalities of procedure and has taken cognizance of these petitions."
and in Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian
Reform, 3 5 it declared:
"With particular regard to the requirement of proper party as applied in the cases
before us, we hold that the same is satis ed by the petitioners and intervenors
because each of them has sustained or is in danger of sustaining an immediate
injury as a result of the acts or measures complained of. [Ex Parte Levitt, 303 US
633]. And even if, strictly speaking, they are not covered by the de nition, it is still
within the wide discretion of the Court to waive the requirement and so remove
the impediment to its addressing and resolving the serious constitutional
questions raised.
In the rst Emergency Powers Cases, ordinary citizens and taxpayers were
allowed to question the constitutionality of several executive orders issued by
President Quirino although they were invoking only an indirect and general
interest shared in common with the public. The Court dismissed the objective that
they were not proper parties and ruled that the transcendental importance to the
public of these cases demands that they be settled promptly and de nitely,
brushing aside, if we must, technicalities of procedure. We have since then
applied this exception in many other cases." (Emphasis supplied)
In Daza vs. Singson, 3 6 this Court once more said:

". . . For another, we have early as in the Emergency Powers Cases that where
serious constitutional questions are involved, 'the transcendental importance to
the public of these cases demands that they be settled promptly and de nitely,
brushing aside, if we must, technicalities of procedure.' The same policy has since
then been consistently followed by the Court, as in Gonzales vs. Commission on
Elections [21 SCRA 774] . . . ."
The Federal Supreme Court of the United States of America has also expressed its
discretionary power to liberalize the rule on locus standi. In United States vs. Federal
Power Commission and Virginia Rea Association vs. Federal Power Commission, 3 7 it held:
"We hold that petitioners have standing. Differences of view, however, preclude a
single opinion of the Court as to both petitioners. It would not further clari cation
of this complicated specialty of federal jurisdiction, the solution of whose
problems is in any event more or less determined by the specific circumstances of
individual situations, to set out the divergent grounds in support of standing in
these cases."
In line with the liberal policy of this Court on locus standi, ordinary taxpayers, members of
Congress, and even association of planters, and non-pro t civic organizations were
allowed to initiate and prosecute actions before this Court to question the constitutionality
or validity of laws, acts, decisions, rulings, or orders of various government agencies or
instrumentalities. Among such cases were those assailing the constitutionality of (a) R.A.
No. 3836 insofar as it allows retirement gratuity and commutation of vacation and sick
leave to Senators and Representatives and to elective of cials of both Houses of
Congress; 3 8 (b) Executive Order No. 284, issued by President Corazon C. Aquino on 25
July 1987, which allowed members of the cabinet, their undersecretaries, and assistant
secretaries to hold other government of ces or positions; 3 9 (c) the automatic
appropriation for debt service in the General Appropriations Act; 4 0 (d) R.A. No. 7056 on
the holding of desynchronized elections; 4 1 (e) P.D. No. 1869 (the charter of the Philippine
Amusement and Gaming Corporation) on the ground that it is contrary to morals, public
policy, and order; 4 2 and (f) R.A. No. 6975, establishing the Philippine National Police. 4 3
Other cases where we have followed a liberal policy regarding locus standi include those
attacking the validity or legality of (a) an order allowing the importation of rice in the light
of the prohibition imposed by R.A. No. 3452; 4 4 (b) P.D. Nos. 991 and 1033 insofar as they
proposed amendments to the Constitution and P.D. No. 1031 insofar as it directed the
COMELEC to supervise, control, hold, and conduct the referendum-plebiscite on 16
October 1976; 4 5 (c) the bidding for the sale of the 3,179 square meters of land at
Roppongi, Minato-ku, Tokyo, Japan; 4 6 (d) the approval without hearing by the Board of
Investments of the amended application of the Bataan Petrochemical Corporation to
transfer the site of its plant from Bataan to Batangas and the validity of such transfer and
the shift of feedstock from naphtha only to naphtha and/or lique ed petroleum gas; 4 7 (e)
the decisions, orders, rulings, and resolutions of the Executive Secretary, Secretary of
Finance, Commissioner of Internal Revenue, Commissioner of Customs, and the Fiscal
Incentives Review Board exempting the National Power Corporation from indirect tax and
duties; 4 8 (f) the orders of the Energy Regulatory Board of 5 and 6 December 1990 on the
ground that the hearings conducted on the second provisional increase in oil prices did not
allow the petitioner substantial cross-examination; 4 9 (g) Executive Order No. 478 which
levied a special duty of P0.95 per liter or P151.05 per barrel of imported crude oil and
P1.00 per liter of imported oil products; 5 0 (h) resolutions of the Commission on Elections
concerning the apportionment, by district, of the number of elective members of
Sanggunians; 5 1 and (i) memorandum orders issued by a Mayor affecting the Chief of
Police of Pasay City. 5 2
In the 1975 case of Aquino vs. Commission on Elections, 5 3 this Court, despite its
unequivocal ruling that the petitioners therein had no personality to le the petition,
resolved nevertheless to pass upon the issues raised because of the far-reaching
implications of the petition. We did no less in De Guia vs. COMELEC 5 4 where, although we
declared that De Guia "does not appear to have locus standi, a standing in law, a personal
or substantial interest," we brushed aside the procedural in rmity "considering the
importance of the issue involved, concerning as it does the political exercise of quali ed
voters affected by the apportionment, and petitioner alleging abuse of discretion and
violation of the Constitution by respondent."
We nd the instant petition to be of transcendental importance to the public. The issues it
raised are of paramount public interest and of a category even higher than those involved
in many of the aforecited cases. The rami cations of such issues immeasurably affect the
social, economic, and moral well-being of the people even in the remotest barangays of the
country and the counter-productive and retrogressive effects of the envisioned on-line
lottery system are as staggering as the billions in pesos it is expected to raise. The legal
standing then of the petitioners deserves recognition and, in the exercise of its sound
discretion, this Court hereby brushes aside the procedural barrier which the respondents
tried to take advantage of.
And now on the substantive issue.

Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, prohibits the PCSO from holding
and conducting lotteries "in collaboration, association or joint venture with any person,
association, company or entity, whether domestic or foreign." Section 1 provides:
"Sec. 1. The Philippine Charity Sweepstakes Of ce . — The Philippine Charity
Sweepstakes Of ce, hereinafter designated the Of ce, shall be the principal
government agency for raising and providing for funds for health programs,
medical assistance and services and charities of national character, and as such
shall have the general powers conferred in section thirteen of Act Numbered One
thousand four hundred fifty-nine, as amended, and shall have the authority:
A. To hold and conduct charity sweepstakes races, lotteries and other

similar activities, in such frequency and manner, as shall be
determined, and subject to such rules and regulations as shall be
promulgated by the Board of Directors.
B. Subject to the approval of the Minister of Human Settlements, to

engage in health and welfare-related investments, programs,
projects and activities which may be pro t-oriented, by itself or in
collaboration, association or joint venture with any person,
association, company or entity, whether domestic or foreign, except
for the activities mentioned in the preceding paragraph (A), for the
purpose of providing for permanent and continuing sources of
funds for health programs, including the expansion of existing ones,
medical assistance and services, and/or charitable grants: Provided,
That such investments will not compete with the private sector in
areas where investments are adequate as may be determined by the
National Economic and Development Authority." (emphasis
supplied)
The language of the section is indisputably clear that with respect to its franchise or
privilege "to hold and conduct charity sweepstakes races, lotteries and other similar
activities," the PCSO cannot exercise it "in collaboration, association, or joint venture" with
any other party. This is the unequivocal meaning and import of the phrase "except for the
activities mentioned in the preceding paragraph (A)," namely, " charity sweepstakes races,
lotteries and other similar activities."
B.P. Blg. 42 originated from Parliamentary Bill No. 622, which was covered by Committee
Report No. 103 as reported out by the Committee on Socio-Economic Planning and
Development of the Interim Batasang Pambansa. The original text of paragraph B, Section
1 of Parliamentary Bill No. 622 reads as follows:
"To engage in any and all investments and related pro t-oriented projects or
programs and activities by itself or in collaboration, association or joint venture
with any person, association, company or entity, whether domestic or foreign, for
the main purpose of raising funds for health and medical assistance and services
and charitable grants." 5 5
During the period of committee amendments, the Committee on Socio-Economic Planning

and Development, through Assemblyman Ronaldo B. Zamora, introduced an amendment
by substitution to the said paragraph B such that, as amended, it should read as follows:
"Subject to the approval of the Minister of Human Settlements, to engage in
health-oriented investments, programs, projects and activities which may be
pro t-oriented, by itself or in collaboration, association, or joint venture with any
person, association, company or entity, whether domestic or foreign, for the
purpose of providing for permanent and continuing sources of funds for health
programs, including the expansion of existing ones, medical assistance and
services and/or charitable grants." 5 6
Before the motion of Assemblyman Zamora for the approval of the amendment could be
acted upon, Assemblyman Davide introduced an amendment to the amendment:
"MR. DAVIDE.
Mr. Speaker.
THE SPEAKER.
The gentleman from Cebu is recognized.

MR. DAVIDE.
May I introduce an amendment to the committee amendment? The
amendment would be to insert after 'foreign' in the amendment just read
the following: EXCEPT FOR THE ACTIVITY IN LETTER (A) ABOVE.
When it is a joint venture or in collaboration with any entity such
collaboration or joint venture must not include activity letter (a) which is
the holding and conducting of sweepstakes races, lotteries and other
similar acts.
MR. ZAMORA.
We accept the amendment, Mr. Speaker.
MR. DAVIDE.
Thank you, Mr. Speaker.
THE SPEAKER.
Is there any objection to the amendment? (Silence) The amendment, as
amended, is approved." 5 7
Further amendments to paragraph B were introduced and approved. When Assemblyman

Zamora read the nal text of paragraph B as further amended, the earlier approved
amendment of Assemblyman Davide became "EXCEPT FOR THE ACTIVITIES MENTIONED
IN PARAGRAPH (A)"; and by virtue of the amendment introduced by Assemblyman
Emmanuel Pelaez, the word PRECEDING was inserted before PARAGRAPH. Assemblyman
Pelaez introduced other amendments. Thereafter, the new paragraph B was approved. 5 8
This is now paragraph B, Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42.
No interpretation of the said provisions to relax or circumvent the prohibition can be
allowed since the privilege to hold or conduct charity sweepstakes races, lotteries, or
other similar activities is a franchise granted by the legislature to the PCSO. It is a settled
rule that "in all grants by the government to individuals or corporations of rights, privileges
and franchises, the words are to be taken most strongly against the grantee . . . . [o]ne who
claims a franchise or privilege in derogation of the common rights of the public must
prove his title thereto by a grant which is clearly and de nitely expressed, and he cannot
enlarge it by equivocal or doubtful provisions or by probable inferences. Whatever is not
unequivocably granted is withheld. Nothing passes by mere implication." 5 9
In short then, by the exception explicitly made in paragraph B, Section 1 of this charter, the
PCSO cannot share its franchise with another by way of collaboration, association or joint
venture. Neither can it assign, transfer, or lease such franchise. It has been said that "the
rights and privileges conferred under a franchise may, without doubt, be assigned or
transferred when the grant is to the grantee and assigns, or is authorized by statute. On the
other hand, the right of transfer or assignment may be restricted by statute or the
constitution, or be made subject to the approval of the grantor or a governmental agency,
such as a public utilities commission, except that an existing right of assignment cannot
be impaired by subsequent legislation." 6 0
It may also be pointed out that the franchise granted to the PCSO to hold and conduct
lotteries allows it to hold and conduct a species of gambling. It is settled that "a statute
which authorizes the carrying on of a gambling activity or business should be strictly
construed and every reasonable doubt so resolved as to limit the powers and rights
claimed under its authority." 6 1
Does the challenged Contract of Lease violate or contravene the exception in Section 1 of
R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits the PCSO from holding and
conducting lotteries "in collaboration, association or joint venture with" another?
We agree with the petitioners that it does, notwithstanding its denomination or
designation as a Contract of Lease. We are neither convinced nor moved or fazed by the
insistence and forceful arguments of the PGMC that it does not because in reality it is only
an independent contractor for a piece of work, i.e., the building and maintenance of a
lottery system to be used by the PCSO in the operation of its lottery franchise. Whether the
contract in question is one of lease or whether the PGMC is merely an independent
contractor should not be decided on the basis of the title or designation of the contract
but by the intent of the parties, which may be gathered from the provisions of the contract
itself. Animus hominis est anima scripti. The intention of the party is the soul of the
instrument. In order to give life or effect to an instrument, it is essential to look to the
intention of the individual who executed it. 6 2 And, pursuant to Article 1371 of the Civil
Code, "to determine the intention of the contracting parties, their contemporaneous and
subsequent acts shall be principally considered." To put it more bluntly, no one should be
deceived by the title or designation of a contract.
A careful analysis and evaluation of the provisions of the contract and a consideration of
the contemporaneous acts of the PCSO and PGMC indubitably disclose that the contract
is not in reality a contract of lease under which the PGMC is merely an independent
contractor for a piece of work, but one where the statutorily proscribed collaboration or
association, in the least, or joint venture, at the most, exists between the contracting
parties. Collaboration is de ned as the acts of working together in a joint project. 6 3
Association means the act of a number of persons in uniting together for some special
purpose or business. 6 4 Joint venture is de ned as an association of persons or
companies jointly undertaking some commercial enterprise; generally all contribute assets
and share risks. It requires a community of interest in the performance of the subject
matter, a right to direct and govern the policy in connection therewith, and duty, which may
be altered by agreement to share both in profit and losses. 6 5
The contemporaneous acts of the PCSO and the PGMC reveal that the PCSO had neither
funds of its own nor the expertise to operate and manage an on-line lottery system, and
that although it wished to have the system, it would have it "at no expense or risks to the
government." Because of these serious constraints and unwillingness to bear expenses
and assume risks, the PCSO was candid enough to state in its RFP that it is seeking for "a
suitable contractor which shall build, at its own expense, all the facilities needed to operate
and maintain" the system; exclusively bear "all capital, operating expenses and expansion
expenses and risks"; and submit "a comprehensive nationwide lottery development plan . . .
which will include the game, the marketing of the games, and the logistics to introduce the
game to all the cities and municipalities of the country within ve (5) years"; and that the
operation of the on-line lottery system should be "at no expense or risk to the government"
— meaning itself , since it is a government-owned and controlled agency. The facilities
referred to means "all capital equipment, computers, terminals, software, nationwide
telecommunications network, ticket sales of ces, furnishings and xtures, printing costs,
costs of salaries and wages, advertising and promotions expenses, maintenance costs,
expansion and replacement costs, security and insurance, and all other related expenses
needed to operate a nationwide on-line lottery system."
In short, the only contribution the PCSO would have is its franchise or authority to operate
the on-line lottery system; with the rest, including the risks of the business, being borne by
the proponent or bidder. It could be for this reason that it warned that "the proponent must
be able to stand to the acid test of proving that it is an entity able to take on the role of
responsible maintainer of the on-line lottery systems." The PCSO however, makes it clear in
its RFP that the proponent can propose a period of the contract which shall not exceed
fteen years, during which time it is assured of a "rental" which shall not exceed 12% of
gross receipts. As admitted by the PGMC, upon learning of the PCSO's decision, the
Berjaya Group Berhad, with its af liates, wanted to offer its services and resources to the
PCSO. Forthwith, it organized the PGMC as "a medium through which the technical and
management services required for the project would be offered and delivered to PCSO." 6 6
Undoubtedly, then, the Berjaya Group Berhad knew all along that in connection with an on-
line lottery system, the PCSO had nothing but its franchise, which it solemnly guaranteed it
had in the General Information of the RFP. 6 7 Howsoever viewed then, from the very
inception, the PCSO and the PGMC mutually understood that any arrangement between
them would necessarily leave to the PGMC the technical, operatrions, and management
aspects of the on-line lottery system while the PCSO would, primarily, provide the
franchise. The words Gaming and Management in the corporate name of respondent
Philippine Gaming Management Corporation could not have been conceived just for
euphemistic purposes. Of course, the RFP cannot substitute for the Contract of Lease
which was subsequently executed by the PCSO and the PGMC. Nevertheless, the Contract
of Lease incorporates their intention and understanding.
The so-called Contract of Lease is not, therefore, what it purports to be. Its denomination
as such is a crafty device, carefully conceived, to provide a built-in defense in the event that
the agreement is questioned as violative of the exception in Section 1 (B) of the PCSO's
charter. The acuity or skill of its draftsmen to accomplish that purpose easily manifests
itself in the Contract of Lease. It is outstanding for its careful and meticulous drafting
designed to give an immediate impression that it is a contract of lease. Yet, woven therein
are provisions which negate its title and betray the true intention of the parties to be in or
to have a joint venture for a period of eight years in the operation and maintenance of the
on-line lottery system.
Consistent with the above observations on the RFP, the PCSO has only its franchise to
offer, while the PGMC represents and warrants that it has access to all managerial and
technical expertise to promptly and effectively carry out the terms of the contract. And, for
a period of eight years, the PGMC is under obligation to keep all the Facilities in the safe
condition and if necessary, upgrade, replace, and improve them from time to time as new
technology develops to make the on-line lottery system more cost-effective and
competitive; exclusively bear all costs and expenses relating to the printing, manpower,
salaries and wages, advertising and promotion, maintenance, expansion and replacement,
security and insurance, and all other related expenses needed to operate the on-line lottery
system; undertake a positive advertising and promotions campaign for both institutional
and product lines without engaging in negative advertising against other lessors; bear the
salaries and related costs of skilled and quali ed personnel for administrative and
technical operations; comply with procedural and coordinating rules issued by the PCSO;
and to train PCSO and other local personnel and to effect the transfer of technology and
other expertise, such that at the end of the term of the contract, the PCSO will be able to
effectively take over the Facilities and ef ciently operate the on-line lottery system. The
latter simply means that, indeed, the managers, technicians or employees who shall
operate the on-line lottery system are not managers, technicians or employees of the
PCSO, but of the PGMC and that it is only after the expiration of the contract that the PCSO
will operate the system. After eight years, the PCSO would automatically become the
owner of the Facilities without any other further consideration.
For these reasons, too, the PGMC has the initial prerogative to prepare the detailed plan of
all games and the marketing thereof, and determine the number of players, value of
winnings, and the logistics required to introduce the games, including the Master Games
Plan. Of course, the PCSO has the reserved authority to disapprove them. 6 8 And, while the
PCSO has the sole responsibility over the appointment of dealers and retailers throughout
the country, the PGMC may, nevertheless, recommend for appointment dealers and
retailers which shall be acted upon by the PCSO within forty-eight hours and collect and
retain, for its own account, security deposit from dealers and retailers in respect of
equipment supplied by it. This joint venture is further established by the following:
(a) Rent is de ned in the lease contract as the amount to be paid to the
PGMC as compensation for the ful llment of its obligations under the contract,
including but not limited to the lease of the Facilities. However, this rent is not
actually a xed amount. Although it is stated to be 4.9% of gross receipts from
ticket sales, payable net of taxes required by law to be withheld, it may be
drastically reduced or, in extreme cases, nothing may be due or demandable at all
because the PGMC binds itself to "bear all risks if the revenue from the ticket
sales, on an annualized basis, are insuf cient to pay the entire prize money." This
risk-bearing provision is unusual in a lessor-lessee relationship, but inherent in a
joint venture.
(b) In the event of pre-termination of the contract by the PCSO, or its

suspension of operation of the on-line lottery system in breach of the contract
and through no fault of the PGMC, the PCSO binds itself "to promptly, and in any
event not later than sixty (60) days, reimburse the LESSOR the amount of its total
investment cost associated with the On-Line Lottery System, including but not
limited to the cost of the Facilities, and further compensate the LESSOR for loss
of expected net pro t after tax, computed over the unexpired term of the lease." If
the contract were indeed one of lease, the payment of the expected pro ts or
rentals for the unexpired portion of the term of the contract would be enough.
(c) The PGMC cannot "directly or indirectly undertake any activity or business
in competition with or adverse to the On-Line Lottery System of PCSO unless it
obtains the latter's prior written consent." If the PGMC is engaged in the business
of leasing equipment and technology for an on-line lottery system, we fail to see
any acceptable reason why it should allow a restriction on the pursuit of such
business.
(d) The PGMC shall provide the PCSO the audited Annual Report sent to its
stockholders, and within two years from the effectivity of the contract, cause itself
to be listed in the local stock exchange and offer at least 25% of its equity to the
public. If the PGMC is merely a lessor, this imposition is unreasonable and
whimsical, and could only be tied up to the fact that the PGMC will actually
operate and manage the system; hence, increasing public participation in the
corporation would enhance public interest.
(e) The PGMC shall put an Escrow Deposit of P300,000,000.00 pursuant to
the requirements of the RFP, which it may, at its option, maintain as its initial
performance bond required to ensure its faithful compliance with the terms of the
contract.
(f) The PCSO shall designate the necessary personnel to monitor and audit
the daily performance of the on-line lottery system; and promulgate procedural
and coordinating rules governing all activities relating to the on-line lottery
system. The rst further con rms that it is the PGMC which will operate the
system and the PCSO may, for the protection of its interest, monitor and audit the
daily performance of the system. The second admits the coordinating and
cooperative powers and function of the parties.
(g) The PCSO may validly terminate the contract if the PGMC becomes
insolvent or bankrupt or is unable to pay its debts, or if it stops or suspends or
threatens to stop or suspend payment of all or a material part of its debts.
All of the foregoing unmistakably con rm indispensable role of the PGMC in the
pursuit, operation, conduct, and management of the On-Line Lottery System. They
exhibit and demonstrate the parties' indivisible community of interest in the conception,
birth and growth of the on-line lottery, and above all, in its pro ts, with each having a
right in the formulation and implementation of policies related to the business and
sharing, as well, in the losses — with the PGMC bearing the greatest burden because of
its assumption of expenses and risks, and the PCSO the least, because of its confessed
unwillingness to bear expenses and risks. In a manner of speaking, each is wed to the
other for better or for worse. In the nal analysis, however, in the light of the PCSO's
RFP and the above highlighted provisions, as well as the "Hold Harmless Clause" of the
Contract of Lease, it is even safe to conclude that the actual lessor in this case is the
PCSO and the subject matter thereof is its franchise to hold and conduct lotteries since
it is, in reality, the PGMC which operates and manages the on-line lottery system for a
period of eight years.
We thus declare that the challenged Contract of Lease violates the exception provided for
in paragraph B, Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, and is, therefore,
invalid for being contrary to law. This conclusion renders unnecessary further discussion
on the other issues raised by the petitioners.
WHEREFORE, the instant petition is hereby GRANTED and the challenged Contract of Lease
executed on 17 December 1993 by respondent Philippine Charity Sweepstakes Of ce
(PCSO) and respondent Philippine Gaming Management Corporation (PGMC) is hereby
DECLARED contrary to law and invalid.
The Temporary Restraining Order issued on 11 April 1994 is hereby MADE PERMANENT.
No pronouncement as to costs.
SO ORDERED.
Regalado, Romero and Bellosillo, JJ., concur.
Narvasa, C.J., took no part, related to party.
Cruz, J., see separate concurrence.
Feliciano, J., see concurring opinion.
Padilla, J., see separate concurring opinion.
Bidin, J., joins the dissenting opinions.
Melo, J., please see dissent.
Quiason, J., dissents from the majority opinion and agree with the dissenting opinions.
Puno, J., see dissenting opinion.
Vitug, J., see separate opinion.
Kapunan, J., dissents. See separate opinion.
Separate Opinions
CRUZ, J., concurring:
I am happy to join Mr. Justice Hilario G. Davide, Jr. in his excellent ponencia. I will add the
following personal observations only for emphasis as it is not necessary to supplement
his thorough exposition.
The respondents take great pains to cite speci c provisions of the contract to show that it
is PCSO that is actually operating the on-line lottery, but they have not succeeded in
disproving the obvious, to wit, that the document was intentionally so crafted to make it
appear that the operation is not a joint undertaking of PCSO and PGMC but a mere lease of
services. It is a clever instrument, to be sure, but we are, gratifyingly, not deluded. Lawyers
have a special talent to disguise the real intention of the parties in a contract to make it
come ostensibly within the provisions of a law although the real if furtive purpose is to
violate it. That talent has been exercised in this case, but not convincingly enough.
It should be quite clear, from the adroit way the contract has been drafted, that the primary
objective was to avoid the conclusion that PCSO will be operating a lottery "in association,
collaboration or joint venture with any person, association, company or entity," which
prohibited by Section 1 of Rep. Act. No. 1169 as amended by B.P. Blg. 42. Citing the self-
serving provisions of the contract, the respondents would have us believe that the contract
is perfectly lawful because all it does is provide for the lease to PCSO of the technical
know-how and equipment of PGMC, with PCSO acting as "the sole and individual operator"
of lottery. I am glad we are not succumbing to this sophistry.
Despite the artfulness of the contract (authorship of which was pointedly denied by both
counsel for the government and the private respondent during the oral argument on this
case), a careful study will reveal telling stipulations that it is PGMC and not PCSO that will
actually be operating the lottery. Thus, it is provided inter alia that PGMC shall furnish all
capital equipment and other facilities needed for the operation; bear all expenses relating
to the operation, including those for the salaries and wages of the administrative and
technical personnel; undertake a positive advertising and promotion campaign for public
support of the lottery; establish a radio communications network throughout the country
as part of the operation; and assume all risks if the revenues from ticket sales are
insuf cient to pay the entire prize money. Most signi cantly, to show that it is only after
eight years from the effectivity of the contract that PCSO will actually operate the lottery,
Par. 6.7 of the agreement provides that PGMC shall:
6.7. Upon effectivity of this Contract, commence the training of PCSO and
other local personnel and the transfer of technology and expertise, such that at
the end of the term of this Contract, PCSO will be able to effectively take-over the
Facilities and efficiently operate the On-Line Lottery System. (Emphasis supplied).
In the meantime, that is to say during the entire 8-year term of the contract, it will be PGMC
that will be operating the lottery. Only "at the end of the term of this Contract" will PCSO
"be able to effectively take-over the Facilities and ef ciently operate the On-Line Lottery
System."
Even on the assumption that it is PCSO that will be operating the lottery at the very start,
the authority granted to PGMC by the agreement will readily show that PCSO not be acting
alone, as the respondents pretend. In fact, it cannot. PGMC is an indispensable co-worker
because it has the equipment and the technology and the management skills that PCSO
does not have at this time for the operation of the lottery. PCSO cannot deny that it needs
the assistance of PGMC for this purpose, which was its reason for entering into the
contract in the first place.
And when PCSO does avail itself of such assistance, how will it be operating the lottery?
Undoubtedly, it will be doing so "in collaboration, association or joint venture" of PGMC,
which, let it be added, will not be serving as a mere "hired help" of PCSO subject to its
control. PGMC will be functioning independently in the discharge of its own assigned role
as stipulated in detailed under the contract. PGMC is plainly a partner of PCSO in violation
of law, no matter how PGMC's assistance is called or the contract is denominated.
Even if it be conceded that the assistance partakes of a lease of services, the undeniable
fact is that PCSO would still be collaborating or cooperating with PGMC in the operation of
the lottery. What is even worse is that PCSO and PGMC may be actually engaged in a joint
venture, considering that PGMC does not collect the usual xed rentals due an ordinary
lessor but is entitled to a special "Rental Fee," as the contract calls it, "equal to four point
nine percent (4.9%) of gross receipts from ticket sales."
The exibility of this amount is signi cant. As may be expected, it will induce in PGMC an
active interest and participation in the success of PCSO that is not expected of an ordinary
detached lessor who gets to be paid his rental fee — whether the lessee's business
prospers or not. PGMC's share in the operation depends on its own performance and the
effectiveness of its collaboration with PCSO. Although the contract pretends otherwise,
PGMC is a co-investor with PCSO in what is practically, if not in a strictly legal sense, a joint
venture.
Concerning the doctrine of locus standi, I cannot agree that out of the sixty million Filipinos
affected by the proposed lottery, not a single solitary citizen can question the agreement.
Locus standi is not such an absolute rule that it cannot admit of exceptions under certain
conditions or circumstances like those attending this transaction. As I remarked in my
dissent in Guazon v. De Villa, 181 SCRA 623, "It is not only the owner of the burning house
who has the right to call the remen. Every one has the right and responsibility to prevent
the fire from spreading even if he lives in the other block."
What is especially galling is that the transaction in question would foist upon our people an
essentially immoral activity through the instrumentality of a foreign corporation, which
naturally does not have the same concern for our interests as we ourselves have. I am
distressed that foreigners should be allowed to exploit the weakness of some of us for
instant gain without work, and with the active collaboration and encouragement of our own
government at that.
FELICIANO, J., concurring:
I agree with the conclusions reached by my distinguished brother in the Court Davide, Jr.,
J., both in respect of the question of locus standi and in respect of the merits of this case,
that is, the issues of legality and constitutionality of the Contract of Lease entered into
between the Philippine Charity Sweepstakes Of ce (PCSO) and the Philippine Gaming
Management Corporation (PGMC).
In this separate opinion, I propose to address only the question of locus standi. It is with
some hesitation that I do so, considering the extensive separate opinions on this question
written by my learned brothers Melo, Puno and Vitug, JJ. I agree with the great deal of
what my brothers Melo, Puno and Vitug say about locus standi in their separate opinions
and there is no need to go over the ground that I share with them. Because, however, I
reach a different conclusion in respect of the presence or absence of locus standi on the
part of the petitioners in the case before the Court, there is an internal need (a need internal
to myself) to articulate the considerations which led me to that conclusion.

There is no dispute that the doctrine of locus standi re ects an important constitutional
principle, that is, the principle of separation of powers which, among other things,
mandates that each of the great Departments of government is responsible for
performance of its constitutionally allotted tasks. Insofar as the Judicial Department is
concerned, the exercise of judicial power and carrying out of judicial functions commonly
take place within the context of actual cases or controversies. This, in turn, re ects the
basic notion of judicial power as the power to resolve actual disputes and of the traditional
business of courts as the hearing and deciding of speci c controversies brought before
them. In our own jurisdiction, and at least since the turn of the present century, judicial
power has always included the power of judicial review, understood as the authority of
courts (more speci cally the Supreme Court) to assay contested legislative and executive
acts in terms of their constitutionality or legality. Thus, the general proposition has been
that a petitioner who assails the legal or constitutional quality of an executive or legislative
act must be able to show that he has locus standi. Otherwise, the petition becomes
vulnerable to prompt dismissal by the court.
There is, upon the other hand, little substantive dispute that the possession of locus standi
1 is not, in each and every case, a rigid and absolute requirement for access to the courts.
Certainly that is the case where great issues of public law are at stake, issues which
cannot be approached in the same way that a court approaches a suit for the collection of
a sum of money or a complaint for the recovery of possession of a particular piece of land.
The broad question is when, or in what types of cases, the court should insist on a clear
showing of locus standi understood as a direct and personal interest in the subject matter
of the case at bar, and when the court may or should relax that apparently stringent
requirement and proceed to deal with the legal or constitutional issues at stake in a
particular case.
I submit, with respect, that it is not enough for the Court simply to invoke "public interest"
or even "paramount considerations of national interest," and to say that the speci c
requirements of such public interest can only be ascertained on a "case to case" basis. For
one thing, such an approach is not intellectually satisfying. For another, such an answer
appears to come too close to saying that locus standi exists whenever at least a majority
of the Members of this Court participating in a case feel that an appropriate case for
judicial intervention has arisen.
This is not, however, to say that there is somewhere an over-arching juridical principle or
theory, waiting to be discovered, that permits a ready answer to the question of when, or in
what types of cases, the need to show locus standi may be relaxed in greater or lesser
degree. To my knowledge, no satisfactory principle or theory has been discovered and
none has been crafted, whether in our jurisdiction or in the United States. 2 I have neither
the competence nor the opportunity to try to craft such principle or formula. It might,
however, be useful to attempt to indicate the considerations of principle which, in the
present case, appear to me to require an af rmative answer to the question of whether or
not petitioners are properly regarded as imbued with the standing necessary to bring and
maintain the present petition.
Firstly, the character of the funds or other assets involved in the case is of major
importance. In the case presently before the Court, the funds involved are clearly public in
nature. The funds to be generated by the proposed lottery are to be raised from the
population at large. Should the proposed operation be as successful as its proponents
project, those funds will come from well-nigh every town and barrio of Luzon. The funds
here involved are public in another very real sense: they will belong to the PCSO, a
government owned or controlled corporation and an instrumentality of the government
and are destined for utilization in social development projects which, at least in principle,
are designed to bene t the general public. My learned brothers Melo, Puno and Vitug, JJ.
concede that taxpayers' suits have been recognized as an exception to the traditional
requirement of locus standi. They insist, however, that because the funds here involved will
not have been generated by the exercise of the taxing power of the Government, the
present petition cannot be regarded as a taxpayer's suit and therefore, must be dismissed
by the Court. It is my respectful submission that constitutes much too narrow a
conception of the taxpayer's suit and of the public policy that it embodies. It is also to
overlook the fact that tax monies, strictly so called, constitute only one (1) of the major
categories of funds today raised and used for public purposes. It is widely known that the
principal sources of funding for government operations today include, not just taxes and
customs duties, but also revenues derived from activities of the Philippine Amusement
Gaming Corporation (PAGCOR), as well as the proceeds of privatization of government
owned or controlled corporations and other government owned assets. The interest of a
private citizen in seeing to it that public funds, from whatever source they may have been
derived, go only to the uses directed and permitted by law is as real and personal and
substantial as the interest of a private taxpayer in seeing to it that tax monies are not
intercepted on their way to the public treasury or otherwise diverted from uses prescribed
or allowed by law. It is also pertinent to note that the more successful the government is in
raising revenues by non-traditional methods such as PAGCOR operations and privatization
measures, the lesser will be the pressure upon the traditional sources of public revenues,
i.e., the pocket books of individual taxpayers and importers.
A second factor of high relevance is the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or instrumentality
of the government. A showing that a constitutional or legal provision is patently being
disregarded by the agency or instrumentality whose act is being assailed, can scarcely be
disregarded by court. The concept of locus standi — which is part and parcel of the
broader notion of ripeness of the case — "does not operate independently and is not alone
decisive. . . . [I]t is in substantial part a function of a judge's estimate of the merits of the
constitutional [or legal] issue." 3 The notion of locus standi and the judge's conclusions
about the merits of the case, in other words, interact with each other. Where the Court
perceives a serious issue of violation of some constitutional or statutory limitation, it will
be much less dif cult for the Court to nd locus standi in the petitioner and to confront the
legal or constitutional issue. In the present case, the majority of the Court considers that a
very substantial showing has been made that the Contract of Lease between the PCSO and
the PGMC flies in the face of legal limitations.
A third consideration of importance in the present case is the lack of any other party with a
more direct and speci c interest in raising the questions here being raised. Though a
public bidding was held, no losing or dissatis ed bidder has come before the Court. The
Of ce of the Ombudsman has not, to the knowledge of the Court, raised questions about
the legality or constitutionality of the Contract of Lease here involved. The National
Government itself, through the Of ce of the Solicitor General, is defending the PCSO
Contract (though it had not participated in the drafting thereof). In a situation like that here
obtaining, the submission may be made that the institution, so well known in corporation
law and practice, of the corporate stockholders' derivative suit furnishes an appropriate
analogy and that on the basis of such an analogy, a taxpayer's derivative suit should be
recognized as available.
The wide range of impact of the Contract of Lease here assailed and of its implementation,
constitutes still another consideration of signi cance. In the case at bar, the agreement if
implemented will be practically nationwide in its scope and reach (the PCSO-PGMC
Contract is limited in its application to the Island of Luzon; but if the PCSO Contracts with
the other two [2] private "gaming management" corporations in respect of the Visayas and
Mindanao are substantially similar to PCSO's Contract with PGMC, then the Contract
before us may be said to be national indeed in its implications and consequences).
Necessarily, the amounts of money expected to be raised by the proposed activities of the
PCSO and PGMC will be very substantial, probably in the hundreds of millions of pesos. It
is not easy to conceive of a contract with greater and more far-reaching consequences,
literally speaking, for the country than the Contract of Lease here involved. Thus, the
subject matter of the petition is not something that the Court may casually pass over as
unimportant and as not warranting the expenditure of significant judicial resources.
In the examination of the various features of this case, the above considerations have
appeared to me to be important and as pressing for acceptance and exercise of
jurisdiction on the part of this Court. It is with these considerations in mind that I vote to
grant due course to the Petition and to hold that the Contract of Lease between the PCSO
and PGMC in its present form and content, and given the present state of the law, is fatally
defective.
PADILLA, J., concurring:
My views against gambling are a matter of judicial record. In Basco v. PAGCOR , (G.R. No.
91649, 14 May 1991, 197 SCRA 52) I expressed these views in a separate opinion where I
was joined by that outstanding lady jurist, Mme. Justice A. Melencio-Herrera whose
incisive approach to legal problems is today missed in this Court. I reproduce here those
views because they are highly persuasive to the conclusions I reach in the present
controversy:
"I concur in the result of the learned decision penned by my brother Mr. Justice
Paras. This means that I agree with the decision insofar as it holds that the
prohibition, control, and regulation of the entire activity known as gambling
properly pertain to "state policy." It is, therefore, the political departments of
government, namely, the legislative and the executive that should decide on what
government should do in the entire area of gambling, and assume full
responsibility to the people for such policy.
The courts, as the decision states, cannot inquire into the wisdom, morality or
expediency of policies adopted by the political departments of government in
areas which fall within their authority, except only when such policies pose a clear
and present danger to the life, liberty or property of the individual. This case does
not involve such a factual situation.
However, I hasten to make of record that I do not subscribe to gambling in any
form. It demeans the human personality, destroys self-con dence and eviscerates
one's self-respect, which in the long run will corrode whatever is left of the Filipino
moral character. Gambling has wrecked and will continue to wreck families and
homes; it is an antithesis to individual reliance and reliability as well as personal
industry which are the touchstones of real economic progress and national
development.

Gambling is reprehensible whether maintained by government or privatized. The
revenues realized by the government out of "legalized" gambling will, in the long
run, be more than offset and negated by the irreparable damage to the people's
moral values.
Also, the moral standing of the government in its repeated avowals against
"illegal gambling" is fatally awed and becomes untenable when it itself engages
in the very activity it seeks to eradicate.
One can go through the Court's decision today and mentally replace the activity
referred to therein as gambling, which is legal only because it is authorized by law
and run by the government, with the activity known as prostitution. Would
prostitution be any less reprehensible were it to be authorized by law, franchised,
and "regulated" by the government, in return for the substantial revenues it would
yield the government to carry out its laudable projects, such as infrastructure and
social amelioration? The question, I believe, answers itself. I submit that the
sooner the legislative department outlaws all forms of gambling, as a
fundamental state policy, and the sooner the executive implements such policy,
the better it will be for the nation."
We presently have the sweepstakes lotteries; we already have the PAGCOR's gambling
casinos; the Filipino people will soon, if plans do not miscarry, be initiated into an even
more sophisticated and encompassing nationwide gambling network known as the "on-
line hi-tech lotto system." To be sure, it is not wealth producing; it is not export oriented. It
will draw from existing wealth in the hands of Filipinos and transfer it into the coffers of
the PCSO and its foreign partners at a price of further debasement of the moral standards
of the Filipino people, the bulk of whom are barely subsisting below the poverty line.
1. It is said that petitioners 1 have no locus standi to bring this suit even as they
challenge the legality and constitutionality of a contract of lease between the PCSO, a
government-owned corporation and the PGMC, a private corporation with substantial (if
not controlling) foreign composition and content. Such contract of lease contains the
terms and conditions under which an "on-line hi-tech lotto system" will operate in the
country.
As the ponente of the extended, unsigned en banc resolution in Valmonte v. PCSO , (G.R.
No. 78716 and G.R. No. 79084, 22 September 1987), I would be the last to downgrade the
rule, therein reiterated, that in order to maintain a suit challenging the constitutionality
and/or legality of a statute, order or regulation or assailing a particular governmental
action as done with grave abuse of discretion or with lack of jurisdiction, the petitioner
must show that he has a clear personal or legal right that would be violated with the
enforcement of the challenged statute, order or regulation or the implementation of the
questioned governmental action. But, in my considered view, this rule may be (and should
be) relaxed when the issue involved or raised in the petition is of such paramount national
interest and importance as to dwarf the above procedural rule into a barren technicality. As
a unanimous Court en banc aptly put it in De Guia vs. COMELEC, G.R. No. 104712, 6 May
1992, 208 SCRA 420,
"Before addressing the crux of the controversy, the Court observes that petitioner
does not allege that he is running for reelection, much less, that he is prejudiced
by the election, by district, in Parañaque. As such, he does not appear to have
locus standi, a standing in law, a personal or substantial interest. (Sanidad vs.
COMELEC, G.R. No. L-44640, October 12, 1976. 73 SCRA 333; Municipality of
Malabang vs. Benito, G.R. No. L-28113, March 28, 1969, 27 SCRA 533) He does
not also allege any legal right that has been violated by respondent. If for this
alone, petitioner does not appear to have any cause of action.
However, considering the importance of the issue involved, concerning as it does
the political exercise of quali ed voters affected by the apportionment, and
petitioner alleging abuse of discretion and violation of the Constitution by
respondent, We resolved to brush aside the question of procedural in rmity, even
as We perceive the petition to be one of declaratory relief. We so held similarly
through Mr. Justice Edgardo L. Paras in Osmeña vs. Commission on Elections."
I view the present case as falling within the De Guia case doctrine. For, when the contract
of lease in question seeks to establish and operate a nationwide gambling network with
substantial if not controlling foreign participation, then the issue is of paramount national
interest and importance as to justify and warrant a relaxation of the above-mentioned
procedural rule on locus standi.
2. The charter of the PCSO — Republic Act No. 1169 as amended by BP No. 42 —
insofar as relevant, reads:
"Sec. 1. The Philippine Charity Sweepstakes Of ce. — The Philippine Charity
Sweepstakes Of ce, hereinafter designated the Of ce, shall be the principal
government agency for raising and providing for funds for health programs,
medical assistance and services and charities of national character, and as such
shall have the general powers conferred in section thirteen of Act Numbered One
Thousand Four Hundred Fifty-Nine, as amended, and shall have the authority:
'A. To hold and conduct charity sweepstakes races, lotteries and other similar
activities, in such frequency and manner, as shall be determined, and subject to
such rules and regulations as shall be promulgated by the Board of Directors.
'B. Subject to the approval of the Minister of Human Settlements, to engage
in health and welfare-related investments, programs, projects and activities which
may be pro t-oriented, by itself or in collaboration, association or joint venture
with any person, association, company or entity, whether domestic or foreign,
except for the activities mentioned in the preceding paragraph (A), for the purpose
of providing for permanent and continuing sources of funds for health programs,
including the expansion of existing ones, medical assistance and services, and/or
charitable grants: Provided, That such investments will not compete with the
private sector in areas where investments are adequate as may be determined by
the National Economic and Development Authority."
It is at once clear from the foregoing legal provisions that, while the PCSO charter allows
the PCSO to itself engage in lotteries, it does not however permit the PCSO to undertake or
engage in lotteries in "collaboration, association or joint venture" with others. The palpable
reason for this prohibition is, that PCSO should not and cannot be made a vehicle for an
otherwise prohibited foreign or domestic entity to engage in lotteries (gambling activities)
in the Philippines.
The core question then is whether the lease contract between PCSO and PGMC is a device
whereby PCSO will engage in lottery in collaboration, association or joint venture with
another, i.e. PGMC. I need not go here into the details and different speci c features of the
contract to show that it is a joint venture between PCSO and PGMC. That has been taken
care of in the opinion of Mr. Justice Davide to which I fully subscribe.
On a slightly different plane and, perhaps simpli ed, I consider the agreement or
arrangement between the PCSO and PGMC a joint venture because each party to the
contract contributes its share in the enterprise or project. PGMC contributes its facilities,
equipment and know-how (expertise). PCSO contributes (aside from its charter) the
market, directly or through dealers — and this to me is most important — in the totality or
mass of the Filipino gambling elements who will invest in lotto tickets. PGMC will get its
4.9% of gross receipts (with assumption of certain risks in the course of lotto operations);
the residue of the whole exercise will go to PCSO. To any person with a minimum of
business know-how, this is a joint venture between PCSO and PGMC, plain and simple.
But assuming ex gratia argumenti that such arrangement between PCSO and PGMC is not
a joint venture between the two of them to install and operate an "on-line hi-tech lotto
system" in the country, it can hardly be denied that it is, at the very least, an association or
collaboration between PCSO and PGMC. For one cannot do without the other in the
installation, operation and, most importantly, marketing of the entire enterprises or project
in this country.
Indeed, the contract of lease in question is a clear violation of Republic Act No. 1169 as
amended by BP No. 42 (the PCSO charter).
Having arrived at the conclusion that the contract of lease in question between the PCSO
and PGMC is illegal and, therefore, invalid, I nd it unnecessary to dwell on the other issues
raised in the pleadings and arguments of the parties.
I, therefore, vote to give DUE COURSE to the petition and to declare the contract of lease in
question between PCSO and PGMC, for the reasons aforestated, of no force and effect.
MELO, J., dissenting:
I submit that the petition before the Court deserves no less than outright dismissal for the
reason that petitioners, as concerned citizens and as taxpayers and as members of
Congress, do not possess the necessary legal standing to assail the validity of the
contract of lease entered into by the Philippine Charity Sweepstakes Of ce and the
Philippine Gaming Management Corporation relative to the establishment and operation of
an "On-line Hi-Tech Lottery System" in the country.
As announced in Lamb vs. Phipps (22 Phil. [1912], 559), "[J]udicial power in its nature, is
the power to hear and decide causes pending between parties who have the right to sue
and be sued in the courts of law and equity." Necessarily, this implies that a party must
show a personal stake in the outcome of the controversy or an injury to himself that can be
addressed by a favorable decision so as to warrant his invocation of the court's
jurisdiction and to justify the court's remedial powers in his behalf ( Warth vs. Seldin, 422
U.S. 490; Guzman vs. Marrero, 180 U.S. 81; McMicken vs. United States, 97 U.S. 204). Here,
we have yet to see any of petitioners acquiring a personal stake in the outcome of the
controversy or being placed in a situation whereby injury may be sustained if the contract
of lease in question is implemented. It may be that the contract has somehow evoked
public interest which petitioners claim to represent. But the alleged public interest which
they pretend to represent is not only broad and encompassing but also strikingly and
veritably indeterminate that one cannot truly say whether a handful of the public, like herein
petitioners, may lay a valid claim of representation in behalf of the millions of citizens
spread all over the land who may have just as many varied reactions relative to the
contract in question.

Any effort to infuse personality on petitioners by considering the present case as a
"taxpayer's suit" could not cure the lack of locus standi on the part of petitioners. As
understood in this jurisdiction, a "taxpayer's suit" refers to a case where the act
complained of directly involves the illegal disbursement of public funds derived from
taxation (Pascual vs. Secretary of Public Works, 110 Phil. [1960] 331; Maceda vs.
Macaraig, 197 SCRA [1991]; Lozada vs. COMELEC, 120 SCRA [1983] 337; Dumlao vs.
COMELEC, 95 SCRA [1980] 392; Gonzales vs. Marcos, 65 SCRA [1975] 624). It cannot be
overstressed that no public fund raised by taxation is involved in this case. In fact, it is even
doubtful if the rentals which the PCSO will pay to the lessor for its operation of the lottery
system may be regarded as "public fund". The PCSO is not a revenue-collecting arm of the
government. Income or money realized by it from its operations will not and need not be
turned over to the National Treasury. Rather, this will constitute corporate funds which will
remain with the corporation to finance its various activities as authorized in its charter. And
if ever some semblance of "public character" may be said to attach to its earnings, it is
simply because PCSO is a government-owned or controlled entity and not a purely private
enterprise.
It must be conceded though that a "taxpayer's suit" had been allowed in a number of
instances in this jurisdiction. For sure, after the trail was blazed by Pascual vs. Secretary of
Public Works, supra, several more followed. It is to be noted, however, that in those
occasions where this Court allowed such a suit, the case invariably involved either the
constitutionality of a statute or the legality of the disbursement of public funds through the
enforcement of what was perceived to be an invalid or unconstitutional statute or
legislation (Pascual, supra; Philippine Constitution Association, Inc. vs. Jimenez, 15 SCRA
[1965] 479; Philippine Constitution Association, Inc. vs. Mathay, 18 SCRA [1966] 300;
Tolentino vs. COMELEC , 41 SCRA [1971] 702; Pelaez vs. Auditor General, 15 SCRA [1965]
569; Iloilo Palay and Corn Planters Association vs. Feliciano, 13 SCRA [1965] 377).
The case before us is not a challenge to the validity of a statute or an attempt to restrain
expenditure of public funds pursuant to an alleged invalid congressional enactment. What
petitioners ask us to do is to nullify a simple contract of lease entered into by a
government-owned corporation with a private entity. That contract, as earlier pointed out,
does not involve the disbursement of public funds but of strictly corporate money. If every
taxpayer, claiming to have interest in the contract, no matter how remote, could come to
this Court and seek nulli cation of said contract, the day may come when the activities of
government corporate entities will ground to a standstill on account of nuisance suits led
against them by persons whose supposed interest in the contract is as remote and as
obscure as the interest of any man in the street. The dangers attendant thereto are not
hard to discern and this Court must not allow them to come to pass.
One nal observation must be emphasized. When the petition at bench was led, the Court
decided to hear the case on oral argument on the initial perception that a constitutional
issue could be involved. However, it now appears that no question of constitutional
dimension is at stake as indeed the majority barely touches on such an issue,
concentrating as it does on its interpretation of the contract between the Philippine Charity
Sweepstakes Office and the Philippine Gaming Management Corporation.
I, therefore, vote to dismiss the petition.

At the outset, let me state that my religious faith and family upbringing compel me to
regard gambling, regardless of its garb, with hostile eyes. Such antagonism tempts me to
view the case at bench as a struggle between good and evil, a ght between the forces of
light against the forces of darkness. I will not, however, yield to that temptation for we are
not judges of the Old Testament type who were not only arbiters of law but were also high
priests of morality.
I will therefore strictly con ne the peregrinations of my mind to the legal issues for
resolution: (1) whether or not the petitioners have the locus standi to le the petition at
bench; and (2) assuming their locus standi, whether or not the Contract of Lease between
PCSO and PGMC is null and void considering: (a) section 1 of R.A. No. 1169, as amended
by B.P Blg. 42 (Charter of PCSO) which prohibits PCSO from holding and conducting
lotteries "in collaboration, association or joint venture with any person, association,
company or entity"; (b) Act No. 3836 which requires a congressional franchise before any
person or entity can establish and operate a telecommunication system; (c) section 11,
Art. XII of the Constitution, which requires that for a corporation to operate a public utility,
at least 60% of its capital must be owned by Filipino citizens; and (d) R.A. No. 7042,
otherwise known as the "Foreign Investments Act", which includes all forms of gambling in
its "negative list."
While the legal issues abound, I deferentially submit that the threshold issue is the locus
standi, or standing to sue, of petitioners. The petition describes petitioner Kilosbayan, Inc.,
as a non-stock corporation composed of "civic spirited citizens, pastors, priests, nuns, and
lay leaders who are committed to the cause of truth, justice, and national renewal." 1
Petitioners Jovito R. Salonga, Cirilo A. Rigos, Ernie Camba, Emilio C. Capulong, Jr., Jose
Abcede, Christine Tan, Felipe L. Gozon, Rafael G. Fernando, Raoul V. Victorino, Jose
Cunanan, and Quintin S. Doromal joined the petition in their capacity as trustees of
Kilosbayan, Inc., and as taxpayers and concerned citizens. 2 Petitioners Freddie Webb and
Wigberto Tañada joined the petition as senators, taxpayers and concerned citizens. 3
Petitioner Joker P. Arroyo joined the petition as a member of the House of Representative,
a taxpayer and a concerned citizen. 4
With due respect to the majority opinion, I wish to focus on the interstices of locus standi,
a concept described by Prof. Paul Freund as "among the most amorphous in the entire
domain of public law." The requirement of standing to sue inheres from the de nition of
judicial power. It is not merely a technical rule of procedure which we are at liberty to
disregard. Section 1, Article VIII of the Constitution provides:
xxx xxx xxx
"Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government." (Underscoring supplied)
The phrase "actual controversies involving rights which are legally demandable and
enforceable" has acquired a cultivated meaning given by courts. It spells out the
requirements that must be satis ed before one can come to court to litigate a
constitutional issue. Our distinguished colleague, Mr. Justice Isagani A. Cruz, gives a
shorthand summary of these requirements when he states that no constitutional
question will be heard and decided by courts unless there is a showing of the following:
. . . (1) there must be an actual case or controversy; (2) the question of constitutionality
must be raised by the proper party; (3) the constitutional question must be raised at
the earliest possible opportunity; and (4) the decision of the constitutional question
must be necessary to the determination of the case itself. 5
The complexion of the rule on locus standi has been undergoing a change. Mr. Justice Cruz
has observed the continuing relaxation of the rule on standing, 6 thus:
"xxx xxx xxx
"A proper party is one who has sustained or is in immediate danger of sustaining
an injury as a result of the act complained of. Until and unless such actual or
potential injury is established, the complainant cannot have the legal personality
to raise the constitutional question.
" I n Tileson v. Ullmann , a physician questioned the constitutionality of a law
prohibiting the use of contraceptives, upon the ground that it might prove
dangerous to the life or health of some of his patients whose physical condition
would not enable them to bear the rigors of childbirth. The court dismissed the
challenge, holding that the patients of the physician and not the physician
himself were the proper parties.
"In Cuyegkeng v. Cruz , the petitioner challenged in a quo warranto proceeding the
title of the respondent who, he claimed, had been appointed to the board of
medical examiners in violation of the provisions of the Medical Act of 1959. The
Supreme Court dismissed the petition, holding that Cuyegkeng had not made a
claim to the position held by Cruz and therefore could not be regarded as a proper
party who had sustained an injury as a result of the questioned act.
"In People v. Vera, it was held that the Government of the Philippines was a proper
party to challenge the constitutionality of the Probation Act because, more than
any other, it was the government itself that should be concerned over the validity
of its own laws.
"In Ex Parte Levitt, the petitioner, an American taxpayer and member of the bar,
led a motion for leave to question the quali cations of Justice Black who, he
averred, had been appointed to the U.S. Supreme Court in violation of the
Constitution of the United States. The Court dismissed the petition, holding that
Levitt was not a proper party since he was not claiming the position held by
Justice Black.
"The rule before was that an ordinary taxpayer did not have the proper party
personality to question the legality of an appropriation law since his interest in the
sum appropriated was not substantial enough. Thus, in Custodio v. Senate
President, a challenge by an ordinary taxpayer to the validity of a law granting
back pay to government of cials, including members of Congress, during the
period corresponding to the Japanese Occupation was dismissed as having been
commenced by one who was not a proper party.
"Since the first Emergency Powers Cases, however, the rule has been changed and
it is now permissible for an ordinary taxpayer, or a group of taxpayers, to raise the
question of the validity of an appropriation law. As the Supreme Court then put it.
'The transcendental importance to the public of these cases demands that they
be settled promptly and de nitely, brushing aside, if we must, technicalities of
procedure.'
"In Tolentino v. Commission on Elections , it was held that a senator had the
proper party personality to seek the prohibition of a plebiscite for the rati cation
of a proposed constitutional amendment. In PHILCONSA v. Jimenez , an
organization of taxpayers and citizens was held to be a proper party to question
the constitutionality of a law providing for special retirement bene ts for
members of the legislature.
"In Sanidad v. Commission on Elections, the Supreme Court upheld the petitioners
as proper parties, thus —
'As a preliminary resolution, We rule that the petitioners in L-44640
(Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to
challenge the constitutional premise of Presidential Decree Nos. 991, 1031,
and 1033. It is now an ancient rule that the valid source of a statute -
Presidential Decrees are of such nature - may be contested by one who will
sustain a direct injury as a result of its enforcement. At the instance of
taxpayers, laws providing for the disbursement of public lands may be
enjoined, upon the theory that the expenditure of public funds by an of cer
of the State for the purpose of executing an unconstitutional act
constitutes a misapplication of such funds. The breadth of Presidential
Decree No. 991 carries an appropriation of Five Million Pesos for the
effective implementation of its purposes. Presidential Decree No. 1031
appropriates the sum of Eight Million Pesos to carry out its provisions. The
interest of the aforenamed petitioners as taxpayers in the lawful
expenditure of these amounts of public money suf ciently clothes them
with that personality to litigate the validity of the Decrees appropriating
said funds. Moreover, as regard taxpayer's suits, this Court enjoys that
open discretion to entertain the same or not. For the present case, We deem
it sound to exercise that discretion af rmatively so that the authority upon
which the disputed Decrees are predicated may be inquired into.'
"In Lozada v. Commission on Elections, however, the petitioners were held without
legal standing to demand the lling of vacancies in the legislature because they
had only 'a generalized interest' shared with the rest of the citizenry."
Last July 30, 1993, we further relaxed the rule on standing in Oposa, et al. v. Hon.
Fulgencio S. Factoran, Jr., 7 where we recognized the locus standi of minors
representing themselves as well as generations unborn to protect their constitutional
right to a balanced and healthful ecology.
I am perfectly at peace with the drift of our decisions liberalizing the rule on locus standi.
The once stubborn disinclination to decide constitutional issues due to lack of locus
standi is incompatible with the expansion of judicial power mandated in section 1 of
Article VIII of the Constitution, i.e., "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." As we held thru the ground breaking ponencia of Mr.
Justice Cruz in Daza v. Singson , 8 this provision no longer precludes the Court from
resolving political questions in proper cases. But even perusing this provision as a
constitutional warrant for the court to enter the once forbidden political thicket, it is clear
that the requirement of locus standi has not been jettisoned by the Constitution for it still
commands courts in no uncertain terms to settle only "actual controversies involving
rights which are legally demandable and enforceable." Stated otherwise, courts are neither
free to decide all kinds of cases dumped into their laps nor are they free to open their
doors to all parties or entities claiming a grievance. The rationale for this constitutional
requirement of locus standi is by no means tri e. It is intended "to assure a vigorous
adversary presentation of the case, and, perhaps more importantly to warrant the
judiciary's overruling the determination of a coordinate, democratically elected organ of
government." 9 It thus goes to the very essence of representative democracies. As Mr.
Justice Powell carefully explained in U.S. v. Richardson, 1 0 viz:
"Relaxation of standing requirements is directly related to the expansion of
judicial power. It seems to me inescapable that allowing unrestricted taxpayer or
citizen standing would signi cantly alter the allocation of power at the national
level, with a shift away from a democratic form of government. I also believe that
repeated and essentially head-on confrontations between the life-tenured branch
and the representative branches of government will not, in the long run, be
bene cial to either. The public con dence essential to the former and the vitality
critical to the latter may well erode if we do not exercise self-restraint in the
utilization of our power to negative the actions of the other branches. We should
be ever mindful of the contradictions that would arise if a democracy were to
permit at large oversight of the elected branches of government by a
nonrepresentative, and in large measure insulated, judicial branch. Moreover, the
argument that the court should allow unrestricted taxpayer or citizen standing
underestimates the ability of the representative branches of the Federal
Government to respond to the citizen pressure that has been responsible in large
measure for the current drift toward expanded standing. Indeed, taxpayer or
citizen advocacy, given its potentially broad base, is precisely the type of leverage
that in a democracy ought to be employed against the branches that were
intended to be responsive to public attitudes about the appropriate operation of
government. 'We must as judges recall that, as Mr. Justice Holmes wisely
observed, the other branches of Government are ultimate guardians of the
liberties and welfare of the people in quite as great a degree as the courts.'
"Unrestrained standing in federal taxpayer or citizen suits would create a
remarkably illogical system of judicial supervision of the coordinate branches of
the Federal Government. Randolph's proposed Council of Revision, which was
repeatedly rejected by the Framers, at least had the virtue of being systematic;
every law passed by the legislature automatically would have been previewed by
the judiciary before the law could take effect. On the other hand, since the
judiciary cannot select the taxpayers or citizens who bring suit or the nature of the
suits, the allowance of public actions would produce uneven and sporadic review,
the quality of which would be in uenced by the resources and skill of the
particular plaintiff. And issues would be presented in abstract form, contrary to
the Court's recognition that 'judicial review is effective largely because it is not
available simply at the behest of a partisan faction, but is exercised only to
remedy a particular, concrete injury.' Sierra Club v. Morton , 405 U.S. 727, 740-741,
n. 16 (1972)."
A lesser but not insigni cant reason for screening the standing of persons who desire to
litigate constitutional issues is economic in character. Given the sparseness of our
resources, the capacity of courts to render ef cient judicial service to our people is
severely limited. For courts to indiscriminately open their doors to all types of suits and
suitors is for them to unduly overburden their dockets, and ultimately render themselves
ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our
judiciary today.
Prescinding from these premises, and with great reluctance, I am not prepared to concede
the standing to sue of petitioners. On a personal level, they have not shown that elemental
injury in fact which will endow them with a standing to sue. It must be stressed that
petitioners are in the main, seeking the nullity not of a law but of a Contract of Lease. Not
one of the petitioners is a party to the Contract of Lease executed between PCSO and
PGMC. None of the petitioners participated in the bidding, and hence they are not losing
bidders. They are complete strangers to the contract. They stand neither to gain nor to
lose economically by its enforcement. It seems to me unusual that an unaffected third
party to a contract could be allowed to question its validity. Petitioner Kilosbayan cannot
justify this of cious interference on the ground of its commitment to "truth, justice and
national renewal." Such commitment to truth, justice and national renewal, however noble it
may be, cannot give Kilosbayan a roving commission to check the validity of contracts
entered into by the government and its agencies. Kilosbayan is not a private commission
on audit.
Neither can I perceive how the other petitioners can be personally injured by the Contract
of Lease between PCSO and PGMC even if petitioner Salonga assails as unmitigated fraud
the statistical probability of winning the lotto as he compared it to the probability of being
struck twice by lightning. The reason is obvious: none of the petitioners will be exposed to
this alleged fraud for all of them profess to abjure playing the lotto. It is self-evident that
lotto cannot physically or spiritually injure him who does not indulge in it.
Petitioners also contend they have locus standi as taxpayers. But the case at bench does
not involve any expenditure of public money on the part of PCSO. In fact, paragraph 2 of
the Contract of Lease provides that it is PGMC that shall build, furnish, and maintain at its
own expense and risk the facilities for the On-Line Lottery System of PCSO and shall bear
all maintenance and other costs. Thus, PGMC alleged it has already spent P245M in
equipment and xtures and would be investing close to P1 billion to supply adequately the
technology and other requirements of PCSO. 1 1 If no tax money is being illegally de ected
in the Contract of Lease between PCSO and PGMC, petitioners have no standing to impugn
its validity as taxpayers. Our ruling in Dumlao v. Comelec , 1 2 settled this issue well enough,
viz:
"However, the statutory provisions questioned in this case, namely, sec, 7, BP Blg.
51, and sections 4, 1, and 5 BP Blg. 52, do not directly involve the disbursement of
public funds. While, concededly, the elections to be held involve the expenditure of
public moneys, nowhere in their Petition do said petitioners allege that their tax
money is 'being extracted and spent in violation of speci c constitutional
protections against abuses of legislative power' (Flast v. Cohen , 392 U.S. 83
[1960]), or that there is a misapplication of such funds by respondent COMELEC
(see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public
money is being de ected to any improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds through the enforcement of an
invalid or unconstitutional law. ( Philippine Constitution Association vs. Mathay ,
18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15
SCRA 479 [1965]}. Besides, the institution of a taxpayer's suit, per se, is no
assurance of judicial review. As held by this Court in Yan vs. Macapagal (43
SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested
with discretion as to whether or not a taxpayer's suit should be entertained."
Next, petitioners plead their standing as "concerned citizens." As citizens, petitioners are
pleading that they be allowed to advocate the constitutional rights of other persons who
are not before the court and whose protection is allegedly their concern. A citizen qua
citizen suit urges a greater relaxation of the rule on locus standi. I feel no aversion to the
further relaxation of the rule on standing to accommodate what in other jurisdictions is
known as an assertion of jus tertii in constitutional litigation provided the claimant can
demonstrate: (1) an injury in fact to himself, and (2) the need to prevent the erosion of a
preferred constitutional right of a third person. As stressed before, the rst requirement of
injury in fact cannot be abandoned for it is an essential element for the exercise of judicial
power. Again, as stressed by Mr. Justice Powell, viz: 1 3
"The revolution in standing doctrine that has occurred, particularly in the 12 years
since Baker v. Carr, supra, has not meant, however, that standing barriers have
disappeared altogether. As the Court noted in Sierra Club, 'broadening the
categories of injury that may be alleged in support of standing is a different
matter from abandoning the requirement that the party seeking review must
himself have suffered an injury.' 405 U.S., at 738 . . . Indeed, despite the
diminution of standing requirements in the last decade, the Court has not broken
with the traditional requirement that, in the absence of a speci c statutory grant
of the right of review, a plaintiff must allege some particularized injury that sets
him apart from the man on the street.
I recognize that the Court's allegiance to a requirement of particularized injury has
on occasion required a reading of the concept that threatens to transform it
beyond recognition. E.G., Baker v. Carr, supra; Flast v. Cohen, supra. But despite
such occasional digressions, the requirement remains, and I think it does so for
the reasons outlined above. In recognition of those considerations, we should
refuse to go the last mile towards abolition of standing requirements that is
implicit in broadening the 'precarious opening' for federal taxpayers created by
Flast, see 392 U.S., at 116 (Mr. Justice Fortas, concurring) or in allowing a citizen
qua citizen to invoke the power of the federal courts to negative unconstitutional
acts of the Federal Government.
In sum, I believe we should limit the expansion of federal taxpayer and citizen
standing in the absence of speci c statutory authorization to an outer boundary
drawn by the results in Flast and Baker v. Carr. I think we should face up to the
fact that all such suits are an effort 'to employ a federal court as a forum in which
to air . . . generalized grievances about the conduct of government or the
allocation of power in the Federal System.' Flast v. Cohen, 392 U.S., at 106. The
Court should explicitly reaf rm traditional prudential barriers against such public
actions. My reasons for this view are rooted in respect for democratic processes
and in the conviction that '[t]he powers of the federal judiciary will be adequate for
the great burdens placed upon them only if they are employed prudently, with.
recognition of the strengths as well as the hazards that go with our kind of
representative government.' Id., at 131
The second requirement recognizes society's right in the protection of certain preferred
rights in the Constitution even when the rightholders are not before the court. The theory is
that their dilution has a substantial fall out detriment to the rights of others, hence the
latter can vindicate them.
In the case at bench, it is dif cult to see how petitioners can satisfy these two
requirements to maintain a jus tertii claim. They claim violation of two constitutional
provisions, to wit:
"Sec. 1, Article XIII. — The 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."
and
"Sec. 11, Article XII. — No franchise, certi cate, or any other form of authorization
for the operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the
Philippines at least sixty per centum of whose capital is owned by such citizens,
nor shall such franchise, certi cate, or authorizations be exclusive in character or
for a longer period than fty years. Neither shall any such franchise or right be
granted except under the condition that it shall be subject to amendment,
alteration, or repeal by the Congress when the common good so requires. The
State shall encourage equity participation in public utilities by the general public.
The participation of foreign investors in the governing body of any public utility
enterprise shall be limited to their proportionate share in its capital, and all the
executive and managing of cers of such corporation or association must be
citizen of the Philippines."
Section 1, Article XIII of the Constitution cannot be the matrix of petitioners' jus tertii claim
for it expresses no more than a policy direction to the legislative in the discharge of its
ordained duty — to 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. Whether the act of the legislature in amending the charter of PCSO
by giving it the authority to conduct lotto and whether the Contract of Lease entered into
between PCSO and PGMC are incongruent to the policy direction of this constitutional
provision is a highly debatable proposition and can be endlessly argued. Respondents
steadfastly insist that the operation of lotto will increase the revenue base of PCSO and
enable government to provide a wider range of social services to the people. They also
allege that the operation of high-tech lotto will eradicate illegal jueteng . Petitioners are
scandalized by this submission. They dismiss gambling as evil per se and castigate
government for attempting to correct a wrong by committing another wrong. In any event,
the proper forum for this debate, however cerebrally exciting it may be, is not this court but
congress. So we held in PCSO v. Inopiquez, to wit: 1 4
"By bringing their suit in the lower court, the private respondents in G.R. No. 79084
do not question the power of PCSO to conduct the Instant Sweepstakes game.
Rather, they assail the wisdom of embarking upon this project because of their
fear of the 'pernicious repercussions' which may be brought about by the Instant
Sweepstakes Game which they have labelled as 'the worst form of gambling'
which thus 'affects the moral values' of the people.
"The Court, as held in several cases, does not pass upon questions of wisdom,
justice, or expediency of legislation and executive acts. It is not the province of the
courts to supervise legislation or executive orders as to keep them within the
bounds of property, moral values and common sense. That is primarily and even
exclusively a concern of the political departments of the government; otherwise,
there will be a violation of the principle of separation of powers." (Underscoring
supplied)
I am not also convinced that petitioners can justify their locus standi to advocate the rights
of hypothetical third parties not before the court by invoking the need to keep inviolate
section 11, Article XII of the Constitution which imposes a nationality requirement on
operators of a public utility. For even assuming arguendo that PGMC is a public utility, still,
the records do not at the moment bear out the claim of petitioners that PGMC is a foreign
owned and controlled corporation. This factual issue remains unsettled and is still the
subject of litigation by the parties in the Securities and Exchange Commission. We are not
at liberty to anticipate the verdict on this contested factual issue. But over and above this
consideration, I respectfully submit that this constitutional provision does not confer on
third parties any right of a preferred status comparable to the Bill of Rights whose dilution
will justify petitioners to vindicate them in behalf of its rightholders. The legal right of
hypothetical third parties they profess to advocate is to my mind too impersonal, too
unsubstantial, too indirect, too amorphous to justify their access to this Court and the
further lowering of the constitutional barrier of locus standi.
Again, with regret, I do not agree that the distinguished status of some of the petitioners
as lawmakers gives them the appropriate locus standi. I cannot perceive how their
constitutional rights and prerogatives as legislators can be adversely affected by the
contract in question. Their right to enact laws for the general conduct of our society
remains unimpaired and undiminished. 1 5 Their status as legislators, notwithstanding, they
have to demonstrate that the said contract has caused them to suffer a personal, direct,
and substantial injury in fact. They cannot simply advance a generic grievance in common
with the people in general.
I am not unaware of our ruling in De Guia v. Comelec, 1 6 viz:
"Before addressing the crux of the controversy, the Court observes that petitioner
does not allege that he is running for reelection, much less, that he is prejudiced
by the election, by district, in Parañaque. As such, he does not appear to have
locus standi, a standing in law, a personal or substantial interest. (Sanidad vs.
COMELEC, G.R. No. L-44640, October 12, 1976, 73 SCRA 333; Municipality of
Malabang vs. Benito, G.R. No. L-28113, March 28, 1969, 27 SCRA 533). He does
not also allege any legal right that has been violated by respondent. If for this
alone, petitioner does not appear to have any cause of action.
However, considering the importance of the issue involved, concerning as it does

the political exercise of quali ed voters affected by the apportionment, and
petitioner alleging abuse of discretion and violation of the Constitution by
respondent, We resolved to brush aside the question of procedural in rmity, even
as We perceive the petition to be one of declaratory relief. We so held similarly
through Mr. Justice Edgardo L. Paras in Osmeña vs. Commission on Elections."
It is my respectful submission, however, that we should re-examine de Guia. It treated

the rule on locus standi as a mere procedural rule. It is not a plain procedural rule but a
constitutional requirement derived from section 1, Article VIII of the Constitution which
mandates courts of justice to settle only "actual controversies involving rights which
are legally demandable and enforceable." The phrase has been construed since time
immemorial to mean that a party in a constitutional litigation must demonstrate a
standing to sue. By downgrading the requirement on locus standi as a procedural rule
which can be discarded in the name of public interest, we are in effect amending the
Constitution by judicial fiat.
De Guia would also brush aside the rule on locus standi if a case raises an important issue.
In this regard, I join the learned observation of Mr. Justice Feliciano: "that it is not enough
for the Court simply to invoke 'public interest' or even 'paramount considerations of
national interest,' and to say that the speci c requirements of such public interest can only
be ascertained on a 'case to case' basis. For one thing, such an approach is not
intellectually satisfying. For another, such an answer appears to come too close to saying
that locus standi exists whenever at least a majority of the Members of this Court
participating in a case feel that an appropriate case for judicial intervention has arisen."
I also submit that de Guia failed to perceive that the rule on locus standi has little to do
with the issue posed in a case, however, important it may be. As well pointed out in Flast v.
Cohen: 1 7
"The fundamental aspect of standing is that it focuses on the party seeking to get
his complaint before a federal court and not on the issues he wishes to have
adjudicated. The 'gist of the question of standing' is whether the party seeking
relief has 'alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of dif cult constitutional
questions.' Baker v. Carr, 369 U.S. 186, 204 (1962). In other words, when standing
is placed in issue in a case, the question is whether the person whose standing is
challenged is a proper party to request an adjudication of a particular issue and
not whether the issue itself is justiciable. Thus, a party may have standing in a
particular case, but the federal court may nevertheless decline to pass on the
merits of the case because, for example, it presents a political question. A proper
party is demanded so that federal courts will not be asked to decide 'ill-de ned
controversies over constitutional issues,' United Public Workers v. Mitchell, 330
U.S. 75, 90 (1947), or a case which is of 'a hypothetical or abstract character,'
Aetna Life Insurance Co. v. Haworth, 300 U.S. 277, 240 (1937)."
It is plain to see that in de Guia, the court took an unorthodox posture, to say the least.
It held there was no proper party before it, and yet it resolved the issues posed by the
petition. As there was no proper party before the court, its decision is vulnerable to be
criticized as an advisory opinion.
With due respect, the majority decision appears to have set a dangerous precedent by
unduly trivializing the rule on locus standi. By its decision, the majority has entertained a
public action to annul a private contract. In so doing, the majority may have given sixty (60)
million Filipinos the standing to assail contracts of government and its agencies. This is an
invitation for chaos to visit our law on contract, and certainly will not sit well with
prospective foreign investors. Indeed, it is dif cult to tread the path of the majority on this
signi cant issue. The majority granted locus standi to petitioners because of lack of any
other party with more direct and speci c interest. But one has standing because he has
standing on his own and standing cannot be acquired because others with standing have
refused to come to court. The thesis is also oated that petitioners have standing as they
can be considered taxpayers with right to le derivative suit like a stockholder's derivative
suit in private corporations. The fact, however, is that PCSO is not a private but a quasi-
public corporation. Our law on private corporation categorically sanctions stockholder's
derivative suit. In contrast, our law on public corporation does not recognize this so-called
taxpayer's derivative suit. Hence, the idea of a taxpayer's derivative suit, while alluring, has
no legal warrant.
Our brethren in the majority have also taken the unprecedented step of striking down a
contract at the importunings of strangers thereto, but without justifying the interposition
of judicial power on any felt need to prevent violation of an important constitutional
provision. The contract in question was voided on the sole ground that it violated an
ordinary statute, section 1 of R.A. 1169, as amended by B.P. Blg. 42. If there is no provision
of the Constitution that is involved in the case at bench, it boggles the mind how the
majority can invoke considerations of national interest to justify its abandonment of the
rule on locus standi. The volume of noise created by the case cannot magically convert it
to a case of paramount national importance. But its ruling, the majority has pushed the
Court in unchartered water bereft of any compass, and it may have foisted the false hope
that it is the repository of all remedies.
If I pay an unwavering reverence to the rule of locus standi, it is because I consider it as a
touchstone in maintaining the proper balance of power among the three branches of our
government. The survival of our democracy rests in a large measure on our ability to
maintain this delicate equipoise of powers. For this reason, I look at judicial review from a
distinct prism. I see it both as a power and a duty. It is a power because it enables the
judiciary to check excesses of the Executive and the Legislative. But, it is also a duty
because its requirement of locus standi, among others, keeps the judiciary from
overreaching the powers of the other branches of government. By balancing this duality,
we are able to breathe life to the principle of separation of powers and prevent tyranny. To
be sure, it is our eternal concern to prevent tyranny but that includes tyranny by ourselves.
The Constitution did not install a government by the judiciary, nay, not a government by the
unelected. In offering this submission, I reject the subliminal fear that an unyielding
insistence on the rule on locus standi will weaken the judiciary vis-a-vis the other branches
of government. The hindsight of history ought to tell us that it is not power per se that
strengthens. Power unused is preferable than power misused. We contribute to
constitutionalism both by the use of our power to decide and its non use. As well said, the
cases we decide are as signi cant as the cases we do not decide. Real power belongs to
him who has power over power.
IN VIEW WHEREOF, and strictly on the ground of lack of locus standi on the part of
petitioners, I vote to DENY the petition.
VITUG, J., dissenting:
Judicial power encompasses both an authority and duty to resolve "actual controversies
involving rights which are legally demandable and enforceable" (Article VIII, Section 1,
1987 Constitution). As early as the case of Lamb vs. Phipps, 1 this Court ruled: "Judicial
power, in its nature, is the power to hear and decide causes pending between parties who
have the right to sue in the courts of law and equity." 2 An essential part of, and corollary to,
this principle is the locus standi of a party litigant, referring to one who is directly affected
by, and whose interest is immediate and substantial in, the controversy. 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 his invocation of the court's
jurisdiction and to justify the exercise of the court's remedial powers in his behalf. 3 If it
were otherwise, the exercise of that power can easily become too unwieldy by its sheer
magnitude and scope to a point that may, in no small degree, adversely affect its intended
essentiality, stability and consequentiality.
Locus standi, nevertheless, admits of the so-called "taxpayer's suit." Taxpayer's suits are
actions or proceedings initiated by one or more taxpayers in their own behalf or,
conjunctively, in representation of others similarly situated for the purpose of declaring
illegal or unauthorized certain acts of public of cials which are claimed to be injurious to
their common interests as such taxpayers (Cf. 71 Am Jur 2d., 179-180). The principle is
predicated upon the theory that taxpayers are, in equity, the cestui que trust of tax funds,
and any illegal diminution thereof by public of cials constitutes a breach of trust even as it
may result in an increased burden on taxpayers (Haddock vs. Board of Public Education,
86 A2d 157; Henderson vs. McCormick, 17 ALR 2d 470).
Justice Brandeis of the United States Supreme Court, in his concurring opinion in
Ashwander vs. Tennessee Valley Authority (297 U.S. 288), said:
". . . . The Court will not pass upon the validity of a statute upon complaint of one
who fails to show that he is injured by its operation. Tyler v. The Judges, 179 U.S.
405; Hendrick v. Maryland, 234 U.S. 610, 621. Among the many applications of
this rule, none is more striking than the denial of the right of challenge to one who
lacks a personal or property right. Thus, the challenge by a public of cial
interested only in the performance of his of cial duty will not be entertained.
Columbus & Greenville Ry. v. Miller, 283, U.S. 96, 99-100. In Fairchild v. Hughes,
258 U.S. 126, the Court af rmed the dismissal of a suit brought by a citizen who
sought to have the Nineteenth Amendment declared unconstitutional. In
Massachusetts v. Mellon, 262 U.S. 447, the challenge of the federal Maternity Act
was not entertained although made by the Commonwealth on behalf of all its
citizens."
Justice Brandeis' view, shared by Justice Frankfurter in Joint Anti-Fascist Refugee

Commission vs. McGrath (351 U.S. 123), was adopted by the U.S. Supreme Court in
Flast vs. Cohen (392 U.S. 83) which held that it is only when a litigant is able to show
such a personal stake in the controversy as to assure a concrete adverseness in the
issues submitted that legal standing can attach.
A "taxpayer's suit," enough to confer locus standi to a party, we have held before, is
understood to be a case where the act complained of directly involves the illegal
disbursement of public funds derived from taxation. 4 It is not enough that the dispute
concerns public funds. A contrary rule could easily lead to a limitless application of the
term "taxpayer's suit," already by itself a broad concept, since a questioned act of
government would almost so invariably entail, as a practical matter, a nancial burden of
some kind.
To be sure, serious doubts have even been raised on the propriety and feasibility of
unquali edly recognizing the "taxpayer's suit" as an exception from the standard rule of
requiring a party who invokes the exercise of judicial power to have a real and personal
interest or a direct injury in the outcome of a controversy. This Court has heretofore
spoken on the matter, at times even venturing beyond the usual understanding of its
applicability in the name of national or public interest. It is remarkable, nevertheless, that
the accepted connotation of locus standi has still managed to be the rule, sanctioning, by
way of exception, the so-called "taxpayer's suit" which courts accept on valid and
compelling reasons.
A provision which has been introduced by the 1987 Constitution is a de nition, for the rst
time in our fundamental law, of the term "judicial power," as such authority and duty of
courts of justice "to settle actual controversies involving rights which are legally
demandable and enforceable and to determine whether or not there has been a grave
abuse of discretion, amounting to lack or excess of jurisdiction, on the part of any branch
or instrumentality of the Government" (Article VIII, Section 1, Constitution). I take it that the
provision has not been intended to unduly mutate, let alone to disregard, the long
established rules on locus standi. Neither has it been meant, I most respectfully submit, to
do away with the principle of separation of powers and its essential incidents such as by,
in effect, conferring omnipotence on, or allowing an intrusion by, the courts in respect to
purely political decisions, the exercise of which is explicitly vested elsewhere, and
subordinate, to that of their own, the will of either the Legislative Department or the
Executive Department -- both co-equal, independent and coordinate branches, along with
the Judiciary, in our system of government. Again, if it were otherwise, there indeed would
be truth to the charge, in the words of some constitutionalists, that "judicial tyranny" has
been institutionalized by the 1987 Constitution, an apprehension which should, I submit,
rather be held far from truth and reality.
In sum, while any act of government, be it executive in nature or legislative in character,
may be struck down and declared a nullity either because it contravenes an express
provision of the Constitution or because it is perceived and found to be attended by or the
result of grave abuse of discretion, amounting to lack or excess of jurisdiction, that issue,
however, must rst be raised in a proper judicial controversy. The Court's authority to look
into a grant relief in such cases would necessitate locus standi on the part of party
litigants. This requirement, in my considered view, is not merely procedural or technical but
goes into the essence of jurisdiction and the competence of courts to take cognizance of
justiciable disputes.
In Bugnay Construction and Development Corporation vs. Laron, 5 this Court ruled:
". . . . 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. (Citing Kapatiran vs. Tan. G.R. No. 81311, June 30, 1988).
"However, for the above rule to apply, it is exigent that the taxpayer-plaintiff
suf ciently show that he would be bene ted or injured by the judgment or entitled
to the avails of the suit as a real party in interest. (Citing Estate of George Litton
vs. Mendoza, G.R. No. 49120, June 30, 1988.) Before he can invoke the power of
judicial review, he must speci cally prove that he has suf cient interest in
preventing the illegal expenditure of money raised by taxation (citing 11 Am. Jur.
761; Dumlao, et al. vs. Commission on Elections, 95 SCRA 392) and that he will
sustain a direct injury as a result of the enforcement of the questioned statute or
contract. (Citing Sanidad, et al. vs. Commission on Elections, et al., 73 SCRA 333.)
It is not suf cient that he has merely a general interest common to all members
of the public. (Citing Ex Parte Levitt, 302 U.S. 633, cited in 15 SCRA 497,
Annotation.)
As so well pointed out by Mr. Justice Camilo D. Quiason during the Court's deliberations,
"due respect and proper regard for the rule on locus standi would preclude the rendition of
advisory opinions and other forms of pronouncement on abstract issues, avoid an undue
interference on matters which are not justiciable in nature and spare the Court from
getting itself involved in political imbroglio."
The words of Senate President Edgardo J. Angara, carry wisdom; we quote;

"The powers of the political branches of our government over economic policies is
rather clear: the Congress is to set in broad but de nite strokes the legal
framework and structures for economic development, while the Executive
provides the implementing details for realizing the economic ends identi ed by
Congress and executes the same.
"xxx xxx xxx
"If each economic decision made by the political branches of government,
particularly by the executive, are fully open to re-examination by the judicial
branch, then very little, if any, reliance can be placed by private economic actors
on those decisions. Investors would always have to factor in possible costs
arising from judicially-determined changes affecting their immediate business,
notwithstanding assurances by executive authorities.
"Judicial decisions are, in addition, in exible and can never substitute for sound
decision-making at the level of those who are assigned to execute the laws of the
land. Since judicial power cannot be exercised unless an actual controversy is
brought before the courts for resolution, decisions cannot be properly modi ed
unless another appropriate controversy arises." (Sen. Edgardo J. Angara, 'The
Supreme Court in Economic Policy Making,' Policy Review = A Quarterly Journal
of Policy Studies, Vol. 1, No. 1, January-March 1994, published by the Senate
Policy Studies Group, pp. 2-3.)
A further set-back in entertaining the petition is that it unfortunately likewise strikes at

factual issues. The allegations to the effect that irregularities have been committed in the
processing and evaluation of the bids to favor respondent PGMC; that the Malacañang
Special Review Committee did not verify warranties embodied in the contract; that the
operation of telecommunication facilities is indispensable in the operation of the lottery
system; the involvement of multi-national corporations in the operation of the on-line "hi-
tech" lottery system, and the like, require the submission of evidence. This Court is not a
trier of facts, and it cannot, at this time, resolve the above issues. Just recently, the Court
has noted petitioners' manifestation of its petition with the Securities and Exchange
Commission "for the nulli cation of the General Information Sheets of PGMC" in respect
particularly to the nationality holdings in the corporation. The doctrine of primary
jurisdiction would not justify a disregard of the jurisdiction of, nor would it permit us to
now preempt, said Commission on the matter.
Petitioners strongly assert, in an attempt to get the Court's concurrence in accepting the
petition, that since lottery is a game of chance, the "lotto" system would itself be a "crime
against morals" de ned by Articles 195-199 6 of the Revised Penal Code. Being immoral
and a criminal offense under the Revised Penal Code, petitioners contend, any special law
authorizing gambling must, by all canons of statutory constructions, be interpreted strictly
against the grantee. Citing previous decisions of this Court, they maintain that lottery is
gambling, pure and simple, 7 and that this Court has consistently condemned the
immorality and illegality of gambling to be a "national offense and not a minor
transgression;" 8 that it is a social scourge which must be stamped out;" 9 and, "that it is
pernicious to the body politic and detrimental to the nation and its citizens." 1 0
I most certainly will not renounce this Court's above concerns. Nevertheless, the Court
must recognize the limitations of its own authority. Courts neither legislate nor ignore legal
mandates. Republic Act No. 1169, as amended, explicitly gives public respondent PCSO
the authority and power "to hold and conduct sweepstakes races, lotteries, and other
similar activities." In addition, it is authorized:
"c. To undertake any other activity that will enhance its funds generation,
operations and funds management capabilities, subject to the same limitations
provided for in the preceding paragraph.
"It shall have a Board of Directors, hereinafter designated the Board, composed of
ve members who shall be appointed, and whose compensation and term of
office shall be fixed, by the President.
xxx xxx xxx
"Section 9. Powers and functions of the Board of Directors. — The Board of

Directors of the Office shall have the following powers and functions.
"(a) To adopt or amend such rules and regulations to implement the
provisions of this Act.
xxx xxx xxx
"(d) To promulgate rules and regulations for the operation of the Of ce and
to do such acts or acts as may be necessary for the attainment of its purposes
and objectives." (Underscoring supplied)
In People vs. Dionisio, 1 1 cited by the petitioners themselves, we remarked: "What evils
should be corrected as pernicious to the body politic, and how correction should be done,
is a matter primarily addressed to the discretion of the legislative department, not of the
courts. . . ." In Valmonte vs. PCSO, 1 2 we also said:
"The Court, as held in several cases, does not pass upon questions of wisdom,
justice or expediency of legislation and executive acts. It is not the province of the
courts to supervise legislation or executive orders as to keep them within the
bounds of propriety, moral values and common sense. That is primarily and even
exclusively a concern of the political departments of the government; otherwise,
there will be a violation of the principle of separation of powers."
The constraints on judicial power are clear. I feel, the Court must thus beg off, albeit not
without reluctance, from giving due course to the instant petition.
Accordingly, I vote for the dismissal of the petition.
I regret that I am unable to join my colleagues in the majority in spite of my own personal
distaste for gambling and other gaming operations. Such considerations aside, I feel there
are compelling reasons why the instant petition should be dismissed. I shall forthwith
state the reasons why.
Petitioners anchor their principal objections against the contract entered into between the
Philippines Charity Sweepstakes Of ce (PCSO and the PGMC on the ground that the
contract entered into by the PCSO with the PGMC violates the PCSO Charter (R.A. No.
1169 as amended by B.P. Blg 427, speci cally section 1 thereof which bars the said body
from holding conducting lotteries "in collaboration, association or joint venture with any
person association, company or entity."). However, a perusal of the petition reveals that the
compelling reasons behind it, while based on apparently legal questions involving the
contract between the PCSO and the PGMC, are prompted by the petitioners' moral
objections against the whole idea of gambling operations operated by the government
through the PCSO. The whole point of the petition, in essence, is a ght between good and
evil, between the morality or amorality of lottery operations conducted on a wide scale
involving millions of individuals and affecting millions of lives. Their media of opposition
are the above stated defects in the said contract which they assail to be fatally defective.
They come to this Court, as taxpayers and civic spirited citizens, asserting a right of
standing on a transcendental issue which they assert to be of paramount public interest.
Moral or legal questions aside, I believe that there are unfortunately certain standards 1
that have to be followed in the exercise of this Court's awesome power of review before
this Court could even begin to assay the validity of the contract between the PCSO and the
PGMC. This, in spite of the apparent expansion of judicial power granted by Section 1 of
Article VIII of the 1987 Constitution. It is fundamental that such standards be complied
with before this Court could even begin to explore the substantive issues raised by any
controversy brought before it, for no issue brought before this court could possibly be so
fundamental and paramount as to warrant a relaxation of the requisite rules for judicial
review developed by settled jurisprudence inorder to avoid entangling this court in
controversies which properly belong to the legislative or executive branches of our
government. The potential harm to our system of government, premised on the concept of
separation of powers, by the Court eager to exercise its powers and prerogatives at every
turn, cannot be gainsaid. The Constitution does not mandate this Court to wield the power
of judicial review with excessive vigor and alacrity in every area or at every turn, except in
appropriate cases and controversies which meet established requirements for
constitutional adjudication. Article VIII Sec. 1 of the Constitution notwithstanding, there are
questions which I believe are still beyond the pale of judicial power. Moreover, it is my
considered opinion that the instant petition does not meet the requirements set by this
court for a valid exercise of judicial review.
Our Constitution expressly de nes judicial power as including "the duty to settle
actual cases and 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 a lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." 2 This constitutional requirement for an actual case
and controversy limits this Court's power of review to precisely those suit between
adversary litigants with real interests at stake thus preventing it from making all sorts
of hypothetical pronouncements on abstract, contingent and amorphous issues. The
Court will therefore not pass upon the validity of an act of government or a statute
passed by a legislative body without a requisite showing of injury. 3 A personal stake is
essential, which absence renders our pronouncements gratuitous and certainly violative
of the constitutional requirement for actual cases and controversies.
The requirement for standing based on personal injury may of course be bypassed, as the
petitioners in this case attempt to do, by considering the case as a "taxpayer suit" which
would thereby clothe them with the personality they would lack under ordinary
circumstances, However, the act assailed by the petitioners on the whole involves the
generation rather than disbursement of public funds. In a line of cases starting from
Pascual v. Secretary of Public Works 4 "taxpayer suits" have been understood to refer only
to those cases where the act or statute assailed involves the illegal or unconstitutional
disbursement of public funds derived from taxation. The main premise behind the
"taxpayer suit" is that the pecuniary interest of the taxpayer is involved whenever there is an
illegal or wasteful use of public funds which grants them the right question the
appropriation or disbursement on the basis of their contribution to government funds. 5
Since it has not been alleged that an illegal appropriation or disbursement of a fund
derived from taxation would be made in the instant case, I fail to see how the petitioners in
this case would be able to satisfy the locus standi requirement on the basis of a
"taxpayer's suit". This alone should inhibit this Court from proceeding with the case at
bench. The interest alleged and the potential injury asserted are far too general and
hypothetical for us to rush into a judicial determination of what to me appears to be
judgment better left to executive branch of our government.
This bring me to one more important point: The idea that a norm of constitutional
adjudication could be lightly brushed aside on the mere supposition that an issue before
the Court is of paramount public concern does great harm to a democratic system which
espouses a delicate balance between three separate but co-equal branches of
government. It is equally of paramount public concern, certainly paramount to the survival
of our democracy, that acts of the other branches of government are accorded due
respect by this Court. Such acts, done within their sphere of competence, have been — and
should always be — accorded with a presumption of regularity. When such acts are
assailed as illegal or unconstitutional, the burden falls upon those who assail these acts to
prove that they satisfy the essential norms of constitutional adjudication, because when
we nally proceed to declare an act of the executive or legislative branch of our
government unconstitutional or illegal, what we actually accomplish is the thwarting of the
will of the elected representatives of the people in the executive or legislative branches
government. 6 Notwithstanding Article VIII, Section 1 of the Constitution, since the exercise
of the power of judicial review by this Court is inherently antidemocratic, this Court should
exercise a becoming modesty in acting as a revisor of an act of the executive or legislative
branch. The tendency of a frequent and easy resort to the function of judicial review,
particularly in areas of economic policy has become lamentably too common as to dwarf
the political capacity of the people expressed through their representatives in the policy
making branches of government and to deaden their sense of moral responsibility. 7
This court has been accused, of late, of an of cious tendency to delve into areas better left
to the political branches of government. 8 This tendency, if exercised by a court running riot
over the other co-equal branches of government, posses a greater danger to our
democratic system than the perceived danger — real or imagined — of an executive branch
espousing economic or social policies of doubtful moral worth. Moreover economic policy
decisions in the current milieu-including the act challenged in the instant case-involve
complex factors requiring exibility and a wide rage of discretion on the part of our
economic managers which this Court should respect because our power of review, under
the constitution, is a power to check, not to supplant those acts or decisions of the elected
representatives of the people.
Finally, the instant petition was brought to this Court on the assumption that the issue at
bench raises primarily constitutional issues. As it has ultimately turned out, the core
foundation of the petitioners' objections to the LOTTO operations was based on the
validity of the contract between the PCSO and the PGMC in the light of Section 1 of R.A.
1169 as amended by B.P. Blg. 427. It might have been much more appropriate for the
issue to have taken its normal course in the court below.
I vote to deny the petition.

Footnotes
1. PGMC's Comment, 3-4; Rollo, 181-182.
2. Annex "A," Id.; Id., 207-220.

3. Rollo, 210-211.
4. Rollo, 213.
5. Id., 215.
6. Id., 220.
7. PGMC's Comment, 7; Rollo, 184.
8. Annex "P" of Petition.
9. Annexes "L" and "N" of Petition.

10. Petition, 9; Rollo, 10. The announcement also stated that G-Tech Philippines, Inc. and
the Tanjong Public Limited Company had likewise been authorized to operate separate
lotto system.
11. Id.; Id.
12. Annex "C" of Petition.
13. Petition, 10; Rollo, 11. The meeting was called to deliberate on the proposed
nationwide on-line lottery program.
14. Id.; Id.
15. Id.; Id.
16. Annex "J" of Petition.
17. Annex "H" of Petition.
18. Rollo, 13-14.
19. Rollo, 16-19.

20. Id., 27-28; 30-32.
21. Id., 27.
22. Rollo, 35.
23. Id., 180-181.
24. Citing Teresa Electric & Power Co., Inc. vs. Public Service Commission , 21 SCRA 198
[1967].
25. 175 SCRA 262 [1989].
26. G.R. No. 78716, 22 September 1987.
27. Philippine Christian Lawyers Fellowship, Inc., Gamaliel G. Bongco, Oscar Karaan, and
Jedideoh Sincero (Rollo, 147); Catholic Lawyer's Guild of the Philippines, Inc., Enrique
Syquia, and Pacifico Ma. Castro, (Id., 154).
28. Rollo, 249 et seq.
29. G.R. No. L-2044 (Araneta vs. Dinglasan); G.R. No. L-2756 (Araneta vs. Angeles); G.R.
No. L-3054 (Rodriguez vs. Tesorero de Filipinas ); G.R. No. L-3055 (Guerrero vs.
Commissioner of Customs); and G.R. No. L-3056 (Barredo vs. Commission on
Elections), 84 Phil. 368. [1949].
30. Tan vs. Macapagal, 43 SCRA 677, 680 [1972].
31. Sanidad vs. Commission on Elections, 73 SCRA 333 [1976].
32. 112 SCRA 294, 314-315 [1982].
33. 163 SCRA 371, 378 [1988].
34. 197 SCRA 52, 60 [1991].
35. 175 SCRA 343, 364-365 [1989] (emphasis supplied).
36. 180 SCRA 496, 502 [1988].
37. 345 US 153, L ed 918, 735 Ct 609.

38. Philippine Constitution Association, Inc. vs. Gimenez, 15 SCRA 479 [1965].
39. Civil Liberties Union vs. Executive Secretary, 194 SCRA 317 [1991].
40. Guingona vs. Carague, 196 SCRA 221 [1991].
41. Osmeña vs. Commission on Elections, 199 SCRA 750 [1991].
42. Basco vs. Philippine Gaming and Amusement Corp., 197 SCRA 52 [1991].
43. Carpio vs. Executive Secretary, 206 SCRA 290 [1992].
44. Iloilo Palay and Corn Planters Association, Inc. vs. Feliciano, 13 SCRA 377 [1965].
45. Sanidad vs. Commission on Elections, supra.
46. Laurel vs. Garcia, 187 SCRA 797 [1990].
47. Garcia vs. Board of Investments, 177 SCRA 374 [1989]; Garcia vs. Board of
Investments, 191 SCRA 288 [1990].
48. Maceda vs. Macaraig, 197 SCRA 771 [1991].
49. Maceda vs. Energy Regulatory Board, 199 SCRA 454 [1991].
50. Garcia vs. Executive Secretary, 211 SCRA 219 [1992].
51. De Guia vs. Commission on Elections, 208 SCRA 420 [1992].
52. Pasay Law and Conscience Union, Inc. vs. Cuneta, 101 SCRA 662 [1980].
53. 62 SCRA 275 [1975].
54. Supra.
55. Record of the Batasan, vol. Two, 993.
56. Id., 1006-1007.

57. Record of the Batasan, vol. Two 1007 (emphasis supplied).
58. Id.
59. 36 AM. JUR. 2d. Franchises § 26 (1968).

60. 36 AM. JUR. 2d. Franchises § 63 (1968).
61. 38 AM. JUR. 2d. Gambling § 18 (1968).
62. Black's Law Dictionary, Sixth Ed., 88.
63. Id., 261.
64. Id., 121.
65. Id., 839.

66. PGMC's Comment; Rollo, 181-182.
67. It declares therein that it "has the legal authority under R.A. 1169, as amended, to hold
and conduct sweepstakes races, lotteries, and other similar activities."
68. Attached to the Contract of Lease as "Annex "A" is the Master Games Plan prepared by
the PGMC and approved by the PCSO.
FELICIANO, J., concurring:
1. The requirement of locus standi forms part of the "application of ordinary law
technique to the Constitution" which historically, in the United States, promoted and
reinforced the "legalization" or acceptance of the power of judicial review; S. Snowiss,
Judicial Review and the law of the Constitution, p. 197 (1990).
2. A stimulant effort is offered by Prof. Laurence H. Tribe, Constitutional Choices (1985),
Chap. 8. where he examined certain trends in, and circumstances relating to, the
caselaw of the Supreme Court of the United States which "make a satisfactory theory
of standing specially elusive" (p. 100).
3. A.M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 169
(1962); brackets supplied.
PADILLA, J., concurring:
1. KILOSBAYAN, INCORPORATED, a non-stock corporation composed of civic-spirited
citizens, pastors, priests, nuns and lay leaders who are committed to the cause of truth,
justice and national renewal as well as members of the Board of Trustees of
KILOSBAYAN as taxpayers and concerned citizens and senators Freddie Webb,
Wigberto Tañada and Representative Joker P. Arroyo as taxpayers, concerned citizens
and legislators.

2. Ibid, p. 6.
3. Ibid, p. 7.
4. Ibid.
5. Philippine Political Law, 1989 ed., p. 18 citing Dumlao v. COMELEC, 95 SCRA 392.
6. Ibid., citations omitted.
7. G.R. No. 101083.
8. G.R. No. 86344, 180 SCRA 496 [1989]
9. Dorsen, Bender, Neuborne, Political and Civil Rights in the United States, Vol. I, 4th ed.,
p. 1200.
10. 418 U.S. 166, 194 S. Ct. 2940, 41 L. Ed. 2d 678 [1974]
11. Manila Bulletin, April 21, 1994, pp. 1 and 8.
12. 95 SCRA 392, 403.
13. US v. Richardson, op. cit.
14. G.R. No. 79084, September 22, 1987.

15. Compare Coleman v. Miller, 307 US 433 [1939]; Mitchell v. Laird, 488 F2d 611 CD.C.
Cir. 973; Kennedy v. Sampson, 511 F2d 430 CD.C. Cir. 1974.
16. G.R. No. 104712, May 6, 1992, 208 SCRA 420.
17. 392 U.S. 83, 88 S. Ct. 1942, 20 L ed. 2d. 947 [1968].
VITUG, J., dissenting:
1. 22 Phil. 456, 559.
2. See also Lopez vs. Roxas, 17 SCRA 761.
3. Warth vs. Seldin, 422 U.S. 490, 498-499, 45 L.Ed. 2d 343, 95 S. Ct. 2197 (1975);
Guzman vs. Morrero, 180 U.S. 81, 45 L.Ed. 436, 21 S.Ct. 293 (1901); McMicken vs.
United States, 976 U.S. 204, 24 L.Ed. 947 (1978); Silver Star Citizens' Committee vs.
Orlando Fla. 194 So. 2d 681 (1967); In Re Kenison's Guardianship, 72 S.D. 180, 31 N.W.
2d 326 (1984).
4. S ee Pascual v. Secretary of Public Works , 110 Phil. 331; Maceda v. Macaraig , 197
SCRA 771; Lozada v. COMELEC , 120 SCRA 337; Dumlao vs. COMELEC, 95 SCRA 392;
Gonzales v. Marcos, 65 SCRA 624.
5. 176 SCRA 240, 251.
6. The provisions of Arts. 195-199 of the Revised Penal Code (Forms of Gambling and
Betting), Republic Act No. 3063 (Horse Racing Bookies), Presidential Decree No. 483
(Penalizing Betting, Game-fixing or Pointshaving and Machinations in Sports Contests);
No. 449, as amended (Cock gthing Law of 1974); No. 510 (Slot Machines) in relation
to Opinion Nos. 1306 (Jai-Alai Bookies) have been repealed by Presidential Decree No.
1602, otherwise known as the New Gambling Law (Prescribing Stiffer Penalties on
Illegal Gambling). Subsequently, Letter of Instruction No. 816 was issued which
excluded certain prohibited games under Presidential Decree No. 1602.
7. U.S. v. Filart, 30 Phil. 80, 83 [1915]; U.S. v. Baguio, 39 Phil. 962, 966.
8. Ly Hong v. Republic, 109 Phil., 635.
9. People v. De Gorostiza, et al., 77 Phil. 88.
10. People v. Dionisio, 22 SCRA 129.
11. 22 SCRA 1299, 1302.
12. G.R. No. 78716 and G.R. No. 79084, En Banc Resolution, 22 September 1987.
1. People v. Vera, 65 Phil. 56 (1937)
2. JACKSON, The Supreme Court in the America System of Government in McKay, An
American Constitutional Law Reader 30 (1958).
3. Ashwander v. Tennessee Valley Authority, 297 US 288, at 346-348 (1936).
4. 110 Phil. 331 (1960). See also Lozada v. COMELEC 120 SCRA 337 (1983); Dumlao v.
COMELEC, 95 SCRA 392 (1980); Maceda v. Macaraig, 197 SCRA 771, (1991).
5. Appeal of Sears, Roebuck and Co., 123 Ind., App.; 109 NE 2d., 620 (1952).
6. See A. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR
OF POLITICS 16-17 (1962).
7. Id., citing J.B. Thayer, JOHN MARSHALL, 106-107 (1901).
8. See Romulo, The Supreme Court and Economic Policy : A Plea for Judicial Abstinence
67 Phil. L.J. 348-353 (1993). See also Fernandez, Judicial Overreaching in Selected
Supreme Court Decisions Affecting Economic Policy, 67 Phil., L.J. 332-347 (1993) and
Castro and Pison, The Economic Policy Determining Function of the Supreme Court in
Times of National Crisis, 67 Phil. L.J. 354-411 (1993).

SECOND DIVISION
[G.R. No. 128448. February 1, 2001.]
SPOUSES ALEJANDRO MIRASOL and LILIA E. MIRASOL , petitioners,

vs . THE COURT OF APPEALS, PHILIPPINE NATIONAL BANK, and
PHILIPPINE EXCHANGE CO. INC. , respondents.
Alejandro M. Mirasol & Associates and Rodolfo V. Gumban & Carlos S. Ayeng for
petitioners.
The Chief Legal Counsel for respondent PNB.
SYNOPSIS
Petitioner spouses, sugarland owners and planters, entered into several crop loan
nancing schemes secured by chattel and real estate mortgages with respondent PNB.
The latter was authorized to negotiate and sell sugar produced and to apply the proceeds
to the payment of their obligations. Respondent PHILEX, under P.D. No. 579 (Rationalizing
and Stabilizing The Export of Sugar and For Other Purposes) was authorized to purchase
sugar allotted for export with PNB. An accounting was requested by petitioners, but PNB
failed to comply. Petitioners conveyed several properties to PNB as dacion en pago when
asked to settle their accounts. Petitioners reiterated their request for accounting, but PNB
again failed to heed the same. Thus, the ling of Civil Case No. 14725 for accounting,
speci c performance and damages against PNB. PHILEX was impleaded as party
defendant. The parties limited the issues to the constitutionality of PD No. 579, among
others, and the amount due to the parties. During the trial, petitioners alleged that the loans
granted them by PNB had been fully paid by virtue of compensation with the unliquidated
amounts owed to them by PNB. The trial court, without notice to the Solicitor General,
rendered judgment holding PD No. 579 unconstitutional, ordering private respondents to
pay petitioners the whole amount corresponding to the residue of the unliquidated actual
cost price of sugar exported and to pay moral damages and attorney's fees. On appeal, the
Court of Appeals declared the dacion en pago valid and ordered PNB to render an a
counting.
It was held that Regional Trial Courts have the authority and jurisdiction to rule on
the constitutionality of a statute, presidential decree or executive order. However, Section
3, Rule 64 of the Rules of Court provides that the Solicitor General must be noti ed of any
action assailing the validity of a statute, treaty, presidential decree, order or proclamation.
Without the required notice the government is deprived of its day in court and it was
improper for the trial court to pass upon the constitutionality of the questioned PD.
Courts, as a rule, should not resolve the constitutionality of a law if the controversy
can be settled on other ground.
Compensation or set off cannot take place where neither of the parties are mutually
creditors and debtors of each other and where one claim is still the subject of litigation.
Moral damages and attorney's fees are recoverable where fraud or bad faith are duly
proved.
SYLLABUS
1. REMEDIAL LAW; REGIONAL TRIAL COURTS; WITH AUTHORITY AND
JURISDICTION TO RULE ON CONSTITUTIONALITY OF STATUTE, PRESIDENTIAL DECREE
OR EXECUTIVE ORDER. — It is settled that Regional Trial Courts have the authority and
jurisdiction to consider the constitutionality of a statute, presidential decree, or executive
order. The Constitution vests the power of judicial review or the power to declare a law,
treaty, international or executive agreement, presidential decree, order, instruction,
ordinance, or regulation not only in this Court, but in all Regional Trial Courts . . . .
Furthermore, B.P. Blg. 129 grants Regional Trial Courts the authority to rule on the
conformity of laws or treaties with the Constitution.
2. ID.; ID.; ID.; NOTICE TO SOLICITOR GENERAL, MANDATORY. — It is basic legal
construction that where words of command such as "shall," "must," or "ought" are
employed, they are generally and ordinarily regarded as mandatory. Thus, where, as in Rule
64, Section 3 of the Rules of Court, the word "shall" is used, a mandatory duty is imposed,
which the courts ought to enforce. The purpose of the mandatory notice in Rule 64, Section
3 is to enable the Solicitor General to decide whether or not his intervention in the action
assailing the validity of a law or treaty is necessary. To deny the Solicitor General such
notice would be tantamount to depriving him of his day in court. We must stress that,
contrary to petitioners' stand, the mandatory notice requirement is not limited to actions
involving declaratory relief and similar remedies. The rule itself provides that such notice is
required in "any action" and not just actions involving declaratory relief. Where there is no
ambiguity in the words used in the rule, there is no room for construction. In all actions
assailing the validity of a statute, treaty, presidential decree, order, or proclamation, notice
to the Solicitor General is mandatory.
3. ID.; ID.; ID.; EFFECT OF FAILURE TO NOTIFY SOLICITOR GENERAL; CASE AT BAR.
— In this case, the Solicitor General was never noti ed about Civil Case No. 14725. Nor did
the trial court ever require him to appear in person or by a representative or to le any
pleading or memorandum on the constitutionality of the assailed decree. Hence, the Court
of Appeals did not err in holding that lack of the required notice made it improper for the
trial court to pass upon the constitutional validity of the questioned presidential decrees.
HTcADC
4. ID.; SUPREME COURT; REQUISITES FOR EXERCISE OF JUDICIAL REVIEW. —

Jurisprudence has laid down the following requisites for the exercise of this power: First,
there must be before the Court an actual case calling for the exercise of judicial review.
Second, the question before the Court must be ripe for adjudication. Third, the person
challenging the validity of the act must have standing to challenge. Fourth, the question of
constitutionality must have been raised at the earliest opportunity, and lastly, the issue of
constitutionality must be the very lis mota of the case.
5. ID.; ACTIONS; COURTS, AS A RULE, WILL NOT RESOLVE CONSTITUTIONALITY OF
LAW IF CONTROVERSY CAN BE SETTLED ON OTHER GROUNDS. — As a rule, the courts will
not resolve the constitutionality of a law, if the controversy can be settled on other
grounds. 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 rst 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.
6. ID.; ID.; ID.; CASE AT BAR. — The present case was instituted primarily for
accounting and speci c performance. The Court of Appeals correctly ruled that PNB's
obligation to render an accounting is an issue, which can be determined, without having to
rule on the constitutionality of P.D. No. 579. In fact there is nothing in P.D. No. 579, which is
applicable to PNB's intransigence in refusing to give an accounting. The governing law
should be the law on agency, it being undisputed that PNB acted as petitioners' agent. In
other words, the requisite that the constitutionality of the law in question be the very lis
mota of the case is absent. Thus we cannot rule on the constitutionality of P.D. No. 579.
7. STATUTORY CONSTRUCTION; IMPLIED REPEAL, NOT FAVORED. — Petitioners
further contend that the passage of R.A. No. 7202 rendered P.D. No. 579 unconstitutional,
since R.A. No. 7202 a rms that under P.D. 579, the due process clause of the Constitution
and the right of the sugar planters not to be deprived of their property without just
compensation were violated. A perusal of the text of R.A. No. 7202 shows that the
repealing clause of said law merely reads: "SEC. 10. All laws, acts, executive orders and
circulars in con ict herewith are hereby repealed or modi ed accordingly." The settled rule
of statutory construction is that repeals by implication are not favored. R.A. No. 7202
cannot be deemed to have repealed P.D. No. 579. In addition, the power to declare a law
unconstitutional does not lie with the legislature, but with the courts. Assuming arguendo
that R.A. No. 7202 did indeed repeal P.D. No. 579, said repeal is not a legislative
declaration finding the earlier law unconstitutional.
8. ID.; EVIDENCE; FINDINGS OF FACT BY COURT OF APPEALS, CONCLUSIVE AND
BINDING. — Findings of fact by the Court of Appeals are conclusive and binding upon this
Court unless said ndings are not supported by the evidence. Our jurisdiction in a petition
for review under Rule 45 of the Rules of Court is limited only to reviewing questions of law
and factual issues are not within its province. In view of the aforequoted nding of fact, no
manifest error is chargeable to the respondent court for refusing to pierce the veil of
corporate fiction.
9. CIVIL LAW; OBLIGATIONS AND CONTRACTS; COMPENSATION; REQUISITES. —
For legal compensation to take place, the requirements set forth in Article 1278 and 1279
of the Civil Code must be present. Said articles read as follows: "Art. 1278. Compensation
shall take place when two persons, in their own right, are creditors and debtors of each
other. Art. 1279. In order that compensation may be proper, it is necessary: (1) That each
one of the obligors be bound principally, and that he be at the same time a principal
creditor of the other; (2) That both debts consist in a sum of money, or if the things due
are consumable, they be of the same kind, and also of the same quality if the latter has
been stated; (3) That the two debts are due; (4) That they be liquidated and demandable;
(5) That over neither of them there be any retention or controversy, commenced by third
persons and communicated in due time to the debtor."
10. ID.; ID.; ID.; CASE AT BAR. — In the present case, set-off or compensation cannot
take place between the parties because: First, neither of the parties are mutually creditors
and debtors of each other. Under P.D. No. 579, neither PNB nor PHILEX could retain any
difference claimed by the Mirasols in the price of sugar sold by the two rms, P.D. No. 579
prescribed where the pro ts from the sales are to be paid . . . . Thus, as correctly found by
the Court of Appeals, "there was nothing with which PNB was supposed to have off-set
Mirasols' admitted indebtedness." Second, compensation cannot take place where one
claim, as in the instant case, is still the subject of litigation, as the same cannot be deemed
liquidated.
11. REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF TRIAL COURT, AFFIRMED
BY APPELLATE COURT, CONCLUSIVE ON APPEAL. — With respect to the duress allegedly
employed by PNB, which impugned petitioners' consent to the dacion en pago, both the
trial court and the Court of Appeals found that there was no evidence to support said
claim. Factual ndings of the trial court, a rmed by the appellate court, are conclusive
upon this Court.
12. CIVIL LAW; DAMAGES; MORAL DAMAGES FOR BREACH OF CONTRACT; FRAUD
OR BAD FAITH MUST BE DULY PROVED; CASE AT BAR. — An agent's failure to render an
accounting to his principal is contrary to Article 1891 of the Civil Code. The erring agent is
liable for damages under Article 1170 of the Civil Code . . . . Article 1170 of the Civil Code,
however, must be construed in relation to Article 2217 of said Code . . . . Moral damages
are explicitly authorized in breaches of contract where the defendant acted fraudulently or
in bad faith. Good faith, however, is always presumed and any person who seeks to be
awarded damages due to the acts of another has the burden of proving that the latter
acted in bad faith, with malice, or with ill motive. In the instant case, petitioners have failed
to show malice or bad faith on the part of PNB in failing to render an accounting. Absent
such showing, moral damages cannot be awarded.
13. ID.; ID.; ATTORNEY'S FEES; BAD FAITH MUST BE PROVED. — Under Article 2208
(5) of the Civil Code, attorney's fees are allowed in the absence of stipulation only if "the
defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's plainly
valid, just, and demandable claim." As earlier stated, petitioners have not proven bad faith
on the part of PNB and PHILEX.
DECISION
QUISUMBING , J : p
This is a petition for review on certiorari of the decision of the Court of Appeals
dated July 22, 1996, in CA-G.R. CV No. 38607, as well as of its resolution of January 23,
1997, denying petitioners' motion for reconsideration. The challenged decision reversed
the judgment of the Regional Trial Court of Bacolod City, Branch 42 in Civil Case No.
14725.
The factual background of this case, as gleaned from the records, is as follows:
The Mirasols are sugarland owners and planters. In 1973-1974, they produced
70,501.08 piculs 1 of sugar, 25,662.36 of which were assigned for export. The following
crop year, their acreage planted to the same crop was lower, yielding 65,100 piculs of
sugar, with 23,696.40 piculs marked for export.
Private respondent Philippine National Bank (PNB) nanced the Mirasols' sugar
production venture for crop years, 1973-1974 and 1974-1975 under a crop loan nancing
scheme. Under said scheme, the Mirasols signed Credit Agreements, a Chattel Mortgage
on Standing Crops, and a Real Estate Mortgage in favor of PNB. The Chattel Mortgage
empowered PNB as the petitioners' attorney-in-fact to negotiate and to sell the latter's
sugar in both domestic and export markets and to apply the proceeds to the payment of
their obligations to it.
Exercising his law-making powers under Martial Law, then President Ferdinand
Marcos issued Presidential Decree (P.D.) No. 579 2 in November, 1974. The decree
authorized private respondent Philippine Exchange Co., Inc. (PHILEX) to purchase sugar
allocated for export to the United States and to other foreign markets. The price and
quantity was determined by the Sugar Quota Administration, PNB, the Department of
Trade and Industry, and finally, by the Office of the President. The decree further authorized
PNB to nance PHILEX's purchases. Finally, the decree directed that whatever pro t
PHILEX might realize from sales of sugar abroad was to be remitted to a special fund of
the national government, after commissions, overhead expenses and liabilities had been
deducted. The government o ces and entities tasked by existing laws and administrative
regulations to oversee the sugar export pegged the purchase price of export sugar in crop
years 1973-1974 and 1974-1975 at P180.00 per picul.
PNB continued to nance the sugar production of the Mirasols for crop years 1975-
1976 and 1976-1977. These crop loans and similar obligations were secured by real
estate mortgages over several properties of the Mirasols and chattel mortgages over
standing crops. Believing that the proceeds of their sugar sales to PNB, if properly
accounted for, were more than enough to pay their obligations, petitioners asked PNB for
an accounting of the proceeds of the sale of their export sugar. PNB ignored the request.
Meanwhile, petitioners continued to avail of other loans from PNB and to make unfunded
withdrawals from their current accounts with said bank. PNB then asked petitioners to
settle their due and demandable accounts. As a result of these demands for payment,
petitioners on August 4, 1977, conveyed to PNB real properties valued at P1,410,466.00
by way of dacion en pago, leaving an unpaid overdrawn account of P1,513,347.78.
On August 10, 1982, the balance of outstanding sugar crop and other loans owed by
petitioners to PNB stood at P15,964,252.93. Despite demands, the Mirasols failed to
settle said due and demandable accounts. PNB then proceeded to extrajudicially foreclose
the mortgaged properties. After applying the proceeds of the auction sale of the
mortgaged realties, PNB still had a deficiency claim of P12,551,252.93.
Petitioners continued to ask PNB to account for the proceeds of the sale of their
export sugar for crop years 1973-1974 and 1974-1975, insisting that said proceeds, if
properly liquidated, could offset their outstanding obligations with the bank. PNB
remained adamant in its stance that under P.D. No. 579, there was nothing to account
since under said law, all earnings from the export sales of sugar pertained to the National
Government and were subject to the disposition of the President of the Philippines for
public purposes.
On August 9, 1979, the Mirasols led a suit for accounting, speci c performance,
and damages against PNB with the Regional Trial Court of Bacolod City, docketed as Civil
Case No. 14725.
On June 16, 1987, the complaint was amended to implead PHILEX as party-
defendant.
The parties agreed at pre-trial to limit the issues to the following:
"1. The constitutionality and/or legality of Presidential Decrees numbered
338, 579, and 1192;
"2. The determination of the total amount allegedly due the plaintiffs from
the defendants corresponding to the allege(d) unliquidated cost price of export
sugar during crop years 1973-1974 and 1974-1975." 3
After trial on the merits, the trial court decided as follows:

"WHEREFORE, the foregoing premises considered, judgment is hereby
rendered in favor of the plaintiffs and against the defendants Philippine National
Bank (PNB) and Philippine Exchange Co., Inc. (PHILEX):
(1) Declaring Presidential Decree 579 enacted on November 12, 1974 and
all circulars, as well as policies, orders and other issuances issued in furtherance
thereof, unconstitutional and therefore, NULL and VOID being in gross violation of
the Bill of Rights;
(2) Ordering defendants PNB and PHILEX to pay, jointly and severally,
plaintiffs the whole amount corresponding to the residue of the unliquidated
actual cost price of 25,662 piculs in export sugar for crop year 1973-1974 at an
average price of P300.00 per picul, deducting therefrom however, the amount of
P180.00 already paid in advance plus the allowable deductions in service fees
and other charges;
(3) And also, for the same defendants to pay, jointly and severally, same
plaintiffs the whole amount corresponding to the unpaid actual price of 14,596
piculs of export sugar for crop year 1974-1975 at an average rate of P214.14 per
picul minus however, the sum of P180.00 per picul already paid by the
defendants in advance and the allowable deducting (sic) in service fees and other
charges. CHDTIS
"The unliquidated amount of money due the plaintiffs but withheld by the
defendants, shall earn the legal rate of interest at 12% per annum computed from
the date this action was instituted until fully paid; and, finally —
(4) Directing the defendants PNB and PHILEX to pay, jointly and severally,
plaintiffs the sum of P50,000.00 in moral damages and the amount of
P50,000.00 as attorney's fees, plus the costs of this litigation.
"SO ORDERED." 4
The same was, however, modi ed by a Resolution of the trial court dated May 14,
1992, which added the following paragraph:
"This decision should however, be interpreted without prejudice to whatever
bene ts that may have accrued in favor of the plaintiffs with the passage and
approval of Republic Act 7202 otherwise known as the 'Sugar Restitution Law,'
authorizing the restitution of losses suffered by the plaintiffs from Crop year
1974-1975 to Crop year 1984-1985 occasioned by the actuations of government-
owned and controlled agencies. (Emphasis in the original).
"SO ORDERED." 5
The Mirasols then led an appeal with the respondent court, docketed as CA-G.R CV
No. 38607, faulting the trial court for not nullifying the dacion en pago and the mortgage
contracts, as well as the foreclosure of their mortgaged properties. Also faulted was the
trial court's failure to award them the full money claims and damages sought from both
PNB and PHILEX.
On July 22, 1996, the Court of Appeals reversed the trial court as follows:
"WHEREFORE, this Court renders judgment REVERSING the appealed
Decision and entering the following verdict:
"1. Declaring the dacion en pago and the foreclosure of the mortgaged
properties valid;
"2. Ordering the PNB to render an accounting of the sugar account of the
Mirasol[s] speci cally stating the indebtedness of the latter to the former and the
proceeds of Mirasols' 1973-1974 and 1974-1975 sugar production sold pursuant
to and in accordance with P.D. 579 and the issuances therefrom;
"3. Ordering the PNB to recompute in accordance with RA 7202 Mirasols'
indebtedness to it crediting to the latter payments already made as well as the
auction price of their foreclosed real estate and stipulated value of their properties
ceded to PNB in the dacon (sic) en pago;
"4. Whatever the result of the recomputation of Mirasols' account, the
outstanding balance or the excess payment shall be governed by the pertinent
provisions of RA 7202.
"SO ORDERED." 6
On August 28, 1996, petitioners moved for reconsideration, which the appellate
court denied on January 23, 1997.
Hence, the instant petition, with petitioners submitting the following issues for our
resolution:
"1. Whether the Trial Court has jurisdiction to declare a statute
unconstitutional without notice to the Solicitor General where the parties have
agreed to submit such issue for the resolution of the Trial Court.
"2.. Whether PD 579 and subsequent issuances 7 thereof are
unconstitutional.
"3. Whether the Honorable Court of Appeals committed manifest error in
not applying the doctrine of piercing the corporate veil between respondents PNB
and PHILEX.
upholding the validity of the foreclosure on petitioners property and in upholding
the validity of the dacion en pago in this case.
not awarding damages to petitioners grounds relied upon the allowance of the
petition. (Underscored in the original)" 8
On the rst issue . It is settled that Regional Trial Courts have the authority and
jurisdiction to consider the constitutionality of a statute, presidential decree, or executive
order. 9 The Constitution vests the power of judicial review or the power to declare a law,
treaty, international or executive agreement, presidential decree, order, instruction,
ordinance, or regulation not only in this Court, but in all Regional Trial Courts 1 0 In J.M.
Tuason and Co. v. Court of Appeals, 3 SCRA 696 (1961) we held:
"Plainly, the Constitution contemplates that the inferior courts should have
jurisdiction in cases involving constitutionality of any treaty or law, for it speaks
of appellate review of nal judgments of inferior courts in cases where such
constitutionality happens to be in issue." 1 1
Furthermore, B.P. Blg. 129 grants Regional Trial Courts the authority to rule on the
conformity of laws or treaties with the Constitution, thus:
"SECTION 19. Jurisdiction in civil cases. — Regional Trial Courts shall
exercise exclusive original jurisdiction:
(1) In all civil actions in which the subject of the litigations is incapable of
pecuniary estimation;"
The pivotal issue, which we must address, is whether it was proper for the trial court
to have exercised judicial review.
Petitioners argue that the Court of Appeals erred in nding that it was improper for
the trial court to have declared P.D. No. 579 1 2 unconstitutional, since petitioners had not
complied with Rule 64, Section 3, of the Rules of Court. Petitioners contend that said Rule
speci cally refers only to actions for declaratory relief and not to an ordinary action for
accounting, specific performance, and damages.
Petitioners' contentions are bereft of merit. Rule 64, Section 3 of the Rules of Court
provides:
"SECTION 3. Notice to Solicitor General. — In any action which involves the
validity of a statute, or executive order or regulation, the Solicitor General shall be
noti ed by the party attacking the statute, executive order, or regulation, and shall
be entitled to be heard upon such question."
This should be read in relation to Section 1 [c] of P.D. No. 478, 13 which states in
part:
"SECTION 1. Functions and Organizations — (1) The O ce of the Solicitor
General shall . . . have the following specific powers and functions: SDECAI
xxx xxx xxx

"[c] Appear in any court in any action involving the validity of any treaty,
law, executive order or proclamation, rule or regulation when in his judgment his
intervention is necessary or when requested by the court."
It is basic legal construction that where words of command such as "shall," "must,"
or "ought" are employed, they are generally and ordinarily regarded as mandatory. 1 4 Thus,
where, as in Rule 64, Section 3 of the Rules of Court, the word "shall" is used, a mandatory
duty is imposed, which the courts ought to enforce.
The purpose of the mandatory notice in Rule 64, Section 3 is to enable the Solicitor
General to decide whether or not his intervention in the action assailing the validity of a law
or treaty is necessary. To deny the Solicitor General such notice would be tantamount to
depriving him of his day in court. We must stress that, contrary to petitioners' stand, the
mandatory notice requirement is not limited to actions involving declaratory relief and
similar remedies. The rule itself provides that such notice is required in "any action" and not
just actions involving declaratory relief. Where there is no ambiguity in the words used in
the rule, there is no room for construction. 1 5 In all actions assailing the validity of a statute,
treaty, presidential decree, order, or proclamation, notice to the Solicitor General is
mandatory.
In this case, the Solicitor General was never noti ed about Civil Case No. 14725. Nor
did the trial court ever require him to appear in person or by a representative or to le any
pleading or memorandum on the constitutionality of the assailed decree. Hence, the Court
of Appeals did not err in holding that lack of the required notice made it improper for the
trial court to pass upon the constitutional validity of the questioned presidential decrees.
As regards the second issue, petitioners contend that P.D. No. 579 and its
implementing issuances are void for violating the due process clause and the prohibition
against the taking of private property without just compensation. Petitioners now ask this
Court to exercise its power of judicial review.
Jurisprudence has laid down the following requisites for the exercise of this power:
First, there must be before the Court an actual case calling for the exercise of judicial
review. Second, the question before the Court must be ripe for adjudication. Third, the
person challenging the validity of the act must have standing to challenge. Fourth, the
question of constitutionality must have been raised at the earliest opportunity, and lastly,
the issue of constitutionality must be the very lis mota of the case. 1 6
As a rule, the courts will not resolve the constitutionality of a law, if the controversy
can be settled on other grounds. 1 7 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 rst 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. 1 8
The present case was instituted primarily for accounting and speci c performance.
The Court of Appeals correctly ruled that PNB's obligation to render an accounting is an
issue, which can be determined, without having to rule on the constitutionality of P.D. No.
579. In fact there is nothing in P.D. No. 579, which is applicable to PNB's intransigence in
refusing to give an accounting. The governing law should be the law on agency, it being
undisputed that PNB acted as petitioners' agent. In other words, the requisite that the
constitutionality of the law in question be the very lis mota of the case is absent. Thus we
cannot rule on the constitutionality of P.D. No. 579.
Petitioners further contend that the passage of R.A. No. 7202 1 9 rendered P.D. No.
579 unconstitutional, since R.A. No. 7202 a rms that under P.D. 579, the due process
clause of the Constitution and the right of the sugar planters not to be deprived of their
property without just compensation were violated.
A perusal of the text of RA. No. 7202 shows that the repealing clause of said law
merely reads:
"SECTION 10. All laws, acts, executive orders and circulars in con ict
herewith are hereby repealed or modified accordingly."
The settled rule of statutory construction is that repeals by implication are not
favored. 2 0 R.A. No. 7202 cannot be deemed to have repealed P.D. No. 579. In addition, the
power to declare a law unconstitutional does not lie with the legislature, but with the
courts. 2 1 Assuming arguendo that R.A. No. 7202 did indeed repeal P.D. No. 579, said
repeal is not a legislative declaration finding the earlier law unconstitutional.
To resolve the third issue, petitioners ask us to apply the doctrine of piercing the veil
of corporate ction with respect to PNB and PHILEX. Petitioners submit that PHILEX was
a wholly-owned subsidiary of PNB prior to the latter's privatization.
We note, however, that the appellate court made the following finding of fact:
"1. PNB and PHILEX are separate juridical persons and there is no reason
to pierce the veil of corporate personality. Both existed by virtue of separate
organic acts. They had separate operations and different purposes and powers."
22
Findings of fact by the Court of Appeals are conclusive and binding upon this Court
unless said ndings are not supported by the evidence. 2 3 Our jurisdiction in a petition for
review under Rule 45 of the Rules of Court is limited only to reviewing questions of law and
factual issues are not within its province. 2 4 In view of the aforequoted nding of fact, no
manifest error is chargeable to the respondent court for refusing to pierce the veil of
corporate fiction.
On the fourth issue, the appellate court found that there were two sets of accounts
between petitioners and PNB, namely:
"1. The accounts relative to the loan nancing scheme entered into by the
Mirasols with PNB (PNB's Brief, p. 16) On the question of how much the PNB lent
the Mirasols for crop years 1973-1974 and 1974-1975, the evidence recited by the
lower court in its decision was de cient. We are offered (sic) PNB the amount of
FIFTEEN MILLION NINE HUNDRED SIXTY FOUR THOUSAND TWO HUNDRED
FIFTY TWO PESOS and NINETY THREE Centavos (Ps15,964,252.93) but this is
the alleged balance the Mirasols owe PNB covering the years 1975 to 1982.
"2. The account relative to the Mirasol's current account Numbers 5186
and 5177 involving the amount of THREE MILLION FOUR HUNDRED THOUSAND
Pesos (P3,400,000.00) PNB claims against the Mirasols. (PNB's Brief, p. 17)
"In regard to the first set of accounts, besides the proceeds from PNB's sale
of sugar (involving the defendant PHILEX in relation to the export portion of the
stock), the PNB foreclosed the Mirasols' mortgaged properties realizing therefrom
in 1982 THREE MILLION FOUR HUNDRED THIRTEEN THOUSAND Pesos
(P3,413,000.00), the PNB itself having acquired the properties as the highest
bidder.
"As to the second set of accounts, PNB proposed, and the Mirasols
accepted, a dacion en pago scheme by which the Mirasols conveyed to PNB
pieces of property valued at ONE MILLION FOUR HUNDRED TEN THOUSAND
FOUR HUNDRED SIXTY-SIX Pesos (Ps1,410,466.00) (PNB's Brief, pp. 16-17)." 2 5
Petitioners now claim that the dacion en pago and the foreclosure of their
mortgaged properties were void for want of consideration. Petitioners insist that the loans
granted them by PNB from 1975 to 1982 had been fully paid by virtue of legal
compensation. Hence, the foreclosure was invalid and of no effect, since the mortgages
were already fully discharged. It is also averred that they agreed to the dacion only by
virtue of a martial law Arrest, Search, and Seizure Order (ASSO).
We nd petitioners' arguments unpersuasive. Both the lower court and the appellate
court found that the Mirasols admitted that they were indebted to PNB in the sum stated
in the latter's counterclaim. 2 6 Petitioners nonetheless insist that the same can be offset by
the unliquidated amounts owed them by PNB for crop years 1973-74 and 1974-75.
Petitioners' argument has no basis in law. For legal compensation to take place, the
requirements set forth in Articles 1278 and 1279 of the Civil Code must be present. Said
articles read as follows:
"ARTICLE 1278. Compensation shall take place when two persons, in their
own right, are creditors and debtors of each other.
"ARTICLE 1279. In order that compensation may be proper, it is necessary:
(1) That each one of the obligors be bound principally, and that he be at
the same time a principal creditor of the other;
(2) That both debts consist in a sum of money, or if the things due are
consumable, they be of the same kind, and also of the same quality if the latter
has been stated;
(3) That the two debts are due;
(4) That they be liquidated and demandable;
(5) That over neither of them there be any retention or controversy,

commenced by third persons and communicated in due time to the debtor."
In the present case, set-off or compensation cannot take place between the parties
because:
First, neither of the parties are mutually creditors and debtors of each other. Under
P.D. No. 579, neither PNB nor PHILEX could retain any difference claimed by the Mirasols
in the price of sugar sold by the two rms. P.D. No. 579 prescribed where the pro ts from
the sales are to be paid, to wit:
"SECTION 7. . . . After deducting its commission of two and one-half (2-
1/2%) percent of gross sales, the balance of the proceeds of sugar trading
operations for every crop year shall be set aside by the Philippine Exchange
Company, Inc,. as pro ts which shall be paid to a special fund of the National
Government subject to the disposition of the President for public purposes."
Thus, as correctly found by the Court of Appeals, "there was nothing with which PNB
was supposed to have off-set Mirasols' admitted indebtedness." 2 7
Second, compensation cannot take place where one claim, as in the instant case, is
still the subject of litigation, as the same cannot be deemed liquidated. 2 8
With respect to the duress allegedly employed by PNB, which impugned petitioners'
consent to the dacion en pago, both the trial court and the Court of Appeals found that
there was no evidence to support said claim. Factual ndings of the trial court, a rmed by
the appellate court, are conclusive upon this Court. 2 9
On the fth issue, the trial court awarded petitioners P50,000.00 in moral damages
and P50,000.00 in attorney's fees. Petitioners now theorize that it was error for the Court
of Appeals to have deleted these awards, considering that the appellate court found PNB
breached its duty as an agent to render an accounting to petitioners.
An agent's failure to render an accounting to his principal is contrary to Article 1891
of the Civil Code. 3 0 The erring agent is liable for damages under Article 1170 of the Civil
Code, which states:
"Those who in the performance of their obligations are guilty of fraud,
negligence, or delay, and those who in any manner contravene the tenor thereof,
are liable for damages."
Article 1170 of the Civil Code, however, must be construed in relation to Article 2217
of said Code which reads:
"Moral damages include physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury. Though incapable of pecuniary computation,
moral damages may be recovered if they are the proximate result of the
defendant's wrongful act or omission."
Moral damages are explicitly authorized in breaches of contract where the

defendant acted fraudulently or in bad faith. 3 1 Good faith, however, is always presumed
and any person who seeks to be awarded damages due to the acts of another has the
burden of proving that the latter acted in bad faith, with malice, or with ill motive. In the
instant case, petitioners have failed to show malice or bad faith 3 2 on the part of PNB in
failing to render an accounting. Absent such showing, moral damages cannot be awarded.
Nor can we restore the award of attorney's fees and costs of suit in favor of
petitioners. Under Article 2208 (5) of the Civil Code, attorney's fees are allowed in the
absence of stipulation only if "the defendant acted in gross and evident bad faith in
refusing to satisfy the plaintiff's plainly valid, just, and demandable claim." As earlier stated,
petitioners have not proven bad faith on the part of PNB and PHILEX. IECcaA
WHEREFORE, the instant petition is DENIED and the assailed decision of the
respondent court in CA-G.R. CV 38607 AFFIRMED. Costs against petitioners.
SO ORDERED.
Bellosillo, Mendoza, Buena and De Leon, Jr., JJ ., concur.
Footnotes
1. One picul is equivalent to 63.25 kilograms.

2. The decree was entitled "Rationalizing and Stabilizing The Export of Sugar And For Other
Purposes."
3. Rollo, p. 78.
4. Id. at 104-105.
5. Id. at 110.
6. Id. at 88-89.
7. These include Circular Letter No. 24 dated October 25, 1974 which designates PHILEX to
undertake the liquidation, buying and disposition of "B" sugar quedans; Circular Letter
No. 13 s. 1974-1975 issued on May 5, 1975 which outlines the revision of the pricing
policy for sugar for crop year 1974-1975; and Circular Letter No. 24 s. 1974-1975 which
outlines the fixing of the price of sugar covering production starting May 5, 1975.
8. Supra Note 6, at 32-33.
9. Drilon v. Lim, 235 SCRA 135, 139 (1994).

10. CONST. Art. VIII, Sec. 5 (2).
11. 3 SCRA 696, 703-704 (1961).
12. Rationalizing and stabilizing the export of sugar and for other purposes.
13. Defining the powers and functions of the Office of the Solicitor General.

14. Brehm v. Republic, 9 SCRA 172, 176 (1963).
15. Republic v. Court of Appeals, 299 SCRA 199, 227 (1998).
16. Board of Optometry v. Colet, 260 SCRA 88, 103 (1996) citing Garcia vs. Executive Secretary,
204 SCRA 516, S22 (1991); Santos vs. Northwest Orient Airlines, 210 SCRA 256, 261
(1992).
17. Ty v. Trampe, 250 SCRA 500, 520 (1995).
18. Drilon v. Lim, supra.

19. An Act Authorizing the Restitution of Losses Suffered by Sugar Producers from Crop Year
1974-1975 to Crop Year 1984-1985 Due to the Actions of Government-Owned and
Controlled Agencies.
20. Manzano v. Valera, 292 SCRA 66, 76 (1998); Garcia v. Burgos, 291 SCRA 547, 575 (1998)
citing Frivaldo vs. Commission on Elections, 257 SCRA 727, 743-744 (1996).
21. Angara v. Electoral Commission, 63 Phil. 139, 175 (1936).
22. Rollo, p. 78.

23. Guerrero v. Court of Appeals, 285 SCRA 670, 678 (1998).
24. Congregation of the Religious of the Virgin Mary v. Court of Appeals, 291 SCRA 385, 391-
392 (1998).
25. Rollo, p. 85.
26. Id. at 86.
27. Id. at 87.

28. Silahis Marketing Corp. v. Intermediate Appellate Court, 180 SCRA 21, 25 (1989); Compania
Maritima v. Court of Appeals, 135 SCRA 593 (1985).
29. Salao v. Court of Appeals, 284 SCRA 493, 498 (1998) citing Catapusan v. Court of Appeals,
264 SCRA 534 (1996); People vs. Flores, 243 SCRA 374 (1995); Lufthansa German
Airlines v. Court of Appeals, 243 SCRA 600 (1995).
30. Article 1891 of the Civil Code reads:
"Every agent is bound to render an account of his transactions and to deliver to the
principal whatever he may have received by virtue of the agency, even though it may
not be owing to the principal.
"Every stipulation exempting the agent from the obligation to render an account
shall be void."
31. Del Rosario v. Court of Appeals, 267 SCRA 158, 172 (1997) citing CIVIL CODE, ART. 2220.
32. BPI Express Card Corp. v. Court of Appeals, 296 SCRA 260, 272 (1998) citing Barons
Marketing Corp. vs. Court of Appeals, 286 SCRA 96 (1998).

EN BANC
[G.R. No. 59524. February 18, 1985.]
JOVITO R. SALONGA, petitioner, vs. HON. ERNANI CRUZ PAÑO,

Presiding Judge of the Court of First Instance of Rizal,
Branch XVIII (Quezon City), HON. JUDGE RODOLFO ORTIZ,
Presiding Judge of the Court of First Instance of Rizal,
Branch XXXI (Quezon City) CITY FISCAL SERGIO APOSTOL of
Quezon City; COL. BALBINO DIEGO and COL. ROMAN
MADELLA, respondents.
Salonga, Ordoñez, Yap, Corpuz, and Padlan for petitioner.

Solicitor General for respondents.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; DENIAL OF A MOTION

TO QUASH OR TO DISMISS CANNOT BE QUESTIONED BY CERTIORARI; RULE NOT
APPLICABLE WHERE THERE IS FAILURE TO SHOW PRIMA FACIE THAT A PERSON
IS GUILTY. — The respondents call for adherence to the consistent rule that the
denial of a motion to quash or to dismiss, being interlocutory in character, cannot
be questioned by certiorari; that since the question of dismissal will again be
considered by the court when it decides the case, the movant has a plain, speedy
and adequate remedy in the ordinary course of law; and that public interest
dictates that criminal prosecutions should not be enjoined. The general rule is
correctly stated. However, the respondents fail to appreciate or take into account
certain exceptions when a petition for certiorari is clearly warranted. The case at
bar is one such exception. In the light of the failure to show prima facie that the
petitioner was probably guilty of conspiring to commit the crime, the initial
disregard of petitioner's constitutional rights together with the massive and
damaging publicity made against him, justifies the favorable consideration of this
petition by this Court.
2. ID.; EVIDENCE; "PRIMA FACIE EVIDENCE"; EVIDENCE MUST BE SUFFICIENT
TO OVERCOME PRESUMPTION OF INNOCENCE. — Infinitely more important than
conventional adherence to general rules of criminal procedure is respect for the
citizen's fight to be free not only from arbitrary arrest and punishment but also
from unwarranted and vexatious prosecution. The integrity of a democratic
society is corrupted if a person is carelessly included in the trial of around forty
persons when on the very face of the record no evidence linking him to the
alleged conspiracy exists. The term "prima facie evidence" denotes evidence
which, if unexplained or uncontradicted, is sufficient to sustain the proposition it
supports or to establish the facts, or to counterbalance the presumption of
innocence to warrant a conviction.

3. ID.; ID.; HEARSAY RULE; TESTIMONY BASED ON ANOTHER PERSON'S
AFFIDAVITS ARE HEARSAY AND HAS NO PROBATIVE VALUE; INQUEST JUDGE
SHOULD CONFINE INVESTIGATION TO SOLE WITNESS. — Col. Diego, on the
other hand, when asked what evidence he was able to gather against the
petitioner depended only on the statement of Lovely "that it was the residence
of ex-Senator Salonga where they met together with Renato Tanada, one of the
brains of the bombing conspiracy . . . and the fact that Sen. Salonga has been
meeting with several subversive personnel based in the U.S.A. was also revealed
to me by Victor Burns Lovely"; and on the group pictures taken at former
Congressman Raul Daza's birthday party. In concluding that a conspiracy exists
to overthrow by violent means the government of the Philippines in the United
States, his only bases were "documentary as well as physical and sworn
statements that were referred to me or taken by me personally," which of course
negate personal knowledge on his part. Testimony based on affidavits of other
persons and purely hearsay, can hardly qualify as prima facie evidence of
subversion. It should not have been given credence by the court in the first place.
Hearsay evidence, whether objected to or not, has no probative value as the
affiant could not have been cross-examined on the facts stated therein. (See
People v. Labinia, 115 SCRA 223; People v. Valero, 112 SCRA 661). Moreover, as
Victor Lovely, himself, was personally examined by the court, there was no need
for the testimony of Col. Diego. Thus, the inquest judge should have confined his
investigation to Victor Burns Lovely, the sole witness whose testimony has
apparently implicated petitioner in the bombings which eventually led to the
filing of the information.
4. ID.; ID.; INDICTING A PERSON BECAUSE PLOTTERS MET IN HIS HOUSE, A
DANGEROUS PRECEDENT. — The jump from the "contact point" theory to the
conclusion of involvement in subversive activities in the United States is not only
inexplicable but without foundation. The respondents admit that no evidence
was presented directly linking petitioner Salonga to actual acts of violence or
terrorism. There is no proof of his direct participation in any overt acts of
subversion. The "contact point" theory or what the petitioner calls the "guilt by
visit or guilt by association" theory is too tenuous a basis to conclude that
Senator Salonga was a leader or mastermind of the bombing incidents. To indict a
person simply because some plotters, masquerading as visitors, have somehow
met in his house or office would be to establish a dangerous precedent. The right
of citizens to be secure against abuse of governmental processes in criminal
prosecutions would be seriously undermined.
5. ID.; ID.; CREDIBILITY OF WITNESSES; TESTIMONY THAT PETITIONER WHO
WAS DEAF AND ANOTHER WHISPERED TO EACH OTHER IS INCONSISTENT. —
The testimony of Victor Lovely against petitioner Salonga is full of
inconsistencies. Senator Salonga and Atty. Renato Tanada could not have
whispered to one another because the petitioner is almost totally deaf. Lovely
could not have met Senator Salonga at a Manglapus party in Washington, D.C. in
1977 because the petitioner left for the United States only in November, 1978.
Senator Salonga denies having known Mr. Lovely in the United States or in the
Philippines. He states that he has hundred of visitors from week to week in his
residence but cannot recall any Victor Lovely.
6. ID.; ID.; PHOTOGRAPH; PRESENCE IN A GROUP PICTURE IS NOT PROOF OF
CONSPIRACY. — The presence of Lovely in a group picture taken at Mr. Raul
Daza's birthday party in Los Angeles where Senator Salonga was a guest is not
proof of conspiracy. As stated by the petitioner, in his many years in the
turbulent world of politics, he has posed with all kind of people in various groups
and various places and could not possibly vouch for their conduct. Commenting
on the matter, newspaper columnist Teodoro Valencia stated that Filipinos love to
pose with important visitors and the picture proves nothing. More credible and
stronger evidence is necessary for an indictment. Nonetheless, even if we
discount the flaws in Lovely's testimony and dismiss the refutations and
arguments of the petitioner, the prosecution evidence is still inadequate to
establish a prima facie finding.
7. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF THOUGHT AND
EXPRESSION; OPINION ON THE LIKELIHOOD OF A VIOLENT STRUGGLE, A
LEGITIMATE EXERCISE OF FREEDOM. — The alleged opinion of the petitioner
about the likelihood of a violent struggle here in the Philippines if reforms are
not instituted, assuming that he really stated the same, is nothing but a
legitimate exercise of freedom of thought and expression. No man deserves
punishment for his thoughts. Cogitationis poenam nemo meretur. And as the
late Justice Oliver W. Holmes stated in the case of U .S. v. Schwimmer, 279 U.S.
644, ". . . if there is any principle of the Constitution that more imperatively calls
for attachment than any other it is the principle of free thought — not free
thought for those who agree with us but freedom for the thought that we hate."
8. ID.; ID.; ID.; A PREFERRED RIGHT; POLITICAL DISCUSSION CANNOT BE
INDICTED. — We have adopted the concept that freedom of expression is a
"preferred" right and, therefore, stands on a higher level than substantive
economic or other liberties. The primacy, the high estate accorded freedom of
expression is a fundamental postulate of our constitutional system. (Gonzales v.
Commission on Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko
v. Connecticut (302 U.S. 319) this must be so because the lessons of history,
both political and legal, illustrate that freedom of thought and speech is the
indispensable condition of nearly every other form of freedom. Protection is
especially mandated for political discussions. This Court is particularly concerned
when allegations are made that restraints have been imposed upon mere
criticisms of government and public officials. Political discussion is essential to the
ascertainment of political truth. It cannot be the basis of criminal indictments. In
the case before us, there is no teaching of the moral propriety of a resort to
violence, much less an advocacy of force or a conspiracy to organize the use of
force against the duly constituted authorities. The alleged remark about the
likelihood of violent struggle unless reforms are instituted is not a threat against
the government. Nor is it even the uninhabited, robust, caustic, or unpleasantly
sharp attack which is protected by the guarantee of free speech. Parenthetically,
the American case of Brandenburg v. Ohio (395 U.S. 444) states that the
constitutional guarantees of free speech and free press do not permit a State to
forbid or proscribe advocacy of the use of force or of law violation except where
such advocacy is directed to inciting or producing imminent lawless action and is
likely to incite or produce such action. The words which petitioner allegedly used
according to the best recollection of Mr. Lovely are light years away from such
type of proscribed advocacy.
9. REMEDIAL LAW; EVIDENCE; STATEMENT THAT HIS MISSION WAS AGAINST A
PARTICULAR FAMILY NEGATES POLITICALLY MOTIVATED ASSIGNMENT. — Lovely
also declared that he had nothing to do with the bombing on August 22, 1980,
which was the only bombing incident that occurred after his arrival in Manila on
August 20, 1980, and before the YMCA explosion on September 6, 1980. He
further testified that: (his) bombing mission was directed against the particular
family (referring to the Cabarrus family). Such a statement wholly negates any
politically motivated or subversive assignment which Lovely was supposed to
have been commissioned to perform upon the orders of his co-accused and which
was the very reason why they were charged in the first place.
10. ID.; ID.; BY ADOPTING DEFENSE WITNESS AS ITS OWN, PROSECUTION IS

BOUND BY HIS DISCLAIMER. — It should be noted that after Lovely's testimony,
the prosecution manifested to the court that is was adopting him as a
prosecution witness. Therefore, the prosecution became irreversibly bound by
Lovely's disclaimers on the witness stand, that it was not his intention "to do
some kind of bombing against the government" and that he "did not try to
implicate Salonga," especially since Lovely is the sole witness adopted by the
prosecution who could supposedly establish the link between the petitioner and
the bombing incidents. The respondent court should have taken these factors into
consideration before concluding that a prima facie case exists against the
petitioner.
11. ID.; ID.; EVIDENCE MUST COME NOT ONLY FROM A CREDIBLE WITNESS BUT
MUST BE CREDIBLE IN ITSELF. — Evidence must not only proceed from the
mouth of a credible witness but it must be credible in itself such as the common
experience and observation of mankind can approve as probable under the
circumstances. (People v. Dayad, 56 SCRA 439) In the case at bar, the prosecution
cannot even present a credible version of the petitioner's role in the bombings
even if it ignores the subsequent disclaimers of Lovely and without relying on
mere affidavits including those made by Lovely during his detention.
12. ID.; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; PURPOSE; TRIAL
JUDGE HAS DUTY TO SPARE ACCUSED FROM PAIN OF TRIAL IF THERE IS
INSUFFICIENT EVIDENCE. — The purpose of a preliminary investigation is to
secure the innocent against hasty, malicious and oppressive prosecution, and to
protect him from an open and public accusation of crime, from the trouble,
expense and anxiety of a public trial, and also to protect the state from useless
and expensive trials. (Trocio v. Manta, 118 SCRA 241, citing Hashim v. Boncan,
71 Phil. 216) The right to a preliminary investigation is a statutory grant, and to
withhold it would be to transgress constitutional due process. (See People v.
Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it is
not enough that the preliminary investigation is conducted in the sense of
making sure that a transgressor shall not escape with impunity. A preliminary
investigation serves not only the purposes of the State. More important, it is a
part of the guarantees of freedom and fair play which are birthrights of all who
live in our country. It is, therefore, imperative upon the fiscal or the judge as the
case may be, to relieve the accused from the pain of going through a trial once it
is ascertained that the evidence is insufficient to sustain a prima facie case or
that no probable cause exists to form a sufficient belief as to the guilt of the
accused.

13. CONSTITUTIONAL LAW; BILL OF RIGHTS; EXTENT OF CONSTITUTIONAL
GUARANTEE; COURT'S FUNCTION IS TO EDUCATE BENCH AND BAR THEREON. —
The setting aside or declaring void, in proper cases, of intrusions of State
authority into areas reserved by the Bill of Rights for the individual as
constitutionally protected spheres where even the awesome powers of
Government may not enter at will is not the totality of the Court's functions.
The Court also has the duty to formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules. It has the symbolic function of educating
bench and bar on the extent of protection given by constitutional guarantees.
DECISION
GUTIERREZ, JR., J : p
The petitioner invokes the constitutionally protected right to life and liberty
guaranteed by the due process clause, alleging that no prima facie case has been
established to warrant the filing of an information for subversion against him.
Petitioner asks this Court to prohibit and prevent the respondents from using the
iron arm of the law to harass, oppress, and persecute him, a member of the
democratic opposition in the Philippines.
The background of this case is a matter of public knowledge.
A rash of bombings occurred in the Metro Manila area in the months of August,
September and October of 1980. On September 6, 1980, one Victor Burns Lovely,
Jr., a Philippine-born American citizen from Los Angeles, California, almost killed
himself and injured his younger brother, Romeo, as a result of the explosion of a
small bomb inside his room at the YMCA building in Manila. Found in Lovely's
possession by police and military authorities were several pictures taken
sometime in May, 1980 at the birthday party of former Congressman Raul Daza
held at the latter's residence in a Los Angeles suburb. Petitioner Jovito R. Salonga
and his wife were among those whose likenesses appeared in the group pictures
together with other guests, including Lovely.
As a result of the serious injuries he suffered, Lovely was brought by military
and police authorities to the AFP Medical Center (V. Luna Hospital) where he was
place in the custody and detention of Col. Roman P. Madella, under the over-all
direction of General Fabian Ver, head of the National Intelligence and Security
Authority (NISA). Shortly afterwards, Mr. Lovely and his two brothers, Romeo and
Baltazar Lovely where charged with subversion, illegal possession of explosives,
and damage to property.
On September 12, 1980, bombs once again exploded in Metro Manila including
one which resulted in the death of an American lady who was shopping at
Rustan's Supermarket in Makati and others which caused injuries to a number of
persons.
On September 20, 1980, the President's anniversary television radio press
conference was broadcast. The younger brother of Victor Lovely, Romeo, was
presented during the conference. In his interview, Romeo stated that he had
driven his elder brother, Victor, to the petitioner's house in Greenhills on two
occasions. The first time was on August 20, 1980. Romeo stated that Victor did
not bring any bag with him on that day when he went to the petitioner's
residence and did not carry a bag when he left. The second time was in the
afternoon of August 31, 1980 when he brought Victor only to the gate of the
petitioner's house. Romeo did not enter the petitioner's residence. Neither did he
return that day to pick up his brother.
cdll
The next day, newspapers came out with almost identical headlines stating in
effect that petitioner had been linked to the various bombings in Metro Manila.
Meanwhile, on September 25, 1980, Lovely was taken out of the hospital's
intensive care unit and transferred to the office of Col. Madella where he was
held incommunicado for sometime.
On the night of October 4, 1980, more bombs were reported to have exploded at
three big hotels in Metro Manila, namely: Philippine Plaza, Century Park Sheraton
and Manila Peninsula. The bombs injured nine people. A meeting of the General
Military Council was called for October 6, 1980.
On October 19, 1980, minutes after the President had finished delivering his
speech before the International Conference of the American Society of Travel
Agents at the Philippine International Convention Center, a small bomb
exploded. Within the next twenty-four hours, arrest, search, and seizure orders
(ASSOs) were issued against persons who were apparently implicated by Victor
Lovely in the series of bombings in Metro Manila. One of them was herein
petitioner Victor Lovely offered himself to be a "state witness" and in his letter to
the President, he stated that he will reveal everything he knows about the
bombings.
On October 21, 1980, elements of the military went to the hospital room of the
petitioner at the Manila Medical Center where he was confined due to his
recurrent and chronic ailment of bronchial asthma and placed him under arrest.
The arresting officer showed the petitioner the ASSO form which however did not
specify the charge or charges against him. For some time, the petitioner's
lawyers were not permitted to visit him in his hospital room until this Court in
the case of Ordoñez v. Gen. Fabian Ver, et al., (G.R. No. 55345, October 28, 1980)
issued an order directing that the petitioner's right to be visited by counsel be
respected.
On November 2, 1980, the petitioner was transferred against his objections from
his hospital arrest to an isolation room without windows in an army prison camp
at Fort Bonifacio, Makati. The petitioner states that he was not informed why he
was transferred and detained, nor was he ever investigated or questioned by any
military or civil authority.
Subsequently, on November 27, 1980, the petitioner was released for
humanitarian reasons from military custody and placed "under house arrest in
the custody of Mrs. Lydia Salonga" still without the benefit of any investigation
or charges.
On December 10, 1980, the Judge Advocate General sent the petitioner a "Notice
of Preliminary Investigation" in People v. Benigno Aquino, Jr., et al. (which
included petitioner as a co-accused), stating that "the preliminary investigation
included petitioner as a co-accused), stating that "the preliminary investigation
of the above-entitled case has been set at 2:30 o'clock p.m. on December 12,
1980" and that petitioner was given ten (10) days from receipt of the charge
sheet and the supporting evidence within which to file his counter-evidence. The
petitioner states that up to the time martial law was lifted on January 17, 1981,
and despite assurance to the contrary, he has not received any copies of the
charges against him nor any copies of the so-called supporting evidence.
On February 9, 1981, the records of the case were turned over by the Judge
Advocate General's Office to the Ministry of Justice.
On February 24, 1981, the respondent City Fiscal filed a complaint accusing
petitioner, among others of having violated Republic Act No. 1700, as amended
by P.D. 885 and Batas Pambansa Blg. 31 in relation to Article 142 of the Revised
Penal Code. The inquest court set the preliminary investigation for March 17,
1981.
On March 6, 1981, the petitioner was allowed to leave the country to attend a
series of church conferences and undergo comprehensive medical examinations
of the heart, stomach, liver, eye and ear including a possible removal of his left
eye to save his right eye. Petitioner Salonga almost died as one of the principal
victims of the dastardly bombing of a Liberal Party rally at Plaza Miranda on
August 20, 1971. Since then, he has suffered serious disabilities. The petitioner
was riddled with shrapnel and pieces still remain in various parts of his body. He
has an AV fistula caused by a piece of shrapnel lodged one millimeter from his
aorta. The petitioner has limited use of his one remaining hand and arms, is
completely blind and phthisical in the left eye, and has scar like formations in the
remaining right eye. He is totally deaf in the right ear and partially deaf in the
left ear. The petitioner's physical ailments led him to seek treatment abroad. Cdpr
On or around March 26,1981, the counsel for petitioner was furnished a copy of
an amended complaint signed by Gen. Prospero Olivas, dated March 12, 1981,
charging the petitioner, along with 39 other accused with the violation of R.A.
1700, as amended by P.D. 885, Batas Pambansa Blg. 31 and P.D. 1736. Hearings
for preliminary investigation were conducted. The prosecution presented as its
witnesses Ambassador Armando Fernandez, the Consul General of the Philippines
in Los Angeles, California, Col. Balbino Diego, PSC/NISA, Chief, Investigation and
Legal Panel of the Presidential Security Command and Victor Lovely himself.
On October 15, 1981, the counsel for petitioner filed a motion to dismiss the
charges against petitioner for failure of the prosecution to establish a prima facie
case against him.
On December 2, 1981, the respondent judge denied the motion. On January 4,
1982, he issued a resolution ordering the filing of an information for violation of
the Revised Anti-Subversion Act, as amended, against forty (40) people, including
herein petitioner.
The resolutions of the respondent judge dated December 2, 1981 and January 4,
1982 are now the subject of the petition. It is the contention of the petitioner
that no prima facie case has been established by the prosecution to justify the
filing of an information against him. He states that to sanction his further
prosecution despite the lack of evidence against him would be to admit that no
rule of law exists in the Philippines today.
After a painstaking review of the records, this Court finds the evidence offered by
the prosecution utterly insufficient to establish a prima facie case against the
petitioner. We grant the petition.
However, before going into the merits of the case, we shall pass upon a
procedural issue raised by the respondents.
The respondents call for adherence to the consistent rule that the denial of a
motion to quash or to dismiss, being interlocutory in character, cannot be
questioned by certiorari; that since the question of dismissal will again be
considered by the court when it decides the case, the movant has a plain, speedy
and adequate remedy in the ordinary course of law; and that public interest
dictates that criminal prosecutions should not be enjoined.
The general rule is correctly stated. However, the respondents fail to appreciate
or take into account certain exceptions when a petition for certiorari is clearly
warranted. The case at bar is one such exception.
In the case of Mead v. Angel (115 SCRA 256) the same contentions were
advanced by the respondents to wit:
xxx xxx xxx
". . . Respondents advert to the rule that when a motion to quash filed by
an accused in a criminal case shall be denied, the remedy of the accused-
movant is not to file a petition for certiorari or mandamus or prohibition,
the proper recourse being to go to trial, without prejudice to his right to
reiterate the grounds invoked in his motion to quash if an adverse
judgment is rendered against him, in the appeal that he may take
therefrom in the manner authorized by law. (Mill v. People, et al., 101 Phil.
599; Echarol v. Purisima, et al., 13 SCRA 309.)
On this argument, we ruled:

"There is no disputing the validity and wisdom of the rule invoked by the
respondents. However, it is also recognized that. under certain situations,
recourse to the extraordinary legal remedies of certiorari, prohibition or
mandamus to question the denial of a motion to quash is considered
proper in the interest of 'more enlightened and substantial justice', as was
so declared in 'Yap v. Lutero', G.R. No. L-12669, April 30, 1969."
Infinitely more important than conventional adherence to general rules of

criminal procedure is respect for the citizen's right to be free not only from
arbitrary arrest and punishment but also from unwarranted and vexatious
prosecution. The integrity of a democratic society is corrupted if a person is
carelessly included in the trial of around forty persons when on the very face of
the record no evidence linking him to the alleged conspiracy exists.
Ex-Senator Jovito Salonga, himself a victim of the still unresolved and heinous
Plaza Miranda bombings, was arrested at the Manila Medical Center while
hospitalized for bronchial asthma. When arrested, he was not informed of the
nature of the charges against him. Neither was counsel allowed to talk to him
until this Court intervened through the issuance of an order directing that his
lawyers be permitted to visit him (Ordoñez v. Gen. Fabian Ver, et al., G.R. No.
55345, October 28, 1980). Only after four months of detention was the
petitioner informed for the first time of the nature of the charges against him.
After the preliminary investigation, the petitioner moved to dismiss the
complaint but the same was denied. Subsequently, the respondent judge issued a
resolution ordering the filing of an information after finding that a prima facie
case had been established against all of the forty persons accused.
In the light of the failure to show prima facie that the petitioner was probably
guilty of conspiring to commit the crime, the initial disregard of petitioner's
constitutional rights together with the massive and damaging publicity made
against him, justifies the favorable consideration of this petition by this Court.
With former Senator Benigno Aquino, Jr. now deceased, there are at least 38
other co-accused to be tried with the petitioner. The prosecution must present
proof beyond reasonable doubt against each and every one of the 39 accused,
most of whom have varying participations in the charge for subversion. The
prosecution's star witness Victor Lovely and the only source of information with
regard to the alleged link between the petitioner and the series of terrorist
bombings is now in the United States. There is reason to believe the petitioner's
citation of international news dispatches ** that the prosecution may find it
difficult if not infeasible to bring him back to the Philippines to testify against the
petitioner. If Lovely refused to testify before an American federal grand jury how
could he possibly be made to testify when the charges against the respondent
come up in the course of the trial against the 39 accused. Considering the
foregoing, we find it in the interest of justice to resolve at this stage the issue of
whether or not the respondent judge gravely abused his discretion in issuing the
questioned resolutions.
The respondents contend that the prosecution will introduce additional evidence
during the trial and if the evidence, by then, is not sufficient to prove the
petitioner's guilt, he would anyway be acquitted. Yes, but under the
circumstances of this case, at what cost not only to the petitioner but to the basic
fabric of our criminal justice system?
The term "prima facie evidence" denotes evidence which, if unexplained or
uncontradicted, is sufficient to sustain the proposition it supports or to establish
the facts, or to counterbalance the presumption of innocence to warrant a
conviction. The question raised before us now is: Were the evidences against the
petitioner uncontradicted and if they were unexplained or uncontradicted, would
they, standing alone, sufficiently overcome the presumption of innocence and
warrant his conviction?
We do not think so.
The records reveal that in finding a case against the petitioner, the respondent
judge relied only on the testimonies of Col. Balbino Diego and Victor Lovely.
Ambassador Armando Fernandez, when called upon to testify on subversive
organizations in the United States nowhere mentioned the petitioner as an
organizer, officer or member of the Movement for Free Philippines (MFP), or any
of the organizations mentioned in the complaint. Col. Diego, on the other hand,
when asked what evidence he was able to gather against the petitioner
depended only on the statement of Lovely "that it was the residence of ex-
Senator Salonga where they met together with Renato Tañada, one of the brains
of the bombing conspiracy . . . and the fact that Sen. Salonga has been meeting
with several subversive personnel based in the U.S.A. was also revealed to me by
Victor Burns Lovely; " and on the group pictures taken at former Congressman
Raul Daza's birthday party. In concluding that a conspiracy exists to overthrow by
violent means the government of the Philippines in the United States, his only
bases were "documentary as well as physical and sworn statements that were
referred to me or taken by me personally," which of course negate personal
knowledge on his part. When asked by the court how he would categorize
petitioner in any of the subversive organizations, whether petitioner was an
organizer, officer or a member, the witness replied: prcd
"A. To categorize former Senator Salonga if he were an organizer, he

is an officer or he is a member, your Honor, please, we have to
consider the surrounding circumstances and on his
involvement: first, Senator Salonga wanted always to travel to
the United States at least once a year or more often under the
pretext of to undergo some sort of operation and participate
in some sort of seminar. (t.s.n., April 21, 1981, pp. 14-15)
Such testimony, being based on affidavits of other persons and purely hearsay,
can hardly qualify as prima facie evidence of subversion. It should not have been
given credence by the court in the first place. Hearsay evidence, whether
objected to or not, has no probative value as the affiant could not have been
cross-examined on the facts stated therein. (See People v. Labinia, 115 SCRA
223; People v. Valero, 112 SCRA 661). Moreover, as Victor Lovely, himself, was
personally examined by the court, there was no need for the testimony of Col.
Diego. Thus, the inquest judge should have confined his investigation to Victor
Burns Lovely, the sole witness whose testimony had apparently implicated
petitioner in the bombings which eventually led to the filing of the information.
Lovely's account of the petitioner's involvement with the former's bombing

mission is found in his sworn statement made before Col. Diego and Lt. Col.
Madella and taken on October 17, 1980 at the AFP Medical Center. Lovely was
not presented as a prosecution or state witness but only as a defense witness for
his two younger brothers, Romeo and Baltazar, who were both included in the
complaint but who were later dropped from the information. Victor Lovely was
examined by his counsel and cross-examined by the fiscal. In the process, he
identified the statement which he made before Col. Diego and Lt. Col. Madella.
After Lovely's testimony, the prosecution made a manifestation before the court
that it was adopting Lovely as a prosecution witness.
According to Lovely's statement, the following events took place:
"36. Q. Did Psinakis tell you where to stay?
"A. Yes, at first he told me to check-in at Manila Hotel or the Plaza
Hotel where somebody would come to contact me and give
the materials needed in the execution of my mission. I thought
this was not safe so I disagreed with him. Mr. Psinakis changed
the plan and instead told me to visit the residence of Ex-Sen.
Jovito Salonga as often as I can and someone will meet me
there to give the materials I needed to accomplish my mission.
"37. Q. Did you comply as instructed?
"A. Yes, I arrived in Manila on August 20, 1980 and stayed at the
residence of Mr. Johnny Chua, husband of my business
partner, then I went to the Hospital where I visited my mother
and checked-in at Room 303 of the YMCA at Concepcion
Street, Manila.
"38. Q. Did you visit the residence of former Senator Jovito Salonga
as directed by Psinakis?
"A. I visited Sen. Salonga's place three (3) times, the first visit was
August 20 or 21, and the last was 4:00 P.M. of August 31,
1980. In addition to these visits, I TALKED to him on the phone
about three or four times. On my first visit, I told him 'I am
expecting an attache case from somebody which will be
delivered to your house,' for which Sen. Salonga replied 'Wala
namang nagpunta dito at wala namang attache case para sa
iyo.' However, if your attache case arrives, I'll just call you.' I
gave him my number. On my second visit, Salonga said, 'I'll be
very busy so just come back on the 31st of August at 4 P.M.'
On that date, I was with friends at Batulao Resort and had to
hurry back to be at Salonga's place for the appointment. I
arrived at Salonga's place at exactly 4 P.M.
"39. Q. What happened then?
"A. I was ushered to the sala by Mrs. Salonga and after five minutes,
Sen. Salonga joined me in the sala. Sen. Salonga informed me
that somebody will be coming to give me the attache case but
did not tell me the name.
"40. Q. Are there any subject matters you discussed while waiting
for that somebody to deliver your materials?
"A. Yes, Salonga asked if Sen. Aquino and I have met, I explained to
him the efforts of Raul Daza in setting up that meeting but I
have previous business commitments at Norfolk, Virginia. I
told him, however, that through the efforts of Raul Daza, I was
able to talk with Ninoy Aquino in the airport telephone booth in
San Francisco. He also asked about Raul Daza, Steve Psinakis
and the latest opposition group activities but it seems he is well
informed.
"41. Q. How long did you wait until that somebody arrived?
"A. About thirty (30) minutes.
"42. Q. What happened when the man arrived?

"A. This man arrived and I was greatly surprised to see Atty. Renato
Tañada. Jovy Salonga was the one who met him and as I
observed parang nasa sariling bahay si Tañada nung dumating.
They talked for five (5) minutes in very low tones so I did not
hear what they talked about. After their whispering
conversations, Sen. Salonga left and at this time Atty. 'Nits'
Tañada told me 'Nasa akin ang kailangan mo, nasa kotse.'
"43. Q. Were the materials given to you?
"A. When Sen. Salonga came back, we asked to be permitted to leave

and I rode in Atty. Nits Tañada's old Pontiac car colored dirty
brown and proceeded to Broadway Centrum where before I
alighted, Atty. Tañada handed me a 'Puma' bag containing all
the materials I needed.
xxx xxx xxx

"45. Q. What were the contents of the Puma bag?
"A. Ten (10) pieces of Westclox pocket watch with screw and wirings,
ten (10) pieces electrical blasting caps 4" length, ten (10)
pieces non-electrical blasting caps 1" length, nine (9) pieces
volts dry cell battery, two (2) improvised electrical testers, ten
(10) plastic packs of high explosive about 1 pound weight
each.
However, in his interview with Mr. Ronnie Nathanielz which was aired on
Channel 4 on November 8, 1980 and which was also offered as evidence by the
accused, Lovely gave a different story which negates the above testimony insofar
as the petitioner's participation was concerned:
xxx xxx xxx
"Q. Who were the people that you contacted in Manila and for what
purpose?
"A. Before I left for the Philippines, Mr. Psinakis told me to check-in at
the Manila Hotel or the Plaza Hotel, and somebody would just
deliver the materials I would need. I disapproved of this, and I
told him I would prefer a place that is familiar to me or who is
close to me. Mr. Psinakis suggested the residence of Sen.
Salonga.
"And so, I arrived in Manila on August 20, 1980, I made a call to Sen.
Salonga, but he was out. The next day I made a call again. I
was able to contact him. I made an appointment to see him. I
went to Sen. Salonga's house the following day. I asked Sen.
Salonga if someone had given him an attache case for me. He
said nobody. Afterwards, I made three calls to Sen. Salonga.
Sen. Salonga told me 'call me again on the 31st of August. I did
not call him, I just went to his house on the 31st of August at
4 P.M. A few minutes after my arrival Atty. Renato Tañada
arrived. When he had a chance to be near me, he (Atty.
Tañada) whispered to me that he had the attache case and the
materials I needed in his car. These materials were given to me
by Atty. Tañada when I alighted at the Broadway Centrum.'
(Emphasis supplied)
During the cross-examination, counsel for petitioner asked Lovely about the so-
called destabilization plan which the latter mentioned in his sworn statement:
"Q. You mentioned in your statement taken on October 17, 1980,
marked Exhibit 'G' about the so-called destabilization plan of
Aquino. When you attended the birthday party of Raul Daza
wherein Jovito Salonga was also present, was this
destabilization plan as alleged by you already formulated?
WITNESS:
"A. Not to my knowledge.
COURT TO WITNESS:
"Q. Mr. Witness, who invited you to the party?
"A. Raul Daza, your Honor.

"Q. Were you told that Mr. Salonga would be present in the party?
"A. I am really not quite sure, your Honor.
"Q. Alright. You said initially it was social but then it became political.
Was there any political action taken as a result of the party?
"A. Only political discussion, your Honor." (TSN, July 8, 1981, pp. 69-
84)
Counsel for petitioner also asked Lovely whether in view of the latter's
awareness of the physical condition of petitioner, he really implicated petitioner
in any of the bombings that occurred in Metro Manila. The fiscal objected without
stating any ground. In sustaining the objection, the Court said:
"Sustained . . . The use of the word 'implicate' might expand the role of
Mr. Salonga. In other words, you are widening the avenue of Mr.
Salonga's role beyond the participation stated in the testimony of this
witness about Mr. Salonga, at least, as far as the evidence is concerned, I
supposed, is only being in the house of Mr. Salonga which was used as
the contact point. He never mentions Mr. Salonga about the bombings.
Now these words had to be put in the mouth of this witness. That would
be unfair to Mr. Salonga." (TSN. July 8, 1981, p. 67)
Respondent judge further said:

"COURT:
"As the Court said earlier, the parts or portions affecting Salonga
only refers to the witness coming to Manila already then the
matter of . . . I have gone over the statement and there is no
mention of Salonga insofar as activities in the United States is
concerned. I don't know why it concerns this cross-
examination.
"ATTY. YAP:
"Because according to him, it was in pursuance of the plan that he

came to Manila.
"COURT:
"According to him it was Aquino, Daza, and Psinakis who asked him
to come here, but Salonga was introduced only when he
(Lovely) came here. Now, the tendency of the question is also
to connect Salonga to the activities in the United States. It
seems to be the thrust of the questions.
"COURT:
"In other words, the point of the Court as of the time when yon
asked him question, the focus on Salonga was only from the
time when he met Salonga at Greenhills. It was the first time
that the name of Salonga came up. There was no mention of
Salonga in the formulation of the destabilization plan as
affirmed by him. But you are bringing this up although you are
only cross-examining for Salonga as if his (Lovely's) activities
in the United States affected Salonga." (TSN, July 8, 1981, pp.
73-74)
Apparently, the respondent judge wanted to put things in proper perspective by

limiting the petitioner's alleged "participation" in the bombing mission only to
the fact that petitioner's house was used as a "contact point" between Lovely
and Tañada, which was all that Lovely really stated in his testimony.
However, in the questioned resolution dated December 2, 1981, the respondent
judge suddenly included the "activities" of petitioner in the United States as his
basis for denying the motion to dismiss: LLpr
"On the activities of Salonga in the United States, the witness, Lovely, in
one of his statements declared: 'To the best of my recollection he
mentioned of some kind of violent struggle in the Philippines being most
likely should reforms be not instituted by President Marcos immediately.'
"It is therefore clear that the prosecution's evidence has established facts
and circumstances sufficient for a finding that excludes a Motion to
Dismiss by respondent Salonga. The Movement for Free Philippines is
undoubtedly a force born on foreign soil, it appears to rely on the
resources of foreign entities, and is being (sic) on gaining ascendancy in
the Philippines with the use of force and for that purpose it has linked
itself with even communist organizations to achieve its end. It appears to
rely on aliens for its supporters and financiers."
The jump from the "contact point" theory to the conclusion of involvement in
subversive activities in the United States is not only inexplicable but without
foundation.
The respondents admit that no evidence was presented directly linking petitioner
Salonga to actual acts of violence or terrorism. There is no proof of his direct
participation in any overt acts of subversion. However, he is tagged as a leader of
subversive organizations for two reasons —
(1) Because his house was used as a "contact point"; and
(2) Because "he mentioned some kind of violent struggle in the Philippines being
most likely should reforms be not instituted by President Marcos immediately."

The "contact point" theory or what the petitioner calls the "guilt by visit or guilt
by association" theory is too tenuous a basis to conclude that Senator Salonga
was a leader or mastermind of the bombing incidents. To indict a person simply
because some plotters, masquerading as visitors, have somehow met in his
house or office would be to establish a dangerous precedent. The right of citizens
to be secure against abuse of governmental processes in criminal prosecutions
would be seriously undermined.
The testimony of Victor Lovely against petitioner Salonga is full of
inconsistencies. Senator Salonga and Atty. Renato Tañada could not have
whispered to one another because the petitioner is almost totally deaf. Lovely
could not have met Senator Salonga at a Manglapus party in Washington, D.C. in
1977 because the petitioner left for the United States only on November, 1978.
Senator Salonga denies having known Mr. Lovely in the United States or in the
Philippines. He states that he has hundred of visitors from week to week in his
residence but cannot recall any Victor Lovely.
The presence of Lovely in a group picture taken at Mr. Raul Daza's birthday party
in Los Angeles where Senator Salonga was a guest is not proof of conspiracy. As
stated by the petitioner, in his many years in the turbulent world of politics, he
has posed with all kinds of people in various groups and various places and could
not possibly vouch for their conduct. Commenting on the matter, newspaper
columnist Teodoro Valencia stated that Filipinos love to pose with important
visitors and the picture proves nothing.
It is likewise probable that a national figure and former politician of Senator
Salonga's stature can expect guests and visitors of all kinds to be visiting his
home or office. If a rebel or subversive happens to pose with the petitioner for a
group picture at a birthday party abroad, or even visit him with others in his
home, the petitioner does not thereby become a rebel or subversive, much less a
leader of a subversive group. More credible and stronger evidence is necessary for
an indictment. Nonetheless, even if we discount the flaws in Lovely's testimony
and dismiss the refutations and arguments of the petitioner, the prosecution
evidence is still inadequate to establish a prima facie finding.
The prosecution has not come up with even a single iota of evidence which could
positively link the petitioner to any proscribed activities of the Movement for
Free Philippines or any subversive organization mentioned in the complaint.
Lovely had already testified that during the party of former Congressman Raul
Daza which was alleged to have been attended by a number of members of the
MFP, no political action was taken but only political discussion. Furthermore, the
alleged opinion of the petitioner about the likelihood of a violent struggle here in
the Philippines if reforms are not instituted, assuming that he really stated the
same, is nothing but a legitimate exercise of freedom of thought and expression.
No man deserves punishment for his thoughts. Cogitationis poenam nemo
meretur. And as the late Justice Oliver W. Holmes stated in the case of U.S. v.
Schwimmer, 279 U.S. 644, ". . . if there is any principle of the Constitution that
more imperatively calls for attachment than any other it is the principle of free
thought — not free thought for those who agree with us but freedom for the
thought that we hate."
We have adopted the concept that freedom of expression is a "preferred" right
and, therefore, stands on a higher level than substantive economic or other
liberties. The primacy, the high estate accorded freedom of expression is a
fundamental postulate of our constitutional system. (Gonzales v. Commission on
Elections, 29 SCRA 835). As explained by Justice Cardozo in Palko v. Connecticut
(302 U.S. 319) this must be so because the lessons of history, both political and
legal, illustrate that freedom of thought and speech is the indispensable condition
of nearly every other form of freedom. Protection is especially mandated for
political discussions. This Court is particularly concerned when allegations are
made that restraints have been imposed upon mere criticisms of government
and public officials. Political discussion is essential to the ascertainment of
political truth. It cannot be the basis of criminal indictments.
The United States Supreme Court in Noto v. United States (367 U.S. 290)
distinguished between the abstract teaching of the moral propriety or even
moral necessity for a resort to force and violence and speech which would
prepare a group for violent action and steel it to such action. In Watts v. United
States (394 U.S. 705), the American court distinguished between criminal
threats and constitutionally protected speech.
It stated:
"We do not believe that the kind of political hyperbole indulged in by
petitioner fits within that statutory term. For we must interpret the
language Congress chose against the background of a profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide open and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and
public officials. New York Times Co. v. Sullivan (376 U.S. 254). The
language of the political arena, like the language used in labor disputed is
often vituperative, abusive, and inexact. We agree with petitioner that his
only offense was a kind of very crude offensive method of stating a
political opposition to the President."
In the case before us, there is no teaching of the moral propriety of a resort to
violence, much less an advocacy of force or a conspiracy to organize the use of
force against the duly constituted authorities. The alleged remark about the
likelihood of violent struggle unless reforms are instituted is not a threat against
the government. Nor is it even the uninhibited, robust, caustic, or unpleasantly
sharp attack which is protected by the guarantee of free speech. Parenthetically,
the American case of Brandenburg v. Ohio (395 U.S. 444) states that the
constitutional guarantees of free speech and free press do not permit a State to
forbid or proscribe advocacy of the use of force or of law violation except where
such advocacy is directed to inciting or producing imminent lawless action and is
likely to incite or produce such action. The words which petitioner allegedly used
according to the best recollections of Mr. Lovely are light years away from such
type of proscribed advocacy. llcd
Political discussion even among those opposed to the present administration is

within the protective clause of freedom of speech and expression. The same
cannot be construed as subversive activities per se or as evidence of membership
in a subversive organization. Under Presidential Decree No. 885, Section 3,
paragraph 6, political discussion will only constitute prima facie evidence of
membership in a subversive organization if such discussion amounts to:
"(6) Conferring with officers or other members of such association or
organization in furtherance of any plan or enterprise thereof ."
As stated earlier, the prosecution has failed to produce evidence that would
establish any link between petitioner and any subversive organization. Even if
we lend credence to Lovely's testimony that a political discussion took place at
Daza's birthday party, no proof whatsoever was adduced that such discussion
was in furtherance of any plan to overthrow the government through illegal
means. The alleged opinion that violent struggle is likely unless reforms are
instituted by no means shows either advocacy of or incitement to violence or
furtherance of the objectives of a subversive organization.
Lovely also declared that he had nothing to do with the bombing on August 22,
1980, which was the only bombing incident that occurred after his arrival in
Manila on August 20, and before the YMCA explosion on September 6, 1980. (See
TSN, pp. 63-63, July 8, 1981). He further testified that:
"WITNESS:
"Actually, it was not my intention to do some kind of bombing

against the government. My bombing mission was directed
against the particular family (referring to the Cabarrus family).
[TSN, p. 11, July 9, 1981] [Rollo, p. 10]
Such a statement wholly negates any politically motivated or subversive

assignment which Lovely was supposed to have been commissioned to perform
upon the orders of his co-accused and which was the very reason why they were
charged in the first place. The respondent judge also asked Lovely about the
possible relation between Cabarrus and petitioner:
"COURT:
"Q. Did you suspect any relation between Cabarrus and Jovito
Salonga, why did you implicate Jovito Salonga?
"A. No, your Honor. I did not try to implicate Salonga.
It should be noted that after Lovely's testimony, the prosecution manifested to

the court that it was adopting him as a prosecution witness. Therefore, the
prosecution became irreversively bound by Lovely's disclaimers on the witness
stand, that it was not his intention "to do some kind of bombing against the
government" and that he "did not try to implicate Salonga", especially since
Lovely is the sole witness adopted by the prosecution who could supposedly
establish the link between the petitioner and the bombing incidents.
The respondent court should have taken these factors into consideration before
concluding that a prima facie case exists against the petitioner. Evidence must
not only proceed from the mouth of a credible witness but it must be credible in
itself such as the common experience and observation of mankind can approve
as probable under the circumstances. (People v. Dayad, 56 SCRA 439). In the case
at bar, the prosecution cannot even present a credible version of the petitioner's
role in the bombings even if it ignores the subsequent disclaimers of Lovely and
without relying on mere affidavits including those made by Lovely during his
detention.
The resolution dated January 4, 1982 suffers from the same defect. In this
resolution, Lovely's previous declarations about the bombings as part of the
alleged destabilization plan and the people behind the same were accorded such
credibility by the respondent judge as if they had already been proved beyond
reasonable doubt. Cdpr
The purpose of a preliminary investigation is to secure the innocent against

hasty, malicious and oppressive prosecution, and to protect him from an open
and public accusation of crime, from the trouble, expense and anxiety of a public
trial, and also to protect the state from useless and expensive trials. (Trocio v.
Manta, 118 SCRA 241; citing Hashim v. Boncan, 71 Phil. 216). The right to a
preliminary investigation is a statutory grant, and to withhold it would be to
transgress constitutional due process. (See People v. Oandasa, 25 SCRA 277)
However, in order to satisfy the due process clause it is not enough that the
preliminary investigation is conducted in the sense of making sure that a
transgressor shall not escape with impunity. A preliminary investigation serves
not only the purposes of the State. More important, it is a part of the guarantees
of freedom and fair play which are birthrights of all who live in our country. It is,
therefore, imperative upon the fiscal or the judge as the case may be, to relieve
the accused from the pain of going through a trial once it is ascertained that the
evidence is insufficient to sustain a prima facie case or that no probable cause
exists to form a sufficient belief as to the guilt of the accused. Although there is
no general formula or fixed rule for the determination of probable cause since the
same must be decided in the light of the conditions obtaining in given situations
and its existence depends to a large degree upon the finding or opinion of the
judge conducting the examination, such a finding should not disregard the facts
before the judge nor run counter to the clear dictates of reasons (See La Chemise
Lacoste, S.A. v. Fernandez, 129 SCRA 391). The judge or fiscal, therefore, should
not go on with the prosecution in the hope that some credible evidence might
later turn up during trial for this would be a flagrant violation of a basic right
which the courts are created to uphold. It bears repeating that the judiciary lives
up to its mission by vitalizing and not denigrating constitutional rights. So it has
been before. It should continue to be so. (Mercado v. Court of First Instance of
Rizal, 116 SCRA 93)
The Court had already deliberated on this case, a consensus on the Court's
judgment had been arrived at, and a draft ponencia was circulating for
concurrences and separate opinions, if any, when on January 18, 1985,
respondent Judge Rodolfo Ortiz granted the motion of respondent City Fiscal
Sergio Apostol to drop the subversion case against the petitioner. Pursuant to
instructions of the Minister of Justice, the prosecution restudied its evidence and
decided to seek the exclusion of petitioner Jovito Salonga as one of the accused
in the information filed under the questioned resolution.
We were constrained by this action of the prosecution and the respondent Judge
to withdraw the draft ponencia from circulating for concurrences and signatures
and to place it once again in the Court's crowded agenda for further deliberations.
Insofar as the absence of a prima facie case to warrant the filing of subversion
charges is concerned, this decision has been rendered moot and academic by the
action of the prosecution.
Respondent Fiscal Sergio Apostol correctly points out, however, that he is not
precluded from filing new charges for the same acts because the petitioner has
not been arraigned and double jeopardy does not apply. In that sense, the case is
not completely academic.
Recent developments in this case serve to focus attention on a not too well
known aspect of the Supreme Court's functions.
The setting aside or declaring void, in proper cases, of intrusions of State
authority into areas reserved by the Bill of Rights for the individual as
constitutionally protected spheres where even the awesome powers of
Government may not enter at will is not the totality of the Court's functions.
The Court also has the duty to formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules. It has the symbolic function of educating
bench and bar on the extent of protection given by constitutional guarantees.
I n dela Camara v. Enage (41 SCRA 1), the petitioner who questioned a
P1,195,200.00 bail bond as excessive and, therefore, constitutionally void,
escaped from the provincial jail while his petition was pending. The petition
became moot because of his escape but we nonetheless rendered a decision and
stated:
"The fact that the case is moot and academic should not preclude this
Tribunal from setting forth in language clear and unmistakable, the
obligation of fidelity on the part of lower court judges to the unequivocal
command of the Constitution that excessive bail shall not be required."
I n Gonzales v. Marcos (65 SCRA 624) whether or not the Cultural Center of the
Philippines could validly be created through an executive order was mooted by
Presidential Decree No. 15, the Center's new charter pursuant to the President's
legislative powers under martial law. Still, this Court discussed the constitutional
mandate on the preservation and development of Filipino culture for national
identity. (Article XV, Section 9, Paragraph 2 of the Constitution)
In the habeas corpus case of Aquino, Jr., v. Enrile, 59 SCRA 183), during the
pendency of the case, 26 petitioners were released from custody and one
withdrew his petition. The sole remaining petitioner was facing charges of
murder, subversion, and illegal possession of firearms. The fact that the petition
was moot and academic did not prevent this Court in the exercise of its symbolic
function from promulgating one of the most voluminous decisions ever printed in
the Reports. LibLex
In this case, the respondents agree with our earlier finding that the prosecution
evidence miserably fails to establish a prima facie case against the petitioner,
either as a co-conspirator of a destabilization plan to overthrow the government
or as an officer or leader of any subversive organization. They have taken the
initiative of dropping the charges against the petitioner. We reiterate the rule,
however, that this Court will not validate the filing of an information based on
the kind of evidence against the petitioner found in the records. prLL
WHEREFORE, the petition is DISMISSED for having become moot and academic.
SO ORDERED.
Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana,
Escolin, Relova and Cuevas, JJ., concur.
Aquino, De la Fuente and Alampay, JJ., took no part.
Separate Opinions
ABAD SANTOS, J., concurring:
Del Castillo vs. Ponce Enrile, G.R. No. 62119, August 27, 1984, 131 SCRA 405,
was a petition for the writ of habeas corpus. Before this Court could finally act on
the petition, the subject was released and for that reason the majority of this
Court resolved to dismiss the petition for having become moot and academic.
Justice Teehankee and the undersigned disagreed with the majority; we
expressed the view that despite the release of the subject, the petition should
have been resolved on the merits because it posed important legal questions.
Babst, et al. vs. National Intelligence Board, Special Committee No. 2, et al., G.R.
No. 62992, Sept. 2, 1984, was a petition for prohibition to restrain the
respondents from interrogating the petitioners, members of the print media, on
various aspects of their works, feelings, sentiments, beliefs, associations and
even their private lives. Again the majority of this Court dismissed the petition
because the assailed proceedings had come to an end thereby rendering the
petition moot and academic. In dismissing the petition a short and mild note of
concern was added. And again Justice Teehankee and the undersigned disagreed
with the majority. We expressed the view that this Court should rule squarely on
the matters raised in the petition rather than dismiss it for having become moot
and academic. prLL
I am glad that this Court has abandoned its cavalier treatment of petitions by
dismissing them on the ground that they have become moot and academic and
stopped there. I am glad it has reverted to De la Camara vs. Enage, Gonzales vs.
Marcos and Aquino vs. Enrile which are mentioned in the ponencia of Justice
Gutierrez.
I agree with the ponencia of Justice Gutierrez that because the subversion
charges against the petitioner had been dropped by the trial court on January 18,
1985, there is no longer any need to prohibit the respondents from prosecuting
Criminal Case No. Q-18606 insofar as he is concerned.
I am not revealing any confidential matter by saying that the initial action of this
Court was to grant the petition, i.e. prohibit the prosecution of the petitioner.
This is manifest from the ponencia of Justice Gutierrez. I regret that on this
matter the Court has been pre-empted by a "first strike" which has occurred once
too often. prcd
Justice Gutierrez states that, "The Court had already deliberated on this case, and
a consensus on the Court's judgment had been arrived at." Let me add that the
consensus had taken place as early as October 24, 1984, and the decision started
to circulate for signature on November 2, 1984. Alas, on January 18, 1985, the
decision was still circulating - overtaken by events. The decision could have had a
greater impact had it been promulgated prior to the executive action.
Footnotes
** In the Philippines Daily Express, dated December 8, 1981, Lovely was quoted as
having said in the United States that "I was not the bomber, I was bombed."
"Lovely, who was granted immunity in the United States, reportedly
would not testify before a San Francisco federal grand jury and instead
said, "Your Honor, I came back to tell what happened in the Philippines. I
was not the bomber, I was bombed."
The United Press International dispatch from San Francisco, U.S., written by
Spencer Sherman, gives a fuller account, thus:
"With the grand jury present in the courtroom Lovely alleged it was
Philippine authorities who were responsible for his injuries. It was they,
not him, who placed the bomb in his hotel room, he said.
"I came back to the States to tell what happened in the Philippines. I was
not the bomber. I was bombed. There are so many secrets that will come
out soon. I cannot (testify) even if I will be jailed for lifetime. I welcome
that."
— UPO press dispatch from

San Francisco, November 24, 1981.
The Philippine News, a San Francisco-based weekly, in its issue of December

23, 1981, contains the same account, with the following words:
"Your Honor .. I am not going to participate I was almost murdered. I cannot
continue. My friends were murdered before I came to the United States .. I
came back to the United States to tell what happened in the Philippines. I was
not the bomber, I was bombed. There are many secrets that will come out
very soon I cannot. Even if I will be jailed for lifetime. I welcome that."

EN BANC
[G.R. No. L-23127. April 29, 1971.]
FRANCISCA SERRANO DE AGBAYANI, plaintiff-appellee, vs.

PHILIPPINE NATIONAL BANK and THE PROVINCIAL SHERIFF
OF PANGASINAN, defendants, PHILIPPINE NATIONAL BANK,
defendant-appellant.
Dionisio E. Moya for plaintiff-appellee.

Ramon B. de los Reyes for defendant-appellant.
SYLLABUS
1. POLITICAL LAW; JUDICIAL REVIEW; EFFECTS OF THE DECLARATION OF

UNCONSTITUTIONALITY; ORTHODOX VIEW; MODIFIED IN CASE AT BAR. — The
decision now on appeal reflects the orthodox view that an unconstitutional act,
for that matter an executive order or a municipal ordinance likewise suffering
from that infirmity, cannot be the source of any legal rights or duties. Nor can it
justify any official act taken under it. Its repugnancy to the fundamental law
once judicially declared results in its being to all intents and purposes a mere
scrap of paper. As the new Civil Code puts it: "When the courts declare a law to
be inconsistent with the Constitution, the former shall be void and the latter shall
govern. Administrative or executive acts, orders and regulations shall be valid
only when they are not contrary to the laws or the Constitution." It is
understandable why it should be so, the Constitution being supreme and
paramount. Any legislative or executive act contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may not
however be sufficiently realistic. It does not admit of doubt that prior to the
declaration of nullity such challenged legislative or executive act must have been
in force and had to be complied with. This is so as until after the judiciary, in an
appropriate case, declares its invalidity, it is entitled to obedience and respect.
Parties may have acted under it and may have changed their positions. What
could be more fitting than that in a subsequent litigation regard be had to what
has been done while such legislative or executive act was in operation and
presumed to be valid in all respects. It is now accepted as a doctrine that prior to
its being nullified, its existence as a fact must be reckoned with. This is merely to
reflect awareness that precisely because the judicially is the governmental organ
which has the final say on whether or not a legislative or executive measure is
valid, a period of time may have elapsed before it can exercise the power of
judicial review that may lead to a declaration of nullity. It would be to deprive the
law of its quality of fairness and justice then, if there be no recognition of what
had transpired prior to such adjudication. In the language of an American
Supreme Court decision: "The actual existence of a statute, prior to such a
determination [of unconstitutionality], is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased
by a new judicial declaration. The effect of the subsequent ruling as to invalidity
may have to be considered in various aspects, — with respect to particular
relations, individual and corporate, and particular conduct private and official."
(Chicot County Drainage Dist. v. Baxter States Bank, 308 US 371, 374 (1940)
This language has been quoted with approval in a resolution in Araneta v. Hill (93
Phil. 1002 (1953) and the decision in Manila Motor Co., Inc. v. Flores, (99 Phil.
738 (1956). An even more recent instance is the opinion of Justice Zaldivar
speaking for the Court in Fernandez v. Cuerva and Co., 21 SCRA 1095.
2. ID., ID.; ID.; PRESCRIPTION PERIOD, TOLLED DURING THE EFFECTIVITY OF
EXECUTIVE ORDER NO. 32. — Precisely though because of the judicial
recognition that moratorium was a valid governmental response to the plight of
the debtors who were war sufferers, this Court has made clear its view in a
sense of cases impressive in their number and unanimity that during the eight-
year period that Executive Order No. 32 and Republic Act No. 312 were in force,
prescription did not run. So it has been held from Day v. Court of First Instance,
94 Phil. 816 decided in 1954, to Republic v. Hernaez, L-24137, January 30, 1970
handed down only last year. What is deplorable is that as of the time of the
lower court decision on January 27, 1960, a least eight decisions had left no
doubt as to the prescriptive period being tolled in the meanwhile prior to such
adjudication of invalidity. Speaking of the opposite view entertained by the lower
court, the present Chief Justice, in Liboro v. Finance and Mining Investments
Corp. has categorized it as having been "explicitly and consistently rejected by
this Court." The error of the lower court in sustain plaintiff's suit is thus
manifest. From July 19, 1944, when her loan matured, to July 13, 1959, when
extrajudicial foreclosure proceedings were started by appellant Bank, the time
consumed is six days short of fifteen years. The prescriptive period was tolled,
however. from March 10, 1945, the effectivity of Executive Order No. 32, to May
18, 1953, when the decision of Rutter v. Esteban was promulgated, covering
eight years, two months and eight days. Obviously then, when report was had
extrajudicially to the foreclosure of the mortgage obligation, there was time to
spare before prescription could be availed of as a defense.
DECISION
FERNANDO, J : p
A correct appreciation of the controlling doctrine as to the effect, if any, to be

attached to a statute subsequently adjudged invalid, is decisive of this appeal
from a lower court decision. Plaintiff Francisca Serrano de Agbayani, now
appellee, was able to obtain a favorable judgment in her suit against defendant,
now appellant Philippine National Bank, permanently enjoining the other
defendant, the Provincial Sheriff of Pangasinan, from proceeding with an
extrajudicial foreclosure sale of land belonging to plaintiff mortgaged to appellant
Bank to secure a loan declared no longer enforceable, the prescriptive period
having lapsed. There was thus a failure to sustain the defense raised by appellant
that if the moratorium under an Executive Order and later an Act subsequently
found unconstitutional were to be counted in the computation, then the right to
foreclose the mortgage was still subsisting. In arriving at such a conclusion, the
lower court manifested a tenacious adherence to the inflexible view that an
unconstitutional act is not a law, creating no rights and imposing no duties, and
thus as inoperative as if it had never been. It was oblivious to the force of the
principle adopted by this Court that while a statute's repugnancy to the
fundamental law deprives it of its character as a juridical norm, its having been
operative prior to its being nullified is a fact that is not devoid of legal
consequences. As will hereafter be explained, such a failing of the lower court
resulted in an erroneous decision. We find for appellant Philippine National Bank,
and we reverse.
There is no dispute as to the facts. Plaintiff obtained the loan in the amount of
P450.00 from defendant Bank dated July 19, 1939, maturing on July 19, 1944,
secured by real estate mortgage duly registered covering property described in
T.C.T. No. 11275 of the province of Pangasinan. As of November 27, 1959, the
balance due on said loan was in the amount of P1,294.00. As early as July 13 of
the same year, defendant instituted extra-judicial foreclosure proceedings in the
office of defendant Provincial Sheriff of Pangasinan for the recovery of the
balance of the loan remaining unpaid. Plaintiff countered with his suit against
both defendants on August 10, 1959, her main allegation being that the
mortgage sought to be foreclosed had long prescribed, fifteen years having
elapsed from the date of maturity, July 19, 1944. She sought and was able to
obtain a writ of preliminary injunction against defendant Provincial Sheriff,
which was made permanent in the decision now on appeal. Defendant Bank in
its answer prayed for the dismissal of the suit as even on plaintiff's own theory
the defense of prescription would not be available if the period from March 10,
1945, when Executive Order No. 32 1 was issued, to July 26, 1948, when the
subsequent legislative act 2 extending the period of moratorium was declared
invalid, were to be deducted from the computation of the time during which the
bank took no legal steps for the recovery of the loan. As noted, the lower court
did not find such contention persuasive and decided the suit in favor of plaintiff.
Hence this appeal, which, as made clear at the outset, possesses merit, there
being a failure on the part of the lower court to adhere to the applicable
constitutional doctrine as to the effect to be given to a statute subsequently
declared invalid.
1. The decision now on appeal reflects the orthodox view that an unconstitutional
act, for that matter an executive order or a municipal ordinance likewise suffering
from that infirmity, cannot be the source of any legal rights or duties. Nor can it
justify any official act taken under it. Its repugnancy to the fundamental law
once judicially declared results in its being to all intents and purposes a mere
scrap of paper. As the new Civil Code puts it: "When the courts declare a law to
be inconsistent with the Constitution, the former shall be void and the latter shall
govern. Administrative or executive acts, orders and regulations shall be valid
only when they are not contrary to the laws of the Constitution. 3 It is
understandable why it should be so, the Constitution being supreme and
paramount. Any legislative or executive act contrary to its terms cannot survive.
Such a view has support in logic and possesses the merit of simplicity. It may not
however be sufficiently realistic. It does not admit of doubt that prior to the
declaration of nullity such challenged legislative or executive act must have been
in force and had to be complied with. This is so as until after the judiciary, in an
appropriate case, declares its invalidity, it is entitled to obedience and respect.
Parties may have acted under it and may have changed their positions. What
could be more fitting than that in a subsequent litigation regard be had to what
has been done while such legislative or executive act was in operation and
presumed to be valid in all respects. It is now accepted as a doctrine that prior to
its being nullified, its existence as a fact must be reckoned with. This is merely to
reflect awareness that precisely because the judiciary is the governmental organ
which has the final say on whether or not a legislative or executive measure is
valid, a period of time may have elapsed before it can exercise the power of
judicial review that may lead to a declaration of nullity. It would be to deprive the
law of its quality of fairness and justice then, if there be no recognition of what
had transpired prior to such adjudication.
In the language of an American Supreme Court decision: "The actual existence of

a statute, prior to such a determination [of unconstitutionality], is an operative
fact and may have consequences which cannot justly be ignored. The past cannot
always he erased by a new judicial declaration.— The effect of the subsequent
ruling as to invalidity may have to be considered in various aspects, - with
respect to particular relations, individual and corporate, and particular conduct,
private and official." 4 This language has been quoted with approval in a
resolution in Araneta v. Hill 5 and the decision in Manila Motor Co., Inc. v. Flores. 6
An even more recent instance is the opinion of Justice Zaldivar speaking for the
Court in Fernandez v. Cuerva and Co. 7
2. Such an approach all the more commends itself whenever police power
legislation intended to promote public welfare but adversely affecting property
rights is involved. While subject to be assailed on due process, equal protection
and non-impairment grounds, all that is required to avoid the corrosion of
invalidity is that the rational basis or reasonableness test is satisfied. The
legislature on the whole is not likely to allow an enactment suffering, to
paraphrase Cardozo, from the infirmity of outrunning the bounds of reason and
resulting in sheer oppression. It may be of course that if challenged, an adverse
judgment could be the result, as its running counter to the Constitution could still
be shown. In the meanwhile though, in the normal course of things, it has been
acted upon by the public and accepted as valid. To ignore such a fact would indeed
be the fruitful parent of injustice. Moreover, as its constitutionality is conditioned
on its being fair or reasonable, which in turn is dependent on the actual situation,
never static but subject to change, a measure valid when enacted may
subsequently, due to altered circumstances, be stricken down.
That is precisely what happened in connection with Republic Act No. 342, the
moratorium legislation, which continued Executive Order No. 32, issued by the
then President Osmeña, suspending the enforcement of payment of all debts and
other monetary obligations payable by war sufferers. So it was explicitly held in
Rutter v. Esteban 8 where such enactment was considered in 1953 "unreasonable
and oppressive, and should not be prolonged a minute longer, and, therefore, the
same should be declared null and void and without effect." 9 At the time of the
issuance of the above Executive Order in 1945 and of the passage of such Act in
1948, there was a factual justification for the moratorium. The Philippines was
confronted with an emergency of impressive magnitude at the time of her
liberation from the Japanese military forces in 1945. Business was at a standstill.
Her economy lay prostrate. Measures, radical measures, were then devised to
tide her over until some semblance of normalcy could be restored and an
improvement in her economy noted. No wonder then that the suspension of
enforcement of payment of the obligations then existing was declared first by
executive order and then by legislation. The Supreme Court was right therefore
in rejecting the contention that on its face, the Moratorium Law was
unconstitutional, amounting as it did to the impairment of the obligation of
contracts. Considering the circumstances confronting the legitimate government
upon its return to the Philippines, some such remedial device was needed and
badly so. An unyielding insistence then on the rights to property on the part of
the creditors was not likely to meet with judicial sympathy. Time passed
however, and conditions did change.
When the legislation was before this Court in 1953, the question before it was
its satisfying the rational basis test, not as of the time of its enactment but as of
such date. Clearly, if then it were found unreasonable, the right to non-
impairment of contractual obligations must prevail over the assertion of
community power to remedy an existing evil. The Supreme Court was convinced
that such indeed was the case. As stated in the opinion of Justice Bautista
Angelo: "But we should not lose sight of the fact that these obligations had been
pending since 1945 as a result of the issuance of Executive Orders Nos. 25 and
32 and at present their enforcement is still inhibited because of the enactment of
Republic Act No. 342 and would continue to be unenforceable during the eight-
year period granted to prewar debtors to afford them an opportunity to
rehabilitate themselves, which in plain language means that the creditors would
have to observe a vigil of at least twelve (12) years before they could affect a
liquidation of their investment dating as far back as 1941. This period seems to
us unreasonable, if not oppressive. While the purpose of Congress is plausible,
and should be commended, the relief accorded works injustice to creditors who
are practically left at the mercy of the debtors. Their hope to effect collection
becomes extremely remote, more so if the credits are unsecured. And the
injustice is more patent when, under the law, the debtor is not even required to
pay interest during the operation of the relief, unlike similar statutes in the
United States." 10 The conclusion to which the foregoing considerations
inevitably led was that as of the time of adjudication, it was apparent that
Republic Act No. 342 could not survive the test of validity. Executive Order No. 32
should likewise be nullified. That before the decision they were not
constitutionally infirm was admitted expressly. There is all the more reason then
to yield assent to the now prevailing principle that the existence of a statute or
executive order prior to its being adjudged void is an operative fact to which legal
consequences are attached.
3. Precisely though because of the judicial recognition that moratorium was a
valid governmental response to the plight of the debtors who were war sufferers,
this Court has made clear its view in a series of cases impressive in their number
and unanimity that during the eight-year period that Executive Order No. 32 and
Republic Act No. 342 were in force, prescription did not run. So it has been held
from Day v. Court of First Instance, 11 decided in 1954, to Republic v. Hernaez, 12
handed down only last year. What is deplorable is that as of the time of the
lower court decision on January 27, 1960, at least eight decisions had left no
doubt as to the prescriptive period being tolled in the meanwhile prior to such
adjudication of invalidity. 13 Speaking of the opposite view entertained by the
lower court, the present Chief Justice, in Liboro v. Finance and Mining
Investments Corp. 14 has categorized it as having been "explicitly and
consistently rejected by this Court." 15
The error of the lower court in sustaining plaintiff's suit is thus manifest. From
July 19, 1944, when her loan matured, to July 13, 1959, when extra-judicial
foreclosure proceedings were started by appellant Bank, the time consumed is six
days short of fifteen years. The prescriptive period was tolled, however, from
March 10, 1945, the effectivity of Executive Order No. 32, to May 18, 1953,
when the decision of Rutter v. Esteban was promulgated, covering eight years,
two months and eight days. Obviously then, when resort was had extra-judicially
to the foreclosure of the mortgage obligation, there was time to spare before
prescription could be availed of as a defense.
WHEREFORE, the decision of January 27, 1960 is reversed and the suit of
plaintiff filed August 10, 1959 dismissed. No costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Castro, Teehankee,
Barredo, Villamor, and Makasiar, JJ., concur.
Footnotes
1. Under Executive Order No. 32 providing for a debt moratorium, it was specifically
stated: "Enforcement of payment of all debts and other monetary obligations
payable within the Philippines, except debts and other monetary obligations
entered into in any area after declaration by Presidential Proclamation that such
area has been freed from enemy occupation and control, is temporarily
suspended pending action by the Commonwealth Government." Executive
Order No. 32 was issued on March 10, 1945. Executive Order No. 32 amended
Executive Order No. 25 (1944).
2. According to the declaration of policy in Republic Act No. 342 (1948), Executive
Order No. 32 remains in full force and effect for the war sufferers as for them
the emergency created by the last war was still existent. Then came this
specific provision: "All debts and other monetary obligations payable by private
parties within the Philippines originally incurred or contracted before December
8, 1941, and still remaining unpaid, any provision or provisions in the contract
creating the same or in any subsequent agreement affecting such obligation to
the contrary notwithstanding, shall not be due and demandable for a period of
eight (8) years from and after settlement of the war damage claim of the debtor
by the United States Philippine War Damage Commission, without prejudice,
however, to any voluntary agreement which the interested parties may enter
into after the approval of this Act for the settlement of said obligations." Sec. 2.
3. ART. 7. In the classic language of Justice Field: "An unconstitutional Act is not a law;
it confers no rights; it imposes no duties; it affords no protection; it creates no
office; it is in legal contemplation as inoperative as though it had never been."
Norton v. Shelly County, 118 US 425 (1886).
4. Chicot County Drainage Dist. v. Baxter States Bank, 308 US 371, 374 (1940).
5. 93 Phil. 1002 (1953).
6. 99 Phil. 738 (1956).
7. L-21114, Nov. 28, 1967, 21 SCRA 1095.
8. 93 Phil. 68 (1953). Rutter v. Esteban was subsequently cited in the following cases:
Araneta v. Hill, 93 Phil. 1002 (1953); Londres v. National Life Insurance Co., 94
Phil. 627 (1954); Dizon v. Ocampo, 94 Phil. 803 (1954); De Leon v. Ibañez, 95
Phil. 119 (1954); Picornell and Co. v. Cordova, 95 Phil. 632 (1954); Berg v. Teus,
96 Phil. 102 (1954); Herrera v. Arellano, 97 Phil. 776 (1955); Chua Lamko v.
Dioso, 97 Phil. 821 (1955); Rio y Cia v. Sandoval, 100 Phil. 407 (1956); Gonzaga
v. Rehabilitation Finance Corp., 100 Phil. 892 (1957); Pacific Commercial Co. v.
Aquino, 100 Phil. 961 (1957); Bachrach Motor Co., Inc. v. Chua Tua Hian, 101
Phil. 184 (1957); Liboro v. Finance and Mining Investment Corp., 102 Phil. 489
1957); Rio y Compania v. Jolkipli, 105 Phil. 447 (1959); People v. Jolliffe, 105 Phil.
677 (1959); Uy Hoo and Co., Inc. v. Tan, 105 Phil. 717 (1959); Compania
Maritima v. Court of Appeals and Libby, McNeill and Libby (Phil.), Inc., 108 Phil.
469 (1960).
9. Ibid., p, 82. The same conclusion obtains in the opinion of the Court as regards
Executive Order No. 32.
10. Ibid., p. 77.
11. 94 Phil. 816.
12. L-24137, January 30, 1970, 31 SCRA 219, citing Republic v. Grijaldo, L-20240,
December 31, 1965, 15 SCRA 681; Republic v. Rodriguez, L-18967, January 31,
1966, 16 SCRA 53; Nielson and Co., Inc. v. Lepanto Consolidated Mining Co., L-
21601, December 28, 1968, 26 SCRA 540.
13. Day v. Court of First Instance of Tarlac, 94 Phil. 816 (1954); Montilla v. Pacific
Commercial Company, 98 Phil 133 (1955); Pacific Commercial Co. v. Aquino,
100 Phil. 961 (1957); Bachrach Motor Co., Inc. v. Chua Tua Tian, 101 Phil. 184
(1957); Liboro v. Finance and Mining Investment Corp., 102 Phil. 489 (1957); Rio
y Compania v. Jolkipli, 105 Phil. 447 (1959); People v. Jollifee, 105 Phil. 677
(1959); Uy Hoo & Co., Inc. v. Tan, 105 Phil. 716 (1959).
14. 102 Phil. 489 (1957).
15. Ibid., p. 493.

EN BANC
[G.R. No. 81510. March 14, 1990.]
HORTENCIA SALAZAR, petitioner, vs. HON. TOMAS D.

ACHACOSO, in his capacity as Administrator of the Philippine
Overseas Employment Administration, and FERDIE
MARQUEZ, respondents.
Gutierrez & Alo Law Offices for petitioner.
SYLLABUS
1. CONSTITUTIONAL LAW; WARRANTS OF SEARCH AND ARREST; MAY BE ISSUED

ONLY BY A JUDGE; EXCEPTION. — Under the new Constitution, which states: . . .
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. It is only judges, and no other, who may issue warrants of arrest and
search. The exception is in cases of deportation of illegal and undesirable aliens,
whom the President or the Commissioner of Immigration may order arrested,
following a final order of deportation, for the purpose of deportation.
2. ID.; ID.; SECRETARY OF LABOR; NO LONGER AUTHORIZED TO ISSUE
WARRANT. — The Secretary of Labor, not being a judge, may no longer issue
search or arrest warrants. Hence, the authorities must go through the judicial
process. To that extent, we declare Article 38, paragraph (c), of the Labor Code,
unconstitutional and of no force and effect.
3. ID.; ID.; IDENTIFY CLEARLY THE THINGS TO BE SEIZED. — We have held that a
warrant must identify clearly the things to be seized, otherwise, it is null and
void, thus: . . .Another factor which makes the search warrants under
consideration constitutionally objectionable is that they are in the nature of
general warrants. . . . In Stanford v. State of Texas, the search warrant which
authorized the search for `books, records, pamphlets, cards, receipts, lists,
memoranda, pictures, recordings and other written instruments concerning the
Communist Parties of Texas, and the operations of the Community Party in
Texas," was declared void by the U.S. Supreme Court for being too general. In like
manner, directions to 'seize any evidence in connection with the violation of SDC
13-3703 or otherwise" have been held too general, and that portion of a search
warrant which authorized the seizure of any "paraphernalia which could be used
to violate Sec. 54-197 of the Connecticut General Statutes (the statute dealing
with the crime of conspiracy)" was held to be a general warrant, and therefore
invalid. The description of the articles sought to be seized under the search
warrants in question cannot be characterized differently. . . .

DECISION
SARMIENTO, J : p
This concerns the validity of the power of the Secretary of Labor to issue
warrants of arrest and seizure under Article 38 of the Labor Code, prohibiting
illegal recruitment. LibLex
The facts are as follows:

xxx xxx xxx
1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street,

Leveriza, Pasay City, in a sworn statement filed with the Philippine
Overseas Employment Administration (POEA for brevity) charged
petitioner Hortencia Salazar, viz.:
"04. T: Ano ba ang dahilan at ikaw ngayon ay narito at
nagbibigay ng salaysay?
S: Upang ireklamo sa dahilan ang aking PECC Card

ay ayaw ibigay sa akin ng dati kong manager. — Horty Salazar —
615 R.O. Santos, Mandaluyong, Mla.
05. T: Kailan at saan naganap ang ginawang panloloko sa

iyo ng tao/mga taong inireklamo mo?
S: Sa bahay ni Horty Salazar.
06. T: Paano naman naganap ang pangyayari?
S: Pagkagaling ko sa Japan ipinatawag niya ako. Kinuha ang

PECC Card ko at sinabing hahanapan ako ng Booking sa Japan.
Mag-9 months na ako sa Phils. ay hindi pa niya ako napa-alis. So
lumipat ako ng ibang company pero ayaw niyang ibigay and PECC
Card ko.
2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to

whom said complaint was assigned, sent to the petitioner the following
telegram:
"YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE

MARQUEZ POEA ANTI ILLEGAL RECRUITMENT UNIT 6TH FLR. POEA
BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM ON
NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST YOU. FAIL
NOT UNDER PENALTY OF LAW."
4. On the same day, having ascertained that the petitioner had no license
to operate a recruitment agency, public respondent Administrator Tomas
D. Achacoso issued his challenged CLOSURE AND SEIZURE ORDER NO.
1205 which reads:
"HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila

Pursuant to the powers vested in me under Presidential Decree No.
1920 and Executive Order No. 1022, I hereby order the CLOSURE
of your recruitment agency being operated at No. 615 R.O. Santos
St., Mandaluyong, Metro Manila and the seizure of the documents
and paraphernalia being used or intended to be used as the means
of committing illegal recruitment, it having verified that you have —
(1) No valid license or authority from the Department of Labor and

Employment to recruit and deploy workers for overseas
employment;
(2) Committed/are committing acts prohibited under Article 34 of

the New Labor Code in relation to Article 38 of the same
code.
This ORDER is without prejudice to your criminal prosecution under

existing laws.
Done in the City of Manila, this 3rd day of November, 1987."
5. On January 26, 1988 POEA Director on Licensing and Regulation Atty.

Estelita B. Espiritu issued an office order designating respondents Atty.
Marquez, Atty. Jovencio Abara and Atty. Ernesto Vistro as members of a
team tasked to implement Closure and Seizure Order No. 1205. Doing so,
the group assisted by Mandaluyong policemen and mediamen Lito Castillo
of the People's Journal and Ernie Baluyot of News Today proceeded to the
residence of the petitioner at 615 R.O. Santos St., Mandaluyong, Metro
Manila. There it was found that petitioner was operating Hannalie Dance
Studio. Before entering the place, the team served said Closure and
Seizure order on a certain Mrs. Flora Salazar who voluntarily allowed them
entry into the premises. Mrs. Flora Salazar informed the team that
Hannalie Dance Studio was accredited with Moreman Development (Phil.).
However, when required to show credentials, she was unable to produce
any. Inside the studio, the team chanced upon twelve talent performers
— practicing a dance number and saw about twenty more waiting
outside. The team confiscated assorted costumes which were duly
receipted for by Mrs. Asuncion Maguelan and witnessed by Mrs. Flora
Salazar. cdphil
6. On January 28, 1988, petitioner filed with POEA the following letter:
"Gentlemen:
On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong,

Metro Manila, we respectfully request that the personal properties
seized at her residence last January 26, 1988 be immediately
returned on the ground that said seizure was contrary to law and
against the will of the owner thereof. Among our reasons are the
following:
1. Our client has not been given any prior notice or hearing, hence
the Closure and Seizure Order No. 1205 dated November 3,
1987 violates "due process of law" guaranteed under Sec. 1,
Art. III, of the Philippine Constitution.
2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution
which guarantees 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."
3. The premises invaded by your Mr. Ferdie Marquez and five (5)
others (including 2 policemen) are the private residence of
the Salazar family, and the entry, search as well as the
seizure of the personal properties belonging to our client
were without her consent and were done with unreasonable
force and intimidation, together with grave abuse of the color
of authority, and constitute robbery and violation of domicile
under Arts. 293 and 128 of the Revised Penal Code.
Unless said personal properties worth around TEN THOUSAND

PESOS (P10,000.00) in all (and which were already due for
shipment to Japan) are returned within twenty-four (24) hours from
your receipt hereof, we shall feel free to take all legal action, civil
and criminal, to protect our client's interests.
We trust that you will give due attention to these important
matters."
7. On February 2, 1988, before POEA could answer the letter, petitioner
filed the instant petition; on even date, POEA filed a criminal complaint
against her with the Pasig Provincial Fiscal, docketed as IS-88-836. 1
On February 2, 1988, the petitioner filed this suit for prohibition. Although the
acts sought to be barred are already fait accompli, thereby making prohibition
too late, we consider the petition as one for certiorari in view of the grave public
interest involved.
The Court finds that a lone issue confronts it: May the Philippine Overseas
Employment Administration (or the Secretary of Labor) validly issue warrants of
search and seizure (or arrest) under Article 38 of the Labor Code? It is also an
issue squarely raised by the petitioner for the Court's resolution.
Under the new Constitution, which states:
. . . 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. 2
it is only a judge who may issue warrants of search and arrest. 3 In one case,
it was declared that mayors may not exercise this power:
xxx xxx xxx
But it must be emphasized here and now that what has just been
described is the state of the law as it was in September, 1985. The law
has since been altered. No longer does the mayor have at this time the
power to conduct preliminary investigations, much less issue orders of
arrest. Section 143 of the Local Government Code, conferring this power
on the mayor has been abrogated, rendered functus officio by the 1987
Constitution which took effect on February 2, 1987; the date of its
ratification by the Filipino people. Section 2, Article III of the 1987
Constitution pertinently provides that "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 person or things to be
seized." The constitutional proscription has thereby been manifested that
thenceforth, the function of determining probable cause and issuing, on
the basis thereof, warrants of arrest or search warrants; may be validly
exercised only by judges, this being evidenced by the elimination in the
present Constitution of the phrase, "such other responsible officer as
may be authorized by law" found in the counterpart provision of said
1973 Constitution, who, aside from judges, might conduct preliminary
investigations and issue warrants of arrest or search warrants. 4
Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or
was meant to exercise, prosecutorial powers, and on that ground, it
cannot be said to be a neutral and detached "judge" to determine the
existence of probable cause for purposes of arrest or search. Unlike a
magistraté, a prosecutor is naturally interested in the success of his
case. Although his office "is to see that justice is done and not necessarily
to secure the conviction of the person accused," he stands, invariably, as
the accused's adversary and his accuser. To permit him to issue search
warrants and indeed, warrants of arrest, is to make him both judge and
jury in his own right, when he is neither. That makes, to our mind and to
that extent, Presidential Decree No. 1936 as amended by Presidential
Decree No. 2002, unconstitutional. 5
Section 38, paragraph (c), of the Labor Code, as now written, was entered as an
amendment by Presidential Decrees Nos. 1920 and 2018 of the late President
Ferdinand Marcos, to Presidential Decree No. 1693, in the exercise of his
legislative powers under Amendment No. 6 of the 1973 Constitution. Under the
latter, the then Minister of Labor merely exercised recommendatory powers: prLL
(c) The Minister of Labor or his duly authorized representative shall have
the power to recommend the arrest and detention of any person
engaged in illegal recruitment. 6
On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the
avowed purpose of giving more teeth to the campaign against illegal
recruitment. The Decree gave the Minister of Labor arrest and closure powers:
(b) The Minister of Labor and Employment shall have the power to cause
the arrest and detention of such non-licensee or non-holder of authority
if after proper investigation it is determined that his activities constitute a
danger to national security and public order or will lead to further
exploitation of job-seekers. The Minister shall order the closure of
companies, establishment and entities found to be engaged in the
recruitment of workers for overseas employment, without having been
licensed or authorized to do so. 7
On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018,
giving the Labor Minister search and seizure powers as well:
(c) The Minister of Labor and Employment or his duly authorized
representatives shall have the power to cause the arrest and detention of
such non-licensee or non-holder of authority if after investigation it is
determined that his activities constitute a danger to national security and
public order or will lead to further exploitation of job-seekers. The Minister
shall order the search of the office or premises and seizure of
documents, paraphernalia, properties and other implements used in illegal
recruitment activities and the closure of companies, establishment and
entities found to be engaged in the recruitment of workers for overseas
employment, without having been licensed or authorized to do so. 8
The above has now been etched as Article 38, paragraph (c) of the Labor Code.
The decrees in question, it is well to note, stand as the dying vestiges of
authoritarian rule in its twilight moments.
We reiterate that the Secretary of Labor, not being a judge, may no longer issue
search or arrest warrants. Hence, the authorities must go through the judicial
process. To that extent, we declare Article 38, paragraph (c), of the Labor Code,
unconstitutional and of no force and effect.
The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken.
Vivo involved a deportation case, governed by Section 69 of the defunct Revised
Administrative Code and by Section 37 of the Immigration Law. We have ruled
that in deportation cases, an arrest (of an undesirable alien) ordered by the
President or his duly authorized representatives, in order to carry out a final
decision of deportation is valid. 10 It is valid, however, because of the recognized
supremacy of the Executive in matters involving foreign affairs. We have held: 11
xxx xxx xxx
The State has the inherent power to deport undesirable aliens (Chuoco
Tiaco vs. Forbes, 228 U.S. 549, 57 L. Ed. 960, 40 Phil. 1122, 1125). That
power may be exercised by the Chief Executive "when he deems such
action necessary for the peace and domestic tranquility of the nation."
Justice Johnson's opinion is that when the Chief Executive finds that there
are aliens whose continued presence in the country is injurious to the
public interest, "he may, even in the absence of express law, deport
them". (Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569; In
re McCulloch Dick, 38 Phil. 41).cdll
"The right of a country to expel or deport aliens because their continued

presence is detrimental to public welfare is absolute and unqualified" (Tiu
Chun Hai and Go Tam vs. Commissioner of Immigration and the Director
of NBI, 104 Phil. 949, 956). 12
The power of the President to order the arrest of aliens for deportation is,
obviously, exceptional. It (the power to order arrests) can not be made to extend
to other cases, like the one at bar. Under the Constitution, it is the sole domain of
the courts.
Moreover, the search and seizure order in question, assuming, ex gratia
argumenti, that it was validly issued, is clearly in the nature of a general
warrant:

Pursuant to the powers vested in me under Presidential Decree No. 1920
and Executive Order No. 1022, I hereby order the CLOSURE of your
recruitment agency being operated at No. 615 R.O. Santos St.,
Mandaluyong, Metro Manila and the seizure of the documents and
paraphernalia being used or intended to be used as the means of
committing illegal recruitment, it having verified that you have —
(1) No valid license or authority from the Department of Labor and
Employment to recruit and deploy workers for overseas
employment;
(2) Committed/are committing acts prohibited under Article 34 of
the New Labor Code in relation to Article 38 of the same
code.
This ORDER is without prejudice to your criminal prosecution under

existing laws. 13
We have held that a warrant must identify clearly the things to be seized,
otherwise, it is null and void, thus:
xxx xxx xxx
Another factor which makes the search warrants under consideration
constitutionally objectionable is that they are in the nature of general
warrants. The search warrants describe the articles sought to be seized
in this wise:
"1) All printing equipment, paraphernalia, paper, ink, photo
equipment, typewriters, cabinets, tables,
communications/recording equipment, tape recorders, dictaphone
and the like used an/or connected in the printing of the 'WE FORUM'
newspaper and any and all documents/communications, letters and
facsimile of prints related to the 'WE FORUM' newspaper.
2) Subversive documents, pamphlets, leaflets, books, and other
publications to promote the objectives and purposes of the
subversive organizations known as Movement for Free Philippines,
Light-a-Fire Movement and April 6 Movement; and
3) Motor vehicles used in the distribution/circulation of the 'WE
FORUM' and other subversive materials and propaganda, more
particularly,
1) Toyota-Corolla, colored yellow with Plate No. NKA 892;
2) DATSUN pick-up colored white with Plate No. NKV 969;
3) A delivery truck with Plate No. NBS 542;
4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665;

and
5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with
marking 'Bagong Silang.'"
In Stanford v. State of Texas, the search warrant which authorized the

search for 'books, records, pamphlets, cards, receipts, lists, memoranda,
pictures, recordings and other written instruments concerning the
Communist Parties of Texas, and the operations of the Community Party
in Texas,' was declared void by the U.S. Supreme Court for being too
general. In like manner, directions to 'seize any evidence in connection
with the violation of SDC 13-3703 or otherwise" have been held too
general, and that portion of a search warrant which authorized the
seizure of any "paraphernalia which could be used to violate Sec. 54-197
of the Connecticut General Statutes (the statute dealing with the crime of
conspiracy)" was held to be a general warrant, and therefore invalid. The
description of the articles sought to be seized under the search warrants
in question cannot be characterized differently.LLpr
In the Stanford case, the U.S. Supreme court calls to mind a notable
chapter in English history: the era of disaccord between the Tudor
Government and the English Press, when "Officers of the Crown were
given roving commissions to search where they pleased in order to
suppress and destroy the literature of dissent both Catholic and Puritan."
Reference herein to such historical episode would not be relevant for it is
not the policy of our government to suppress any newspaper or
publication that speaks with "the voice of non-conformity" but poses no
clear and imminent danger to state security. 14
For the guidance of the bench and the bar, we reaffirm the following principles:
1. Under Article III, Section 2, of the 1987 Constitution, it is only judges, and no
other, who may issue warrants of arrest and search;
2. The exception is in cases of deportation of illegal and undesirable aliens, whom
the President or the Commissioner of Immigration may order arrested, following
a final order of deportation, for the purpose of deportation.
WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor
Code is declared UNCONSTITUTIONAL and null and void. The respondents are
ORDERED to return all materials seized as a result of the implementation of
Search and Seizure Order No. 1205. cdrep
No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Cortes, Griño-Aquino, Medialdea and Regalado, JJ.,
concur.
Footnotes
1. Rollo, 19-24; emphases in the original.
2. CONST., art. III, sec. 2.

3. See Ponsica v. Ignalaga, No. 72301, July 31, 1987, 152 SCRA 647; Presidential Anti-
Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, March 16, 1989.
4. Ponsica, supra, 662-663.
5. Presidential Anti-Dollar Salting Task Force, supra, 21.

6. Pres. Decree No. 1693, "FURTHER AMENDING ARTICLE 38 OF THE LABOR CODE BY
MAKING ILLEGAL RECRUITMENT A CRIME OF ECONOMIC SABOTAGE."
7. Supra, sec. 1.
8. Pres. Decree No. 2018, "FURTHER AMENDING ARTICLES 38 AND 39 OF THE LABOR
CODE BY MAKING ILLEGAL RECRUITMENT A CRIME OF ECONOMIC SABOTAGE
AND PUNISHABLE WITH IMPRISONMENT."
9. No. L-22196, June 30, 1967, 20 SCRA 562.
10. Qua Chee Gan v. Deportation Board, No. L-10280, September 30, 1963, 9 SCRA
27; Vivo v. Montesa, No. L-24576, 24 SCRA 155.
11. Go Tek v. Deportation Board, No. L-23846, September 9, 1977, 79 SCRA 17.
12. Supra, 21-22.
13. Rollo, id., 15.

14. Burgos, Sr. v. Chief of Staff, AFP, No. 64261, December 26, 1984, 133 SCRA 800,
814-816.

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EN BANC

[G.R. No. 174153. October 25, 2006.]

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH

ALTERNATIVE LAW GROUPS, INC. , intervenor.

ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL

ATTY. PETE QUIRINO QUADRA , intervenor.

BAYAN represented by its Chairperson Dr. Carolina Pagaduan-

LORETA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA

LUWALHATI RIACASA ANTONINO , intervenor.

ARTURO M. DE CASTRO , intervenor.

TRADE UNION CONGRESS OF THE PHILIPPINES , intervenor.

LUWALHATI RICASA ANTONINO , intervenor.

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO

RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA ,

PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION

SENATE OF THE PHILIPPINES, represented by its President,

SULONG BAYAN MOVEMENT FOUNDATION, INC. , intervenor.

JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A.

INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU

SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and

JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO ,

[G.R. No. 174299. October 25, 2006.]

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V.

MR. SUAREZ: That can be reasonably assumed , Madam President.

Likewise, in Kerr v. Bradbury , 1 8 the Court of Appeals of Oregon explained:

There is not a single word, phrase, or sentence of text of the Lambino

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RESOLUTION NO. 2006-02

ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to

Sec. 1. Any amendment to, or revision of, this Constitution may

(2) A constitutional convention .

Article XVII of the Constitution speaks of three modes of amending the

May we respectfully call the attention of the Members of the Commission

xxx xxx xxx

MR. SUAREZ: That is right. Those were the terms envisioned in

MR. MAAMBONG: My rst question: Commissioner Davide's

MR. MAAMBONG: Thank you. 3 1 (Emphasis supplied)

Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling : 3 3

To call it an amendment is a misnomer.

Revision broadly implies a change that alters a basic principle in the

In Adams v. Gunter , 4 2 an initiative petition proposed the amendment of the

We conclude with the observation that if such proposed amendment were

In Adams , the Supreme Court of Florida enumerated 18 sections of the Florida

100. Stated otherwise, the difference between "amendment" and

The Lambino Group in effect argues that if Congress or a constitutional

Plaintiffs argue that the proposed ballot measure constitutes a wholesale

"From the foregoing it appears that Article IV, Section 1, authorizes

Accordingly, we reject Mabon's argument that Article XVII, section

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The basic rule in statutory construction is that if a later law is irreconcilably

WHEREFORE, we DISMISS the petition in G.R. No. 174153.

Without the rule of law, there can be no

In the present case, I steadfastly stand by my foregoing Opinions in Santiago and

PUNO, J., dissenting :

"It is a Constitution we are expounding. . . " 1

We feel, however, that the system of initiative to propose amendments to

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

c) DECLARING void those parts of Resolution No. 2300 of the

d) ORDERING the Commission on Elections to forthwith DISMISS