Consti Law Part 1

CONSTITUTIONAL LAW 1 (Atty. Niceforo Solis)1ST EXAM COVERAGE – CASE COMPILATION

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I. IN GENERALA. POLITICAL LAW DEFINED

MACARIOLA v. ASUNCION 114 S 77 (1982)

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

A.M. No. 133-J May 31, 1982

BERNARDITA R. MACARIOLA, complainant, vs.HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte, respondent.

MAKASIAR, J:

In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge Elias B. Asuncion of the Court of First Instance of Leyte, now Associate Justice of the Court of Appeals, with "acts unbecoming a judge."

The factual setting of the case is stated in the report dated May 27, 1971 of then Associate Justice Cecilia Muñoz Palma of the Court of Appeals now retired Associate Justice of the Supreme Court, to whom this case was referred on October 28, 1968 for investigation, thus:

Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for partition filed by Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs, against Bernardita R. Macariola, defendant, concerning the properties left by the deceased Francisco Reyes, the common father of the plaintiff and defendant.

In her defenses to the complaint for partition, Mrs. Macariola alleged among other things that; a) plaintiff Sinforosa R. Bales was not a daughter of the deceased Francisco Reyes; b) the only legal heirs of the deceased were defendant Macariola, she being the only offspring of the first marriage of Francisco Reyes with Felisa Espiras, and the remaining plaintiffs who were the children of the deceased by his second marriage with Irene Ondez; c) the properties left by the deceased were all the conjugal properties of the latter and his first wife, Felisa Espiras, and no properties were acquired by the deceased during his second marriage; d) if there was any partition to be made, those conjugal properties should first be partitioned into two parts, and one part is to be adjudicated solely to defendant it being the share of the latter's deceased mother, Felisa Espiras, and the other half which is the share of the deceased Francisco

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

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

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a preponderance of evidence, finds and so holds, and hereby renders judgment (1) Declaring the plaintiffs Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes as the only children legitimated by the subsequent marriage of Francisco Reyes Diaz to Irene Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to have been an illegitimate child of Francisco Reyes Diaz; (3) Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and 1/4 of Lot 1145 as belonging to the conjugal partnership of the spouses Francisco Reyes Diaz and Felisa Espiras; (4) Declaring Lot No. 2304 and 1/4 of Lot No. 3416 as belonging to the spouses Francisco Reyes Diaz and Irene Ondez in common partnership; (5) Declaring that 1/2 of Lot No. 1184 as belonging exclusively to the deceased Francisco Reyes Diaz; (6) Declaring the defendant Bernardita R. Macariola, being the only legal and forced heir of her mother Felisa Espiras, as the exclusive owner of one-half of each of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506; and the remaining one-half (1/2) of each of said Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and one-half (1/2) of one-fourth (1/4) of Lot No. 1154 as belonging to the estate of Francisco Reyes Diaz; (7) Declaring Irene Ondez to be the exclusive owner of one-half (1/2) of Lot No. 2304 and one-half (1/2) of one-fourth (1/4) of Lot No. 3416; the remaining one-half (1/2) of Lot 2304 and the remaining one-half (1/2) of one-fourth (1/4) of Lot No. 3416 as belonging to the estate of Francisco Reyes Diaz; (8) Directing the division or partition of the estate of Francisco Reyes Diaz in such a manner as to give or grant to Irene Ondez, as surviving widow of Francisco Reyes Diaz, a hereditary share of. one-twelfth (1/12) of the whole estate of Francisco Reyes Diaz (Art. 996 in relation to Art. 892, par 2, New Civil Code), and the remaining portion of the estate to be divided among the plaintiffs Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes and defendant Bernardita R. Macariola, in such a way that the extent of the total share of plaintiff Sinforosa R. Bales in the hereditary estate shall not exceed the equivalent of two-fifth (2/5) of the total share of any or each of the other plaintiffs and the defendant (Art. 983, New Civil Code), each of the latter to receive equal shares from the hereditary estate, (Ramirez vs. Bautista, 14 Phil. 528; Diancin vs. Bishop of Jaro, O.G. [3rd Ed.] p. 33);

(9) Directing the parties, within thirty days after this judgment shall have become final to submit to this court, for approval a project of partition of the hereditary estate in the proportion above indicated, and in such manner as the parties may, by agreement, deemed convenient and equitable to them taking into consideration the location, kind, quality, nature and value of the properties involved; (10) Directing the plaintiff Sinforosa R. Bales and defendant Bernardita R. Macariola to


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pay the costs of this suit, in the proportion of one-third (1/3) by the first named and two-thirds (2/3) by the second named; and (I 1) Dismissing all other claims of the parties [pp 27-29 of Exh. C].

The decision in civil case 3010 became final for lack of an appeal, and on October 16, 1963, a project of partition was submitted to Judge Asuncion which is marked Exh. A. Notwithstanding the fact that the project of partition was not signed by the parties themselves but only by the respective counsel of plaintiffs and defendant, Judge Asuncion approved it in his Order dated October 23, 1963, which for convenience is quoted hereunder in full:

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

COMES NOW, the plaintiffs and the defendant in the above-entitled case, to this Honorable Court respectfully submit the following Project of Partition:

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

2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the eastern part of the lot shall be awarded likewise to Bernardita R. Macariola;

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

4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the western part of the lot shall likewise be awarded to Sinforosa Reyes-Bales;

5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares;

6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the portions awarded under item (2) and (4) above shall be awarded to Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares, provided, however that the remaining portion of Lot No. 3416 shall belong exclusively to Priscilla Reyes.

WHEREFORE, it is respectfully prayed that the Project of Partition indicated above which is made in accordance with the decision of the Honorable Court be approved.

Tacloban City, October 16, 1963.

(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City

(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City

While the Court thought it more desirable for all the parties to have signed this Project of Partition, nevertheless, upon assurance of both counsels of the respective parties to this Court that the Project of Partition, as above- quoted, had been made after a conference and agreement of the plaintiffs and the defendant approving the above Project of Partition, and that both lawyers had represented to the Court that they are given full authority to sign by themselves the Project of Partition, the Court, therefore, finding the above-quoted Project of Partition to be in accordance with law, hereby approves the same. The parties, therefore, are directed to execute such papers, documents or instrument sufficient in form and substance for the vesting of the rights, interests and participations which were adjudicated to the respective parties, as outlined in the Project of Partition and the delivery of the respective properties adjudicated to each one in view of said Project of Partition, and to perform such other acts as are legal and necessary to effectuate the said Project of Partition.

SO ORDERED.

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

(SGD) ELIAS B. ASUNCION Judge

EXH. B.

The above Order of October 23, 1963, was amended on November 11, 1963, only for the purpose of giving authority to the Register of Deeds of the Province of Leyte to issue the corresponding transfer certificates of title to the respective adjudicatees in conformity with the project of partition (see Exh. U).

One of the properties mentioned in the project of partition was Lot 1184 or rather one-half thereof with an area of 15,162.5 sq. meters. This lot, which according to the decision was the exclusive property of the deceased Francisco Reyes, was adjudicated in said project of partition to the plaintiffs Luz, Anacorita Ruperto, Adela, and Priscilla all surnamed Reyes in equal shares, and when the project of partition was approved by the trial court the adjudicatees caused Lot 1184 to be subdivided into five lots denominated as Lot 1184-A to 1184-E inclusive (Exh. V).

Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion's court (Exhs. F, F-1 and V-1), while Lot 1184-E which had an area of 2,172.5556 sq. meters was sold on July 31, 1964 to Dr. Arcadio Galapon (Exh. 2) who was issued transfer certificate of title No. 2338 of the Register of Deeds of the city of Tacloban (Exh. 12).

On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E with an area of around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S. Asuncion (Exh. 11), which particular portion was declared by the latter for taxation purposes (Exh. F).


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On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective shares and interest in Lot 1184-E to "The Traders Manufacturing and Fishing Industries Inc." (Exit 15 & 16). At the time of said sale the stockholders of the corporation were Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and the latter's wife, Victoria S. Asuncion, with Judge Asuncion as the President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of Incorporation of "The Traders Manufacturing and Fishing Industries, Inc." which we shall henceforth refer to as "TRADERS" were registered with the Securities and Exchange Commission only on January 9, 1967 (Exh. E) [pp. 378-385, rec.].

Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6, 1968 alleging four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties involved in Civil Case No. 3010 decided by him; [2] that he likewise violated Article 14, paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil Service Rules, and Canon 25 of the Canons of Judicial Ethics, by associating himself with the Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking officer while he was a judge of the Court of First Instance of Leyte; [3] that respondent was guilty of coddling an impostor and acted in disregard of judicial decorum by closely fraternizing with a certain Dominador Arigpa Tan who openly and publicly advertised himself as a practising attorney when in truth and in fact his name does not appear in the Rolls of Attorneys and is not a member of the Philippine Bar; and [4] that there was a culpable defiance of the law and utter disregard for ethics by respondent Judge (pp. 1-7, rec.).

Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on October 16, 1968 by herein complainant. In Our resolution of October 28, 1968, We referred this case to then Justice Cecilia Muñoz Palma of the Court of Appeals, for investigation, report and recommendation. After hearing, the said Investigating Justice submitted her report dated May 27, 1971 recommending that respondent Judge should be reprimanded or warned in connection with the first cause of action alleged in the complaint, and for the second cause of action, respondent should be warned in case of a finding that he is prohibited under the law to engage in business. On the third and fourth causes of action, Justice Palma recommended that respondent Judge be exonerated.

The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant herein instituted an action before the Court of First Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa R. Bales, et al., defendants," which was docketed as Civil Case No. 4235, seeking the annulment of the project of partition made pursuant to the decision in Civil Case No. 3010 and the two

orders issued by respondent Judge approving the same, as well as the partition of the estate and the subsequent conveyances with damages. It appears, however, that some defendants were dropped from the civil case. For one, the case against Dr. Arcadio Galapon was dismissed because he was no longer a real party in interest when Civil Case No. 4234 was filed, having already conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge and on August 31, 1966 the remainder was sold to the Traders Manufacturing and Fishing Industries, Inc. Similarly, the case against defendant Victoria Asuncion was dismissed on the ground that she was no longer a real party in interest at the time the aforesaid Civil Case No. 4234 was filed as the portion of Lot 1184 acquired by her and respondent Judge from Dr. Arcadio Galapon was already sold on August 31, 1966 to the Traders Manufacturing and Fishing industries, Inc. Likewise, the cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez, Traders Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A. Tolete were dismissed with the conformity of complainant herein, plaintiff therein, and her counsel.

On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was directed and authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and now Minister of National Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a decision, the dispositive portion of which reads as follows:

A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

(1) declaring that only Branch IV of the Court of First Instance of Leyte has jurisdiction to take cognizance of the issue of the legality and validity of the Project of Partition [Exhibit "B"] and the two Orders [Exhibits "C" and "C- 3"] approving the partition;

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

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

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

(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001 for exemplary damages;

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

(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorney's Fees.


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

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

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

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

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer, Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.

D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO —

(1) Dismissing the complaint against Bonifacio Ramo;

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

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

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

I

WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her first cause of action, that respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties involved in Civil Case No. 3010. 'That Article provides:

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

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(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of

any litigation in which they may take part by virtue of their profession [emphasis supplied].

The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is the subject of litigation to the persons disqualified therein. WE have already ruled that "... for the prohibition to operate, the sale or assignment of the property must take place during the pendency of the litigation involving the property" (The Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]).

In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E, the decision in Civil Case No. 3010 which he rendered on June 8, 1963 was already final because none of the parties therein filed an appeal within the reglementary period; hence, the lot in question was no longer subject of the litigation. Moreover, at the time of the sale on March 6, 1965, respondent's order dated October 23, 1963 and the amended order dated November 11, 1963 approving the October 16, 1963 project of partition made pursuant to the June 8, 1963 decision, had long become final for there was no appeal from said orders.

Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased on July 31, 1964 Lot 1184-E from three of the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the finality of the decision in Civil Case No. 3010. It may be recalled that Lot 1184 or more specifically one-half thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and Anacorita Reyes in the project of partition, and the same was subdivided into five lots denominated as Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was sold on July 31, 1964 to Dr. Galapon for which he was issued TCT No. 2338 by the Register of Deeds of Tacloban City, and on March 6, 1965 he sold a portion of said lot to respondent Judge and his wife who declared the same for taxation purposes only. The subsequent sale on August 31, 1966 by spouses Asuncion and spouses Galapon of their respective shares and interest in said Lot 1184-E to the Traders Manufacturing and Fishing Industries, Inc., in which respondent was the president and his wife was the secretary, took place long after the finality of the decision in Civil Case No. 3010 and of the subsequent two aforesaid orders therein approving the project of partition.

While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before the Court of First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project of partition and the two orders approving the same, as well as the partition of the estate and the subsequent conveyances, the same, however, is of no moment.


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The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr. Arcadio Galapon; hence, after the finality of the decision which he rendered on June 8, 1963 in Civil Case No. 3010 and his two questioned orders dated October 23, 1963 and November 11, 1963. Therefore, the property was no longer subject of litigation.

The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter, change or affect the aforesaid facts — that the questioned sale to respondent Judge, now Court of Appeals Justice, was effected and consummated long after the finality of the aforesaid decision or orders.

Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one year after the finality of the decision in Civil Case No. 3010 as well as the two orders approving the project of partition, and not during the pendency of the litigation, there was no violation of paragraph 5, Article 1491 of the New Civil Code.

It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio Galapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal the illegal and unethical transfer of said lot to respondent Judge as a consideration for the approval of the project of partition. In this connection, We agree with the findings of the Investigating Justice thus:

And so we are now confronted with this all-important question whether or not the acquisition by respondent of a portion of Lot 1184-E and the subsequent transfer of the whole lot to "TRADERS" of which respondent was the President and his wife the Secretary, was intimately related to the Order of respondent approving the project of partition, Exh. A.

Respondent vehemently denies any interest or participation in the transactions between the Reyeses and the Galapons concerning Lot 1184-E, and he insists that there is no evidence whatsoever to show that Dr. Galapon had acted, in the purchase of Lot 1184-E, in mediation for him and his wife. (See p. 14 of Respondent's Memorandum).

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On this point, I agree with respondent that there is no evidence in the record showing that Dr. Arcadio Galapon acted as a mere "dummy" of respondent in acquiring Lot 1184-E from the Reyeses. Dr. Galapon appeared to this investigator as a respectable citizen, credible and sincere, and I believe him when he testified that he bought Lot 1184-E in good faith and for valuable consideration from the Reyeses without any intervention of, or previous understanding with Judge Asuncion (pp. 391- 394, rec.).

On the contention of complainant herein that respondent Judge acted illegally in approving the project of partition

although it was not signed by the parties, We quote with approval the findings of the Investigating Justice, as follows:

1. I agree with complainant that respondent should have required the signature of the parties more particularly that of Mrs. Macariola on the project of partition submitted to him for approval; however, whatever error was committed by respondent in that respect was done in good faith as according to Judge Asuncion he was assured by Atty. Bonifacio Ramo, the counsel of record of Mrs. Macariola, That he was authorized by his client to submit said project of partition, (See Exh. B and tsn p. 24, January 20, 1969). While it is true that such written authority if there was any, was not presented by respondent in evidence, nor did Atty. Ramo appear to corroborate the statement of respondent, his affidavit being the only one that was presented as respondent's Exh. 10, certain actuations of Mrs. Macariola lead this investigator to believe that she knew the contents of the project of partition, Exh. A, and that she gave her conformity thereto. I refer to the following documents:

1) Exh. 9 — Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban Cadastral Survey in which the deceased Francisco Reyes holds a "1/4 share" (Exh. 9-a). On tills certificate of title the Order dated November 11, 1963, (Exh. U) approving the project of partition was duly entered and registered on November 26, 1963 (Exh. 9-D);

2) Exh. 7 — Certified copy of a deed of absolute sale executed by Bernardita Reyes Macariola onOctober 22, 1963, conveying to Dr. Hector Decena the one-fourth share of the late Francisco Reyes-Diaz in Lot 1154. In this deed of sale the vendee stated that she was the absolute owner of said one-fourth share, the same having been adjudicated to her as her share in the estate of her father Francisco Reyes Diaz as per decision of the Court of First Instance of Leyte under case No. 3010 (Exh. 7-A). The deed of sale was duly registered and annotated at the back of OCT 19520 on December 3, 1963 (see Exh. 9-e).

In connection with the abovementioned documents it is to be noted that in the project of partition dated October 16, 1963, which was approved by respondent on October 23, 1963, followed by an amending Order on November 11, 1963, Lot 1154 or rather 1/4 thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in Lot 1154 which complainant sold to Dr. Decena on October 22, 1963, several days after the preparation of the project of partition.

Counsel for complainant stresses the view, however, that the latter sold her one-fourth share in Lot 1154 by virtue of the decision in Civil Case 3010 and not because of the project of partition, Exh. A. Such contention is absurd because from the decision, Exh. C, it is clear that one-half of one- fourth of Lot 1154 belonged to the estate of Francisco Reyes Diaz while the other half of said one-fourth was the share of complainant's mother, Felisa Espiras; in other words, the decision did not adjudicate the whole of the one-fourth of Lot 1154 to the herein complainant (see Exhs. C-3 & C-4). Complainant became the owner of the entire one-fourth of


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Lot 1154 only by means of the project of partition, Exh. A. Therefore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it was for no other reason than that she was wen aware of the distribution of the properties of her deceased father as per Exhs. A and B. It is also significant at this point to state that Mrs. Macariola admitted during the cross-examination that she went to Tacloban City in connection with the sale of Lot 1154 to Dr. Decena (tsn p. 92, November 28, 1968) from which we can deduce that she could not have been kept ignorant of the proceedings in civil case 3010 relative to the project of partition.

Complainant also assails the project of partition because according to her the properties adjudicated to her were insignificant lots and the least valuable. Complainant, however, did not present any direct and positive evidence to prove the alleged gross inequalities in the choice and distribution of the real properties when she could have easily done so by presenting evidence on the area, location, kind, the assessed and market value of said properties. Without such evidence there is nothing in the record to show that there were inequalities in the distribution of the properties of complainant's father (pp. 386389, rec.).

Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the New Civil Code in acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was, however, improper for him to have acquired the same. He should be reminded of Canon 3 of the Canons of Judicial Ethics which requires that: "A judge's official conduct should be free from the appearance of impropriety, and his personal behavior, not only upon the bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach." And as aptly observed by the Investigating Justice: "... it was unwise and indiscreet on the part of respondent to have purchased or acquired a portion of a piece of property that was or had been in litigation in his court and caused it to be transferred to a corporation of which he and his wife were ranking officers at the time of such transfer. One who occupies an exalted position in the judiciary has the duty and responsibility of maintaining the faith and trust of the citizenry in the courts of justice, so that not only must he be truly honest and just, but his actuations must be such as not give cause for doubt and mistrust in the uprightness of his administration of justice. In this particular case of respondent, he cannot deny that the transactions over Lot 1184-E are damaging and render his actuations open to suspicion and distrust. Even if respondent honestly believed that Lot 1184-E was no longer in litigation in his court and that he was purchasing it from a third person and not from the parties to the litigation, he should nonetheless have refrained from buying it for himself and transferring it to a corporation in which he and his wife were financially involved, to avoid possible suspicion that his acquisition was related in one way or another to his official actuations in civil case 3010. The conduct of respondent gave cause for the litigants in civil case 3010, the lawyers practising in his court, and the public in general to doubt the honesty and fairness of his actuations and the integrity of our courts of justice" (pp. 395396, rec.).

II

With respect to the second cause of action, the complainant alleged that respondent Judge violated paragraphs 1 and 5, Article 14 of the Code of Commerce when he associated himself with the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, said corporation having been organized to engage in business. Said Article provides that:

Article 14 — The following cannot engage in commerce, either in person or by proxy, nor can they hold any office or have any direct, administrative, or financial intervention in commercial or industrial companies within the limits of the districts, provinces, or towns in which they discharge their duties:

1. Justices of the Supreme Court, judges and officials of the department of public prosecution in active service. This provision shall not be applicable to mayors, municipal judges, and municipal prosecuting attorneys nor to those who by chance are temporarily discharging the functions of judge or prosecuting attorney.

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

It is Our considered view that although the aforestated provision is incorporated in the Code of Commerce which is part of the commercial laws of the Philippines, it, however, partakes of the nature of a political law as it regulates the relationship between the government and certain public officers and employees, like justices and judges.

Political Law has been defined as that branch of public law which deals with the organization and operation of the governmental organs of the State and define the relations of the state with the inhabitants of its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that political law embraces constitutional law, law of public corporations, administrative law including the law on public officers and elections. Specifically, Article 14 of the Code of Commerce partakes more of the nature of an administrative law because it regulates the conduct of certain public officers and employees with respect to engaging in business: hence, political in essence.

It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885, with some modifications made by the "Commission de Codificacion de las Provincias de Ultramar," which was extended to the Philippines by the Royal Decree of August 6, 1888, and took effect as law in this jurisdiction on December 1, 1888.

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


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deemed to have been abrogated because where there is change of sovereignty, the political laws of the former sovereign, whether compatible or not with those of the new sovereign, are automatically abrogated, unless they are expressly re-enacted by affirmative act of the new sovereign.

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

By well-settled public law, upon the cession of territory by one nation to another, either following a conquest or otherwise, ... those laws which are political in their nature and pertain to the prerogatives of the former government immediately cease upon the transfer of sovereignty. (Opinion, Atty. Gen., July 10, 1899).

While municipal laws of the newly acquired territory not in conflict with the, laws of the new sovereign continue in force without the express assent or affirmative act of the conqueror, the political laws do not. (Halleck's Int. Law, chap. 34, par. 14). However, such political laws of the prior sovereignty as are not in conflict with the constitution or institutions of the new sovereign, may be continued in force if the conqueror shall so declare by affirmative act of the commander-in-chief during the war, or by Congress in time of peace. (Ely's Administrator vs. United States, 171 U.S. 220, 43 L. Ed. 142). In the case of American and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall said:

On such transfer (by cession) of territory, it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The same act which transfers their country, transfers the allegiance of those who remain in it; and the law which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals, remains in force, until altered by the newly- created power of the State.

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

There appears no enabling or affirmative act that continued the effectivity of the aforestated provision of the Code of Commerce after the change of sovereignty from Spain to the United States and then to the Republic of the Philippines. Consequently, Article 14 of the Code of Commerce has no legal and binding effect and cannot apply to the respondent, then Judge of the Court of First Instance, now Associate Justice of the Court of Appeals.

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

Sec. 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

xxx xxx xxx

(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any Iaw from having any interest.

Respondent Judge cannot be held liable under the aforestated paragraph because there is no showing that respondent participated or intervened in his official capacity in the business or transactions of the Traders Manufacturing and Fishing Industries, Inc. In the case at bar, the business of the corporation in which respondent participated has obviously no relation or connection with his judicial office. The business of said corporation is not that kind where respondent intervenes or takes part in his capacity as Judge of the Court of First Instance. As was held in one case involving the application of Article 216 of the Revised Penal Code which has a similar prohibition on public officers against directly or indirectly becoming interested in any contract or business in which it is his official duty to intervene, "(I)t is not enough to be a public official to be subject to this crime; it is necessary that by reason of his office, he has to intervene in said contracts or transactions; and, hence, the official who intervenes in contracts or transactions which have no relation to his office cannot commit this crime.' (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).

It does not appear also from the records that the aforesaid corporation gained any undue advantage in its business operations by reason of respondent's financial involvement in it, or that the corporation benefited in one way or another in any case filed by or against it in court. It is undisputed that there was no case filed in the different branches of the Court of First Instance of Leyte in which the corporation was either party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa O. Bales, et al.,"wherein the complainant herein sought to recover Lot 1184-E from the aforesaid corporation. It must be noted, however, that Civil Case No. 4234 was filed only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI Judge Jose D. Nepomuceno when respondent Judge was no longer connected with the corporation, having disposed of his interest therein on January 31, 1967.

Furthermore, respondent is not liable under the same paragraph because there is no provision in both the 1935 and 1973 Constitutions of the Philippines, nor is there an existing law expressly prohibiting members of the Judiciary from engaging or having interest in any lawful business.


8

It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of 1948, does not contain any prohibition to that effect. As a matter of fact, under Section 77 of said law, municipal judges may engage in teaching or other vocation not involving the practice of law after office hours but with the permission of the district judge concerned.

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to America, because it is political in nature.

Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by judges of a property in litigation before the court within whose jurisdiction they perform their duties, cannot apply to respondent Judge because the sale of the lot in question to him took place after the finality of his decision in Civil Case No. 3010 as well as his two orders approving the project of partition; hence, the property was no longer subject of litigation.

In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil Service Act of 1959 prohibits an officer or employee in the civil service from engaging in any private business, vocation, or profession or be connected with any commercial, credit, agricultural or industrial undertaking without a written permission from the head of department, the same, however, may not fall within the purview of paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because the last portion of said paragraph speaks of a prohibition by the Constitution or law on any public officer from having any interest in any business and not by a mere administrative rule or regulation. Thus, a violation of the aforesaid rule by any officer or employee in the civil service, that is, engaging in private business without a written permission from the Department Head may not constitute graft and corrupt practice as defined by law.

On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil Service Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules promulgated thereunder, particularly Section 12 of Rule XVIII, do not apply to the members of the Judiciary. Under said Section 12: "No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural or industrial undertaking without a written permission from the Head of Department ..."

It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by Republic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7, Article X, 1973 Constitution.

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

only on two grounds, namely, serious misconduct and inefficiency, and upon the recommendation of the Supreme Court, which alone is authorized, upon its own motion, or upon information of the Secretary (now Minister) of Justice to conduct the corresponding investigation. Clearly, the aforesaid section defines the grounds and prescribes the special procedure for the discipline of judges.

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

It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ... violation of the existing Civil Service Law and rules or of reasonable office regulations, or in the interest of the service, remove any subordinate officer or employee from the service, demote him in rank, suspend him for not more than one year without pay or fine him in an amount not exceeding six months' salary." Thus, a violation of Section 12 of Rule XVIII is a ground for disciplinary action against civil service officers and employees.

However, judges cannot be considered as subordinate civil service officers or employees subject to the disciplinary authority of the Commissioner of Civil Service; for, certainly, the Commissioner is not the head of the Judicial Department to which they belong. The Revised Administrative Code (Section 89) and the Civil Service Law itself state that the Chief Justice is the department head of the Supreme Court (Sec. 20, R.A. No. 2260) [1959]); and under the 1973 Constitution, the Judiciary is the only other or second branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section 12, Rule XVIII cannot be considered as a ground for disciplinary action against judges because to recognize the same as applicable to them, would be adding another ground for the discipline of judges and, as aforestated, Section 67 of the Judiciary Act recognizes only two grounds for their removal, namely, serious misconduct and inefficiency.

Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service who has original and exclusive jurisdiction "(T)o decide, within one hundred twenty days, after submission to it, all administrative cases against permanent officers and employees in the competitive service, and, except as provided by law, to have final authority to pass upon their removal, separation, and suspension and upon all matters relating to the conduct, discipline, and efficiency of such officers and employees; and prescribe standards, guidelines and regulations governing the administration of discipline" (emphasis supplied). There is no question that a judge belong to the non-competitive or unclassified service of the government as a Presidential appointee and is therefore not covered by the aforesaid provision. WE have already ruled that "... in interpreting Section 16(i) of Republic Act No. 2260, we emphasized that only permanent officers and employees who belong to the classified service come under the exclusive jurisdiction of the Commissioner of Civil Service"


9

(Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).

Although the actuation of respondent Judge in engaging in private business by joining the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of the provissions of Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt Practices Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated pursuant to the Civil Service Act of 1959, the impropriety of the same is clearly unquestionable because Canon 25 of the Canons of Judicial Ethics expressly declares that:

A judge should abstain from making personal investments in enterprises which are apt to be involved in litigation in his court; and, after his accession to the bench, he should not retain such investments previously made, longer than a period sufficient to enable him to dispose of them without serious loss. It is desirable that he should, so far as reasonably possible, refrain from all relations which would normally tend to arouse the suspicion that such relations warp or bias his judgment, or prevent his impartial attitude of mind in the administration of his judicial duties. ...

WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on January 31, 1967 from the aforesaid corporation and sold their respective shares to third parties, and it appears also that the aforesaid corporation did not in anyway benefit in any case filed by or against it in court as there was no case filed in the different branches of the Court of First Instance of Leyte from the time of the drafting of the Articles of Incorporation of the corporation on March 12, 1966, up to its incorporation on January 9, 1967, and the eventual withdrawal of respondent on January 31, 1967 from said corporation. Such disposal or sale by respondent and his wife of their shares in the corporation only 22 days after the incorporation of the corporation, indicates that respondent realized that early that their interest in the corporation contravenes the aforesaid Canon 25. Respondent Judge and his wife therefore deserve the commendation for their immediate withdrawal from the firm after its incorporation and before it became involved in any court litigation

III

With respect to the third and fourth causes of action, complainant alleged that respondent was guilty of coddling an impostor and acted in disregard of judicial decorum, and that there was culpable defiance of the law and utter disregard for ethics. WE agree, however, with the recommendation of the Investigating Justice that respondent Judge be exonerated because the aforesaid causes of action are groundless, and WE quote the pertinent portion of her report which reads as follows:

The basis for complainant's third cause of action is the claim that respondent associated and closely fraternized with Dominador Arigpa Tan who openly and publicly advertised

himself as a practising attorney (see Exhs. I, I-1 and J) when in truth and in fact said Dominador Arigpa Tan does not appear in the Roll of Attorneys and is not a member of the Philippine Bar as certified to in Exh. K.

The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and claims that all the time he believed that the latter was a bona fide member of the bar. I see no reason for disbelieving this assertion of respondent. It has been shown by complainant that Dominador Arigpa Tan represented himself publicly as an attorney-at-law to the extent of putting up a signboard with his name and the words "Attorney-at Law" (Exh. I and 1- 1) to indicate his office, and it was but natural for respondent and any person for that matter to have accepted that statement on its face value. "Now with respect to the allegation of complainant that respondent is guilty of fraternizing with Dominador Arigpa Tan to the extent of permitting his wife to be a godmother of Mr. Tan's child at baptism (Exh. M & M-1), that fact even if true did not render respondent guilty of violating any canon of judicial ethics as long as his friendly relations with Dominador A. Tan and family did not influence his official actuations as a judge where said persons were concerned. There is no tangible convincing proof that herein respondent gave any undue privileges in his court to Dominador Arigpa Tan or that the latter benefitted in his practice of law from his personal relations with respondent, or that he used his influence, if he had any, on the Judges of the other branches of the Court to favor said Dominador Tan.

Of course it is highly desirable for a member of the judiciary to refrain as much as possible from maintaining close friendly relations with practising attorneys and litigants in his court so as to avoid suspicion 'that his social or business relations or friendship constitute an element in determining his judicial course" (par. 30, Canons of Judicial Ethics), but if a Judge does have social relations, that in itself would not constitute a ground for disciplinary action unless it be clearly shown that his social relations be clouded his official actuations with bias and partiality in favor of his friends (pp. 403-405, rec.).

In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did not violate any law in acquiring by purchase a parcel of land which was in litigation in his court and in engaging in business by joining a private corporation during his incumbency as judge of the Court of First Instance of Leyte, he should be reminded to be more discreet in his private and business activities, because his conduct as a member of the Judiciary must not only be characterized with propriety but must always be above suspicion.

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

SO ORDERED.


10

II. BACKGROUND OF THE PRESENT CONSTITUTION

A. THE FEBRUARY 1986 REVOLUTION AND THE PROCLAMATION OF THE PROVISIONAL

CONSTITUTION

LAWYER’S LEAGUE v. AQUINO May 22, 1986

IN RE: BERMUDEZ 145 S 160 (1986)


Manila

G.R. No. 76180 October 24, 1986

IN RE: SATURNINO V. BERMUDEZ, petitioner.

R E S O L U T IO N

PER CURIAM:

In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986 Constitution, which provides in full as follows:

Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.

The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May, 1992.

Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare and answer the question of the construction and definiteness as to who, among the present incumbent President Corazon Aquino and Vice-President Salvador Laurel and the elected President Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being referred to under the said Section 7 (sic) of ARTICLE XVIII of the TRANSITORY PROVISIONS of the proposed 1986 Constitution refers to, . ...

The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.

Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43 SCRA 677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory relief. More importantly, the petition amounts in effect to a suit against the incumbent President of the Republic, President Corazon C. Aquino, and it is

equally elementary that incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure.

The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness of the aforequoted provision is manifestly gratuitous, it being a matter of public record and common public knowledge that the Constitutional Commission refers therein to incumbent President Corazon C. Aquino and Vice-President Salvador H. Laurel, and to no other persons, and provides for the extension of their term to noon of June 30, 1992 for purposes of synchronization of elections. Hence, the second paragraph of the cited section provides for the holding on the second Monday of May, 1992 of the first regular elections for the President and Vice-President under said 1986 Constitution. In previous cases, the legitimacy of the government of President Corazon C. Aquino was likewise sought to be questioned with the claim that it was not established pursuant to the 1973 Constitution. The said cases were dismissed outright by this court which held that:

Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the Philippines are the judge. And the people have made the judgment; they have accepted the government of President Corazon C. Aquino which is in effective control of the entire country so that it is not merely a de facto government but in fact and law a de jure government. Moreover, the community of nations has recognized the legitimacy of tlie present government. All the eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the Republic under her government. (Joint Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a Better Philippines, etc. vs. President Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.])

For the above-quoted reason, which are fully applicable to the petition at bar, mutatis mutandis, there can be no question that President Corazon C. Aquino and Vice-President Salvador H. Laurel are the incumbent and legitimate President and Vice-President of the Republic of the Philippines.or the above-quoted reasons, which are fully applicable to the petition at bar,

ACCORDINGLY, the petition is hereby dismissed.

LETTER OF ASSOCIATE JUSTICE PUNO 210 S 589 (1992)

EN BANC

[A.M. No. 90-11-2697-CA. June 29, 1992.]


11

LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO of the Court of Appeals dated 14 November 1990.

R E S O L U T I O N

PADILLA, J.:

Petitioner Associate Justice Reynato S. Puno, a member of the Court of Appeals, wrote a letter dated 14 November 1990 addressed to this Court, seeking the correction of his seniority ranking in the Court of Appeals.

It appears from the records that petitioner was first appointed Associate Justice of the Court of Appeals on 20 June 1980 but took his oath of office for said position only on 29 November 1982, after serving as Assistant Solicitor General in the Office of the Solicitor General since 1974. 1

On 17 January 1983, the Court of Appeals was reorganized and became the Intermediate Appellate Court pursuant to Batas Pambansa Blg. 129 entitled "An Act Reorganizing the Judiciary. Appropriating Funds Therefor and For Other Purposes." 2 Petitioner was appointed Appellate Justice in the First Special Cases Division of the Intermediate Appellate Court. On 7 November 1984, petitioner accepted an appointment to be ceased to be a member of the Judiciary. 3

The aftermath of the EDSA Revolution in February 1986 brought about a reorganization of the entire government, including the Judiciary. To effect the reorganization of the Intermediate Appellate Court and other lower courts, a Screening Committee was created, with the then Minister of Justice, now Senator Neptali Gonzales as Chairman and then Solicitor General, now Philippine Ambassador to the United Nations Sedfrey Ordoñez as Vice Chairman. President Corazon C. Aquino, exercising legislative powers by virtue of the revolution, issued Executive Order No. 33 to govern the aforementioned reorganization of the Judiciary. 4

The Screening Committee recommended the return of petitioner as Associate Justice of the new Court of Appeals and assigned him the rank of number eleven (11) in the roster of appellate court justices. When the appointments were signed by President Aquino on 28 July 1986, petitioner’s seniority ranking changed, however, from number eleven (11) to number twenty six (26). 5

Petitioner now alleges that the change in his seniority ranking could only be attributed to inadvertence for, otherwise, it would run counter to the provisions of Section 2 of Executive Order No. 33, which reads:chanrobles virtual lawlibrary

"SECTION 2. Section 3, Chapter 1 of Batas Pambansa Blg. 129, is hereby amended to read as follows:jgc:chanrobles.com.ph

"SEC. 2. Organization. — There is hereby created a Court of Appeals which shall consist of a Presiding Justice and fifty Associate Justices who shall be appointed by the President of the Philippines. The Presiding Justice shall be so designated in his appointment and the Associate Justice shall have precedence according to the dates of their respective appointments, or when the appointments of two or more shall bear the same date, according to the order in which their appointments were issued by the President. Any Member who is reappointed to the Court after rendering service in any other position in the government shall retain the precedence to which he was entitled under his original appointment, and his service in the Court shall, for all intents and purpose be considered as continuous and uninterrupted." 6

Petitioner elaborates that President Aquino is presumed to have intended to comply with her own Executive Order No. 33 so much so that the correction of the inadvertent error would only implement the intent of the President as well as the spirit of Executive Order No. 33 and will not provoke any kind of constitutional confrontation (between the President and the Supreme Court). 7

Petitioner points to the case of Justice Oscar Victoriano, former Presiding Justice of the Court of Appeals who, according to petitioner, was transferred from his position as Justice of the Court of Appeals to the Ministry of Justice as Commissioner of Land Registration and in 1986 was reappointed to the Court of Appeals. Petitioner states that his (Victoriano’s) stint in the Commission of Land Registration did not adversely affect his seniority ranking in the Court of Appeals, for, in his case, Executive Order No. 33 was correctly applied. 8

In a resolution of the Court en banc dated 29 November 1990, the Court granted Justice Puno’s request. 9 It will be noted that before the issuance of said resolution, there was no written opposition to, or comment on petitioner’s aforesaid request. The dispositive portion of the resolution reads:jgc:chanrobles.com.ph

"IN VIEW WHEREOF, the petition of Associate Justice Reynato S. Puno for correction of his seniority ranking in the Court of Appeals is granted. The presiding Justice of the Court of Appeals, the Honorable Rodolfo A. Nocon, is hereby directed to correct the seniority rank of Justice Puno from number twelve (12) to number five (5). Let copies of this Resolution be furnished the Court Administrator and the Judicial and Bar Council for their guidance and information." 10

A motion for reconsideration of the resolution of the Court en banc dated 29 November 1990 was later filed by Associate Justices Jose C. Campos, Jr. and Luis A. Javellana, two (2) of the Associate Justices affected by the ordered correction. They contend that the present Court of Appeals is a new Court with fifty one (51) members and that petitioner could not claim a reappointment to a prior court; neither can he claim that he was returning to his former court, for the courts


12

where he had previously been appointed ceased to exist at the date of his last appointment. 11

The Court en banc in a resolution dated 17 January 1992 required the petitioner to file his comment on the motion for reconsideration of the resolution dated 29 November 1990.

In his Comment, petitioner argues that, by virtue of Executive Order No. 33 read in relation to B.P. Blg. 129, his seniority ranking in the Court of Appeals is now number five (5) for, though President Aquino rose to power by virtue of a revolution, she had pledged at the issuance of Proclamation No. 3 (otherwise known as the Freedom Constitution) that "no right provided under the unratified 1973 Constitution (shall) be absent in the Freedom Constitution." 12

Moreover, since the last sentence of Section 2 of Executive Order No. 33 virtually re-enacted the last sentence of Sec. 3, Chapter 1 of B.P. Blg. 129, statutory construction rules on simultaneous repeal and re-enactment mandate, according to petitioner, the preservation and enforcement of all rights and liabilities which had accrued under the original statute. 13 Furthermore, petitioner avers that, although the power of appointment is executive in character and cannot be usurped by any other branch of the Government, such power can still be regulated by the Constitution and by the appropriate law, in this case, by the limits set by Executive Order NO. 33 14 for the power of appointment cannot be wielded in violation of law. 15

Justices Javellana and Campos were required by the Court to file their reply to Justice Puno’s comment on their motion for reconsideration of the resolution of the Court en banc dated 24 January 1991.chanrobles.com:cralaw:red

In their Reply and Supplemental Reply, Associate Justices Javellana and Campos submit that the appeal or request for correction filed by the petitioner was addressed to the wrong party. They aver that as petitioner himself had alleged the mistake to be an "inadvertent error" of the Office of the President, ergo, he should have filed his request for correction also with said Office of the President and not directly with the Supreme Court. 16 Furthermore, they point out that petitioner had indeed filed with the Office of the President a request or petition for correction of his ranking, (seniority) but the same was not approved such that his recourse should have been an appropriate action before the proper court and impleading all parties concerned. The aforesaid non-approval by the Office of the President they argue, should be respected by the Supreme Court "not only on the basis of the doctrine of separation of powers but also their presumed knowledge ability and even expertise in the laws they are entrusted to enforce" 17 for it (the non-approval) is a confirmation that petitioner’s seniority ranking at the time of his appointment by President Aquino was, in fact, deliberate and not an "inadvertent error" as petitioner would have the Court believe. 18

The resolution of this controversy is not a pleasant task for the Court since it involves not only members of the next highest court of the land but persons who are close to

members of this Court. But the controversy has to be resolved. The core issue in this case is whether the present Court of Appeals is a new court such that it would negate any claim to precedence or seniority admittedly enjoyed by petitioner in the Court of Appeals and Intermediate Appellate Court existing prior to Executive Order No. 33 or whether the present Court of Appeals is merely a continuation of the Court of Appeals and Intermediate Appellate Court existing prior to said Executive Order No. 33.

It is the holding of the Court that the present Court of Appeals is a new entity, different and distinct from the Court of Appeals or the Intermediate Appellate Court existing prior to Executive Order No. 33, for it was created in the wake of the massive reorganization launched by the revolutionary government of Corazon C. Aquino in the aftermath of the people power (EDSA) revolution in 1986.

A resolution has been defined as "the complete overthrow of the established government in any country or state by those who were previously subject to it" 19 or as "a sudden, radical and fundamental change in the government or political system, usually effected with violence or at least some acts of violence." 20 In Kelsen’s book, General Theory of Law and State, it is defined as that which "occurs whenever the legal order of a community is nullified and replaced by a new order . . . a way not prescribed by the first order itself." 21

It was through the February 1986 revolution, a relatively peaceful one, and more popularly known as the "people power revolution" that the Filipino people tore themselves away from an existing regime. This revolution also saw the unprecedented rise to power of the Aquino government.

From the natural law point of view, the right of revolution has been defined as "an inherent right of a people to cast out their rulers, change their policy or effect radical reforms in their system of government or institutions by force or a general uprising when the legal and constitutional methods of making such change have proved inadequate or are so obstructed as to be unavailable." 22 It has been said that "the locus of positive law-making power lies with the people of the state" and from there is derived "the right of the people to abolish, to reform and to alter any existing form of government without regard to the existing constitution." 23

The three (3) clauses that precede the text of the Provisional (Freedom) Constitution, 24 read:jgc:chanrobles.com.ph

"WHEREAS, the new government under President Corazon C. Aquino was installed through a direct exercise of the power of the Filipino people assisted by units of the New Armed Forces of the Philippines;

"WHEREAS, the heroic action of the people was done in defiance of the provisions of the 1973 Constitution, as amended;

"WHEREFORE, I, Corazon C. Aquino, President of the Philippines, by virtue of the powers vested in me by the sovereign mandate of the people, do hereby promulgate the


13

following Provisional Constitution."25cralaw:red

These summarize the Aquino government’s position that its mandate is taken from "a direct exercise of the power of the Filipino people." 26

Discussions and opinions of legal experts also proclaim that the Aquino government was "revolutionary in the sense that it came into existence in defiance of the existing legal processes" 27 and that it was a revolutionary government "instituted by the direct action of the people and in opposition to the authoritarian values and practices of the overthrown government." 28

A question which naturally comes to mind is whether the then existing legal order was overthrown by the Aquino government. "A legal order is the authoritative code of a polity. Such code consists of all the rules found in the enactments of the organs of the polity. Where the state operates under a written constitution, its organs may be readily determined from a reading of its provisions. Once such organs are ascertained, it becomes an easy matter to locate their enactments. The rules in such enactments, along with those in the constitution, comprise the legal order of that constitutional state." 29 It is assumed that the legal order remains as a "culture system" of the polity as long as the latter endures 30 and that a point may be reached, however, where the legal system ceases to be operative as a whole for it is no longer obeyed by the population nor enforced by the officials. 31

It is widely known that Mrs. Aquino’s rise to the presidency was not due to constitutional processes; in fact, it was achieved in violation of the provisions of the 1973 Constitution as a Batasang Pambansa resolution had earlier declared Mr. Marcos at the winner in the 1986 presidential election. 32 Thus it can be said that the organization of Mrs. Aquino’s Government which was met by little resistance and her control of the state evidenced by the appointment of the Cabinet and other key officers of the administration, the departure of the Marcos Cabinet officials, revampt of the Judiciary and the Military signalled the point where the legal system then in effect, had ceased to be obeyed by the Filipino.

The Court holds that the Court of Appeals and Intermediate Appellate Court existing prior to Executive Order No. 33 phased out as part of the legal system abolished by the revolution and that the Court of Appeals established under Executive Order No. 33 was an entirely new court with appointments thereto having no relation to earlier appointments to the abolished courts, and that the reference to precedence in rank contained in the last sentence of Sec. 2, BP Blg. No. 129 as amended by Executive Order No. 33 refers to prospective situations as distinguished from retroactive ones.

But even assuming, arguendo, that Executive Order No. 33 did not abolish the precedence or seniority ranking resulting from previous appointment to the Court of Appeals or Intermediate Appellate Court existing prior to the 1986

revolution, it is believed that President Aquino as head of then revolutionary government, could disregard or set aside such precedence or seniority in ranking when she made her appointments to the reorganized Court of Appeals in 1986.

It is to be noted that, at the time of the issuance of Executive Order No. 33, President Aquino was still exercising the powers of a revolutionary government, encompassing both executive and legislative powers, such that she could, if she so desired, amend, modify or repeal any part of B.P. Blg. 129 or her own Executive Order No. 33. It should also be remembered that the same situation was still in force when she issued the 1986 appointments to the Court of Appeals. In other words, President Aquino, at the time of the issuance of the 1986 appointments, modified or disregarded the rule embodied in B.P. Blg. 129 as amended by Executive Order No. 33, on precedence or seniority in the case of the petitioner, for reasons known only to her. Since the appointment extended by the President to the petitioner in 1986 for membership in the new Court of Appeals with its implicit ranking in the roster of justices, was a valid appointment anchored on the President’s exercise of her then revolutionary powers, it is not for the Court at this time to question or correct that exercise.

ACCORDINGLY, the Court GRANTS the Motion for Reconsideration and the seniority rankings of members of the Court of Appeals, including that of the petitioner, at the time the appointments were made by the President in 1986, are recognized and upheld.

SO ORDERED.

B. ADOPTION AND EFFECTIVITY OF THE PRESENT CONSTITUTION

DE LEON v. ESGUERRA153 S 602 (1987)


Manila

EN BANC

G.R. No. 78059 August 31, 1987

ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners, vs.HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal, HON. ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.


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MELENCIO-HERRERA, J.:

An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing them from their respective positions as Barangay Captain and Barangay Councilmen of Barangay Dolores, Municipality of Taytay, Province of Rizal.

As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their Reply to respondents' Comment.

In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay Captain and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982.

On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1, 1986 but signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating respondent Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The designation made by the OIC Governor was "by authority of the Minister of Local Government."

Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1, 1986 designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S. Paz and Teresita L. Tolentino as members of the Barangay Council of the same Barangay and Municipality.

That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the pertinent portions of which read:

xxx xxx xxx

That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986;

That as being OIC Governor of the Province of Rizal and in the performance of my duties thereof, I among others, have signed as I did sign the unnumbered memorandum ordering the replacement of all the barangay officials of all the barangay(s) in the Municipality of Taytay, Rizal;

That the above cited memorandum dated December 1, 1986 was signed by me personally on February 8,1987;

That said memorandum was further deciminated (sic) to all concerned the following day, February 9. 1987.

FURTHER AFFIANT SAYETH NONE.

Pasig, Metro Manila, March 23, 1987.

Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and void and that respondents be prohibited from taking over their positions of Barangay Captain and Barangay Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the Barangay Election Act of 1982 (BP Blg. 222), their terms of office "shall be six (6) years which shall commence on June 7, 1982 and shall continue until their successors shall have elected and shall have qualified," or up to June 7, 1988. It is also their position that with the ratification of the 1987 Constitution, respondent OIC Governor no longer has the authority to replace them and to designate their successors.

On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated on March 25, 1986, which provided:

SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within a period of one year from February 25,1986.

By reason of the foregoing provision, respondents contend that the terms of office of elective and appointive officials were abolished and that petitioners continued in office by virtue of the aforequoted provision and not because their term of six years had not yet expired; and that the provision in the Barangay Election Act fixing the term of office of Barangay officials to six (6) years must be deemed to have been repealed for being inconsistent with the aforequoted provision of the Provisional Constitution.

Examining the said provision, there should be no question that petitioners, as elective officials under the 1973 Constitution, may continue in office but should vacate their positions upon the occurrence of any of the events mentioned. 1

Since the promulgation of the Provisional Constitution, there has been no proclamation or executive order terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or not the designation of respondents to replace petitioners was validly made during the one-year period which ended on February 25, 1987.

Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be considered as the effective date of replacement and not December 1,1986 to which it was ante dated, in keeping with the dictates of justice.

But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in the Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the 1987 Constitution reading.


15

SECTION 27. This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.

The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the Provisional Constitution must be deemed to have been superseded. Having become inoperative, respondent OIC Governor could no longer rely on Section 2, Article III, thereof to designate respondents to the elective positions occupied by petitioners.

Petitioners must now be held to have acquired security of tenure specially considering that the Barangay Election Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the barangays to ensure their fullest development as self-reliant communities. 2 Similarly, the 1987 Constitution ensures the autonomy of local governments and of political subdivisions of which the barangays form a part, 3 and limits the President's power to "general supervision" over local governments. 4 Relevantly, Section 8, Article X of the same 1987 Constitution further provides in part:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years ...

Until the term of office of barangay officials has been determined by law, therefore, the term of office of six (6) years provided for in the Barangay Election Act of 1982 5 should still govern.

Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for elective Barangay officials and the 1987 Constitution, and the same should, therefore, be considered as still operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:

Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions, and other executive issuances not inconsistent, with this Constitution shall remain operative until amended, repealed or revoked.

WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987 designating respondents as the Barangay Captain and Barangay Councilmen, respectively, of Barangay Dolores, Taytay, Rizal, are both declared to be of no legal force and effect; and (2) the Writ of Prohibition is granted enjoining respondents perpetually from proceeding with the ouster/take-over of petitioners' positions subject of this Petition. Without costs.

SO ORDERED.

TANADA v TUVERA G.R. No. L-63915, April 24, 1985


Manila

EN BANC

G.R. No. L-63915 April 24, 1985

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners, vs.HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:

Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of implementation and administrative orders.

The respondents, through the Solicitor General, would have this case dismissed outright on the ground that petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-publication of the presidential issuances in question 2 said petitioners are without the requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:

SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to Protect the rights of the


16

petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant.

Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its object is to compel the performance of a public duty, they need not show any specific interest for their petition to be given due course.

The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a private individual only in those cases where he has some private or particular interest to be subserved, or some particular right to be protected, independent of that which he holds with the public at large," and "it is for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].

Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to the mandamus proceedings brought to compel the Governor General to call a special election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:

We are therefore of the opinion that the weight of authority supports the proposition that the relator is a proper party to proceedings of this character when a public right is sought to be enforced. If the general rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason 'that it is always dangerous to apply a general rule to a particular case without keeping in mind the reason for the rule, because, if under the particular circumstances the reason for the rule does not exist, the rule itself is not applicable and reliance upon the rule may well lead to error'

No reason exists in the case at bar for applying the general rule insisted upon by counsel for the respondent. The circumstances which surround this case are different from those in the United States, inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we have seen that it is not the duty of the law officer of the Government to appear and represent the people in cases of this character.

The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land. If petitioners

were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case.

Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that since the presidential issuances in question contain special provisions as to the date they are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on Article 2 of the Civil Code:

Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided, ...

The interpretation given by respondent is in accord with this Court's construction of said article. In a long line of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the legislation itself does not provide for its effectivity date-for then the date of publication is material for determining its date of effectivity, which is the fifteenth day following its publication-but not when the law itself provides for the date when it goes into effect.

Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be so published; [4] such documents or classes of documents as may be required so to be published by law; and [5] such documents or classes of documents as the President of the Philippines shall determine from time to time to have general applicability and legal effect, or which he may authorize so to be published. ...

The clear object of the above-quoted provision is to give the general public adequate notice of the various laws which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not even a constructive one.


17

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital significance that at this time when the people have bestowed upon the President a power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready access to the legislative records—no such publicity accompanies the law-making process of the President. Thus, without publication, the people have no means of knowing what presidential decrees have actually been promulgated, much less a definite way of informing themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad. 5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or excluded from such publication.

The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category. Other presidential issuances which apply only to particular persons or class of persons such as administrative and executive orders need not be published on the assumption that they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC 7:

In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official government repository promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents.

The Court therefore declares that presidential issuances of general application, which have not been published, shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling effect this

decision might have on acts done in reliance of the validity of those presidential decrees which were published only during the pendency of this petition, have put the question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit:

The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects-with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.

Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by this Court.

Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified."

From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make the


18

said penalties binding on the persons affected thereby. " The cogency of this holding is apparently recognized by respondent officials considering the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been published in the Official Gazette or in some other publication, even though some criminal laws provide that they shall take effect immediately.

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect.

SO ORDERED.

TANADA v TUVERA G.R. No. L-63915, December 29, 1986


Manila

G.R. No. L-63915 December 29, 1986

LORENZO M. TAÑ;ADA, 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, ETC., ET AL., respondents.

R E S O L U T I O N

CRUZ, J.:

Due process was invoked by the petitioners in demanding the disclosure of a number of presidential decrees which they claimed had not been published as required by law. The government argued that while publication was necessary as a rule, it was not so when it was "otherwise provided," as when the decrees themselves declared that they were to become effective immediately upon their approval. In the decision of this case on April 24, 1985, the Court affirmed the necessity for the publication of some of these decrees, declaring in the dispositive portion as follows:

WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which are of general application, and unless so published, they shall have no binding force and effect.

The petitioners are now before us again, this time to move for reconsideration/clarification of that decision. 1Specifically, they ask the following questions:

1. What is meant by "law of public nature" or "general applicability"?

2. Must a distinction be made between laws of general applicability and laws which are not?

3. What is meant by "publication"?

4. Where is the publication to be made?

5. When is the publication to be made?

Resolving their own doubts, the petitioners suggest that there should be no distinction between laws of general applicability and those which are not; that publication means complete publication; and that the publication must be made forthwith in the Official Gazette. 2

In the Comment 3 required of the then Solicitor General, he claimed first that the motion was a request for an advisory opinion and should therefore be dismissed, and, on the merits, that the clause "unless it is otherwise provided" in Article 2 of the Civil Code meant that the publication required therein was not always imperative; that publication, when necessary, did not have to be made in the Official Gazette; and that in any case the subject decision was concurred in only by three justices and consequently not binding. This elicited a Reply 4 refuting these arguments. Came next the February Revolution and the Court required the new Solicitor General to file a Rejoinder in view of the supervening events, under Rule 3, Section 18, of the Rules of Court. Responding, he submitted that issuances intended only for the internal administration of a government agency or for particular persons did not have to be 'Published; that publication when necessary must be in full and in the Official Gazette; and that, however, the decision under reconsideration was not binding because it was not supported by eight members of this Court. 5

The subject of contention is Article 2 of the Civil Code providing as follows:

ART. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication.

After a careful study of this provision and of the arguments of the parties, both on the original petition and on the instant motion, we have come to the conclusion and so hold, that the clause "unless it is otherwise provided" refers to the date of effectivity and not to the requirement of publication itself, which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective


19

immediately upon approval, or on any other date, without its previous publication.

Publication is indispensable in every case, but the legislature may in its discretion provide that the usual fifteen-day period shall be shortened or extended. An example, as pointed out by the present Chief Justice in his separate concurrence in the original decision, 6 is the Civil Code which did not become effective after fifteen days from its publication in the Official Gazette but "one year after such publication." The general rule did not apply because it was "otherwise provided. "

It is not correct to say that under the disputed clause publication may be dispensed with altogether. The reason. is that such omission would offend due process insofar as it would deny the public knowledge of the laws that are supposed to govern the legislature could validly provide that a law e effective immediately upon its approval notwithstanding the lack of publication (or after an unreasonably short period after publication), it is not unlikely that persons not aware of it would be prejudiced as a result and they would be so not because of a failure to comply with but simply because they did not know of its existence, Significantly, this is not true only of penal laws as is commonly supposed. One can think of many non-penal measures, like a law on prescription, which must also be communicated to the persons they may affect before they can begin to operate.

We note at this point the conclusive presumption that every person knows the law, which of course presupposes that the law has been published if the presumption is to have any legal justification at all. It is no less important to remember that Section 6 of the Bill of Rights recognizes "the right of the people to information on matters of public concern," and this certainly applies to, among others, and indeed especially, the legislative enactments of the government.

The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. An example is a law granting citizenship to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not affect the public although it unquestionably does not apply directly to all the people. The subject of such law is a matter of public interest which any member of the body politic may question in the political forums or, if he is a proper party, even in the courts of justice. In fact, a law without any bearing on the public would be invalid as an intrusion of privacy or as class legislation or as anultra vires act of the legislature. To be valid, the law must invariably affect the public interest even if it might be directly applicable only to one individual, or some of the people only, and t to the public as a whole.

We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days

after publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. administrative rules and regulations must a also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.

Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion of the national territory and directly affects only the inhabitants of that place. All presidential decrees must be published, including even, say, those naming a public place after a favored individual or exempting him from certain prohibitions or requirements. The circulars issued by the Monetary Board must be published if they are meant not merely to interpret but to "fill in the details" of the Central Bank Act which that body is supposed to enforce.

However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on the case studies to be made in petitions for adoption or the rules laid down by the head of a government agency on the assignments or workload of his personnel or the wearing of office uniforms. Parenthetically, municipal ordinances are not covered by this rule but by the Local Government Code.

We agree that publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. As correctly pointed out by the petitioners, the mere mention of the number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy the publication requirement. This is not even substantial compliance. This was the manner, incidentally, in which the General Appropriations Act for FY 1975, a presidential decree undeniably of general applicability and interest, was "published" by the Marcos administration. 7 The evident purpose was to withhold rather than disclose information on this vital law.

Coming now to the original decision, it is true that only four justices were categorically for publication in the Official Gazette 8 and that six others felt that publication could be made elsewhere as long as the people were sufficiently informed.9 One reserved his vote 10 and another merely acknowledged the need for due publication without indicating where it should be made. 11 It is therefore necessary for the


20

present membership of this Court to arrive at a clear consensus on this matter and to lay down a binding decision supported by the necessary vote.

There is much to be said of the view that the publication need not be made in the Official Gazette, considering its erratic releases and limited readership. Undoubtedly, newspapers of general circulation could better perform the function of communicating, the laws to the people as such periodicals are more easily available, have a wider readership, and come out regularly. The trouble, though, is that this kind of publication is not the one required or authorized by existing law. As far as we know, no amendment has been made of Article 2 of the Civil Code. The Solicitor General has not pointed to such a law, and we have no information that it exists. If it does, it obviously has not yet been published.

At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if we find it impractical. That is not our function. That function belongs to the legislature. Our task is merely to interpret and apply the law as conceived and approved by the political departments of the government in accordance with the prescribed procedure. Consequently, we have no choice but to pronounce that under Article 2 of the Civil Code, the publication of laws must be made in the Official Gazett and not elsewhere, as a requirement for their effectivity after fifteen days from such publication or after a different period provided by the legislature.

We also hold that the publication must be made forthwith or at least as soon as possible, to give effect to the law pursuant to the said Article 2. There is that possibility, of course, although not suggested by the parties that a law could be rendered unenforceable by a mere refusal of the executive, for whatever reason, to cause its publication as required. This is a matter, however, that we do not need to examine at this time.

Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory opinion is untenable, to say the least, and deserves no further comment.

The days of the secret laws and the unpublished decrees are over. This is once again an open society, with all the acts of the government subject to public scrutiny and available always to public cognizance. This has to be so if our country is to remain democratic, with sovereignty residing in the people and all government authority emanating from them.

Although they have delegated the power of legislation, they retain the authority to review the work of their delegates and to ratify or reject it according to their lights, through their freedom of expression and their right of suffrage. This they cannot do if the acts of the legislature are concealed.

Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep

secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people. The furtive law is like a scabbarded saber that cannot feint parry or cut unless the naked blade is drawn.

WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their approval, or as soon thereafter as possible, be published in full in the Official Gazette, to become effective only after fifteen days from their publication, or on another date specified by the legislature, in accordance with Article 2 of the Civil Code.

SO ORDERED.

III. JUDICIAL ELABORATION OF THE CONSTITUTION

A. CONSTRUCTION

MANILA PRINCE HOTEL v. GSIS267 S 408 (1997)


Manila

EN BANC

G.R. No. 122156 February 3, 1997

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

BELLOSILLO, J.:

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

The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the privatization program of the Philippine Government under Proclamation No. 50 dated 8 December 1986, decided to sell


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through public bidding 30% to 51% of the issued and outstanding shares of respondent MHC. The winning bidder, or the eventual "strategic partner," is to provide management expertise and/or an international marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila Hotel. 2 In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number of shares at P44.00 per share, or P2.42 more than the bid of petitioner.

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

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

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

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

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

K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER —

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

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

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

Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution of the necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per share tendered by Renong Berhad. 4 In a subsequent letter dated 10 October 1995 petitioner sent a manager's check issued by Philtrust Bank for Thirty-three Million Pesos (P33.000.000.00) as Bid Security to match the bid of the

Malaysian Group, Messrs. Renong Berhad . . . 5 which respondent GSIS refused to accept.

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

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

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

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

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

Second, granting that this provision is self-executing, Manila Hotel does not fall under the term national patrimony which only refers to lands of the public domain, waters, minerals,


22

coal, petroleum and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to respondents, while petitioner speaks of the guests who have slept in the hotel and the events that have transpired therein which make the hotel historic, these alone do not make the hotel fall under the patrimonyof the nation. What is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS which possesses a personality of its own separate and distinct from the Philippines as a State.

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

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

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

We now resolve. A constitution is a system of fundamental laws for the governance and administration of a nation. It is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined as the fundamental and paramount law of the nation. 10 It prescribes the permanent framework of a system of government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles on which government is founded. The fundamental conception in other words is that it is a supreme law to which

all other laws must conform and in accordance with which all private rights must be determined and all public authority administered.11 Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statute and contract.

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

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

. . . in case of doubt, the Constitution should be considered self-executing rather than non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute. 15

Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-executing, as they quote


23

from discussions on the floor of the 1986 Constitutional Commission —

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

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

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

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

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

MR. NOLLEDO Yes, 16

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

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

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

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

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


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As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains —

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

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

Manila Hotel has become a landmark — a living testimonial of Philippine heritage. While it was restrictively an American hotel when it first opened in 1912, it immediately evolved to be truly Filipino, Formerly a concourse for the elite, it has since then become the venue of various significant events which have shaped Philippine history. It was called the Cultural Center of the 1930's. It was the site of the festivities during the inauguration of the Philippine Commonwealth. Dubbed as the Official Guest House of the Philippine Government. it plays host to dignitaries and official visitors who are accorded the traditional Philippine hospitality. 36

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

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves and frustrations of the Filipinos; its existence is impressed with public interest; its own historicity associated with our struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has become part of our national economy and patrimony. For sure, 51% of the equity of the MHC comes within the purview of the constitutional shelter for it comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will have actual control and management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the hotel and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim that theFilipino First

Policy provision is not applicable since what is being sold is only 51% of the outstanding shares of the corporation, not the Hotel building nor the land upon which the building stands. 38

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

THE PRESIDENT. Commissioner Davide is recognized.

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

xxx xxx xxx

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

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

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

MR. DAVIDE. Is that the intention?

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

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

MR. MONSOD. We agree, Madam President. 39

xxx xxx xxx

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

MR. NOLLEDO. The amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word "Filipinos" here, as intended by the proponents, will include not only individual


25

Filipinos but also Filipino-controlled entities or entities fully-controlled by Filipinos. 40

The phrase preference to qualified Filipinos was explained thus —

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

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

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

MR. NOLLEDO. Obviously.

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

MR. NOLLEDO. The answer is "yes."

MR. FOZ. Thank you, 41

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

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

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

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

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

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

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

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

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

Respondents further argue that the constitutional provision is addressed to the State, not to respondent GSIS which by itself possesses a separate and distinct personality. This argument again is at best specious. It is undisputed that the sale of 51% of the MHC could only be carried out with the prior approval of the State acting through respondent Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons distinct from the government are considered "state action" covered by the Constitution (1) when the activity it engages in is a "public function;" (2) when the government is so significantly involved with the private actor as to make the government responsible for his action; and, (3) when the government has approved or authorized the action. It is evident that the act of


26

respondent GSIS in selling 51% of its share in respondent MHC comes under the second and third categories of "state action." Without doubt therefore the transaction. although entered into by respondent GSIS, is in fact a transaction of the State and therefore subject to the constitutional command. 46

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

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

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

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

In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of rights, privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino, there is no question that the Filipino will have to be allowed to

match the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning to the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly stated nor contemplated in the bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore it would be to sanction a perilous skirting of the basic law.

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

The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad since petitioner was well aware from the beginning that a foreigner could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But foreigners may be awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign entity. In the case before us, while petitioner was already preferred at the inception of the bidding because of the constitutional mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or personality then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the latter have a cause of action.

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

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


27

bid of the Malaysian firm clearly constitutes grave abuse of discretion.

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

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

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

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

Nationalism is inherent, in the very concept of the Philippines being a democratic and republican state, with sovereignty residing in the Filipino people and from whom all government authority emanates. In nationalism, the happiness and welfare of the people must be the goal. The nation-state can have no higher purpose. Any interpretation of any

constitutional provision must adhere to such basic concept. Protection of foreign investments, while laudible, is merely a policy. It cannot override the demands of nationalism. 50

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

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

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

SO ORDERED.

DOMINO v. COMELEC310 S 546 (1999)


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Manila

EN BANC

G.R. No. 134015 July 19, 1999

JUAN DOMINO, petitioner, vs.COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR., EDDY B. JAVA, JUAN P. BAYONITO, JR., ROSARIO SAMSON and DIONISIO P. LIM, SR., respondent, LUCILLE CHIONGBIAN-SOLON, intervenor.

DAVIDE, JR., CJ.:

Challenged in this case for certiorari with a prayer for preliminary injunction are the Resolution of 6 May 1998 1 of the Second Division of the Commission on Elections (hereafter COMELEC), declaring petitioner Juan Domino (hereafter DOMINO) disqualified as candidate for representative of the Lone Legislative District of the Province of Sarangani in the 11 May 1998 elections, and the Decision of 29 May 1998 2 of the COMELEC en banc denying DOMINO's motion for reconsideration.

The antecedents are not disputed.1âwphi1.nêt

On 25 March 1998, DOMINO filed his certificate of candidacy for the position of Representative of the Lone Legislative District of the Province of Sarangani indicating in item nine (9) of his certificate that he had resided in the constituency where he seeks to be elected for one (1) year and two (2) months immediately preceding the election. 3

On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P. Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr., fied with the COMELEC a Petition to Deny Due Course to or Cancel Certificate of Candidacy, which was docketed as SPA No. 98-022 and assigned to the Second Division of the COMELEC. Private respondents alleged that DOMINO, contrary to his declaration in the certificate of candidacy, is not a resident, much less a registered voter, of the province of Sarangani where he seeks election. To substantiate their allegations, private respondents presented the following evidence:

1. Annex "A" — the Certificate of Candidacy of respondent for the position of Congressman of the Lone District of the Province of Sarangani filed with the Office of the Provincial Election Supervisor of Sarangani on March 25, 1998, where in item 4 thereof he wrote his date of birth as December 5, 1953; in item 9, he claims he have resided in the constituency where he seeks election for one (1) year and

two (2) months; and, in item 10, that he is registered voter of Precinct No. 14A-1, Barangay Poblacion, Alabel, Sarangani;

2. Annex "B" — Voter's Registration Record with SN 31326504 dated June 22, 1997 indicating respondent's registration at Precinct No. 4400-A, Old Balara, Quezon City;

3. Annex "C" — Respondent's Community Tax Certificate No. 11132214C dated January 15, 1997;

4. Annex "D" — Certified true copy of the letter of Herson D. Dema-ala, Deputy Provincial & Municipal Treasurer of Alabel, Sarangani, dated February 26, 1998, addressed to Mr. Conrado G. Butil, which reads:

In connection with your letter of even date, we are furnishing you herewith certified xerox copy of the triplicate copy of COMMUNITY TAX CERTIFICATE NO. 11132214C in the name of Juan Domino.

Furthermore, Community Tax Certificate No. 11132212C of the same stub was issued to Carlito Engcong on September 5, 1997, while Certificate No. 11132213C was also issued to Mr. Juan Domino but was cancelled and serial no. 11132215C was issued in the name of Marianita Letigio on September 8, 1997.

5. Annex "E" — The triplicate copy of the Community Tax Certificate No. 11132214C in the name of Juan Domino dated September 5, 1997;

6. Annex "F" — Copy of the letter of Provincial Treasurer Lourdes P. Riego dated March 2, 1998 addressed to Mr. Herson D. Dema-ala, Deputy Provincial Treasurer and Municipal Treasurer of Alabel, Sarangani, which states:

For easy reference, kindly turn-over to the undersigned for safekeeping, the stub of Community Tax Certificate containing Nos. 11132201C-11132250C issued to you on June 13, 1997 and paid under Official Receipt No. 7854744.

Upon request of Congressman James L. Chiongbian.

7. Annex "G" — Certificate of Candidacy of respondent for the position of Congressman in the 3rd District of Quezon City for the 1995 elections filed with the Office of the Regional Election Director, National Capital Region, on March 17, 1995, where, in item 4 thereof, he wrote his birth date as December 22, 1953; in item 8 thereof his "residence in the constituency where I seek to be elected immediately preceding the election" as 3 years and 5 months; and, in item 9, that he is a registered voter of Precinct No. 182, Barangay Balara, Quezon City;

8. Annex "H" — a copy of the APPLICATION FOR TRANSFER OF REGISTRATION RECORDS DUE TO CHANGE OF RESIDENCE of respondent dated August 30, 1997 addressed to and received by Election Officer Mantil Alim, Alabel, Sarangani, on September 22, 1997, stating


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among others, that "[T]he undersigned's previous residence is at 24 Bonifacio Street, Ayala Heights, Quezon City, III District, Quezon City; wherein he is a registered voter" and "that for business and residence purposes, the undersigned has transferred and conducts his business and reside at Barangay Poblacion, Alabel, Province of Sarangani prior to this application;"

9. Annex "I" — Copy of the SWORN APPLICATION FOR OF CANCELLATION OF THE VOTER'S [TRANSFER OF] PREVIOUS REGISTRATION of respondent subscribed and sworn to on 22 October 1997 before Election Officer Mantil Allim at Alabel, Sarangani. 4

For his defense, DOMINO maintains that he had complied with the one-year residence requirement and that he has been residing in Sarangani since January 1997. In support of the said contention, DOMINO presented before the COMELEC the following exhibits, to wit:

1. Annex "1" — Copy of the Contract of Lease between Nora Dacaldacal as Lessor and Administrator of the properties of deceased spouses Maximo and Remedios Dacaldacal and respondent as Lessee executed on January 15, 1997, subscribed and sworn to before Notary Public Johnny P. Landero;

2. Annex "2" — Copy of the Extra-Judicial Settlement of Estate with Absolute Deed of sale executed by and between the heirs of deceased spouses Maximo and Remedios Dacaldacal, namely: Maria Lourdes, Jupiter and Beberlie and the respondent on November 4, 1997, subscribed and sworn to before Notary Public Jose A. Alegario;

3. Annex "3" — True Carbon Xerox copy of the Decision dated January 19, 1998, of the Metropolitan Trial Court of Metro Manila, Branch 35, Quezon City, in Election Case NO. 725 captioned as "In the Matter of the Petition for the Exclusion from the List of voters of Precinct No. 4400-A Brgy. Old Balara, Quezon City, Spouses Juan and Zorayda Domino, Petitioners, -versus- Elmer M. Kayanan, Election Officer, Quezon City, District III, and the Board of Election Inspectors of Precinct No. 4400-A, Old Balara, Quezon City, Respondents." The dispositive portion of which reads:

1. Declaring the registration of petitioners as voters of Precinct No. 4400-A, Barangay Old Balara, in District III Quezon City as completely erroneous as petitioners were no longer residents of Quezon City but of Alabel, Sarangani where they have been residing since December 1996;

2. Declaring this erroneous registration of petitioners in Quezon City as done in good faith due to an honest mistake caused by circumstances beyond their control and without any fault of petitioners;

3. Approving the transfer of registration of voters of petitioners from Precint No. 4400-A of Barangay Old Balara, Quezon City to Precinct No. 14A1 of Barangay Poblacion of Alabel, Sarangani; and

4. Ordering the respondents to immediately transfer and forward all the election/voter's registration records of the petitioners in Quezon City to the Election Officer, the Election Registration Board and other Comelec Offices of Alabel, Sarangani where the petitioners are obviously qualified to excercise their respective rights of suffrage.

4. Annex "4" — Copy of the Application for Transfer of Registration Records due to Change of Residence addressed to Mantil Alim, COMELEC Registrar, Alabel, Sarangani, dated August 30, 1997.

5. Annex "5" — Certified True Copy of the Notice of Approval of Application, the roster of applications for registration approved by the Election Registration Board on October 20, 1997, showing the spouses Juan and Zorayda Bailon Domino listed as numbers 111 and 112 both under Precinct No. 14A1, the last two names in the slate indicated as transferees without VRR numbers and their application dated August 30, 1997 and September 30, 1997, respectively.

6. Annex "6" — same as Annex "5"

7. Annex "6-a" — Copy of the Sworn Application for Cancellation of Voter's Previous Registration (Annex "I", Petition);

8. Annex "7" — Copy of claim card in the name of respondent showing his VRR No. 31326504 dated October 20, 1997 as a registered voter of Precinct No. 14A1, Barangay Poblacion, Alabel, Sarangani;

9. Annex "7-a" — Certification dated April 16, 1998, issued by Atty. Elmer M. Kayanan, Election Officer IV, District III, Quezon City, which reads:

This is to certify that the spouses JUAN and ZORAYDA DOMINO are no longer registered voters of District III, Quezon City. Their registration records (VRR) were transferred and are now in the possession of the Election Officer of Alabel, Sarangani.

This certification is being issued upon the request of Mr. JUAN DOMINO.

10. Annex "8" — Affidavit of Nora Dacaldacal and Maria Lourdes Dacaldacal stating the circumstances and incidents detailing their alleged acquaintance with respondent.

11. Annexes "8-a", "8-b", "8-c" and "8-d" — Copies of the uniform affidavits of witness Myrna Dalaguit, Hilario Fuentes, Coraminda Lomibao and Elena V. Piodos subscribed and sworn to before Notary Public Bonifacio F. Doria, Jr., on April 18, 1998, embodying their alleged personal knowledge of respondent's residency in Alabel, Sarangani;

12. Annex "8-e" — A certification dated April 20, 1998, subscribed and sworn to before Notary Public Bonifacio, containing a listing of the names of fifty-five (55) residents of


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Alabel, Sarangani, declaring and certifying under oath that they personally know the respondent as a permanent resident of Alabel, Sarangani since January 1997 up to present;

13. Annexes "9", "9-a" and "9-b" — Copies of Individual Income Tax Return for the year 1997, BIR form 2316 and W-2, respectively, of respondent; and,

14. Annex "10" — The affidavit of respondent reciting the chronology of events and circumstances leading to his relocation to the Municipality of Alabel, Sarangani, appending Annexes "A", "B", "C", "D", "D-1", "E", "F", "G" with sub-markings "G-1" and "G-2" and "H" his CTC No. 111`32214C dated September 5, 1997, which are the same as Annexes "1", "2", "4", "5", "6-a", "3", "7", "9" with sub-markings "9-a" and "9-b" except Annex "H". 5

On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring DOMINO disqualified as candidate for the position of representative of the lone district of Sarangani for lack of the one-year residence requirement and likewise ordered the cancellation of his certificate of candidacy, on the basis of the following findings:

What militates against respondent's claim that he has met the residency requirement for the position sought is his own Voter's Registration Record No. 31326504 dated June 22, 1997 [Annex "B", Petition] and his address indicated as 24 Bonifacio St., Ayala Heights, Old Balara, Quezon City. This evidence, standing alone, negates all his protestations that he established residence at Barangay Poblacion, Alabel, Sarangani, as early as January 1997. It is highly improbable, nay incredible, for respondent who previously ran for the same position in the 3rd Legislative District of Quezon City during the elections of 1995 to unwittingly forget the residency requirement for the office sought.

Counting, therefore, from the day after June 22, 1997 when respondent registered at Precinct No. 4400-A, up to and until the day of the elections on May 11, 1998, respondent clearly lacks the one (1) year residency requirement provided for candidates for Member of the House of Representatives under Section 6, Article VI of the Constitution.

All told, petitioner's evidence conspire to attest to respondent's lack of residence in the constituency where he seeks election and while it may be conceded that he is a registered voter as contemplated under Section 12 of R.A. 8189, he lacks the qualification to run for the position of Congressman for the Lone District of the Province of Sarangani. 6

On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus Resolution No. 3046, ordering that the votes cast for DOMINO be counted but to suspend the proclamation if winning, considering that the Resolution disqualifying him as candidate had not yet become final and executory. 7

The result of the election, per Statement of Votes certified by the Chairman of the Provincial Board of Canvassers,8 shows that DOMINO garnered the highest number of votes over his opponents for the position of Congressman of the Province of Sarangani.

On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6 May 1998, which was denied by the COMELEC en banc in its decision dated 29 May 1998. Hence, the present Petition for Certiorari with prayer for Preliminary Mandatory Injunction alleging, in the main, that the COMELEC committed grave abuse of discretion amounting to excess or lack of jurisdiction when it ruled that he did not meet the one-year residence requirement.

On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary Restraining Order, the Court directed the parties to maintain the status quo prevailing at the time of the filing of the instant petition. 9

On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the candidate receiving the second highest number of votes, was allowed by the Court to Intervene. 10 INTERVENOR in her Motion for Leave to Intervene and in her Comment in Intervention 11 is asking the Court to uphold the disqualification of petitioner Juan Domino and to proclaim her as the duly elected representative of Sarangani in the 11 May 1998 elections.

Before us DOMINO raised the following issues for resolution, to wit:

a. Whether or not the judgment of the Metropolitan Trial Court of Quezon City declaring petitioner as resident of Sarangani and not of Quezon City is final, conclusive and binding upon the whole world, including the Commission on Elections.

b. Whether or not petitioner herein has resided in the subject congressional district for at least one (1) year immediately preceding the May 11, 1998 elections; and

c. Whether or not respondent COMELEC has jurisdiction over the petition a quo for the disqualification of petitioner. 12

The first issue.

The contention of DOMINO that the decision of the Metropolitan Trial Court of Quezon City in the exclusion proceedings declaring him a resident of the Province of Sarangani and not of Quezon City is final and conclusive upon the COMELEC cannot be sustained.

The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election Code, over a petition to deny due course to or cancel certificate of candidacy. In the exercise of the said jurisdiction, it is within the competence of the COMELEC to determine whether false representation as to


31

material facts was made in the certificate of candidacy, that will include, among others, the residence of the candidate.

The determination of the Metropolitan Trial Court of Quezon City in the exclusion proceedings as to the right of DOMINO to be included or excluded from the list of voters in the precinct within its territorial jurisdicton, does not preclude the COMELEC, in the determination of DOMINO's qualification as a candidate, to pass upon the issue of compliance with the residency requirement.

The proceedings for the exclusion or inclusion of voters in the list of voters are summary in character. Thus, the factual findings of the trial court and its resultant conclusions in the exclusion proceedings on matters other than the right to vote in the precinct within its territorial jurisdiction are not conclusive upon the COMELEC. Although the court in inclusion or exclusion proceedings may pass upon any question necessary to decide the issue raised including the questions of citizenship and residence of the challenged voter, the authority to order the inclusion in or exclusion from the list of voters necessarily caries with it the power to inquire into and settle all matters essential to the exercise of said authority. However, except for the right to remain in the list of voters or for being excluded therefrom for the particular election in relation to which the proceedings had been held, a decision in an exclusion or inclusion proceeding, even if final and unappealable, does not acquire the nature of res judicata. 13 In this sense, it does not operate as a bar to any future action that a party may take concerning the subject passed upon in the proceeding. 14 Thus, a decision in an exclusion proceeding would neither be conclusive on the voter's political status, nor bar subsequent proceedings on his right to be registered as a voter in any other election. 15

Thus, in Tan Cohon v. Election Registrar 16 we ruled that:

. . . It is made clear that even as it is here held that the order of the City Court in question has become final, the same does not constitute res adjudicata as to any of the matters therein contained. It is ridiculous to suppose that such an important and intricate matter of citizenship may be passed upon and determined with finality in such a summary and peremptory proceeding as that of inclusion and exclusion of persons in the registry list of voters. Even if the City Court had granted appellant's petition for inclusion in the permanent list of voters on the allegation that she is a Filipino citizen qualified to vote, her alleged Filipino citizenship would still have been left open to question.

Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision exceeded its jurisdiction when it declared DOMINO a resident of the Province of Sarangani, approved and ordered the transfer of his voter's registration from Precinct No. 4400-A of Barangay Old Balara, Quezon City to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani. It is not within the competence of the trial court, in an exclusion proceedings, to declare the challenged voter a resident of another municipality. The jurisdiction of the lower court over exclusion cases is limited only to

determining the right of voter to remain in the list of voters or to declare that the challenged voter is not qualified to vote in the precint in which he is registered, specifying the ground of the voter's disqualification. The trial court has no power to order the change or transfer of registration from one place of residence to another for it is the function of the election Registration Board as provided under Section 12 of R.A. No. 8189. 17 The only effect of the decision of the lower court excluding the challenged voter from the list of voters, is for the Election Registration Board, upon receipt of the final decision, to remove the voter's registration record from the corresponding book of voters, enter the order of exclusion therein, and thereafter place the record in the inactive file. 18

Finally, the application of the rule on res judicata is unavailing. Identity of parties, subject matter and cause of action are indispensable requirements for the application of said doctrine. Neither herein Private Respondents nor INTERVENOR, is a party in the exclusion proceedings. The Petition for Exclusion was filed by DOMINDO himself and his wife, praying that he and his wife be excluded from the Voter's List on the ground of erroneous registration while the Petition to Deny Due Course to or Cancel Certificate of Candidacy was filed by private respondents against DOMINO for alleged false representation in his certificate of candidacy. For the decision to be a basis for the dismissal by reason of res judicata, it is essential that there must be between the first and the second action identity of parties, identity of subject matter and identity of causes of action. 19 In the present case, the aforesaid essential requisites are not present. In the case of Nuval v. Guray, et al., 20 the Supreme Court in resolving a similar issue ruled that:

The question to be solved under the first assignment of error is whether or not the judgment rendered in the case of the petition for the exclusion of Norberto Guray's name from the election list of Luna, isres judicata, so as to prevent the institution and prosecution of an action in quo warranto, which is now before us.

The procedure prescribed by section 437 of the Administrative Code, as amended by Act No. 3387, is of a summary character and the judgment rendered therein is not appealable except when the petition is tried before the justice of the peace of the capital or the circuit judge, in which case it may be appealed to the judge of first instance, with whom said two lower judges have concurrent jurisdiction.

The petition for exclusion was presented by Gregorio Nuval in his dual capacity as qualified voter of the municipality of Luna, and as a duly registered candidate for the office of president of said municipality, against Norberto Guray as a registered voter in the election list of said municipality. The present proceeding of quo warranto was interposed by Gregorio Nuval in his capacity as a registered candidate voted for the office of municipal president of Luna, against Norberto Guray, as an elected candidate for the same office. Therefore, there is no identity of parties in the two cases, since it is not enough that there be an identity of persons, but


32

there must be an identity of capacities in which said persons litigate. (Art. 1259 of the Civil Code; Bowler vs. Estate of Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165)

In said case of the petition for the exclusion, the object of the litigation, or the litigious matter was the exclusion of Norberto Guray as a voter from the election list of the municipality of Luna, while in the present que warranto proceeding, the object of the litigation, or the litigious matter is his exclusion or expulsion from the office to which he has been elected. Neither does there exist, then, any identity in the object of the litigation, or the litigious matter.

In said case of the petition for exclusion, the cause of action was that Norberto Guray had not the six months' legal residence in the municipality of Luna to be a qualified voter thereof, while in the present proceeding of quo warranto, the cause of action is that Norberto Guray has not the one year's legal residence required for eligibility to the office of municipal president of Luna. Neither does there exist therefore, identity of causes of action.

In order that res judicata may exist the following are necessary: (a) identity of parties; (b) identity of things; and (c) identity of issues (Aquino v. Director of Lands, 39 Phil. 850). And as in the case of the petition for excluision and in the present quo warranto proceeding, as there is no identity of parties, or of things or litigious matter, or of issues or causes of action, there is no res judicata.

The Second Issue.

Was DOMINO a resident of the Province of Sarangani for at least one year immediately preceding the 11 May 1998 election as stated in his certificate of candidacy?

We hold in the negative.

It is doctrinally settled that the term "residence," as used in the law prescribing the qualifications for suffrage and for elective office, means the same thing as "domicile," which imports not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. 21 "Domicile" denotes a fixed permanent residence to which, whenever absent for business, pleasure, or some other reasons, one intends to return.22 "Domicile" is a question of intention and circumstances. In the consideration of circumstances, three rules must be borne in mind, namely: (1) that a man must have a residence or domicile somewhere; (2) when once established it remains until a new one is acquired; and (3) a man can have but one residence or domicile at a time. 23

Records show that petitioner's domicile of origin was Candon, IlocosSur 24 and that sometime in 1991, he acquired a new domicile of choice at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as shown by his certificate of candidacy for the position of representative of the 3rd District of Quezon City in the May 1995 election. Petitioner is now

claiming that he had effectively abandoned his "residence" in Quezon City and has established a new "domicile" of choice at the Province of Sarangani.

A person's "domicile" once established is considered to continue and will not be deemed lost until a new one is established. 25 To successfully effect a change of domicile one must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and definite acts which correspond with thepurpose. 26 In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new domicile must be actual. 27

It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since December 1996 was sufficiently established by the lease of a house and lot located therein in January 1997 and by the affidavits and certifications under oath of the residents of that place that they have seen petitioner and his family residing in their locality.

While this may be so, actual and physical is not in itself sufficient to show that from said date he had transferred his residence in that place. To establish a new domicile of choice, personal presence in the place must be coupled with conduct indicative of that intention. While "residence" simply requires bodily presence in a given place, "domicile" requires not only such bodily presence in that place but also a declared and probable intent to make it one's fixed and permanent place of abode, one's home. 28

As a general rule, the principal elements of domicile, physical presence in the locality involved and intention to adopt it as a domicile, must concur in order to establish a new domicile. No change of domicile will result if either of these elements is absent. Intention to acquire a domicile without actual residence in the locality does not result in acquisition of domicile, nor does the fact of physical presence without intention. 29

The lease contract entered into sometime in January 1997, does not adequately support a change of domicile. The lease contract may be indicative of DOMINO's intention to reside in Sarangani but it does not engender the kind of permanency required to prove abandonment of one's original domicile. The mere absence of individual from his permanent residence, no matter how long, without the intention to abandon it does not result in loss or change ofdomicile. 30 Thus the date of the contract of lease of a house and lot located in the province of Sarangani, i.e., 15 January 1997, cannot be used, in the absence of other circumstances, as the reckoning period of the one-year residence requirement.


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Further, Domino's lack of intention to abandon his residence in Quezon City is further strengthened by his act of registering as voter in one of the precincts in Quezon City. While voting is not conclusive of residence, it does give rise to a strong presumption of residence especially in this case where DOMINO registered in his former barangay. Exercising the right of election franchise is a deliberate public assertion of the fact of residence, and is said to have decided preponderance in a doubtful case upon the place the elector claims as, or believes to be, his residence. 31 The fact that a party continously voted in a particular locality is a strong factor in assisting to determine the status of his domicile. 32

His claim that his registration in Quezon City was erroneous and was caused by events over which he had no control cannot be sustained. The general registration of voters for purposes of the May 1998 elections was scheduled for two (2) consecutive weekends, viz.: June 14, 15, 21, and 22. 33

While, Domino's intention to establish residence in Sarangani can be gleaned from the fact that be bought the house he was renting on November 4, 1997, that he sought cancellation of his previous registration in Qezon City on 22 October 1997, 34 and that he applied for transfer of registration from Quezon City to Sarangani by reason of change of residence on 30 August 1997, 35 DOMINO still falls short of the one year residency requirement under the Constitution.

In showing compliance with the residency requirement, both intent and actual presence in the district one intends to represent must satisfy the length of time prescribed by the fundamental law. 36 Domino's failure to do so rendered him ineligible and his election to office null and void. 37

The Third Issue.

DOMINO's contention that the COMELEC has no jurisdiction in the present petition is bereft of merit.

As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus Election Code, has jurisdiction over a petition to deny due course to or cancel certificate of candidacy. Such jurisdiction continues even after election, if for any reason no final judgment of disqualification is rendered before the election, and the candidate facing disqualification is voted for and receives the highest number of votes 38 and provided further that the winning candidate has not been proclaimed or has taken his oath of office. 39

It has been repeatedly held in a number of cases, that the House of Representatives Electoral Tribunal's sole and exclusive jurisdiction over all contests relating to the election, returns and qualifications of members of Congress as provided under Section 17 of Article VI of the Constitution begins only after a candidate has become a member of the House of Representatives. 40

The fact of obtaining the highest number of votes in an election does not automatically vest the position in the winning candidate. 41 A candidate must be proclaimed and must have taken his oath of office before he can be considered a member of the House of Representatives.

In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone Congressional District of the Province of Sarangani by reason of a Supplemental Omnibus Resolution issued by the COMELEC on the day of the election ordering the suspension of DOMINO's proclamation should he obtain the winning number of votes. This resolution was issued by the COMELEC in view of the non-finality of its 6 May 1998 resolution disqualifying DOMINO as candidate for the position.

Cosidering that DOMINO has not been proclaimed as Congressman-elect in the Lone Congressional District of the Province of Sarangani he cannot be deemed a member of the House of Representatives. Hence, it is the COMELEC and not the Electoral Tribunal which has jurisdiction over the issue of his ineligibility as a candidate. 42

Issue raised by INTERVENOR.

After finding that DOMINO is disqualified as candidate for the position of representative of the province of Sarangani, may INTERVENOR, as the candidate who received the next highest number of votes, be proclaimed as the winning candidate?

It is now settled doctrine that the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified. 43 In every election, the people's choice is the paramount consideration and their expressed will must, at all times, be given effect. When the majority speaks and elects into office a candidate by giving the highest number of votes cast in the election for that office, no one can be declared elected in his place. 44

It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do not choose him. 45 To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voters. He could not be considered the first among qualified candidates because in a field which excludes the qualified candidate, the conditions would have substantially changed. 46

Sound policy dictates that public elective offices are filled by those who have received the highest number of votes cast in the election for that office, and it is fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he


34

or it receives a majority or plurality of the legal votes cast in the election. 47

The effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely, that the wreath of victory cannot be transferred 48 from the disqualified winner to the repudiated loser because the law then as now only authorizes a declaration of election in favor of the person who has obtained a plurality of votes 49 and does not entitle the candidate receiving the next highest number of votes to be declared elected. In such case, the electors have failed to make a choice and the election is a nullity. 50 To allow the defeated and repudiated candidate to take over the elective position despite his rejection by the electorate is to disenfranchise the electorate without any fault on their part and to undermine the importance and meaning of democracy and the people's right to elect officials of their choice. 51

INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray votes cannot be sustained. INTERVENOR's reliance on the opinion made in the Labo, Jr. case 52 to wit: if the electorate, fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nevertheless cast their votes in favor of the ineligible candidate, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected, is misplaced.

Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as an ineligible candidate. Although the resolution declaring him ineligible as candidate was rendered before the election, however, the same is not yet final and executory. In fact, it was no less than the COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed DOMINO to be voted for the office and ordered that the votes cast for him be counted as the Resolution declaring him ineligible has not yet attained finality. Thus the votes cast for DOMINO are presumed to have been cast in the sincere belief that he was a qualified candidate, without any intention to misapply their franchise. Thus, said votes can not be treated as stray, void, or meaningless. 53

WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of the COMELEC 2nd Division and the decision dated 29 May 1998 of the COMELEC En Banc, are hereby AFFIRMED.1âwphi1.nêt

SO ORDERED.

PAMATONG v. COMELEC427 S 96 (2004)


Manila

EN BANC

G.R. No. 161872 April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner, vs.COMMISSION ON ELECTIONS, respondent.

RESOLUTION

TINGA, J.:

Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give due course to petitioner’s Certificate of Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision, however, was not unanimous since Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted to include petitioner as they believed he had parties or movements to back up his candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558. Petitioner’s Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioner’s Motion for Reconsideration and on similar motions filed by other aspirants for national elective positions, denied the same under the aegis of Omnibus Resolution No. 6604 dated February 11, 2004. The COMELEC declared petitioner and thirty-five (35) others nuisance candidates who could not wage a nationwide campaign and/or are not nominated by a political party or are not supported by a registered political party with a national constituency. Commissioner Sadain maintained his vote for petitioner. By then, Commissioner Tancangco had retired.

In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly rendered in violation of his right to "equal access to opportunities for public service" under Section 26, Article II of the 1987

Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a nationwide campaign and/or are nominated by political parties. In so doing, petitioner argues that the COMELEC indirectly amended the constitutional provisions on the electoral process and limited the power of the sovereign people to choose their leaders. The COMELEC supposedly erred in disqualifying him since he is the most qualified among all the presidential candidates, i.e., he possesses all the constitutional and legal qualifications for the office of the president, he is capable of waging a national campaign since he has numerous national organizations under his leadership, he also has the capacity to wage an international campaign since he has practiced


35

law in other countries, and he has a platform of government. Petitioner likewise attacks the validity of the form for theCertificate of Candidacy prepared by the COMELEC. Petitioner claims that the form does not provide clear and reasonable guidelines for determining the qualifications of candidates since it does not ask for the candidate’s bio-data and his program of government.

First, the constitutional and legal dimensions involved.

Implicit in the petitioner’s invocation of the constitutional provision ensuring "equal access to opportunities for public office" is the claim that there is a constitutional right to run for or hold public office and, particularly in his case, to seek the presidency. There is none. What is recognized is merely a privilege subject to limitations imposed by law. Section 26, Article II of the Constitution neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is nothing in the plain language of the provision which suggests such a thrust or justifies an interpretation of the sort.

The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration of Principles and State Policies." The provisions under the Article are generally considered not self-executing,2 and there is no plausible reason for according a different treatment to the "equal access" provision. Like the rest of the policies enumerated in Article II, the provision does not contain any judicially enforceable constitutional right but merely specifies a guideline for legislative or executive action.3 The disregard of the provision does not give rise to any cause of action before the courts.4

An inquiry into the intent of the framers5 produces the same determination that the provision is not self-executory. The original wording of the present Section 26, Article II had read, "The State shall broaden opportunities to public office and prohibit public dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought forth an amendment that changed the word "broaden" to the phrase "ensure equal access," and the substitution of the word "office" to "service." He explained his proposal in this wise:

I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important would be equal access to the opportunity. If you broaden, it would necessarily mean that the government would be mandated to create as many offices as are possible to accommodate as many people as are also possible. That is the meaning of broadening opportunities to public service. So, in order that we should not mandate the State to make the government the number one employer and to limit offices only to what may be necessary and expedient yet offering equal opportunities to access to it, I change the word "broaden."7 (emphasis supplied)

Obviously, the provision is not intended to compel the State to enact positive measures that would accommodate as many people as possible into public office. The approval of the "Davide amendment" indicates the design of the framers to cast the provision as simply enunciatory of a desired policy objective and not reflective of the imposition of a clear State burden.

Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its effective means and reach are not properly defined. Broadly written, the myriad of claims that can be subsumed under this rubric appear to be entirely open-ended.8 Words and phrases such as "equal access," "opportunities," and "public service" are susceptible to countless interpretations owing to their inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people an operative but amorphous foundation from which innately unenforceable rights may be sourced.

As earlier noted, the privilege of equal access to opportunities to public office may be subjected to limitations. Some valid limitations specifically on the privilege to seek elective office are found in the provisions9 of the Omnibus Election Code on "Nuisance Candidates" and COMELEC Resolution No. 645210 dated December 10, 2002 outlining the instances wherein the COMELEC may motu proprio refuse to give due course to or cancel aCertificate of Candidacy.

As long as the limitations apply to everybody equally without discrimination, however, the equal access clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limitations are meant to be borne by any one who is minded to file a certificate of candidacy. In the case at bar, there is no showing that any person is exempt from the limitations or the burdens which they create.

Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed validity stands and has to be accorded due weight.

Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26, Article II of the Constitution is misplaced.

The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These


36

practical difficulties should, of course, never exempt the State from the conduct of a mandated electoral exercise. At the same time, remedial actions should be available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions. As the United States Supreme Court held:

[T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization and its candidates on the ballot – the interest, if no other, in avoiding confusion, deception and even frustration of the democratic [process].11

The COMELEC itself recognized these practical considerations when it promulgated Resolution No. 6558 on 17 January 2004, adopting the study Memorandum of its Law Department dated 11 January 2004. As observed in the COMELEC’s Comment:

There is a need to limit the number of candidates especially in the case of candidates for national positions because the election process becomes a mockery even if those who cannot clearly wage a national campaign are allowed to run. Their names would have to be printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots. These would entail additional costs to the government. For the official ballots in automated counting and canvassing of votes, an additional page would amount to more or less FOUR HUNDRED FIFTY MILLION PESOS (P450,000,000.00).

xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage a decent campaign enough to project the prospect of winning, no matter how slim.12

The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates" to run in the elections. Our election laws provide various entitlements for candidates for public office, such as watchers in every polling place,13 watchers in the board of canvassers,14 or even the receipt of electoral contributions.15Moreover, there are election rules and regulations the formulations of which are dependent on the number of candidates in a given election.

Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The organization of an election with bona fide candidates standing is onerous enough. To add into the mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair the electoral process. This is not to mention the candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body would be

bogged by irrelevant minutiae covering every step of the electoral process, most probably posed at the instance of these nuisance candidates. It would be a senseless sacrifice on the part of the State.

Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and need not indulge in, as the song goes, "their trips to the moon on gossamer wings."

The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State interest to ensure orderly and credible elections by excising impediments thereto, such as nuisance candidacies that distract and detract from the larger purpose. The COMELEC is mandated by the Constitution with the administration of elections16 and endowed with considerable latitude in adopting means and methods that will ensure the promotion of free, orderly and honest elections.17 Moreover, the Constitution guarantees that only bona fide candidates for public office shall be free from any form of harassment and discrimination.18 The determination of bona fidecandidates is governed by the statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved are, their proper application in the case of the petitioner cannot be tested and reviewed by this Court on the basis of what is now before it. The assailed resolutions of the COMELEC do not direct the Court to the evidence which it considered in determining that petitioner was a nuisance candidate. This precludes the Court from reviewing at this instance whether the COMELEC committed grave abuse of discretion in disqualifying petitioner, since such a review would necessarily take into account the matters which the COMELEC considered in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his credentials as an eligible candidate for the presidency. Yet this Court, not being a trier of facts, can not properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor the Solicitor General appended any document to their respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of the factual determination is not before this Court. Thus, the remand of this case for the reception of further evidence is in order.

A word of caution is in order. What is at stake is petitioner’s aspiration and offer to serve in the government. It deserves not a cursory treatment but a hearing which conforms to the requirements of due process.

As to petitioner’s attacks on the validity of the form for the certificate of candidacy, suffice it to say that the form strictly complies with Section 74 of the Omnibus Election Code. This


37

provision specifically enumerates what a certificate of candidacy should contain, with the required information tending to show that the candidate possesses the minimum qualifications for the position aspired for as established by the Constitution and other election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to the COMELEC for the reception of further evidence, to determine the question on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus Election Code.

The COMELEC is directed to hold and complete the reception of evidence and report its findings to this Court with deliberate dispatch.

SO ORDERED.

TONDO MEDICAL v. CA527 S 746 (2007)

EN BANC

TONDO MEDICAL CENTER EMPLOYEES ASSOCIATION, RESEARCH INSTITUTE FOR TROPICAL MEDICINE EMPLOYEES ASSOCIATION, NATIONAL ORTHOPEDIC WORKERS UNION, DR. JOSE R. REYES MEMORIAL HOSPITAL EMPLOYEES UNION, SAN LAZARO HOSPITAL EMPLOYEES ASSOCIATION, ALLIANCE OF HEALTH WORKERS, INC., HEALTH ALLIANCE FOR DEMOCRACY, COUNCIL FOR HEALTH DEVELOPMENT, NETWORK OPPOSED TO PRIVATIZATION, COMMUNITY MEDICINE DEVELOPMENT FOUNDATION INC., PHILIPPINE SOCIETY OF SANITARY ENGINEERS INC., KILUSANG MAYO UNO, GABRIELA, KILUSANG MAGBUBUKID NG PILIPINAS, KALIPUNAN NG DAMAYAN NG MGA MARALITA, ELSA O. GUEVARRA, ARCADIO B. GONZALES, JOSE G. GALANG, DOMINGO P. MANAY, TITO P. ESTEVES, EDUARDO P. GALOPE, REMEDIOS M. YSMAEL, ALFREDO BACUÑATA, EDGARDO J. DAMICOG, REMEDIOS M. MALTU AND REMEGIO S. MERCADO, Petitioners,

- versus -

G.R. No. 167324

Present:

PUNO, C.J.,QUISUMBING,YNARES-SANTIAGO,SANDOVAL-GUTIERREZ,CARPIO,AUSTRIA-MARTINEZ,CORONA,CARPIO MORALES,AZCUNA,TINGA,CHICO-NAZARIO,GARCIA,VELASCO, JR., andNACHURA, JJ.

THE COURT OF APPEALS, EXECUTIVE SECRETARY ALBERTO G. ROMULO, SECRETARY OF HEALTH MANUEL M. DAYRIT, SECRETARY OF BUDGET AND MANAGEMENT EMILIA T. BONCODIN, Respondents.

Promulgated:

July 17, 2007x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x D E C I S I O N CHICO-NAZARIO, J.: This is a Petition for Review on Certiorari, under Rule 45 of the Rules of Court, assailing the Decision,[1] promulgated by the Court of Appeals on 26 November 2004, denying a petition for the nullification of the Health Sector Reform Agenda (HSRA) Philippines 1999-2004 of the Department of Health (DOH); and Executive Order No. 102, “Redirecting the Functions and Operations of the Department of Health,” which was issued by then President Joseph Ejercito Estrada on 24 May 1999. Prior hereto, petitioners originally filed a Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the 1997 Revised Rules of Civil Procedure before the Supreme Court on 15 August 2001. However, the Supreme Court, in a Resolution dated 29 August 2001, referred the petition to the Court of Appeals for appropriate action. HEALTH SECTOR REFORM AGENDA (HSRA) In 1999, the DOH launched the HSRA, a reform agenda developed by the HSRA Technical Working Group after a series of workshops and analyses with inputs from several consultants, program managers and technical staff possessing the adequate expertise and experience in the health sector. It provided for five general areas of reform: (1) to provide fiscal autonomy to government hospitals; (2) secure funding for priority public health programs; (3) promote the development of local health systems and ensure its effective performance; (4) strengthen the capacities of


38

health regulatory agencies; and (5) expand the coverage of the National Health Insurance Program (NHIP).[2]

Petitioners questioned the first reform agenda involving the fiscal autonomy of government hospitals, particularly the collection of socialized user fees and the corporate restructuring of government hospitals. The said provision under the HSRA reads:

Provide fiscal autonomy to government hospitals. Government hospitals must be allowed to collect socialized user fees so they can reduce the dependence on direct subsidies from the government. Their critical capacities like diagnostic equipment, laboratory facilities and medical staff capability must be upgraded to effectively exercise fiscal autonomy. Such investment must be cognizant of complimentary capacity provided by public-private networks. Moreover such capacities will allow government hospitals to supplement priority public health programs. Appropriate institutional arrangement must be introduced such as allowing them autonomy towards converting them into government corporations without compromising their social responsibilities. As a result, government hospitals are expected to be more competitive and responsive to health needs.

Petitioners also assailed the issuance of a draft administrative order issued by the DOH, dated 5 January 2001, entitled “Guidelines and Procedure in the Implementation of the Corporate Restructuring of Selected DOH Hospitals to Achieve Fiscal Autonomy, and Managerial Flexibility to Start by January 2001;”[3] and Administrative Order No. 172 of the DOH, entitled “Policies and Guidelines on the Private Practice of Medical and Paramedical Professionals in Government Health Facilities,”[4] dated 9 January 2001, for imposing an added burden to indigent Filipinos, who cannot afford to pay for medicine and medical services.[5] Petitioners alleged that the implementation of the aforementioned reforms had resulted in making free medicine and free medical services inaccessible to economically disadvantaged Filipinos. Thus, they alleged that the HSRA is void for being in violation of the following constitutional provisions:[6]

ART. III, 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 law. ART II, 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 of all the people of the blessings of democracy. ART II, SEC. 9. The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living and an improved quality of life for all. ART II, SEC. 10. The State shall promote social justice in all phases of national development. ART II, SEC. 11. The State values the dignity of every human person and guarantees full respect for human rights. ART II, SEC. 13. The State recognizes the vital role of the youth in nation-building and shall promote and protect their physical, moral, spiritual, intellectual and social well-being x x x. ART II, SEC. 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare. ART XV, SEC. 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. ART XV, SEC. 3. The State shall defend: x x x x (2) the right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development. x x x x ART XIII, SEC. 14. The State shall protect working women by providing safe and healthful working conditions, taking into account their maternal functions, and such facilities and opportunities that will enhance their welfare and enable them to realize their full potential in the service of the nation.


39

ART II, SEC. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. ART XIII, SEC. 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make essential goods, health and other social services available to all people at affordable cost. There shall be priority for the needs of the underprivileged sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

EXECUTIVE ORDER NO. 102 On 24 May 1999, then President Joseph Ejercito Estrada issued Executive Order No. 102, entitled “Redirecting the Functions and Operations of the Department of Health,” which provided for the changes in the roles, functions, and organizational processes of the DOH. Under the assailed executive order, the DOH refocused its mandate from being the sole provider of health services to being a provider of specific health services and technical assistance, as a result of the devolution of basic services to local government units. The provisions for the streamlining of the DOH and the deployment of DOH personnel to regional offices and hospitals read:

Sec. 4. Preparation of a Rationalization and Streamlining Plan. In view of the functional and operational redirection in the DOH, and to effect efficiency and effectiveness in its activities, the Department shall prepare a Rationalization and Streamlining Plan (RSP) which shall be the basis of the intended changes. The RSP shall contain the following: a) the specific shift in policy

directions, functions, programs and activities/strategies;

b) the structural and organizational shift, stating the specific functions and activities by organizational unit and the relationship of each units;

c) the staffing shift, highlighting and itemizing the existing filled and unfilled positions; and

d) the resource allocation shift, specifying the effects of the streamline set-up on the agency budgetary allocation and indicating where possible, savings have been generated.

The RSP shall [be] submitted to the Department of Budget and Management for approval before the corresponding shifts shall be affected (sic) by the DOH Secretary. Sec. 5. Redeployment of Personnel. The redeployment of officials and other personnel on the basis of the approved RSP shall not result in diminution in rank and compensation of existing personnel. It shall take into account all pertinent Civil Service laws and rules. Section 6. Funding. The financial resources needed to implement the Rationalization and Streamlining Plan shall be taken from funds available in the DOH, provided that the total requirements for the implementation of the revised staffing pattern shall not exceed available funds for Personnel Services. Section 7. Separation Benefits. Personnel who opt to be separated from the service as a consequence of the implementation of this Executive Order shall be entitled to the benefits under existing laws. In the case of those who are not covered by existing laws, they shall be entitled to separation benefits equivalent to one month basic salary for every year of service or proportionate share thereof in addition to the terminal fee benefits to which he/she is entitled under existing laws. Executive Order No. 102 was enacted pursuant to

Section 17 of the Local Government Code (Republic Act No. 7160), which provided for the devolution to the local government units of basic services and facilities, as well as specific health-related functions and responsibilities.[7]

Petitioners contended that a law, such as Executive

Order No. 102, which effects the reorganization of the DOH, should be enacted by Congress in the exercise of its legislative function. They argued that Executive Order No. 102 is void, having been issued in excess of the President’s authority.[8]

Moreover, petitioners averred that the

implementation of the Rationalization and Streamlining Plan (RSP) was not in accordance with law. The RSP was allegedly implemented even before the Department of Budget and Management (DBM) approved it. They also maintained that the Office of the President should have issued an administrative order to carry out the streamlining, but that it failed to do so.[9]


40

Furthermore, petitioners Elsa O. Guevarra, Arcadio B. Gonzales, Jose G. Galang, Domingo P. Manay, Eduardo P. Galope, Remedios M. Ysmael, Alfredo U. Bacuñata andEdgardo J. Damicog, all DOH employees, assailed the validity of Executive Order No. 102 on the ground that they were likely to lose their jobs, and that some of them were suffering from the inconvenience of having to travel a longer distance to get to their new place of work, while other DOH employees had to relocate to far-flung areas.[10]

Petitioners also pointed out several errors in the

implementation of the RSP. Certain employees allegedly suffered diminution of compensation,[11] while others were supposedly assigned to positions for which they were neither qualified nor suited.[12] In addition, new employees were purportedly hired by the DOH and appointed to positions for which they were not qualified, despite the fact that the objective of the ongoing streamlining was to cut back on costs.[13] It was also averred that DOH employees were deployed or transferred even during the three-month period before the national and local elections in May 2001, [14] in violation of Section 2 of the Republic Act No. 7305, also known as “Magna Carta for Public Health Workers.”[15] Petitioners, however, failed to identify the DOH employees referred to above, much less include them as parties to the petition. The Court of Appeals denied the petition due to a number of procedural defects, which proved fatal: 1) Petitioners failed to show capacity or authority to sign the certification of non-forum shopping and the verification; 2) Petitioners failed to show any particularized interest for bringing the suit, nor any direct or personal injury sustained or were in the immediate danger of sustaining; 3) the Petition, brought before the Supreme Court on 15 August 1999, was filed out of time, or beyond 60 days from the time the reorganization methods were implemented in 2000; and 4) certiorari, Prohibition and Mandamus will not lie where the President, in issuing the assailed Executive Order, was not acting as a tribunal, board or officer exercising judicial or quasi-judicial functions. In resolving the substantial issues of the case, the Court of Appeals ruled that the HSRA cannot be declared void for violating Sections 5, 9, 10, 11, 13, 15, 18 of Article II; Section 1 of Article III; Sections 11 and 14 of Article XIII; and Sections 1 and 3(2) of Article XV, all of the 1987 Constitution, which directly or indirectly pertain to the duty of the State to protect and promote the people’s right to health and well-being. It reasoned that the aforementioned provisions of the Constitution are not self-executing; they are not judicially enforceable constitutional rights and can only provide guidelines for legislation.

Moreover, the Court of Appeals held that the petitioners’ assertion that Executive Order No. 102 is detrimental to the health of the people cannot be made a justiciable issue. The question of whether the HSRA will

bring about the development or disintegration of the health sector is within the realm of the political department. Furthermore, the Court of Appeals decreed that the President was empowered to issue Executive Order No. 102, in accordance with Section 17 Article VII of the 1987 Constitution. It also declared that the DOH did not implement Executive Order No. 102 in bad faith or with grave abuse of discretion, as alleged by the petitioners, as the DOH issued Department Circular No. 275-C, Series of 2000, which created the different committees tasked with the implementation of the RSP, only after both the DBM andPresidential Committee on Effective Governance (PCEG) approved the RSP on 8 July 2000 and 17 July 2000, respectively. Petitioners filed with the Court of Appeals a Motion for Reconsideration of the Decision rendered on 26 November 2004, but the same was denied in a Resolution dated 7 March 2005. Hence, the present petition, where the following issues are raised:

I.

THE HONORABLE COURT OF APPEALS COMMITTED MANIFEST ERROR IN RULING THAT ANY QUESTION ON THE WISDOM AND EFFICACY OF THE HEALTH SECTOR REFORM AGENDA IS NOT A JUSTICIABLE CONTROVERSY AND THAT THE CONSTITUTIONAL PROVISIONS PROTECTING THE HEALTH OF THE FILIPINO PEOPLE ARE NOT JUDICIALLY ENFORCEABLE;

II.

THE HONORABLE COURT OF APPEALS COMMITTED MANIFEST ERROR IN RULING THAT PETITIONERS’ COMPLAINT THAT EXECUTIVE ORDER NO. 102 IS DETRIMENTAL TO THE FILIPINO IS LIKEWISE NOT A JUSTICIABLE CONTROVERSY AND THAT THE PRESIDENT HAS THE AUTHORITY TO ISSUE SAID ORDER; AND

III.

THE HONORABLE COURT OF APPEALS COMMITTED MANIFEST ERROR IN UPHOLDING TECHNICALITIES OVER AND ABOVE THE ISSUES OF TRANSCENDENTAL IMPORTANCE RAISED IN THE PETITION BELOW. [16]


41

The Court finds the present petition to be without merit.

Petitioners allege that the HSRA should be declared void, since it runs counter to the aspiration and ideals of the Filipino people as embodied in the Constitution.[17] They claim that the HSRA’s policies of fiscal autonomy, income generation, and revenue enhancement violate Sections 5, 9, 10, 11, 13, 15 and 18 of Article II, Section 1 of Article III; Sections 11 and 14 of Article XIII; and Sections 1 and 3 of Article XV of the 1987 Constitution. Such policies allegedly resulted in making inaccessible free medicine and free medical services. This contention is unfounded.

As a general rule, the provisions of the Constitution are considered self-executing, and do not require future legislation for their enforcement. For if they are not treated as self-executing, the mandate of the fundamental law can be easily nullified by the inaction of Congress.[18] However, some provisions have already been categorically declared by this Court as non self-executing.

In Tanada v. Angara,[19] the Court specifically set apart the sections found under Article II of the 1987 Constitution as non self-executing and ruled that such broad principles need legislative enactments before they can be implemented:

By its very title, Article II of the Constitution is a “declaration of principles and state policies.” x x x. These principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws.

In Basco v. Philippine Amusement and Gaming Corporation,[20] this Court declared that Sections 11, 12, and 13 of Article II; Section 13 of Article XIII; and Section 2 of Article XIV of the 1987 Constitution are not self-executing provisions. In Tolentino v. Secretary of Finance,[21] the Court referred to Section 1 of Article XIII and Section 2 of Article XIV of the Constitution as moral incentives to legislation, not as judicially enforceable rights. These provisions, which merely lay down a general principle, are distinguished from other constitutional provisions as non self-executing and, therefore, cannot give rise to a cause of action in the courts; they do not embody judicially enforceable constitutional rights.[22]

Some of the constitutional provisions invoked in the

present case were taken from Article II of the Constitution -- specifically, Sections 5, 9, 10, 11, 13, 15 and 18 -- the provisions of which the Court categorically ruled to be non self-executing in the aforecited case of Tañada v. Angara.[23]

Moreover, the records are devoid of any explanation of how the HSRA supposedly violated the equal protection and due process clauses that are embodied in Section 1 of Article III of the Constitution. There were no allegations of discrimination or of the lack of due process in connection with the HSRA. Since they failed to substantiate how these constitutional guarantees were breached, petitioners are unsuccessful in establishing the relevance of this provision to the petition, and consequently, in annulling the HSRA.

In the remaining provisions, Sections 11 and 14 of Article XIII and Sections 1 and 3 of Article XV, the State accords recognition to the protection of working women and the provision for safe and healthful working conditions; to the adoption of an integrated and comprehensive approach to health; to the Filipino family; and to the right of children to assistance and special protection, including proper care and nutrition. Like the provisions that were declared as non self-executory in the cases of Basco v. Philippine Amusement and Gaming Corporation[24] and Tolentino v. Secretary of Finance,[25] they are mere statements of principles and policies. As such, they are mere directives addressed to the executive and the legislative departments. If unheeded, the remedy will not lie with the courts; but rather, the electorate’s displeasure may be manifested in their votes.

The rationale for this is given by Justice

Dante Tinga in his Separate Opinion in the case of Agabon v. National Labor Relations Commission[26]:

x x x However, to declare that the constitutional provisions are enough to guarantee the full exercise of the rights embodied therein, and the realization of the ideals therein expressed, would be impractical, if not unrealistic. The espousal of such view presents the dangerous tendency of being overbroad and exaggerated. x x x Subsequent legislation is still needed to define the parameters of these guaranteed rights. x x x Without specific and pertinent legislation, judicial bodies will be at a loss, formulating their own conclusion to approximate at least the aims of the Constitution.

The HSRA cannot be nullified based solely on petitioners’ bare allegations that it violates the general principles expressed in the non self-executing provisions they cite herein. There are two reasons for denying a cause of action to an alleged infringement of broad constitutional principles: basic considerations of due process and the limitations of judicial power.[27]

Petitioners also claim that Executive Order No. 102 is void on the ground that it was issued by the President in excess of his authority. They maintain that the structural and functional reorganization of the DOH is an exercise of legislative functions, which the President usurped when he


42

issued Executive Order No. 102.[28] This line of argument is without basis.

This Court has already ruled in a number of cases that the President may, by executive or administrative order, direct the reorganization of government entities under the Executive Department.[29] This is also sanctioned under the Constitution, as well as other statutes.

Section 17, Article VII of the 1987 Constitution, clearly states: “[T]he president shall have control of all executive departments, bureaus and offices.” Section 31, Book III, Chapter 10 of Executive Order No. 292, also known as the Administrative Code of 1987 reads:

SEC. 31. Continuing Authority of the President to Reorganize his Office - The President, subject to the policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority to reorganize the administrative structure of the Office of the President. For this purpose, he may take any of the following actions: (1) Restructure the internal organization of the Office of the President Proper, including the immediate offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by abolishing consolidating or merging units thereof or transferring functions from one unit to another;

(2) Transfer any function under the Office of the President to any other Department or Agency as well as transfer functions to the Office of the President from other Departments or Agencies; and

(3) Transfer any agency under the Office of the President to any other department or agency as well as transfer agencies to the Office of the President from other Departments or agencies.

In Domingo v. Zamora,[30] this Court explained the rationale behind the President’s continuing authority under the Administrative Code to reorganize the administrative structure of the Office of the President. The law grants the President the power to reorganize the Office of the President in recognition of the recurring need of every President to reorganize his or her office “to achieve simplicity, economy and efficiency.” To remain effective and efficient, it must be capable of being shaped and reshaped by the President in the manner the Chief Executive deems fit to carry out presidential directives and policies.

The Administrative Code provides that the Office of the President consists of the Office of the President Proper and the agencies under it.[31] The agencies under the Office of the President are identified in Section 23, Chapter 8, Title II of the Administrative Code:

Sec. 23. The Agencies under the Office of the President.—The agencies under the Office of the President refer to those offices placed under the chairmanship of the President, those under the supervision and control of the President, those under the administrative supervision of the Office of the President, those attached to it for policy and program coordination, and those that are not placed by law or order creating them under any specific department. (Emphasis provided.)

Section 2(4) of the Introductory Provisions of the Administrative Code defines the term “agency of the government” as follows:

Agency of the Government refers to any of the various units of the Government, including a department, bureau, office, instrumentality, or government-owned or controlled corporation, or a local government or a distinct unit therein.

Furthermore, the DOH is among the cabinet-level departments enumerated under Book IV of the Administrative Code, mainly tasked with the functional distribution of the work of the President.[32] Indubitably, the DOH is an agency which is under the supervision and control of the President and, thus, part of the Office of the President. Consequently, Section 31, Book III, Chapter 10 of the Administrative Code, granting the President the continued authority to reorganize the Office of the President, extends to the DOH.

The power of the President to reorganize the

executive department is likewise recognized in general appropriations laws. As early as 1993, Sections 48 and 62 of Republic Act No. 7645, the “General Appropriations Act for Fiscal Year 1993,” already contained a provision stating that:

Sec. 48. Scaling Down and Phase Out of Activities Within the Executive Branch.—The heads of departments, bureaus and offices and agencies are hereby directed to identify their respective activities which are no longer essential in the delivery of public services and which may be scaled down, phased out, or abolished, subject to civil service rules and regulations. x x x. Actual scaling down, phasing out, or abolition of activities


43

shall be effected pursuant to Circulars or Orders issued for the purpose by the Office of the President. (Emphasis provided.) Sec. 62. Unauthorized Organizational Changes. Unless otherwise created by law or directed by the President of the Philippines, no organizational unit or changes in key positions in any department or agency shall be authorized in their respective organizational structures and be funded form appropriations by this Act.

Again, in the year when Executive Order No. 102 was issued, “The General Appropriations Act of Fiscal Year 1999” (Republic Act No. 8745) conceded to the President the power to make any changes in any of the key positions and organizational units in the executive department thus:

Sec. 77. Organized Changes. Unless otherwise provided by law or directed by the President of the Philippines, no changes in key positions or organizational units in any department or agency shall be authorized in their respective organizational structures and funded from appropriations provided by this Act. Clearly, Executive Order No. 102 is well within the

constitutional power of the President to issue. The President did not usurp any legislative prerogative in issuing Executive Order No. 102. It is an exercise of the President’s constitutional power of control over the executive department, supported by the provisions of the Administrative Code, recognized by other statutes, and consistently affirmed by this Court.

Petitioners also pointed out several flaws in the implementation of Executive Order No. 102, particularly the RSP. However, these contentions are without merit and are insufficient to invalidate the executive order.

The RSP was allegedly implemented even before

the DBM approved it. The facts show otherwise. It was only after the DBM approved the Notice of Organization, Staffing and Compensation Action on 8 July 2000,[33] and after the Presidential Committee on Effective Governance (PCEG) issued on 17 July 2000 Memorandum Circular No. 62,[34]approving the RSP, that then DOH Secretary Alberto G. Romualdez issued on 28 July 2000 Department Circular No. 275-C, Series of 2000,[35] creating the different committees to implement the RSP.

Petitioners also maintain that the Office of the

President should have issued an administrative order to carry out the streamlining, but that it failed to do so. Such

objection cannot be given any weight considering that the acts of the DOH Secretary, as an alter ego of the President, are presumed to be the acts of the President. The members of the Cabinet are subject at all times to the disposition of the President since they are merely his alter egos.[36] Thus, their acts, performed and promulgated in the regular course of business, are, unless disapproved by the President, presumptively acts of the President.[37] Significantly, the acts of the DOH Secretary were clearly authorized by the President, who, thru the PCEG, issued the aforementioned Memorandum Circular No. 62, sanctioning the implementation of the RSP.

Petitioners Elsa Odonzo Guevarra, Arcadio B.

Gonzales, Jose G. Galang, Domingo P. Manay, Eduardo P. Galope, Remedios M. Ysmael, Alfredo U. Bacuñata, andEdgardo Damicog, all DOH employees, assailed the validity of Executive Order No. 102 on the ground that they were likely to lose their jobs, and that some of them were suffering from the inconvenience of having to travel a longer distance to get to their new place of work, while other DOH employees had to relocate to far-flung areas.

In several cases, this Court regarded

reorganizations of government units or departments as valid, for so long as they are pursued in good faith—that is, for the purpose of economy or to make bureaucracy more efficient.[38] On the other hand, if the reorganization is done for the purpose of defeating security of tenure or for ill-motivated political purposes, any abolition of position would be invalid. None of these circumstances are applicable since none of the petitioners were removed from public service, nor did they identify any action taken by the DOH that would unquestionably result in their dismissal. The reorganization that was pursued in the present case was made in good faith. The RSP was clearly designed to improve the efficiency of the department and to implement the provisions of the Local Government Code on the devolution of health services to local governments. While this Court recognizes the inconvenience suffered by public servants in their deployment to distant areas, the executive department’s finding of a need to make health services available to these areas and to make delivery of health services more efficient and more compelling is far from being unreasonable or arbitrary, a determination which is well within its authority. In all, this Court finds petitioners’ contentions to be insufficient to invalidate Executive Order No. 102.

Without identifying the DOH employees concerned, much less including them as parties to the petition, petitioners went on identifying several errors in the implementation of Executive Order No. 102. First, they alleged that unidentified DOH employees suffered from a diminution of compensation by virtue of the provision on Salaries and Benefits found in Department Circular No. 312, Series of 2000, issued on 23 October 2000, which reads:

2. Any employee who was matched to a position with lower salary grade (SG) shall not suffer a reduction in salary except where his/her current salary is higher than


44

the maximum step of the SG of the new position, in which case he/she shall be paid the salary corresponding to the maximum step of the SG of the new position. RATA shall no longer be received, if employee was matched to a Non-Division Chief Position.

Incidentally, the petition shows that none of the petitioners, who are working in the DOH, were entitled to receive RATA at the time the petition was filed. Nor was it alleged that they suffered any diminution of compensation. Secondly, it was claimed that certain unnamed DOH employees were matched with unidentified positions for which they were supposedly neither qualified nor suited. New employees, again unnamed and not included as parties, were hired by the DOH and appointed to unidentified positions for which they were purportedly not qualified, despite the fact that the objective of the ongoing streamlining was to cut back on costs. Lastly, unspecified DOH employees were deployed or transferred during the three-month period before the national and local elections in May 2001, in violation of Section 2 of the Republic Act No. 7305, also known as “MagnaCarta for Public Health Workers.” Petitioners’ allegations are too general and unsubstantiated by the records for the Court to pass upon. The persons involved are not identified, details of their appointments and transfers – such as position, salary grade, and the date they were appointed - are not given; and the circumstances which attended the alleged violations are not specified.

Even granting that these alleged errors were adequately proven by the petitioners, they would still not invalidate Executive Order No. 102. Any serious legal errors in laying down the compensation of the DOH employees concerned can only invalidate the pertinent provisions of Department Circular No. 312, Series of 2000. Likewise, any questionable appointments or transfers are properly addressed by an appeal process provided under Administrative Order No. 94, series of 2000; [39] and if the appeal is meritorious, such appointment or transfer may be invalidated. The validity of Executive Order No. 102 would, nevertheless, remain unaffected. Settled is the rule that courts are not at liberty to declare statutes invalid, although they may be abused or misabused, and may afford an opportunity for abuse in the manner of application. 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.[40]

In a number of cases,[41] the Court upheld the

standing of citizens who filed suits, wherein the “transcendental importance” of the constitutional question justified the granting of relief. In spite of these rulings, the Court, in Domingo v. Carague,[42] dismissed the petition when petitioners therein failed to show any present substantial interest. It demonstrated how even in the cases in which the Court declared that the matter of the case was of

transcendental importance, the petitioners must be able to assert substantial interest. Present substantial interest, which will enable a party to question the validity of the law, requires that a party sustained or will sustain direct injury as a result of its enforcement.[43] It is distinguished from a mere expectancy or future, contingent, subordinate, or inconsequential interest.[44]

In the same way, the Court, in Telecommunications

& Broadcast Attorneys of the Philippines, Inc. v. Comelec,[45] ruled that a citizen is allowed to raise a constitutional question only when he can show that he has personally 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. This case likewise stressed that the rule on constitutional questions which are of transcendental importance cannot be invoked where a party’s substantive claim is without merit. Thus, a party’s standing is determined by the substantive merit of his case or a preliminary estimate thereof. After a careful scrutiny of the petitioners’ substantive claims, this Court finds that the petitioners miserably failed to show any merit to their claims.

IN VIEW OF THE FOREGOING, the instant Petition is DENIED. This Court AFFIRMS the assailed Decision of the Court of Appeals, promulgated on 26 November 2004, declaring both the HSRA and Executive Order No. 102 as valid. No costs.

SO ORDERED.

SERRANO v. GALLANT MARITIME582 S 254 (2009)


Manila

EN BANC

G.R. No. 167614 March 24, 2009

ANTONIO M. SERRANO, Petitioner, vs.Gallant MARITIME SERVICES, INC. and MARLOW NAVIGATION CO., INC., Respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

For decades, the toil of solitary migrants has helped lift entire families and communities out of poverty. Their earnings have built houses, provided health care, equipped schools and planted the seeds of businesses. They have woven together the world by transmitting ideas and knowledge from country to country. They have provided the dynamic human link between cultures, societies and economies. Yet, only


45

recently have we begun to understand not only how much international migration impacts development, but how smart public policies can magnify this effect.

United Nations Secretary-General Ban Ki-MoonGlobal Forum on Migration and DevelopmentBrussels, July 10, 20071

For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5th paragraph of Section 10, Republic Act (R.A.) No. 8042,2 to wit:

Sec. 10. Money Claims. - x x x In case of termination of overseas employment without just, valid or authorized cause as defined by law or contract, the workers shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.

x x x x (Emphasis and underscoring supplied)

does not magnify the contributions of overseas Filipino workers (OFWs) to national development, but exacerbates the hardships borne by them by unduly limiting their entitlement in case of illegal dismissal to their lump-sum salary either for the unexpired portion of their employment contract "or for three months for every year of the unexpired term, whichever is less" (subject clause). Petitioner claims that the last clause violates the OFWs' constitutional rights in that it impairs the terms of their contract, deprives them of equal protection and denies them due process.

By way of Petition for Review under Rule 45 of the Rules of Court, petitioner assails the December 8, 2004 Decision3 and April 1, 2005 Resolution4 of the Court of Appeals (CA), which applied the subject clause, entreating this Court to declare the subject clause unconstitutional.

Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd. (respondents) under a Philippine Overseas Employment Administration (POEA)-approved Contract of Employment with the following terms and conditions:

Duration of contract 12 months

Position Chief Officer

Basic monthly salary US$1,400.00

Hours of work 48.0 hours per week

Overtime US$700.00 per month

Vacation leave with pay 7.00 days per month5

On March 19, 1998, the date of his departure, petitioner was constrained to accept a downgraded employment contract

for the position of Second Officer with a monthly salary of US$1,000.00, upon the assurance and representation of respondents that he would be made Chief Officer by the end of April 1998.6

Respondents did not deliver on their promise to make petitioner Chief Officer.7 Hence, petitioner refused to stay on as Second Officer and was repatriated to the Philippines on May 26, 1998.8

Petitioner's employment contract was for a period of 12 months or from March 19, 1998 up to March 19, 1999, but at the time of his repatriation on May 26, 1998, he had served only two (2) months and seven (7) days of his contract, leaving an unexpired portion of nine (9) months and twenty-three (23) days.

Petitioner filed with the Labor Arbiter (LA) a Complaint9 against respondents for constructive dismissal and for payment of his money claims in the total amount of US$26,442.73, broken down as follows:

as well as moral and exemplary damages and attorney's fees.

The LA rendered a Decision dated July 15, 1999, declaring the dismissal of petitioner illegal and awarding him monetary benefits, to wit:

WHEREFORE, premises considered, judgment is hereby rendered declaring that the dismissal of the complainant (petitioner) by the respondents in the above-entitled case was illegal and the respondents are hereby ordered to pay the complainant [petitioner], jointly and severally, in Philippine Currency, based on the rate of exchange prevailing at the time of payment, the amount of EIGHT THOUSAND SEVEN HUNDRED SEVENTY U.S. DOLLARS (US $8,770.00), representing the complainant’s salary for three (3) months of the unexpired portion of the aforesaid contract of employment.1avvphi1

The respondents are likewise ordered to pay the complainant [petitioner], jointly and severally, in Philippine Currency, based on the rate of exchange prevailing at the time of payment, the amount of FORTY FIVE U.S. DOLLARS (US$ 45.00),12 representing the complainant’s claim for a salary differential. In addition, the respondents are hereby ordered to pay the complainant, jointly and severally, in Philippine Currency, at the exchange rate prevailing at the time of payment, the complainant’s (petitioner's) claim for attorney’s fees equivalent to ten percent (10%) of the total amount awarded to the aforesaid employee under this Decision.


46

The claims of the complainant for moral and exemplary damages are hereby DISMISSED for lack of merit.

All other claims are hereby DISMISSED.

SO ORDERED.13 (Emphasis supplied)

In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his computation on the salary period of three months only -- rather than the entire unexpired portion of nine months and 23 days of petitioner's employment contract - applying the subject clause. However, the LA applied the salary rate of US$2,590.00, consisting of petitioner's "[b]asic salary, US$1,400.00/month + US$700.00/month, fixed overtime pay, + US$490.00/month, vacation leave pay = US$2,590.00/compensation per month."14

Respondents appealed15 to the National Labor Relations Commission (NLRC) to question the finding of the LA that petitioner was illegally dismissed.

Petitioner also appealed16 to the NLRC on the sole issue that the LA erred in not applying the ruling of the Court in Triple Integrated Services, Inc. v. National Labor Relations Commission17 that in case of illegal dismissal, OFWs are entitled to their salaries for the unexpired portion of their contracts.18

In a Decision dated June 15, 2000, the NLRC modified the LA Decision, to wit:

WHEREFORE, the Decision dated 15 July 1999 is MODIFIED. Respondents are hereby ordered to pay complainant, jointly and severally, in Philippine currency, at the prevailing rate of exchange at the time of payment the following:

1. Three (3) months salary

$1,400 x 3 US$4,200.00

2. Salary differential 45.00

US$4,245.00

3. 10% Attorney’s fees 424.50

TOTAL US$4,669.50

The other findings are affirmed.

SO ORDERED.19

The NLRC corrected the LA's computation of the lump-sum salary awarded to petitioner by reducing the applicable

salary rate from US$2,590.00 to US$1,400.00 because R.A. No. 8042 "does not provide for the award of overtime pay, which should be proven to have been actually performed, and for vacation leave pay."20

Petitioner filed a Motion for Partial Reconsideration, but this time he questioned the constitutionality of the subject clause.21 The NLRC denied the motion.22

Petitioner filed a Petition for Certiorari23 with the CA, reiterating the constitutional challenge against the subject clause.24 After initially dismissing the petition on a technicality, the CA eventually gave due course to it, as directed by this Court in its Resolution dated August 7, 2003 which granted the petition for certiorari, docketed as G.R. No. 151833, filed by petitioner.

In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on the reduction of the applicable salary rate; however, the CA skirted the constitutional issue raised by petitioner.25

His Motion for Reconsideration26 having been denied by the CA,27 petitioner brings his cause to this Court on the following grounds:

I

The Court of Appeals and the labor tribunals have decided the case in a way not in accord with applicable decision of the Supreme Court involving similar issue of granting unto the migrant worker back wages equal to the unexpired portion of his contract of employment instead of limiting it to three (3) months

II

In the alternative that the Court of Appeals and the Labor Tribunals were merely applying their interpretation of Section 10 of Republic Act No. 8042, it is submitted that the Court of Appeals gravely erred in law when it failed to discharge its judicial duty to decide questions of substance not theretofore determined by the Honorable Supreme Court, particularly, the constitutional issues raised by the petitioner on the constitutionality of said law, which unreasonably, unfairly and arbitrarily limits payment of the award for back wages of overseas workers to three (3) months.

III

Even without considering the constitutional limitations [of] Sec. 10 of Republic Act No. 8042, the Court of Appeals gravely erred in law in excluding from petitioner’s award the overtime pay and vacation pay provided in his contract since under the contract they form part of his salary.28

On February 26, 2008, petitioner wrote the Court to withdraw his petition as he is already old and sickly, and he intends to make use of the monetary award for his medical treatment


47

and medication.29 Required to comment, counsel for petitioner filed a motion, urging the court to allow partial execution of the undisputed monetary award and, at the same time, praying that the constitutional question be resolved.30

Considering that the parties have filed their respective memoranda, the Court now takes up the full merit of the petition mindful of the extreme importance of the constitutional question raised therein.

On the first and second issues

The unanimous finding of the LA, NLRC and CA that the dismissal of petitioner was illegal is not disputed. Likewise not disputed is the salary differential of US$45.00 awarded to petitioner in all three fora. What remains disputed is only the computation of the lump-sum salary to be awarded to petitioner by reason of his illegal dismissal.

Applying the subject clause, the NLRC and the CA computed the lump-sum salary of petitioner at the monthly rate of US$1,400.00 covering the period of three months out of the unexpired portion of nine months and 23 days of his employment contract or a total of US$4,200.00.

Impugning the constitutionality of the subject clause, petitioner contends that, in addition to the US$4,200.00 awarded by the NLRC and the CA, he is entitled to US$21,182.23 more or a total of US$25,382.23, equivalent to his salaries for the entire nine months and 23 days left of his employment contract, computed at the monthly rate of US$2,590.00.31

The Arguments of Petitioner

Petitioner contends that the subject clause is unconstitutional because it unduly impairs the freedom of OFWs to negotiate for and stipulate in their overseas employment contracts a determinate employment period and a fixed salary package.32 It also impinges on the equal protection clause, for it treats OFWs differently from local Filipino workers (local workers) by putting a cap on the amount of lump-sum salary to which OFWs are entitled in case of illegal dismissal, while setting no limit to the same monetary award for local workers when their dismissal is declared illegal; that the disparate treatment is not reasonable as there is no substantial distinction between the two groups;33 and that it defeats Section 18,34 Article II of the Constitution which guarantees the protection of the rights and welfare of all Filipino workers, whether deployed locally or overseas.35

Moreover, petitioner argues that the decisions of the CA and the labor tribunals are not in line with existing jurisprudence on the issue of money claims of illegally dismissed OFWs. Though there are conflicting rulings on this, petitioner urges the Court to sort them out for the guidance of affected OFWs.36

Petitioner further underscores that the insertion of the subject clause into R.A. No. 8042 serves no other purpose but to benefit local placement agencies. He marks the statement made by the Solicitor General in his Memorandum, viz.:

Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its obligation. Hence, placement agencies that are in good faith and which fulfill their obligations are unnecessarily penalized for the acts of the foreign employer. To protect them and to promote their continued helpful contribution in deploying Filipino migrant workers, liability for money claims was reduced under Section 10 of R.A. No. 8042. 37(Emphasis supplied)

Petitioner argues that in mitigating the solidary liability of placement agencies, the subject clause sacrifices the well-being of OFWs. Not only that, the provision makes foreign employers better off than local employers because in cases involving the illegal dismissal of employees, foreign employers are liable for salaries covering a maximum of only three months of the unexpired employment contract while local employers are liable for the full lump-sum salaries of their employees. As petitioner puts it:

In terms of practical application, the local employers are not limited to the amount of backwages they have to give their employees they have illegally dismissed, following well-entrenched and unequivocal jurisprudence on the matter. On the other hand, foreign employers will only be limited to giving the illegally dismissed migrant workers the maximum of three (3) months unpaid salaries notwithstanding the unexpired term of the contract that can be more than three (3) months.38

Lastly, petitioner claims that the subject clause violates the due process clause, for it deprives him of the salaries and other emoluments he is entitled to under his fixed-period employment contract.39

The Arguments of Respondents

In their Comment and Memorandum, respondents contend that the constitutional issue should not be entertained, for this was belatedly interposed by petitioner in his appeal before the CA, and not at the earliest opportunity, which was when he filed an appeal before the NLRC.40

The Arguments of the Solicitor General

The Solicitor General (OSG)41 points out that as R.A. No. 8042 took effect on July 15, 1995, its provisions could not have impaired petitioner's 1998 employment contract. Rather, R.A. No. 8042 having preceded petitioner's contract, the provisions thereof are deemed part of the minimum terms of petitioner's employment, especially on the matter of money claims, as this was not stipulated upon by the parties.42


48

Moreover, the OSG emphasizes that OFWs and local workers differ in terms of the nature of their employment, such that their rights to monetary benefits must necessarily be treated differently. The OSG enumerates the essential elements that distinguish OFWs from local workers: first, while local workers perform their jobs within Philippine territory, OFWs perform their jobs for foreign employers, over whom it is difficult for our courts to acquire jurisdiction, or against whom it is almost impossible to enforce judgment; and second, as held in Coyoca v. National Labor Relations Commission43 and Millares v. National Labor Relations Commission,44 OFWs are contractual employees who can never acquire regular employment status, unlike local workers who are or can become regular employees. Hence, the OSG posits that there are rights and privileges exclusive to local workers, but not available to OFWs; that these peculiarities make for a reasonable and valid basis for the differentiated treatment under the subject clause of the money claims of OFWs who are illegally dismissed. Thus, the provision does not violate the equal protection clause nor Section 18, Article II of the Constitution.45

Lastly, the OSG defends the rationale behind the subject clause as a police power measure adopted to mitigate the solidary liability of placement agencies for this "redounds to the benefit of the migrant workers whose welfare the government seeks to promote. The survival of legitimate placement agencies helps [assure] the government that migrant workers are properly deployed and are employed under decent and humane conditions."46

The Court's Ruling

The Court sustains petitioner on the first and second issues.

When the Court is called upon to exercise its power of judicial review of the acts of its co-equals, such as the Congress, it does so only when these conditions obtain: (1) that there is an actual case or controversy involving a conflict of rights susceptible of judicial determination;47 (2) that the constitutional question is raised by a proper party48 and at the earliest opportunity;49 and (3) that the constitutional question is the very lis mota of the case,50otherwise the Court will dismiss the case or decide the same on some other ground.51

Without a doubt, there exists in this case an actual controversy directly involving petitioner who is personally aggrieved that the labor tribunals and the CA computed his monetary award based on the salary period of three months only as provided under the subject clause.

The constitutional challenge is also timely. It should be borne in mind that the requirement that a constitutional issue be raised at the earliest opportunity entails the interposition of the issue in the pleadings before acompetent court, such that, if the issue is not raised in the pleadings before that competent court, it cannot be considered at the trial and, if not considered in the trial, it cannot be considered on appeal.52 Records disclose that the issue on the

constitutionality of the subject clause was first raised, not in petitioner's appeal with the NLRC, but in his Motion for Partial Reconsideration with said labor tribunal,53 and reiterated in his Petition forCertiorari before the CA.54 Nonetheless, the issue is deemed seasonably raised because it is not the NLRC but the CA which has the competence to resolve the constitutional issue. The NLRC is a labor tribunal that merely performs a quasi-judicial function – its function in the present case is limited to determining questions of fact to which the legislative policy of R.A. No. 8042 is to be applied and to resolving such questions in accordance with the standards laid down by the law itself;55 thus, its foremost function is to administer and enforce R.A. No. 8042, and not to inquire into the validity of its provisions. The CA, on the other hand, is vested with the power of judicial review or the power to declare unconstitutional a law or a provision thereof, such as the subject clause.56Petitioner's interposition of the constitutional issue before the CA was undoubtedly seasonable. The CA was therefore remiss in failing to take up the issue in its decision.

The third condition that the constitutional issue be critical to the resolution of the case likewise obtains because the monetary claim of petitioner to his lump-sum salary for the entire unexpired portion of his 12-month employment contract, and not just for a period of three months, strikes at the very core of the subject clause.

Thus, the stage is all set for the determination of the constitutionality of the subject clause.

Does the subject clause violate Section 10,Article III of the Constitution on non-impairmentof contracts?

The answer is in the negative.

Petitioner's claim that the subject clause unduly interferes with the stipulations in his contract on the term of his employment and the fixed salary package he will receive57 is not tenable.

Section 10, Article III of the Constitution provides:

No law impairing the obligation of contracts shall be passed.

The prohibition is aligned with the general principle that laws newly enacted have only a prospective operation,58and cannot affect acts or contracts already perfected;59 however, as to laws already in existence, their provisions are read into contracts and deemed a part thereof.60 Thus, the non-impairment clause under Section 10, Article II is limited in application to laws about to be enacted that would in any way derogate from existing acts or contracts by enlarging, abridging or in any manner changing the intention of the parties thereto.


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As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the execution of the employment contract between petitioner and respondents in 1998. Hence, it cannot be argued that R.A. No. 8042, particularly the subject clause, impaired the employment contract of the parties. Rather, when the parties executed their 1998 employment contract, they were deemed to have incorporated into it all the provisions of R.A. No. 8042.

But even if the Court were to disregard the timeline, the subject clause may not be declared unconstitutional on the ground that it impinges on the impairment clause, for the law was enacted in the exercise of the police power of the State to regulate a business, profession or calling, particularly the recruitment and deployment of OFWs, with the noble end in view of ensuring respect for the dignity and well-being of OFWs wherever they may be employed.61 Police power legislations adopted by the State to promote the health, morals, peace, education, good order, safety, and general welfare of the people are generally applicable not only to future contracts but even to those already in existence, for all private contracts must yield to the superior and legitimate measures taken by the State to promote public welfare.62

Does the subject clause violate Section 1,Article III of the Constitution, and Section 18,Article II and Section 3, Article XIII on laboras a protected sector?

The answer is in the affirmative.

Section 1, Article III of the Constitution guarantees:

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 law.

Section 18,63 Article II and Section 3,64 Article XIII accord all members of the labor sector, without distinction as to place of deployment, full protection of their rights and welfare.

To Filipino workers, the rights guaranteed under the foregoing constitutional provisions translate to economic security and parity: all monetary benefits should be equally enjoyed by workers of similar category, while all monetary obligations should be borne by them in equal degree; none should be denied the protection of the laws which is enjoyed by, or spared the burden imposed on, others in like circumstances.65

Such rights are not absolute but subject to the inherent power of Congress to incorporate, when it sees fit, a system of classification into its legislation; however, to be valid, the classification must comply with these requirements: 1) it is based on substantial distinctions; 2) it is germane to the purposes of the law; 3) it is not limited to existing conditions only; and 4) it applies equally to all members of the class.66

There are three levels of scrutiny at which the Court reviews the constitutionality of a classification embodied in a law: a) the deferential or rational basis scrutiny in which the challenged classification needs only be shown to be rationally related to serving a legitimate state interest;67 b) the middle-tier or intermediate scrutiny in which the government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest;68 and c) strict judicial scrutiny69 in which a legislative classification which impermissibly interferes with the exercise of a fundamental right70 or operates to the peculiar disadvantage of a suspect class71 is presumed unconstitutional, and the burden is upon the government to prove that the classification is necessary to achieve a compelling state interest and that it is the least restrictive means to protect such interest.72

Under American jurisprudence, strict judicial scrutiny is triggered by suspect classifications73 based on race74 or gender75 but not when the classification is drawn along income categories.76

It is different in the Philippine setting. In Central Bank (now Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas,77 the constitutionality of a provision in the charter of the Bangko Sentral ng Pilipinas (BSP), a government financial institution (GFI), was challenged for maintaining its rank-and-file employees under the Salary Standardization Law (SSL), even when the rank-and-file employees of other GFIs had been exempted from the SSL by their respective charters. Finding that the disputed provision contained a suspect classification based on salary grade, the Court deliberately employed the standard of strict judicial scrutiny in its review of the constitutionality of said provision. More significantly, it was in this case that the Court revealed the broad outlines of its judicial philosophy, to wit:

Congress retains its wide discretion in providing for a valid classification, and its policies should be accorded recognition and respect by the courts of justice except when they run afoul of the Constitution. The deference stops where the classification violates a fundamental right, or prejudices persons accorded special protection by the Constitution. When these violations arise, this Court must discharge its primary role as the vanguard of constitutional guaranties, and require a stricter and more exacting adherence to constitutional limitations. Rational basis should not suffice.

Admittedly, the view that prejudice to persons accorded special protection by the Constitution requires a stricter judicial scrutiny finds no support in American or English jurisprudence. Nevertheless, these foreign decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive and have been used to support many of our decisions. We should not place undue and fawning reliance upon them and regard them as indispensable mental crutches without which we cannot


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come to our own decisions through the employment of our own endowments. We live in a different ambience and must decide our own problems in the light of our own interests and needs, and of our qualities and even idiosyncrasies as a people, and always with our own concept of law and justice. Our laws must be construed in accordance with the intention of our own lawmakers and such intent may be deduced from the language of each law and the context of other local legislation related thereto. More importantly, they must be construed to serve our own public interest which is the be-all and the end-all of all our laws. And it need not be stressed that our public interest is distinct and different from others.

x x x x

Further, the quest for a better and more "equal" world calls for the use of equal protection as a tool of effective judicial intervention.

Equality is one ideal which cries out for bold attention and action in the Constitution. The Preamble proclaims "equality" as an ideal precisely in protest against crushing inequities in Philippine society. The command to promote social justice in Article II, Section 10, in "all phases of national development," further explicitated in Article XIII, are clear commands to the State to take affirmative action in the direction of greater equality. x x x [T]here is thus in the Philippine Constitution no lack of doctrinal support for a more vigorous state effort towards achieving a reasonable measure of equality.

Our present Constitution has gone further in guaranteeing vital social and economic rights to marginalized groups of society, including labor. Under the policy of social justice, the law bends over backward to accommodate the interests of the working class on the humane justification that those with less privilege in life should have more in law. And the obligation to afford protection to labor is incumbent not only on the legislative and executive branches but also on the judiciary to translate this pledge into a living reality. Social justice calls for the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated.

x x x x

Under most circumstances, the Court will exercise judicial restraint in deciding questions of constitutionality, recognizing the broad discretion given to Congress in exercising its legislative power. Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion would be given deferential treatment.

But if the challenge to the statute is premised on the denial of a fundamental right, or the perpetuation of prejudice against persons favored by the Constitution with special protection, judicial scrutiny ought to be more strict. A weak and watered down view would call for the abdication of this Court’s solemn duty to strike down any law repugnant to the Constitution and the rights it enshrines. This is true

whether the actor committing the unconstitutional act is a private person or the government itself or one of its instrumentalities. Oppressive acts will be struck down regardless of the character or nature of the actor.

x x x x

In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee status. It is akin to a distinction based on economic class and status, with the higher grades as recipients of a benefit specifically withheld from the lower grades. Officers of the BSP now receive higher compensation packages that are competitive with the industry, while the poorer, low-salaried employees are limited to the rates prescribed by the SSL. The implications are quite disturbing: BSP rank-and-file employees are paid the strictly regimented rates of the SSL while employees higher in rank - possessing higher and better education and opportunities for career advancement - are given higher compensation packages to entice them to stay. Considering that majority, if not all, the rank-and-file employees consist of people whose status and rank in life are less and limited, especially in terms of job marketability, it is they - and not the officers - who have the real economic and financial need for the adjustment . This is in accord with the policy of the Constitution "to free the people from poverty, provide adequate social services, extend to them a decent standard of living, and improve the quality of life for all." Any act of Congress that runs counter to this constitutional desideratum deserves strict scrutiny by this Court before it can pass muster. (Emphasis supplied)

Imbued with the same sense of "obligation to afford protection to labor," the Court in the present case also employs the standard of strict judicial scrutiny, for it perceives in the subject clause a suspect classification prejudicial to OFWs.

Upon cursory reading, the subject clause appears facially neutral, for it applies to all OFWs. However, a closer examination reveals that the subject clause has a discriminatory intent against, and an invidious impact on, OFWs at two levels:

First, OFWs with employment contracts of less than one year vis-à-vis OFWs with employment contracts ofone year or more;

Second, among OFWs with employment contracts of more than one year; and

Third, OFWs vis-à-vis local workers with fixed-period employment;

OFWs with employment contracts of less than one year vis-à-vis OFWs with employment contracts of one year or more


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As pointed out by petitioner,78 it was in Marsaman Manning Agency, Inc. v. National Labor Relations Commission79 (Second Division, 1999) that the Court laid down the following rules on the application of the periods prescribed under Section 10(5) of R.A. No. 804, to wit:

A plain reading of Sec. 10 clearly reveals that the choice of which amount to award an illegally dismissed overseas contract worker, i.e., whether his salaries for the unexpired portion of his employment contract or three (3) months’ salary for every year of the unexpired term, whichever is less, comes into play only when the employment contract concerned has a term of at least one (1) year or more. This is evident from the words "for every year of the unexpired term" which follows the words "salaries x x x for three months."To follow petitioners’ thinking that private respondent is entitled to three (3) months salary only simply because it is the lesser amount is to completely disregard and overlook some words used in the statute while giving effect to some. This is contrary to the well-established rule in legal hermeneutics that in interpreting a statute, care should be taken that every part or word thereof be given effect since the law-making body is presumed to know the meaning of the words employed in the statue and to have used them advisedly. Ut res magis valeat quam pereat.80 (Emphasis supplied)

In Marsaman, the OFW involved was illegally dismissed two months into his 10-month contract, but was awarded his salaries for the remaining 8 months and 6 days of his contract.

Prior to Marsaman, however, there were two cases in which the Court made conflicting rulings on Section 10(5). One was Asian Center for Career and Employment System and Services v. National Labor Relations Commission(Second Division, October 1998),81 which involved an OFW who was awarded a two-year employment contract,but was dismissed after working for one year and two months. The LA declared his dismissal illegal and awarded him SR13,600.00 as lump-sum salary covering eight months, the unexpired portion of his contract. On appeal, the Court reduced the award to SR3,600.00 equivalent to his three months’ salary, this being the lesser value, to wit:

Under Section 10 of R.A. No. 8042, a worker dismissed from overseas employment without just, valid or authorized cause is entitled to his salary for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term, whichever is less.

In the case at bar, the unexpired portion of private respondent’s employment contract is eight (8) months. Private respondent should therefore be paid his basic salary corresponding to three (3) months or a total of SR3,600.82

Another was Triple-Eight Integrated Services, Inc. v. National Labor Relations Commission (Third Division, December 1998),83 which involved an OFW (therein respondent Erlinda Osdana) who was originally granted a 12-month contract,

which was deemed renewed for another 12 months. After serving for one year and seven-and-a-half months, respondent Osdana was illegally dismissed, and the Court awarded her salaries for the entire unexpired portion of four and one-half months of her contract.

As the foregoing matrix readily shows, the subject clause classifies OFWs into two categories. The first category includes OFWs with fixed-period employment contracts of less than one year; in case of illegal dismissal, they are entitled to their salaries for the entire unexpired portion of their contract. The second category consists of OFWs with fixed-period employment contracts of one year or more; in case of illegal dismissal, they are entitled to monetary award equivalent to only 3 months of the unexpired portion of their contracts.

The disparity in the treatment of these two groups cannot be discounted. In Skippers, the respondent OFW worked for only 2 months out of his 6-month contract, but was awarded his salaries for the remaining 4 months. In contrast, the respondent OFWs in Oriental and PCL who had also worked for about 2 months out of their 12-month contracts were awarded their salaries for only 3 months of the unexpired portion of their contracts. Even the OFWs involved in Talidano and Univan who had worked for a longer period of 3 months out of their 12-month contracts before being illegally dismissed were awarded their salaries for only 3 months.

To illustrate the disparity even more vividly, the Court assumes a hypothetical OFW-A with an employment contract of 10 months at a monthly salary rate of US$1,000.00 and a hypothetical OFW-B with an employment contract of 15 months with the same monthly salary rate of US$1,000.00. Both commenced work on the same day and under the same employer, and were illegally dismissed after one month of work. Under the subject clause, OFW-A will be entitled to US$9,000.00, equivalent to his salaries for the remaining 9 months of his contract, whereas OFW-B will be entitled to only US$3,000.00, equivalent to his salaries for 3 months of the unexpired portion of his contract, instead of US$14,000.00 for the unexpired portion of 14 months of his contract, as the US$3,000.00 is the lesser amount.

The disparity becomes more aggravating when the Court takes into account jurisprudence that, prior to the effectivity of R.A. No. 8042 on July 14, 1995,97 illegally dismissed OFWs, no matter how long the period of their employment contracts, were entitled to their salaries for the entire unexpired portions of their contracts. The matrix below speaks for itself:

It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract periods or the unexpired portions thereof, were treated alike in terms of the computation of their monetary benefits in case of illegal dismissal. Their claims were subjected to a uniform rule of computation: their basic salaries multiplied by the entire unexpired portion of their employment contracts.


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The enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of computation of the money claims of illegally dismissed OFWs based on their employment periods, in the process singling out one category whose contracts have an unexpired portion of one year or more and subjecting them to the peculiar disadvantage of having their monetary awards limited to their salaries for 3 months or for the unexpired portion thereof, whichever is less, but all the while sparing the other category from such prejudice, simply because the latter's unexpired contracts fall short of one year.

Among OFWs With Employment Contracts of More Than One Year

Upon closer examination of the terminology employed in the subject clause, the Court now has misgivings on the accuracy of the Marsaman interpretation.

The Court notes that the subject clause "or for three (3) months for every year of the unexpired term, whichever is less" contains the qualifying phrases "every year" and "unexpired term." By its ordinary meaning, the word "term" means a limited or definite extent of time.105 Corollarily, that "every year" is but part of an "unexpired term" is significant in many ways: first, the unexpired term must be at least one year, for if it were any shorter, there would be no occasion for such unexpired term to be measured by every year; and second, the original term must be more than one year, for otherwise, whatever would be the unexpired term thereof will not reach even a year. Consequently, the more decisive factor in the determination of when the subject clause "for three (3) months forevery year of the unexpired term, whichever is less" shall apply is not the length of the original contract period as held in Marsaman,106 but the length of the unexpired portion of the contract period -- the subject clause applies in cases when the unexpired portion of the contract period is at least one year, which arithmetically requires that the original contract period be more than one year.

Viewed in that light, the subject clause creates a sub-layer of discrimination among OFWs whose contract periods are for more than one year: those who are illegally dismissed with less than one year left in their contracts shall be entitled to their salaries for the entire unexpired portion thereof, while those who are illegally dismissed with one year or more remaining in their contracts shall be covered by the subject clause, and their monetary benefits limited to their salaries for three months only.

To concretely illustrate the application of the foregoing interpretation of the subject clause, the Court assumes hypothetical OFW-C and OFW-D, who each have a 24-month contract at a salary rate of US$1,000.00 per month. OFW-C is illegally dismissed on the 12th month, and OFW-D, on the 13th month. Considering that there is at least 12 months remaining in the contract period of OFW-C, the subject clause applies to the computation of the latter's monetary benefits. Thus, OFW-C will be entitled, not to

US$12,000,00 or the latter's total salaries for the 12 months unexpired portion of the contract, but to the lesser amount of US$3,000.00 or the latter's salaries for 3 months out of the 12-month unexpired term of the contract. On the other hand, OFW-D is spared from the effects of the subject clause, for there are only 11 months left in the latter's contract period. Thus, OFW-D will be entitled to US$11,000.00, which is equivalent to his/her total salaries for the entire 11-month unexpired portion.

OFWs vis-à-vis Local WorkersWith Fixed-Period Employment

As discussed earlier, prior to R.A. No. 8042, a uniform system of computation of the monetary awards of illegally dismissed OFWs was in place. This uniform system was applicable even to local workers with fixed-term employment.107

The earliest rule prescribing a uniform system of computation was actually Article 299 of the Code of Commerce (1888),108 to wit:

Article 299. If the contracts between the merchants and their shop clerks and employees should have been made of a fixed period, none of the contracting parties, without the consent of the other, may withdraw from the fulfillment of said contract until the termination of the period agreed upon.

Persons violating this clause shall be subject to indemnify the loss and damage suffered, with the exception of the provisions contained in the following articles.

In Reyes v. The Compañia Maritima,109 the Court applied the foregoing provision to determine the liability of a shipping company for the illegal discharge of its managers prior to the expiration of their fixed-term employment. The Court therein held the shipping company liable for the salaries of its managers for the remainder of their fixed-term employment.

There is a more specific rule as far as seafarers are concerned: Article 605 of the Code of Commerce which provides:

Article 605. If the contracts of the captain and members of the crew with the agent should be for a definite period or voyage, they cannot be discharged until the fulfillment of their contracts, except for reasons of insubordination in serious matters, robbery, theft, habitual drunkenness, and damage caused to the vessel or to its cargo by malice or manifest or proven negligence.

Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie,110 in

which the Court held the shipping company liable for the salaries and subsistence allowance of its illegally dismissed employees for the entire unexpired portion of their employment contracts.


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While Article 605 has remained good law up to the present,111 Article 299 of the Code of Commerce was replaced by Art. 1586 of the Civil Code of 1889, to wit:

Article 1586. Field hands, mechanics, artisans, and other laborers hired for a certain time and for a certain work cannot leave or be dismissed without sufficient cause, before the fulfillment of the contract. (Emphasis supplied.)

Citing Manresa, the Court in Lemoine v. Alkan112 read the disjunctive "or" in Article 1586 as a conjunctive "and" so as to apply the provision to local workers who are employed for a time certain although for no particular skill. This interpretation of Article 1586 was reiterated in Garcia Palomar v. Hotel de France Company.113 And in both Lemoine and Palomar, the Court adopted the general principle that in actions for wrongful discharge founded on Article 1586, local workers are entitled to recover damages to the extent of the amount stipulated to be paid to them by the terms of their contract. On the computation of the amount of such damages, the Court in Aldaz v. Gay114 held:

The doctrine is well-established in American jurisprudence, and nothing has been brought to our attention to the contrary under Spanish jurisprudence, that when an employee is wrongfully discharged it is his duty to seek other employment of the same kind in the same community, for the purpose of reducing the damages resulting from such wrongful discharge. However, while this is the general rule, the burden of showing that he failed to make an effort to secure other employment of a like nature, and that other employment of a like nature was obtainable, is upon the defendant. When an employee is wrongfully discharged under a contract of employment his prima facie damage is the amount which he would be entitled to had he continued in such employment until the termination of the period. (Howard vs. Daly, 61 N. Y., 362; Allen vs. Whitlark, 99 Mich., 492; Farrell vs. School District No. 2, 98 Mich., 43.)115 (Emphasis supplied)

On August 30, 1950, the New Civil Code took effect with new provisions on fixed-term employment: Section 2 (Obligations with a Period), Chapter 3, Title I, and Sections 2 (Contract of Labor) and 3 (Contract for a Piece of Work), Chapter 3, Title VIII, Book IV.116 Much like Article 1586 of the Civil Code of 1889, the new provisions of the Civil Code do not expressly provide for the remedies available to a fixed-term worker who is illegally discharged. However, it is noted that in Mackay Radio & Telegraph Co., Inc. v. Rich,117 the Court carried over the principles on the payment of damages underlying Article 1586 of the Civil Code of 1889 and applied the same to a case involving the illegal discharge of a local worker whose fixed-period employment contract was entered into in 1952, when the new Civil Code was already in effect.118

More significantly, the same principles were applied to cases involving overseas Filipino workers whose fixed-term employment contracts were illegally terminated, such as in First Asian Trans & Shipping Agency, Inc. v. Ople,119involving

seafarers who were illegally discharged. In Teknika Skills and Trade Services, Inc. v. National Labor Relations Commission,120 an OFW who was illegally dismissed prior to the expiration of her fixed-period employment contract as a baby sitter, was awarded salaries corresponding to the unexpired portion of her contract. The Court arrived at the same ruling in Anderson v. National Labor Relations Commission,121 which involved a foreman hired in 1988 in Saudi Arabia for a fixed term of two years, but who was illegally dismissed after only nine months on the job -- the Court awarded him salaries corresponding to 15 months, the unexpired portion of his contract. In Asia World Recruitment, Inc. v. National Labor Relations Commission,122 a Filipino working as a security officer in 1989 in Angola was awarded his salaries for the remaining period of his 12-month contract after he was wrongfully discharged. Finally, in Vinta Maritime Co., Inc. v. National Labor Relations Commission,123 an OFW whose 12-month contract was illegally cut short in the second month was declared entitled to his salaries for the remaining 10 months of his contract.

In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who were illegally discharged were treated alike in terms of the computation of their money claims: they were uniformly entitled to their salaries for the entire unexpired portions of their contracts. But with the enactment of R.A. No. 8042, specifically the adoption of the subject clause, illegally dismissed OFWs with an unexpired portion of one year or more in their employment contract have since been differently treated in that their money claims are subject to a 3-month cap, whereas no such limitation is imposed on local workers with fixed-term employment.

The Court concludes that the subject clause contains a suspect classification in that, in the computation of the monetary benefits of fixed-term employees who are illegally discharged, it imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more in their contracts, but none on the claims of other OFWs or local workers with fixed-term employment. The subject clause singles out one classification of OFWs and burdens it with a peculiar disadvantage.

There being a suspect classification involving a vulnerable sector protected by the Constitution, the Court now subjects the classification to a strict judicial scrutiny, and determines whether it serves a compelling state interest through the least restrictive means.

What constitutes compelling state interest is measured by the scale of rights and powers arrayed in the Constitution and calibrated by history.124 It is akin to the paramount interest of the state125 for which some individual liberties must give way, such as the public interest in safeguarding health or maintaining medical standards,126 or in maintaining access to information on matters of public concern.127

In the present case, the Court dug deep into the records but found no compelling state interest that the subject clause may possibly serve.


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The OSG defends the subject clause as a police power measure "designed to protect the employment of Filipino seafarers overseas x x x. By limiting the liability to three months [sic], Filipino seafarers have better chance of getting hired by foreign employers." The limitation also protects the interest of local placement agencies, which otherwise may be made to shoulder millions of pesos in "termination pay."128

The OSG explained further:

Often, placement agencies, their liability being solidary, shoulder the payment of money claims in the event that jurisdiction over the foreign employer is not acquired by the court or if the foreign employer reneges on its obligation. Hence, placement agencies that are in good faith and which fulfill their obligations are unnecessarily penalized for the acts of the foreign employer. To protect them and to promote their continued helpful contribution in deploying Filipino migrant workers, liability for money are reduced under Section 10 of RA 8042.

This measure redounds to the benefit of the migrant workers whose welfare the government seeks to promote. The survival of legitimate placement agencies helps [assure] the government that migrant workers are properly deployed and are employed under decent and humane conditions.129 (Emphasis supplied)

However, nowhere in the Comment or Memorandum does the OSG cite the source of its perception of the state interest sought to be served by the subject clause.

The OSG locates the purpose of R.A. No. 8042 in the speech of Rep. Bonifacio Gallego in sponsorship of House Bill No. 14314 (HB 14314), from which the law originated;130 but the speech makes no reference to the underlying reason for the adoption of the subject clause. That is only natural for none of the 29 provisions in HB 14314 resembles the subject clause.

On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision on money claims, to wit:

Sec. 10. Money Claims. - Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of the complaint, the claim arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas employment including claims for actual, moral, exemplary and other forms of damages.

The liability of the principal and the recruitment/placement agency or any and all claims under this Section shall be joint and several.

Any compromise/amicable settlement or voluntary agreement on any money claims exclusive of damages under this Section shall not be less than fifty percent (50%) of such money claims: Provided, That any installment payments, if applicable, to satisfy any such compromise or voluntary settlement shall not be more than two (2) months. Any compromise/voluntary agreement in violation of this paragraph shall be null and void.

Non-compliance with the mandatory period for resolutions of cases provided under this Section shall subject the responsible officials to any or all of the following penalties:

(1) The salary of any such official who fails to render his decision or resolution within the prescribed period shall be, or caused to be, withheld until the said official complies therewith;

(2) Suspension for not more than ninety (90) days; or

(3) Dismissal from the service with disqualification to hold any appointive public office for five (5) years.

Provided, however, That the penalties herein provided shall be without prejudice to any liability which any such official may have incurred under other existing laws or rules and regulations as a consequence of violating the provisions of this paragraph.

But significantly, Section 10 of SB 2077 does not provide for any rule on the computation of money claims.

A rule on the computation of money claims containing the subject clause was inserted and eventually adopted as the 5th paragraph of Section 10 of R.A. No. 8042. The Court examined the rationale of the subject clause in the transcripts of the "Bicameral Conference Committee (Conference Committee) Meetings on the Magna Carta on OCWs (Disagreeing Provisions of Senate Bill No. 2077 and House Bill No. 14314)." However, the Court finds no discernible state interest, let alone a compelling one, that is sought to be protected or advanced by the adoption of the subject clause.

In fine, the Government has failed to discharge its burden of proving the existence of a compelling state interest that would justify the perpetuation of the discrimination against OFWs under the subject clause.

Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the employment of OFWs by mitigating the solidary liability of placement agencies, such callous and cavalier rationale will have to be rejected. There can never be a justification for any form of government action that alleviates the burden of one sector, but imposes the same burden on another sector, especially when the favored sector is composed of private businesses such as


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placement agencies, while the disadvantaged sector is composed of OFWs whose protection no less than the Constitution commands. The idea that private business interest can be elevated to the level of a compelling state interest is odious.

Moreover, even if the purpose of the subject clause is to lessen the solidary liability of placement agencies vis-a-vis their foreign principals, there are mechanisms already in place that can be employed to achieve that purpose without infringing on the constitutional rights of OFWs.

The POEA Rules and Regulations Governing the Recruitment and Employment of Land-Based Overseas Workers, dated February 4, 2002, imposes administrative disciplinary measures on erring foreign employers who default on their contractual obligations to migrant workers and/or their Philippine agents. These disciplinary measures range from temporary disqualification to preventive suspension. The POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers, dated May 23, 2003, contains similar administrative disciplinary measures against erring foreign employers.

Resort to these administrative measures is undoubtedly the less restrictive means of aiding local placement agencies in enforcing the solidary liability of their foreign principals.

Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of the right of petitioner and other OFWs to equal protection.1avvphi1

Further, there would be certain misgivings if one is to approach the declaration of the unconstitutionality of the subject clause from the lone perspective that the clause directly violates state policy on labor under Section 3,131Article XIII of the Constitution.

While all the provisions of the 1987 Constitution are presumed self-executing,132 there are some which this Court has declared not judicially enforceable, Article XIII being one,133 particularly Section 3 thereof, the nature of which, this Court, in Agabon v. National Labor Relations Commission,134 has described to be not self-actuating:

Thus, the constitutional mandates of protection to labor and security of tenure may be deemed as self-executing in the sense that these are automatically acknowledged and observed without need for any enabling legislation. However, to declare that the constitutional provisions are enough to guarantee the full exercise of the rights embodied therein, and the realization of ideals therein expressed, would be impractical, if not unrealistic. The espousal of such view presents the dangerous tendency of being overbroad and exaggerated. The guarantees of "full protection to labor" and "security of tenure", when examined in isolation, are facially unqualified, and the broadest interpretation possible suggests a blanket shield in favor of labor against any form of removal regardless of circumstance. This interpretation implies an unimpeachable right to continued employment-a

utopian notion, doubtless-but still hardly within the contemplation of the framers. Subsequent legislation is still needed to define the parameters of these guaranteed rights to ensure the protection and promotion, not only the rights of the labor sector, but of the employers' as well. Without specific and pertinent legislation, judicial bodies will be at a loss, formulating their own conclusion to approximate at least the aims of the Constitution.

Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a source of a positive enforceable rightto stave off the dismissal of an employee for just cause owing to the failure to serve proper notice or hearing. As manifested by several framers of the 1987 Constitution, the provisions on social justice require legislative enactments for their enforceability.135 (Emphasis added)

Thus, Section 3, Article XIII cannot be treated as a principal source of direct enforceable rights, for the violation of which the questioned clause may be declared unconstitutional. It may unwittingly risk opening the floodgates of litigation to every worker or union over every conceivable violation of so broad a concept as social justice for labor.

It must be stressed that Section 3, Article XIII does not directly bestow on the working class any actual enforceable right, but merely clothes it with the status of a sector for whom the Constitution urges protection through executive or legislative action and judicial recognition. Its utility is best limited to being an impetus not just for the executive and legislative departments, but for the judiciary as well, to protect the welfare of the working class. And it was in fact consistent with that constitutional agenda that the Court in Central Bank (now Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas, penned by then Associate Justice now Chief Justice Reynato S. Puno, formulated the judicial precept that when the challenge to a statute is premised on the perpetuation of prejudice against persons favored by the Constitution with special protection -- such as the working class or a section thereof -- the Court may recognize the existence of a suspect classification and subject the same to strict judicial scrutiny.

The view that the concepts of suspect classification and strict judicial scrutiny formulated in Central Bank Employee Association exaggerate the significance of Section 3, Article XIII is a groundless apprehension. Central Bank applied Article XIII in conjunction with the equal protection clause. Article XIII, by itself, without the application of the equal protection clause, has no life or force of its own as elucidated in Agabon.

Along the same line of reasoning, the Court further holds that the subject clause violates petitioner's right to substantive due process, for it deprives him of property, consisting of monetary benefits, without any existing valid governmental purpose.136

The argument of the Solicitor General, that the actual purpose of the subject clause of limiting the entitlement of


56

OFWs to their three-month salary in case of illegal dismissal, is to give them a better chance of getting hired by foreign employers. This is plain speculation. As earlier discussed, there is nothing in the text of the law or the records of the deliberations leading to its enactment or the pleadings of respondent that would indicate that there is an existing governmental purpose for the subject clause, or even just a pretext of one.

The subject clause does not state or imply any definitive governmental purpose; and it is for that precise reason that the clause violates not just petitioner's right to equal protection, but also her right to substantive due process under Section 1,137 Article III of the Constitution.

The subject clause being unconstitutional, petitioner is entitled to his salaries for the entire unexpired period of nine months and 23 days of his employment contract, pursuant to law and jurisprudence prior to the enactment of R.A. No. 8042.

On the Third Issue

Petitioner contends that his overtime and leave pay should form part of the salary basis in the computation of his monetary award, because these are fixed benefits that have been stipulated into his contract.

Petitioner is mistaken.

The word salaries in Section 10(5) does not include overtime and leave pay. For seafarers like petitioner, DOLE Department Order No. 33, series 1996, provides a Standard Employment Contract of Seafarers, in which salary is understood as the basic wage, exclusive of overtime, leave pay and other bonuses; whereas overtime pay is compensation for all work "performed" in excess of the regular eight hours, and holiday pay is compensation for any work "performed" on designated rest days and holidays.

By the foregoing definition alone, there is no basis for the automatic inclusion of overtime and holiday pay in the computation of petitioner's monetary award, unless there is evidence that he performed work during those periods. As the Court held in Centennial Transmarine, Inc. v. Dela Cruz,138

However, the payment of overtime pay and leave pay should be disallowed in light of our ruling in Cagampan v. National Labor Relations Commission, to wit:

The rendition of overtime work and the submission of sufficient proof that said was actually performed are conditions to be satisfied before a seaman could be entitled to overtime pay which should be computed on the basis of 30% of the basic monthly salary. In short, the contract provision guarantees the right to overtime pay but the entitlement to such benefit must first be established.

In the same vein, the claim for the day's leave pay for the unexpired portion of the contract is unwarranted since the same is given during the actual service of the seamen.

WHEREFORE, the Court GRANTS the Petition. The subject clause "or for three months for every year of the unexpired term, whichever is less" in the 5th paragraph of Section 10 of Republic Act No. 8042 is DECLAREDUNCONSTITUTIONAL; and the December 8, 2004 Decision and April 1, 2005 Resolution of the Court of Appeals are MODIFIED to the effect that petitioner is AWARDED his salaries for the entire unexpired portion of his employment contract consisting of nine months and 23 days computed at the rate of US$1,400.00 per month.

No costs.

SO ORDERED.

DATU MICHAEL ABAD KIDA v. SENATE659 S 270 (2011)667 S 270 (2012)

Republic of the PhilippinesSupreme Court

Manila

EN BANC

DATU MICHAEL ABAS KIDA,in his personal capacity, and in representation of MAGUINDANAO FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION, INC., HADJI MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T. ODIN, ASRIN TIMBOL JAIYARI, MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE ABDIL, and BASSAM ALUH SAUPI,

Petitioners,

- versus -

SENATE OF THE PHILIPPINES, represented by its President JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, thru SPEAKER FELICIANO BELMONTE, COMMISSION ON ELECTIONS, thru its Chairman, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR., Office of the President Executive Secretary, FLORENCIO ABAD, JR., Secretary of Budget, and ROBERTO TAN, Treasurer of the Philippines,

Respondents.x----------------------------------------------xBASARI D. MAPUPUNO, Petitioner,

- versus -


57

SIXTO BRILLANTES, in his capacity as Chairman of the Commission on Elections, FLORENCIO ABAD, JR. in his capacity as Secretary of the Department of Budget and Management, PACQUITO OCHOA, JR., in his capacity as Executive Secretary, JUAN PONCE ENRILE, in his capacity as Senate President, and FELICIANO BELMONTE, in his capacity as Speaker of the House of Representatives, Respondents.x----------------------------------------------x

REP. EDCEL C. LAGMAN, Petitioner,

- versus -

PAQUITO N. OCHOA, JR., in his capacity as the Executive Secretary, and the COMMISSION ON ELECTIONS, Respondents.x----------------------------------------------x

ALMARIM CENTI TILLAH, DATUCASAN CONDING CANA, and PARTIDO DEMOKRATIKO PILIPINO LAKAS NG BAYAN (PDP-LABAN), Petitioners,

- versus -

THE COMMISSION ON ELECTIONS, through its Chairman, SIXTO BRILLANTES, JR., HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary, HON. FLORENCIO B. ABAD, JR., in his capacity as Secretary of the Department of Budget and Management, and HON. ROBERTO B. TAN, in his capacity as Treasurer of the Philippines, Respondents.x----------------------------------------------x

ATTY. ROMULO B. MACALINTAL, Petitioner,

- versus -

COMMISSION ON ELECTIONS and THE OFFICE OF THE PRESIDENT, through EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents.x----------------------------------------------x

LUIS “BAROK” BIRAOGO,

Petitioner,

- versus -

THE COMMISSION ON ELECTIONS and EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondents.x----------------------------------------------x

JACINTO V. PARAS, Petitioner,

- versus -

EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and the COMMISSION ON ELECTIONS, Respondents.x--------------------------------------------x

MINORITY RIGHTS FORUM, PHILIPPINES, INC., Respondents-Intervenor.

x------------------------------------------------------------------------------------x

D E C I S I O N

BRION, J.: On June 30, 2011, Republic Act (RA) No. 10153,

entitled “An Act Providing for the Synchronization of the Elections in the Autonomous Region in Muslim Mindanao (ARMM) with the National and Local Elections and for Other Purposes” was enacted. The law reset the ARMM elections from the 8th of August 2011, to the second Monday of May 2013 and every three (3) years thereafter, to coincide with the country’s regular national and local elections. The law as well granted the President the power to “appoint officers-in-charge (OICs) for the Office of the Regional Governor, the Regional Vice-Governor, and the Members of the Regional Legislative Assembly, who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office.”

Even before its formal passage, the bills that

became RA No. 10153 already spawned petitions against their validity; House Bill No. 4146 and Senate Bill No. 2756 were challenged in petitions filed with this Court. These petitions multiplied after RA No. 10153 was passed.

Factual Antecedents

The State, through Sections 15 to 22, Article X of the 1987 Constitution, mandated the creation of autonomous


58

regions in Muslim Mindanao and the Cordilleras. Section 15 states:

Section 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures, and other relevant characteristics within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines. Section 18 of the Article, on the other hand,

directed Congress to enact an organic act for these autonomous regions to concretely carry into effect the granted autonomy.

Section 18. The Congress shall enact an organic act for each autonomous region with the assistance and participation of the regional consultative commission composed of representatives appointed by the President from a list of nominees from multisectoral bodies. The organic act shall define the basic structure of government for the region consisting of the executive department and legislative assembly, both of which shall be elective and representative of the constituent political units. The organic acts shall likewise provide for special courts with personal, family and property law jurisdiction consistent with the provisions of this Constitution and national laws.

The creation of the autonomous

region shall be effective when approved by a majority of the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting favorably in such plebiscite shall be included in the autonomous region. On August 1, 1989 or two years after the effectivity

of the 1987 Constitution, Congress acted through Republic Act (RA) No. 6734 entitled “An Act Providing for an Organic Act for the Autonomous Region in Muslim Mindanao.” A plebiscite was held on November 6, 1990 as required by Section 18(2), Article X of RA No. 6734, thus fully establishing the Autonomous Region of Muslim Mindanao (ARMM). The initially assenting provinces were Lanao del Sur, Maguindanao, Sulu and Tawi-tawi. RA No. 6734 scheduled the first regular elections for the regional officials of the ARMM on a date not earlier than 60 days nor later than 90 days after its ratification.

RA No. 9054 (entitled “An Act to Strengthen and Expand the Organic Act for the Autonomous Region in Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, entitled An Act Providing for the Autonomous Region in Muslim Mindanao, as Amended”) was the next legislative act passed. This law provided further refinement in the basic ARMM structure first defined in the original organic act, and reset the regular elections for the ARMM regional officials to the second Monday of September 2001.

Congress passed the next law affecting ARMM – RA No. 9140[1] - on June 22, 2001. This law reset the first regular elections originally scheduled under RA No. 9054, toNovember 26, 2001. It likewise set the plebiscite to ratify RA No. 9054 to not later than August 15, 2001.

RA No. 9054 was ratified in a plebiscite held

on August 14, 2001. The province of Basilan and Marawi City voted to join ARMM on the same date.

RA No. 9333[2] was subsequently passed by Congress to reset the ARMM regional elections to the 2nd Monday of August 2005, and on the same date every 3 years thereafter. Unlike RA No. 6734 and RA No. 9054, RA No. 9333 was not ratified in a plebiscite.

Pursuant to RA No. 9333, the next ARMM regional

elections should have been held on August 8, 2011. COMELEC had begun preparations for these elections and had accepted certificates of candidacies for the various regional offices to be elected. But on June 30, 2011, RA No. 10153 was enacted, resetting the ARMM elections to May 2013, to coincide with the regular national and local elections of the country.

RA No. 10153 originated in the House of

Representatives as House Bill (HB) No. 4146, seeking the postponement of the ARMM elections scheduled on August 8, 2011. On March 22, 2011, the House of Representatives passed HB No. 4146, with one hundred ninety one (191) Members voting in its favor.

After the Senate received HB No. 4146, it adopted

its own version, Senate Bill No. 2756 (SB No. 2756), on June 6, 2011. Thirteen (13) Senators voted favorably for its passage. On June 7, 2011, the House of Representative concurred with the Senate amendments, and on June 30, 2011, the President signed RA No. 10153 into law.

As mentioned, the early challenge to RA No. 10153

came through a petition filed with this Court – G.R. No. 196271[3] - assailing the constitutionality of both HB No. 4146 and SB No. 2756, and challenging the validity of RA No. 9333 as well for non-compliance with the constitutional plebiscite requirement. Thereafter, petitioner Basari Mapupuno inG.R. No. 196305 filed another petition[4] also assailing the validity of RA No. 9333.

With the enactment into law of RA No. 10153, the COMELEC stopped its preparations for the ARMM


59

elections. The law gave rise as well to the filing of the following petitions against its constitutionality:

a) Petition for Certiorari and Prohibition[5] filed by Rep.

Edcel Lagman as a member of the House of Representatives against Paquito Ochoa, Jr. (in his capacity as the Executive Secretary) and the COMELEC, docketed as G.R. No. 197221;

b) Petition for Mandamus and Prohibition[6] filed by Atty. Romulo Macalintal as a taxpayer against the COMELEC, docketed as G.R. No. 197282;

c) Petition for Certiorari and Mandamus, Injunction and Preliminary Injunction[7] filed by Louis “Barok” Biraogo against the COMELEC and Executive Secretary Paquito N. Ochoa, Jr., docketed as G.R. No. 197392; and

d) Petition for Certiorari and Mandamus[8] filed by

Jacinto Paras as a member of the House of Representatives against Executive Secretary Paquito Ochoa, Jr. and the COMELEC, docketed as G.R. No. 197454.

Petitioners Alamarim Centi Tillah and Datu Casan

Conding Cana as registered voters from the ARMM, with the Partido Demokratiko Pilipino Lakas ng Bayan (a political party with candidates in the ARMM regional elections scheduled for August 8, 2011), also filed a Petition for Prohibition and Mandamus[9] against the COMELEC, docketed asG.R. No. 197280, to assail the constitutionality of RA No. 9140, RA No. 9333 and RA No. 10153. Subsequently, Anak Mindanao Party-List, Minority Rights Forum Philippines, Inc. and Bangsamoro Solidarity Movement filed their own Motion for Leave to Admit their Motion for Intervention and Comment-in-Intervention dated July 18, 2011. On July 26, 2011, the Court granted the motion. In the same Resolution, the Court ordered the consolidation of all the petitions relating to the constitutionality of HB No. 4146, SB No. 2756, RA No. 9333, and RA No. 10153. Oral arguments were held on August 9, 2011 and August 16, 2011. Thereafter, the parties were instructed to submit their respective memoranda within twenty (20) days. On September 13, 2011, the Court issued a temporary restraining order enjoining the implementation of RA No. 10153 and ordering the incumbent elective officials of ARMM to continue to perform their functions should these cases not be decided by the end of their term on September 30, 2011.

The Arguments

The petitioners assailing RA No. 9140, RA No. 9333 and RA No. 10153 assert that these laws amend RA No. 9054 and thus, have to comply with the supermajority vote

and plebiscite requirements prescribed under Sections 1 and 3, Article XVII of RA No. 9094 in order to become effective. The petitions assailing RA No. 10153 further maintain that it is unconstitutional for its failure to comply with the three-reading requirement of Section 26(2), Article VI of the Constitution. Also cited as grounds are the alleged violations of the right of suffrage of the people of ARMM, as well as the failure to adhere to the “elective and representative” character of the executive and legislative departments of the ARMM. Lastly, the petitioners challenged the grant to the President of the power to appoint OICs to undertake the functions of the elective ARMM officials until the officials elected under the May 2013 regular elections shall have assumed office. Corrolarily, they also argue that the power of appointment also gave the President the power of control over the ARMM, in complete violation of Section 16, Article X of the Constitution.

The Issues From the parties’ submissions, the following issues were recognized and argued by the parties in the oral arguments of August 9 and 16, 2011:

I. Whether the 1987 Constitution mandates the synchronization of elections

II. Whether the passage of RA No.

10153 violates Section 26(2), Article VI of the 1987 Constitution

III. Whether the passage of RA No. 10153

requires a supermajority vote and plebiscite

A. Does the postponement of

the ARMM regular elections constitute an amendment to Section 7, Article XVIII of RA No. 9054?

B. Does the requirement of a

supermajority vote for amendments or revisions to RA No. 9054 violate Section 1 and Section 16(2), Article VI of the 1987 Constitution and the corollary doctrine on irrepealable laws?

C. Does the requirement of a

plebiscite apply only in the creation of autonomous regions under paragraph 2, Section 18, Article X of the 1987 Constitution?


60

IV. Whether RA No. 10153 violates the autonomy granted to the ARMM

V. Whether the grant of the power to appoint OICs violates:

A. Section 15, Article X of the 1987

Constitution

B. Section 16, Article X of the 1987 Constitution

C. Section 18, Article X of the 1987 Constitution

VI. Whether the proposal to hold special elections is constitutional and legal.

We shall discuss these issues in the order they are presented above.

OUR RULING

We resolve to DISMISS the petitions and

thereby UPHOLD the constitutionality of RA No. 10153 in toto.

I. Synchronization as a recognized constitutional mandate The respondent Office of the Solicitor General (OSG) argues that the Constitution mandates synchronization, and in support of this position, cites Sections 1, 2 and 5, Article XVIII (Transitory Provisions) of the 1987 Constitution, which provides:

Section 1. The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May, 1987.

The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area.

Section 2. The Senators, Members of the House of Representatives and the local officials first elected under this Constitution shall serve until noon of June 30, 1992.

Of the Senators elected in the election in 1992, the first twelve obtaining the highest number of votes shall serve for six year and the remaining twelve for three years.

xxx

Section 5. The six-year term of the incumbent President and Vice President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.

The first regular elections for President and Vice-President under this Constitution shall be held on the second Monday of May, 1992.

We agree with this position. While the Constitution does not expressly state that

Congress has to synchronize national and local elections, the clear intent towards this objective can be gleaned from the Transitory Provisions (Article XVIII) of the Constitution,[10] which show the extent to which the Constitutional Commission, by deliberately making adjustments to the terms of the incumbent officials, sought to attain synchronization of elections.[11]

The objective behind setting a common termination

date for all elective officials, done among others through the shortening the terms of the twelve winning senators with the least number of votes, is to synchronize the holding of all future elections – whether national or local – to once every three years.[12] This intention finds full support in the discussions during the Constitutional Commission deliberations.[13]

These Constitutional Commission exchanges, read with the provisions of the Transitory Provisions of the Constitution, all serve as patent indicators of the constitutional mandate to hold synchronized national and local elections, starting the second Monday of May, 1992 and for all the following elections.

This Court was not left behind in recognizing the

synchronization of the national and local elections as a constitutional mandate. In Osmeña v. Commission on Elections,[14]we explained:

It is clear from the aforequoted

provisions of the 1987 Constitution that the terms of office of Senators, Members of the House of Representatives, the local officials, the President and the Vice-President have been synchronized to end on the same hour, date and year — noon of June 30, 1992.

It is likewise evident from the wording of the above-mentioned Sections that the term of synchronization is used synonymously as the phrase holding simultaneously since this is the precise intent in terminating their Office Tenure on the same day or occasion. This common termination date will synchronize future elections to once every three years


61

(Bernas, the Constitution of the Republic of the Philippines, Vol. II, p. 605).

That the election for Senators, Members of the House of Representatives and the local officials (under Sec. 2, Art. XVIII) will have to be synchronized with the election for President and Vice President (under Sec. 5, Art. XVIII) is likewise evident from the x x x records of the proceedings in the Constitutional Commission. [Emphasis supplied.]

Although called regional elections, the ARMM

elections should be included among the elections to be synchronized as it is a “local” election based on the wording and structure of the Constitution.

A basic rule in constitutional construction is that the

words used should be understood in the sense that they have in common use and given their ordinary meaning, except when technical terms are employed, in which case the significance thus attached to them prevails.[15] As this Court explained in People v. Derilo,[16] “[a]s the Constitution is not primarily a lawyer’s document, its language should be understood in the sense that it may have in common. Its words should be given their ordinary meaning except where technical terms are employed.”

Understood in its ordinary sense, the word “local” refers to something that primarily serves the needs of a particular limited district, often a community or minor political subdivision.[17] Regional elections in the ARMM for the positions of governor, vice-governor and regional assembly representatives obviously fall within this classification, since they pertain to the elected officials who will serve within the limited region of ARMM.

From the perspective of the Constitution, autonomous regions are considered one of the forms of local governments, as evident from Article X of the Constitution entitled “Local Government.” Autonomous regions are established and discussed under Sections 15 to 21 of this Article – the article wholly devoted to Local Government. That an autonomous region is considered a form of local government is also reflected in Section 1, Article X of the Constitution, which provides:

Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao, and theCordilleras as hereinafter provided.

Thus, we find the contention – that the synchronization mandated by the Constitution does not include the regional elections of the ARMM –unmeritorious. We shall refer to synchronization in the

course of our discussions below, as this concept permeates the consideration of the various issues posed in this case and must be recalled time and again for its complete resolution. II. The President’s Certification on the Urgency of RA No. 10153

The petitioners in G.R. No. 197280 also challenge the validity of RA No. 10153 for its alleged failure to comply with Section 26(2), Article VI of the Constitution[18] which provides that before bills passed by either the House or the Senate can become laws, they must pass through three readings on separate days. The exception is when the President certifies to the necessity of the bill’s immediate enactment.

The Court, in Tolentino v. Secretary of Finance,[19] explained the effect of the President’s certification of necessity in the following manner:

The presidential certification dispensed with the requirement not only of printing but also that of reading the bill on separate days. The phrase "except when the President certifies to the necessity of its immediate enactment, etc." in Art. VI, Section 26[2] qualifies the two stated conditions before a bill can become a law: [i] the bill has passed three readings on separate days and [ii] it has been printed in its final form and distributed three days before it is finally approved.

xxx

That upon the certification of a bill by the President, the requirement of three readings on separate days and of printing and distribution can be dispensed with is supported by the weight of legislative practice. For example, the bill defining the certiorari jurisdiction of this Court which, in consolidation with the Senate version, became Republic Act No. 5440, was passed on second and third readings in the House of Representatives on the same day [May 14, 1968] after the bill had been certified by the President as urgent.

In the present case, the records show that the

President wrote to the Speaker of the House of Representatives to certify the necessity of the immediate enactment of a law synchronizing the ARMM elections with the national and local elections.[20] Following our Tolentino ruling, the President’s certification exempted both the House and the Senate from having to comply with the three separate readings requirement.


62

On the follow-up contention that no necessity existed for the immediate enactment of these bills since there was no public calamity or emergency that had to be met, again we hark back to our ruling in Tolentino:

The sufficiency of the factual basis of the suspension of the writ of habeas corpus or declaration of martial law Art. VII, Section 18, or the existence of a national emergency justifying the delegation of extraordinary powers to the President under Art. VI, Section 23(2) is subject to judicial review because basic rights of individuals may be of hazard. But the factual basis of presidential certification of bills, which involves doing away with procedural requirements designed to insure that bills are duly considered by members of Congress, certainly should elicit a different standard of review. [Emphasis supplied.]

The House of Representatives and the Senate – in the exercise of their legislative discretion – gave full recognition to the President’s certification and promptly enacted RA No. 10153. Under the circumstances, nothing short of grave abuse of discretion on the part of the two houses of Congress can justify our intrusion under our power of judicial review.[21]

The petitioners, however, failed to provide us with

any cause or justification for this course of action. Hence, while the judicial department and this Court are not bound by the acceptance of the President's certification by both the House of Representatives and the Senate, prudent exercise of our powers and respect due our co-equal branches of government in matters committed to them by the Constitution, caution a stay of the judicial hand.[22]

In any case, despite the President’s certification,

the two-fold purpose that underlies the requirement for three readings on separate days of every bill must always be observed to enable our legislators and other parties interested in pending bills to intelligently respond to them. Specifically, the purpose with respect to Members of Congress is: (1) to inform the legislators of the matters they shall vote on and (2) to give them notice that a measure is in progress through the enactment process.[23]

We find, based on the records of the deliberations

on the law, that both advocates and the opponents of the proposed measure had sufficient opportunities to present their views. In this light, no reason exists to nullify RA No. 10153 on the cited ground.

III. A. RA No. 9333 and RA No. 10153 are not

amendments to RA No. 9054

The effectivity of RA No. 9333 and RA No. 10153 has also been challenged because they did not comply with Sections 1 and 3, Article XVII of RA No. 9054 in amending this law. These provisions require:

Section 1. Consistent with the provisions of the Constitution, this Organic Act may be reamended or revised by the Congress of the Philippines upon a vote of two-thirds (2/3) of the Members of the House of Representatives and of the Senate voting separately.

Section 3. Any amendment to or revision of this Organic Act shall become effective only when approved by a majority of the vote cast in a plebiscite called for the purpose, which shall be held not earlier than sixty (60) days or later than ninety (90) days after the approval of such amendment or revision. We find no merit in this contention. In the first place, neither RA No. 9333 nor RA No.

10153 amends RA No. 9054. As an examination of these laws will show, RA No. 9054 only provides for the schedule of the first ARMM elections and does not fix the date of the regular elections. A need therefore existed for the Congress to fix the date of the subsequent ARMM regular elections, which it did by enacting RA No. 9333 and thereafter, RA No. 10153. Obviously, these subsequent laws – RA No. 9333 and RA No. 10153 – cannot be considered amendments to RA No. 9054 as they did not change or revise any provision in the latter law; they merely filled in a gap in RA No. 9054 or supplemented the law by providing the date of the subsequent regular elections.

This view – that Congress thought it best to leave the determination of the date of succeeding ARMM elections to legislative discretion – finds support in ARMM’s recent history.

To recall, RA No. 10153 is not the first law passed

that rescheduled the ARMM elections. The First Organic Act – RA No. 6734 – not only did not fix the date of the subsequent elections; it did not even fix the specific date of the first ARMM elections,[24] leaving the date to be fixed in another legislative enactment. Consequently, RA No. 7647,[25] RA No. 8176,[26] RA No. 8746,[27] RA No. 8753,[28] and RA No. 9012[29] were all enacted by Congress to fix the dates of the ARMM elections. Since these laws did not change or modify any part or provision of RA No. 6734, they were not amendments to this latter law. Consequently, there was no need to submit them to any plebiscite for ratification.

The Second Organic Act – RA No. 9054 – which

lapsed into law on March 31, 2001, provided that the first elections would be held on the second Monday of September 2001. Thereafter, Congress passed RA No. 9140[30] to reset the date of the ARMM


63

elections. Significantly, while RA No. 9140 also scheduled the plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new date of the ARMM regional elections fixed in RA No. 9140 was not among the provisions ratified in the plebiscite held to approve RA No. 9054. Thereafter, Congress passed RA No. 9333,[31] which further reset the date of the ARMM regional elections. Again, this law was not ratified through a plebiscite.

From these legislative actions, we see the clear

intention of Congress to treat the laws which fix the date of the subsequent ARMM elections as separate and distinct from the Organic Acts. Congress only acted consistently with this intent when it passed RA No. 10153 without requiring compliance with the amendment prerequisites embodied in Section 1 and Section 3, Article XVII of RA No. 9054. III. B. Supermajority voting requirement unconstitutional

for giving RA No. 9054 the character of an irrepealable law

Even assuming that RA No. 9333 and RA No.

10153 did in fact amend RA No. 9054, the supermajority (2/3) voting requirement required under Section 1, Article XVII of RA No. 9054[32] has to be struck down for giving RA No. 9054 the character of an irrepealable law by requiring more than what the Constitution demands.

Section 16(2), Article VI of the Constitution provides

that a “majority of each House shall constitute a quorum to do business.” In other words, as long as majority of the members of the House of Representatives or the Senate are present, these bodies have the quorum needed to conduct business and hold session. Within a quorum, a vote of majority is generally sufficient to enact laws or approve acts.

In contrast, Section 1, Article XVII of RA No. 9054

requires a vote of no less than two-thirds (2/3) of the Members of the House of Representatives and of the Senate, voting separately, in order to effectively amend RA No. 9054. Clearly, this 2/3 voting requirement is higher than what the Constitution requires for the passage of bills, and served to restrain the plenary powers of Congress to amend, revise or repeal the laws it had passed. The Court’s pronouncement in City of Davao v. GSIS[33] on this subject best explains the basis and reason for the unconstitutionality:

Moreover, it would be

noxious anathema to democratic principles for a legislative body to have the ability to bind the actions of future legislative body, considering that both assemblies are regarded with equal footing, exercising as they do the same plenary powers. Perpetual infallibility is not one of the attributes desired in a legislative body, and a legislature which attempts to forestall future amendments or repeals of its enactments labors under delusions of omniscience.

xxx

A state legislature has a plenary law-

making power over all subjects, whether pertaining to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be exercised at the same session at which the original act was passed; and even while a bill is in its progress and before it becomes a law. This legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes.[34] (Emphasis ours.)

Thus, while a supermajority is not a total ban

against a repeal, it is a limitation in excess of what the Constitution requires on the passage of bills and is constitutionally obnoxious because it significantly constricts the future legislators’ room for action and flexibility.III. C. Section 3, Article XVII of RA No. 9054 excessively

enlarged the plebiscite requirement found in Section 18, Article X of the Constitution

The requirements of RA No. 9054 not only required

an unwarranted supermajority, but enlarged as well the plebiscite requirement, as embodied in its Section 3, Article XVII of that Act. As we did on the supermajority requirement, we find the enlargement of the plebiscite requirement required under Section 18, Article X of the Constitution to be excessive to point of absurdity and, hence, a violation of the Constitution.

Section 18, Article X of the Constitution states that

the plebiscite is required only for the creation of autonomous regions and for determining which provinces, cities and geographic areas will be included in the autonomous regions. While the settled rule is that amendments to the Organic Act have to comply with the plebiscite requirement in order to become effective,[35] questions on the extent of the matters requiring ratification may unavoidably arise because of the seemingly general terms of the Constitution and the obvious absurdity that would result if a plebiscite were to be required for every statutory amendment.

Section 18, Article X of the Constitution plainly

states that “The creation of the autonomous region shall be effective when approved by the majority of the votes case by the constituent units in a plebiscite called for the purpose.” With these wordings as standard, we interpret the


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requirement to mean that only amendments to, or revisions of, the Organic Act constitutionally-essential to the creation of autonomous regions – i.e., those aspects specifically mentioned in the Constitution which Congress must provide for in the Organic Act – require ratification through a plebiscite. These amendments to the Organic Act are those that relate to: (a) the basic structure of the regional government; (b) the region’s judicial system, i.e., the special courts with personal, family, and property law jurisdiction; and, (c) the grant and extent of the legislative powers constitutionally conceded to the regional government under Section 20, Article X of the Constitution.[36]

The date of the ARMM elections does not fall under

any of the matters that the Constitution specifically mandated Congress to provide for in the Organic Act. Therefore, even assuming that the supermajority votes and the plebiscite requirements are valid, any change in the date of elections cannot be construed as a substantial amendment of the Organic Act that would require compliance with these requirements.

IV. The synchronization issue

As we discussed above, synchronization of national

and local elections is a constitutional mandate that Congress must provide for and this synchronization must include the ARMM elections. On this point, an existing law in fact already exists – RA No. 7166 – as the forerunner of the current RA No. 10153. RA No. 7166 already provides for the synchronization of local elections with the national and congressional elections. Thus, what RA No. 10153 provides is an old matter for local governments (with the exception ofbarangay and Sanggunian Kabataan elections where the terms are not constitutionally provided) and is technically a reiteration of what is already reflected in the law, given that regional elections are in reality local elections by express constitutional recognition.[37]

To achieve synchronization,

Congress necessarily has to reconcile the schedule of the ARMM’s regular elections (which should have been held in August 2011 based on RA No. 9333) with the fixed schedule of the national and local elections (fixed by RA No. 7166 to be held in May 2013).

During the oral arguments, the Court identified the

three options open to Congress in order to resolve this problem. These options are: (1) to allow the elective officials in the ARMM to remain in office in a hold over capacity, pursuant to Section 7(1), Article VII of RA No. 9054, until those elected in the synchronized elections assume office;[38] (2) to hold special elections in the ARMM, with the terms of those elected to expire when those elected in the synchronized elections assume office; or (3) to authorize the President to appoint OICs, pursuant to Section 3 of RA No. 10153, also until those elected in the synchronized elections assume office.

As will be abundantly clear in the discussion below,

Congress, in choosing to grant the President the power to

appoint OICs, chose the correct option and passed RA No. 10153 as a completely valid law. V. The Constitutionality of RA No. 10153

A. Basic Underlying Premises To fully appreciate the available options, certain

underlying material premises must be fully understood. The first is the extent of the powers of Congress to legislate; thesecond is the constitutional mandate for the synchronization of elections; and the third is on the concept of autonomy as recognized and established under the 1987 Constitution.

The grant of legislative power to Congress is broad,

general and comprehensive.[39] The legislative body possesses plenary power for all purposes of civil government.[40]Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the Constitution has lodged it elsewhere.[41] Except as limited by the Constitution, either expressly or impliedly, legislative power embraces all subjects and extends to all matters of general concern or common interest.[42]

The constitutional limitations on legislative power

are either express or implied. The express limitations are generally provided in some provisions of the Declaration of Principles and State Policies (Article 2) and in the provisions Bill of Rights (Article 3). Other constitutional provisions (such as the initiative and referendum clause of Article 6, Sections 1 and 32, and the autonomy provisions of Article X) provide their own express limitations. The implied limitations are found “in the evident purpose which was in view and the circumstances and historical events which led to the enactment of the particular provision as a part of organic law.”[43]

The constitutional provisions on autonomy –

specifically, Sections 15 to 21 of Article X of the Constitution – constitute express limitations on legislative power as they define autonomy, its requirements and its parameters, thus limiting what is otherwise the unlimited power of Congress to legislate on the governance of the autonomous region.

Of particular relevance to the issues of the present

case are the limitations posed by the prescribed basic structure of government – i.e., that the government must have an executive department and a legislative assembly, both of which must be elective and representative of the constituent political units; national government, too, must not encroach on the legislative powers granted under Section 20, Article X. Conversely and as expressly reflected in Section 17, Article X, “all powers and functions not granted by this Constitution or by law to the autonomous regions shall be vested in the National Government.”

The totality of Sections 15 to 21 of Article X should

likewise serve as a standard that Congress must observe in dealing with legislation touching on the affairs of the autonomous regions. The terms of these sections leave no


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doubt on what the Constitution intends – the idea of self-rule or self-government, in particular, the power to legislate on a wide array of social, economic and administrative matters. But equally clear under these provisions are the permeating principles of national sovereignty and the territorial integrity of the Republic, as expressed in the above-quoted Section 17 and in Section 15. [44] In other words, the Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium et imperio[45] in the relationship between the national and the regional governments.

In relation with synchronization, both autonomy and

the synchronization of national and local elections are recognized and established constitutional mandates, with one being as compelling as the other. If their compelling force differs at all, the difference is in their coverage; synchronization operates on and affects the whole country, while regional autonomy – as the term suggests – directly carries a narrower regional effect although its national effect cannot be discounted.

These underlying basic concepts characterize the

powers and limitations of Congress when it acted on RA No. 10153. To succinctly describe the legal situation that faced Congress then, its decision to synchronize the regional elections with the national, congressional and all other local elections (save for barangay and sangguniang kabataan elections) left it with the problem of how to provide the ARMM with governance in the intervening period between the expiration of the term of those elected in August 2008 and the assumption to office – twenty-one (21) months away – of those who will win in the synchronized elections on May 13, 2013.

The problem, in other words, was for interim

measures for this period, consistent with the terms of the Constitution and its established supporting jurisprudence, and with the respect due to the concept of autonomy. Interim measures, to be sure, is not a strange phenomenon in the Philippine legal landscape. The Constitution’s Transitory Provisions themselves collectively provide measures for transition from the old constitution to the new[46] and for the introduction of new concepts. [47] As previously mentioned, the adjustment of elective terms and of elections towards the goal of synchronization first transpired under the Transitory Provisions. The adjustments, however, failed to look far enough or deeply enough, particularly into the problems that synchronizing regional autonomous elections would entail; thus, the present problem is with us today.

The creation of local government units also

represents instances when interim measures are required. In the creation of Quezon del Sur[48] and Dinagat Islands,[49] the creating statutes authorized the President to appoint an interim governor, vice-governor and members of the sangguniang panlalawigan although these positions are essentially elective in character; the appointive officials were to serve until a new set of provincial officials shall have been elected and qualified.[50] A similar authority to appoint is

provided in the transition of a local government from a sub-province to a province.[51]

In all these, the need for interim measures is

dictated by necessity; out-of-the-way arrangements and approaches were adopted or used in order to adjust to the goal or objective in sight in a manner that does not do violence to the Constitution and to reasonably accepted norms. Under these limitations, the choice of measures was a question of wisdom left to congressional discretion.

To return to the underlying basic concepts, these

concepts shall serve as the guideposts and markers in our discussion of the options available to Congress to address the problems brought about by the synchronization of the ARMM elections, properly understood as interim measures that Congress had to provide. The proper understanding of the options as interim measures assume prime materiality as it is under these terms that the passage of RA No. 10153 should be measured, i.e., given the constitutional objective of synchronization that cannot legally be faulted, did Congress gravely abuse its discretion or violate the Constitution when it addressed through RA No. 10153 the concomitant problems that the adjustment of elections necessarily brought with it?

B. Holdover Option is Unconstitutional

We rule out the first option – holdover for those who were elected in executive and legislative positions in the ARMM during the 2008-2011 term – as an option that Congress could have chosen because a holdover violates Section 8, Article X of the Constitution. This provision states:

Section 8. The term of office of

elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. [emphases ours]

Since elective ARMM officials are local officials, they are covered and bound by the three-year term limit prescribed by the Constitution; they cannot extend their term through a holdover. As this Court put in Osmeña v. COMELEC:[52]

It is not competent for the

legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the constitution has in effect or by clear implication prescribed the term and when the Constitution fixes the day on which the official term shall begin, there is no legislative authority to continue the office beyond that period, even though the successors fail to qualify within the time.


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In American Jurisprudence it has been stated as follows:

“It has been

broadly stated that the legislature cannot, by an act postponing the election to fill an office the term of which is limited by the Constitution, extend the term of the incumbent beyond the period as limited by the Constitution.” [Emphasis ours.]

Independently of the Osmeña ruling, the primacy of

the Constitution as the supreme law of the land dictates that where the Constitution has itself made a determination or given its mandate, then the matters so determined or mandated should be respected until the Constitution itself is changed by amendment or repeal through the applicable constitutional process. A necessary corollary is that none of the three branches of government can deviate from the constitutional mandate except only as the Constitution itself may allow.[53] If at all, Congress may only pass legislation filing in details to fully operationalize the constitutional command or to implement it by legislation if it is non-self-executing; this Court, on the other hand, may only interpret the mandate if an interpretation is appropriate and called for.[54]

In the case of the terms of local officials, their term has been fixed clearly and unequivocally, allowing no room for any implementing legislation with respect to the fixed term itself and no vagueness that would allow an interpretation from this Court. Thus, the term of three years for local officials should stay at three (3) years as fixed by the Constitution and cannot be extended by holdover by Congress. If it will be claimed that the holdover period is effectively another term mandated by Congress, the net result is for Congress to create a new term and to appoint the occupant for the new term. This view – like the extension of the elective term – is constitutionally infirm because Congress cannot do indirectly what it cannot do directly, i.e., to act in a way that would effectively extend the term of the incumbents. Indeed, if acts that cannot be legally done directly can be done indirectly, then all laws would be illusory.[55]Congress cannot also create a new term and effectively appoint the occupant of the position for the new term. This is effectively an act of appointment by Congress and an unconstitutional intrusion into the constitutional appointment power of the President.[56] Hence, holdover – whichever way it is viewed – is a constitutionally infirm option that Congress could not have undertaken.

Jurisprudence, of course, is not without examples of cases where the question of holdover was brought before, and given the imprimatur of approval by, this Court. The present case though differs significantly from past cases with contrary rulings, particularly from Sambarani v. COMELEC,[57] Adap v. Comelec,[58] and Montesclaros v. Comelec,[59] where the Court ruled that the elective officials could hold on to their positions in a hold over capacity.

All these past cases refer to

elective barangay or sangguniang kabataan officials whose terms of office are not explicitly provided for in the Constitution; the present case, on the other hand, refers to local elective officials – the ARMM Governor, the ARMM Vice-Governor, and the members of the Regional Legislative Assembly – whose terms fall within the three-year term limit set by Section 8, Article X of the Constitution. Because of their constitutionally limited term, Congress cannot legislate an extension beyond the term for which they were originally elected.

Even assuming that holdover is constitutionally

permissible, and there had been statutory basis for it (namely Section 7, Article VII of RA No. 9054) in the past,[60] we have to remember that the rule of holdover can only apply as an available option where no express or implied legislative intent to the contrary exists; it cannot apply where such contrary intent is evident.[61]

Congress, in passing RA No. 10153, made it

explicitly clear that it had the intention of suppressing the holdover rule that prevailed under RA No. 9054 by completely removing this provision. The deletion is a policy decision that is wholly within the discretion of Congress to make in the exercise of its plenary legislative powers; this Court cannotpass upon questions of wisdom, justice or expediency of legislation,[62] except where an attendant unconstitutionality or grave abuse of discretion results.

C. The COMELEC has no authority to order special elections

Another option proposed by the petitioner in G.R.

No. 197282 is for this Court to compel COMELEC to immediately conduct special elections pursuant to Section 5 and 6 of Batas Pambansa Bilang (BP) 881.

The power to fix the date of elections is essentially legislative in nature, as evident from, and exemplified by, the following provisions of the Constitution:

Section 8, Article VI, applicable to the legislature,

provides:

Section 8. Unless otherwise provided by law, the regular election of the Senators and the Members of the House of Representatives shall be held on the second Monday of May. [Emphasis ours]


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Section 4(3), Article VII, with the same tenor but applicable solely to the President and Vice-President, states:

xxxx

Section 4. xxx Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May. [Emphasis ours]

while Section 3, Article X, on local government, provides:

Section 3. The Congress shall enact a local government code which shall provide for xxx the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials[.] [Emphases ours] These provisions support the conclusion that no

elections may be held on any other date for the positions of President, Vice President, Members of Congress and local officials, except when so provided by another Act of Congress, or upon orders of a body or officer to whom Congress may have delegated either the power or the authority to ascertain or fill in the details in the execution of that power.[63]

Notably, Congress has acted on the ARMM

elections by postponing the scheduled August 2011 elections and setting another date – May 13, 2011 – for regional elections synchronized with the presidential, congressional and other local elections. By so doing, Congress itself has made a policy decision in the exercise of its legislative wisdom that it shall not call special elections as an adjustment measure in synchronizing the ARMM elections with the other elections.

After Congress has so acted, neither the Executive

nor the Judiciary can act to the contrary by ordering special elections instead at the call of the COMELEC. This Court, particularly, cannot make this call without thereby supplanting the legislative decision and effectively legislating. To be sure, the Court is not without the power to declare an act of Congress null and void for being unconstitutional or for having been exercised in grave abuse of discretion.[64] But our power rests on very narrow ground and is merely to annul a contravening act of Congress; it is not to supplant the decision of Congress nor to mandate what Congress itself should have done in the exercise of its legislative powers. Thus, contrary to what the petition in G.R. No. 197282 urges, we cannot compel COMELEC to call for special elections.

Furthermore, we have to bear in mind that the constitutional power of the COMELEC, in contrast with the power of Congress to call for, and to set the date of, elections, is limited to enforcing and administering all laws and regulations relative to the conduct of an election.

[65] Statutorily, COMELEC has no power to call for the holding of special elections unless pursuant to a specific statutory grant. True, Congress did grant, via Sections 5 and 6 of BP 881, COMELEC with the power to postpone elections to another date. However, this power is limited to, and can only be exercised within, the specific terms and circumstances provided for in the law. We quote:

Section 5. Postponement of election. - When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision, the Commission, motu proprio or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone the election therein to a date which should be reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause for such postponement or suspension of the election or failure to elect.

Section 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. [Emphasis ours] A close reading of Section 5 of BP 881 reveals that

it is meant to address instances where elections have


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already been scheduled to take place but have to bepostponed because of (a) violence, (b) terrorism, (c) loss or destruction of election paraphernalia or records, (d) force majeure, and (e) other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision. Under the principle of ejusdem generis, the term “analogous causes” will be restricted to those unforeseen or unexpected events that prevent the holding of the scheduled elections. These “analogous causes” are further defined by the phrase “of such nature that the holding of a free, orderly and honest election should become impossible.”

Similarly, Section 6 of BP 881 applies only to those

situations where elections have already been scheduled but do not take place because of (a) force majeure, (b)violence, (c) terrorism, (d) fraud, or (e) other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect. As in Section 5 of BP 881, Section 6 addresses instances where the elections do not occur or had to be suspended because of unexpectedand unforeseen circumstances.

In the present case, the postponement of the

ARMM elections is by law – i.e., by congressional policy – and is pursuant to the constitutional mandate of synchronization of national and local elections. By no stretch of the imagination can these reasons be given the same character as the circumstances contemplated by Section 5 or Section 6 of BP 881, which all pertain to extralegal causes that obstruct the holding of elections. Courts, to be sure, cannot enlarge the scope of a statute under the guise of interpretation, nor include situations not provided nor intended by the lawmakers.[66] Clearly, neither Section 5 nor Section 6 of BP 881 can apply to the present case and this Court has absolutely no legal basis to compel the COMELEC to hold special elections.

D. The Court has no power to shorten the terms

of elective officials

Even assuming that it is legally permissible for the

Court to compel the COMELEC to hold special elections, no legal basis likewise exists to rule that the newly elected ARMM officials shall hold office only until the ARMM officials elected in the synchronized elections shall have assumed office.

In the first place, the Court is not empowered to adjust the terms of elective officials. Based on the Constitution, the power to fix the term of office of elective officials, which can be exercised only in the case of barangay officials,[67] is specifically given to Congress. Even Congress itself may be denied such power, as shown when the Constitution shortened the terms of twelve

Senators obtaining the least votes,[68] and extended the terms of the President and the Vice-President [69] in order to synchronize elections; Congress was not granted this same power. The settled rule is that terms fixed by the Constitution cannot be changed by mere statute. [70] More particularly, not even Congress and certainly not this Court, has the authority to fix the terms of elective local officials in the ARMM for less, or more, than the constitutionally mandated three years[71] as this tinkering would directly contravene Section 8, Article X of the Constitution as we ruled in Osmena.

Thus, in the same way that the term of elective ARMM officials cannot be extended through a holdover, the term cannot be shortened by putting an expiration date earlier than the three (3) years that the Constitution itself commands. This is what will happen – a term of less than two years – if a call for special elections shall prevail. In sum, while synchronization is achieved, the result is at the cost of a violation of an express provision of the Constitution.

Neither we nor Congress can opt to shorten the tenure of those officials to be elected in the ARMM elections instead of acting on their term (where the “term” means the time during which the officer may claim to hold office as of right and fixes the interval after which the several incumbents shall succeed one another, while the “tenure” represents the term during which the incumbent actually holds the office).[72] As with the fixing of the elective term, neither Congress nor the Court has any legal basis to shorten the tenure of elective ARMM officials. They would commit an unconstitutional act and gravely abuse their discretion if they do so.

E. The President’s Power to Appoint OICs

The above considerations leave only Congress’ chosen interim measure – RA No. 10153 and the appointment by the President of OICs to govern the ARMM during the pre-synchronization period pursuant to Sections 3, 4 and 5 of this law – as the only measure that Congress can make. This choice itself, however, should be examined for any attendant constitutional infirmity.

At the outset, the power to appoint is essentially

executive in nature, and the limitations on or qualifications to the exercise of this power should be strictly construed; these limitations or qualifications must be clearly stated in order to be recognized.[73] The appointing power is embodied in Section 16, Article VII of the Constitution, which states:

Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall


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also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. [emphasis ours]

This provision classifies into four groups the officers

that the President can appoint. These are: First, the heads of the executive departments;

ambassadors; other public ministers and consuls; officers of the Armed Forces of the Philippines, from the rank of colonel or naval captain; and other officers whose appointments are vested in the President in this Constitution;

Second, all other officers of the government whose

appointments are not otherwise provided for by law; Third, those whom the President may be

authorized by law to appoint; and Fourth, officers lower in rank whose appointments

the Congress may by law vest in the President alone.[74]

Since the President’s authority to appoint OICs emanates from RA No. 10153, it falls under the third group of officials that the President can appoint pursuant to Section 16, Article VII of the Constitution. Thus, the assailed law facially rests on clear constitutional basis.

If at all, the gravest challenge posed by the petitions

to the authority to appoint OICs under Section 3 of RA No. 10153 is the assertion that the Constitution requires that the ARMM executive and legislative officials to be “elective and representative of the constituent political units.” This requirement indeed is an express limitation whose non-observance in the assailed law leaves the appointment of OICs constitutionally defective.

After fully examining the issue, we hold that this

alleged constitutional problem is more apparent than real and becomes very real only if RA No. 10153 were to bemistakenly read as a law that changes the elective and representative character of ARMM positions. RA No. 10153, however, does not in any way amend what the organic law of the ARMM (RA No. 9054) sets outs in terms of structure of governance. What RA No. 10153 in fact only does is to “appoint officers-in-charge for the Office of the Regional Governor, Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office.” This power is far different from appointing elective ARMM officials for the abbreviated term ending on the assumption to office of the officials elected in the May 2013 elections.

As we have already established in our discussion of

the supermajority and plebiscite requirements, the legal reality is that RA No. 10153 did not amend RA No. 9054. RA No. 10153, in fact, provides only for synchronization of elections and for the interim measures that must in the meanwhile prevail. And this is how RA No. 10153 should be read – in the manner it was written and based on its unambiguous facial terms.[75] Aside from its order for synchronization, it is purely and simply an interim measure responding to the adjustments that the synchronization requires.

Thus, the appropriate question to ask is whether the

interim measure is an unreasonable move for Congress to adopt, given the legal situation that the synchronization unavoidably brought with it. In more concrete terms and based on the above considerations, given the plain unconstitutionality of providing for a holdover and the unavailability of constitutional possibilities for lengthening or shortening the term of the elected ARMM officials, is the choice of the President’s power to appoint – for a fixed and specific period as an interim measure, and as allowed under Section 16, Article VII of the Constitution – an unconstitutional or unreasonable choice for Congress to make?

Admittedly, the grant of the power to the

President under other situations or where the power of appointment would extend beyond the adjustment period for synchronization would be to foster a government that is not “democratic and republican.” For then, the people’s right to choose the leaders to govern them may be said to besystemically withdrawn to the point of fostering an undemocratic regime. This is the grant that would frontally breach the “elective and representative” governance requirement of Section 18, Article X of the Constitution.

But this conclusion would not be true under the very

limited circumstances contemplated in RA No. 10153 where the period is fixed and, more importantly, the terms of governance – both under Section 18, Article X of the Constitution and RA No. 9054 – will not systemically be touched nor affected at all. To repeat what has previously been said, RA No. 9054 will govern unchanged and continuously, with full effect in accordance with the Constitution, save only for the interim and temporary measures that synchronization of elections requires.

Viewed from another perspective, synchronization

will temporarily disrupt the election process in a local community, the ARMM, as well as the community’s choice of leaders, but this will take place under a situation of necessity and as an interim measure in the manner that interim measures have been adopted and used in the creation of local government units[76] and the adjustments of sub-provinces to the status of provinces.[77] These measures, too, are used in light of the wider national demand for the synchronization of elections (considered vis-à-vis the regional interests involved). The adoption of these measures, in other words, is no different from the exercise


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by Congress of the inherent police power of the State, where one of the essential tests is the reasonableness of the interim measure taken in light of the given circumstances.

Furthermore, the “representative” character of the

chosen leaders need not necessarily be affected by the appointment of OICs as this requirement is really a function of the appointment process; only the “elective” aspect shall be supplanted by the appointment of OICs. In this regard, RA No. 10153 significantly seeks to address concerns arising from the appointments by providing, under Sections 3, 4 and 5 of the assailed law, concrete terms in the Appointment of OIC, the Manner and Procedure of Appointing OICs, and their Qualifications.

Based on these considerations, we hold that RA

No. 10153 – viewed in its proper context – is a law that is not violative of the Constitution (specifically, its autonomy provisions), and one that is reasonable as well under the circumstances.

VI. Other Constitutional Concerns

Outside of the above concerns, it has been argued

during the oral arguments that upholding the constitutionality of RA No. 10153 would set a dangerous precedent of giving the President the power to cancel elections anywhere in the country, thus allowing him to replace elective officials with OICs.

This claim apparently misunderstands that an across-the-board cancellation of elections is a matter for Congress, not for the President, to address. It is a power that falls within the powers of Congress in the exercise of its legislative powers. Even Congress, as discussed above, is limited in what it can legislatively undertake with respect to elections.

If RA No. 10153 cancelled the regular August 2011

elections, it was for a very specific and limited purpose – the synchronization of elections. It was a temporary means to a lasting end – the synchronization of elections. Thus, RA No. 10153 and the support that the Court gives this legislation are likewise clear and specific, and cannot be transferred or applied to any other cause for the cancellation of elections. Any other localized cancellation of elections and call for special elections can occur only in accordance with the power already delegated by Congress to the COMELEC, as above discussed.

Given that the incumbent ARMM elective officials

cannot continue to act in a holdover capacity upon the expiration of their terms, and this Court cannot compel the COMELEC to conduct special elections, the Court now has to deal with the dilemma of a vacuum in governance in the ARMM.

To emphasize the dire situation a vacuum brings, it

should not be forgotten that a period of 21 months – or close to 2 years – intervenes from the time that the incumbent ARMM elective officials’ terms expired and the time the new ARMM elective officials begin their terms in 2013. As the

lessons of our Mindanao history – past and current – teach us, many developments, some of them critical and adverse, can transpire in the country’s Muslim areas in this span of time in the way they transpired in the past. [78] Thus, it would be reckless to assume that the presence of an acting ARMM Governor, an acting Vice-Governor and a fully functioning Regional Legislative Assembly can be done away with even temporarily. To our mind, the appointment of OICs under the present circumstances is an absolute necessity.

Significantly, the grant to the President of the power to appoint OICs to undertake the functions of the elective members of the Regional Legislative Assembly is neither novel nor innovative. We hark back to our earlier pronouncement in Menzon v. Petilla, etc., et al.:[79]

It may be noted that under

Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the Local Government Code and in the best interest of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents contend that the provincial board is the correct appointing power. This argument has no merit. As between the President who has supervision over local governments as provided by law and the members of the board who are junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides otherwise.

A vacancy creates an anomalous

situation and finds no approbation under the law for it deprives the constituents of their right of representation and governance in their own local government.

In a republican form of

government, the majority rules through their chosen few, and if one of them is incapacitated or absent, etc., the management of governmental affairs is, to that extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is missing.[80](Emphasis ours.)

As in Menzon, leaving the positions of ARMM

Governor, Vice Governor, and members of the Regional


71

Legislative Assembly vacant for 21 months, or almost 2 years, would clearly cause disruptions and delays in the delivery of basic services to the people, in the proper management of the affairs of the regional government, and in responding to critical developments that may arise. When viewed in this context, allowing the President in the exercise of his constitutionally-recognized appointment power to appoint OICs is, in our judgment, a reasonable measure to take.

B. Autonomy in the ARMM

It is further argued that while synchronization may be constitutionally mandated, it cannot be used to defeat or to impede the autonomy that the Constitution granted to the ARMM. Phrased in this manner, one would presume that there exists a conflict between two recognized Constitutional mandates – synchronization and regional autonomy – such that it is necessary to choose one over the other.

We find this to be an erroneous approach that

violates a basic principle in constitutional construction – ut magis valeat quam pereat: that the Constitution is to be interpreted as a whole,[81] and one mandate should not be given importance over the other except where the primacy of one over the other is clear.[82] We refer to the Court’s declaration in Ang-Angco v. Castillo, et al.,[83] thus:

A provision of the constitution

should not be construed in isolation from the rest. Rather, the constitution must be interpreted as a whole, and apparently, conflicting provisions should be reconciled and harmonized in a manner that may give to all of them full force and effect. [Emphasis supplied.]

Synchronization is an interest that is as constitutionally entrenched as regional autonomy. They are interests that this Court should reconcile and give effect to, in the way that Congress did in RA No. 10153 which provides the measure to transit to synchronized regional elections with the least disturbance on the interests that must be respected. Particularly, regional autonomy will be respected instead of being sidelined, as the law does not in any way alter, change or modify its governing features, except in a very temporary manner and only as necessitated by the attendant circumstances. Elsewhere, it has also been argued that the ARMM elections should not be synchronized with the national and local elections in order to maintain the autonomy of the ARMM and insulate its own electoral processes from the rough and tumble of nationwide and local elections. This argument leaves us far from convinced of its merits.

As heretofore mentioned and discussed, while autonomous regions are granted political autonomy, the framers of the Constitution never equated autonomy with independence. The ARMM as a regional entity thus continues to operate within the larger framework of the State

and is still subject to the national policies set by the national government, save only for those specific areas reserved by the Constitution for regional autonomous determination. As reflected during the constitutional deliberations of the provisions on autonomous regions:

Mr. Bennagen. xxx We do not see

here a complete separation from the central government, but rather an efficient working relationship between the autonomous region and the central government. We see this as an effective partnership, not a separation.

Mr. Romulo. Therefore, complete

autonomy is not really thought of as complete independence.

Mr. Ople. We define it as a

measure of self-government within the larger political framework of the nation.[84] [Emphasis supplied.]

This exchange of course is fully and expressly reflected in the above-quoted Section 17, Article X of the Constitution, and by the express reservation under Section 1 of the same Article that autonomy shall be “within the framework of this Constitution and the national sovereignty as well as the territorial integrity of the Republic of the Philippines.”

Interestingly, the framers of the Constitution initially

proposed to remove Section 17 of Article X, believing it to be unnecessary in light of the enumeration of powers granted to autonomous regions in Section 20, Article X of the Constitution. Upon further reflection, the framers decided to reinstate the provision in order to “make it clear, once and for all, that these are the limits of the powers of the autonomous government. Those not enumerated are actually to be exercised by the national government[.]”[85] Of note is the Court’s pronouncement in Pimentel, Jr. v. Hon. Aguirre[86] which we quote:

Under the Philippine concept of local autonomy, the national government has not completely relinquished all its powers over local governments, including autonomous regions. Only administrative powers over local affairs are delegated to political subdivisions. The purpose of the delegation is to make governance more directly responsive and effective at the local levels. In turn, economic, political and social development at the smaller political units are expected to propel social and economic growth and development. But to enable the country to develop as a whole, the programs and policies effected locally must be integrated and coordinated towards a common national goal. Thus, policy-setting for the entire country still lies in


72

the President and Congress. [Emphasis ours.]

In other words, the autonomy granted to the ARMM

cannot be invoked to defeat national policies and concerns. Since the synchronization of elections is not just a regional concern but a national one, the ARMM is subject to it; the regional autonomy granted to the ARMM cannot be used to exempt the region from having to act in accordance with a national policy mandated by no less than the Constitution.

Conclusion

Congress acted within its powers and pursuant to a constitutional mandate – the synchronization of national and local elections – when it enacted RA No. 10153. This Court cannot question the manner by which Congress undertook this task; the Judiciary does not and cannot pass upon questions of wisdom, justice or expediency of legislation.[87] As judges, we can only interpret and apply the law and, despite our doubts about its wisdom, cannot repeal or amend it.[88]

Nor can the Court presume to dictate the means by

which Congress should address what is essentially a legislative problem. It is not within the Court’s power to enlarge or abridge laws; otherwise, the Court will be guilty of usurping the exclusive prerogative of Congress.[89] The petitioners, in asking this Court to compel COMELEC to hold special elections despite its lack of authority to do so, are essentially asking us to venture into the realm of judicial legislation, which is abhorrent to one of the most basic principles of a republican and democratic government – the separation of powers.

The petitioners allege, too, that we should act

because Congress acted with grave abuse of discretion in enacting RA No. 10153. 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 to a virtual refusal to perform a duty enjoined by law or to act at all in contemplation of the law as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.[90]

We find that Congress, in passing RA No. 10153, acted strictly within its constitutional mandate. Given an array of choices, it acted within due constitutional bounds and with marked reasonableness in light of the necessary adjustments that synchronization demands. Congress, therefore, cannot be accused of any evasion of a positive duty or of a refusal to perform its duty. We thus find no reason to accord merit to the petitioners’ claims of grave abuse of discretion.

On the general claim that RA No. 10153 is

unconstitutional, we can only reiterate the established rule that every statute is presumed valid.[91] Congress, thus, has in its favor the presumption of constitutionality of its acts, and the party challenging the validity of a statute has the onerous

task of rebutting this presumption.[92] Any reasonable doubt about the validity of the law should be resolved in favor of its constitutionality.[93] As this Court declared in Garcia v. Executive Secretary:[94]

The policy of the courts is to

avoid ruling on constitutional questions and to presume that the acts of the political departments are valid in the absence of a clear and unmistakable showing to the contrary. To doubt is to sustain. This presumption is based on the doctrine of separation of powers which enjoins upon each department a becoming respect for the acts of the other departments. The theory is that as the joint act of Congress and the President of the Philippines, a law has been carefully studied and determined to be in accordance with the fundamental law before it was finally enacted.[95] [Emphasis ours.]

Given the failure of the petitioners to rebut the

presumption of constitutionality in favor of RA No. 10153, we must support and confirm its validity.

WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing the validity of RA No. 10153 for lack of merit, and UPHOLD the constitutionality of this law. We likewise LIFT the temporary restraining order we issued in our Resolution of September 13, 2011. No costs.

SO ORDERED.

Republic of the PhilippinesSupreme Court

Manila

EN BANC

DATU MICHAEL ABAS KIDA,in his personal capacity, and in representation of MAGUINDANAO FEDERATION OF AUTONOMOUS IRRIGATORS ASSOCIATION, INC., HADJI MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T. ODIN, ASRIN TIMBOL JAIYARI, MUJIB M. KALANG, ALIH AL-SAIDI J. SAPI-E, KESSAR DAMSIE ABDIL, and BASSAM ALUH SAUPI,

Petitioners,

- versus -

SENATE OF THE PHILIPPINES, represented by its President JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, thru SPEAKER FELICIANO BELMONTE, COMMISSION ON ELECTIONS, thru its Chairman, SIXTO BRILLANTES, JR.,


73

PAQUITO OCHOA, JR., Office of the President Executive Secretary, FLORENCIO ABAD, JR., Secretary of Budget, and ROBERTO TAN, Treasurer of the Philippines,

Respondents.X - - - - - - - - - - - - - - - - - - - - - - XBASARI D. MAPUPUNO,

Petitioner,

- versus -

SIXTO BRILLANTES, in his capacity as Chairman of the Commission on Elections, FLORENCIO ABAD, JR. in his capacity as Secretary of the Department of Budget and Management, PAQUITO OCHOA, JR., in his capacity as Executive Secretary, JUAN PONCE ENRILE, in his capacity as Senate President, and FELICIANO BELMONTE, in his capacity as Speaker of the House of Representatives,

Respondents.X - - - - - - - - - - - - - - - - - - - - - - XREP. EDCEL C. LAGMAN,

Petitioner,

- versus -

PAQUITO N. OCHOA, JR., in his capacity as the Executive Secretary, and the COMMISSION ON ELECTIONS,

Respondents.X - - - - - - - - - - - - - - - - - - - - - - XALMARIM CENTI TILLAH, DATUCASAN CONDING CANA, and PARTIDO DEMOKRATIKO PILIPINO LAKAS NG BAYAN (PDP-LABAN),

Petitioners,

- versus -

THE COMMISSION ON ELECTIONS, through its Chairman, SIXTO BRILLANTES, JR., HON. PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary, HON. FLORENCIO B. ABAD, JR., in his capacity as Secretary of the Department of Budget and Management, and HON. ROBERTO B. TAN, in his capacity as Treasurer of the Philippines,

Respondents.X - - - - - - - - - - - - - - - - - - - - - - XATTY. ROMULO B. MACALINTAL,

Petitioner,

- versus -

COMMISSION ON ELECTIONS and THE OFFICE OF THE PRESIDENT, through EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,

Respondents.X - - - - - - - - - - - - - - - - - - - - - - XLOUIS “BAROK”

C. BIRAOGO,Petitioner,

- versus -

THE COMMISSION ON ELECTIONS and EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,

Respondents.X - - - - - - - - - - - - - - - - - - - - - - XJACINTO V. PARAS,

Petitioner,

- versus -

EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and the COMMISSION ON ELECTIONS, Respondents.x-----------------------------------------xMINORITY RIGHTS FORUM, PHILIPPINES, INC., Respondents-Intervenor.

x-----------------------------------------------------------------------------------------x

RESOLUTION BRION, J.:

We resolve: (a) the motion for reconsideration filed by petitioners Datu Michael Abas Kida, et al. in G.R. No. 196271; (b) the motion for reconsideration filed by petitioner Rep. Edcel Lagman in G.R. No. 197221; (c) the ex abundante ad cautelam motion for reconsideration filed by petitioner Basari Mapupuno in G.R. No. 196305; (d) the motion for reconsideration filed by petitioner Atty. Romulo Macalintal in G.R. No. 197282; (e) the motion for reconsideration filed by petitioners Almarim Centi Tillah, Datu Casan Conding Cana and Partido Demokratiko Pilipino Lakas ng Bayan in G.R. No. 197280; (f) the manifestation and motion filed by petitioners Almarim Centi Tillah, et al. in G.R. No. 197280; and (g) the very urgent motion to issue clarificatory resolution that the temporary restraining order (TRO) is still existing and effective.

These motions assail our Decision dated October

18, 2011, where we upheld the constitutionality of Republic Act (RA) No. 10153. Pursuant to the constitutional mandate of synchronization, RA No. 10153 postponed the regional


74

elections in the Autonomous Region in Muslim Mindanao (ARMM) (which were scheduled to be held on the second Monday of August 2011) to the second Monday of May 2013 and recognized the President’s power to appoint officers-in-charge (OICs) to temporarily assume these positions upon the expiration of the terms of the elected officials.

The Motions for Reconsideration

The petitioners in G.R. No. 196271 raise the following grounds in support of their motion:

I. THE HONORABLE COURT ERRED IN CONCLUDING THAT THE ARMM ELECTIONS ARE LOCAL ELECTIONS, CONSIDERING THAT THE CONSTITUTION GIVES THE ARMM A SPECIAL STATUS AND IS SEPARATE AND DISTINCT FROM ORDINARY LOCAL GOVERNMENT UNITS.

II. R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT.

III. THE SUPERMAJORITY PROVISIONS OF THE ORGANIC ACT (R.A. 9054) ARE NOT IRREPEALABLE LAWS.

IV. SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT VIOLATE SECTION 18, ARTICLE X OF THE CONSTITUTION.

V. BALANCE OF INTERESTS

TILT IN FAVOR OF THE DEMOCRATIC PRINCIPLE[.][1]

The petitioner in G.R. No. 197221 raises similar grounds, arguing that:

I. THE ELECTIVE REGIONAL

EXECUTIVE AND LEGISLATIVE OFFICIALS OF ARMM CANNOT BE CONSIDERED AS OR EQUATED WITH THE TRADITIONAL LOCAL GOVERNMENT OFFICIALS IN THE LOCAL GOVERNMENT UNITS (LGUs) BECAUSE (A) THERE IS NO EXPLICIT CONSTITUTIONAL PROVISION ON SUCH PARITY; AND (B) THE ARMM IS MORE SUPERIOR THAN LGUs IN STRUCTURE, POWERS AND AUTONOMY, AND CONSEQUENTLY IS A

CLASS OF ITS OWN APART FROM TRADITIONAL LGUs.

II. THE UNMISTAKABLE AND UNEQUIVOCAL CONSTITUTIONAL MANDATE FOR AN ELECTIVE AND REPRESENTATIVE EXECUTIVE DEPARTMENT AND LEGISLATIVE ASSEMBLY IN ARMM INDUBITABLY PRECLUDES THE APPOINTMENT BY THE PRESIDENT OF OFFICERS-IN-CHARGE (OICs), ALBEIT MOMENTARY OR TEMPORARY, FOR THE POSITIONS OF ARMM GOVERNOR, VICE GOVERNOR AND MEMBERS OF THE REGIONAL ASSEMBLY.

III. THE PRESIDENT’S

APPOINTING POWER IS LIMITED TO APPOINTIVE OFFICIALS AND DOES NOT EXTEND TO ELECTIVE OFFICIALS EVEN AS THE PRESIDENT IS ONLY VESTED WITH SUPERVISORY POWERS OVER THE ARMM, THEREBY NEGATING THE AWESOME POWER TO APPOINT AND REMOVE OICs OCCUPYING ELECTIVE POSITIONS.

IV. THE CONSTITUTION DOES

NOT PROSCRIBE THE HOLDOVER OF ARMM ELECTED OFFICIALS PENDING THE ELECTION AND QUALIFICATION OF THEIR SUCCESSORS.

V. THE RULING

IN OSMENA DOES NOT APPLY TO ARMM ELECTED OFFICIALS WHOSE TERMS OF OFFICE ARE NOT PROVIDED FOR BY THE CONSTITUTION BUT PRESCRIBED BY THE ORGANIC ACTS.

VI. THE REQUIREMENT OF A

SUPERMAJORITY OF ¾ VOTES IN THE HOUSE OF REPRESENTATIVES AND THE SENATE FOR THE VALIDITY OF A SUBSTANTIVE AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT


75

IMPOSE AN IRREPEALABLE LAW.

VII. THE REQUIREMENT OF A

PLEBISCITE FOR THE EFFECTIVITY OF A SUBSTANTIVE AMENDMENT OR REVISION OF THE ORGANIC ACTS DOES NOT UNDULY EXPAND THE PLEBISCITE REQUIREMENT OF THE CONSTITUTION.

VIII. SYNCHRONIZATION OF THE

ARMM ELECTION WITH THE NATIONAL AND LOCAL ELECTIONS IS NOT MANDATED BY THE CONSTITUTION.

IX. THE COMELEC HAS THE

AUTHORITY TO HOLD AND CONDUCT SPECIAL ELECTIONS IN ARMM, AND THE ENACTMENT OF AN IMPROVIDENT AND UNCONSTITUTIONAL STATUTE IS AN ANALOGOUS CAUSE WARRANTING COMELEC’S HOLDING OF SPECIAL ELECTIONS.[2] (italics supplied)

The petitioner in G.R. No. 196305 further asserts that: I. BEFORE THE COURT MAY

CONSTRUE OR INTERPRET A STATUTE, IT IS A CONDITION SINE QUA NON THAT THERE BE DOUBT OR AMBIGUITY IN ITS LANGUAGE.

THE TRANSITORY PROVISIONS

HOWEVER ARE CLEAR AND UNAMBIGUOUS: THEY REFER TO THE 1992 ELECTIONS AND TURN-OVER OF ELECTIVE OFFICIALS.IN THUS RECOGNIZING A SUPPOSED “INTENT” OF THE FRAMERS, AND APPLYING THE SAME TO ELECTIONS 20 YEARS AFTER, THE HONORABLE SUPREME COURT MAY HAVE VIOLATED THE FOREMOST RULE IN STATUTORY CONSTRUCTION.

x x x x

II. THE HONORABLE COURT

SHOULD HAVE CONSIDERED THAT RA 9054, AN ORGANIC ACT, WAS COMPLETE IN ITSELF. HENCE, RA 10153 SHOULD BE CONSIDERED TO HAVE BEEN ENACTED PRECISELY TO AMEND RA 9054.

x x x x

III. THE HONORABLE COURT

MAY HAVE COMMITTED A SERIOUS ERROR IN DECLARING THE 2/3 VOTING REQUIREMENT SET FORTH IN RA 9054 AS UNCONSTITUTIONAL.

x x x x

IV. THE HONORABLE COURT

MAY HAVE COMMITTED A SERIOUS ERROR IN HOLDING THAT A PLEBISCITE IS NOT NECESSARY IN AMENDING THE ORGANIC ACT.

x x x x V. THE HONORABLE COURT

COMMITTED A SERIOUS ERROR IN DECLARING THE HOLD-OVER OF ARMM ELECTIVE OFFICIALS UNCONSTITUTIONAL.

x x x x VI. THE HONORABLE COURT

COMMITTED A SERIOUS ERROR IN UPHOLDING THE APPOINTMENT OF OFFICERS-IN-CHARGE.[3] (italics and underscoring supplied)

The petitioner in G.R. No. 197282 contends that:

A. ASSUMING WITHOUT CONCEDING THAT THE APPOINTMENT OF OICs FOR THE REGIONAL GOVERNMENT OF THE ARMM IS NOT UNCONSTITUTIONAL TO BEGIN WITH, SUCH APPOINTMENT OF


76

OIC REGIONAL OFFICIALS WILL CREATE A FUNDAMENTAL CHANGE IN THE BASIC STRUCTURE OF THE REGIONAL GOVERNMENT SUCH THAT R.A. NO. 10153 SHOULD HAVE BEEN SUBMITTED TO A PLEBISCITE IN THE ARMM FOR APPROVAL BY ITS PEOPLE, WHICH PLEBISCITE REQUIREMENT CANNOT BE CIRCUMVENTED BY SIMPLY CHARACTERIZING THE PROVISIONS OF R.A. NO. 10153 ON APPOINTMENT OF OICs AS AN “INTERIM MEASURE”.

B. THE HONORABLE COURT ERRED IN RULING THAT THE APPOINTMENT BY THE PRESIDENT OF OICs FOR THE ARMM REGIONAL GOVERNMENT IS NOT VIOLATIVE OF THE CONSTITUTION.

C. THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054 DOES NOT VIOLATE THE CONSTITUTION, AND BEFORE THEIR SUCCESSORS ARE ELECTED IN EITHER AN ELECTION TO BE HELD AT THE SOONEST POSSIBLE TIME OR IN MAY 2013, THE SAID INCUMBENT ARMM REGIONAL OFFICIALS MAY VALIDLY CONTINUE FUNCTIONING AS SUCH IN A HOLDOVER CAPACITY IN ACCORDANCE WITH SECTION 7, ARTICLE VII OF R.A. NO. 9054.

D. WITH THE CANCELLATION OF THE AUGUST 2011 ARMM ELECTIONS, SPECIAL ELECTIONS MUST IMMEDIATELY BE HELD FOR THE ELECTIVE REGIONAL OFFICIALS OF THE ARMM WHO SHALL SERVE UNTIL THEIR SUCCESSORS ARE ELECTED IN THE MAY 2013 SYNCHRONIZED ELECTIONS.[4]

Finally, the petitioners in G.R. No. 197280 argue that: a) the Constitutional mandate of

synchronization does not apply to the ARMM elections;

b) RA No. 10153 negates the basic

principle of republican democracy which, by constitutional mandate, guides the governance of the Republic;

c) RA No. 10153 amends the Organic Act

(RA No. 9054) and, thus, has to comply with the 2/3 vote from the House of Representatives and the Senate, voting separately, and be ratified in a plebiscite;

d) if the choice is between elective officials

continuing to hold their offices even after their terms are over and non-elective individuals getting into the vacant elective positions by appointment as OICs, the holdover option is the better choice;

e) the President only has the power of

supervision over autonomous regions, which does not include the power to appoint OICs to take the place of ARMM elective officials; and

f) it would be better to hold the ARMM

elections separately from the national and local elections as this will make it easier for the authorities to implement election laws.

In essence, the Court is asked to resolve the

following questions: (a) Does the Constitution mandate the

synchronization of ARMM regional elections with national and local elections?

(b) Does RA No. 10153 amend RA No. 9054? If so, does RA No. 10153 have to comply with the supermajority vote and plebiscite requirements?

(c) Is the holdover provision in RA No. 9054

constitutional? (d) Does the COMELEC have the power to

call for special elections in ARMM?

(e) Does granting the President the power to appoint OICs violate the elective and representative nature of ARMM regional legislative and executive offices?

(f) Does the appointment power granted to

the President exceed the President’s supervisory powers over autonomous regions?

The Court’s Ruling

We deny the motions for lack of merit.

Synchronization mandate includes ARMM elections


77

The Court was unanimous in holding that the Constitution mandates the synchronization of national and local elections. While the Constitution does not expressly instruct Congress to synchronize the national and local elections, the intention can be inferred from the following provisions of the Transitory Provisions (Article XVIII) of the Constitution, which state:

Section 1. The first elections of Members of the Congress under this Constitution shall be held on the second Monday of May, 1987.

The first local elections shall be held on a date to be determined by the President, which may be simultaneous with the election of the Members of the Congress. It shall include the election of all Members of the city or municipal councils in the Metropolitan Manila area. Section 2. The Senators, Members of the House of Representatives, and the local officials first elected under this Constitution shall serve until noon of June 30, 1992. Of the Senators elected in the elections in 1992, the first twelve obtaining the highest number of votes shall serve for six years and the remaining twelve for three years.

x x x x

Section 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986 election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992. The first regular elections for the President and Vice-President under this Constitution shall be held on the second Monday of May, 1992. To fully appreciate the constitutional intent behind

these provisions, we refer to the discussions of the Constitutional Commission:

MR. MAAMBONG. For purposes of identification, I will now read a section which we will temporarily indicate as Section 14. It reads: “THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE 1992.”

This was presented by Commissioner Davide, so may we ask that Commissioner Davide be recognized. THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is recognized. MR. DAVIDE. Before going to the proposed amendment, I would only state that in view of the action taken by the Commission on Section 2 earlier, I am formulating a new proposal. It will read as follows: “THE SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES AND THE LOCAL OFFICIALS FIRST ELECTED UNDER THIS CONSTITUTION SHALL SERVE UNTIL NOON OF JUNE 30, 1992.” I proposed this because of the proposed section of the Article on Transitory Provisions giving a term to the incumbent President and Vice-President until 1992. Necessarily then, since the term provided by the Commission for Members of the Lower House and for local officials is three years, if there will be an election in 1987, the next election for said officers will be in 1990, and it would be very close to 1992. We could never attain, subsequently, any synchronization of election which is once every three years. So under my proposal we will be able to begin actual synchronization in 1992, and consequently, we should not have a local election or an election for Members of the Lower House in 1990 for them to be able to complete their term of three years each. And if we also stagger the Senate, upon the first election it will result in an election in 1993 for the Senate alone, and there will be an election for 12 Senators in 1990. But for the remaining 12 who will be elected in 1987, if their term is for six years, their election will be in 1993. So, consequently we will have elections in 1990, in 1992 and in 1993. The later election will be limited to only 12 Senators and of course to the local officials and the Members of the Lower House. But, definitely, thereafter we can never have an election once every three years, therefore defeating the very purpose of the Commission when we adopted the term of six years for the President and another six years for the Senators with the possibility of staggering with 12 to serve for six years and 12 for three years insofar as the first


78

Senators are concerned. And so my proposal is the only way to effect the first synchronized election which would mean, necessarily, a bonus of two years to the Members of the Lower House and a bonus of two years to the local elective officials. THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee say? MR. DE CASTRO. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is recognized. MR. DE CASTRO. Thank you. During the discussion on the legislative and the synchronization of elections, I was the one who proposed that in order to synchronize the elections every three years, which the body approved — the first national and local officials to be elected in 1987 shall continue in office for five years, the same thing the Honorable Davide is now proposing. That means they will all serve until 1992, assuming that the term of the President will be for six years and continue beginning in 1986. So from 1992, we will again have national, local and presidential elections. This time, in 1992, the President shall have a term until 1998 and the first 12 Senators will serve until 1998, while the next 12 shall serve until 1995, and then the local officials elected in 1992 will serve until 1995. From then on, we shall have an election every three years. So, I will say that the proposition of Commissioner Davide is in order, if we have to synchronize our elections every three years which was already approved by the body. Thank you, Mr. Presiding Officer. x x x x

MR. GUINGONA. What will be synchronized, therefore, is the election of the incumbent President and Vice-President in 1992. MR. DAVIDE. Yes. MR. GUINGONA. Not the reverse. Will the committee not

synchronize the election of the Senators and local officials with the election of the President? MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt here is on the assumption that the provision of the Transitory Provisions on the term of the incumbent President and Vice-President would really end in 1992. MR. GUINGONA. Yes. MR. DAVIDE. In other words, there will be a single election in 1992 for all, from the President up to the municipal officials.[5] (emphases and underscoring ours) The framers of the Constitution could not have

expressed their objective more clearly – there was to be a single election in 1992 for all elective officials – from the President down to the municipal officials. Significantly, the framers were even willing to temporarily lengthen or shorten the terms of elective officials in order to meet this objective, highlighting the importance of this constitutional mandate.

We came to the same conclusion in Osmeña v.

Commission on Elections,[6] where we unequivocally stated that “the Constitution has mandated synchronized national and local elections."[7] Despite the length and verbosity of their motions, the petitioners have failed to convince us to deviate from this established ruling.

Neither do we find any merit in the petitioners’

contention that the ARMM elections are not covered by the constitutional mandate of synchronization because the ARMM elections were not specifically mentioned in the above-quoted Transitory Provisions of the Constitution.

That the ARMM elections were not expressly

mentioned in the Transitory Provisions of the Constitution on synchronization cannot be interpreted to mean that the ARMM elections are not covered by the constitutional mandate of synchronization. We have to consider that the ARMM, as we now know it, had not yet been officially organized at the time the Constitution was enacted and ratified by the people. Keeping in mind that a constitution is not intended to provide merely for the exigencies of a few years but is to endure through generations for as long as it remains unaltered by the people as ultimate sovereign, a constitution should be construed in the light of what actually is a continuing instrument to govern not only the present but also the unfolding events of the indefinite future. Although the principles embodied in a constitution remain fixed and unchanged from the time of its adoption, a constitution must be construed as a dynamic process intended to stand for a great length of time, to be progressive and not static.[8]


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To reiterate, Article X of the Constitution, entitled “Local Government,” clearly shows the intention of the Constitution to classify autonomous regions, such as the ARMM, as local governments. We refer to Section 1 of this Article, which provides:

Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided. The inclusion of autonomous regions in the

enumeration of political subdivisions of the State under the heading “Local Government” indicates quite clearly the constitutional intent to consider autonomous regions as one of the forms of local governments.

That the Constitution mentions only the “national

government” and the “local governments,” and does not make a distinction between the “local government” and the “regional government,” is particularly revealing, betraying as it does the intention of the framers of the Constitution to consider the autonomous regions not as separate forms of government, but as political units which, while having more powers and attributes than other local government units, still remain under the category of local governments. Since autonomous regions are classified as local governments, it follows that elections held in autonomous regions are also considered as local elections.

The petitioners further argue that even assuming

that the Constitution mandates the synchronization of elections, the ARMM elections are not covered by this mandate since they are regional elections and not local elections.

In construing provisions of the Constitution, the first

rule is verba legis, “that is, wherever possible, the words used in the Constitution must be given their ordinary meaning except where technical terms are employed.”[9] Applying this principle to determine the scope of “local elections,” we refer to the meaning of the word “local,” as understood in its ordinary sense. As defined in Webster’s Third New International Dictionary Unabridged, “local” refers to something “that primarily serves the needs of a particular limited district, often a community or minor political subdivision.” Obviously, the ARMM elections, which are held within the confines of the autonomous region of Muslim Mindanao, fall within this definition.

To be sure, the fact that the ARMM possesses

more powers than other provinces, cities, or municipalities is not enough reason to treat the ARMM regional elections differently from the other local elections. Ubi lex non distinguit nec nos distinguire debemus. When the law does not distinguish, we must not distinguish.[10]

RA No. 10153 does not amend RA No. 9054 The petitioners are adamant that the provisions of RA No. 10153, in postponing the ARMM elections, amend RA No. 9054.

We cannot agree with their position.

A thorough reading of RA No. 9054 reveals that it fixes the schedule for only the first ARMM elections;[11] it does not provide the date for the succeeding regular ARMM elections. In providing for the date of the regular ARMM elections, RA No. 9333 and RA No. 10153 clearly do not amend RA No. 9054 since these laws do not change or revise any provision in RA No. 9054. In fixing the date of the ARMM elections subsequent to the first election, RA No. 9333 and RA No. 10153 merely filled the gap left in RA No. 9054. We reiterate our previous observations:

This view – that Congress thought it best to leave the determination of the date of succeeding ARMM elections to legislative discretion – finds support in ARMM’s recent history.

To recall, RA No. 10153 is not the

first law passed that rescheduled the ARMM elections. The First Organic Act – RA No. 6734 – not only did not fix the date of the subsequent elections; it did not even fix the specific date of the first ARMM elections, leaving the date to be fixed in another legislative enactment. Consequently, RA No. 7647, RA No. 8176, RA No. 8746, RA No. 8753, and RA No. 9012 were all enacted by Congress to fix the dates of the ARMM elections. Since these laws did not change or modify any part or provision of RA No. 6734, they were not amendments to this latter law. Consequently, there was no need to submit them to any plebiscite for ratification.

The Second Organic Act – RA

No. 9054 – which lapsed into law on March 31, 2001, provided that the first elections would be held on the second Monday of September 2001. Thereafter, Congress passed RA No. 9140 to reset the date of the ARMM elections. Significantly, while RA No. 9140 also scheduled the plebiscite for the ratification of the Second Organic Act (RA No. 9054), the new date of the ARMM regional elections fixed in RA No. 9140 was not among the provisions ratified in the plebiscite held to approve RA No. 9054. Thereafter, Congress passed RA No. 9333, which


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further reset the date of the ARMM regional elections. Again, this law was not ratified through a plebiscite.

From these legislative actions, we

see the clear intention of Congress to treat the laws which fix the date of the subsequent ARMM elections as separate and distinct from the Organic Acts. Congress only acted consistently with this intent when it passed RA No. 10153 without requiring compliance with the amendment prerequisites embodied in Section 1 and Section 3, Article XVII of RA No. 9054.[12] (emphases supplied)

The petitioner in G.R. No. 196305 contends, however, that there is no lacuna in RA No. 9054 as regards the date of the subsequent ARMM elections. In his estimation, it can be implied from the provisions of RA No. 9054 that the succeeding elections are to be held three years after the date of the first ARMM regional elections.

We find this an erroneous assertion. Well-settled is

the rule that the court may not, in the guise of interpretation, enlarge the scope of a statute and include therein situations not provided nor intended by the lawmakers. An omission at the time of enactment, whether careless or calculated, cannot be judicially supplied however later wisdom may recommend the inclusion.[13] Courts are not authorized to insert into the law what they think should be in it or to supply what they think the legislature would have supplied if its attention had been called to the omission.[14] Providing for lapses within the law falls within the exclusive domain of the legislature, and courts, no matter how well-meaning, have no authority to intrude into this clearly delineated space.

Since RA No. 10153 does not amend, but merely

fills in the gap in RA No. 9054, there is no need for RA No. 10153 to comply with the amendment requirements set forth in Article XVII of RA No. 9054.

Supermajority vote requirement makes RA No. 9054 an irrepealable law

Even assuming that RA No. 10153 amends RA No.

9054, however, we have already established that the supermajority vote requirement set forth in Section 1, Article XVII of RA No. 9054[15] is unconstitutional for violating the principle that Congress cannot pass irrepealable laws. The power of the legislature to make laws includes the power to amend and repeal these laws. Where the legislature, by its own act, attempts to limit its power to amend or repeal laws, the Court has the duty to strike down such act for interfering with the plenary powers of Congress. As we explained in Duarte v. Dade:[16]

A state legislature has a plenary law-making power over all subjects, whether

pertaining to persons or things, within its territorial jurisdiction, either to introduce new laws or repeal the old, unless prohibited expressly or by implication by the federal constitution or limited or restrained by its own. It cannot bind itself or its successors by enacting irrepealable laws except when so restrained. Every legislative body may modify or abolish the acts passed by itself or its predecessors. This power of repeal may be exercised at the same session at which the original act was passed; and even while a bill is in its progress and before it becomes a law. This legislature cannot bind a future legislature to a particular mode of repeal. It cannot declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon existing statutes. [emphasis ours]

Under our Constitution, each House of Congress has the power to approve bills by a mere majority vote, provided there is quorum.[17] In requiring all laws which amend RA No. 9054 to comply with a higher voting requirement than the Constitution provides (2/3 vote), Congress, which enacted RA No. 9054, clearly violated the very principle which we sought to establish in Duarte. To reiterate, the act of one legislature is not binding upon, and cannot tie the hands of, future legislatures.[18]

We also highlight an important point raised by

Justice Antonio T. Carpio in his dissenting opinion, where he stated: “Section 1, Article XVII of RA 9054 erects a high vote threshold for each House of Congress to surmount, effectively and unconstitutionally, taking RA 9054 beyond the reach of Congress’ amendatory powers. One Congress cannot limit or reduce the plenary legislative power of succeeding Congresses by requiring a higher vote threshold than what the Constitution requires to enact, amend or repeal laws. No law can be passed fixing such a higher vote threshold because Congress has no power, by ordinary legislation, to amend the Constitution.”[19]

Plebiscite requirement in RA No. 9054 overly broad

Similarly, we struck down the petitioners’ contention that the plebiscite requirement[20] applies to all amendments of RA No. 9054 for being an unreasonable enlargement of the plebiscite requirement set forth in the Constitution.

Section 18, Article X of the Constitution provides

that “[t]he creation of the autonomous region shall be effective when approved by majority of the votes cast by the constituent units in a plebiscite called for the purpose[.]” We interpreted this to mean that only amendments to, or revisions of, the Organic Act constitutionally-essential to the creation of autonomous regions – i.e., those aspects specifically mentioned in the Constitution which Congress


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must provide for in the Organic Act[21] – require ratification through a plebiscite. We stand by this interpretation.

The petitioners argue that to require all

amendments to RA No. 9054 to comply with the plebiscite requirement is to recognize that sovereignty resides primarily in the people.

While we agree with the petitioners’ underlying

premise that sovereignty ultimately resides with the people, we disagree that this legal reality necessitates compliance with the plebiscite requirement for all amendments to RA No. 9054. For if we were to go by the petitioners’ interpretation of Section 18, Article X of the Constitution that all amendments to the Organic Act have to undergo the plebiscite requirement before becoming effective, this would lead to impractical and illogical results – hampering the ARMM’s progress by impeding Congress from enacting laws that timely address problems as they arise in the region, as well as weighing down the ARMM government with the costs that unavoidably follow the holding of a plebiscite.

Interestingly, the petitioner in G.R. No. 197282

posits that RA No. 10153, in giving the President the power to appoint OICs to take the place of the elective officials of the ARMM, creates a fundamental change in the basic structure of the government, and thus requires compliance with the plebiscite requirement embodied in RA No. 9054.

Again, we disagree. The pertinent provision in this regard is Section 3 of

RA No. 10153, which reads: Section 3. Appointment of Officers-in-Charge. — The President shall appoint officers-in-charge for the Office of the Regional Governor, Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office. We cannot see how the above-quoted provision has

changed the basic structure of the ARMM regional government. On the contrary, this provision clearly preserves the basic structure of the ARMM regional government when it recognizes the offices of the ARMM regional government and directs the OICs who shall temporarily assume these offices to “perform the functions pertaining to the said offices.” Unconstitutionality of the holdover provision The petitioners are one in defending the constitutionality of Section 7(1), Article VII of RA No. 9054, which allows the regional officials to remain in their positions in a holdover capacity. The petitioners essentially argue that the ARMM regional officials should be allowed to remain in

their respective positions until the May 2013 elections since there is no specific provision in the Constitution which prohibits regional elective officials from performing their duties in a holdover capacity. The pertinent provision of the Constitution is Section 8, Article X which provides:

Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. [emphases ours] On the other hand, Section 7(1), Article VII of RA

No. 9054 provides: Section 7. Terms of Office of Elective Regional Officials. – (1) Terms of Office. The terms of office of the Regional Governor, Regional Vice Governor and members of the Regional Assembly shall be for a period of three (3) years, which shall begin at noon on the 30th day of September next following the day of the election and shall end at noon of the same date three (3) years thereafter. The incumbent elective officials of the autonomous region shall continue in effect until their successors are elected and qualified. The clear wording of Section 8, Article X of the

Constitution expresses the intent of the framers of the Constitution to categorically set a limitation on the period within which all elective local officials can occupy their offices. We have already established that elective ARMM officials are also local officials; they are, thus, bound by the three-year term limit prescribed by the Constitution. It, therefore, becomes irrelevant that the Constitution does not expressly prohibit elective officials from acting in a holdover capacity.Short of amending the Constitution, Congress has no authority to extend the three-year term limit by inserting a holdover provision in RA No. 9054. Thus, the term of three years for local officials should stay at three (3) years, as fixed by the Constitution, and cannot be extended by holdover by Congress.

Admittedly, we have, in the past, recognized the validity of holdover provisions in various laws. One significant difference between the present case and these past cases[22] is that while these past cases all refer to elective barangay or sangguniang kabataan officials whose terms of office are not explicitly provided for in the Constitution, the present case refers to local elective officials - the ARMM Governor, the ARMM Vice Governor, and the members of the Regional Legislative


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Assembly - whose terms fall within the three-year term limit set by Section 8, Article X of the Constitution.

Even assuming that a holdover is constitutionally permissible, and there had been statutory basis for it (namely Section 7, Article VII of RA No. 9054), the rule of holdover can only apply as an available option where no express or implied legislative intent to the contrary exists; it cannot apply where such contrary intent is evident.[23]

Congress, in passing RA No. 10153 and removing

the holdover option, has made it clear that it wants to suppress the holdover rule expressed in RA No. 9054. Congress, in the exercise of its plenary legislative powers, has clearly acted within its discretion when it deleted the holdover option, and this Court has no authority to question the wisdom of this decision, absent any evidence of unconstitutionality or grave abuse of discretion. It is for the legislature and the executive, and not this Court, to decide how to fill the vacancies in the ARMM regional government which arise from the legislature complying with the constitutional mandate of synchronization. COMELEC has no authority to hold special elections Neither do we find any merit in the contention that the Commission on Elections (COMELEC) is sufficiently empowered to set the date of special elections in the ARMM. To recall, the Constitution has merely empowered the COMELEC to enforce and administer all laws and regulations relative to the conduct of an election. [24] Although the legislature, under the Omnibus Election Code (Batas Pambansa Bilang [BP] 881), has granted the COMELEC the power to postpone elections to another date, this power is confined to the specific terms and circumstances provided for in the law. Specifically, this power falls within the narrow confines of the following provisions:

Section 5. Postponement of election. - When for any serious cause such as violence, terrorism, loss or destruction of election paraphernalia or records, force majeure, and other analogous causes of such a nature that the holding of a free, orderly and honest election should become impossible in any political subdivision, the Commission, motu proprio or upon a verified petition by any interested party, and after due notice and hearing, whereby all interested parties are afforded equal opportunity to be heard, shall postpone the election therein to a date which should be reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause for such postponement or suspension of the election or failure to elect.

Section 6. Failure of election. - If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. [emphases and underscoring ours] As we have previously observed in our assailed

decision, both Section 5 and Section 6 of BP 881 address instances where elections have already been scheduled to take place but do not occur or had to be suspended because of unexpected and unforeseen circumstances, such as violence, fraud, terrorism, and other analogous circumstances.

In contrast, the ARMM elections were postponed by law, in furtherance of the constitutional mandate of synchronization of national and local elections. Obviously, this does not fall under any of the circumstances contemplated by Section 5 or Section 6 of BP 881.

More importantly, RA No. 10153 has already fixed

the date for the next ARMM elections and the COMELEC has no authority to set a different election date.

Even assuming that the COMELEC has the authority to hold special elections, and this Court can compel the COMELEC to do so, there is still the problem of having to shorten the terms of the newly elected officials in order to synchronize the ARMM elections with the May 2013 national and local elections. Obviously, neither the Court nor the COMELEC has the authority to do this, amounting as it does to an amendment of Section 8, Article X of the Constitution, which limits the term of local officials to three years. President’s authority to appoint OICs


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The petitioner in G.R. No. 197221 argues that the President’s power to appoint pertains only to appointive positions and cannot extend to positions held by elective officials.

The power to appoint has traditionally been

recognized as executive in nature.[25] Section 16, Article VII of the Constitution describes in broad strokes the extent of this power, thus:

Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. [emphasis ours] The 1935 Constitution contained a provision similar

to the one quoted above. Section 10(3), Article VII of the 1935 Constitution provides:

(3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. [emphasis ours]

The main distinction between the provision in the 1987 Constitution and its counterpart in the 1935 Constitution is the sentence construction; while in the 1935 Constitution, the various appointments the President can make are enumerated in a single sentence, the 1987 Constitution enumerates the various appointments the President is empowered to make and divides the enumeration in two sentences. The change in style is significant; in providing for this change, the framers of the 1987 Constitution clearly

sought to make a distinction between the first group of presidential appointments and the second group of presidential appointments, as made evident in the following exchange:

MR. FOZ. Madame President x x x I propose to put a period (.) after “captain” and x x x delete “and all” and substitute it with HE SHALL ALSO APPOINT ANY. MR. REGALADO. Madam President, the Committee accepts the proposed amendment because it makes it clear that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments.[26]

The first group of presidential appointments, specified as the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the Armed Forces, and other officers whose appointments are vested in the President by the Constitution, pertains to the appointive officials who have to be confirmed by the Commission on Appointments.

The second group of officials the President can appoint are “all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint.” [27] The second sentence acts as the “catch-all provision” for the President’s appointment power, in recognition of the fact that the power to appoint is essentially executive in nature.[28] The wide latitude given to the President to appoint is further demonstrated by the recognition of the President’s power to appoint officials whose appointments are not even provided for by law. In other words, where there are offices which have to be filled, but the law does not provide the process for filling them, the Constitution recognizes the power of the President to fill the office by appointment.

Any limitation on or qualification to the exercise of

the President’s appointment power should be strictly construed and must be clearly stated in order to be recognized.[29]Given that the President derives his power to appoint OICs in the ARMM regional government from law, it falls under the classification of presidential appointments covered by the second sentence of Section 16, Article VII of the Constitution; the President’s appointment power thus rests on clear constitutional basis.

The petitioners also jointly assert that RA No. 10153, in granting the President the power to appoint OICs in elective positions, violates Section 16, Article X of the Constitution,[30] which merely grants the President the power of supervision over autonomous regions.

This is an overly restrictive interpretation of the

President’s appointment power. There is no incompatibility between the President’s power of supervision over local governments and autonomous regions, and the power


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granted to the President, within the specific confines of RA No. 10153, to appoint OICs. The power of supervision is defined as “the power of a superior officer to see to it that lower officers perform their functions in accordance with law.”[31] This is distinguished from the power of control or “the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter.”[32]

The petitioners’ apprehension regarding the

President’s alleged power of control over the OICs is rooted in their belief that the President’s appointment power includes the power to remove these officials at will. In this way, the petitioners foresee that the appointed OICs will be beholden to the President, and act as representatives of the President and not of the people.

Section 3 of RA No. 10153 expressly contradicts

the petitioners’ supposition. The provision states: Section 3. Appointment of Officers-in-Charge. — The President shall appoint officers-in-charge for the Office of the Regional Governor, Regional Vice Governor and Members of the Regional Legislative Assembly who shall perform the functions pertaining to the said offices until the officials duly elected in the May 2013 elections shall have qualified and assumed office. The wording of the law is clear. Once the President

has appointed the OICs for the offices of the Governor, Vice Governor and members of the Regional Legislative Assembly, these same officials will remain in office until they are replaced by the duly elected officials in the May 2013 elections. Nothing in this provision even hints that the President has the power to recall the appointments he already made. Clearly, the petitioners’ fears in this regard are more apparent than real. RA No. 10153 as an interim measure

We reiterate once more the importance of considering RA No. 10153 not in a vacuum, but within the context it was enacted in. In the first place, Congress enacted RA No. 10153 primarily to heed the constitutional mandate to synchronize the ARMM regional elections with the national and local elections. To do this, Congress had to postpone the scheduled ARMM elections for another date, leaving it with the problem of how to provide the ARMM with governance in the intervening period, between the expiration of the term of those elected in August 2008 and the assumption to office – twenty-one (21) months away – of those who will win in the synchronized elections on May 13, 2013.

In our assailed Decision, we already identified the three possible solutions open to Congress to address the problem created by synchronization – (a) allow the incumbent officials to remain in office after the expiration of their terms in a holdover capacity; (b) call for special elections to be held, and shorten the terms of those to be elected so the next ARMM regional elections can be held on May 13, 2013; or (c) recognize that the President, in the exercise of his appointment powers and in line with his power of supervision over the ARMM, can appoint interim OICs to hold the vacated positions in the ARMM regional government upon the expiration of their terms. We have already established the unconstitutionality of the first two options, leaving us to consider the last available option.

In this way, RA No. 10153 is in reality an interim

measure, enacted to respond to the adjustment that synchronization requires. Given the context, we have to judge RA No. 10153 by the standard of reasonableness in responding to the challenges brought about by synchronizing the ARMM elections with the national and local elections. In other words, “given the plain unconstitutionality of providing for a holdover and the unavailability of constitutional possibilities for lengthening or shortening the term of the elected ARMM officials, is the choice of the President’s power to appoint – for a fixed and specific period as an interim measure, and as allowed under Section 16, Article VII of the Constitution – an unconstitutional or unreasonable choice for Congress to make?”[33]

We admit that synchronization will temporarily

disrupt the election process in a local community, the ARMM, as well as the community’s choice of leaders. However, we have to keep in mind that the adoption of this measure is a matter of necessity in order to comply with a mandate that the Constitution itself has set out for us. Moreover, the implementation of the provisions of RA No. 10153 as an interim measure is comparable to the interim measures traditionally practiced when, for instance, the President appoints officials holding elective offices upon the creation of new local government units.

The grant to the President of the power to appoint OICs in place of the elective members of the Regional Legislative Assembly is neither novel nor innovative. The power granted to the President, via RA No. 10153, to appoint members of the Regional Legislative Assembly is comparable to the power granted by BP 881 (the Omnibus Election Code) to the President to fill any vacancy for any cause in the Regional Legislative Assembly (then called the Sangguniang Pampook).[34]

Executive is not bound by the principle of judicial courtesy The petitioners in G.R. No. 197280, in their Manifestation and Motion dated December 21, 2011, question the propriety of the appointment by the President of Mujiv Hataman as acting Governor and Bainon Karon as acting Vice Governor of the ARMM. They argue that since


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our previous decision was based on a close vote of 8-7, and given the numerous motions for reconsideration filed by the parties, the President, in recognition of the principle of judicial courtesy, should have refrained from implementing our decision until we have ruled with finality on this case. We find the petitioners’ reasoning specious. Firstly, the principle of judicial courtesy is based on the hierarchy of courts and applies only to lower courts in instances where, even if there is no writ of preliminary injunction or TRO issued by a higher court, it would be proper for a lower court to suspend its proceedings for practical and ethical considerations.[35] In other words, the principle of “judicial courtesy” applies where there is a strong probability that the issues before the higher court would be rendered moot and moribund as a result of the continuation of the proceedings in the lower court or court of origin.[36] Consequently, this principle cannot be applied to the President, who represents a co-equal branch of government. To suggest otherwise would be to disregard the principle of separation of powers, on which our whole system of government is founded upon. Secondly, the fact that our previous decision was based on a slim vote of 8-7 does not, and cannot, have the effect of making our ruling any less effective or binding. Regardless of how close the voting is, so long as there is concurrence of the majority of the members of the en banc who actually took part in the deliberations of the case,[37] a decision garnering only 8 votes out of 15 members is still a decision of the Supreme Court en banc and must be respected as such. The petitioners are, therefore, not in any position to speculate that, based on the voting, “the probability exists that their motion for reconsideration may be granted.”[38] Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion to Issue Clarificatory Resolution, argues that since motions for reconsideration were filed by the aggrieved parties challenging our October 18, 2011 decision in the present case, the TRO we initially issued on September 13, 2011 should remain subsisting and effective. He further argues that any attempt by the Executive to implement our October 18, 2011 decision pending resolution of the motions for reconsideration “borders on disrespect if not outright insolence”[39] to this Court.

In support of this theory, the petitioner cites Samad v. COMELEC,[40] where the Court held that while it had already issued a decision lifting the TRO, the lifting of the TRO is not yet final and executory, and can also be the subject of a motion for reconsideration. The petitioner also cites the minute resolution issued by the Court in Tolentino v. Secretary of Finance,[41] where the Court reproached the Commissioner of the Bureau of Internal Revenue for manifesting its intention to implement the decision of the Court, noting that the Court had not yet lifted the TRO previously issued.[42]

We agree with the petitioner that the lifting of a TRO can be included as a subject of a motion for reconsideration filed to assail our decision. It does not follow, however, that the TRO remains effective until after we have issued a final and executory decision, especially considering the clear wording of the dispositive portion of our October 18, 2011 decision, which states:

WHEREFORE, premises considered, we DISMISS the consolidated petitions assailing the validity of RA No. 10153 for lack of merit, and UPHOLD the constitutionality of this law. We likewise LIFT the temporary restraining order we issued in our Resolution of September 13, 2011. No costs.[43] (emphases ours)

In this regard, we note an important distinction between Tolentino and the present case. While it may be true that Tolentino and the present case are similar in that, in both cases, the petitions assailing the challenged laws were dismissed by the Court, an examination of the dispositive portion of the decision in Tolentino reveals that the Court did not categorically lift the TRO. In sharp contrast, in the present case, we expressly lifted the TRO issued on September 13, 2011. There is, therefore, no legal impediment to prevent the President from exercising his authority to appoint an acting ARMM Governor and Vice Governor as specifically provided for in RA No. 10153.

Conclusion As a final point, we wish to address the bleak

picture that the petitioner in G.R. No. 197282 presents in his motion, that our Decision has virtually given the President the power and authority to appoint 672,416 OICs in the event that the elections of barangay and Sangguniang Kabataan officials are postponed or cancelled.

We find this speculation nothing short of fear-

mongering. This argument fails to take into consideration the

unique factual and legal circumstances which led to the enactment of RA No. 10153. RA No. 10153 was passed in order to synchronize the ARMM elections with the national and local elections. In the course of synchronizing the ARMM elections with the national and local elections, Congress had to grant the President the power to appoint OICs in the ARMM, in light of the fact that: (a) holdover by the incumbent ARMM elective officials is legally impermissible; and (b) Congress cannot call for special elections and shorten the terms of elective local officials for less than three years.

Unlike local officials, as the Constitution does not prescribe a term limit for barangay and Sangguniang Kabataan officials, there is no legal proscription which prevents these specific government officials from continuing in a holdover capacity should some exigency require the


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postponement of barangay or Sangguniang Kabataan elections. Clearly, these fears have neither legal nor factual basis to stand on. For the foregoing reasons, we deny the petitioners’ motions for reconsideration.

WHEREFORE, premises considered, we DENY with FINALITY the motions for reconsideration for lack of merit and UPHOLD the constitutionality of RA No. 10153.

SO ORDERED.

CHAVEZ v. JBC 696 S 496 (2013)


Manila

EN BANC

G.R. No. 202242 April 16, 2013

FRANCISCO I. CHAVEZ, Petitioner, vs.JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS, JR.,Respondents.

R E S O L U T I O N

MENDOZA, J.:

This resolves the Motion for Reconsideration1 filed by the Office of the Solicitor General (OSG) on behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I. Chavez (petitioner).

By way of recapitulation, the present action stemmed from the unexpected departure of former Chief Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential successor. In his initiatory pleading, petitioner asked the Court to determine 1] whether the first paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1) member of Congress to sit in the JBC; and 2] if the practice of having two (2) representatives from each House of Congress with one (1) vote each is sanctioned by the Constitution.

On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the following manner:

WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to reconstitute itself so that only one (1) member of Congress will sit as a representative in its proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution.

This disposition is immediately executory.

SO ORDERED.

On July 31, 2012, following respondents’ motion for reconsideration and with due regard to Senate Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the arguments and agreed, in the meantime, to suspend the effects of the second paragraph of the dispositive portion of the July 17, 2012 Decision which decreed that it was immediately executory. The decretal portion of the August 3, 2012 Resolution8 reads:

WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten (10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the second paragraph of the dispositive portion of the Court’s July 17, 2012 Decision, which reads: "This disposition is immediately executory."9

Pursuant to the same resolution, petitioner and respondents filed their respective memoranda.10

Brief Statement of the Antecedents

In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise of appointing members of the Judiciary has always been the exclusive prerogative of the executive and legislative branches of the government. Like their progenitor of American origins, both the Malolos Constitution11 and the 1935 Constitution12 vested the power to appoint the members of the Judiciary in the President, subject to confirmation by the Commission on Appointments. It was during these times that the country became witness to the deplorable practice of aspirants seeking confirmation of their appointment in the Judiciary to ingratiate themselves with the members of the legislative body.13

Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in one body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The power became exclusive and absolute to the Executive, subject only to the condition that the appointees must have all the qualifications and none of the disqualifications.

Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political pressure and partisan activities,15 the members of the Constitutional Commission


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saw it wise to create a separate, competent and independent body to recommend nominees to the President.

Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment process, and called it the Judicial and Bar Council (JBC). The Framers carefully worded Section 8, Article VIII of the 1987 Constitution in this wise:

Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

From the moment of the creation of the JBC, Congress designated one (1) representative to sit in the JBC to act as one of the ex-officio members.16 Pursuant to the constitutional provision that Congress is entitled to one (1) representative, each House sent a representative to the JBC, not together, but alternately or by rotation.

In 1994, the seven-member composition of the JBC was substantially altered.1âwphi1 An eighth member was added to the JBC as the two (2) representatives from Congress began sitting simultaneously in the JBC, with each having one-half (1/2) of a vote.17

In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of Representatives one full vote each.18 It has been the situation since then.

Grounds relied upon by Respondents

Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the petition on the following grounds: 1] that allowing only one representative from Congress in the JBC would lead to absurdity considering its bicameral nature; 2] that the failure of the Framers to make the proper adjustment when there was a shift from unilateralism to bicameralism was a plain oversight; 3] that two representatives from Congress would not subvert the intention of the Framers to insulate the JBC from political partisanship; and 4] that the rationale of the Court in declaring a seven-member composition would provide a solution should there be a stalemate is not exactly correct.

While the Court may find some sense in the reasoning in amplification of the third and fourth grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on the principal issues covered by the first and second grounds for lack of merit. Significantly, the conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the final resolution of this case.

As these two issues are interrelated, the Court shall discuss them jointly.

Ruling of the Court

The Constitution evinces the direct action of the Filipino people by which the fundamental powers of government are established, limited and defined and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic.19 The Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the principles and the framework upon which government and society were to operate. Thus, in the interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the Framers mean what they say. The language used in the Constitution must be taken to have been deliberately chosen for a definite purpose. Every word employed in the Constitution must be interpreted to exude its deliberate intent which must be maintained inviolate against disobedience and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars modification even by the branch tasked to interpret it.

For this reason, the Court cannot accede to the argument of plain oversight in order to justify constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the singular letter "a" to describe "representative of Congress," the Filipino people through the Framers intended that Congress be entitled to only one (1) seat in the JBC. Had the intention been otherwise, the Constitution could have, in no uncertain terms, so provided, as can be read in its other provisions.

A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to be in tune with the shift to bicameralism. One example is Section 4, Article VII, which provides that a tie in the presidential election shall be broken "by a majority of all the Members of both Houses of the Congress, voting separately."20 Another is Section 8 thereof which requires the nominee to replace the Vice-President to be confirmed "by a majority of all the Members of both Houses of the Congress, voting separately."21 Similarly, under Section 18, the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus may be revoked or continued by the Congress, voting separately, by a vote of at least a majority of all its Members."22 In all these provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding adjustments were made as to how a matter would be handled and voted upon by its two Houses.

Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to their decision to shift to a bicameral form of the legislature, is not persuasive enough. Respondents cannot just lean on plain oversight to justify a conclusion favorable to them. It is very clear that the Framers were not keen on adjusting the provision on congressional representation in the JBC because it was not in the exercise of its primary function – to legislate. JBC was


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created to support the executive power to appoint, and Congress, as one whole body, was merely assigned a contributory non-legislative function.

The underlying reason for such a limited participation can easily be discerned. Congress has two (2) Houses. The need to recognize the existence and the role of each House is essential considering that the Constitution employs precise language in laying down the functions which particular House plays, regardless of whether the two Houses consummate an official act by voting jointly or separately. Whether in the exercise of its legislative23 or its non-legislative functions such as inter alia, the power of appropriation,24 the declaration of an existence of a state of war,25 canvassing of electoral returns for the President and Vice-President,26 and impeachment,27 the dichotomy of each House must be acknowledged and recognized considering the interplay between these two Houses. In all these instances, each House is constitutionally granted with powers and functions peculiar to its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in consonance with the principle of checks and balances, as to the other branches of government.

In checkered contrast, there is essentially no interaction between the two Houses in their participation in the JBC. No mechanism is required between the Senate and the House of Representatives in the screening and nomination of judicial officers. Rather, in the creation of the JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3) representatives from the major branches of government - the Chief Justice as ex-officio Chairman (representing the Judicial Department), the Secretary of Justice (representing the Executive Department), and a representative of the Congress (representing the Legislative Department). The total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature, not because it was in the interest of a certain constituency, but in reverence to it as a major branch of government.

On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno:

I humbly reiterate my position that there should be only one representative of Congress in the JBC in accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x.

The aforesaid provision is clear and unambiguous and does not need any further interpretation. Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them."

Further, to allow Congress to have two representatives in the Council, with one vote each, is to negate the principle of equality among the three branches of government which is enshrined in the Constitution.

In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single representation of Congress in the JBC in order to respect and give the right meaning to the above-quoted provision of the Constitution. (Emphases and underscoring supplied)

On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant, submitted to the Chief Justice and ex-officio JBC Chairman his opinion,29 which reads:

8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is intended to curtail the influence of politics in Congress in the appointment of judges, and the understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two votes for Congress runs counter to the intendment of the framers. Such interpretation actually gives Congress more influence in the appointment of judges. Also, two votes for Congress would increase the number of JBC members to eight, which could lead to voting deadlock by reason of even-numbered membership, and a clear violation of 7 enumerated members in the Constitution. (Emphases and underscoring supplied)

In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined:

As can be gleaned from the above constitutional provision, the JBC is composed of seven (7) representatives coming from different sectors. From the enumeration it is patent that each category of members pertained to a single individual only. Thus, while we do not lose sight of the bicameral nature of our legislative department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987 Constitution is explicit and specific that "Congress" shall have only "xxx a representative." Thus, two (2) representatives from Congress would increase the number of JBC members to eight (8), a number beyond what the Constitution has contemplated. (Emphases and underscoring supplied)

In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a former JBC consultant, is worth reiterating.31 Thus:

A perusal of the records of the Constitutional Commission reveals that the composition of the JBC reflects the Commission’s desire "to have in the Council a representation for the major elements of the community." xxx The ex-officio members of the Council consist of representatives from the three main branches of government while the regular members are composed of various stakeholders in the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio member as representing one co-equal branch of government. xxx Thus, the JBC was designed to have seven voting members with the three ex-officio members having equal say in the choice of judicial nominees.

x x x


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No parallelism can be drawn between the representative of Congress in the JBC and the exercise by Congress of its legislative powers under Article VI and constituent powers under Article XVII of the Constitution. Congress, in relation to the executive and judicial branches of government, is constitutionally treated as another co-equal branch in the matter of its representative in the JBC. On the other hand, the exercise of legislative and constituent powers requires the Senate and the House of Representatives to coordinate and act as distinct bodies in furtherance of Congress’ role under our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the two Houses of Congress as they relate inter se, no such dichotomy need be made when Congress interacts with the other two co-equal branches of government.

It is more in keeping with the co-equal nature of the three governmental branches to assign the same weight to considerations that any of its representatives may have regarding aspiring nominees to the judiciary. The representatives of the Senate and the House of Representatives act as such for one branch and should not have any more quantitative influence as the other branches in the exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality among the three branches support this conclusion. [Emphases and underscoring supplied]

The argument that a senator cannot represent a member of the House of Representatives in the JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the Senate or the House of Representatives, is constitutionally empowered to represent the entire Congress. It may be a constricted constitutional authority, but it is not an absurdity.

From this score stems the conclusion that the lone representative of Congress is entitled to one full vote. This pronouncement effectively disallows the scheme of splitting the said vote into half (1/2), between two representatives of Congress. Not only can this unsanctioned practice cause disorder in the voting process, it is clearly against the essence of what the Constitution authorized. After all, basic and reasonable is the rule that what cannot be legally done directly cannot be done indirectly. To permit or tolerate the splitting of one vote into two or more is clearly a constitutional circumvention that cannot be countenanced by the Court. Succinctly put, when the Constitution envisioned one member of Congress sitting in the JBC, it is sensible to presume that this representation carries with him one full vote.

It is also an error for respondents to argue that the President, in effect, has more influence over the JBC simply because all of the regular members of the JBC are his appointees. The principle of checks and balances is still safeguarded because the appointment of all the regular members of the JBC is subject to a stringent process of confirmation by the Commission on Appointments, which is composed of members of Congress.

Respondents’ contention that the current irregular composition of the JBC should be accepted, simply because it was only questioned for the first time through the present action, deserves scant consideration. Well-settled is the rule that acts done in violation of the Constitution no matter how frequent, usual or notorious cannot develop or gain acceptance under the doctrine of estoppel or laches, because once an act is considered as an infringement of the Constitution it is void from the very beginning and cannot be the source of any power or authority.

It would not be amiss to point out, however, that as a general rule, 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 inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the doctrine of operative facts, actions previous to the declaration of unconstitutionality are legally recognized. They are not nullified. This is essential in the interest of fair play. To reiterate the doctrine enunciated in Planters Products, Inc. v. Fertiphil Corporation:32

The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it.33

Under the circumstances, the Court finds the exception applicable in this case and holds that notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior official actions are nonetheless valid.

Considering that the Court is duty bound to protect the Constitution which was ratified by the direct action of the Filipino people, it cannot correct what respondents perceive as a mistake in its mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the Constitution, read into the law something that is contrary to its express provisions and justify the same as correcting a perceived inadvertence. To do so would otherwise sanction the Court action of making amendment to the Constitution through a judicial pronouncement.

In other words, the Court cannot supply the legislative omission. According to the rule of casus omissus "a case omitted is to be held as intentionally omitted."34 "The principle proceeds from a reasonable certainty that a particular person, object or thing has been omitted from a legislative enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the omission even though the


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omission may have resulted from inadvertence or because the case in question was not foreseen or contemplated."36 "The Court cannot supply what it thinks the legislature would have supplied had its attention been called to the omission, as that would be judicial legislation."37

Stated differently, the Court has no power to add another member by judicial construction.

The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the Constitution itself. Judicial activism should never be allowed to become judicial exuberance.38 In cases like this, no amount of practical logic or convenience can convince the Court to perform either an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope of congressional representation in the JBC is tantamount to the inclusion of a subject matter which was not included in the provision as enacted. True to its constitutional mandate, the Court cannot craft and tailor constitutional provisions in order to accommodate all of situations no matter how ideal or reasonable the proposed solution may sound. To the exercise of this intrusion, the Court declines.

WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED.

The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012 Decision of the Court, which reads, "This disposition is immediately executory," is hereby LIFTED.

SO ORDERED.

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