cases legislative

EN BANC

[G.R. No. 163193. June 15, 2004]

SIXTO S. BRILLANTES, JR. petitioner, vs. JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J. ANGARA, DR. JAIME Z. GALVEZ, TAN, FRANKLIN M. DRILON, FRISCO SAN JUAN, NORBERTO M. GONZALES, HONESTO M. ISLETA, AND JOSE A. BERNAS, petitioners-in-intervention, vs.

COMMISSION ON ELECTIONS, respondent.

D E C I S I O N

CALLEJO, SR., J.:

Before us is the petition for certiorari and prohibition under Rule 65 of the Rules of Court filed by Atty. Sixto S. Brillantes, Jr., a voter and taxpayer, seeking to nullify, for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, Resolution No. 6712 dated April 28, 2004 approved by the Commission on Elections (COMELEC) En Banc captioned GENERAL INSTRUCTIONS FOR THE ELECTRONIC TRANSMISSION AND CONSOLIDATION OF ADVANCED RESULTS IN THE MAY 10, 2004 ELECTIONS.[1] The petitioner, likewise, prays for the issuance of a temporary restraining order and, after due proceedings, a writ of prohibition to permanently enjoin the respondent COMELEC from enforcing and implementing the questioned resolution.

After due deliberation, the Court resolved to require the respondent to comment on the petition and to require the parties to observe the status quo prevailing before the issuance by the COMELEC of the assailed resolution. The parties were heard on oral arguments on May 8, 2004. The respondent COMELEC was allowed during the hearing to make a presentation of the Electronic Transmission, Consolidation and Dissemination (PHASE III) program of the COMELEC, through Mr. Renato V. Lim of the Philippine Multi-Media System, Inc. (PMSI).

The Court, thereafter, resolved to maintain the status quo order issued on May 6, 2004 and expanded it to cover any and all other issuances related to the implementation of the so-called election quick count project. In compliance with the resolution of the Court, the respondent, the petitioner and the petitioners-in-intervention submitted the documents required of them.

The Antecedents

On December 22, 1997, Congress enacted Republic Act No. 8436[2] authorizing the COMELEC to use an automated election system (AES) for the process of voting, counting of votes and canvassing/consolidating the results of the national and local elections. It also mandated the COMELEC to acquire automated counting machines (ACMs), computer equipment, devices and materials; and to adopt new electoral forms and printing materials.

The COMELEC initially intended to implement the automation during the May 11, 1998 presidential elections, particularly in the Autonomous Region in Muslim Mindanao (ARMM). The failure of the machines to read correctly some automated ballots, however, deferred its implementation.[3]

In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done manually, as no additional ACMs had been acquired for that electoral exercise because of time constraints.

On October 29, 2002, the COMELEC adopted, in its Resolution No. 02-0170, a modernization program for the 2004 elections consisting of three (3) phases, to wit:

(1) PHASE I Computerized system of registration and voters validation or the so-called biometrics system of registration;

(2) PHASE II Computerized voting and counting of votes; and

(3) PHASE III Electronic transmission of results.

It resolved to conduct biddings for the three phases.

On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172,[4] which allocated the sum of P2,500,000,000 to exclusively fund the AES in time for the May 10, 2004 elections.

On January 28, 2003, the COMELEC issued an Invitation to Bid[5] for the procurement of supplies, equipment, materials and services needed for the complete implementation of all three phases of the AES with an approved budget of P2,500,000,000.

On February 10, 2003, upon the request of the COMELEC, President Gloria Macapagal-Arroyo issued Executive Order No. 175,[6] authorizing the release of a supplemental P500 million budget for the AES project of the COMELEC. The said issuance, likewise, instructed the Department of Budget and Management (DBM) to ensure that the aforementioned additional amount be used exclusively for the AES prescribed under Rep. Act No. 8436, particularly the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections.[7]

On April 15, 2003, the COMELEC promulgated Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific Consortium and correspondingly entered into a contract with the latter to implement the project. On the same day, the COMELEC entered into a separate contract with Philippine Multi-Media System, Inc. (PMSI) denominated ELECTRONIC TRANSMISSION, CONSOLIDATION & DISSEMINATION OF ELECTION RESULTS PROJECT CONTRACT.[8] The contract, by its very terms, pertains to Phase III of the respondent COMELECs AES modernization program. It was predicated on a previous bid award of the contract, for the lease of 1,900 units of satellite-based Very Small Aperture Terminals (VSAT) each unit consisting of an indoor and outdoor equipment, to PMSI for possessing the legal, financial and technical expertise necessary to meet the projects objectives. The COMELEC bound and obliged itself to pay PMSI the sum of P298,375,808.90 as rentals for the leased equipment and for its services.

In the meantime, the Information Technology Foundation of the Philippines (ITFP), filed a petition for certiorari and prohibition in this Court for the nullification of Resolution No. 6074 approving the contract for Phase II of AES to Mega Pacific Consortium, entitled and docketed as Information Technology Foundation of the Philippines, et al. vs. COMELEC, et al., G.R. No. 159139. While the case was pending in this Court, the COMELEC paid the contract fee to the PMSI in trenches.

On January 13, 2004, this Court promulgated its Decision nullifying COMELEC Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific Consortium. Also voided was the subsequent contract entered into by the respondent COMELEC with Mega Pacific Consortium for the purchase of computerized voting/counting machines for the purpose of implementing the second phase of the modernization program. Phase II of the AES was, therefore, scrapped based on the said Decision of the Court and the COMELEC had to maintain the old manual voting and counting system for the May 10, 2004 elections.

On the other hand, the validation scheme under Phase I of the AES apparently encountered problems in its implementation, as evinced by the COMELECs pronouncements prior to the elections that it was reverting to the old listing of voters. Despite the scrapping of Phase II of the AES, the COMELEC nevertheless ventured to implement Phase III of the AES through an electronic transmission of

advanced unofficial results of the 2004 elections for national, provincial and municipal positions, also dubbed as an unofficial quick count.

Senate President Franklin Drilon had misgivings and misapprehensions about the constitutionality of the proposed electronic transmission of results for the positions of President and Vice-President, and apprised COMELEC Chairman Benjamin Abalos of his position during their meeting on January 28, 2004. He also wrote Chairman Abalos on February 2, 2004. The letter reads:

Dear Chairman Abalos,

This is to confirm my opinion which I relayed to you during our meeting on January 28th that the Commission on Elections cannot and should not conduct a quick count on the results of the elections for the positions of President and Vice-President.

Under Section 4 of Article VII of the Constitution, it is the Congress that has the sole and exclusive authority to canvass the votes for President and Vice-President. Thus, any quick count to be conducted by the Commission on said positions would in effect constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive of the authority of the Congress, but also would be lacking of any Constitutional authority. You conceded the validity of the position we have taken on this point.

In view of the foregoing, we asked the COMELEC during that meeting to reconsider its plan to include the votes for President and Vice-President in the quick count, to which you graciously consented. Thank you very much.[9]

The COMELEC approved a Resolution on February 10, 2004 referring the letter of the Senate President to the members of the COMELEC and its Law Department for study and recommendation. Aside from the concerns of the Senate President, the COMELEC had to contend with the primal problem of sourcing the money for the implementation of the project since the money allocated by the Office of the President for the AES had already been spent for the acquisition of the equipment. All these developments notwithstanding, and despite the explicit specification in the project contract for Phase III that the same was functionally intended to be an interface of Phases I and II of the AES modernization program, the COMELEC was determined to carry out Phase III of the AES. On April 6, 2004, the COMELEC, in coordination with the project contractor PMSI, conducted a field test of the electronic transmission of election results.

On April 27, 2004, the COMELEC met en banc to update itself on and resolve whether to proceed with its implementation of Phase III of the AES.[10] During the said meeting, COMELEC Commissioner Florentino Tuason, Jr. requested his fellow Commissioners that whatever is said here should be confined within the four walls of this room and the minutes so that walang masyadong problema.[11] Commissioner Tuason, Jr. stated that he had no objection as to the Phase III of the modernization project itself, but had concerns about the budget. He opined that other funds of the COMELEC may not be proper for realignment. Commissioners Resurreccion Z. Borra and Virgilio Garcillano also expressed their concerns on the budget for the project. Commissioner Manuel Barcelona, Jr. shared the sentiments of Commissioners Garcillano and Tuason, Jr. regarding personnel and budgetary problems. Commissioner Sadain then manifested that the consideration for the contract for Phase III had already been almost fully paid even before the Courts nullification of the contract for Phase II of the AES, but he was open to the possibility of the realignment of funds of the COMELEC for the funding of the project. He added that if the implementation of Phase III would not be allowed to continue just because Phase II was nullified, then it would be P300,000,000 down the drain, in addition to the already allocated disbursement on Phase II of the AES.[12] Other concerns of the Commissioners were on the legality of the project considering the scrapping of Phase II of the AES, as

well as the operational constraints related to its implementation.

Despite the dire and serious reservations of most of its members, the COMELEC, the next day, April 28, 2004, barely two weeks before the national and local elections, approved the assailed resolution declaring that it adopts the policy that the precinct election results of each city and municipality shall be immediately transmitted electronically in advance to the COMELEC, Manila.[13] For the purpose, respondent COMELEC established a National Consolidation Center (NCC), Electronic Transmission Centers (ETCs) for every city and municipality, and a special ETC at the COMELEC, Manila, for the Overseas Absentee Voting.[14]

Briefly, the procedure for this electronic transmission of precinct results is outlined as follows:

I. The NCC shall receive and consolidate all precinct results based on the data transmitted to it by each ETC;[15]

II. Each city and municipality shall have an ETC where votes obtained by each candidate for all positions shall be encoded, and shall consequently be transmitted electronically to the NCC, through Very Small Aperture Terminal (VSAT) facilities.[16] For this purpose, personal computers shall be allocated for all cities and municipalities at the rate of one set for every one hundred seventy-five (175) precincts;[17]

III. A Department of Education (DepEd) Supervisor shall be designated in the area who will be assigned in each polling center for the purpose of gathering from all Board of Election Inspectors (BEI) therein the envelopes containing the Copy 3 of the Election Returns (ER) for national positions and Copy 2 of the ER for local positions, both intended for the COMELEC, which shall be used as basis for the encoding and transmission of advanced precinct results.[18]

The assailed resolution further provides that written notices of the date, time and place of the electronic transmission of advanced precinct results shall be given not later than May 5, 2004 to candidates running for local positions, and not later than May 7, 2004 to candidates running for national positions, as well as to political parties fielding candidates, and parties, organizations/coalitions participating under the party-list system.[19]

In relation to this, Section 13 of the assailed resolution provides that the encoding proceedings were ministerial and the tabulations were advanced unofficial results. The entirety of Section 13, reads:

Sec. 13. Right to observe the ETC proceedings. Every registered political party or coalition of parties, accredited political party, sectoral party/organization or coalition thereof under the party-list, through its representative, and every candidate for national positions has the right to observe/witness the encoding and electronic transmission of the ERs within the authorized perimeter.

Provided, That candidates for the sangguniang panlalawigan, sangguniang panglungsod or sangguniang bayan belonging to the same slate or ticket shall collectively be entitled to only one common observer at the ETC.

The citizens arm of the Commission, and civic, religious, professional, business, service, youth and other similar organizations collectively, with prior authority of the Commission, shall each be entitled to one (1) observer. Such fact shall be recorded in the Minutes.

The observer shall have the right to observe, take note of and make observations on the proceedings of the team. Observations shall be in writing and, when submitted, shall be attached to the Minutes.

The encoding proceedings being ministerial in nature, and the tabulations being advanced unofficial results, no objections or protests shall be allowed or entertained by the ETC.

In keeping with the unofficial character of the electronically transmitted precinct results, the assailed

resolution expressly provides that no print-outs shall be released at the ETC and at the NCC.[20] Instead, consolidated and per-precinct results shall be made available via the Internet, text messaging, and electronic billboards in designated locations. Interested parties may print the result published in the COMELEC web site.[21]

When apprised of the said resolution, the National Citizens Movement for Free Elections (NAMFREL), and the heads of the major political parties, namely, Senator Edgardo J. Angara of the Laban ng Demokratikong Pilipino (LDP) and Chairman of the Koalisyon ng mga Nagkakaisang Pilipino (KNP) Executive Committee, Dr. Jaime Z. Galvez Tan of the Aksyon Demokratiko, Frisco San Juan of the Nationalist Peoples Coalition (NPC), Gen. Honesto M. Isleta of Bangon Pilipinas, Senate President Franklin Drilon of the Liberal Party, and Speaker Jose de Venecia of the Lakas-Christian Muslim Democrats (CMD) and Norberto M. Gonzales of the Partido Demokratiko Sosyalista ng Pilipinas, wrote the COMELEC, on May 3, 2004 detailing their concerns about the assailed resolution:

This refers to COMELEC Resolution 6712 promulgated on 28 April 2004.

NAMFREL and political parties have the following concerns about Resolution 6712 which arose during consultation over the past week[:]

a) The Resolution disregards RA 8173, 8436, and 7166 which authorize only the citizens arm to use an election return for an unofficial count; other unofficial counts may not be based on an election return; Indeed, it may be fairly inferred from the law that except for the copy of the citizens arm, election returns may only be used for canvassing or for receiving dispute resolutions.

b) The Commissions copy, the second or third copy of the election return, as the case may be, has always been intended to be an archived copy and its integrity preserved until required by the Commission to resolve election disputes. Only the Board of Election Inspectors is authorized to have been in contact with the return before the Commission unseals it.

c) The instruction contained in Resolution 6712, to break the seal of the envelope containing copies Nos. 2 and 3 will introduce a break in the chain of custody prior to its opening by the Commission on Election[s]. In the process of prematurely breaking the seal of the Board of Election Inspectors, the integrity of the Commissions copy is breached, thereby rendering it void of any probative value.

To us, it does appear that the use of election returns as prescribed in Resolution 6712 departs from the letters and spirit of the law, as well as previous practice. More importantly, questions of legalities aside, the conduct of an advanced count by the COMELEC may affect the credibility of the elections because it will differ from the results obtained from canvassing. Needless to say, it does not help either that Resolution 6712 was promulgated only recently, and perceivably, on the eve of the elections.

In view of the foregoing, we respectfully request the Commission to reconsider Resolution 6712 which authorizes the use of election returns for the consolidation of the election results for the May 10, 2004 elections.[22]

The Present Petition

On May 4, 2004, the petition at bar was filed in this Court.

Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara, Dr. Jaime Z. Galvez-Tan, Franklin M. Drilon, Frisco San Juan, Norberto M. Gonzales, Honesto M. Isleta and Jose A. Bernas, filed with this Court their Motion to Admit Attached Petition-in-Intervention. In their petition-in-intervention, movants-petitioners urge the Court to declare as null and void the assailed resolution and permanently enjoin the respondent COMELEC from implementing the same. The Court granted the motion of the petitioners-in-intervention and admitted their petition.

In assailing the validity of the questioned resolution, the petitioner avers in his petition that there is no provision under Rep. Act No. 8436 which authorizes the COMELEC to engage in the biometrics/computerized system of validation of voters (Phase I) and a system of electronic transmission of election results (Phase III). Even assuming for the nonce that all the three (3) phases are duly authorized, they must complement each other as they are not distinct and separate programs but mere stages of one whole scheme. Consequently, considering the failed implementation of Phases I and II, there is no basis at all for the respondent COMELEC to still push through and pursue with Phase III. The petitioner essentially posits that the counting and consolidation of votes contemplated under Section 6 of Rep. Act No. 8436 refers to the official COMELEC count under the fully automated system and not any kind of unofficial count via electronic transmission of advanced results as now provided under the assailed resolution.

The petitioners-in-intervention point to several constitutional infractions occasioned by the assailed resolution. They advance the view that the assailed resolution effectively preempts the sole and exclusive authority of Congress under Article VII, Section 4 of the Constitution to canvass the votes for President and Vice-President. Further, as there has been no appropriation by Congress for the respondent COMELEC to conduct an unofficial electronic transmission of results of the May 10, 2004 elections, any expenditure for the said purpose contravenes Article VI, Section 29 (par. 1) of the Constitution.

On statutory grounds, the petitioner and petitioners-in-intervention contend that the assailed resolution encroaches upon the authority of NAMFREL, as the citizens accredited arm, to conduct the unofficial quick count as provided under pertinent election laws. It is, likewise, impugned for violating Section 52(i) of the Omnibus Election Code, relating to the requirement of notice to the political parties and candidates of the adoption of technological and electronic devices during the elections.

For its part, the COMELEC preliminarily assails the jurisdiction of this Court to pass upon the assailed resolutions validity claiming that it was promulgated in the exercise of the respondent COMELECs executive or administrative power. It asserts that the present controversy involves a political question; hence, beyond the ambit of judicial review. It, likewise, impugns the standing of the petitioner to file the present petition, as he has not alleged any injury which he would or may suffer as a result of the implementation of the assailed resolution.

On the merits, the respondent COMELEC denies that the assailed resolution was promulgated pursuant to Rep. Act No. 8436, and that it is the implementation of Phase III of its modernization program. Rather, as its bases, the respondent COMELEC invokes the general grant to it of the power to enforce and administer all laws relative to the conduct of elections and to promulgate rules and regulations to ensure free, orderly and honest elections by the Constitution, the Omnibus Election Code, and Rep. Acts Nos. 6646 and 7166. The COMELEC avers that granting arguendo that the assailed resolution is related to or connected with Phase III of the modernization program, no specific law is violated by its implementation. It posits that Phases I, II and III are mutually exclusive schemes such that, even if the first two phases have been scrapped, the latter phase may still proceed independently of and separately from the others. It further argues that there is statutory basis for it to conduct an unofficial quick count. Among others, it invokes the general grant to it of the power to ensure free, orderly, honest, peaceful and credible elections. Finally, it claims that it had complied with Section 52(i) of the Omnibus Election Code, as the political parties and all the candidates of the 2004 elections were sufficiently notified of the electronic transmission of advanced election results.

The COMELEC trivializes as purely speculative these constitutional concerns raised by the petitioners-in-intervention and the Senate President. It maintains that what is contemplated in the assailed resolution is not a canvass of the votes but merely consolidation and transmittal thereof. As such, it

cannot be made the basis for the proclamation of any winning candidate. Emphasizing that the project is unofficial in nature, the COMELEC opines that it cannot, therefore, be considered as preempting or usurping the exclusive power of Congress to canvass the votes for President and Vice-President.

The Issues

At the said hearing on May 8, 2004, the Court set forth the issues for resolution as follows:

1. Whether the petitioner and the petitioners-intervenors have standing to sue;

2. Assuming that they have standing, whether the issues they raise are political in nature over which the Court has no jurisdiction;

3. Assuming the issues are not political, whether Resolution No. 6712 is void:

(a) for preempting the sole and exclusive authority of Congress under Art. VII, Sec. 4 of the 1987 Constitution to canvass the votes for the election of President and Vice-President;

(b) for violating Art. VI, Sec. 29 (par. 1) of the 1987 Constitution that no money shall be paid out of the treasury except in pursuance of an appropriation made by law;

(c) for disregarding Rep. Acts Nos. 8173, 8436 and 7166 which authorize only the citizens arm to use an election return for an unofficial count;

(d) for violation of Sec. 52(i) of the Omnibus Election Code, requiring not less than thirty (30) days notice of the use of new technological and electronic devices; and,

(e) for lack of constitutional or statutory basis; and,

4. Whether the implementation of Resolution No. 6712 would cause trending, confusion and chaos.

The Ruling of the Court

The issues, as earlier defined, shall now be resolved in seriatim:

The Petitioners And Petitioners-In-Intervention Possess The LocusStandi To Maintain The PresentAction

The gist of the question of standing is whether a party has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.[23] Since the implementation of the assailed resolution obviously involves the expenditure of funds, the petitioner and the petitioners-in-intervention, as taxpayers, possess the requisite standing to question its validity as they have sufficient interest in preventing the illegal expenditure of money raised by taxation.[24] In essence, taxpayers are allowed to sue where there is a claim of illegal disbursement of public funds, or that public money is being deflected to any improper purpose, or where the petitioners seek to restrain the respondent from wasting public funds through the enforcement of an invalid or unconstitutional law.[25]

Most of the petitioners-in-intervention are also representatives of major political parties that have participated in the May 10, 2004 elections. On the other hand, petitioners-in-intervention Concepcion

and Bernas represent the National Citizens Movement for Free Elections (NAMFREL), which is the citizens arm authorized to conduct an unofficial quick count during the said elections. They have sufficient, direct and personal interest in the manner by which the respondent COMELEC would conduct the elections, including the counting and canvassing of the votes cast therein.

Moreover, the petitioners-in-intervention Drilon and De Venecia are, respectively, President of the Senate and Speaker of the House of Representatives, the heads of Congress which is exclusively authorized by the Constitution to canvass the votes for President and Vice-President. They have the requisite standing to prevent the usurpation of the constitutional prerogative of Congress.

The Issue Raised By ThePetition Is Justiciable

Article VIII, Section 1 of the 1987 Constitution expands the concept of judicial review by providing that:

SEC. 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

The Court does not agree with the posture of the respondent COMELEC that the issue involved in the present petition is a political question beyond the jurisdiction of this Court to review. As the leading case of Taada vs. Cuenco[26] put it, political questions are concerned with issues dependent upon the wisdom, not legality of a particular measure.

The issue raised in the present petition does not merely concern the wisdom of the assailed resolution but focuses on its alleged disregard for applicable statutory and constitutional provisions. In other words, that the petitioner and the petitioners-in-intervention are questioning the legality of the respondent COMELECs administrative issuance will not preclude this Court from exercising its power of judicial review to determine whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the respondent COMELEC in issuing Resolution No. 6712. Indeed, administrative issuances must not override, supplant or modify the law, but must remain consistent with the law they intend to carry out.[27] When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable the problem being one of legality or validity, not its wisdom.[28] In the present petition, the Court must pass upon the petitioners contention that Resolution No. 6712 does not have adequate statutory or constitutional basis.

Although not raised during the oral arguments, another procedural issue that has to be addressed is whether the substantive issues had been rendered moot and academic. Indeed, the May 10, 2004 elections have come and gone. Except for the President and Vice-President, the newly- elected national and local officials have been proclaimed. Nonetheless, the Court finds it necessary to resolve the merits of the substantive issues for future guidance of both the bench and bar.[29] Further, it is settled rule that courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review.[30]

The Respondent COMELECCommitted Grave Abuse OfDiscretion Amounting To Lack Or

Excess Of Jurisdiction In IssuingResolution No. 6712

The preliminary issues having been thus resolved, the Court shall proceed to determine whether the respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in promulgating the assailed resolution.

The Court rules in the affirmative.

An administrative body or tribunal acts without jurisdiction if it does not have the legal power to determine the matter before it; there is excess of jurisdiction where the respondent, being clothed with the power to determine the matter, oversteps its authority as determined by law.[31] There is grave abuse of discretion justifying the issuance of the writ of certiorari when there is a capricious and whimsical exercise of his judgment as is equivalent to lack of jurisdiction.[32]

First. The assailed resolution usurps, under the guise of an unofficial tabulation of election results based on a copy of the election returns, the sole and exclusive authority of Congress to canvass the votes for the election of President and Vice-President. Article VII, Section 4 of the Constitution provides in part:

The returns of every election for President and Vice-President duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.

As early as January 28, 2004, Senate President Franklin M. Drilon already conveyed to Chairman Benjamin S. Abalos, Sr. his deep-seated concern that the respondent COMELEC could not and should not conduct any quick count of the votes cast for the positions of President and Vice-President. In his Letter dated February 2, 2004[33] addressed to Chairman Abalos, Senate President Drilon reiterated his position emphasizing that any quick count to be conducted by the Commission on said positions would in effect constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive of the authority of Congress, but would also be lacking of any constitutional authority.[34]

Nonetheless, in disregard of the valid objection of the Senate President, the COMELEC proceeded to promulgate the assailed resolution. Such resolution directly infringes the authority of Congress, considering that Section 4 thereof allows the use of the third copy of the Election Returns (ERs) for the positions of President, Vice-President, Senators and Members of the House of Representatives, intended for the COMELEC, as basis for the encoding and transmission of advanced precinct results, and in the process, canvass the votes for the President and Vice-President, ahead of the canvassing of the same votes by Congress.

Parenthetically, even the provision of Rep. Act No. 8436 confirms the constitutional undertaking of Congress as the sole body tasked to canvass the votes for the President and Vice-President. Section 24 thereof provides:

SEC. 24. Congress as the National Board of Canvassers for President and Vice-President. -- The Senate and the House of Representatives, in joint public session, shall compose the national board of canvassers for president and vice-president. The returns of every election for president and vice-president duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the president of the Senate. Upon receipt of the certificates of canvass, the president of the Senate shall, not later than thirty (30) days after the day of the election, open all the

certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress upon determination of the authenticity and the due execution thereof in the manner provided by law, canvass all the results for president and vice-president by consolidating the results contained in the data storage devices submitted by the district, provincial and city boards of canvassers and thereafter, proclaim the winning candidates for president and vice-president.

The contention of the COMELEC that its tabulation of votes is not prohibited by the Constitution and Rep. Act No. 8436 as such tabulation is unofficial, is puerile and totally unacceptable. If the COMELEC is proscribed from conducting an official canvass of the votes cast for the President and Vice-President, the COMELEC is, with more reason, prohibited from making an unofficial canvass of said votes.

The COMELEC realized its folly and the merits of the objection of the Senate President on the constitutionality of the resolution that it decided not to conduct an unofficial quick count of the results of the elections for President and Vice-President. Commissioner Sadain so declared during the hearing:

JUSTICE PUNO:

The word you are saying that within 36 hours after election, more or less, you will be able to tell the people on the basis of your quick count, who won the election, is that it?

COMM. SADAIN:

Well, its not exactly like that, Your Honor. Because the fact of winning the election would really depend on the canvassed results, but probably, it would already give a certain degree of comfort to certain politicians to people rather, as to who are leading in the elections, as far as Senator down are concerned, but not to President and Vice-President.

JUSTICE PUNO:

So as far as the Senatorial candidates involved are concerned, but you dont give this assurance with respect to the Presidential and Vice-Presidential elections which are more important?

COMM. SADAIN:

In deference to the request of the Senate President and the House Speaker, Your Honor. According to them, they will be the ones canvassing and proclaiming the winner, so it is their view that we will be pre-empting their canvassing work and the proclamation of the winners and we gave in to their request.[35]

JUSTICE CALLEJO, [SR.]:

Perhaps what you are saying is that the system will minimize dagdag-bawas but not totally eradicate dagdag-bawas?

COMM. SADAIN:

Yes, Your Honor.


Now, I heard either Atty. Bernas or Atty. Brillantes say (sic) that there was a conference between the Speaker and the Senate President and the Chairman during which the Senate President and the Speaker voice[d] their objections to the electronic transmission results system, can you share with us the objections of the two gentlemen?

COMM. SADAIN:

These was relayed to us Your Honor and their objection or request rather was for us to refrain from

consolidating and publishing the results for presidential and vice-presidential candidates which we have already granted Your Honors. So, there is going to be no consolidation and no publication of the

COMM. SADAIN:

Reason behind being that it is actually Congress that canvass that the official canvass for this and proclaims the winner.[36]

Second. The assailed COMELEC resolution contravenes the constitutional provision that no money shall be paid out of the treasury except in pursuance of an appropriation made by law.[37]

By its very terms, the electronic transmission and tabulation of the election results projected under Resolution No. 6712 is unofficial in character, meaning not emanating from or sanctioned or acknowledged by the government or government body.[38] Any disbursement of public funds to implement this project is contrary to the provisions of the Constitution and Rep. Act No. 9206, which is the 2003 General Appropriations Act. The use of the COMELEC of its funds appropriated for the AES for the unofficial quick count project may even be considered as a felony under Article 217 of the Revised Penal Code, as amended.[39]

Irrefragably, the implementation of the assailed resolution would entail, in due course, the hiring of additional manpower, technical services and acquisition of equipment, including computers and software, among others. According to the COMELEC, it needed P55,000,000 to operationalize the project, including the encoding process.[40] Hence, it would necessarily involve the disbursement of public funds for which there must be the corresponding appropriation.

The COMELEC posited during the hearing that the 2003 General Appropriations Act has appropriated the amount needed for its unofficial tabulation. We quote the transcript of stenographic notes taken during the hearing:

JUSTICE VITUG:

And you mentioned earlier something about 55 million not being paid as yet?

COMM. SADAIN:

This is an extra amount that we will be needing to operationalize.

JUSTICE VITUG:

And this has not yet been done?

COMM. SADAIN:

It has not yet been done, Your Honor.

JUSTICE VITUG:

Would you consider the funds that were authorized by you under the General Appropriations Act as capable of being used for this purpose?

COMM. SADAIN:

Yes, thats our position, Your Honor.[41]

But then the COMELEC, through Commissioner Sadain, admitted during the said hearing that although it had already approved the assailed resolution, it was still looking for the P55,000,000 needed to operationalize the project:

JUSTICE CARPIO:

Just a clarification. You stated that you signed already the main contract for 300 million but you have not signed the 55 million supplemental contract for the encoding?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:

Because you still dont have the money for that?

COMM. SADAIN:

Well, yes, we are trying to determine where we can secure the money.

JUSTICE CARPIO:

Now, the encoding is crucial; without the encoding, the entire project collapses?

COMM. SADAIN:

Yes.[42]

Inexplicably, Commissioner Sadain contradicted himself when he said that its Financial Department had already found the money, but that proper documentation was forthcoming:

JUSTICE CARPIO:


COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:


COMM. SADAIN:


JUSTICE CARPIO:


COMM. SADAIN:

Yes.

JUSTICE CARPIO:

So, you have two (2) days to look for the 55 million, you have signed the contract on the main contract and if you dont get that 55 million, that 300 million main contract goes to waste, because you cannot encode?

COMM. SADAIN:

Its just a matter of proper documentation, Your Honor, because I was informed by our Finance Department that the money is there.

JUSTICE CARPIO:

So, you have found the money already?

COMM. SADAIN:

Yes, Your Honor.[43]

Earlier, during the April 27, 2004 meeting of the COMELEC En Banc, the Commissioners expressed their serious concerns about the lack of funds for the project, the propriety of using the funds for Phase III of its modernization, and the possibility of realigning funds to finance the project:

Comm. Tuason:

May I just request all the parties who are in here na whatever is said here should be confined within the four walls of this room and the minutes so that walang masyadong problema.

Comm. Borra:

Sa akin lang, we respect each others opinion. I will not make any observations. I will just submit my own memo to be incorporated in the minutes.

Comm. Tuason:

Commissioner Borra will submit a comment to be attached to the minutes but not on the resolution. Ako naman, I will just make it on record my previous reservation. I do not have any objection as to the Phase III modernization project itself. My main concern is the budget. I would like to make it on record that the budget for Phase III should be taken from the modernization program fund because Phase III is definitely part of the modernization project. Other funds, for instance other funds to be used for national elections may not be proper for realignment. That is why I am saying that the funds to be used for Phase III should properly come from the modernization. The other reservation is that the Election Officers are now plagued with so much work such as the preparation of the list of voters and their concern in their respective areas. They were saying to me, specially so in my own region, that to burden them with another training at this point in time will make them loose (sic) focus on what they are really doing for the national elections and what they are saying is that they should not be subjected to any training anymore. And they also said that come canvassing time, their priority would be to canvass first before they prepare the certificate of votes to be fed to the encoders [to be fed to the encoders] for electronic transmission. I share the sentiments of our people in the field. That is also one of my reservations. Thank you.

Comm. Garcillano:

I also have my observations regarding the financial restraint that we are facing if the money that is going to be used for this is taken from the Phase II, I dont think there is money left.

Comm. Borra:

There is no more money in Phase II because the budget for Phase II is 1.3 Billion. The award on the contract for Phase II project is 1.248 billion. So the remaining has been allocated for additional expenses for the technical working group and staff for Phase II.

Comm. Garcillano:

I also have one problem. We have to have additional people to man this which I think is already being taken cared of. Third is, I know that this will disrupt the canvassing that is going to be handled by our EO and Election Assistant. I do not know if it is given to somebody (inaudible)

Comm. Tuason:

Those are your reservations.

Comm. Barcelona:

As far as I am concerned, I also have my reservations because I have the same experience as Commissioner Tuason when I went to Region IX and Caraga. Our EOs and PES expressed apprehension over the additional training period that they may have to undergo although, they say, that if that is an order they will comply but it will be additional burden on them. I also share the concern of Commissioner Tuason with regard to the budget that should be taken from the modernization budget.

Comm. Borra:

For the minutes, my memo is already prepared. I will submit it in detail. On three counts naman yan eh legal, second is technical/operational and third is financial.

Comm. Sadain:

Ako naman, for my part as the CIC for Phase III, we were left with no choice but to implement Phase III inasmuch as expenses has already been incurred in Phase III to the tune of almost 100% at the time when the Phase II contract was nullified. So if we stop the implementation of Phase III just because Phase II was nullified, which means that there would be no consolidation and accounting consolidation for the machines, then it would be again 300 million pesos down the drain. Necessarily there would be additional expense but we see this as a consequence of the loss of Phase II. I share the view of Comm. Tuason that as much as possible this should be taken from the modernization fund as much as this is properly modernization concern. However, I would like to open myself to the possibility na in case wala talaga , we might explore the possibility of realigning funds although that might not (inaudible). Now with regards the legality, I think what Commissioner Borra has derived his opinion but I would like to think the legality issue must have been settled already as early as when we approved the modernization program involving all three phases although we also grant the benefit of the argument for Commissioner Borra if he thinks that there is going to be a legal gap for the loss of Phase II. With regards the concern with the Election Officers, I also share the same concern. In fact, on this matter alone, we try to make the GI as simple as possible so that whatever burden we will be giving to the EOs and EAs will be minimized. As in fact, we will be recommending that the EOs will no longer be bothered to attend the training. They can probably just sit in for the first hour and then they can go on with their normal routine and then leave the encoders as well as the reception officers to attend the training because there (sic) are the people who will really be doing the ministerial, almost mechanical, work of encoding and transmitting the election results. Yun lang . [44]

We have reviewed Rep. Act No. 9206, the General Appropriations Act, which took effect on April 23, 2003 and find no appropriation for the project of the COMELEC for electronic transmission of unofficial election results. What is appropriated therein is the amount of P225,000,000 of the capital outlay for the modernization of the electoral system.

B. PROJECTSMaintenance & Other Operating ExpensesCapital OutlaysTotalI. Locally-Funded Projects a. For the Modernization of Electoral System

225,000,000

225,000,000b. FY 2003 Preparatory Activities for National Elections

250,000,000

250,000,000c. Upgrading of Voters Database 125,000,000 125,000,000d. Conduct of Special Election to

fill the vacancy in the Third District

of Cavite

6,500,000

6,500,000e. Implementation of Absentee

Voting Act of 2003 (RA 9189)

300,000,000

==========

=========

300,000,000

==========Sub-Total, Locally-Funded Projects681,500,000225,000,000300,000,000[45]

Under paragraph 3 of the special provisions of Rep. Act No. 9206, the amount of P225,000,000 shall be used primarily for the establishment of the AES prescribed under Rep. Act No. 8436, viz:

3. Modernization of Electoral System. The appropriations herein authorized for the Modernization of the Electoral System in the amount of Two Hundred Twenty-Five Million Pesos (P225,000,000.00) shall be used primarily for the establishment of the automated election system, prescribed under Republic Act No. 8436, particularly for the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections.[46]

Section 52 of Rep. Act No. 9206 proscribes any change or modification in the expenditure items authorized thereunder. Thus:

Sec. 52. Modification of Expenditure Components. Unless specifically authorized in this Act, no change or modification shall be made in the expenditure items in this Act and other appropriations laws unless in cases of augmentation from savings in appropriations as authorized under Section 25(5), Article VI of the 1987 Philippine Constitution.

Neither can the money needed for the project be taken from the COMELECs savings, if any, because it would be violative of Article VI, Section 25 (5)[47] of the 1987 Constitution.

The power to augment from savings lies dormant until authorized by law.[48] In this case, no law has, thus, far been enacted authorizing the respondent COMELEC to transfer savings from another item in its appropriation, if there are any, to fund the assailed resolution. No less than the Secretary of the Senate certified that there is no law appropriating any amount for an unofficial count and tabulation of the votes cast during the May 10, 2004 elections:

CERTIFICATION

I hereby certify that per records of the Senate, Congress has not legislated any appropriation intended to defray the cost of an unofficial count, tabulation or consolidation of the votes cast during the May 10, 2004 elections.

May 11, 2004. Pasay City, Philippines.

What is worrisome is that despite the concerns of the Commissioners during its En Banc meeting on

April 27, 2004, the COMELEC nevertheless approved the assailed resolution the very next day. The COMELEC had not executed any supplemental contract for the implementation of the project with PMSI. Worse, even in the absence of a certification of availability of funds for the project, it approved the assailed resolution.

Third. The assailed resolution disregards existing laws which authorize solely the duly-accredited citizens arm to conduct the unofficial counting of votes. Under Section 27 of Rep. Act No. 7166, as amended by Rep. Act No. 8173,[49] and reiterated in Section 18 of Rep. Act No. 8436,[50] the accredited citizens arm - in this case, NAMFREL - is exclusively authorized to use a copy of the election returns in the conduct of an unofficial counting of the votes, whether for the national or the local elections. No other entity, including the respondent COMELEC itself, is authorized to use a copy of the election returns for purposes of conducting an unofficial count. In addition, the second or third copy of the election returns, while required to be delivered to the COMELEC under the aforementioned laws, are not intended for undertaking an unofficial count. The aforesaid COMELEC copies are archived and unsealed only when needed by the respondent COMELEC to verify election results in connection with resolving election disputes that may be imminent. However, in contravention of the law, the assailed Resolution authorizes the so-called Reception Officers (RO), to open the second or third copy intended for the respondent COMELEC as basis for the encoding and transmission of advanced unofficial precinct results. This not only violates the exclusive prerogative of NAMFREL to conduct an unofficial count, but also taints the integrity of the envelopes containing the election returns, as well as the returns themselves, by creating a gap in its chain of custody from the Board of Election Inspectors to the COMELEC.

Fourth. Section 52(i) of the Omnibus Election Code, which is cited by the COMELEC as the statutory basis for the assailed resolution, does not cover the use of the latest technological and election devices for unofficial tabulations of votes. Moreover, the COMELEC failed to notify the authorized representatives of accredited political parties and all candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices. Section 52(i) reads:

SEC. 52. Powers and functions of the Commission on Elections. In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections, and shall :

(i) Prescribe the use or adoption of the latest technological and electronic devices, taking into account the situation prevailing in the area and the funds available for the purpose: Provided, That the Commission shall notify the authorized representatives of accredited political parties and candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices.

From the clear terms of the above provision, before the COMELEC may resort to and adopt the latest technological and electronic devices for electoral purposes, it must act in accordance with the following conditions:

(a) Take into account the situation prevailing in the area and the funds available for the purpose; and,

(b) Notify the authorized representatives of accredited political parties and candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices.

It is quite obvious that the purpose of this provision is to accord to all political parties and all candidates the opportunity to object to the effectiveness of the proposed technology and devices, and,

if they are so minded not to object, to allow them ample time to field their own trusted personnel especially in far flung areas and to take other necessary measures to ensure the reliability of the proposed electoral technology or device.

As earlier pointed out, the assailed resolution was issued by the COMELEC despite most of the Commissioners apprehensions regarding the legal, operational and financial impediments thereto. More significantly, since Resolution No. 6712 was made effective immediately a day after its issuance on April 28, 2004, the respondent COMELEC could not have possibly complied with the thirty-day notice requirement provided under Section 52(i) of the Omnibus Election Code. This indubitably violates the constitutional right to due process of the political parties and candidates. The Office of the Solicitor General (OSG) concedes this point, as it opines that the authorized representatives of accredited political parties and candidates should have been notified of the adoption of the electronic transmission of election returns nationwide at the latest on April 7, 2004, April 8 and 9 being Holy Thursday and Good Friday, pursuant to Section 52(i) of the Omnibus Election Code.[51] Furthermore, during the hearing on May 18, 2004, Commissioner Sadain, who appeared for the COMELEC, unabashedly admitted that it failed to notify all the candidates for the 2004 elections, as mandated by law:

JUSTICE CARPIO:

You stated that you have notified in writing all the political parties and candidates as required in Section 52 (i)?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:

Now, how many candidates are there nationwide now?

COMM. SADAIN:

I must admit you Honor we were not able to notify the candidates but we notified the politicians.

JUSTICE CARPIO:

Yes, but what does the law state? Read the law please.

COMM. SADAIN:

Yes, Your Honor. I understand that it includes candidates.

JUSTICE CARPIO:

And there are how many candidates nationwide running in this election?

COMM. SADAIN:

Hundreds of thousands, Your Honor.

JUSTICE CARPIO:

Hundreds of thousands, so you mean you just notified the political parties not the candidates?

COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:

And you think that is substantial compliance, you would notify how many political parties as against hundreds of thousands of candidates?

COMM. SADAIN:

Yes, Your Honor, we notified the major political parties, Your Honor.

JUSTICE CARPIO:

Only the major political parties?

COMM. SADAIN:

Including party list?

JUSTICE CARPIO:

But not the candidates, individual candidates?

COMM. SADAIN:

We were not able to do that, Your Honor, I must admit.

JUSTICE CARPIO:

So, you did not notify hundreds of thousands of candidates?

COMM. SADAIN:

No, Your Honors.[52]

The respondent COMELEC has, likewise, failed to submit any resolution or document to prove that it had notified all political parties of the intended adoption of Resolution No. 6712, in compliance with Section 52(i) of the Omnibus Election Code. This notwithstanding the fact that even long before the issuance of the assailed resolution, it had admittedly entered into a contract on April 15, 2003[53] and acquired facilities pertaining to the implementation of the electronic transmission and official tabulation of election results. As correctly pointed out by the petitioners-in-intervention, the invitations dated January 15, 2004 regarding the January 20, 2004 COMELEC Conference with the political parties on election security measures did not mention electronic transmission of advanced results, much less the formal adoption of the purpose of the conference. Such notices merely invited the addressee thereof or its/his authorized representative to a conference where the COMELEC would show a sample of the official ballot to be used in the elections, discuss various security measures that COMELEC had put in place, and solicit suggestions to improve the administration of the polls.[54] Further, the invitations purportedly sent out to the political parties regarding the April 6, 2004 Field Test of the Electronic Transmission, Consolidation and Dissemination System to be conducted by the COMELEC appear to have been sent out in the late afternoon of April 5, 2004, after office hours. There is no showing that all the political parties attended the Field Test, or received the invitations. More importantly, the said invitations did not contain a formal notice of the adoption of a technology, as required by Section 52(i) of the Omnibus Election Code.[55]

Fifth. The assailed resolution has no constitutional and statutory basis. That respondent COMELEC is the sole body tasked to enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum and recall[56] and to ensure free, orderly, honest, peaceful and credible elections[57] is beyond cavil. That it possesses the power to promulgate rules and regulations in the performance of its constitutional duties is, likewise, undisputed. However, the duties of the COMELEC under the Constitution, Rep. Act No. 7166, and other election laws are carried out, at all times, in its official capacity. There is no constitutional and statutory basis for the respondent

COMELEC to undertake a separate and an unofficial tabulation of results, whether manually or electronically. Indeed, by conducting such unofficial tabulation of the results of the election, the COMELEC descends to the level of a private organization, spending public funds for the purpose. Besides, it is absurd for the COMELEC to conduct two kinds of electoral counts a slow but official count, and an alleged quicker but unofficial count, the results of each may substantially differ.

Clearly, the assailed resolution is an implementation of Phase III of the modernization program of the COMELEC under Rep. Act No. 8436. Section 2 of the assailed resolution expressly refers to the Phase III-Modernization Project of the COMELEC. Since this Court has already scrapped the contract for Phase II of the AES, the COMELEC cannot as yet implement the Phase III of the program. This is so provided in Section 6 of Rep. Act No. 8436.

SEC. 6. Authority to Use an Automated Election System. -- To carry out the above-stated policy, the Commission on Elections, herein referred to as the Commission, is hereby authorized to use an automated election system, herein referred to as the System, for the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections: Provided, however, That for the May 11, 1998 elections, the System shall be applicable in all areas within the country only for the positions of president, vice-president, senators and parties, organizations or coalitions participating under the party-list system.

To achieve the purpose of this Act, the Commission is authorized to procure by purchase, lease or otherwise, any supplies, equipment, materials and services needed for the holding of the elections by an expedited process of public bidding of vendors, suppliers or lessors: Provided, That the accredited political parties are duly notified of and allowed to observe but not to participate in the bidding. If in spite of its diligent efforts to implement this mandate in the exercise of this authority, it becomes evident by February 9, 1998 that the Commission cannot fully implement the automated election system for national positions in the May 11, 1998 elections, the elections for both national and local positions shall be done manually except in the Autonomous Region in Muslim Mindanao (ARMM) where the automated election system shall be used for all positions.

The AES provided in Rep. Act No. 8436 constitutes the entire process of voting, counting of votes and canvassing/consolidation of results of the national and local elections corresponding to the Phase I, Phase II and Phase III of the AES of the COMELEC. The three phases cannot be effected independently of each other. The implementation of Phase II of the AES is a condition sine qua non to the implementation of Phase III. The nullification by this Court of the contract for Phase II of the System effectively put on hold, at least for the May 10, 2004 elections, the implementation of Phase III of the AES.

Sixth. As correctly observed by the petitioner, there is a great possibility that the unofficial results reflected in the electronic transmission under the supervision and control of the COMELEC would significantly vary from the results reflected in the COMELEC official count. The latter follows the procedure prescribed by the Omnibus Election Code, which is markedly different from the procedure envisioned in the assailed resolution.

Under the Omnibus Election Code, after the votes are cast and the polls closed, the Board of Election Inspectors (BEI) for each precinct is enjoined to publicly count the votes and record the same simultaneously on the tally boards and on two sets of ERs. Each set of the ER is prepared in eight (8) copies. After the ERs are accomplished, they are forwarded to the Municipal Board of Canvassers (MBC), which would canvass all the ERs and proclaim the elected municipal officials. All the results in the ERs are transposed to the statements of votes (SOVs) by precinct. These SOVs are then transferred to the certificates of canvass (COCs) which are, in turn, brought to the Provincial Board of Canvassers (PBC). Subsequently, the PBC would canvass all the COCs from various municipalities

and proclaim the elected provincial officials, including those to the House of Representatives. The PBC would then prepare two sets of Provincial Certificates of Canvass (PCOCs). One set is forwarded to Congress for its canvassing of the results for the President and Vice-President. The other set is forwarded to the COMELEC for its canvassing of the results for Senators.

As the results are transposed from one document to another, and as each document undergoes the procedure of canvassing by various Boards of Canvassers, election returns and certificates of canvass are objected to and at times excluded and/or deferred and not tallied, long after the pre-proclamation controversies are resolved by the canvass boards and the COMELEC.

On the other hand, under the assailed resolution, the precinct results of each city and municipality received by the ETCs would be immediately electronically transmitted to the NCC. Such data, which have not undergone the process of canvassing, would expectedly be dissimilar to the data on which the official count would be based.

Resultantly, the official and unofficial canvass, both to be administered by the respondent COMELEC, would most likely not tally. In the past elections, the unofficial quick count conducted by the NAMFREL had never tallied with that of the official count of the COMELEC, giving rise to allegations of trending and confusion. With a second unofficial count to be conducted by the official election body, the respondent COMELEC, in addition to its official count, allegations of trending, would most certainly be aggravated. As a consequence, the electoral process would be undermined.

The only intimated utility claimed by the COMELEC for the unofficial electronic transmission count is to avert the so-called dagdag-bawas. The purpose, however, as the petitioner properly characterizes it, is a total sham. The Court cannot accept as tenable the COMELECs profession that from the results of the unofficial count, it would be able to validate the credibility of the official tabulation. To sanction this process would in effect allow the COMELEC to preempt or prejudge an election question or dispute which has not been formally brought before it for quasi-judicial cognizance and resolutions.

Moreover, the Court doubts that the problem of dagdag-bawas could be addressed by the implementation of the assailed resolution. It is observed that such problem arises because of the element of human intervention. In the prevailing set up, there is human intervention because the results are manually tallied, appreciated, and canvassed. On the other hand, the electronic transmission of results is not entirely devoid of human intervention. The crucial stage of encoding the precinct results in the computers prior to the transmission requires human intervention. Under the assailed resolution, encoding is accomplished by employees of the PMSI. Thus, the problem of dagdag-bawas could still occur at this particular stage of the process.

As it stands, the COMELEC unofficial quick count would be but a needless duplication of the NAMFREL quick count, an illegal and unnecessary waste of government funds and effort.

Conclusion

The Court is mindful of the salutary goals that the respondent COMELEC had envisioned in promulgating the assailed resolution, to wit: [t]o renew the publics confidence in the Philippine Electoral System by:

1. Facilitating transparency in the process;

2. Ensuring the integrity of the results;

3. Reducing election results manipulation;

4. Providing timely, fast and accurate information to provide the public re election results;

5. Enabling the validation of its own official count and other counts;

6. Having an audit trail in its own account.[58]

Doubtless, these are laudable intentions. But the rule of law requires that even the best intentions must be carried out within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal methods.[59]

WHEREFORE, the petition is GRANTED. The assailed Resolution No. 6712 dated April 28, 2004 issued by the Commission on Elections (COMELEC) En Banc is hereby declared NULL AND VOID.

SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Azcuna and Tinga, JJ., concur.

Vitug, and Corona, JJ., on official leave.

Ynares-Santiago, J., on leave.

[1] Annex A; Rollo, pp. 105-117.

[2] AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.

[3] Loong vs. COMELEC, 305 SCRA 832 (1999).

[4] DIRECTING THE DEPARTMENT OF BUDGET AND MANAGEMENT TO ALLOCATE FUNDS FOR AN AUTOMATED ELECTION SYSTEM FOR THE MAY 10, 2004 NATIONAL AND LOCAL ELECTIONS AND SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES.

[5] INVITATION TO APPLY FOR ELIGIBILITY AND TO BID

The Commission on Elections (COMELEC), pursuant to the mandate of Republic Act Nos. 8189 and 8436, invites interested offerors, vendors, suppliers or lessors to apply for eligibility and to bid for the procurement by purchase, lease, lease with option to purchase, or otherwise, supplies, equipment, materials and services needed for a comprehensive Automated Election System, consisting of three (3) phases: (a) registration/verification of voters, (b) automated counting and consolidation of votes, and (c) electronic transmission of election results, with an approved budget of TWO BILLION FIVE HUNDRED MILLION (Php2,500,000,000) Pesos.

Only bids from the following entities shall be entertained :

a. Duly licensed Filipino citizens/proprietorships;

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

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

d. Manufacturers, suppliers and/or distributors forming themselves into a joint venture, i.e., a group of two (2) or more manufacturers, suppliers and/or distributors that intend to be, jointly and severally, responsible or liable for a particular contract, provided that

Filipino ownership thereof shall be at least sixty percent (60%); and

e. Cooperatives duly registered with the Cooperatives Development Authority.

Bid documents for the three (3) phases may be obtained starting 10 February 2003, during office hours from the Bids and Awards Committee (BAC) Secretariat/Office of Commissioner Resurreccion Z. Borra, 7th Floor, Palacio del Governador, Intramuros, Manila, upon payment at the Cash Division, Commission on Elections, in cash or cashiers check, payable to the Commission on Elections, of a non-refundable amount of FIFTEEN THOUSAND PESOS (P15,000.00) for each phase. For this purpose, interested offerors, vendors, suppliers or lessors have the option to participate in any or all of the three (3) phases of the comprehensive Automated Election System.

A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila. Should there be questions on the bid documents, bidders are required to submit their queries in writing to the BAC Secretariat prior to the scheduled Pre-Bid Conference.

Deadline for submission to the BAC of applications for eligibility and bid envelopes for the supply of the comprehensive Automated Election System shall be at the Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila on 28 February 2003 at 9:00 a.m.

The COMELEC reserves the right to review the qualifications of the bidders after the bidding and before the contract is executed. Should such review uncover any misrepresentation made in the eligibility statements, or any changes in the situation of the bidder to materially downgrade the substance of such statements, the COMELEC shall disqualify the bidder upon due notice without any obligation whatsoever for any expenses or losses that may be incurred by it in the preparation of its bid. (Information Technology Foundation of the Philippines, et al. vs. COMELEC, et al. , G.R. No. 159139, January 13, 2004, citing Annex 7 of the Comment of Private Respondents MPC and MPEI therein, Rollo, Vol. II, p. 638.)

[6] DIRECTING THE DEPARTMENT OF BUDGET AND MANAGEMENT TO ALLOCATE THE ADDITIONAL AMOUNT OF FIVE HUNDRED MILLION PESOS FOR AN AUTOMATED ELECTION SYSTEM FOR THE MAY 10, 2004 NATIONAL AND LOCAL ELECTIONS AND SUBSEQUENT NATIONAL AND LOCAL ELECTORAL EXERCISES.

[7] Sec. 6, Rep. Act No. 8436.

[8] Annex A of the respondent COMELECs Supplemental Compliance dated May 11, 2004; Rollo, pp. 277-294.

[9] Rollo, p. 252.

[10] Infra.

[11] Rollo, p. 164.

[12] Id. at 167.

[13] Section 1, Resolution No. 6712.

[14] Ibid.

[15] Section 2.

[16] Section 3.

[17] Ibid.

[18] Section 4.

[19] Section 6 (Underscoring supplied).

[20] Section 18.

[21] Ibid.

[22] Rollo, pp. 118-119.

[23] Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 633 cited in, among others, Agan v. PIATCO, G.R. Nos. 155001, 155547 and 155661.

[24] Del Mar v. Philippine Amusement and Gaming Corp., 346 SCRA 485 (2000).

[25] Ibid.

[26] 103 Phil. 1051 (1957).

[27] Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles vs. Home Development Mutual Fund, 333 SCRA 777 (2000).

[28] Integrated Bar of the Philippines vs. Zamora, supra.

[29] Acop v. Guingona, Jr., 383 SCRA 577 (2002).

[30] Ibid.

[31] Sanchez vs. Court of Appeals, 279 SCRA 647 (1997).

[32] Malinias v. Commission on Elections, 390 SCRA 480 (2002).

[33] Supra.

[34] Rollo, p. 240.

[35] TSN, 8 May 2004, pp. 382-383.

[36] Id. at 260-263 (Underscoring supplied).

[37] Par. 1, Section 29, Article VI of the Constitution.

[38] Webster New International Dictionary, 1993 Ed., p. 2505.

[39] ART. 217. Malversation of public funds or property. Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall suffer:

1) The penalty of prision correccional in its medium and maximum periods, if the amount involved in the misappropriation or malversation does not exceed Two Hundred Pesos.

2) The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than 200 pesos but does not exceed 6,000 pesos.

3) The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if the amount involved is more than 6,000 pesos but is less than 12,000 pesos.

4) The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is more than 12,000 pesos but is less than 22,000 pesos. If the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly-authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses.

[40] TSN, 8 May 2004, pp. 367-368.

[41] Id. at 367-368.

[42] Id. at 368-370.

[43] Id. at 370.

[44] Rollo, pp. 164-168 (Underscoring supplied).

[45] Official Gazette, Vol. 99, No. 19.

[46] Id. at 661.

[47] Section 25 (5) of Article VI of the Constitution reads:

(5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.

[48] Gonzales vs. Macaraig, Jr., 191 SCRA 452 (1990).

[49] SEC. 27. Number of Copies of Election Returns and Their Distribution. -- The board of election inspectors shall prepare in handwriting the election returns in their respective polling places, in the number of copies herein provided and in the form to be prescribed and provided by the Commission.

The copies of the election returns shall be distributed as follows :

(a) In the election of President, Vice-President, Senators and Members of the House of Representatives :

(3) the third copy, to the Commission;

(6) The sixth copy, to a citizens arm authorized by the Commission to conduct an unofficial count: Provided, however, That the accreditation of the citizens arm shall be subject to the provisions of Section 52(k) of Batas Pambansa Blg. 881; and

(b) In the election of local officials:

(3) the third copy, to the Provincial Board of Canvassers;

(6) The sixth copy, to a citizens arm authorized by the Commission to conduct an unofficial count: Provided, however, That the accreditation of the citizens arm shall be subject to the provisions of Section 52(k) of Batas Pambansa Blg. 881;

[50] SEC. 18. Election Returns. -- After the ballots of the precincts have been counted, the election officer or any official authorized by the Commission shall, in the presence of watchers and representatives of the accredited citizens arm, political parties/candidates, if any, store the results in a data storage device and print copies of the election returns of each precinct. The printed election returns shall be signed and thumbmarked by the fourth member and COMELEC authorized representative. The Chairman of the Board shall then publicly read and announce the total number of votes obtained by each candidate based on the election returns. Thereafter, the copies of the election returns shall be sealed and placed in the proper envelopes for distribution as follows:

A. In the election of president, vice president, senators and party-list system:


(4) the fourth copy, to the citizens arm authorized by the Commission to conduct an unofficial count. In the conduct of the unofficial quick count by any accredited citizens arm, the Commission shall promulgate rules and regulations to ensure, among others, that said citizens arm releases in the order of their arrival one hundred percent (100%) results of a precinct indicating the precinct, municipality or city, province and region: Provided, however, That, the count shall continue until all precincts shall have been reported;

B. In the election of local officials and members of the House of Representatives :


(4) the fourth copy, to the citizens arm authorized by the Commission to conduct an unofficial count. In the conduct of the unofficial quick count by any accredited citizens arm, the Commission shall promulgate rules and regulations to ensure, among others, that said citizens arm releases in the order of their arrival one hundred percent (100%) results of a precinct indicating the precinct, municipality or city, province and region: Provided, however, That, the count shall continue until all precincts shall have been reported;

[51] Rollo, p. 270.

[52] TSN, 8 May 2004, pp. 343-346.

[53] Rollo, p. 278.

[54] Annexes 2 to 32; Rollo, pp. 208-232.

[55] Annexes 33 to 40; Id. at 233-240.

[56] Section 2(1), Article IX.

[57] Section 2(4), Article IX.

[58] 2004 National and Local Elections: Consolidation and Dissemination of Results, Presentation of the respondent COMELEC during the Oral Arguments on May 8, 2004.

[59] Pimentel, Jr. v. Aguirre, 336 SCRA 201 (2000).

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-75697 June 18, 1987VALENTIN TIO doing business under the name and style of OMI ENTERPRISES, petitioner, vs.VIDEOGRAM REGULATORY BOARD, MINISTER OF FINANCE, METRO MANILA COMMISSION, CITY MAYOR and CITY TREASURER OF MANILA, respondents.

Nelson Y. Ng for petitioner.

The City Legal Officer for respondents City Mayor and City Treasurer.

MELENCIO-HERRERA, J.:This petition was filed on September 1, 1986 by petitioner on his own behalf and purportedly on behalf of other videogram operators adversely affected. It assails the constitutionality of Presidential Decree No. 1987 entitled "An Act Creating the Videogram Regulatory Board" with broad powers to regulate and supervise the videogram industry (hereinafter briefly referred to as the BOARD). The Decree was promulgated on October 5, 1985 and took effect on April 10, 1986, fifteen (15) days after completion of its publication in the Official Gazette.

On November 5, 1985, a month after the promulgation of the abovementioned decree, Presidential Decree No. 1994 amended the National Internal Revenue Code providing, inter alia:

· SEC. 134. Video Tapes. There shall be collected on each processed video-tape cassette, ready for playback, regardless of length, an annual tax of five pesos; Provided, That locally manufactured or imported blank video tapes shall be subject to sales tax.

On October 23, 1986, the Greater Manila Theaters Association, Integrated Movie Producers, Importers and Distributors Association of the Philippines, and Philippine Motion Pictures Producers Association, hereinafter collectively referred to as the Intervenors, were permitted by the Court to intervene in the case, over petitioner's opposition, upon the allegations that intervention was necessary for the complete protection of their rights and that their "survival and very existence is threatened by the unregulated proliferation of film piracy." The Intervenors were thereafter allowed to file their Comment in Intervention.

The rationale behind the enactment of the DECREE, is set out in its preambular clauses as follows:

· 1. WHEREAS, the proliferation and unregulated circulation of videograms including, among others, videotapes, discs, cassettes or any technical improvement or variation thereof, have greatly prejudiced the operations of moviehouses and theaters, and have caused a sharp decline in theatrical attendance by at least forty percent (40%) and a tremendous drop in the collection of sales, contractor's specific, amusement and other taxes, thereby resulting in substantial losses estimated at P450 Million annually in

government revenues;

· 2. WHEREAS, videogram(s) establishments collectively earn around P600 Million per annum from rentals, sales and disposition of videograms, and such earnings have not been subjected to tax, thereby depriving the Government of approximately P180 Million in taxes each year;

· 3. WHEREAS, the unregulated activities of videogram establishments have also affected the viability of the movie industry, particularly the more than 1,200 movie houses and theaters throughout the country, and occasioned industry-wide displacement and unemployment due to the shutdown of numerous moviehouses and theaters;

· 4. "WHEREAS, in order to ensure national economic recovery, it is imperative for the Government to create an environment conducive to growth and development of all business industries, including the movie industry which has an accumulated investment of about P3 Billion;

· 5. WHEREAS, proper taxation of the activities of videogram establishments will not only alleviate the dire financial condition of the movie industry upon which more than 75,000 families and 500,000 workers depend for their livelihood, but also provide an additional source of revenue for the Government, and at the same time rationalize the heretofore uncontrolled distribution of videograms;

· 6. WHEREAS, the rampant and unregulated showing of obscene videogram features constitutes a clear and present danger to the moral and spiritual well-being of the youth, and impairs the mandate of the Constitution for the State to support the rearing of the youth for civic efficiency and the development of moral character and promote their physical, intellectual, and social well-being;

· 7. WHEREAS, civic-minded citizens and groups have called for remedial measures to curb these blatant malpractices which have flaunted our censorship and copyright laws;

· 8. WHEREAS, in the face of these grave emergencies corroding the moral values of the people and betraying the national economic recovery program, bold emergency measures must be adopted with dispatch; ... (Numbering of paragraphs supplied).

Petitioner's attack on the constitutionality of the DECREE rests on the following grounds:

· 1. Section 10 thereof, which imposes a tax of 30% on the gross receipts payable to the local government is a RIDER and the same is not germane to the subject matter thereof;

· 2. The tax imposed is harsh, confiscatory, oppressive and/or in unlawful restraint of trade in violation of the due process clause of the Constitution;

· 3. There is no factual nor legal basis for the exercise by the President of the vast powers conferred upon him by Amendment No. 6;

· 4. There is undue delegation of power and authority;

· 5. The Decree is an ex-post facto law; and

· 6. There is over regulation of the video industry as if it were a nuisance, which it is not.

We shall consider the foregoing objections in seriatim.

1. The Constitutional requirement that "every bill shall embrace only one subject which shall be expressed in the title thereof" 1 is sufficiently complied with if the title be comprehensive enough to include the general purpose which a statute seeks to achieve. It is not necessary that the title express each and every end that the statute wishes to accomplish. The requirement is satisfied if all the parts of the statute are related, and are germane to the subject matter expressed in the title, or as long as they are not inconsistent with or foreign to the general

subject and title. 2

An act having a single general subject, indicated in the title, may contain any number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out the

general object." 3 The rule also is that the constitutional requirement as to the title of a bill should not be so

narrowly construed as to cripple or impede the power of legislation. 4 It should be given practical rather than

technical construction. 5 Tested by the foregoing criteria, petitioner's contention that the tax provision of the DECREE is a rider is without merit. That section reads, inter alia:

· Section 10. Tax on Sale, Lease or Disposition of Videograms. Notwithstanding any provision of law to the contrary, the province shall collect a tax of thirty percent (30%) of the purchase price or rental rate, as the case may be, for every sale, lease or disposition of a videogram containing a reproduction of any motion picture or audiovisual program. Fifty percent (50%) of the proceeds of the tax collected shall accrue to the province, and the other fifty percent (50%) shall acrrue to the municipality where the tax is collected; PROVIDED, That in Metropolitan Manila, the tax shall be shared equally by the City/Municipality and the Metropolitan Manila Commission.

· xxx xxx xxx

The foregoing provision is allied and germane to, and is reasonably necessary for the accomplishment of, the general object of the DECREE, which is the regulation of the video industry through the Videogram Regulatory Board as expressed in its title. The tax provision is not inconsistent with, nor foreign to that general subject and title. As a tool for regulation 6 it is simply one of the regulatory and control mechanisms scattered throughout the DECREE. The express purpose of the DECREE to include taxation of the video industry in order to regulate and rationalize the heretofore uncontrolled distribution of videograms is evident from Preambles 2 and 5, supra. Those preambles explain the motives of the lawmaker in presenting the measure. The title of the DECREE, which is the creation of the Videogram Regulatory Board, is comprehensive enough to include the purposes expressed in its Preamble and reasonably covers all its provisions. It is unnecessary to express all those objectives in the title or that the latter be an index to the body of the DECREE. 7

2. Petitioner also submits that the thirty percent (30%) tax imposed is harsh and oppressive, confiscatory, and in restraint of trade. However, it is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. 8 The power to impose taxes is one so unlimited in force and so searching in extent, that the courts scarcely venture to declare that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it. 9 In imposing a tax, the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation. 10 The tax imposed by the DECREE is not only a regulatory but also a revenue measure prompted by the realization that earnings of videogram establishments of around P600 million per annum have not been subjected to tax, thereby depriving the Government of an additional source of revenue. It is an end-user tax, imposed on retailers for every videogram they make available for public viewing. It is similar to the 30% amusement tax imposed or borne by the movie industry which the theater-owners pay to the government, but which is passed on to the entire cost of the admission ticket, thus shifting the tax burden on the buying or the viewing public. It is a tax that is imposed uniformly on all videogram operators.

The levy of the 30% tax is for a public purpose. It was imposed primarily to answer the need for regulating the video industry, particularly because of the rampant film piracy, the flagrant violation of intellectual property rights, and the proliferation of pornographic video tapes. And while it was also an objective of the DECREE to protect the movie industry, the tax remains a valid imposition.

· The public purpose of a tax may legally exist even if the motive which impelled the legislature to impose the tax was to favor one industry over another. 11

· It is inherent in the power to tax that a state be free to select the subjects of taxation, and it has been repeatedly held that "inequities which result from a singling out of one particular class for taxation or exemption infringe no constitutional limitation". 12 Taxation has been made the implement of the state's police power. 13

At bottom, the rate of tax is a matter better addressed to the taxing legislature.

3. Petitioner argues that there was no legal nor factual basis for the promulgation of the DECREE by the former President under Amendment No. 6 of the 1973 Constitution providing that "whenever in the judgment of the President ... , there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders, or letters of instructions, which shall form part of the law of the land."

In refutation, the Intervenors and the Solicitor General's Office aver that the 8th "whereas" clause sufficiently summarizes the justification in that grave emergencies corroding the moral values of the people and betraying the national economic recovery program necessitated bold emergency measures to be adopted with dispatch. Whatever the reasons "in the judgment" of the then President, considering that the issue of the validity of the exercise of legislative power under the said Amendment still pends resolution in several other cases, we reserve resolution of the question raised at the proper time.

4. Neither can it be successfully argued that the DECREE contains an undue delegation of legislative power. The grant in Section 11 of the DECREE of authority to the BOARD to "solicit the direct assistance of other agencies and units of the government and deputize, for a fixed and limited period, the heads or personnel of such agencies and units to perform enforcement functions for the Board" is not a delegation of the power to legislate but merely a conferment of authority or discretion as to its execution, enforcement, and implementation. "The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution to be exercised under and in pursuance of the law. The first cannot be done; to the latter, no valid objection can be made." 14 Besides, in the very language of the decree, the authority of the BOARD to solicit such assistance is for a "fixed and limited period" with the deputized agencies concerned being "subject to the direction and control of the BOARD." That the grant of such authority might be the source of graft and corruption would not stigmatize the DECREE as unconstitutional. Should the eventuality occur, the aggrieved parties will not be without adequate remedy in law.

5. The DECREE is not violative of the ex post facto principle. An ex post facto law is, among other categories, one which "alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense." It is petitioner's position that Section 15 of the DECREE in providing that:

· All videogram establishments in the Philippines are hereby given a period of forty-five (45) days after the effectivity of this Decree within which to register with and secure a permit from the BOARD to engage in the videogram business and to register with the BOARD all their inventories of videograms, including videotapes, discs, cassettes or other technical improvements or variations thereof, before they could be sold, leased, or otherwise disposed of. Thereafter any videogram found in the possession of any person engaged in the videogram business without the required proof of registration by the BOARD, shall be prima facie evidence of violation of the Decree, whether the possession of such videogram be for private showing and/or public exhibition.

raises immediately a prima facie evidence of violation of the DECREE when the required proof of registration of any videogram cannot be presented and thus partakes of the nature of an ex post facto law.

The argument is untenable. As this Court held in the recent case of Vallarta vs. Court of Appeals, et al. 15

· ... it is now well settled that "there is no constitutional objection to the passage of a law providing that the presumption of innocence may be overcome by a contrary presumption founded upon the experience of human conduct, and enacting what evidence shall be sufficient to overcome such presumption of innocence" (People vs. Mingoa 92 Phil. 856 [1953] at 858-59, citing 1 COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS, 639-641). And the "legislature may enact that when certain facts have been proved that they shall be prima facie evidence of the existence of the guilt of the accused and shift the burden of proof provided there be a rational connection between the facts proved and the ultimate facts presumed so that the inference of the one from proof of the others is not unreasonable and arbitrary because of lack of connection between the two in common experience". 16

Applied to the challenged provision, there is no question that there is a rational connection between the fact proved, which is non-registration, and the ultimate fact presumed which is violation of the DECREE, besides the fact that the prima facie presumption of violation of the DECREE attaches only after a forty-five-day period counted from its effectivity and is, therefore, neither retrospective in character.

6. We do not share petitioner's fears that the video industry is being over-regulated and being eased out of existence as if it were a nuisance. Being a relatively new industry, the need for its regulation was apparent. While the underlying objective of the DECREE is to protect the moribund movie industry, there is no question that public welfare is at bottom of its enactment, considering "the unfair competition posed by rampant film piracy; the erosion of the moral fiber of the viewing public brought about by the availability of unclassified and unreviewed video tapes containing pornographic films and films with brutally violent sequences; and losses in government revenues due to the drop in theatrical attendance, not to mention the fact that the activities of video establishments are virtually untaxed since mere payment of Mayor's permit and municipal license fees are required to engage in business. 17

The enactment of the Decree since April 10, 1986 has not brought about the "demise" of the video industry. On the contrary, video establishments are seen to have proliferated in many places notwithstanding the 30% tax imposed.

In the last analysis, what petitioner basically questions is the necessity, wisdom and expediency of the DECREE. These considerations, however, are primarily and exclusively a matter of legislative concern.

· Only congressional power or competence, not the wisdom of the action taken, may be the basis for declaring a statute invalid. This is as it ought to be. The principle of separation of powers has in the main wisely allocated the respective authority of each department and confined its jurisdiction to such a sphere. There would then be intrusion not allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the last offender should be courts of justice, to which rightly litigants submit their controversy precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack on the validity of the challenged provision likewise insofar as there may be objections, even if valid and cogent on its wisdom cannot be sustained. 18

In fine, petitioner has not overcome the presumption of validity which attaches to a challenged statute. We find no clear violation of the Constitution which would justify us in pronouncing Presidential Decree No. 1987 as unconstitutional and void.

WHEREFORE, the instant Petition is hereby dismissed.

No costs.

SO ORDERED.

Teehankee, (C.J.), Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

Footnotes

· 1 Section 19[1], Article VIII, 1973 Constitution; Section 26[l] Article VI, 1987 Constitution.

· 2 Sumulong vs. COMELEC, No. 48609, October 10, 1941, 73 Phil. 288; Cordero vs. Hon. Jose Cabatuando, et al., L-14542, Oct. 31, 1962,6 SCRA 418.

· 3 Public Service Co., Recktenwald, 290 III. 314, 8 ALR 466, 470.

· 4 Government vs. Hongkong & Shanghai Banking Corporation, No. 44257, November 22, 1938, 66 Phil. 483; Cordero vs. Cabatuando, et al., supra.

· 5 Sumulong vs. Commission on Elections, supra.

· 6 United States vs. Sanchez, 340 U.S. 42, 44, 1950, cited in Bernas, Philippines Constitutional Law, p. 594.

· 7 People vs. Carlos, L-239, June 30, 1947, 78 Phil. 535.

· 8 U.S. vs. Sanchez, supra.

· 9 II Cooley, A Treatise on the Constitutional Limitations, p. 986.

· 10 ibid., p. 987.

· 11 Magnano Co. vs. Hamilton, 292, U.S. 40.

· 12 Lutz vs. Araneta, L-7859, December 22, 1955, 98 Phil. 148, citing Carmichael vs. Southern Coal and Coke Co., 301 U.S. 495, 81 L. Ed. 1245.

· 13 ibid., citing Great Atl. and Pacific Tea Co. vs. Grosjean, 301 U.S. 412, 81 L. Ed. 1193; U.S. vs. Butler, 297 U.S. 1, 80 L. Ed. 477; M'Culloch vs. Maryland, 4 Wheat, 316,4 L. Ed. 579.

· 14 Cincinnati, W & Z.R. Co. vs. Clinton County Comrs (1852) 1 Ohio St. 88.

· 15 G. R. No. L-40195, May 29, 1987.

· 16 ibid., citing People vs. Mingoa, supra, See also U.S. vs. Luling No. 11162, August 12, 1916,34 Phil. 725.

· 17 Solicitor General's Comments, p. 102, Rollo.

· 18 Morfe vs. Mutuc, L-20387, January 31, 1968, 22 SCRA 424, 450-451.

EN BANC

[G.R. No. 123037. March 21, 1997]

TEODORO Q. PEA, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND ALFREDO E. ABUEG, JR., respondents.

D E C I S I O N

TORRES, JR., J.:

Assailed herein is the October 12, 1995 Resolution[1] of the House of Representatives Electoral Tribunal (HRET) dismissing the Petition Ad Cautelam of the Petitioner Teodoro Q. Pea in HRET Case No. 95-014. Petitioner questioned the election of the private respondent Alfredo E. Abueg, Jr. as Member of the House of Representatives representing the Second District of the province of Palawan.

Petitioner and the private respondent were contenders for the said Congressional Office in the May 8, 1995 elections. On May 12, 195, upon canvassing the votes cast, the Provincial Board of Canvassers of Palawan proclaimed the private respondent as the winner.

On May 22, 1995, the instant petition was filed with the HRET, wherein the petitioner, as protestant, averred that:

7. The elections in the precincts of the Second District of Palawan were tainted with massive fraud, widespread vote-buying, intimidation and terrorism and other serious irregularities committed before, during and after the voting, and during the counting of votes and the preparation of election returns and certificates of canvass which affected the results of the election. Among the fraudulent acts committed were the massive vote-buying and intimidation of voters, disenfranchisement of petitioners known supporters through systematic deletion of names from the lists of voters, allowing persons to vote in excess of the number of registered voters, misappreciation, misreading and non-reading of protestants ballots and other irregularities.

8. According to the Statement of Votes by Precinct/Municipality/City, the protestee allegedly obtained 52,967 votes, while the protestant allegedly obtained 46,023 votes, or a difference of 6,944 votes. A copy of said document is attached hereto as Annex B.

9. Had the massive fraud, widespread intimidation and terrorism and other serious irregularities not been committed, the result of the elections for Member of the House of Representatives would have been different and the protestant would have garnered the highest number of votes for the Office Member of the House of Representatives in the Second District of Palawan, which was the true expression of the will of the voters of the Province of Palawan.

10. The proclamation by the members of the Provincial Board of Canvassers of Palawan that the protestee was allegedly the duly elected Member of the House of Representatives for the Second District of Palawan is contrary to law and to the true expression of the will of the voters of the Province of Palawan.[2]

Private respondent-Protestee Abueg filed an Answer With Affirmative Defense, Counterclaim and Counter-Protest[3] on June 5, 1995, to which Pea filed a Reply on June 23, 1995. Subsequent to the filing of his Answer, Abueg filed a Motion to Dismiss[4] the Petition on June 22, 1995, averring that the HRET has not acquired jurisdiction over the petition, the same being insufficient in form and substance. In essence, the motion to dismiss anchors its challenge on the fact that the petition failed to allege the precincts where the massive fraud and disenfranchisement of voters occurred, nor did it point out how many votes would be gained by the protestant as a result of the same.

Petitioner filed an Opposition to the Motion to Dismiss[5] on July 10, 1995, attaching thereto a

Summary of Contested Precincts, naming 700 precincts where election irregularities allegedly occurred.

In its Resolution of October 12, 1995, the respondent HRET ruled that although it had jurisdiction over the petition, as the sole judge of all contests relating to the election, returns and qualifications of the members of the House of Representatives, the said petition, however, fails to state a cause of action, and is therefore, insufficient in form and substance, meriting its dismissal.

The HRET states pertinently:

There are 743 precincts in the second congressional district of Palawan which is comprised of Puerto Princesa City and the municipalities of Aborlan, Balabac, Bataraza, Brookes Point, Narra, Quezon, and Marcos (Ordinance appended to the 1973 Constitution). The Protestant failed to specify which are the 700 precincts, out of the said 743 precincts, that are included in his protest; he even failed to allege the municipalities where the protested precincts are located. Worse, the body of the Petition does not even mention the 700 precincts. Reference to them is made only in the Prayer. These omissions prevent Protestee from being apprised of the issues which he has to meet and make it virtually impossible for the Tribunal to determine which ballot boxes have to be collected.

The Supreme Court, in Fernando vs. Pastor M. Endencia, Judge of First Instance of Bulacan, et. al. (No. 46099, 66 Phil 148, 150, August 30, 1938) observed that, [w]hile the election law does not say so directly, it is clearly inferred from its relevant provisions that where the grounds of contest are that legal votes were rejected and illegal votes received, the motion of protest should state in what precincts such irregularities occurred. xxx The specification in the motion of protest of the election precinct or precincts where the alleged irregularities occurred, is required in order to apprise the contestee of the issues which he has to meet. xxx

In its more recent resolution in Grand Alliance for Democracy (GAD) vs. COMELEC (G.R. No. 78302, May 26, 1987, 150 SCRA 665), the Supreme Court held that the petition therein could have been dismissed outright as deficient in form and substance, being couched in general terms only, without precise indication of the time, place and manner of the commission of the alleged irregularities. xxx

Similarly, this Tribunal, in dismissing an election protest, observed that the protest, in general language, impugns, contests and protests the illegal, improper and fraudulent electoral practices, acts and deeds of the protestee and impugns and contests all the election returns in the lone district of Catanduanes. The tribunal held that this scattershot allegation is not allowed in election contests and that it is necessary to make a precise indication of the precincts protested and a specification of the claimed offenses to have been committed by the parties. (Alberto vs. Tapia, HRET Case No. 37, January 23, 1989)

While Protestant has attached as Annex A to his Opposition to the Motion to Dismiss, filed on 10 July 1995, a Summary of contested Precincts, the defects in his Protest were not cured thereby as the Summary was submitted only after the Motion to Dismiss had been filed. The Opposition and the attached Summary do not amend the original Petition. There is not even a prayer in the Opposition suggesting such amendment.

Moreover, in a Resolution promulgated on 17 June 1995, the Commission on Elections en banc (COMELEC) dismissed herein Petitioners Petition (SPA Case No. 95-258) to declare a failure of elections in the second district of Palawan. Copy of said Resolution was sent to Petitioner Peas Petition Ad Cautelam was thus converted into a regular protest (not Ad Cautelam) effective upon the finality of the official COMELEC resolution, thereby providing him an opportunity to amend it to cure the defects cited above, Protestant took no positive and affirmative steps for that purpose.

Protestant alleges in his Opposition that Protestee has likewise failed to specify the 47 precincts he contests in his Counter-Protest. This omission merely renders Protestees Counter-Protest defective for insufficiency in form and substance and for failure to state a cause of action. It does not cure the fatal defects in Protestants Petition.

WHEREFORE, for failure of the petition (Protest) to state a cause of action because it is fatally insufficient in form and substance, the Tribunal Resolved to GRANT Protestees Motion to Dismiss and to DISMISS, as it hereby DISMISSES, the instant Petition of Protest. As a logical consequence thereof and also for the same reason, Protestees Counter-Protest is DISMISSED.

No pronouncement as to costs.

SO ORDERED.[6]

Petitioners motion for reconsideration of the said resolution was denied by the respondent tribunal on November 14, 1995.

In this Petition for Certiorari, filed on December 29, 1995, petitioner argues that the respondent HRET acted with grave abuse of discretion amounting to having acted without or in excess of jurisdiction in dismissing the election protest of petitioner considering that:

I

THE PETITION AD CAUTELAM DATED 22 MAY 1995 STATED A CAUSE OF ACTION AND IS SUFFICIENT IN FORM AND SUBSTANCE.

II

ASSUMING ARGUENDO THAT THE PETITION WAS INITIALLY DEFECTIVE BECAUSE IT FAILED TO SPECIFY THE CONTESTED PRECINCTS, SAID DEFECT WAS CURED WHEN PETITIONER SUBMITTED A SUMMARY OF THE CONTESTED PRECINCTS WHICH FORMS PART OF THE RECORD OF THE RESPONDENT HRET.

It is the Petitioners view that the instant election protest is sufficient in form and substance even while failing to specify the precincts where irregularities allegedly occurred. Nowhere is it provided that the specification of the precincts is a jurisdictional requirement that must be complied with in order that an election protest can be entertained by the HRET. To support his submission, petitioner cites the cases of Yalung vs. Atienza, 52 Phil 781, Arao vs. COMELEC, 210 SCRA 790 and Gallares vs. Casenas, 48 Phil 362, the latter stating that:

From a reading of the allegations of the protest, it may be seen that frauds, irregularities and violations of the law are alleged therein, which, if true, would undoubtedly change the result of the elections.

The fact that in the protest the number of votes which would result in favor of the protestant after the judicial counting is not specified, does not affect the right of the protestant, for it being known that said omission is a defect of the protest, the same may be cured by a specification of the votes mentioned in paragraphs 1, 2 and 3 of the protest, without thereby adding new grounds for those already alleged by the protestant.

Applying the same principle to the specification of precincts in the instant case, the defect in the petition should have been cured by the opposition to the private respondents Motion to Dismiss.

Moreover, the fact that the HRET did not summarily dismiss the Petition Ad Cautelam, and instead, required the private respondent Abueg to file an Answer, the HRET has thus made a prior determination that the petition is sufficient in form and substance.

We do not agree.

In the first place, in requiring the private respondent to answer the petition, the HRET was not ruling on the formal and substantive sufficiency of the petition. The order to require an answer is but a matter of course, as under the Revised Rules of Procedure of the HRET, it is provided that:

RULE 22. Summons. - Upon the filing of the petition, the Clerk of the Tribunal shall forthwith issue the corresponding summons to the protestee or respondent together with a copy of the petition, requiring him within ten (10) days from receipt thereof to file his answer.

As to the adequacy of the protest, we agree with respondent HRET in ruling for the insufficiency of the same.

A perusal of the petition Ad Cautelam, reveals that Petitioner makes no specific mention of the precincts where widespread election, fraud and irregularities occured. This is a fatal omission, as it goes into the very substance of the protest. Under Section 21 of the Revised Rules of Procedure of HRET, insufficiency in form and substance of the petition constitutes a ground for the immediate dismissal of the Petition.

The prescription that the petition must be sufficient in form and substance means that the petition must be more than merely rhetorical. If the allegations contained therein are unsupported by even the faintest whisper of authority in fact and law, then there is no other course than to dismiss the petition, otherwise, the assumptions of an elected public official may, and will always be held up by petitions of this sort by the losing candidate.

Notably, the instant petition ad cautelam poses a more serious inadequacy than a mere failure to specify the number of votes which would inure to the protestant, as was the case in Gallares vs. Casenas, or the failure to impugn the validity of some of the ballots cast, as in Yalung vs. Atienza, supra, both of which cases were decided in the 1920s. The defect in the instant case arises from the failure to allege the contested precincts. Only a bare allegation of massive fraud, widespread intimidation and terrorism and other serious irregularities, without specification, and substantiation, of where and how these occurences took place, appears in the petition. We cannot allow an election protest based on such flimsy averments to prosper, otherwise, the whole election process will deteriorate into an endless stream of crabs pulling at each other, racing to disembank from the water.

On his second point of argument, Petitioner likewise fails to impress. The Court has already ruled in Joker P. Arroyo vs. HRET,[7] that substantial amendments to the protest may be allowed only within the same period for filing the election protest, which, under Rule 16 of the HRET Rules of Procedure is ten (10) days after proclamation of the winner.

While it is conceded that statutes providing for election contests are to be liberally construed to the end that the will of the people in the choice of public officers may not be defeated by mere technical questions, the rule likewise stands, that in an election protest, the protestant must stand or fall upon the issues he had raised in his original or amended pleading filed prior to the lapse of the statutory period for filing of the protest.[8]

Admittedly, the rule is well-established that the power to annul an election should be exercised with the greatest care as it involves the free and fair expression of the popular will. It is only in extreme cases of fraud and under circumstances which demonstrate to the fullest degree a fundamental and wanton disregard of the law that elections are annulled, and then only when it becomes impossible to take any other step.[9] xxx This is as it should be, for the democratic system is good for the many although abhorred by a few.

In sum, this Courts jurisdiction to review decisions and orders of electoral tribunals operates only upon a showing of grave abuse of discretion on the part of the tribunal. Only where such a grave abuse of

discretion is clearly shown shall the Court interfere with the electoral tribunals judgment. There is such showing in the present petition.

IN VIEW OF THE FOREGOING, the Court hereby resolves to DISMISS the present petition for lack of merit. The resolution of the respondent House of Representatives Electoral Tribunal dated October 12, 1995 is hereby AFFIRMED.

SO ORDERED.

Narvasa, C.J., Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr. and Panganiban, JJ., concur.

Padilla, and Regalado, JJ., took no part (Chairman of HRET).

Davide, Jr., Romero, and Melo, JJ., took no part (Members of HRET).

Bellosillo, J., took no part due to relation to one party.

[1] Petition, Attachment A, p. 20, Rollo.

[2] Petition, Attachment C, p. 31-32, Rollo.

[3] Petition, Attachment D, p. 38, Rollo.

[4] Petition, Attachment F, p. 58, Rollo.

[5] Petition, Attachment G, p. 65, Rollo.

[6] PP. 22-25, Rollo.

[7] G.R. No. 118597, July 14, 1995, 246 SCRA 384.

[8] Ibid.

[9] Idem.

EN BANC

MANUEL B. JAPZON,

Petitioner,

- versus -

COMMISSION ON ELECTIONS and JAIME S. TY,

Respondents. G.R. No. 180088

Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

CARPIO,

AUSTRIA-MARTINEZ,

CORONA,

CARPIO MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

DE CASTRO, and

BRION, JJ.

Promulgated:

January 19, 2009x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

CHICO-NAZARIO, J.:

This is a Petition for Review on Certiorari under Rules 64[1] and 65[2] of the Revised

Rules of Court seeking to annul and set aside the Resolution[3] dated 31 July 2007 of

the First Division of public respondent Commission on Elections (COMELEC) and the

Resolution[4] dated 28 September 2007 of COMELEC en banc, in SPA No. 07-568, for

having been rendered with grave abuse of discretion, amounting to lack or excess of

jurisdiction.

Both petitioner Manuel B. Japzon (Japzon) and private respondent Jaime S. Ty (Ty) were

candidates for the Office of Mayor of the Municipality of General Macarthur, Eastern

Samar, in the local elections held on 14 May 2007.

On 15 June 2007, Japzon instituted SPA No. 07-568 by filing before the COMELEC a

Petition[5] to disqualify and/or cancel Tys Certificate of Candidacy on the ground of

material misrepresentation. Japzon averred in his Petition that Ty was a former natural-

born Filipino, having been born on 9 October 1943 in what was then Pambujan Sur,

Hernani Eastern Samar (now the Municipality of General Macarthur, Easter Samar) to

spouses Ang Chim Ty (a Chinese) and Crisanta Aranas Sumiguin (a Filipino). Ty

eventually migrated to the United States of America (USA) and became a citizen thereof.

Ty had been residing in the USA for the last 25 years. When Ty filed his Certificate of

Candidacy on 28 March 2007, he falsely represented therein that he was a resident of

Barangay 6, Poblacion, General Macarthur, Eastern Samar, for one year before 14 May

2007, and was not a permanent resident or immigrant of any foreign country. While Ty

may have applied for the reacquisition of his Philippine citizenship, he never actually

resided in Barangay 6, Poblacion, General Macarthur, Eastern Samar, for a period of one

year immediately preceding the date of election as required under Section 39 of

Republic Act No. 7160, otherwise known as the Local Government Code of 1991. In

fact, even after filing his application for reacquisition of his Philippine citizenship, Ty

continued to make trips to the USA, the most recent of which was on 31 October 2006

lasting until 20 January 2007. Moreover, although Ty already took his Oath of

Allegiance to the Republic of the Philippines, he continued to comport himself as an

American citizen as proven by his travel records. He had also failed to renounce his

foreign citizenship as required by Republic Act No. 9225, otherwise known as the

Citizenship Retention and Reacquisition Act of 2003, or related laws. Hence, Japzon

prayed for in his Petition that the COMELEC order the disqualification of Ty from

running for public office and the cancellation of the latters Certificate of Candidacy.

In his Answer[6] to Japzons Petition in SPA No. 07-568, Ty admitted that he was a

natural-born Filipino who went to the USA to work and subsequently became a

naturalized American citizen. Ty claimed, however, that prior to filing his Certificate of

Candidacy for the Office of Mayor of the Municipality of General Macarthur, Eastern

Samar, on 28 March 2007, he already performed the following acts: (1) with the

enactment of Republic Act No. 9225, granting dual citizenship to natural-born Filipinos,

Ty filed with the Philippine Consulate General in Los Angeles, California, USA, an

application for the reacquisition of his Philippine citizenship; (2) on 2 October 2005, Ty

executed an Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz,

Vice Consul of the Philippine Consulate General in Los Angeles, California, USA; (3)

Ty applied for a Philippine passport indicating in his application that his residence in the

Philippines was at A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern

Samar. Tys application was approved and he was issued on 26 October 2005 a Philippine

passport; (4) on 8 March 2006, Ty personally secured and signed his Community Tax

Certificate (CTC) from the Municipality of General Macarthur, in which he stated that

his address was at Barangay 6, Poblacion, General Macarthur, Eastern Samar; (5)

thereafter, on 17 July 2006, Ty was registered as a voter in Precinct 0013A, Barangay 6,

Poblacion, General Macarthur, Eastern Samar; (6) Ty secured another CTC dated 4

January 2007 again stating therein his address as Barangay 6, Poblacion, General

Macarthur, Eastern Samar; and (7) finally, Ty executed on 19 March 2007 a duly

notarized Renunciation of Foreign Citizenship. Given the aforementioned facts, Ty

argued that he had reacquired his Philippine citizenship and renounced his American

citizenship, and he had been a resident of the Municipality of General Macarthur,

Eastern Samar, for more than one year prior to the 14 May 2007 elections. Therefore, Ty

sought the dismissal of Japzons Petition in SPA No. 07-568.

Pending the submission by the parties of their respective Position Papers in SPA No. 07-

568, the 14 May 2007 elections were already held. Ty acquired the highest number of

votes and was declared Mayor of the Municipality of General Macarthur, Eastern Samar,

by the Municipal Board of Canvassers on 15 May 2007.[7]

Following the submission of the Position Papers of both parties, the COMELEC First

Division rendered its Resolution[8] dated 31 July 2007 in favor of Ty.

The COMELEC First Division found that Ty complied with the requirements of Sections

3 and 5 of Republic Act No. 9225 and reacquired his Philippine citizenship, to wit:

Philippine citizenship is an indispensable requirement for holding an elective public office, and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Evidences revealed that [Ty] executed an Oath of Allegiance before Noemi T. Diaz, Vice Consul of the Philippine Consulate General, Los Angeles, California, U.S.A. on October 2, 2005 and executed a Renunciation of Foreign Citizenship on March 19, 2007 in compliance with R.A. [No.] 9225. Moreover, neither is [Ty] a candidate for or occupying public office nor is in active service as commissioned or non-commissioned officer in the armed forces in the country of which he was naturalized citizen.[9]

The COMELEC First Division also held that Ty did not commit material

misrepresentation in stating in his Certificate of Candidacy that he was a resident of

Barangay 6, Poblacion, General Macarthur, Eastern Samar, for at least one year before

the elections on 14 May 2007. It reasoned that:

Although [Ty] has lost his domicile in [the] Philippines when he was naturalized as U.S. citizen in 1969, the reacquisition of his Philippine citizenship and subsequent acts thereof proved that he has been a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar for at least one (1) year before the elections held on 14 May 2007 as he represented in his certificate of candidacy[.]

As held in Coquilla vs. Comelec:

The term residence is to be understood not in its common acceptation as referring to dwelling or habitation, but rather to domicile or legal residence, that is, the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi). A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice). In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000, when he reacquired Philippine citizenship, petitioner was an alien without any right to reside in the Philippines save as our immigration laws may have allowed him to stay as a visitor or as a resident alien. Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen. Title 8, 1427(a) of the United States Code provides: Requirements of naturalization: Residence (a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1) year immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State or within the district of the Service in the United States in which the applicant filed the application for at least three months, (2) has resided continuously within the United States from the date of the application up to the time of admission to citizenship, and (3) during all period referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the

United States, and well disposed to the good order and happiness of the United States. (Emphasis added) In Caasi v. Court of Appeals, this Court ruled that immigration to the United States by virtue of a greencard, which entitles one to reside permanently in that country, constitutes abandonment of domicile in the Philippines. With more reason then does naturalization in a foreign country result in an abandonment of domicile in the Philippines.

Records showed that after taking an Oath of Allegiance before the Vice Consul of the Philippine Consulate General on October 2, 2005, [Ty] applied and was issued a Philippine passport on October 26, 2005; and secured a community tax certificate from the Municipality of General Macarthur on March 8, 2006. Evidently, [Ty] was already a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar for more than one (1) year before the elections on May 14, 2007.[10] (Emphasis ours.)

The dispositive portion of the 31 July 2007 Resolution of the COMELEC First Division,

thus, reads:

WHEREFORE, premises considered, the petition is DENIED for lack of merit.[11]

Japzon filed a Motion for Reconsideration of the foregoing Resolution of the

COMELEC First Division. On 28 September 2007, the COMELEC en banc issued its

Resolution[12] denying Japzons Motion for Reconsideration and affirming the assailed

Resolution of the COMELEC First Division, on the basis of the following ratiocination:

We have held that a Natural born Filipino who obtains foreign citizenship, and subsequently spurns the same, is by clear acts of repatriation a Filipino Citizen and hence qualified to run as a candidate for any local post.

x x x x

It must be noted that absent any showing of irregularity that overturns the prevailing status of a citizen, the presumption of regularity remains. Citizenship is an important aspect of every individuals constitutionally granted rights and privileges. This is essential in determining whether one has the right to exercise pre-determined political rights such as the right to vote or the right to be elected to office and as such rights spring from citizenship.

Owing to its primordial importance, it is thus presumed that every person is a citizen of the country in which he resides; that citizenship once granted is presumably retained unless voluntarily relinquished; and that the burden rests upon who alleges a change in citizenship and allegiance to establish the fact.

Our review of the Motion for Reconsideration shows that it does not raise any new or novel issues. The arguments made therein have already been dissected and expounded upon extensively by the first Division of the Commission, and there appears to be no reason to depart from the wisdom of the earlier resolution. We thus affirm that [Ty] did not commit any material misrepresentation when he accomplished his Certificate of Candidacy. The only ground for denial of a Certificate of Candidacy would be when there was material misrepresentation meant to mislead the electorate as to the qualifications of the candidate. There was none in this case, thus there is not enough reason to deny due course to the Certificate of Candidacy of Respondent James S. Ty.[13]

Failing to obtain a favorable resolution from the COMELEC, Japzon proceeded to file

the instant Petition for Certiorari, relying on the following grounds:

A. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY, WHIMSICALLY AND WANTONLY DISREGARDED THE PARAMETERS SET BY LAW AND JURISPRUDENCE FOR THE ACQUISITION OF A NEW DOMICILE OF CHOICE AND RESIDENCE.[14]

B. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT CAPRICIOUSLY, WHIMSICALLY AND WANTONLY REFUSED TO CANCEL [TYS] CERTIFICATE OF CANDIDACY, AND CONSEQUENTLY DECLARE [JAPZON] AS THE DULY ELECTED MAYOR OF GEN. MACARTHUR, EASTERN SAMAR.[15]

Japzon argues that when Ty became a naturalized American citizen, he lost his domicile

of origin. Ty did not establish his residence in the Municipality of General Macarthur,

Eastern Samar, Philippines, just because he reacquired his Philippine citizenship. The

burden falls upon Ty to prove that he established a new domicile of choice in General

Macarthur, Eastern Samar, a burden which he failed to discharge. Ty did not become a

resident of General Macarthur, Eastern Samar, by merely executing the Oath of

Allegiance under Republic Act No. 9225.

Therefore, Japzon asserts that Ty did not meet the one-year residency requirement for

running as a mayoralty candidate in the 14 May 2007 local elections. The one-year

residency requirement for those running for public office cannot be waived or liberally

applied in favor of dual citizens. Consequently, Japzon believes he was the only

remaining candidate for the Office of Mayor of the Municipality of General Macarthur,

Eastern Samar, and is the only placer in the 14 May 2007 local elections.

Japzon prays for the Court to annul and set aside the Resolutions dated 31 July 2007 and

28 September 2007 of the COMELEC First Division and en banc, respectively; to issue

a new resolution denying due course to or canceling Tys Certificate of Candidacy; and to

declare Japzon as the duly elected Mayor of the Municipality of General Macarthur,

Eastern Samar.

As expected, Ty sought the dismissal of the present Petition. According to Ty, the

COMELEC already found sufficient evidence to prove that Ty was a resident of the

Municipality of General Macarthur, Eastern Samar, one year prior to the 14 May 2007

local elections. The Court cannot evaluate again the very same pieces of evidence

without violating the well-entrenched rule that findings of fact of the COMELEC are

binding on the Court. Ty disputes Japzons assertion that the COMELEC committed

grave abuse of discretion in rendering the assailed Resolutions, and avers that the said

Resolutions were based on the evidence presented by the parties and consistent with

prevailing jurisprudence on the matter. Even assuming that Ty, the winning candidate for

the Office of Mayor of the Municipality of General Macarthur, Eastern Samar, is indeed

disqualified from running in the local elections, Japzon as the second placer in the same

elections cannot take his place.

The Office of the Solicitor General (OSG), meanwhile, is of the position that Ty failed to

meet the one-year residency requirement set by law to qualify him to run as a mayoralty

candidate in the 14 May 2007 local elections. The OSG opines that Ty was unable to

prove that he intended to remain in the Philippines for good and ultimately make it his

new domicile. Nonetheless, the OSG still prays for the dismissal of the instant Petition

considering that Japzon, gathering only the second highest number of votes in the local

elections, cannot be declared the duly elected Mayor of the Municipality of General

Macarthur, Eastern Samar, even if Ty is found to be disqualified from running for the

said position. And since it took a position adverse to that of the COMELEC, the OSG

prays from this Court to allow the COMELEC to file its own Comment on Japzons

Petition. The Court, however, no longer acted on this particular prayer of the

COMELEC, and with the submission of the Memoranda by Japzon, Ty, and the OSG, it

already submitted the case for decision.

The Court finds no merit in the Petition at bar.

There is no dispute that Ty was a natural-born Filipino. He was born and raised in the Municipality of General Macarthur, Eastern Samar, Philippines. However, he left to work in the USA and eventually became an American citizen. On 2 October 2005, Ty reacquired his Philippine citizenship by taking his Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General in Los Angeles, California, USA, in accordance with the provisions of Republic Act No. 9225.[16] At this point, Ty still held dual citizenship, i.e., American and Philippine. It was only on 19 March 2007 that Ty renounced his American citizenship before a notary public and, resultantly, became a pure Philippine citizen again.

It bears to point out that Republic Act No. 9225 governs the manner in which a natural-born Filipino may reacquire or retain[17] his Philippine citizenship despite acquiring a foreign citizenship, and provides for his rights and liabilities under such circumstances. A close scrutiny of said statute would reveal that it does not at all touch on the matter of residence of the natural-born Filipino taking advantage of its provisions. Republic Act No. 9225 imposes no residency requirement for the

reacquisition or retention of Philippine citizenship; nor does it mention any effect of such reacquisition or retention of Philippine citizenship on the current residence of the concerned natural-born Filipino. Clearly, Republic Act No. 9225 treats citizenship independently of residence. This is only logical and consistent with the general intent of the law to allow for dual citizenship. Since a natural-born Filipino may hold, at the same time, both Philippine and foreign citizenships, he may establish residence either in the Philippines or in the foreign country of which he is also a citizen.

Residency in the Philippines only becomes relevant when the natural-born Filipino with dual citizenship decides to run for public office.

Section 5(2) of Republic Act No. 9225 reads:

SEC. 5. Civil and Political Rights and Liabilities. Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following conditions:

x x x x

(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such public office as required by the Constitution and existing laws and, at the time of the filing of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship before any public officer authorized to administer an oath.

Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or

retained his Philippine citizenship under Republic Act No. 9225, to run for public office,

he must: (1) meet the qualifications for holding such public office as required by the

Constitution and existing laws; and (2) make a personal and sworn renunciation of any

and all foreign citizenships before any public officer authorized to administer an oath.

That Ty complied with the second requirement is beyond question. On 19 March 2007,

he personally executed a Renunciation of Foreign Citizenship before a notary public. By

the time he filed his Certificate of Candidacy for the Office of Mayor of the Municipality

of General Macarthur, Eastern Samar, on 28 March 2007, he had already effectively

renounced his American citizenship, keeping solely his Philippine citizenship.

The other requirement of Section 5(2) of Republic Act No. 9225 pertains to the

qualifications required by the Constitution and existing laws.

Article X, Section 3 of the Constitution left it to Congress to enact a local government

code which shall provide, among other things, for the qualifications, election,

appointment and removal, term, salaries, powers and functions and duties of local

officials, and all other matters relating to the organization and operation of the local

units.

Pursuant to the foregoing mandate, Congress enacted Republic Act No. 7160, the Local

Government Code of 1991, Section 39 of which lays down the following qualifications

for local elective officials:

SEC. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sanggunian bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.

x x x x

(c) Candidates for the position of mayor or vice mayor of independent component cities, component cities, or municipalities must be at least twenty-one (21) years of age on election day.

The challenge against Tys qualification to run as a candidate for the Office of Mayor of

the Municipality of General Macarthur, Eastern Samar, centers on his purported failure

to meet the one-year residency requirement in the said municipality.

The term residence is to be understood not in its common acceptation as referring to

dwelling or habitation, but rather to domicile or legal residence, that is, the place where

a party actually or constructively has his permanent home, where he, no matter where he

may be found at any given time, eventually intends to return and remain (animus

manendi).[18]

A domicile of origin is acquired by every person at birth. It is usually the place where

the childs parents reside and continues until the same is abandoned by acquisition of

new domicile (domicile of choice). In Coquilla,[19] the Court already acknowledged

that for an individual to acquire American citizenship, he must establish residence in the

USA. Since Ty himself admitted that he became a naturalized American citizen, then he

must have necessarily abandoned the Municipality of General Macarthur, Eastern Samar,

Philippines, as his domicile of origin; and transferred to the USA, as his domicile of

choice.

As has already been previously discussed by this Court herein, Tys reacquisition of his

Philippine citizenship under Republic Act No. 9225 had no automatic impact or effect on

his residence/domicile. He could still retain his domicile in the USA, and he did not

necessarily regain his domicile in the Municipality of General Macarthur, Eastern

Samar, Philippines. Ty merely had the option to again establish his domicile in the

Municipality of General Macarthur, Eastern Samar, Philippines, said place becoming his

new domicile of choice. The length of his residence therein shall be determined from the

time he made it his domicile of choice, and it shall not retroact to the time of his birth.

How then could it be established that Ty indeed established a new domicile in the

Municipality of General Macarthur, Eastern Samar, Philippines?

In Papandayan, Jr. v. Commission on Elections,[20] the Court provided a summation of

the different principles and concepts in jurisprudence relating to the residency

qualification for elective local officials. Pertinent portions of the ratio in Papandayan

are reproduced below:

Our decisions have applied certain tests and concepts in resolving the issue of whether or not a candidate has complied with the residency requirement for elective positions. The principle of animus revertendi has been used to determine whether a candidate has an intention to return to the place where he seeks to be elected. Corollary to this is a determination whether there has been an abandonment of his former residence which signifies an intention to depart therefrom. In Caasi v. Court of Appeals, this Court set aside the appealed orders of the COMELEC and the Court of Appeals and annulled the election of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that respondents immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. Being a green card holder, which was proof that he was a permanent resident or immigrant of the United States, and in the absence of any waiver of his status as such before he ran for election on January 18, 1988, respondent was held to be disqualified under 68 of the Omnibus Election Code of the Philippines (Batas Pambansa Blg. 881).

In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was proclaimed the duly elected representative of the 2nd District of Northern Samar. The House of Representatives Electoral Tribunal (HRET) upheld his election against claims that he was not a natural born Filipino citizen and a resident of Laoang, Northern Samar. In sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino, applied the concept of animus revertendi or intent to return, stating that his

absence from his residence in order to pursue studies or practice his profession as a certified public accountant in Manila or his registration as a voter other than in the place where he was elected did not constitute loss of residence. The fact that respondent made periodical journeys to his home province in Laoag revealed that he always had animus revertendi.

In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was explained that the determination of a persons legal residence or domicile largely depends upon the intention that may be inferred from his acts, activities, and utterances. In that case, petitioner Adelina Larrazabal, who had obtained the highest number of votes in the local elections of February 1, 1988 and who had thus been proclaimed as the duly elected governor, was disqualified by the COMELEC for lack of residence and registration qualifications, not being a resident nor a registered voter of Kananga, Leyte. The COMELEC ruled that the attempt of petitioner Larrazabal to change her residence one year before the election by registering at Kananga, Leyte to qualify her to run for the position of governor of the province of Leyte was proof that she considered herself a resident of Ormoc City. This Court affirmed the ruling of the COMELEC and held that petitioner Larrazabal had established her residence in Ormoc City, not in Kananga, Leyte, from 1975 up to the time that she ran for the position of Provincial Governor of Leyte on February 1, 1988. There was no evidence to show that she and her husband maintained separate residences, i.e., she at Kananga, Leyte and her husband at Ormoc City. The fact that she occasionally visited Kananga, Leyte through the years did not signify an intention to continue her residence after leaving that place.

In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that domicile and residence are synonymous. The term residence, as used in the election law, 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. Domicile denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. In that case, petitioner Philip G. Romualdez established his residence during the early 1980s in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure from the country of petitioner, because of the EDSA Peoples Power Revolution of 1986, to go into self-exile in the United States until favorable conditions had been established, was not voluntary so as to constitute an abandonment of residence. The Court explained that in order to acquire a new domicile by choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an intention to abandon the old domicile. There must 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.

Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that

is the decisive factor in determining whether or not an individual has satisfied the

residency qualification requirement.

As espoused by Ty, the issue of whether he complied with the one-year residency

requirement for running for public office is a question of fact. Its determination requires

the Court to review, examine and evaluate or weigh the probative value of the evidence

presented by the parties before the COMELEC.

The COMELEC, taking into consideration the very same pieces of evidence presently

before this Court, found that Ty was a resident of the Municipality of General Macarthur,

Eastern Samar, one year prior to the 14 May 2007 local elections. It is axiomatic that

factual findings of administrative agencies, such as the COMELEC, which have

acquired expertise in their field are binding and conclusive on the Court. An application

for certiorari against actions of the COMELEC is confined to instances of grave abuse

of discretion amounting to patent and substantial denial of due process, considering that

the COMELEC is presumed to be most competent in matters falling within its domain.

[21]

The Court even went further to say that the rule that factual findings of administrative

bodies will not be disturbed by courts of justice, except when there is absolutely no

evidence or no substantial evidence in support of such findings, should be applied with

greater force when it concerns the COMELEC, as the framers of the Constitution

intended to place the COMELECcreated and explicitly made independent by the

Constitution itselfon a level higher than statutory administrative organs. The factual

finding of the COMELEC en banc is therefore binding on the Court.[22]

The findings of facts of quasi-judicial agencies which have acquired expertise in the

specific matters entrusted to their jurisdiction are accorded by this Court not only respect

but even finality if they are supported by substantial evidence. Only substantial, not

preponderance, of evidence is necessary. Section 5, Rule 133 of the Rules of Court

provides that in cases filed before administrative or quasi-judicial bodies, a fact may be

deemed established if it is supported by substantial evidence, or that amount of relevant

evidence which a reasonable mind might accept as adequate to justify a conclusion.[23]

The assailed Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC

First Division and en banc, respectively, were both supported by substantial evidence

and are, thus, binding and conclusive upon this Court.

Tys intent to establish a new domicile of choice in the Municipality of General

Macarthur, Eastern Samar, Philippines, became apparent when, immediately after

reacquiring his Philippine citizenship on 2 October 2005, he applied for a Philippine

passport indicating in his application that his residence in the Philippines was at A.

Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar. For the years

2006 and 2007, Ty voluntarily submitted himself to the local tax jurisdiction of the

Municipality of General Macarthur, Eastern Samar, by paying community tax and

securing CTCs from the said municipality stating therein his address as A. Mabini St.,

Barangay 6, Poblacion, General Macarthur, Eastern Samar. Thereafter, Ty applied for

and was registered as a voter on 17 July 2006 in Precinct 0013A, Barangay 6,

Poblacion, General Macarthur, Eastern Samar.

In addition, Ty has also been bodily present in the Municipality of General Macarthur,

Eastern Samar, Philippines, since his arrival on 4 May 2006, inarguably, just a little over

a year prior to the 14 May 2007 local elections. Japzon maintains that Tys trips abroad

during said period, i.e., to Bangkok, Thailand (from 14 to 18 July 2006), and to the USA

(from 31 October 2006 to 19 January 2007), indicate that Ty had no intention to

permanently reside in the Municipality of General Macarthur, Eastern Samar,

Philippines. The COMELEC First Division and en banc, as well as this Court, however,

view these trips differently. The fact that Ty did come back to the Municipality of

General Macarthur, Eastern Samar, Philippines, after said trips, is a further manifestation

of his animus manendi and animus revertendi.

There is no basis for this Court to require Ty to stay in and never leave at all the

Municipality of General Macarthur, Eastern Samar, for the full one-year period prior to

the 14 May 2007 local elections so that he could be considered a resident thereof. To the

contrary, the Court has previously ruled that absence from residence to pursue studies or

practice a profession or registration as a voter other than in the place where one is

elected, does not constitute loss of residence.[24] The Court also notes, that even with

his trips to other countries, Ty was actually present in the Municipality of General

Macarthur, Eastern Samar, Philippines, for at least nine of the 12 months preceding the

14 May 2007 local elections. Even if length of actual stay in a place is not necessarily

determinative of the fact of residence therein, it does strongly support and is only

consistent with Tys avowed intent in the instant case to establish residence/domicile in

the Municipality of General Macarthur, Eastern Samar.

Japzon repeatedly brings to the attention of this Court that Ty arrived in the Municipality

of General Macarthur, Eastern Samar, on 4 May 2006 only to comply with the one-year

residency requirement, so Ty could run as a mayoralty candidate in the 14 May 2007

elections. In Aquino v. COMELEC,[25] the Court did not find anything wrong in an

individual changing residences so he could run for an elective post, for as long as he is

able to prove with reasonable certainty that he has effected a change of residence for

election law purposes for the period required by law. As this Court already found in the

present case, Ty has proven by substantial evidence that he had established

residence/domicile in the Municipality of General Macarthur, Eastern Samar, by 4 May

2006, a little over a year prior to the 14 May 2007 local elections, in which he ran as a

candidate for the Office of the Mayor and in which he garnered the most number of

votes.

Finally, when the evidence of the alleged lack of residence qualification of a candidate

for an elective position is weak or inconclusive and it clearly appears that the purpose of

the law would not be thwarted by upholding the victors right to the office, the will of the

electorate should be respected. For the purpose of election laws is to give effect to,

rather than frustrate, the will of the voters.[26] To successfully challenge Tys

disqualification, Japzon must clearly demonstrate that Tys ineligibility is so patently

antagonistic to constitutional and legal principles that overriding such ineligibility and

thereby giving effect to the apparent will of the people would ultimately create greater

prejudice to the very democratic institutions and juristic traditions that our Constitution

and laws so zealously protect and promote. In this case, Japzon failed to substantiate his

claim that Ty is ineligible to be Mayor of the Municipality of General Macarthur, Eastern

Samar, Philippines.

WHEREFORE, premises considered, the instant Petition for Certiorari is

DISMISSED.

SO ORDERED.

EN BANC

PARTIDO NG MANGGAGAWA G.R. No. 164702

(PM) and BUTIL FARMERS

PARTY (BUTIL),

Petitioners,

Present:

PANGANIBAN, C.J.,

PUNO,

QUISUMBING,

YNARES-SANTIAGO,

- versus - SANDOVAL-GUTIERREZ,

CARPIO,

AUSTRIA-MARTINEZ,

*CORONA,

CARPIO MORALES,

CALLEJO, SR.,

AZCUNA,

TINGA,

CHICO-NAZARIO, and

the hon. commission on GARCIA, JJ.

elections (comelec),

represented by its HON. CHAIRMAN Promulgated:

BENJAMIN ABALOS, SR.,

Respondent. March 15, 2006

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

D E C I S I O N

PUNO, J.:

The petition at bar involves the formula for computing the additional seats due, if any, for winners in party-list elections.

The antecedents are undisputed.

Several party-list participants sent queries to the respondent COMELEC regarding the formula to be adopted in computing the additional seats for the party-list winners in the May 10, 2004 elections. In response, the respondent Commission issued Resolution No. 6835,[1] adopting the simplified formula of "one additional seat per additional two percent of the total party-list votes." The resolution reads:

Considering that the simplified formula has long been the one adopted by the Commission and is now the formula of choice of the Supreme Court in its latest resolution on the matter, the Commission RESOLVED, as it hereby RESOLVES, to adopt the simplified formula of one additional seat per additional two percent of the total party-list votes in the proclamation of the party-list winners in the coming May 10, 2004 National and Local Elections.[2] (emphasis supplied)

In finding that this simplified formula is the "formula of choice of the Supreme Court,"

respondent Commission quoted the memorandum of Commissioner Mehol K. Sadain, Commissioner-

In-Charge for Party-List concerns, viz:

By way of review, following is a highlight of the legal discourse on the two [percent] vote requirement for the party-list system and the corollary issue on additional seat allocation.

Section 11(b) and Section 12 of R.A. 7941 (Party-List System Act) provide that "the parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each, provided that those garnering more than two percent (2%) of the votes shall be entitled to additional seats in proportion to their total number of votes xxx. The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization or coalition as against the total nationwide votes cast for the party-list system."

These provisions of [the] statute were transformed into the following formulas by the Supreme Court in Veterans Federation Party vs. COMELEC (G.R. Nos. 136781, 136786 & 136795, October 6, 2000).

For the party-list candidate garnering the highest number of votes, the following formula was adopted:

Number of votes of first party Proportion of votes of first----------------------------------- = party relative to total votesTotal votes for party-list system for the party-list system

And for the additional seats of other parties who reached the required two percent mark, the following formula applies:

No. of votes ofAdditional seats concerned party No. of additionalfor concerned = --------------------- x seats allocated toparty No. of votes of first the first party

party

The applicability of these formulas was reiterated in the June 25, 2003 Resolution of the Supreme Court in Ang Bagong Bayani-OFW Labor Party vs. COMELEC, et al. (G.R. No. 147589) and Bayan Muna vs. COMELEC, et al. (G.R. No. 147613) penned by Justice Artemio Panganiban, wherein the Court declared that party-list BUHAY was not entitled to an additional seat even if it garnered 4.46 [percent] of the total party-list votes, contrary to BUHAY's contention which was based on the COMELEC simplified formula of one additional seat per an additional two percent of the total party-list votes.

However, on November 10, 2003,[3] the Supreme Court promulgated a Resolution in the same case, this time penned by Chief Justice Hilario Davide, Jr., granting BUHAY's motion for reconsideration of the June 25, 2003 Resolution, to wit:

It is thus established in the Resolution of 25 June 2003 that, like APEC, BUTIL, CIBAC and AKBAYAN, BUHAY had obtained more than four percent (4%) of the total number of votes validly cast for the party-list system and obtained more than 0.50 for the additional seats. Accordingly, just like the first four whose additional nominees are now holding office as member of the House of Representatives, BUHAY should be declared entitled to one additional seat.

Effectively, the Supreme Court, with Justices Jose Vitug and Panganiban registering separate opinions, adopted the simplified COMELEC formula of one additional seat per additional two percent of the total party-list votes garnered when it declared BUHAY entitled to one additional seat and proceeded to order the COMELEC to proclaim BUHAY's second nominee.[4] (emphasis supplied)

Party-List Canvass Report No. 20[5] showed that the total number of votes cast for all the party-list participants in the May 10, 2004 elections was 12,721,952 and the following parties, organizations and coalitions received at least two percent (2%) of the total votes cast for the party-list system, to wit:

RankParty-List GroupVotes ReceivedPercentage to Total Votes Cast (%)1Bayan Muna (BAYAN MUNA)1,203,3059.45852Association of Philippine Electric Cooperatives (APEC)934,9957.34953Akbayan! Citizen's Action Party (AKBAYAN!)852,4736.70084Buhay Hayaan Yumabong (BUHAY)705,7305.54735Anakpawis (AP)538,3964.23206Citizen's Battle Against Corruption (CIBAC)495,1933.89247Gabriela Women's Party (GABRIELA)464,5863.65188Partido ng Manggagawa (PM)448,0723.52209Butil Farmers Party (BUTIL)429,2593.374210Alliance of Volunteer Educators (AVE)343,4982.700011Alagad (ALAGAD)340,9772.680212Veterans Freedom Party (VFP)340,7592.678513Cooperative Natcco Network Party (COOP-

NATCCO)270,9502.129814Anak Mindanao (AMIN)269,7502.120415Ang Laban ng Indiginong Filipino (ALIF)269,3452.117216An Waray (AN WARAY)268,1642.1079 Based on the simplified formula, respondent Commission issued Resolution No. NBC 04-004[6] proclaiming the following parties, organizations and coalition as winners and their qualified nominees as representatives to the House of Representatives:

BAYAN MUNA (BAYAN MUNA) - 3 seats1. Saturnino C. Ocampo2. Teodoro A. Casio, Jr.3. Joel G. Virador ASSOCIATION OF PHILIPPINE ELECTRIC COOPERATIVES (APEC) - 3 seats1. Edgar L. Valdez2. Ernesto G. Pablo3. Sunny Rose A. Madamba AKBAYAN! CITIZEN'S ACTION PARTY (AKBAYAN!) - 3 seats1. Loreta Ann P. Rosales2. Mario Joyo Aguja3. Ana Theresa Hontiveros-Baraquel BUHAY HAYAAN YUMABONG (BUHAY) - 2 seats1. Rene M. Velarde2. Hans Christian M. Seeres ANAKPAWIS (AP) - 2 seats1. Crispin B. Beltran2. Rafael V. Mariano CITIZEN'S BATTLE AGAINST CORRUPTION (CIBAC) - 1 seatEmmanuel Joel J. Villanueva

GABRIELA WOMEN'S PARTY (GABRIELA) - 1 seat

Liza Largoza-Maza PARTIDO NG MANGGAGAWA (PM) - 1 seatRenato B. Magtubo BUTIL FARMERS PARTY (BUTIL) - 1 seatBenjamin A. Cruz ALLIANCE OF VOLUNTEER EDUCATORS (AVE) - 1 seatEulogio R. Magsaysay ALAGAD (ALAGAD) - 1 seat x x x

VETERANS FREEDOM PARTY (VFP) - 1 seatErnesto S. Gidaya COOPERATIVE NATCCO NETWORK PARTY (COOP-NATCCO) - 1 seatGuillermo P. Cua AN WARAY (AN WARAY) - 1 seatFlorencio G. Noel

ANAK MINDANAO (AMIN) - 1 seatMujiv S. Hataman[7]

Subsequently, ALIF was also proclaimed as "duly-elected party-list participant and its nominee, Hadji

Acmad M. Tomawis, as elected representative to the House of Representatives."[8]

On June 22, 2004, petitioners PM and BUTIL, together with CIBAC, filed a Joint Motion for Immediate Proclamation[9] with the respondent Commission en banc. They prayed that they be declared as entitled to one (1) additional seat each and their respective second nominees be proclaimed as duly elected members of the House of Representatives. As basis, they cited the formula used by the Court in Ang Bagong Bayani-OFW Labor Party v. COMELEC,[10] viz:Votes Cast for

Qualified Party Allotted Seats

Additional Seats = ------------------------------ x for First Party

Votes Cast for First Party

On June 25, 2004, petitioners and CIBAC filed a Supplement to the Joint Motion (For Immediate Proclamation)[11] to justify their entitlement to an additional seat, as follows:

5. To compute the additional seats that movants are entitled to using the Veterans formula of the Supreme Court in the aforesaid Ang Bagong Bayani-OFW Labor Party and Bayan Muna cases, and Party List Canvass Report No. 20, the following process is done: Bayan Muna is the "First Party" with 1,203,305 votes. To determine the number of seats allocated to the first party, we use the Veterans formula, to wit:

Number of votes Proportion of votes of first party of first party relative

---------------------- = to total votes forTotal votes for party-list system party-list system

Applying this formula, we arrive at 9.4585%

1,203,305-------------- = 9.4585%

12,721,952

6. Having obtained 9.4585%, the first party, Bayan Muna, is allotted three (3) seats.

7. The number of additional seats that the movants are entitled to are determined as follows:

Votes Cast forQualified Party

Additional Seats = ------------------ x Allotted Seats Votes Cast for for First PartyFirst Party

For BUTIL, the computation is as follows:

429,259Additional Seats = ------------- x 3 = 1.0701

1,203,305

For CIBAC, the computation is:

495,193 Additional Seats = ------------- x 3 = 1.2345

1,203,305

For PM, the computation is:

448,072Additional Seats = ------------- x 3 = 1.1171

1,203,3058. All the foregoing results are greater than one (1); therefore, the movant-party list organizations are entitled to one (1) additional seat each.[12]

On July 31, 2004, respondent Commission en banc, issued Resolution No. NBC 04-011,[13] viz:

This pertains to the 06 July 2004 Memorandum of the Supervisory Committee, National Board of Canvassers, submitting its comment/recommendation on the petition filed by Luzon Farmers Party (BUTIL), Citizens Battle Against Corruption (CIBAC), Partido ng Manggagawa (PM) and Gabriela Women's Party for additional seat and to immediately proclaim their respective second nominees to the House of

Representatives, and the letter of Atty. Ivy Perucho, Legal counsel of the CIBAC, relative to the Joint Motion for Immediate Proclamation filed by BUTIL, CIBAC, PM requesting to calendar for resolution the said Joint Motion.

The Memorandum of the Supervisory Committee reads:

"This has reference to the Urgent Motion for Resolution (re: Joint Motion for Immediate Proclamation dated 22 June 2004) filed on July 1, 2004 by movants Luzon Farmers Party (BUTIL), Citizens Battle Against Corruption (CIBAC) and Partido ng Manggagawa (PM), NBC Case No. 04-197 (195) and a similar motion filed by party-list Gabriela Women's Party (NBC No. 04-200) through counsel, praying to declare that the herein movants are entitled to one (1) additional seat each, and to immediately proclaim the second nominees, to wit: x x x

The Supreme Court, in its latest Resolution promulgated on November 10, 2003 (sic) in Ang Bagong Bayani-OFW Labor Party vs. Comelec, et al. (G.R. No. 147589) and Bayan Muna vs. Comelec, et al. (G.R. No. 147613), laid down a simplified formula of one additional seat per additional two (2) percent of the total party list votes.

The same simplified formula was adopted by the Commission in its Resolution No. 6835 promulgated 08 May 2004, to quote:

"The additional seats of other parties who reached the required two percent mark, the following formula applies:

No. of votes ofAdditional seats concerned party No. of additional

for concerned = -------------------- x seats allocated to

party No. of votes of the first party

first party

The aforenamed party-list organizations have not obtained the required additional two (2) percent of the total party-list votes for them to merit an additional seat.

For your Honors' consideration."

x x x

Considering the foregoing, the Commission RESOLVED, as it hereby RESOLVES, to direct the Supervisory Committee to cause the re-tabulation of the votes for Citizens Battle Against Corruption (CIBAC), Luzon Farmers Party (BUTIL), Partido ng Manggagawa (PM) and Gabriela Women's Party (Gabriela) and to submit its comment/recommendation, together with the tabulated figures of the foregoing parties, for appropriate action of the Commission.

Let the Supervisory Committee implement this resolution and to furnish copies hereof to the parties concerned for their information and guidance.

SO ORDERED.[14] (emphases supplied)

For failure of the respondent Commission to resolve the substantive issues raised by petitioners and to

cause the re-tabulation of the party-list votes despite the lapse of time, petitioners PM and BUTIL filed

the instant petition on August 18, 2004. They seek the issuance of a writ of mandamus to compel

respondent Commission: a) to convene as the National Board of Canvassers for the Party-List System;

b) to declare them as entitled to one (1) additional seat each; c) to immediately proclaim their

respective second nominees; d) to declare other similarly situated party-list organizations as entitled to

one (1) additional seat each; and e) to immediately proclaim similarly situated parties' second

nominees as duly elected representatives to the House of Representatives.[15] They submit as sole

issue:

WHETHER OR NOT RESPONDENT COMELEC EN BANC, AS THE NATIONAL BOARD OF CANVASSERS FOR THE PARTY-LIST SYSTEM, COULD BE COMPELLED BY THE HONORABLE COURT TO MECHANICALLY APPLY THE FORMULA STATED IN ITS 25 JUNE 2003 RESOLUTION REITERATED IN THE 20 NOVEMBER 2003 RESOLUTION IN ANG BAGONG BAYANI CASES IN THE DETERMINATION OF QUALIFIED PARTY-LIST ORGANIZATIONS AND IN THE PROCLAMATION OF THEIR RESPECTIVE NOMINEES.[16]

We shall first resolve the procedural issues. Respondent Commission, through the Office of the

Solicitor General, submits that petitioners' recourse to a petition for mandamus with this Court is

improper. It raises the following procedural issues: (a) the proper remedy from the assailed resolution

of the respondent Commission is a petition for certiorari under Rule 65 of the Rules of Court; (b) the

instant action was filed out of time; and (c) failure to file a motion for reconsideration of the assailed

resolution with the respondent Commission is fatal to petitioners' action.[17]

In assailing petitioners' recourse to a petition for mandamus, respondent Commission relies on Section 7, Article IX(A) of the 1987 Constitution which provides that "any decision, order or ruling" of the respondent Commission "may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." It contends that in Aratuc v. COMELEC[18] and Dario v. Mison,[19] this provision was construed as the special civil action of certiorari under Rule 65 and not the appeal by certiorari under Rule 45. Respondent Commission further contends that its duty to proclaim the second nominees of PM and BUTIL is not ministerial but discretionary, hence, it is not subject to the writ of mandamus.

The arguments fail to impress.

Under the Constitution, this Court has original jurisdiction over petitions for certiorari, prohibition and mandamus.[20] We have consistently ruled that where the duty of the respondent Commission is ministerial, mandamus lies to compel its performance.[21] A purely ministerial act, as distinguished from a discretionary act, is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety or impropriety of the act done.[22]

The case at bar is one of mandamus over which this Court has jurisdiction for it is respondent Commission's ministerial duty to apply the formula as decided by this Court after interpreting the existing law on party-list representation. It is given that this Court has the ultimate authority to interpret laws and the Constitution.[23] Respondent Commission has no discretion to refuse enforcement of any decision of this Court under any guise or guile.

In any event, it is the averments in the complaint, and not the nomenclature given by the parties, that determine the nature of the action.[24] Though captioned as a Petition for Mandamus, the same may be treated as a petition for certiorari and mandamus considering that it alleges that the respondent Commission acted contrary to prevailing jurisprudence, hence, with grave abuse of discretion and without jurisdiction. In previous

rulings,[25] we have treated differently labeled actions as special civil actions for certiorari under Rule 65 for reasons such as "justice, equity and fairplay"[26] and "novelty of the issue presented and its far-reaching effects."[27] The petition at bar involves the rightful representation in the House of Representatives of the marginalized groups by the party-list winners and their constitutional claim merits more than a disposition based on thin technicality.

Next, respondent Commission contends that the petition at bar was filed belatedly. Under Article IX(A), Section 7 of the Constitution and Rule 64, Section 3 of the Rules of Court, the instant petition must be filed within thirty (30) days from receipt of the notice of the decision, order or ruling to be reviewed. Since more than 30 days have lapsed from the time PM and BUTIL allegedly received notice of respondent Commission's Resolution No. 6835, it is urged that the instant petition was filed out of time.[28]

Again, the contention is without merit.

We have interpreted Article IX(A), Section 7 of the Constitution and Rule 64, Section 3 of the Rules of Court to mean final orders, rulings and decisions of the respondent Commission rendered in the exercise of its adjudicatory or quasi-judicial powers.[29] Before resolving whether Resolution No. 6835 was rendered in the exercise of respondent Commission's adjudicatory or quasi-judicial powers, we recapitulate the pertinent events.

On May 8, 2004, respondent Commission issued Resolution No. 6835. On June 2, 2004, it also issued Resolution No. NBC 04-004 holding petitioners entitled to only one (1) nominee each on the basis of Resolution No. 6835. On June 22, 2004, petitioners filed a Joint Motion for Immediate Proclamation with party-list co-participant CIBAC, claiming entitlement to an additional seat using the formula stated in Ang Bagong Bayani. Thereafter, they filed their Supplement to the Joint Motion (For Immediate Proclamation). On July 1, 2004, they filed an Urgent Motion for Resolution (Re: Joint Motion for Immediate Proclamation dated 22 June 2004) and again, on July 12, 2004, they filed their Motion to Resolve (Re: Joint Motion for Immediate Proclamation filed on 22 June 2004). In response, respondent Commission en banc issued Resolution No. NBC 04-011 quoted above, which directed the Supervisory Committee "to cause the re-tabulation of the votes" of CIBAC, GABRIELA and petitioners PM and BUTIL. The resolution referred to the Memorandum of the Supervisory Committee which adopted the simplified formula in Resolution No. 6835. Without further ado, petitioners BUTIL and PM filed the instant petition on August 18, 2004 or eighteen (18) days after the promulgation of Resolution No. NBC 04-011. Clearly, the instant petition was timely filed. We hold that Resolution No. 6835 was not rendered in the exercise of respondent COMELEC's quasi-judicial powers. Its issuance was not brought about by a matter or case filed before the respondent Commission. Rather, it was issued by the respondent Commission in the exercise of its administrative function to enforce and administer election laws to ensure an orderly election.

Finally, respondent Commission contends that petitioners' failure to file a motion for reconsideration of Resolution No. 6835 is fatal.

Again, the argument is without merit.

Under Rule 13, Section 1(d) of the COMELEC Rules of Procedure, a motion for reconsideration of an

en banc ruling, order or decision of the respondent Commission is not allowed. Moreover, the issue of what formula applies in determining the additional seats to be allocated to party-list winners is a pure question of law that is a recognized exception to the rule on exhaustion of administrative remedies.[30]

We shall now resolve the substantive issue: the formula for computing the additional seats due, if any, for winners in party-list elections.

Petitioners cite the formula crafted by the Court in the landmark case of Veterans Federation Party v. COMELEC.[31] They allege that the June 25, 2003 Resolution of the Court in Ang Bagong Bayani-OFW v. COMELEC[32] "reiterated that the additional seats for qualified party-list organizations shall be computed in accordance with the above formula in Veterans" and that the November 20, 2003 Resolution[33] of the Court in the same case "had not departed from its 25 June 2003 Resolution."[34]

A review of the pertinent legal provisions and jurisprudence on the party-list system is appropriate.

The Constitution provides:

Art. VI, Section 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations. (emphasis supplied)

Pursuant to the Constitution's mandate, Congress enacted R.A. No. 7941, also known as the "Party-List

System Act," to "promote proportional representation in the election of representatives to the House of

Representatives through a party-list system." The law provides as follows:

Section 11. Number of Party-List Representatives.-- xxx

In determining the allocation of seats for the second vote, the following procedure shall be observed:

(a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections.

(b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in the proportion of their total number of votes: Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats.

Section 12. Procedure in Allocating Seats for Party-List Representatives.-- The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the total nationwide votes cast for the party-list system. (emphases supplied)

These provisions on the party-list system were put to test in the May 11, 1998 elections. In the landmark case of Veterans,[35] several petitions for certiorari, prohibition and mandamus, with prayers for the issuance of temporary restraining orders or writs of preliminary injunction, were filed by some parties and organizations that had obtained at least two percent of the total party-list votes cast in the May 11, 1998 party-list elections, against COMELEC and 38 other parties, organizations and coalitions which had been declared by COMELEC as entitled to party-list seats in the House of Representatives. The following issues were raised: 1) whether the twenty percent constitutional allocation is mandatory; 2) whether the two percent threshold requirement and the three-seat limit under Section 11(b) of R.A. No. 7941 is constitutional; and 3) how the additional seats of a qualified party should be determined. In said case, the Court set the "four inviolable parameters" of the party-list system under the Constitution and R.A. No. 7941, to wit:

First, the twenty percent allocation -- the combined number of all party-list congressmen shall not exceed twenty percent of the total membership of the House of Representatives, including those elected under the party list.

Second, the two percent threshold -- only those parties garnering a minimum of two percent of the total valid votes cast for the party-list system are "qualified" to have a seat in the House of Representatives.

Third, the three-seat limit -- each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and two additional seats.

Fourth, proportional representation -- the additional seats which a qualified party is entitled to shall be computed "in proportion to their total number of votes."

Likewise, the Court spelled out the formula for allocating the seats for party-list winners, thus:

Step One. There is no dispute among the petitioners, the public and the private respondents, as well as the members of this Court, that the initial step is to rank all the participating parties, organizations and coalitions from the highest to the lowest based on the number of votes they each received. Then the ratio for each party is computed by dividing its votes by the total votes cast for all the parties participating in

the system. All parties with at least two percent of the total votes are guaranteed one seat each. Only these parties shall be considered in the computation of additional seats. The party receiving the highest number of votes shall thenceforth be referred to as the "first" party.

Step Two. The next step is to determine the number of seats the first party is entitled to, in order to be able to compute that for the other parties. Since the distribution is based on proportional representation, the number of seats to be allotted to the other parties cannot possibly exceed that to which the first party is entitled by virtue of its obtaining the most number of votes.

x x x

Now, how do we determine the number of seats the first party is entitled to? x x x The formula x x x is as follows:

Number of votes of first party Proportion of votes of -------------------- = first party relative to Total votes for total votes for party-list systemParty-list system

If the proportion of votes received by the first party without rounding it off is equal to at least six percent of the total valid votes cast for all the party list groups, then the first party shall be entitled to two additional seats or a total of three seats overall. If the proportion of votes without a rounding off is equal to or greater than four percent, but less than six percent, then the first party shall have one additional or a total of two seats. And if the proportion is less than four percent, then the first party shall not be entitled to any additional seat.

x x x

Step Three. The next step is to solve for the number of additional seats that the other qualified parties are entitled to, based on proportional representation. The formula is encompassed by the following complex fraction:

No. of votes ofconcerned party----------------------Total No. of votesAdditional seats for party-list systemfor concerned = -------------------------- x No. of additional

party No. of votes of seats allocated

first party to the first party----------------------Total No. of votesfor party-list system

In simplified form, it is written as follows:

No. of votes ofAdditional seats concerned partyfor concerned = ------------------------ x No. of additional party No. of votes of seats allocated first party to the first party[36] (emphases supplied)

Applying this formula, the Court found the outcome of the May 11, 1998 party-list elections as

follows:

Organization Votes %age of Initial Additional Seats Total

Garnered Total No. of

Votes Seats

1. APEC 503,487 5.50% 1 1 2

2. ABA 321,646 3.51% 1 321,646/503,487 * 1 = 0.64 1

3. ALAGAD 312,500 3.41% 1 312,500/503,487 * 1 = 0.62 1

4. VETERANS 304,802 3.33% 1 304,802/503,487 * 1 = 0.61 1FEDERATION

5. PROMDI 255,184 2.79% 1 255,184/503,487 * 1 = 0.51 1

6. AKO 239,042 2.61% 1 239,042/503,487 * 1 = 0.47 1

7. NCSFO 238,303 2.60% 1 238,303/503,487 * 1 = 0.47 1

8. ABANSE!PINAY 235,548 2.57% 1 235,548/503,487 * 1 = 0.47 1

9. AKBAYAN! 232,376 2.54% 1 232,376/503,487 * 1 = 0.46 1

10. BUTIL 215,643 2.36% 1 215,643/503,487 * 1 = 0.43 1

11. SANLAKAS 194,617 2.13% 1 194,617/503,487 * 1 = 0.39 1

12. COOP-NATCCO 189,802 2.07% 1 189,802/503,487 * 1 = 0.38 1

13. COCOFED 186,388 2.04% 1 186,388/503,487 * 1 = 0.37 1[37]

The case of Ang Bagong Bayani arose during the May 14, 2001 party-list elections. Two

petitions for certiorari were filed by several party-list candidates: (a) to challenge a resolution of the

COMELEC approving the participation of some 154 organizations and parties in the May 14, 2001

party-list elections; and (b) to disqualify certain parties classified as "political parties" and

"organizations/coalitions" by COMELEC. In a Decision dated June 26, 2001, the Court established the

eight-point guideline[38] for the screening of party-list participants. The case was then remanded to

the COMELEC for the immediate conduct of summary evidentiary hearings to implement the eight-

point guideline.

In due time, COMELEC submitted its compliance reports to the Court. Based on the compliance reports, the Court issued several resolutions proclaiming BAYAN MUNA with its three nominees and AKBAYAN!, BUTIL, APEC and CIBAC, with one nominee each, as party-list winners.[39]

Subsequently, several motions for proclamation were filed by other party-list participants. In resolving

the motions, the Court had to consider, among others, the effect of the disqualification after the

elections of many party-list participants to the total votes cast for the party-list elections. In the

previous case of Labo v. COMELEC,[40] this Court ruled that the votes cast for an ineligible or

disqualified candidate cannot be considered "stray" except when the electorate is fully aware in fact

and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety

but nonetheless cast their votes in favor of the ineligible candidate. In its Resolution dated June 25,

2003, the Court held that the Labo doctrine cannot be applied to the party-list system in view of Sec.

10 of R.A. No. 7941 which expressly provides that the votes cast for a party, a sectoral organization or

a coalition "not entitled to be voted for shall not be counted." The Court then proceeded to determine

the number of nominees the party-list winners were entitled, thus:[41]

We shall now determine the number of nominees each winning party is entitled to, in accordance with the formula in Veterans. For purposes of determining the number of its nominees, BAYAN MUNA (the party that obtained the highest number of votes) is considered the first party. The applicable formula is as follows:

Number of votes of first party Proportion of votes of first

------------------------------------- = party relative to total votesTotal votes for party-list system for party-list system

Applying this formula, we arrive at 26.19 percent:

x x x

Having obtained 26.19 percent, BAYAN MUNA is entitled to three (3) seats. This finding is pursuant to our ruling in Veterans x x x.

x x x

[W]e shall compute only the additional seat or seats to be allocated, if any, to the other qualified parties -- BUHAY, AMIN, ABA, COCOFED, PM, SANLAKAS and ABANSE! PINAY.

Applying the relevant formula in Veterans to BUHAY, we arrive at 0.51:

Votes Cast for Qualified Party

Additional Seats = ------------------- x Allotted Seats Votes Cast for for First Party

First Party

290,760= ------------- x 31,708,253

= 0.51

Since 0.51 is less than one, BUHAY is not entitled to any additional seat. It is entitled to only one qualifying seat like all the other qualified parties that are ranked below it, as shown in Table No. 3:

Table No. 3

RankParty-listVotesPercentage

(%)Additional

Seats2APEC802,06012.29n/c3AKBAYAN!377,8525.79n/c4BUTIL330,2825.06n/c5CIBAC323,8104.96n/

c6BUHAY290,7604.460.517AMIN252,0513.860.448ABA242,1993.710.429COCOFED229,1653.510.4010PM216,8233.320.3811SANLAKAS151,0172.310.2612ABANSE!

PINAY135,2112.070.24 The additional seats for APEC, AKBAYAN!, BUTIL and CIBAC, if any, were not determined in the

Court's Resolution dated June 25, 2003, as there was a separate pending motion filed by BAYAN

MUNA to set aside the resolution of the COMELEC proclaiming APEC, AKBAYAN!, BUTIL and

CIBAC's respective additional nominees.

Dissatisfied by the Court's June 25, 2003 Resolution, BUHAY filed a motion to have it declared as entitled to one (1) additional seat. On November 20, 2003, in the same case of Ang Bagong Bayani,[42] the Court computed the additional seats for APEC, AKBAYAN!, BUTIL and CIBAC in accordance with the formula stated in the Court's Resolution dated June 25, 2003, and found the results as follows:

APEC -- 1.40

AKBAYAN -- 0.66

BUTIL -- 0.58

CIBAC -- 0.56

Then, the Court resolved pro hac vice to grant BUHAY's motion, reasoning that:

It is thus established in the Resolution of 25 June 2003 that, like APEC, BUTIL, CIBAC and AKBAYAN, BUHAY had obtained more than four percent (4%) of the total number of votes validly cast for the party-list system and obtained more than 0.50 for the additional seats. Accordingly, just like the first four whose additional nominees are now holding office as member of the House of Representatives, BUHAY should be declared entitled to additional seat.[43]

In light of all these antecedents, we deny the petition.

The formula in the landmark case of Veterans prevails.

First, the June 25, 2003 Resolution of the Court in Ang Bagong Bayani referred to the Veterans case in determining the number of seats due for the party-list winners. The footnote on said resolution in computing the additional seats for the party-list winners states: "[f]or a discussion of how to compute additional nominees for parties other than the first, see Veterans, supra, at pp. 280-282. x x x."[44] The Court likewise held that:

We also take this opportunity to emphasize that the formulas devised in Veterans for computing the number of nominees that the party-list winners are entitled to cannot be disregarded by the concerned agencies of government, especially the Commission on Elections. These formulas ensure that the number of seats allocated to the winning party-list candidates conform to the principle of proportional representation mandated by the law.[45] (emphases supplied)

Second, in the November 20, 2003 Resolution in Ang Bagong Bayani, the Court gave an additional seat to BUHAY only because it was similarly situated to APEC, BUTIL, CIBAC and AKBAYAN which "had obtained more than four percent (4%) of the total number of votes validly cast for the party-list system and obtained more than 0.50 for the additional seats." Well to note, the grant of an additional seat to BUHAY was pro hac vice, thus:

ACCORDINGLY, the Court hereby RESOLVES, pro hac vice

1. To consider closed and terminated the issue regarding the proclamation by the COMELEC of the additional nominees of APEC, BUTIL, CIBAC and AKBAYAN, such nominees having taken their oath and assumed office;

2. To DECLARE that BUHAY is entitled to one (1) additional seat in the party-list system in the elections of May 2001 and;

3. To ORDER the COMELEC to proclaim BUHAY's second nominee.

SO ORDERED.[46] (emphasis supplied)

Pro hac vice is a Latin term meaning "for this one particular occasion."[47] A ruling expressly

qualified as pro hac vice cannot be relied upon as a precedent to govern other cases. It was therefore

erroneous for respondent Commission to apply the November 20, 2003 Resolution and rule that the

formula in Veterans has been abandoned.

The confusion in the petition at bar must have been created by the way the Veterans formula was cited in the June 25, 2003 Resolution of the Court in Ang Bagong Bayani.[48] Be that as it may, we reiterate that the prevailing formula for the computation of additional seats for party-list winners is the formula stated in the landmark case of Veterans, viz:No. of votes of

Additional seats concerned party No. of additional

for concerned = ------------------- x seats allocated to

party No. of votes of the first party[49] first party

Applying said formula to the undisputed figures in Party-List Canvass Report No. 20, we do not find petitioners entitled to any additional seat. Thus:448,072

Additional seats = ------------ x 2

for PM 1,203,305

= 0.74

429,259

Additional seats = ------------ x 2

for BUTIL 1,203,305

= 0.71

IN VIEW WHEREOF, the petition is DENIED.

SO ORDERED.

REYNATO S. PUNO

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN

Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO


(Sick leave)

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA


CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.


ADOLFO S. AZCUNA DANTE O. TINGA


MINITA V. CHICO-NAZARIO CANCIO C. GARCIA


1.1.1

1.1.2CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the

conclusions in the above Decision were reached in consultation before the case was

assigned to the writer of the opinion of the Court.


Chief Justice

* Sick leave.

[1] Dated May 8, 2004; Rollo, pp. 58-60.

[2] Id. at 60.

[3] Should be November 20, 2003.

[4] Rollo, pp. 58-59.

[5] Annex "K," dated June 2, 2004; Id. at 114-117.

[6] Dated June 2, 2004; Id. at 61-66.

[7] Id. at 64-66.

[8] Resolution No. NBC 04-008 dated June 29, 2004; Id. at 77.

[9] Id. at 86-90.

[10] Resolution dated June 25, 2003; 404 SCRA 719 (2003).

[11] Rollo, pp. 93-97.

[12] Id. at 95-96.

[13] In the Matter of the Comment/Recommendation of the Supervisory Committee on the Petition filed by Luzon Farmers Party (BUTIL), Citizens Battle Against Corruption (CIBAC), Partido ng Manggagawa (PM) and Gabriela Women's Party for Additional Seat and to Immediately Proclaim their Respective Second Nominees to the House of Representatives; and the Letter of Atty. Ivy Perucho of CIBAC Requesting to Calendar for Resolution said Joint Motion; Id. at 110-113.

[14] Id. at 110-113.

[15] Petition; Id. at 52-53.

[16] Id. at 25.

[17] Comment; Id. at 148-A-154.

[18] 88 SCRA 251 (1979).

[19] 176 SCRA 84 (1989).

[20] Section 5 (1), Art. VIII of the Constitution states that the Supreme Court shall "[e]xercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus."

[21] Ramos v. COMELEC, 80 Phil. 722 (1948); See also Lozada v. COMELEC, 120 SCRA 337 (1983).

[22] Meralco Securities Corporation v. Savellano, 117 SCRA 804 (1982), citing Samson v. Barrios, 63 Phil. 198 (1936); Lemi v. Valencia, 26 SCRA 203 (1969).

[23] Guieb v. Civil Service Commission, 229 SCRA 779 (1994).

[24] Ligon v. CA, 294 SCRA 73 (1998), citing Abad v. Court of First Instance of Pangasinan, Br. VIII, 206 SCRA 567, 579 (1992); Solid Homes, Inc. v. Court of Appeals, 271 SCRA 157, 164 (1997).

[25] See Ligon v. CA, ibid.; ABS-CBN Supervisors Employees Union Members v. ABS-CBN Broadcasting Corporation, 304 SCRA 489 (1999); In Re: Petition Seeking for Clarification as to the Validity and Forceful Effect of Two (2) Final and Executory but Conflicting Decisions of the Honorable Supreme Court, 321 SCRA 62 (1999); Diesel Construction Company, Inc. v. Jollibee Foods Corporation, 323 SCRA 844 (2000); Sevillana v. I.T., 356 SCRA 451 (2001); and Neplum, Inc. v. Orbeso, 384 SCRA 466 (2002).

[26] ABS-CBN Supervisors Employees Union Members v. ABS-CBN Broadcasting Corporation, supra, citing Salazar v. NLRC, 256 SCRA 273 (1996).

[27] Neplum, Inc. v. Orbeso, supra.

[28] Rollo, pp. 152-153.

[29] See Salva v. Makalintal, 340 SCRA 506 (2000); Loong v. COMELEC, 305 SCRA 832 (1999), citing Filipino Engineering and Machine Shop v. Ferrer, 135 SCRA 25 (1985).

[30] See De Leon v. Carpio, 178 SCRA 457 (1989); Madrigal v. Lecaroz, 191 SCRA 20 (1990); Alindao v. Joson, 264 SCRA 211 (1996); and Alfafara v. Acebedo Optical, Co., Inc., 381 SCRA 293 (2002).

[31] 342 SCRA 244 (2000); See Rollo, pp. 27-31.

[32] Supra Note 10.

[33] 416 SCRA 304 (2003).

[34] Petition; Rollo, pp. 31, 35.

[35] Supra Note 31.

[36] Id. at 277-280.

[37] Id. at 281.

[38] See Ang Bagong Bayani-OFW Labor Party v. COMELEC, 359 SCRA 698, 727-731 (2001).

[39] Supra Note 10, pp. 723-724. [40] 211 SCRA 297 (1992).

[41] Supra Note 10, pp. 742-745.

[42] Supra Note 33, p. 306.

[43] Id. at 307.

[44] Footnote 37; Supra Note 10, p. 744.

[45] Id. at 739.

[46] Supra Note 33, pp. 307-308.

[47] Black's Law Dictionary, sixth edition (1990).

[48] See Supra Note 10, p. 744.

[49] Supra Note 31, pp. 250, 280.

Republic of the PhilippinesSupreme Court

Manila

1.1.3EN BANC

1.1.4Abraham Kahlil B. Mitra,Petitioner,

- versus -

COMMISSION ON ELECTIONS, ANTONIO V. GONZALES, and ORLANDO R. BALBON, JR.,

Respondents.

1.1.5 G.R. No. 191938

Present:

CORONA, C.J.,

CARPIO,

CARPIO MORALES,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO,

ABAD,

VILLARAMA, JR.,

PEREZ, and

MENDOZA, JJ.

Promulgated:

July 2, 2010x-----------------------------------------------------------------------------------------x D E C I S I O N

BRION, J.:

The minimum requirement under our Constitution[1] and election laws[2] for the

candidates residency in the political unit they seek to represent has never been intended

to be an empty formalistic condition; it carries with it a very specific purpose: to prevent

"stranger[s] or newcomer[s] unacquainted with the conditions and needs of a community

from seeking elective offices in that community.[3]

The requirement is rooted in the recognition that officials of districts or localities should

not only be acquainted with the metes and bounds of their constituencies; more

importantly, they should know their constituencies and the unique circumstances of their

constituents their needs, difficulties, aspirations, potentials for growth and development,

and all matters vital to their common welfare. Familiarity, or the opportunity to be

familiar, with these circumstances can only come with residency in the constituency to

be represented.

The purpose of the residency requirement is best met by individuals who have either had

actual residence in the area for a given period or who have been domiciled in the same

area either by origin or by choice.[4] At the same time, the constituents themselves can

best know and evaluate the candidates qualifications and fitness for office if these

candidates have lived among them.[5]

Read and understood in this manner, residency can readily be appreciated as a

requirement that goes into the heart of our democratic system; it directly supports the

purpose of representation electing those who can best serve the community because of

their knowledge and sensitivity to its needs. It likewise adds meaning and substance to

the voters freedom of choice in the electoral exercise that characterizes every

democracy.

In the present case, the respondent Commission on Elections (COMELEC) canceled the

certificate of candidacy (COC) of petitioner Abraham Kahlil B. Mitra for allegedly

misrepresenting that he is a resident of the Municipality of Aborlan, Province of Palawan

where he ran for the position of Governor. Mitra came to this Court to seek the reversal

of the cancellation.[6]

The Antecedents

When his COC for the position of Governor of Palawan was declared cancelled, Mitra

was the incumbent Representative of the Second District of Palawan. This district then

included, among other territories, the Municipality of Aborlan and Puerto Princesa City.

He was elected Representative as a domiciliary of Puerto Princesa City, and represented

the legislative district for three (3) terms immediately before the elections of 2010.[7]

On March 26, 2007 (or before the end of Mitras second term as Representative), Puerto

Princesa City was reclassified as a highly urbanized city and thus ceased to be a

component city of the Province of Palawan. The direct legal consequence of this new

status was the ineligibility of Puerto Princesa City residents from voting for candidates

for elective provincial officials.[8]

On March 20, 2009, with the intention of running for the position of Governor, Mitra

applied for the transfer of his Voters Registration Record from Precinct No. 03720 of

Brgy. Sta. Monica, Puerto Princesa City, to Sitio Maligaya, Brgy. Isaub, Municipality of

Aborlan, Province of Palawan. He subsequently filed his COC for the position of

Governor of Palawan as a resident of Aborlan.[9]

Soon thereafter, respondents Antonio V. Gonzales and Orlando R. Balbon, Jr. (the

respondents) filed a petition to deny due course or to cancel Mitras COC.[10] They

essentially argued that Mitra remains a resident of Puerto Princesa City who has not yet

established residence in Aborlan, and is therefore not qualified to run for Governor of

Palawan. Mitra insisted in his Answer that he has successfully abandoned Puerto

Princesa City as his domicile of origin, and has established a new domicile in Aborlan

since 2008.[11]

The Parties Claims and Evidence

The respondents petition before the COMELEC claimed that Mitras COC should be

cancelled under the following factual premises: (a) Mitra bought, in June 2009, a parcel

of land in Aborlan where he began to construct a house, but up to the time of the filing

of the petition to deny due course or to cancel Mitras COC, the house had yet to be

completed; (b) in the document of sale, Puerto Princesa City was stated as Mitras

residence (attached as Annex J of the Respondents Petition before the COMELEC);[12]

(c) Mitras Puerto Princesa City residence was similarly stated in his application for a

building permit (attached as Annex K of the Respondents Petition before the

COMELEC);[13] and (d) Mitras community tax certificate states that his residence was

Puerto Princesa City (attached as Annex M of the Respondents Petition before the

COMELEC).[14] The respondents presented several affidavits attesting to the non-

completion of the construction of the house,[15] and asserted that without a fully

constructed house, Mitra could not claim residence in Aborlan.

Mitra denied the respondents allegations in his Answer. He claimed that the respondents

misled the COMELEC by presenting photographs of his unfinished house on the land he

purchased from a certain Rexter Temple. He claimed, on the contrary, that his residence

is located inside the premises of the Maligaya Feedmill and Farm (Maligaya Feedmill)

which the owner, Carme Caspe, leased to him; and that he purchased a farm and

presently has an experimental pineapple plantation and a cock farm. The transfer of his

residence, he claimed, began in 2008.[16]

He submitted the following: (a) the Sinumpaang Salaysay of Ricardo Temple; Florame T.

Gabrillo, the Punong Barangay of Isaub, Aborlan; Marissa U. Zumarraga, Councilor of

Aborlan; Virginia J. Agpao and Elsa M. Dalisay, both Sangguniang Barangay members

of Isaub, Aborlan, attesting that Mitra resides in their locality;[17] (b) photographs of the

residential portion of the Maligaya Feedmill[18] where he claims to reside, and of his

Aborlan experimental pineapple plantation, farm, farmhouse and cock farm;[19] (c) the

lease contract over the Maligaya Feedmill;[20] (d) the community tax certificate he

claims he himself secured, stating that Aborlan is his residence;[21] and (e) an updated

identification card issued by the House of Representatives stating that Aborlan is his

residence.[22]

To refute Mitras claimed residence in Aborlan specifically, that he resides at the

Maligaya Feedmill property the respondents additionally submitted: (a) the affidavits of

the 14 Punong Barangays of Aborlan and of six residents of Aborlan, all stating that

Mitra is not a resident of Aborlan and has never been seen in that municipality; (b) a

Certification from the Barangay Captain of Sta. Monica, Puerto Princesa City stating

that Mitra was a resident of that barangay as of November 16, 2009; (c) the affidavit of

Commodore Nicanor Hernandez attesting that Mitra continues to reside in Puerto

Princesa City; and (d) 24 affidavits of former employees, workers, Aborlan residents and

a customer of the Maligaya Feedmill attesting that they have never seen Mitra during the

time he claimed to have lived there and that the area where Mitra supposedly lives is, in

fact, the office of the feedmill and is unlivable due to noise and pollution.[23]

The Ruling of the COMELECs First Division [24]

The Law. The First Division defined the governing law with the statement that

residence means domicile under the Courts consistent rulings since 1928 in Nuval v.

Guray.[25] Domicile imports not only the intent to reside in a fixed place but also

personal presence in that place, coupled with conduct indicative of this intention.[26]

To acquire a new domicile a domicile by choice the following must concur: (1) residence

or bodily presence in a new locality; (2) an intention to remain there; and (3) an intention

to abandon the old domicile. In other words, there must be an animus non revertendi

with respect to the old domicile, and an animus manendi at the domicile of choice. The

intent to remain in or at the domicile of choice must be for an indefinite period of time

and the acts of the person must be consistent with this intent.[27]

The First Divisions Evaluation of the Parties Evidence. Based on its consideration of

the submitted evidence (including various affidavits submitted by both parties and the

photographs of the room that Mitra claims to be his residence) and citing jurisprudence,

the First Division granted the respondents petition to cancel Mitras COC.

To the First Division, Mitras submitted pictures are telling; they show a small, sparsely

furnished room that is evidently unlived in, located at the second floor of a structure that

appears to be a factory or a warehouse; the residence appears hastily set-up, cold, and

utterly devoid of any indication of Mitras personality such as old family photographs

and memorabilia collected through the years. What the supposed residence lacks, in the

First Divisions perception, are the loving attention and details inherent in every home to

make it ones residence; perhaps, at most, this small room could have served as Mitras

resting area whenever he visited the locality, but nothing more than this.[28]

These observations coupled with the statements from former employees and customers

of the Maligaya Feedmill that the claimed residence is located in an unsavory location

(for its noise and pollution), and that it had been in fact Maligaya Feedmills office just a

few months back militated against Mitras claim. These pieces of information made it

clear, to the First Division, that this room is not the home that a residence is supposed to

be.[29]

A persons domicile of origin is not easily lost, the First Division further said. The fact

that Mitra registered as a voter in Aborlan, has a cock farm, a farm, a rest house and an

experimental pineapple plantation in Maligaya Feedmill, was occasionally seen staying

in Aborlan, and held meetings with Aborlan constituents does not necessarily establish

Mitras status as an Aborlan resident, or prove his abandonment of his domicile of origin

in Puerto Princesa City. Mere absence from ones residence or domicile of origin to

pursue studies, engage in business, or practice ones vocation is not sufficient to

constitute abandonment or loss of domicile. Registration or voting in a place other than

ones domicile does not eliminate an individuals animus revertendi to his domicile of

origin; the natural desire and longing of every person to return to the place of birth and

his strong feeling of attachment to this place can only be shown to have been overcome

by a positive proof of abandonment of this place for another.[30]

Also, the First Division said that Mitras witnesses sworn statements appear to have been

prepared by the same person, as they use similar wordings, allegations, and contents;

thus, putting into question the credibility of the statements. Furthermore, the lease

contract over the Maligaya Feedmill between Mitra and Carme Caspe is effective only

up to February 28, 2010, thus casting doubt on Mitras claim of residency in Aborlan.[31]

The COMELEC En Banc Ruling

The COMELEC en banc in a divided decision[32] subsequently denied Mitras motion to

reconsider the First Division ruling under the following outlined reasons.

First, registration as a voter of Aborlan is not sufficient evidence that Mitra has

successfully abandoned his domicile of origin.[33]

Second, mere intent cannot supplant the express requirement of the law; the physical

presence required to establish domicile connotes actual, factual and bona fide residence

in a given locality. The COMELEC en banc agreed with the First Divisions evidentiary

findings on this point.[34]

Third, the First Divisions Resolution was based on a careful and judicious examination

and consideration of all evidence submitted by the parties. The summary nature of the

proceedings is not necessarily offensive to a partys right to due process.[35]

Fourth, Fernandez v. House of Representatives Electoral Tribunal[36] is not on all

fours with the present case Fernandez stemmed from a quo warranto case while the

present case involves a petition to deny due course or cancel the COC. Likewise,

Fernandez successfully proved that his transfer to Sta. Rosa City, Laguna several years

prior to his candidacy was prompted by valid reasons, i.e., existence of his business in

the area and the enrolment of his children at Sta. Rosa schools, thereby erasing doubts as

to the bona fide nature of his transfer. In the present case, the COMELEC en banc found

that Mitra admitted that his transfer to Aborlan in 2008 was prompted by his plans to run

for governor in the 2010 national and local elections. The COMELEC en banc also

noted that Fernandez involved an individual who had earned an overwhelming mandate

from the electorate. The COMELEC en bancs ruling on Mitras case, on the other hand,

came before the 2010 elections; thus, the people had not then voted.[37]

In his Dissent,[38] Commissioner Sarmiento points out that the following acts of Mitra,

taken collectively, indubitably prove a change of domicile from Puerto Princesa to

Aborlan:

(a) in January 2008, [Mitra] started a pineapple growing project in a rented farmland near Maligaya Feedmill and Farm located in Barangay Isaub, Aborlan;

(b) in February 2008, [Mitra] leased the residential portion of the said Maligaya Feedmill;

(c) in March 2008, after the said residential portion has been refurbished and renovated, [Mitra] started to occupy and reside in the said premises;

(d) in 2009, [Mitra] purchased his own farmland in the same barangay but continued the lease involving the Maligaya Feedmill, the contract of which was even renewed until February 2010; and

(e) [Mitra] caused the construction of a house in the purchased lot which has been recently completed.[39]

The Petition

Mitra supports his petition with the following ARGUMENTS:

6.1 x x x COMELECs GRAVE ABUSE is most patent as IT forgets, wittingly or unwittingly that the solitary GROUND to deny due course to a COC is the DELIBERATE false material representation to DECEIVE, and not the issue of the candidates eligibility which should be resolved in an appropriate QUO WARRANTO proceedings post election.[40]

6.2 Deny Due Course Petitions under Section 78 of the OEC, being SUMMARILY decided and resolved, the same must be exercised most sparingly, with utmost care and extreme caution; and construed most strictly against the proponent/s, and liberally in favor of the candidate sought to be eliminated. When exercised otherwise and with apparent biased in favor of the proponents, as in this instance, GRAVE ABUSE OF DISCRETION necessarily sets in.[41]

6.3 The mandate to be extremely cautious and careful in the SUMMARY exercise of the awesome power to simplistically cancel [ones] candidacy x x x is further made manifest by the availability of a QUO WARRANTO proceeding appropriately prosecuted post election.[42]

6.4 Absent any formal HEARINGS and Presentation of Evidence; Lacking the actual inspection and verification; and without actual confrontation of affiants/alleged witnesses ALL the conclusions of COMELEC on the RESIDENCE issue, were indeed predicted (sic) on sheer SPECULATION[.][43]

6.5 A grievous procedural flaw, FATAL in character. THE BURDEN OF PROOF MUST ALWAYS BE PLACED ON THE SHOULDERS OF THE PROPONENT/s. Not so in the present controversy, where COMELECs assailed decision/s were devoted exclusively to the alleged weakness of MITRAs submissions and COMELECs speculative conclusions, rather than on the strength of proponents unverified and unconfirmed submissions and unconfronted sworn statements of supposed affiants[.][44]

The petition also asks for ancillary injunctive relief. We granted the application for

injunctive relief by issuing a status quo ante order, allowing Mitra to be voted upon in

the May 10, 2010 elections.[45]

The respondents Comment[46] states the following counter-arguments:

a. Procedural Arguments:

II. THE INSTANT PETITION FAILED TO ATTACH CERTIFIED TRUE COPIES OF THE MATERIAL PORTIONS OF THE RECORDS REFERRED TO THEREIN IN GROSS CONTRAVENTION OF SECTION 5 OF RULE 64 OF THE RULES OF COURT. CONSEQUENTLY, IT MUST BE DISMISSED OUTRIGHT.

III. THE INSTANT PETITION RAISES MERE ERRORS OF JUDGMENT, WHICH ARE OUTSIDE THIS HONORABLE COURTS CERTIORARI JURISDICTION.

b. Arguments on the Merits

I. XXX

B. THE LAW, IN IMPOSING A RESIDENCY REQUIREMENT, MANDATES NOT ONLY FAMILIARITY WITH THE NEEDS AND CONDITIONS OF THE LOCALITY, BUT ALSO ACTUAL PHYSICAL, PERSONAL AND PERMANENT RESIDENCE THEREIN. PETITIONERS SUPPOSED FAMILIARITY WITH THE NEEDS, DIFFICULTIES, ASPIRATIONS, POTENTIALS (SIC) FOR GROWTH AND ALL MATTERS VITAL TO THE WELFARE OF HIS CONSTITUENCY WHICH CONSTITUTES ONE/THIRD OF THE WHOLE PROVINCE OF PALAWAN AS A THREE-TERM CONGRESSMAN ABSENT SUCH RESIDENCE DOES NOT SUFFICE TO MEET THE RESIDENCY REQUIREMENT OF THE LAW.

IV. FINDINGS OF FACTS OF ADMINISTRATIVE BODIES SUCH AS THE COMELEC, ARE ACCORDED GREAT RESPECT, IF NOT FINALITY BY THE COURTS, ESPECIALLY IF SUPPORTED BY SUBSTANTIAL EVIDENCE. BECAUSE THE FINDINGS OF FACTS OF THE COMELEC IN THE INSTANT CASE ARE OVERWHELMINGLY SUPPORTED BY SUBSTANTIAL EVIDENCE, THIS HONORABLE COURT MAY NOT REVERSE SUCH FINDINGS.

V. THE COMELEC DID NOT COMMIT ANY GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED RESOLUTION DATED 04 MAY 2010.

A. THE COMELEC CORRECTLY RULED THAT PETITIONERS REGISTRATION AS A VOTER IN ABORLAN, PALAWAN IS NOT SUFFICIENT EVIDENCE THAT HE HAS SUCCESSFULLY ABANDONED HIS DOMICILE OF ORIGIN AT PUERTO PRINCESA CITY, PALAWAN.

B. THE COMELEC CORRECTLY RULED THAT PETITIONERS MERE INTENT TO TRANSFER RESIDENCE TO ABORLAN, PALAWAN, ABSENT ACTUAL, FACTUAL, AND BONA FIDE RESIDENCE THEREIN DOES NOT SUFFICE TO PROVE HIS TRANSFER OF RESIDENCE FROM PUERTO PRINCESA, PALAWAN TO ABORLAN, PALAWAN.

C. THE COMELEC THOROUGHLY EVALUATED THE EVIDENCE, AND CORRECTLY ARRIVED AT THE ASSAILED DECISION ONLY AFTER MUCH DELIBERATION AND CAREFUL ASSESSMENT OF THE EVIDENCE, ALBEIT THROUGH SUMMARY PROCEEDINGS PARTICIPATED IN ACTIVELY BY PETITIONER. THE COMELEC CORRECTLY DID NOT GIVE CREDENCE TO THE TESTIMONIES OF PETITIONERS WITNESSES FOR BEING INCREDIBLE AND CONTRARY TO THE PHYSICAL EVIDENCE, ESPECIALLY PERTAINING TO HIS ALLEGED RESIDENCE AT THE FEEDMILL PROPERTY.

D. THE COMELEC CORRECTLY RULED THAT PETITIONER HAS NOT TRANSFERRED HIS RESIDENCE FROM PUERTO PRINCESA, PALAWAN TO ABORLAN, PALAWAN.

E. THE ALLEGED LEASE OF THE RESIDENTIAL PORTION OF THE FEEDMILL

PROPERTY IS A SHAM.

VI. GIVEN HIS STATURE AS A MEMBER OF THE PROMINENT MITRA CLAN OF PALAWAN, AND AS A 3-TERM CONGRESSMAN, IT IS HIGHLY INCREDIBLE THAT A SMALL ROOM IN A FEEDMILL HAS SERVED AS HIS RESIDENCE SINCE 2008.

VII. THE COMELEC CORRECTLY RULED THAT PETITIONER MAY NOT INVOKE THE CASE OF FERNANDEZ V. HRET AS PETITIONER IS NOT SIMILARLY SITUATED AS DAN FERNANDEZ.

VIII. THE MATERIAL STATEMENT IN PETITIONERS COC RESPECTING HIS RESIDENCE HAS BEEN SHOWN TO BE FALSE. BY MAKING SUCH FALSE STATEMENT, PETITIONER DELIBERATELY TRIED TO MISLEAD AND TO MISINFORM THE ELECTORATE AS TO HIS ACTUAL RESIDENCE. HENCE, HIS COC WAS CORRECTLY DENIED DUE COURSE AND CANCELED.

In the recently concluded elections of May 10, 2010, Mitra obtained the most number of

votes for Governor and was accordingly proclaimed winner of the Palawan gubernatorial

contest.[47]

We required the respondents and the COMELEC to comment on the petition.[48] They

complied on May 6, 2010[49] and June 2, 2010, respectively.[50] On May 17, 2010, the

petitioner filed a Supplemental Petition.[51]

On May 26, 2010, the respondents filed a Supplemental Comment (with Omnibus

Motion to Annul Proclamation and for Early Resolution) to the petitioners Supplemental

Petition.[52] We deemed the case ready for resolution on the basis of these submissions.

The Courts Ruling

We find the petition meritorious.

The Limited Review in Certiorari Petitions under Rule 64, in relation to Rule 65 of the Rules of Court

A preliminary matter before us is the respondents jurisdictional objection based on the

issues raised in the present petition. The respondents assert that the questions Mitra

brought to us are beyond our certiorari jurisdiction. Specifically, the respondents

contend that Mitras petition merely seeks to correct errors of the COMELEC in

appreciating the parties evidence a question we cannot entertain under our limited

certiorari jurisdiction.

Mitra brought his case before us pursuant to Rule 64, in relation to Rule 65 of the Rules

of Court.[53] Our review, therefore, is based on a very limited ground the jurisdictional

issue of whether the COMELEC acted without or in excess of its jurisdiction, or with

grave abuse of discretion amounting to lack or excess of jurisdiction.

Whether the COMELEC, by law, has jurisdiction over a case or matter brought to it is

resolved by considering the black-letter provisions of the Constitution and pertinent

election laws, and we see no disputed issue on this point. Other than the respondents

procedural objections which we will fully discuss below, the present case rests on the

allegation of grave abuse of discretion an issue that generally is not as simple to resolve.

As a concept, grave abuse of discretion defies exact definition; generally, it refers to

capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction; the

abuse of discretion must be patent and gross as to amount to an evasion of a positive

duty or a virtual refusal to perform a duty enjoined by law, or to act at all in

contemplation of law, as where the power is exercised in an arbitrary and despotic

manner by reason of passion and hostility.[54] Mere abuse of discretion is not enough; it

must be grave.[55] We have held, too, that the use of wrong or irrelevant considerations

in deciding an issue is sufficient to taint a decision-makers action with grave abuse of

discretion.[56]

Closely related with the limited focus of the present petition is the condition, under

Section 5, Rule 64 of the Rules of Court, that findings of fact of the COMELEC,

supported by substantial evidence, shall be final and non-reviewable. Substantial

evidence is that degree of evidence that a reasonable mind might accept to support a

conclusion.[57]

In light of our limited authority to review findings of fact, we do not ordinarily review in

a certiorari case the COMELECs appreciation and evaluation of evidence. Any misstep

by the COMELEC in this regard generally involves an error of judgment, not of

jurisdiction.

In exceptional cases, however, when the COMELECs action on the appreciation and

evaluation of evidence oversteps the limits of its discretion to the point of being grossly

unreasonable, the Court is not only obliged, but has the constitutional duty to intervene.

[58] When grave abuse of discretion is present, resulting errors arising from the grave

abuse mutate from error of judgment to one of jurisdiction.[59]

Our reading of the petition shows that it is sufficient in form with respect to the requisite

allegation of jurisdictional error. Mitra clearly alleged the COMELEC acts that were

supposedly tainted with grave abuse of discretion. Thus, we do not agree with the

respondents contention that the petition on its face raises mere errors of judgment that

are outside our certiorari jurisdiction. Whether the allegations of grave abuse are duly

supported and substantiated is another matter and is the subject of the discussions below.

Nature of the Case under Review:COC Denial/Cancellation Proceedings

The present petition arose from a petition to deny due course or to cancel Mitras COC.

This is the context of and take-off point for our review. From this perspective, the nature

and requisites of the COC cancellation proceedings are primary considerations in

resolving the present petition.[60]

Section 74, in relation to Section 78, of the Omnibus Election Code (OEC) governs the

cancellation of, and grant or denial of due course to, COCs. The combined application of

these sections requires that the candidates stated facts in the COC be true, under pain of

the COCs denial or cancellation if any false representation of a material fact is made. To

quote these provisions:

SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge.

x x x x

SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice and hearing not later than fifteen days before the election.

The false representation that these provisions mention must necessarily pertain to a

material fact. The critical material facts are those that refer to a candidates qualifications

for elective office, such as his or her citizenship and residence. The candidates status as

a registered voter in the political unit where he or she is a candidate similarly falls under

this classification as it is a requirement that, by law (the Local Government Code), must

be reflected in the COC. The reason for this is obvious: the candidate, if he or she wins,

will work for and represent the political unit where he or she ran as a candidate.[61]

The false representation under Section 78 must likewise be a deliberate attempt to

mislead, misinform, or hide a fact that would otherwise render a candidate ineligible.

Given the purpose of the requirement, it must be made with the intention to deceive the

electorate as to the would-be candidates qualifications for public office.[62] Thus, the

misrepresentation that Section 78 addresses cannot be the result of a mere innocuous

mistake, and cannot exist in a situation where the intent to deceive is patently absent, or

where no deception on the electorate results. The deliberate character of the

misrepresentation necessarily follows from a consideration of the consequences of any

material falsity: a candidate who falsifies a material fact cannot run; if he runs and is

elected, he cannot serve; in both cases, he can be prosecuted for violation of the election

laws.

Based on these standards, we find that Mitra did not commit any deliberate

material misrepresentation in his COC. The COMELEC gravely abused its discretion

in its appreciation of the evidence, leading it to conclude that Mitra is not a resident of

Aborlan, Palawan. The COMELEC, too, failed to critically consider whether Mitra

deliberately attempted to mislead, misinform or hide a fact that would otherwise render

him ineligible for the position of Governor of Palawan.

Under the evidentiary situation of the case, there is clearly no basis for the conclusion that Mitra deliberately attempted to mislead the Palawan electorate. From the start, Mitra never hid his intention to transfer his residence from Puerto

Princesa City to Aborlan to comply with the residence requirement of a candidate for an

elective provincial office. Republic Act No. 7160, otherwise known as the Local

Government Code, does not abhor this intended transfer of residence, as its Section 39

merely requires an elective local official to be a resident of the local government unit

where he intends to run for at least one (1) year immediately preceding the day of the

election. In other words, the law itself recognizes implicitly that there can be a change of

domicile or residence, but imposes only the condition that residence at the new place

should at least be for a year. Of course, as a continuing requirement or qualification, the

elected official must remain a resident there for the rest of his term.

Mitras domicile of origin is undisputedly Puerto Princesa City. For him to qualify as

Governor in light of the relatively recent change of status of Puerto Princesa City from a

component city to a highly urbanized city whose residents can no longer vote for

provincial officials he had to abandon his domicile of origin and acquire a new one

within the local government unit where he intended to run; this would be his domicile of

choice. To acquire a domicile of choice, jurisprudence, which the COMELEC correctly

invoked, requires the following:

(1) residence or bodily presence in a new locality;

(2) an intention to remain there; and

(3) an intention to abandon the old domicile.[63]

The contentious issues in Mitras case relate to his bodily presence, or the lack of it, in

Aborlan, and the declaration he made on this point. The respondents anchor their cause

of action on the alleged falsity of Mitras statement that he is a resident of Aborlan. To

support this contention, the respondents claim that the construction of the supposed

Mitra residence or house, other than the leased premises in Maligaya Feedmill, has yet

to be completed, leaving Mitra with no habitable place in Aborlan. When Mitra

successfully refuted this original claim, the respondents presented sworn statements of

Aborlan residents contradicting Mitras claimed physical residence at the Maligaya

Feedmill building in Aborlan. They likewise point out, by sworn statements, that this

alleged residence could not be considered a house that Mitra could properly consider his

residence, on the view that the feedmill place is beneath what Mitra a three-term

congressman and a member of the Mitra political clan of Palawan would occupy.

Mitra, on the other hand, presented sworn statements of various persons (including the

seller of the land he purchased, the lessor of the Maligaya Feedmill, and the Punong

Barangay of the site of his residence) attesting to his physical residence in Aborlan;

photographs of the residential portion of Maligaya Feedmill where he resides, and of his

experimental pineapple plantation, farm, farmhouse and cock farm; the lease contract

over the Maligaya Feedmill; and the deed of sale of the lot where he has started

constructing his house. He clarified, too, that he does not claim residence in Aborlan at

the house then under construction; his actual residence is the mezzanine portion of the

Maligaya Feedmill building.

Faced with the seemingly directly contradictory evidence, the COMELEC apparently

grossly misread its import and, because it used wrong considerations, was led into its

faulty conclusion.

The seeming contradictions arose from the sworn statements of some Aborlan residents

attesting that they never saw Mitra in Aborlan; these are controverted by similar sworn

statements by other Aborlan residents that Mitra physically resides in Aborlan. The

number of witnesses and their conflicting claims for and against Mitras residency appear

to have sidetracked the COMELEC. Substantial evidence, however, is not a simple

question of number; reason demands that the focus be on what these differing statements

say.

For example, the sworn statements that Mitra has never been seen in Aborlan border on

the unbelievable and loudly speak of their inherent weakness as evidence.

Mitra has established business interests in Aborlan, a fact which the respondents have

never disputed. He was then the incumbent three-term Representative who, as early as

2008, already entertained thoughts of running for Governor in 2010. It is not disputed,

too, that Mitra has started the construction of a house on a lot he bought from Rexter

Temple; the site is very near the Maligaya Feedmill that he leased from its owner, Carme

Caspe.

While Mitra might not have stayed in Aborlan nor in Palawan for most of 2008 and 2009

because his office and activities as a Representative were in Manila, it is hardly credible

that he would not be seen in Aborlan. In this regard, the sworn statement of the Punong

Barangay of Isaub, Aborlan should carry a lot more weight than the statements of

punong barangay officials elsewhere since it is the business of a punong barangay to

know who the residents are in his own barangay. The COMELEC apparently missed all

these because it was fixated on the perceived coldness and impersonality of Mitras

dwelling.

The parties submitted documentary evidence likewise requires careful consideration for

the correct appraisal of its evidentiary value. On the one hand, the document of sale of

the Temple property, the building permit for the house under construction, and the

community tax certificate used in these transactions all stated that Mitras residence was

Puerto Princesa City. On the other hand, Mitra introduced a notarized contract of lease

supported by the sworn explanation of the lessor (Carme Caspe) showing that he indeed

leased Maligaya Feedmill. He submitted, too, a residence certificate showing Aborlan as

his residence, and an identification card of the House of Representatives showing

Aborlan as his residence.

We cannot give full evidentiary weight to the contract of sale as evidence relating to

Mitras residence for two reasons. First, it is a unilateral contract executed by the seller

(Rexter Temple); thus, his statement and belief as to Mitras personal circumstances

cannot be taken as conclusive against the latter. Second, the sale involved several

vendees, including Mitras brother (Ramon B. Mitra) and one Peter Winston T. Gonzales;

his co-vendees still live in Puerto Princesa City; hence, they were all loosely and

collectively described to have their residence in Puerto Princesa City.[64]

Parenthetically, the document simply stated: I, REXTER TEMPLE, of legal age,

Filipino, single and resident of Isaub, Aborlan, Palawan, hereby by these presents, x x x

do hereby SELL, TRANSFER and CONVEY unto the said Vendees, ABRAHAM

KAHLIL B. MITRA, single; RAMON B. MITRA, married to Mary Ann Mitra; PETER

WINSTON T. GONZALES, married to Florecita R. Gonzales, all of legal ages and

residents [of] Rancho Sta. Monica, Brgy. Sta. Monica, Puerto Princesa City, their heirs

and assigns.[65] Thus, the contract contained a mere general statement that loosely

described the vendees as Puerto Princesa City residents. This general statement solely

came from the vendor.

The building permit, on the other hand, was filed by Mitras representative, an architect

named John Quillope, who apparently likewise filled the form. That Mitra only signed

the building permit form is readily discernible from an examination of the face of the

form; even the statement on his community tax certificate bearing a Puerto Princesa City

residence does not appear in his handwriting.[66] Significantly, Mitras secretary Lilia

Camora attested that it was she who secured the community tax certificate for Mitra in

February 2009 without the latters knowledge.[67] Annex M of the respondents Petition

before the COMELEC indeed shows that the community tax certificate did not bear the

signature of Mitra.[68] Mitra secured his own certificate in Aborlan on March 18, 2009.

This community tax certificate carries his own signature.[69] Parenthetically, per Carme

Caspes statement, Mitra leased the feedmill residence in February 2008 and started

moving in his belongings in March 2008, confirming the veracity of his Aborlan

presence at the time he secured his community tax certificate.[70] In these lights, the

February 3, 2009 community tax certificate, if at all, carries very little evidentiary value.

The respondents expectedly attacked the validity of the lease contract; they contended in

their Memorandum that the feedmill was situated in a forest land that cannot be leased,

and that the contract, while notarized, was not registered with the required notarial office

of the court.[71]

The validity of the lease contract, however, is not the issue before us; what concerns us

is the question of whether Mitra did indeed enter into an agreement for the lease, or

strictly for the use, of the Maligaya Feedmill as his residence (while his house, on the lot

he bought, was under construction) and whether he indeed resided there. The notarys

compliance with the notarial law likewise assumes no materiality as it is a defect not

imputable to Mitra; what is important is the parties affirmation before a notary public of

the contracts genuineness and due execution.

A sworn statement that has no counterpart in the respondents evidence in so far as it

provides details (particularly when read with the statement of Ricardo Temple)[72] is

Carme Caspes statement[73] on how Mitras transfer of residence took place. Read

together, these statements attest that the transfer of residence was accomplished, not in

one single move but, through an incremental process that started in early 2008 and was

in place by March 2009, although the house Mitra intended to be his permanent home

was not yet then completed.[74]

In considering the residency issue, the COMELEC practically focused solely on its

consideration of Mitras residence at Maligaya Feedmill, on the basis of mere

photographs of the premises. In the COMELECs view (expressly voiced out by the

Division and fully concurred in by the En Banc), the Maligaya Feedmill building could

not have been Mitras residence because it is cold and utterly devoid of any indication of

Mitras personality and that it lacks loving attention and details inherent in every home

to make it ones residence.[75] This was the main reason that the COMELEC relied upon

for its conclusion.

Such assessment, in our view, based on the interior design and furnishings of a dwelling

as shown by and examined only through photographs, is far from reasonable; the

COMELEC thereby determined the fitness of a dwelling as a persons residence based

solely on very personal and subjective assessment standards when the law is replete

with standards that can be used. Where a dwelling qualifies as a residence i.e., the

dwelling where a person permanently intends to return to and to remain[76] his or her

capacity or inclination to decorate the place, or the lack of it, is immaterial.

Examined further, the COMELECs reasoning is not only intensely subjective but also

flimsy, to the point of grave abuse of discretion when compared with the surrounding

indicators showing the Mitra has indeed been physically present in Aborlan for the

required period with every intent to settle there. Specifically, it was lost on the

COMELEC majority (but not on the Dissent) that Mitra made definite, although

incremental transfer moves, as shown by the undisputed business interests he has

established in Aborlan in 2008; by the lease of a dwelling where he established his base;

by the purchase of a lot for his permanent home; by his transfer of registration as a voter

in March 2009; and by the construction of a house all viewed against the backdrop of a

bachelor Representative who spent most of his working hours in Manila, who had a

whole congressional district to take care of, and who was establishing at the same time

his significant presence in the whole Province of Palawan.

From these perspectives, we cannot but conclude that the COMELECs approach i.e., the

application of subjective non-legal standards and the gross misappreciation of the

evidence is tainted with grave abuse of discretion, as the COMELEC used wrong

considerations and grossly misread the evidence in arriving at its conclusion. In using

subjective standards, the COMELEC committed an act not otherwise within the

contemplation of law on an evidentiary point that served as a major basis for its

conclusion in the case.

With this analysis and conclusion in mind, we come to the critical question of whether

Mitra deliberately misrepresented that his residence is in Aborlan to deceive and mislead

the people of the Province of Palawan.

We do not believe that he committed any deliberate misrepresentation given what he

knew of his transfer, as shown by the moves he had made to carry it out. From the

evidentiary perspective, we hold that the evidence confirming residence in Aborlan

decidedly tilts in Mitras favor; even assuming the worst for Mitra, the evidence in his

favor cannot go below the level of an equipoise, i.e., when weighed, Mitras evidence of

transfer and residence in Aborlan cannot be overcome by the respondents evidence that

he remained a Puerto Princesa City resident. Under the situation prevailing when Mitra

filed his COC, we cannot conclude that Mitra committed any misrepresentation, much

less a deliberate one, about his residence.

The character of Mitras representation before the COMELEC is an aspect of the case

that the COMELEC completely failed to consider as it focused mainly on the character

of Mitras feedmill residence. For this reason, the COMELEC was led into error one that

goes beyond an ordinary error of judgment. By failing to take into account whether there

had been a deliberate misrepresentation in Mitras COC, the COMELEC committed the

grave abuse of simply assuming that an error in the COC was necessarily a deliberate

falsity in a material representation. In this case, it doubly erred because there was no

falsity; as the carefully considered evidence shows, Mitra did indeed transfer his

residence within the period required by Section 74 of the OEC.

The respondents significantly ask us in this case to adopt the same faulty approach of

using subjective norms, as they now argue that given his stature as a member of the

prominent Mitra clan of Palawan, and as a three term congressman, it is highly

incredible that a small room in a feed mill has served as his residence since 2008.[77]

We reject this suggested approach outright for the same reason we condemned the

COMELECs use of subjective non-legal standards. Mitras feed mill dwelling cannot be

considered in isolation and separately from the circumstances of his transfer of

residence, specifically, his expressed intent to transfer to a residence outside of Puerto

Princesa City to make him eligible to run for a provincial position; his preparatory

moves starting in early 2008; his initial transfer through a leased dwelling; the purchase

of a lot for his permanent home; and the construction of a house in this lot that,

parenthetically, is adjacent to the premises he leased pending the completion of his

house. These incremental moves do not offend reason at all, in the way that the

COMELECs highly subjective non-legal standards do.

Thus, we can only conclude, in the context of the cancellation proceeding before us, that

the respondents have not presented a convincing case sufficient to overcome Mitras

evidence of effective transfer to and residence in Aborlan and the validity of his

representation on this point in his COC, while the COMELEC could not even present

any legally acceptable basis to conclude that Mitras statement in his COC regarding his

residence was a misrepresentation.

Mitra has significant relationship with, and intimate knowledge of, the constituency he wishes to serve.

Citing jurisprudence, we began this ponencia with a discussion of the purpose of the

residency requirement under the law. By law, this residency can be anywhere within the

Province of Palawan, except for Puerto Princesa City because of its reclassification as a

highly urbanized city. Thus, residency in Aborlan is completely consistent with the

purpose of the law, as Mitra thereby declared and proved his required physical presence

in the Province of Palawan.

We also consider that even before his transfer of residence, he already had intimate

knowledge of the Province of Palawan, particularly of the whole 2nd legislative district

that he represented for three terms. For that matter, even the respondents themselves

impliedly acknowledged that the Mitras, as a family, have been identified with elective

public service and politics in the Province of Palawan.[78] This means to us that Mitra

grew up in the politics of Palawan.

We can reasonably conclude from all these that Mitra is not oblivious to the needs,

difficulties, aspirations, potential for growth and development, and all matters vital to the

common welfare of the constituency he intends to serve. Mitra who is no stranger to

Palawan has merely been compelled after serving three terms as representative of the

congressional district that includes Puerto Princesa City and Aborlan by legal

developments to transfer his residence to Aborlan to qualify as a Province of Palawan

voter. To put it differently, were it not for the reclassification of Puerto Princesa City

from a component city to a highly urbanized city, Mitra would not have encountered any

legal obstacle to his intended gubernatorial bid based on his knowledge of and

sensitivity to the needs of the Palawan electorate.

This case, incidentally, is not the first that we have encountered where a former elective

official had to transfer residence in order to continue his public service in another

political unit that he could not legally access, as a candidate, without a change of

residence.

In Torayno, Sr. v. COMELEC,[79] former Governor Vicente Y. Emano re-occupied a

house he owned and had leased out in Cagayan de Oro City to qualify as a candidate for

the post of Mayor of that city (like Puerto Princesa City, a highly urbanized city whose

residents cannot vote for and be voted upon as elective provincial officials). We said in

that case that

In other words, the actual, physical and personal presence of herein private respondent in Cagayan de Oro City is substantial enough to show his intention to fulfill the duties of mayor and for the voters to evaluate his qualifications for the mayorship. Petitioners' very legalistic, academic and technical approach to the residence requirement does not satisfy this simple, practical and common-sense rationale for the residence requirement.

In Asistio v. Hon. Trinidad Pe-Aguirre,[80] we also had occasion to rule on the residency

and right to vote of former Congressman Luis A. Asistio who had been a congressman

for Caloocan in 1992, 1995, 1998 and 2004, and, in the words of the Decision, is known

to be among the prominent political families in Caloocan City.[81] We recognized

Asistios position that a mistake had been committed in his residency statement, and

concluded that the mistake is not proof that Asistio has abandoned his domicile in

Caloocan City, or that he has established residence outside of Caloocan City. By this

recognition, we confirmed that Asistio has not committed any deliberate

misrepresentation in his COC.

These cases are to be distinguished from the case of Velasco v. COMELEC[82] where

the COMELEC cancelled the COC of Velasco, a mayoralty candidate, on the basis of his

undisputed knowledge, at the time he filed his COC, that his inclusion and registration

as a voter had been denied. His failure to register as a voter was a material fact that he

had clearly withheld from the COMELEC; he knew of the denial of his application to

register and yet concealed his non-voter status when he filed his COC. Thus, we

affirmed the COMELECs action in cancelling his COC.

If there is any similarity at all in Velasco and the present case, that similarity is in the

recognition in both cases of the rule of law. In Velasco, we recognized based on the law

that a basic defect existed prior to his candidacy, leading to his disqualification and the

vice-mayor-elects assumption to the office. In the present case, we recognize the validity

of Mitras COC, again on the basis of substantive and procedural law, and no occasion

arises for the vice-governor-elect to assume the gubernatorial post.

Mitra has been proclaimed winnerin the electoral contest and has therefore the mandate of the electorate to serve

We have applied in past cases the principle that the manifest will of the people as

expressed through the ballot must be given fullest effect; in case of doubt, political laws

must be interpreted to give life and spirit to the popular mandate.[83] Thus, we have held

that while provisions relating to certificates of candidacy are in mandatory terms, it is

an established rule of interpretation as regards election laws, that mandatory provisions,

requiring certain steps before elections, will be construed as directory after the

elections, to give effect to the will of the people.[84]

Quite recently, however, we warned against a blanket and unqualified reading and

application of this ruling, as it may carry dangerous significance to the rule of law and

the integrity of our elections. For one, such blanket/unqualified reading may provide a

way around the law that effectively negates election requirements aimed at providing the

electorate with the basic information for an informed choice about a candidates

eligibility and fitness for office.[85] Short of adopting a clear cut standard, we thus made

the following clarification:

We distinguish our ruling in this case from others that we have made in the past by the clarification that COC defects beyond matters of form and that involve material misrepresentations cannot avail of the

benefit of our ruling that COC mandatory requirements before elections are considered merely directory after the people shall have spoken. A mandatory and material election law requirement involves more than the will of the people in any given locality. Where a material COC misrepresentation under oath is made, thereby violating both our election and criminal laws, we are faced as well with an assault on the will of the people of the Philippines as expressed in our laws. In a choice between provisions on material qualifications of elected officials, on the one hand, and the will of the electorate in any given locality, on the other, we believe and so hold that we cannot choose the electorate will.[86]

Earlier, Frivaldo v. COMELEC[87] provided the following test:

[T]his Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. [Emphasis supplied.]

With the conclusion that Mitra did not commit any material misrepresentation in his COC, we see no reason in this case to appeal to the primacy of the electorates will. We cannot deny, however, that the people of Palawan have spoken in an election where residency qualification had been squarely raised and their voice has erased any doubt about their verdict on Mitras qualifications.

WHEREFORE, premises considered, we GRANT the petition and ANNUL the

assailed COMELEC Resolutions in Antonio V. Gonzales and Orlando R. Balbon, Jr. v.

Abraham Kahlil B. Mitra (SPA No. 09-038 [C]). We DENY the respondents petition to

cancel Abraham Kahlil Mitras Certificate of Candidacy. No costs.

SO ORDERED.

ARTURO D. BRION

Associate Justice

WE CONCUR:

I join the dissent of Mr. Justice Velasco1.1.5.1RENATO C. CORONA

Chief Justice

ANTONIO T. CARPIO

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

LUCAS P. BERSAMIN

Associate Justice

ROBERTO A. ABAD

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

DIOSDADO M. PERALTA

Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

CERTIFICATION

1.1.6Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONAChief Justice

[1] Section 3, Article X of the 1987 Constitution pertinently provides:

Section 3. The Congress shall enact a local government code which shall provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.

[2] Section 39 of the Local Government Code of 1991 states:

SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered

voter in the barangay, municipality, city, or province x x x where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.[3] Torayno, Sr. v. COMELEC, G.R. No. 137329, August 9, 2000, 337 SCRA 574, 584, citing Romualdez-Marcos v.

COMELEC, 248 SCRA 300, 313 (1995), per Kapunan, J.; citing Gallego v. Vera, 73 Phil. 453, 459 (1941).

[4] Ibid.

[5] Id. at 587.

[6] Rollo, pp. 3-259.

[7] Id. at 61.

[8] Ibid.

[9] Ibid.

[10] Id. at 88-138.

[11] Id. at 139-215.

[12] Id. at 32-133.

[13] Id. at 135.

[14] Id. at 137.

[15] Id. at 116-121.

[16] Supra note 11.

[17] Rollo, pp. 172-193.

[18] Id. at 200-205.

[19] Id. at 206-212.

[20] Id. at 169-171.

[21] Id. at 198.

[22] Id. at 215.

[23] See Attachments in the Respondents Memorandum filed before the COMELEC; and the Decision of the First Division of the COMELEC, id. at 58-68.

[24] Ibid.

[25] 52 Phil. 645, 651 (1928).

[26] Rollo, p. 62.

[27] Id. at 62-63.

[28] Id. at 65-66.

[29] Ibid.

[30] Ibid.

[31] Id. at 67.

[32] Dated May 4, 2010. Chairman Jose A.R. Melo, no part; Commissioners Nicodemo T. Ferrer, Armando C. Velasco, Elias R. Yusoph and Gregorio Y. Larrazabal, concurring; Commissioners Rene

V. Sarmiento and Lucenito N. Tagle, dissenting. Id. at 70-82.

[33] Id. at 74-76.

[34] Id. at 76-77.

[35] Id. at 77-79.

[36] G.R. No. 187478, December 21, 2009.

[37] Rollo, pp. 79-81.

[38] Id. at 83-85; supported by Commissioner Lucenito N. Tagle.

[39] Id. at 84.

[40] Id. at 17.

[41] Id. at 21.

[42] Id. at 25.

[43] Id. at 28-29.

[44] Id. at 42-43.

[45] Resolution dated May 7, 2010; id. at 971-973.

[46] Id. at 268-360.

[47] See the Petitioners Manifestation dated May 24, 2010. The petitioner garnered 146, 847 votes while candidate Jose C. Alvarez garnered the second highest with 131, 872 votes. Id. at 1012-1019. See also: COMELEC Comment of June 2, 2010, attached to which is the Certificate of Proclamation for Mitra as Governor-elect. Id. at 1076-1078.

[48] Supra note 45.

[49] Supra note 46.

[50] Id. at 1062-1080.

[51] Id. at 1001-1005.

[52] Id. at 1024-1061.

[53] Section 2, Rule 64 of the Rules of Court states:

SEC. 2. Mode of review. A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided.

[54] Quintos v. COMELEC, 440 Phil. 1045 (2002).

[55] Suliguin v. COMELEC, G.R. No. 166046, March 23, 2006, 485 SCRA 219.

[56] Varias v. COMELEC, G.R. No. 189078, February 11, 2010.

[57] Id., citing Section 5, Rule 134 of the Rules of Court.

[58] Section 1, par. 2, Article VIII of the Constitution.

[59] Supra note 56, citing De Guzman v. COMELEC, G.R. No. 159713, March 31, 2004, 426 SCRA 698.

[60] See Velasco v. COMELEC, G.R. No. 180051, December 24, 2008, 575 SCRA 590, 602-603.

[61] Id. at 603-604.

[62] Id. at 604.

[63] See Fernandez v. HRET, supra note 36.

[64] Rollo, p. 132.

[65] Ibid.

[66] See Annex M of the Respondents Petition before the COMELEC dated December 5, 2009. Id. at 137.

[67] In her Affidavit dated December 9, 2009, Lilia Camora alleged that:

2. Part of my duties as District Staff is to keep the records of Congressman Mitra including the renewal of various documents, permits and license.

3. In February 2009, considering that there are documents requiring an updated Community Tax Certificate of Congressman Mitra, I took it upon myself to secure a Community Tax Certificate in Barangay Sta. Monica, Puerto Princesa City for Congressman Mitra without his knowledge and consent.

4. Although I am aware that he already changed his residence, considering that I do not know the exact address of his new residence, I decided to place his old residence in Puerto Princesa City in the Community Tax Certificate issued without any intention of malice or to do harm to anyone but simply to comply with my record keeping duties.

5. In fact, the issued Community Tax Certificate does not bear any signature or thumbprint of Congressman Mitra. [Emphasis supplied] Id. at 197.

[68] Id. at 137.

[69] Id. at 198.

[70] Id. at 163.

[71] See the Respondents Memorandum before the COMELEC en banc dated February 23, 2010. Id. at 925-930.

[72] In his December 7, 2009 Sworn Statement, Ricardo Temple alleged that: (1) he is a Kagawad of Barangay Isaub, Aborlan, Palawan; (2) he knew Congressman Abraham Kahlil B. Mitra (Cong. Mitra) since the year 2001; (3) on January 2008, Cong. Mitra frequently visited Brgy. Isaub to establish his Pineapple Farm Project in a plot of leased land near the Maligaya Feedmill; (4) in March 2008, Cong. Mitra told him that he intended to permanently reside at Maligaya Feedmill and that he was interested in purchasing a lot where he could build his new house; (5) after a few months, he sold a lot, belonging to his son located in Sitio Maligaya, Isaub, Aborlan, Palawan which was situated near the Maligaya Feedmill and Farm to Cong. Mitra to which the latter paid in full in April 2009; (6) on June 5, 2009, Rexter Temple and Cong. Mitra executed a Deed of Sale over the lot; (7) starting April 2009, Cong. Mitra commenced the construction of a fence surrounding the lot, a farmhouse and a water system; (8) in June 2009, Cong. Mitra initiated the construction of a concrete house on the lot; (9) in June 2009, Cong. Mitras fighting cocks arrived in Sitio Maligaya; and (10) at present, Cong. Mitra continues to reside at Maligaya Feedmill pending the completion of his house in Sitio Maligaya. Id. at 172-173.

[73] Id. at 163-164.

[74] See also, in this regard, the Dissent of Commissioner Rene Sarmiento; id. at 83-85.

[75] Supra note 23, at 65-66.

[76] The term residence is to be understood not in its common acceptation as referring to dwelling or habitation, but rather to domicile or legal residence, that is the place where a party actually or constructively has his permanent home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus manendi). Coquilla v. COMELEC, G.R. No. 151914, July 31, 2002, 385 SCRA 607, 616, citing Aquino v. COMELEC, 248 SCRA 400, 420 (1995).

[77] See the Respondents Comment, supra note 46.

[78] Supra note 45, at 333-336.

[79] Supra note 3, at 587.

[80] G.R. No. 191124, April 27, 2010.

[81] Ibid.

[82] Supra note 60.

[83] Supra note 3, at 587-588.

[84] Supra note 60.

[85] Ibid.

[86] Id. at 615.

[87] G.R. Nos. 120295 and 123755, June 28, 1996, 257 SCRA 727, 771-772.

EN BANC

[G.R. No. 147589. June 26, 2001]

ANG BAGONG BAYANI-OFW LABOR PARTY (under the acronym OFW), represented herein by its secretary-general, MOHAMMAD OMAR FAJARDO, petitioner, vs. COMMISSION ON ELECTIONS; CITIZENS DRUG WATCH; MAMAMAYAN AYAW SA DROGA; GO! GO! PHILIPPINES; THE TRUE MARCOS LOYALIST ASSOCIATION OF THE PHILIPPINES; PHILIPPINE LOCAL AUTONOMY; CITIZENS MOVEMENT FOR JUSTICE, ECONOMY, ENVIRONMENT AND PEACE; CHAMBER OF REAL ESTATE BUILDERS ASSOCIATION; SPORTS & HEALTH ADVANCEMENT FOUNDATION, INC.; ANG LAKAS NG OVERSEAS CONTRACT WORKERS (OCW); BAGONG BAYANI ORGANIZATION and others under Organizations/Coalitions of Omnibus Resolution No. 3785; PARTIDO NG MASANG PILIPINO; LAKAS NUCD-UMDP; NATIONALIST PEOPLES COALITION; LABAN NG DEMOKRATIKONG PILIPINO; AKSYON DEMOKRATIKO; PDP-LABAN; LIBERAL PARTY; NACIONALISTA PARTY; ANG BUHAY HAYAANG YUMABONG; and others under Political Parties of Omnibus Resolution No. 3785. respondents.

[G.R. No. 147613. June 26, 2001]

BAYAN MUNA, petitioner, vs. COMMISSION ON ELECTIONS; NATIONALIST PEOPLES COALITION (NPC); LABAN NG DEMOKRATIKONG PILIPINO (LDP); PARTIDO NG MASANG PILIPINO (PMP); LAKAS-NUCD-UMDP; LIBERAL PARTY; MAMAMAYANG AYAW SA DROGA; CREBA; NATIONAL FEDERATION OF SUGARCANE PLANTERS; JEEP; and BAGONG BAYANI ORGANIZATION, respondents.

D E C I S I O N

PANGANIBAN, J.:

The party-list system is a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them. It intends to make the marginalized and the underrepresented not merely passive recipients of the States benevolence, but active participants in the mainstream of representative democracy. Thus, allowing all individuals and groups, including those which now dominate district elections, to have the same opportunity to participate in party-list elections would desecrate this lofty objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics.

The Case

Before us are two Petitions under Rule 65 of the Rules of Court, challenging Omnibus Resolution No. 3785[1] issued by the Commission on Elections (Comelec) on March 26, 2001. This Resolution approved the participation of 154 organizations and parties, including those herein impleaded, in the 2001 party-list elections. Petitioners seek the disqualification of private respondents, arguing mainly that the party-list system was intended to benefit the marginalized and underrepresented; not the mainstream political parties, the non-marginalized or overrepresented.

The Factual Antecedents

With the onset of the 2001 elections, the Comelec received several Petitions for registration filed by sectoral parties, organizations and political parties. According to the Comelec, [v]erifications were made as to the status and capacity of these parties and organizations and hearings were scheduled day and night until the last party w[as] heard. With the number of these petitions and the observance of the

legal and procedural requirements, review of these petitions as well as deliberations takes a longer process in order to arrive at a decision and as a result the two (2) divisions promulgated a separate Omnibus Resolution and individual resolution on political parties. These numerous petitions and processes observed in the disposition of these petition[s] hinder the early release of the Omnibus Resolutions of the Divisions which were promulgated only on 10 February 2001.[2]

Thereafter, before the February 12, 2001 deadline prescribed under Comelec Resolution No. 3426 dated December 22, 2000, the registered parties and organizations filed their respective Manifestations, stating their intention to participate in the party-list elections. Other sectoral and political parties and organizations whose registrations were denied also filed Motions for Reconsideration, together with Manifestations of their intent to participate in the party-list elections. Still other registered parties filed their Manifestations beyond the deadline.

The Comelec gave due course or approved the Manifestations (or accreditations) of 154 parties and organizations, but denied those of several others in its assailed March 26, 2001 Omnibus Resolution No. 3785, which we quote:

We carefully deliberated the foregoing matters, having in mind that this system of proportional representation scheme will encourage multi-partisan [sic] and enhance the inability of small, new or sectoral parties or organization to directly participate in this electoral window.

It will be noted that as defined, the party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional, and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections.

However, in the course of our review of the matters at bar, we must recognize the fact that there is a need to keep the number of sectoral parties, organizations and coalitions, down to a manageable level, keeping only those who substantially comply with the rules and regulations and more importantly the sufficiency of the Manifestations or evidence on the Motions for Reconsiderations or Oppositions.[3]

On April 10, 2001, Akbayan Citizens Action Party filed before the Comelec a Petition praying that the names of [some of herein respondents] be deleted from the Certified List of Political Parties/Sectoral Parties/Organizations/Coalitions Participating in the Party List System for the May 14, 2001 Elections and that said certified list be accordingly amended. It also asked, as an alternative, that the votes cast for the said respondents not be counted or canvassed, and that the latters nominees not be proclaimed.[4] On April 11, 2001, Bayan Muna and Bayan Muna-Youth also filed a Petition for Cancellation of Registration and Nomination against some of herein respondents.[5]

On April 18, 2001, the Comelec required the respondents in the two disqualification cases to file Comments within three days from notice. It also set the date for hearing on April 26, 2001,[6] but subsequently reset it to May 3, 2001.[7] During the hearing, however, Commissioner Ralph C. Lantion merely directed the parties to submit their respective memoranda.[8]

Meanwhile, dissatisfied with the pace of the Comelec, Ang Bagong Bayani-OFW Labor Party filed a Petition[9] before this Court on April 16, 2001. This Petition, docketed as GR No. 147589, assailed Comelec Omnibus Resolution No. 3785. In its Resolution dated April 17, 2001,[10] the Court directed respondents to comment on the Petition within a non-extendible period of five days from notice.[11]

On April 17, 2001, Petitioner Bayan Muna also filed before this Court a Petition,[12] docketed as GR No. 147613, also challenging Comelec Omnibus Resolution No. 3785. In its Resolution dated May 9, 2001,[13] the Court ordered the consolidation of the two Petitions before it; directed respondents named in the second Petition to file their respective Comments on or before noon of May 15, 2001; and called the parties to an Oral Argument on May 17, 2001. It added that the Comelec may proceed

with the counting and canvassing of votes cast for the party-list elections, but barred the proclamation of any winner therein, until further orders of the Court.

Thereafter, Comments[14] on the second Petition were received by the Court and, on May 17, 2001, the Oral Argument was conducted as scheduled. In an Order given in open court, the parties were directed to submit their respective Memoranda simultaneously within a non-extendible period of five days.[15]

Issues:

During the hearing on May 17, 2001, the Court directed the parties to address the following issues:

1. Whether or not recourse under Rule 65 is proper under the premises. More specifically, is there no other plain, speedy or adequate remedy in the ordinary course of law?

2. Whether or not political parties may participate in the party-list elections.

3. Whether or not the party-list system is exclusive to marginalized and underrepresented sectors and organizations.

4. Whether or not the Comelec committed grave abuse of discretion in promulgating Omnibus Resolution No. 3785.[16]

The Courts Ruling

The Petitions are partly meritorious. These cases should be remanded to the Comelec which will determine, after summary evidentiary hearings, whether the 154 parties and organizations enumerated in the assailed Omnibus Resolution satisfy the requirements of the Constitution and RA 7941, as specified in this Decision.

First Issue:Recourse Under Rule 65

Respondents contend that the recourse of both petitioners under Rule 65 is improper because there are other plain, speedy and adequate remedies in the ordinary course of law.[17] The Office of the Solicitor General argues that petitioners should have filed before the Comelec a petition either for disqualification or for cancellation of registration, pursuant to Sections 19, 20, 21 and 22 of Comelec Resolution No. 3307-A[18]dated November 9, 2000.[19]

We disagree. At bottom, petitioners attack the validity of Comelec Omnibus Resolution 3785 for having been issued with grave abuse of discretion, insofar as it allowed respondents to participate in the party-list elections of 2001. Indeed, under both the Constitution[20] and the Rules of Court, such challenge may be brought before this Court in a verified petition for certiorari under Rule 65.

Moreover, the assailed Omnibus Resolution was promulgated by Respondent Commission en banc; hence, no motion for reconsideration was possible, it being a prohibited pleading under Section 1 (d), Rule 13 of the Comelec Rules of Procedure.[21]

The Court also notes that Petitioner Bayan Muna had filed before the Comelec a Petition for Cancellation of Registration and Nomination against some of herein respondents.[22] The Comelec, however, did not act on that Petition. In view of the pendency of the elections, Petitioner Bayan Muna sought succor from this Court, for there was no other adequate recourse at the time. Subsequent events have proven the urgency of petitioners action; to this date, the Comelec has not yet formally resolved the Petition before it. But a resolution may just be a formality because the Comelec, through the Office of the Solicitor General, has made its position on the matter quite clear.

In any event, this case presents an exception to the rule that certiorari shall lie only in the absence of any other plain, speedy and adequate remedy.[23] It has been held that certiorari is available, notwithstanding the presence of other remedies, where the issue raised is one purely of law, where public interest is involved, and in case of urgency.[24] Indeed, the instant case is indubitably imbued with public interest and with extreme urgency, for it potentially involves the composition of 20 percent of the House of Representatives.

Moreover, this case raises transcendental constitutional issues on the party-list system, which this Court must urgently resolve, consistent with its duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules.[25]

Finally, procedural requirements may be glossed over to prevent a miscarriage of justice, when the issue involves the principle of social justice x x x when the decision sought to be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.[26]

Second Issue:

Participation of Political Parties

In its Petition, Ang Bagong Bayani-OFW Labor Party contends that the inclusion of political parties in the party-list system is the most objectionable portion of the questioned Resolution.[27] For its part, Petitioner Bayan Muna objects to the participation of major political parties.[28] On the other hand, the Office of the Solicitor General, like the impleaded political parties, submits that the Constitution and RA No. 7941 allow political parties to participate in the party-list elections. It argues that the party-list system is, in fact, open to all registered national, regional and sectoral parties or organizations.[29]

We now rule on this issue. Under the Constitution and RA 7941, private respondents cannot be disqualified from the party-list elections, merely on the ground that they are political parties. Section 5, Article VI of the Constitution provides that members of the House of Representatives may be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

Furthermore, under Sections 7 and 8, Article IX (C) of the Constitution, political parties may be registered under the party-list system.

Sec. 7. No votes cast in favor of a political party, organization, or coalition shall be valid, except for those registered under the party-list system as provided in this Constitution.

Sec. 8. Political parties, or organizations or coalitions registered under the party-list system, shall not be represented in the voters' registration boards, boards of election inspectors, boards of canvassers, or other similar bodies. However, they shall be entitled to appoint poll watchers in accordance with law.[30]

During the deliberations in the Constitutional Commission, Comm. Christian S. Monsod pointed out that the participants in the party-list system may be a regional party, a sectoral party, a national party, UNIDO,[31] Magsasaka, or a regional party in Mindanao."[32] This was also clear from the following exchange between Comms. Jaime Tadeo and Blas Ople:[33]

MR. TADEO. Naniniwala ba kayo na ang party list ay pwedeng paghati-hatian ng UNIDO, PDP-Laban, PNP, Liberal at Nacionalista?

MR. OPLE. Maaari yan sapagkat bukas ang party list system sa lahat ng mga partido.

Indeed, Commissioner Monsod stated that the purpose of the party-list provision was to open up the system, in order to give a chance to parties that consistently place third or fourth in congressional

district elections to win a seat in Congress.[34] He explained: The purpose of this is to open the system. In the past elections, we found out that there were certain groups or parties that, if we count their votes nationwide, have about 1,000,000 or 1,500,000 votes. But they were always third or fourth place in each of the districts. So, they have no voice in the Assembly. But this way, they would have five or six representatives in the Assembly even if they would not win individually in legislative districts. So, that is essentially the mechanics, the purpose and objectives of the party-list system.

For its part, Section 2 of RA 7941 also provides for a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, x x x. Section 3 expressly states that a party is either a political party or a sectoral party or a coalition of parties. More to the point, the law defines political party as an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly nominates and supports certain of its leaders and members as candidates for public office.

Furthermore, Section 11 of RA 7941 leaves no doubt as to the participation of political parties in the party-list system. We quote the pertinent provision below:

x x x x x x x x x

For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system.

x x x x x x x x x

Indubitably, therefore, political parties even the major ones -- may participate in the party-list elections.

Third Issue:Marginalized and Underrepresented

That political parties may participate in the party-list elections does not mean, however, that any political party -- or any organization or group for that matter -- may do so. The requisite character of these parties or organizations must be consistent with the purpose of the party-list system, as laid down in the Constitution and RA 7941. Section 5, Article VI of the Constitution, provides as follows:

(1) The House of Representatives shall be composed of not more than two hundred and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered national, regional, and sectoral parties or organizations.

(2) The party-list representatives shall constitute twenty per centum of the total number of representatives including those under the party list. For three consecutive terms after the ratification of this Constitution, one-half of the seats allocated to party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector. (Emphasis supplied.)

Notwithstanding the sparse language of the provision, a distinguished member of the Constitutional Commission declared that the purpose of the party-list provision was to give genuine power to our people in Congress. Hence, when the provision was discussed, he exultantly announced: On this first

day of August 1986, we shall, hopefully, usher in a new chapter to our national history, by giving genuine power to our people in the legislature.[35]

The foregoing provision on the party-list system is not self-executory. It is, in fact, interspersed with phrases like in accordance with law or as may be provided by law; it was thus up to Congress to sculpt in granite the lofty objective of the Constitution. Hence, RA 7941 was enacted. It laid out the statutory policy in this wise:

SEC. 2. Declaration of Policy. -- The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible.

The Marginalized and Underrepresented to Become Lawmakers Themselves

The foregoing provision mandates a state policy of promoting proportional representation by means of the Filipino-style party-list system, which will enable the election to the House of Representatives of Filipino citizens,

1. who belong to marginalized and underrepresented sectors, organizations and parties; and

2. who lack well-defined constituencies; but

3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.

The key words in this policy are proportional representation, marginalized and underrepresented, and lack [of] well-defined constituencies.

Proportional representation here does not refer to the number of people in a particular district, because the party-list election is national in scope. Neither does it allude to numerical strength in a distressed or oppressed group. Rather, it refers to the representation of the marginalized and underrepresented as exemplified by the enumeration in Section 5 of the law; namely, labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.

However, it is not enough for the candidate to claim representation of the marginalized and underrepresented, because representation is easy to claim and to feign. The party-list organization or party must factually and truly represent the marginalized and underrepresented constituencies mentioned in Section 5.[36] Concurrently, the persons nominated by the party-list candidate-organization must be Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties.

Finally, lack of well-defined constituenc[y] refers to the absence of a traditionally identifiable electoral group, like voters of a congressional district or territorial unit of government. Rather, it points again to those with disparate interests identified with the marginalized or underrepresented.

In the end, the role of the Comelec is to see to it that only those Filipinos who are marginalized and underrepresented become members of Congress under the party-list system, Filipino-style.

The intent of the Constitution is clear: to give genuine power to the people, not only by giving more law to those who have less in life, but more so by enabling them to become veritable lawmakers themselves. Consistent with this intent, the policy of the implementing law, we repeat, is likewise clear: to enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, x x x, to become members of the House of Representatives. Where the language of the law is clear, it must be applied according to its express terms.[37]

The marginalized and underrepresented sectors to be represented under the party-list system are enumerated in Section 5 of RA 7941, which states:

SEC. 5. Registration. -- Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require: Provided, that the sector shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.

While the enumeration of marginalized and underrepresented sectors is not exclusive, it demonstrates the clear intent of the law that not all sectors can be represented under the party-list system. It is a fundamental principle of statutory construction that words employed in a statute are interpreted in connection with, and their meaning is ascertained by reference to, the words and the phrases with which they are associated or related. Thus, the meaning of a term in a statute may be limited, qualified or specialized by those in immediate association.[38]

The Party-List System Desecrated by the OSG Contentions

Notwithstanding the unmistakable statutory policy, the Office of the Solicitor General submits that RA No. 7941 does not limit the participation in the party-list system to the marginalized and underrepresented sectors of society.[39] In fact, it contends that any party or group that is not disqualified under Section 6[40]of RA 7941 may participate in the elections. Hence, it admitted during the Oral Argument that even an organization representing the super rich of Forbes Park or Dasmarias Village could participate in the party-list elections.[41]

The declared policy of RA 7941 contravenes the position of the Office of the Solicitor General (OSG). We stress that the party-list system seeks to enable certain Filipino citizens specifically those belonging to marginalized and underrepresented sectors, organizations and parties to be elected to the House of Representatives. The assertion of the OSG that the party-list system is not exclusive to the marginalized and underrepresented disregards the clear statutory policy. Its claim that even the super-rich and overrepresented can participate desecrates the spirit of the party-list system.

Indeed, the law crafted to address the peculiar disadvantages of Payatas hovel dwellers cannot be appropriated by the mansion owners of Forbes Park. The interests of these two sectors are manifestly disparate; hence, the OSGs position to treat them similarly defies reason and common sense. In contrast, and with admirable candor, Atty. Lorna Patajo-Kapunan[42] admitted during the Oral Argument that a group of bankers, industrialists and sugar planters could not join the party-list system

as representatives of their respective sectors.[43]

While the business moguls and the mega-rich are, numerically speaking, a tiny minority, they are neither marginalized nor underrepresented, for the stark reality is that their economic clout engenders political power more awesome than their numerical limitation. Traditionally, political power does not necessarily emanate from the size of ones constituency; indeed, it is likely to arise more directly from the number and amount of ones bank accounts.

It is ironic, therefore, that the marginalized and underrepresented in our midst are the majority who wallow in poverty, destitution and infirmity. It was for them that the party-list system was enacted -- to give them not only genuine hope, but genuine power; to give them the opportunity to be elected and to represent the specific concerns of their constituencies; and simply to give them a direct voice in Congress and in the larger affairs of the State. In its noblest sense, the party-list system truly empowers the masses and ushers a new hope for genuine change. Verily, it invites those marginalized and underrepresented in the past the farm hands, the fisher folk, the urban poor, even those in the underground movement to come out and participate, as indeed many of them came out and participated during the last elections. The State cannot now disappoint and frustrate them by disabling and desecrating this social justice vehicle.

Because the marginalized and underrepresented had not been able to win in the congressional district elections normally dominated by traditional politicians and vested groups, 20 percent of the seats in the House of Representatives were set aside for the party-list system. In arguing that even those sectors who normally controlled 80 percent of the seats in the House could participate in the party-list elections for the remaining 20 percent, the OSG and the Comelec disregard the fundamental difference between the congressional district elections and the party-list elections.

As earlier noted, the purpose of the party-list provision was to open up the system,[44] in order to enhance the chance of sectoral groups and organizations to gain representation in the House of Representatives through the simplest scheme possible.[45] Logic shows that the system has been opened to those who have never gotten a foothold within it -- those who cannot otherwise win in regular elections and who therefore need the simplest scheme possible to do so. Conversely, it would be illogical to open the system to those who have long been within it -- those privileged sectors that have long dominated the congressional district elections.

The import of the open party-list system may be more vividly understood when compared to a student dormitory open house, which by its nature allows outsiders to enter the facilities. Obviously, the open house is for the benefit of outsiders only, not the dormers themselves who can enter the dormitory even without such special privilege. In the same vein, the open party-list system is only for the outsiders who cannot get elected through regular elections otherwise; it is not for the non-marginalized or overrepresented who already fill the ranks of Congress.

Verily, allowing the non-marginalized and overrepresented to vie for the remaining seats under the party-list system would not only dilute, but also prejudice the chance of the marginalized and underrepresented, contrary to the intention of the law to enhance it. The party-list system is a tool for the benefit of the underprivileged; the law could not have given the same tool to others, to the prejudice of the intended beneficiaries.

This Court, therefore, cannot allow the party-list system to be sullied and prostituted by those who are neither marginalized nor underrepresented. It cannot let that flicker of hope be snuffed out. The clear state policy must permeate every discussion of the qualification of political parties and other organizations under the party-list system.

Refutation of the Separate Opinions

The Separate Opinions of our distinguished colleagues, Justices Jose C. Vitug and Vicente V. Mendoza, are anchored mainly on the supposed intent of the framers of the Constitution as culled from their deliberations.

The fundamental principle in constitutional construction, however, is that the primary source from which to ascertain constitutional intent or purpose is the language of the provision itself. The presumption is that the words in which the constitutional provisions are couched express the objective sought to be attained.[46] In other words, verba legis still prevails. Only when the meaning of the words used is unclear and equivocal should resort be made to extraneous aids of construction and interpretation, such as the proceedings of the Constitutional Commission or Convention, in order to shed light on and ascertain the true intent or purpose of the provision being construed.[47]

Indeed, as cited in the Separate Opinion of Justice Mendoza, this Court stated in Civil Liberties Union v. Executive Secretary[48] that the debates and proceedings of the constitutional convention [may be consulted] in order to arrive at the reason and purpose of the resulting Constitution x x x only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention are of value as showing the views of the individual members, and as indicating the reason for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the mass or our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face. The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers understanding thereof.

Section 5, Article VI of the Constitution, relative to the party-list system, is couched in clear terms: the mechanics of the system shall be provided by law. Pursuant thereto, Congress enacted RA 7941. In understanding and implementing party-list representation, we should therefore look at the law first. Only when we find its provisions ambiguous should the use of extraneous aids of construction be resorted to.

But, as discussed earlier, the intent of the law is obvious and clear from its plain words. Section 2 thereof unequivocally states that the party-list system of electing congressional representatives was designed to enable underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole x x x. The criteria for participation is well defined. Thus, there is no need for recourse to constitutional deliberations, not even to the proceedings of Congress. In any event, the framers deliberations merely express their individual opinions and are, at best, only persuasive in construing the meaning and purpose of the constitution or statute.

Be it remembered that the constitutionality or validity of Sections 2 and 5 of RA 7941 is not an issue here. Hence, they remain parts of the law, which must be applied plainly and simply.

Fourth Issue:Grave Abuse of Discretion

From its assailed Omnibus Resolution, it is manifest that the Comelec failed to appreciate fully the clear policy of the law and the Constitution. On the contrary, it seems to have ignored the facet of the party-list system discussed above. The OSG as its counsel admitted before the Court that any group, even the non-marginalized and overrepresented, could field candidates in the party-list elections.

When a lower court, or a quasi-judicial agency like the Commission on Elections, violates or ignores

the Constitution or the law, its action can be struck down by this Court on the ground of grave abuse of discretion.[49] Indeed, the function of all judicial and quasi-judicial instrumentalities is to apply the law as they find it, not to reinvent or second-guess it.[50]

In its Memorandum, Petitioner Bayan Muna passionately pleads for the outright disqualification of the major political parties Respondents Lakas-NUCD, LDP, NPC, LP and PMP on the ground that under Comelec Resolution No. 4073, they have been accredited as the five (six, including PDP-Laban) major political parties in the May 14, 2001 elections. It argues that because of this, they have the advantage of getting official Comelec Election Returns, Certificates of Canvass, preferred poll watchers x x x. We note, however, that this accreditation does not refer to the party-list election, but, inter alia, to the election of district representatives for the purpose of determining which parties would be entitled to watchers under Section 26 of Republic Act No. 7166.

What is needed under the present circumstances, however, is a factual determination of whether respondents herein and, for that matter, all the 154 previously approved groups, have the necessary qualifications to participate in the party-list elections, pursuant to the Constitution and the law.

Bayan Muna also urges us to immediately rule out Respondent Mamamayan Ayaw sa Droga (MAD), because it is a government entity using government resources and privileges. This Court, however, is not a trier of facts.[51] It is not equipped to receive evidence and determine the truth of such factual allegations.

Basic rudiments of due process require that respondents should first be given an opportunity to show that they qualify under the guidelines promulgated in this Decision, before they can be deprived of their right to participate in and be elected under the party-list system.

Guidelines for Screening Party-List Participants

The Court, therefore, deems it proper to remand the case to the Comelec for the latter to determine, after summary evidentiary hearings, whether the 154 parties and organizations allowed to participate in the party-list elections comply with the requirements of the law. In this light, the Court finds it appropriate to lay down the following guidelines, culled from the law and the Constitution, to assist the Comelec in its work.

First, the political party, sector, organization or coalition must represent the marginalized and underrepresented groups identified in Section 5 of RA 7941. In other words, it must show -- through its constitution, articles of incorporation, bylaws, history, platform of government and track record -- that it represents and seeks to uplift marginalized and underrepresented sectors. Verily, majority of its membership should belong to the marginalized and underrepresented. And it must demonstrate that in a conflict of interests, it has chosen or is likely to choose the interest of such sectors.

Second, while even major political parties are expressly allowed by RA 7941 and the Constitution to participate in the party-list system, they must comply with the declared statutory policy of enabling Filipino citizens belonging to marginalized and underrepresented sectors x x x to be elected to the House of Representatives. In other words, while they are not disqualified merely on the ground that they are political parties, they must show, however, that they represent the interests of the marginalized and underrepresented. The counsel of Aksyon Demokratiko and other similarly situated political parties admitted as much during the Oral Argument, as the following quote shows:

JUSTICE PANGANIBAN: I am not disputing that in my question. All I am saying is, the political party must claim to represent the marginalized and underrepresented sectors?

ATTY. KAPUNAN: Yes, Your Honor, the answer is yes.[52]

Third, in view of the objections[53] directed against the registration of Ang Buhay Hayaang Yumabong, which is allegedly a religious group, the Court notes the express constitutional provision that the religious sector may not be represented in the party-list system. The extent of the constitutional proscription is demonstrated by the following discussion during the deliberations of the Constitutional Commission:

MR. OPLE. x x x

In the event that a certain religious sect with nationwide and even international networks of members and supporters, in order to circumvent this prohibition, decides to form its own political party in emulation of those parties I had mentioned earlier as deriving their inspiration and philosophies from well-established religious faiths, will that also not fall within this prohibition?

MR. MONSOD. If the evidence shows that the intention is to go around the prohibition, then certainly the Comelec can pierce through the legal fiction.[54]

The following discussion is also pertinent:

MR. VILLACORTA. When the Commissioner proposed EXCEPT RELIGIOUS GROUPS, he is not, of course, prohibiting priests, imams or pastors who may be elected by, say, the indigenous community sector to represent their group.

REV. RIGOS. Not at all, but I am objecting to anybody who represents the Iglesia ni Kristo, the Catholic Church, the Protestant Church et cetera.[55]

Furthermore, the Constitution provides that religious denominations and sects shall not be registered.[56] The prohibition was explained by a member[57] of the Constitutional Commission in this wise: [T]he prohibition is on any religious organization registering as a political party. I do not see any prohibition here against a priest running as a candidate. That is not prohibited here; it is the registration of a religious sect as a political party.[58]

Fourth, a party or an organization must not be disqualified under Section 6 of RA 7941, which enumerates the grounds for disqualification as follows:

(1) It is a religious sect or denomination, organization or association organized for religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.[59]

Note should be taken of paragraph 5, which disqualifies a party or group for violation of or failure to comply with election laws and regulations. These laws include Section 2 of RA 7941, which states that

the party-list system seeks to enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties x x x to become members of the House of Representatives. A party or an organization, therefore, that does not comply with this policy must be disqualified.

Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded or assisted by, the government. By the very nature of the party-list system, the party or organization must be a group of citizens, organized by citizens and operated by citizens. It must be independent of the government. The participation of the government or its officials in the affairs of a party-list candidate is not only illegal[60] and unfair to other parties, but also deleterious to the objective of the law: to enable citizens belonging to marginalized and underrepresented sectors and organizations to be elected to the House of Representatives.

Sixth, the party must not only comply with the requirements of the law; its nominees must likewise do so. Section 9 of RA 7941 reads as follows:

SEC. 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1) year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.

In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term.

Seventh, not only the candidate party or organization must represent marginalized and underrepresented sectors; so also must its nominees. To repeat, under Section 2 of RA 7941, the nominees must be Filipino citizens who belong to marginalized and underrepresented sectors, organizations and parties. Surely, the interests of the youth cannot be fully represented by a retiree; neither can those of the urban poor or the working class, by an industrialist. To allow otherwise is to betray the State policy to give genuine representation to the marginalized and underrepresented.

Eighth, as previously discussed, while lacking a well-defined political constituency, the nominee must likewise be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole. Senator Jose Lina explained during the bicameral committee proceedings that the nominee of a party, national or regional, is not going to represent a particular district x x x.[61]

Epilogue

The linchpin of this case is the clear and plain policy of the law: to enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives.

Crucial to the resolution of this case is the fundamental social justice principle that those who have less in life should have more in law. The party-list system is one such tool intended to benefit those who have less in life. It gives the great masses of our people genuine hope and genuine power. It is a message to the destitute and the prejudiced, and even to those in the underground, that change is possible. It is an invitation for them to come out of their limbo and seize the opportunity.

Clearly, therefore, the Court cannot accept the submissions of the Comelec and the other respondents that the party-list system is, without any qualification, open to all. Such position does not only weaken the electoral chances of the marginalized and underrepresented; it also prejudices them. It would gut

the substance of the party-list system. Instead of generating hope, it would create a mirage. Instead of enabling the marginalized, it would further weaken them and aggravate their marginalization.

In effect, the Comelec would have us believe that the party-list provisions of the Constitution and RA 7941 are nothing more than a play on dubious words, a mockery of noble intentions, and an empty offering on the altar of people empowerment. Surely, this could not have been the intention of the framers of the Constitution and the makers of RA 7941.

WHEREFORE, this case is REMANDED to the Comelec, which is hereby DIRECTED to immediately conduct summary evidentiary hearings on the qualifications of the party-list participants in the light of the guidelines enunciated in this Decision. Considering the extreme urgency of determining the winners in the last party-list elections, the Comelec is directed to begin its hearings for the parties and organizations that appear to have garnered such number of votes as to qualify for seats in the House of Representatives. The Comelec is further DIRECTED to submit to this Court its compliance report within 30 days from notice hereof.

The Resolution of this Court dated May 9, 2001, directing the Comelec to refrain from proclaiming any winner during the last party-list election, shall remain in force until after the Comelec itself will have complied and reported its compliance with the foregoing disposition.

This Decision is immediately executory upon the Commission on Elections receipt thereof. No pronouncement as to costs.

SO ORDERED.

Bellosillo, Melo, Puno, Kapunan, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.

Davide, Jr., C.J., in the result.

Vitug and Mendoza, JJ., see dissenting opinion.

Quisumbing, De Leon, Jr., and Sandoval-Gutierrez, JJ., join the dissent of J. Vicente M. Mendoza.

Ynares-Santiago, J., abroad on official business.

[1] Signed by Chairman Alfredo L. Benipayo and Commissioners Luzviminda G. Tancangco, Rufino S. B. Javier, Ralph C. Lantion, Mehol K. Sadain, Resurreccion Z. Borra and Florentino A. Tuason Jr.

[2] Omnibus Resolution No. 3785, p. 13; rollo (GR No. 147589), p. 40.

[3] Ibid., pp. 21-22; rollo, pp. 48-49.

[4] Rollo (GR No. 147589), pp. 272-273.

[5] Rollo (GR No. 147589), pp. 250-263.

[6] Rollo (GR No. 147589), pp. 282-283.

[7] See rollo (GR No. 147613), p. 223.

[8] TSN (GR No. 147589 and 147613), May 17, 2001, p. 49.

[9] Rollo (GR No. 147589), pp. 4-73.

[10] Rollo (GR No. 147589), p. 74.

[11] Comments were filed by MAD, Bagong Bayani, The True Marcos Loyalists, the Comelec, Partido

ng Masang Pilipino, the Liberal Party, the Office of the Solicitor General, CREBA, Lakas-NUCD-UMDP, the Philippine Local Autonomy Movement, Aksyon Demokratiko, Citizens Drug Watch Foundation, Ang Buhay Hayaang Yumabong, Ang Lakas ng OCW, and Sports and Health Foundation.

[12] Rollo (GR No. 147613), pp. 3-45.

[13] Rollo (GR No. 147613), p. 46.

[14] These were filed by the Office of the Solicitor General, the Comelec, the Bagong Bayani Organization, Mamamayan Ayaw sa Droga, and the Philippine Local Autonomy Movement.

[15] Memoranda were filed by Petitioners Bayan Muna and Ang Bagong Bayani-OFW Labor Party; and Respondents Mamamayan Ayaw sa Droga, CREBA, the Bagong Bayani Organization, the Office of the Solicitor General, and Aksyon Demokratiko. Manifestations instead of memoranda were filed by Lakas-NUCD and OCW.

[16] See the May 17, 2001 Resolution, p. 2; rollo (GR No. 147613), p. 88.

[17] See, e.g., the Bagong Bayani Organizations Memorandum, pp. 3-4; Aksyon Demokratikos Memorandum, pp. 2-3; and MADs Memorandum, pp. 3-6.

[18] Rules and regulations governing the filing of a petition for registration, a manifestation to participate, and the names of nominees under the party-list system of representation in connection with the May 14, 2001 national and local elections.

[19] OSGs Memorandum, pp. 6-14; rollo (GR No. 147613), pp. 151-159.

[20] Section 1, Article VIII of the Constitution, provides: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

[21] SECTION 1. What pleadings are not allowed. The following pleadings are not allowed:

x x x x x x x x x

d) motion for reconsideration of an en banc ruling, resolution, order or decision except in election offense cases;

x x x x x x x x x

[22] Docketed as SPA 01-113. As earlier noted, Akbayan also filed before the Comelec a similar Petition, docketed as SPA-01-109. See Annexes 1 and 2, Comment of the Office of the Solicitor General; rollo (GR No. 147589), pp. 250 et seq. and 266 et seq.

[23] Section 1, Rule 65. See Filoteo v. Sandiganbayan, 263 SCRA 222, October 16, 1996; BF Corporation v. CA, 288 SCRA 267, March 27, 1998; GSIS v. Olisa, 304 SCRA 421, March 10, 1999; National Steel Corporation v. CA, GR No. 134437, January 31, 2000; Sahali v. Comelec, GR No. 134169, February 2, 2000

[24] Republic v. Sandiganbayan, 269 SCRA 316, March 7, 1997, per Panganiban, J. See also ABS-CBN Broadcasting Corporation v. Commission on Elections, GR No. 133486, January 28, 2000; Central Bank v. Cloribel, 44 SCRA 307, April 11, 1972.

[25] Salonga v. Cruz Pao, 134 SCRA 438, February 18, 1985, per Gutierrez, Jr., J. See also Taada v. Angara, 272 SCRA 18, May 2, 1997; Guingona v. Gonzales, 219 SCRA 326, March 1, 1993.

[26] ABS-CBN v. Comelec, GR No. 133486, January 28, 2000, per Panganiban, J.

[27] Petition of Ang Bagong Bayani-OFW Labor Party, p. 15; rollo (GR No. 147589), p. 18.

[28] Petition of Bayan Muna, p. 18; rollo (GR No. 147613), p. 20.

[29] OSG Comment, p. 18; rollo (GR No. 147589), p. 244.

[30] Emphasis supplied. See also 17 and 18, Article VI of the Constitution.

[31] It may be noted that when the Constitution was being drafted in the early days of the post-Marcos era, UNIDO was the dominant political party.

[32] Record of the Constitutional Commission, Vol. II, p. 86.




[36] Infra.

[37] Azarcon v. Sandiganbayan, 268 SCRA 747, February 26, 1997; Ramirez v. CA, 248 SCRA 590, September 28, 1995.

[38] 82 C.J.S. Statutes 331.

[39] OSG Comment, p. 18; rollo (GR No. 147589), p. 244.

[40] Infra.

[41] TSN, May 17, 2001, pp. 147-148.

[42] Counsel of Aksyon Demokratiko.

[43] TSN, May 17, 2001, pp. 178-180.

[44] Supra. See also 6, Article IX (C) of the Constitution, which reads: A free and open party system shall be allowed to evolve according to the free choice of the people, subject to the provisions of this Article.

[45] Section 2 of RA 7941 states in part as follows: x x x. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible.

[46] JM Tuason & Co., Inc. v. Land Tenure Administration, 31 SCRA 413, February 18, 1970; cited in Ruben C. Agpalo, Statutory Construction, 1990 ed., p. 311. See also Gold Creek Mining Corp. v. Rodriguez, 66 Phil 259, 264 (1938).

[47] See Agpalo, ibid., p. 313.

[48] 194 SCRA 317, February 22, 1991, per Fernan, CJ; quoting Commonwealth v. Ralph, 111 Pa 365, 3 Atl 220.

[49] Taada v. Angara, 272 SCRA 18, May 2, 1997. See also Santiago v. Guingona, 298 SCRA 756, November 18, 1998; Miranda v. Aguirre, 314 SCRA 603, September 16, 1999; Garcia v. HRET, 312 SCRA 353, August 12, 1999.

[50] Veterans Federation Party et al. v. Comelec et al., GR No. 136781, October 6, 2000.

[51] See Valmonte v. Court of Appeals, 303 SCRA 278, February 18, 1999; Inciong Jr. v. CA, 257 SCRA 578, June 26, 1996; Palomado v. NLRC, 257 SCRA 680, June 28, 1996; Heirs of the Late

Teodoro Guaring Jr. v. CA, 269 SCRA 283, March 7, 1997; Sesbreo v. Central Board of Assessment Appeals, 270 SCRA 360, March 24, 1997; PCGG v. Cojuangco Jr., 302 SCRA 217, January 27, 1999.

[52] TSN, May 17, 2001, p. 180.

[53] Petition of Ang Bagong Bayani-OFW Labor Party, p. 16; rollo (GR No. 147589), p. 19.

[54] Record of the Constitutional Commission, Vol. I, p. 636.


[56] 2 (5), Article IX (C).

[57] Christian S. Monsod.

[58] Record of the Constitutional Commission, Vol. I, p. 634

[59] See also 11, Comelec Resolution No. 3307-A.

[60] See 2 (4), Article IX (B) of the Constitution. See also Article 261 (o), BP 881.

[61] The bicameral conference committee on the disagreeing provision of Senate Bill No. 1913 and House Bill No. 3040, January 31, 1994, p. 4.


EN BANC

G.R. No. L-18684 September 14, 1961

LAMBERTO MACIAS, LORENZO TEVES, FAUSTO DUGENIO, ROGACIANO MERCADO and MARIANO PERDICES, petitioners, vs.THE COMMISSION ON ELECTIONS and VICENTE GELLA in his Capacity as National Treasurer, respondents.

Crispin D. Baizas for petitioners.Barrios, Garcia and Apostol for respondent Commission on Elections.Office of the Solicitor General for respondent Vicente Gella.

BENGZON, C.J.:

Statement of the case. Petitioners request that respondent officials be prevented from implementing Republic Act 3040 that apportions representative districts in this country. It is unconstitutional and void, they allege, because: (a) it was passed by the House of Representatives without printed final copies of the bill having been furnished the Members at least three calendar days prior to its passage; (b) it was approved more than three years after the return of the last census of our population; and (c) it apportioned districts without regard to the number of inhabitants of the several provinces.

Admitting some allegations but denying others, the respondents aver they were merely complying with their duties under the statute, which they presume and allege to be constitutional. The respondent National Treasurer further avers that petitioners have no personality to bring this action; that a duly certified copy of the law creates the presumption of its having been passed in accordance with the requirements of the Constitution (distribution of printed bills included); that the Director of the Census submitted an official report on the population of the Philippines in November, 1960, which report became the basis of the bill; and that the Act complies with the principle of proportional representation prescribed by the Constitution..

After hearing the parties and considering their memoranda, this Court reached the conclusion that the statute be declared invalid, and, aware of the need of prompt action, issued its brief resolution of August 23, partly in the following language:

· Whereas such Republic Act 3040 clearly violates the said constitutional provision in several ways namely, (a) it gave Cebu seven members, while Rizal with a bigger number of inhabitants got four only; (b) it gave Manila four members, while Cotabato with a bigger population got three only; . . .;

· Whereas such violation of the Constitutional mandate renders the law void;

· Therefore, without prejudice to the writing of a more extended opinion passing additionally on other issues raised in the case, the Court resolved, without any dissent, forthwith to issue the injunction prayed for by the petitioners. No bond is needed.

What with the reservation announced in the resolution, and what with the motion for reconsideration, this is now written fully to explain the premises on which our conclusion rested.

Personality of the petitioners. Petitioners are four members of the House of Representatives from Negros Oriental, Misamis Oriental, and Bulacan, and the provincial governor of Negros Oriental. They bring this action in behalf of themselves and of other residents of their provinces. They allege, and this Court finds, that their provinces had been discriminated against by Republic Act 3040, because they were given less representative districts than the number of their inhabitants required or justified: Misamis Oriental having 387,839 inhabitants, was given one district only, whereas Cavite with 379,902 inhabitants, was given two districts; Negros Oriental and Bulacan with 598,783 and 557,691 respectively, were allotted 2 representative districts each, whereas Albay with 515,961 was assigned 3 districts.

The authorities hold that "citizens who are deprived of as full and effective an elective franchise as they are entitled to under the Constitution by an apportionment act, have a sufficient interest to proceed in a court to test the statute. (18 Am. Jur. 199.)

Therefore, petitioners as voters and as congressmen and governor of the aggrieved provinces have personality to sue.

In Stiglitz vs. Schardien (Ky) 40 S.W. (2d) 315, the right of a citizen to question the validity of a redistricting statute was upheld. The same right was recognized in Jones vs. Freeman (Okla.) 146 P. (2d) 564, the court saying that each citizen has the right to have the State apportioned in accordance with the Constitution and to be governed by a Legislative fairly representing the whole body of electorate and elected as required by the Constitution.

Colegrove vs. Green, 328 .U.S. 549, on which respondents rely, appear to be inconclusive: three against three. The seventh justice concurred in the result even supposing the contrary was justiciable."

The printed-form, three-day requirement. The Constitution provides that "no bill shall be passed by either House unless it shall have been printed and copies thereof in its final form furnished its Members at least three calendar days prior to its passage, except when the President shall have certified to the necessity of its immediate enactment."

Petitioners presented certificates of the Secretary of the House of Representatives to show that no printed copy had been distributed three days before passage of the bill (on May 10, 1961) and that no certificate of urgency by the President had been received in the House.

The respondents claim in their defense that a statute may not be nullified upon evidence of failure to print, because "it is conclusively presumed that the details of legislative procedure leading to the enrollment that are prescribed by the Constitution have been complied with by the Legislature." They further claim that the certificates of the Secretary of the House are inadmissible, in view of the conclusive (enrolled-bill) presumption, which in several instances have been applied by the courts. In further support of their contention, Sec. 313(2) of Act 190 might be cited.1

On the other hand, it may be said for the petitioners, that such printed bill requirement had a fundamental purpose to serve2 and was inserted in the Constitution not as a mere procedural step; and that the enrolled-bill theory, if adopted, would preclude the courts from enforcing such requirement in proper cases.

We do not deem it necessary to make a definite pronouncement on the question, because the controversy may be decided upon the issue of districts-in-proportion-to-inhabitants.1awph頻.n鑤

Population Census. According to the Constitution, "the Congress shall by law, make an apportionment (of Members of the House) within three years after the return of every enumeration, and not otherwise." It is admitted that the bill, which later became Republic Act 3040, was based upon a report submitted to the President by the Director of the Census on November 23, 1960. It reads:

· I have the honor to submit herewith a preliminary count of the population of the Philippines as a result of the population enumeration which has just been completed. This is a report on the total number of inhabitants in this country and does not include the population characteristics. It is the result of a hand tally and may be subject to revision when all the population schedules shall have been processed mechanically.

· The Census of Population is the first of a series of four censuses which include housing, agriculture and economics in addition to population. These four censuses together constitute what is known as the Census of 1960. Like population, the housing and agricultural censuses are undergoing processing, while the economic census is now under preparation.

· Until the final report is made, these figures should be considered as official for all purposes.

Petitioners maintain that the apportionment could not legally rest on this report since it is merely "preliminary" and "may be subject to revision." On the other hand, respondents point out that the above letter says the report should be considered "official for all purposes." They also point out that the ascertainment of what constitutes a return of an enumeration is a matter for Congress action. This issue does not clearly favor petitioners, because there are authorities sustaining the view that although not final, and still subject to correction, a census enumeration may be considered official, in the sense that Governmental action may be based thereon even in matters of apportionment of legislative districts (Cahill vs. Leopold [Conn.] 108 Atl. 2d 818). (See also Elliott vs. State, 1 Pac. 2d 370; Ervin vs. State, 44 S.W. 2d 380; Herndon vs. Excise Board, 295 Pac. 223; Holcomb vs. Spikes, 232 S.W. 891.)

Apportionment of Members. The Constitution directs that the one hundred twenty Members of the House of Representatives "shall be apportioned among the several provinces as nearly as may be according to the member of their respective inhabitants." In our resolution on August 23, we held that this provision was violated by Republic Act 3040 because (a) it gave Cebu seven members, while Rizal with a bigger number of inhabitants got four only; (b) it gave Manila four members, while Cotabato with a bigger population got three only; (c) Pangasinan with less inhabitants than both Manila and Cotabato got more than both, five members having been assigned to it; (d) Samar (with 871,857) was allotted four members while Davao with 903,224 got three only; (e) Bulacan with 557,691 got two only, while Albay with less inhabitants (515,691) got three, and (f) Misamis Oriental with 387,839 was given one member only, while Cavite with less inhabitants (379,904) got two. These were not the only instances of unequal apportionment. We see that Mountain Province has 3 whereas Isabela, Laguna and Cagayan with more inhabitants have 2 each. And then, Capiz, La Union and Ilocos Norte got 2 each, whereas Sulu that has more inhabitants got 1 only. And Leyte with 967,323 inhabitants got 4 only, whereas Iloilo with less inhabitants (966,145) was given 5.

Such disproportion of representation has been held sufficient to avoid apportionment laws enacted in States having Constitutional provisions similar to ours. For instance, in Massachusetts, the Constitution required division "into representative district . . . equally, as nearly as may be, according to the relative number of legal voters in the several districts." The Supreme Judicial Court of that state found this provision violated by an allotment that gave 3 representatives to 7,946 voters and only 2 representatives to 8,618 voters, and further gave two representatives to 4,854 voters and one representative to 5,598 voters. Justice Rugg said:

· It is not an approximation to equality to allot three representatives to 7,946 voters, and only

two representatives to 8,618 voters, and to allot two representatives to 4,854 voters, and one representative to 5,596 voters. . . .

· Whenever this kind of inequality of apportionment has been before the courts, it has been held to be contrary to the Constitution. It has been said to be "arbitrary and capricious and against the vital principle of equality." Houghton County v. Blacker, 92 Mich. 638, 647, 653; 16 LRA 432, 52 N.W. 951; Giddings vs. Blacken, 93 Mich. 1, 13, 16 LRA 402, 52 N.W. 944; Barker v. State, 133 Ind. 178, 197, 18 LRA 567, 32 NE 836, 33 NE 119; Denney v. State, 144 Ind. 503, 535, 31 LRA 726, 42 N. E. 929.

Other cases along the same line upholding the same view are these:

· 1. Stiglitz v. Schardien, supra, wherein twelve districts entitled to but six were given twelve representatives, and twelve districts given twelve only were actually entitled to twenty-two.

· 2. Jones v. Freeman, supra, wherein districts entitled to only 3 senators were given 7, and districts entitled to 15 were assigned seven only.

It is argued in the motion to reconsider, that since Republic Act 3040 improves existing conditions, this Court could perhaps, in the exercise of judicial statesmanship, consider the question involved as purely political and therefore non-justiciable. The overwhelming weight of authority is that district apportionment laws are subject to review by the courts.

· The constitutionality of a legislative apportionment act is a judicial question, and not one which the court cannot consider on the ground that it is a political question. (Parker v. State ex rel. Powell, 18 L.R.A. 567, 133 Ind. 178, 32 N.E. 836; State ex rel. Morris v. Wrightson, 22 L.R.A. 548, 56 N.J.L. 126, 28 Atl. 56; Harmison v. Ballot Comrs. 42 L.R.A. 591, 45 W. Va. 179, 31 S. E. 394)

· It is well settled that the passage of apportionment acts is not so exclusively within the political power of the legislature as to preclude a court from inquiring into their constitutionality when the question is properly brought before it. (Indiana-Parker v. Powell (1882) 133 Ind. 178, 18 L.R.A. 567, 32 N. E. 836, 33 N. E. 119; Denney v. State (1896) 144 Ind. 503; 31 L.R.A. 726, 42 N. E. 929; Marion County v. Jewett (1915) 184 Ind. 63, 110 N. E. 553.) (Kentucky-Ragland v. Anderson (1907) 125 Ky 141, 128 Am. St. Rep. 242, 100 S. W. 865.) (Massachusetts-Atty. Gen. v. Suffolk County Apportionment Comrs., etc.)

It may be added in this connection, that the mere impact of the suit upon the political situation does not render it political instead of judicial. (Lamb v. Cunningham, 17 L.R.A. 145, 83 Wis. 90.) .

The alleged circumstance that this statute improves the present set-up constitutes no excuse for approving a transgression of constitutional limitations, because the end does not justify the means. Furthermore, there is no reason to doubt that, aware of the existing inequality of representation, and impelled by its sense of duty, Congress will opportunely approve remedial legislation in accord with the precepts of the Constitution.

Needless to say, equality of representation3 in the Legislature being such an essential feature of republican institutions, and affecting so many lives, the judiciary may not with a clear conscience stand by to give free hand to the discretion of the political departments of the Government. Cases are numerous wherein courts intervened upon proof of violation of the constitutional principle of equality of representation.

· An injunction to prevent the secretary of state from issuing notices of election under an unconstitutional apportionment act gerry-mandering the state is not a usurpation of authority

by the court, on the ground that the question is a political one, but the constitutionality of the act is purely a judicial question. (State ex rel. Adams County v. Cunningham, 15 L.R.A. 561, 81 Wis. 440, 51 N.W. 724.)

· The fact that the action may have a political effect, and in that sense effect a political object, does not make the questions involved in a suit to declare the unconstitutionality of an apportionment act political instead of judicial. (State ex rel. Lamb v. Cunningham, 17 L.R.A. 145, 83 Wis. 90, 53 N.W. 48.)

· An unconstitutional apportionment law may be declared void by the courts, notwithstanding the fact that such statute is an exercise of political power. (Denney vs. State ex rel. Basler, 31 L.R.A. 726, 144 Ind. 503, 42 N.E. 929.)

· The constitutionality of a statute forming a delegate district or apportioning delegates for the house of delegates is a judicial question for the courts, although the statute is an exercise of political power. (Harmison v. Ballot Comrs. 42 L.R.A. 591, 45 W. Va. 179, 31 S. E. 394.) [3 L.R.A. Digest, p. 2737.)

Conclusion. For all the foregoing, we hereby reiterate our resolution declaring that Republic Act 3040 infringed the provisions of the Constitution and is therefore void.

Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, De Leon and Natividad, JJ., concur.Bautista Angelo, J., is on leave.

Footnotes

· 1". . . Provided, That in the case of Acts of the Philippine Commission or the Philippine Legislature when there is in existence a copy signed by the presiding officers and the secretaries of said bodies, it shall be conclusive proof of the provisions of such Act and of the due enactment thereof." (Emphasis supplied)

· 2;To prevent fraud, trickery, deceit and subterfuge in the enactment of bills (59 Corpus Juris 54).

· 3"lies at the foundation of representative government" (18 Am. Jur. 192).


EN BANC

G.R. No. L-18684 September 14, 1961

LAMBERTO MACIAS, LORENZO TEVES, FAUSTO DUGENIO, ROGACIANO MERCADO and MARIANO PERDICES, petitioners, vs.THE COMMISSION ON ELECTIONS and VICENTE GELLA in his Capacity as National Treasurer, respondents.

Crispin D. Baizas for petitioners.Barrios, Garcia and Apostol for respondent Commission on Elections.Office of the Solicitor General for respondent Vicente Gella.

BENGZON, C.J.:

Statement of the case. Petitioners request that respondent officials be prevented from implementing Republic Act 3040 that apportions representative districts in this country. It is unconstitutional and void, they allege, because: (a) it was passed by the House of Representatives without printed final copies of the bill having been furnished the Members at least three calendar days prior to its passage; (b) it was approved more than three years after the return of the last census of our population; and (c) it apportioned districts without regard to the number of inhabitants of the several provinces.

Admitting some allegations but denying others, the respondents aver they were merely complying with their duties under the statute, which they presume and allege to be constitutional. The respondent National Treasurer further avers that petitioners have no personality to bring this action; that a duly certified copy of the law creates the presumption of its having been passed in accordance with the requirements of the Constitution (distribution of printed bills included); that the Director of the Census submitted an official report on the population of the Philippines in November, 1960, which report became the basis of the bill; and that the Act complies with the principle of proportional representation prescribed by the Constitution..

After hearing the parties and considering their memoranda, this Court reached the conclusion that the statute be declared invalid, and, aware of the need of prompt action, issued its brief resolution of August 23, partly in the following language:

· Whereas such Republic Act 3040 clearly violates the said constitutional provision in several ways namely, (a) it gave Cebu seven members, while Rizal with a bigger number of inhabitants got four only; (b) it gave Manila four members, while Cotabato with a bigger population got three only; . . .;

· Whereas such violation of the Constitutional mandate renders the law void;

· Therefore, without prejudice to the writing of a more extended opinion passing additionally on other issues raised in the case, the Court resolved, without any dissent, forthwith to issue the injunction prayed for by the petitioners. No bond is needed.

What with the reservation announced in the resolution, and what with the motion for reconsideration, this is now written fully to explain the premises on which our conclusion rested.

Personality of the petitioners. Petitioners are four members of the House of Representatives from Negros Oriental, Misamis Oriental, and Bulacan, and the provincial governor of Negros Oriental. They bring this action in behalf of themselves and of other residents of their provinces. They allege, and this Court finds, that their provinces had been discriminated against by Republic Act 3040, because they were given less representative districts than the number of their inhabitants required or justified: Misamis Oriental having 387,839 inhabitants, was given one district only, whereas Cavite with 379,902 inhabitants, was given two districts; Negros Oriental and Bulacan with 598,783 and 557,691 respectively, were allotted 2 representative districts each, whereas Albay with 515,961 was assigned 3 districts.

The authorities hold that "citizens who are deprived of as full and effective an elective franchise as they are entitled to under the Constitution by an apportionment act, have a sufficient interest to proceed in a court to test the statute. (18 Am. Jur. 199.)

Therefore, petitioners as voters and as congressmen and governor of the aggrieved provinces have personality to sue.

In Stiglitz vs. Schardien (Ky) 40 S.W. (2d) 315, the right of a citizen to question the validity of a redistricting statute was upheld. The same right was recognized in Jones vs. Freeman (Okla.) 146 P. (2d) 564, the court saying that each citizen has the right to have the State apportioned in accordance with the Constitution and to be governed by a Legislative fairly representing the whole body of electorate and elected as required by the Constitution.

Colegrove vs. Green, 328 .U.S. 549, on which respondents rely, appear to be inconclusive: three against three. The seventh justice concurred in the result even supposing the contrary was justiciable."

The printed-form, three-day requirement. The Constitution provides that "no bill shall be passed by either House unless it shall have been printed and copies thereof in its final form furnished its Members at least three calendar days prior to its passage, except when the President shall have certified to the necessity of its immediate enactment."

Petitioners presented certificates of the Secretary of the House of Representatives to show that no printed copy had been distributed three days before passage of the bill (on May 10, 1961) and that no certificate of urgency by the President had been received in the House.

The respondents claim in their defense that a statute may not be nullified upon evidence of failure to print, because "it is conclusively presumed that the details of legislative procedure leading to the enrollment that are prescribed by the Constitution have been complied with by the Legislature." They further claim that the certificates of the Secretary of the House are inadmissible, in view of the conclusive (enrolled-bill) presumption, which in several instances have been applied by the courts. In further support of their contention, Sec. 313(2) of Act 190 might be cited.1

On the other hand, it may be said for the petitioners, that such printed bill requirement had a fundamental purpose to serve2 and was inserted in the Constitution not as a mere procedural step; and that the enrolled-bill theory, if adopted, would preclude the courts from enforcing such requirement in proper cases.

We do not deem it necessary to make a definite pronouncement on the question, because the controversy may be decided upon the issue of districts-in-proportion-to-inhabitants.1awph頻.n鑤

Population Census. According to the Constitution, "the Congress shall by law, make an apportionment

(of Members of the House) within three years after the return of every enumeration, and not otherwise." It is admitted that the bill, which later became Republic Act 3040, was based upon a report submitted to the President by the Director of the Census on November 23, 1960. It reads:

· I have the honor to submit herewith a preliminary count of the population of the Philippines as a result of the population enumeration which has just been completed. This is a report on the total number of inhabitants in this country and does not include the population characteristics. It is the result of a hand tally and may be subject to revision when all the population schedules shall have been processed mechanically.

· The Census of Population is the first of a series of four censuses which include housing, agriculture and economics in addition to population. These four censuses together constitute what is known as the Census of 1960. Like population, the housing and agricultural censuses are undergoing processing, while the economic census is now under preparation.

· Until the final report is made, these figures should be considered as official for all purposes.

Petitioners maintain that the apportionment could not legally rest on this report since it is merely "preliminary" and "may be subject to revision." On the other hand, respondents point out that the above letter says the report should be considered "official for all purposes." They also point out that the ascertainment of what constitutes a return of an enumeration is a matter for Congress action. This issue does not clearly favor petitioners, because there are authorities sustaining the view that although not final, and still subject to correction, a census enumeration may be considered official, in the sense that Governmental action may be based thereon even in matters of apportionment of legislative districts (Cahill vs. Leopold [Conn.] 108 Atl. 2d 818). (See also Elliott vs. State, 1 Pac. 2d 370; Ervin vs. State, 44 S.W. 2d 380; Herndon vs. Excise Board, 295 Pac. 223; Holcomb vs. Spikes, 232 S.W. 891.)

Apportionment of Members. The Constitution directs that the one hundred twenty Members of the House of Representatives "shall be apportioned among the several provinces as nearly as may be according to the member of their respective inhabitants." In our resolution on August 23, we held that this provision was violated by Republic Act 3040 because (a) it gave Cebu seven members, while Rizal with a bigger number of inhabitants got four only; (b) it gave Manila four members, while Cotabato with a bigger population got three only; (c) Pangasinan with less inhabitants than both Manila and Cotabato got more than both, five members having been assigned to it; (d) Samar (with 871,857) was allotted four members while Davao with 903,224 got three only; (e) Bulacan with 557,691 got two only, while Albay with less inhabitants (515,691) got three, and (f) Misamis Oriental with 387,839 was given one member only, while Cavite with less inhabitants (379,904) got two. These were not the only instances of unequal apportionment. We see that Mountain Province has 3 whereas Isabela, Laguna and Cagayan with more inhabitants have 2 each. And then, Capiz, La Union and Ilocos Norte got 2 each, whereas Sulu that has more inhabitants got 1 only. And Leyte with 967,323 inhabitants got 4 only, whereas Iloilo with less inhabitants (966,145) was given 5.

Such disproportion of representation has been held sufficient to avoid apportionment laws enacted in States having Constitutional provisions similar to ours. For instance, in Massachusetts, the Constitution required division "into representative district . . . equally, as nearly as may be, according to the relative number of legal voters in the several districts." The Supreme Judicial Court of that state found this provision violated by an allotment that gave 3 representatives to 7,946 voters and only 2 representatives to 8,618 voters, and further gave two representatives to 4,854 voters and one representative to 5,598 voters. Justice Rugg said:

· It is not an approximation to equality to allot three representatives to 7,946 voters, and only two representatives to 8,618 voters, and to allot two representatives to 4,854 voters, and one representative to 5,596 voters. . . .

· Whenever this kind of inequality of apportionment has been before the courts, it has been held to be contrary to the Constitution. It has been said to be "arbitrary and capricious and against the vital principle of equality." Houghton County v. Blacker, 92 Mich. 638, 647, 653; 16 LRA 432, 52 N.W. 951; Giddings vs. Blacken, 93 Mich. 1, 13, 16 LRA 402, 52 N.W. 944; Barker v. State, 133 Ind. 178, 197, 18 LRA 567, 32 NE 836, 33 NE 119; Denney v. State, 144 Ind. 503, 535, 31 LRA 726, 42 N. E. 929.

Other cases along the same line upholding the same view are these:

· 1. Stiglitz v. Schardien, supra, wherein twelve districts entitled to but six were given twelve representatives, and twelve districts given twelve only were actually entitled to twenty-two.

· 2. Jones v. Freeman, supra, wherein districts entitled to only 3 senators were given 7, and districts entitled to 15 were assigned seven only.

It is argued in the motion to reconsider, that since Republic Act 3040 improves existing conditions, this Court could perhaps, in the exercise of judicial statesmanship, consider the question involved as purely political and therefore non-justiciable. The overwhelming weight of authority is that district apportionment laws are subject to review by the courts.

· The constitutionality of a legislative apportionment act is a judicial question, and not one which the court cannot consider on the ground that it is a political question. (Parker v. State ex rel. Powell, 18 L.R.A. 567, 133 Ind. 178, 32 N.E. 836; State ex rel. Morris v. Wrightson, 22 L.R.A. 548, 56 N.J.L. 126, 28 Atl. 56; Harmison v. Ballot Comrs. 42 L.R.A. 591, 45 W. Va. 179, 31 S. E. 394)

· It is well settled that the passage of apportionment acts is not so exclusively within the political power of the legislature as to preclude a court from inquiring into their constitutionality when the question is properly brought before it. (Indiana-Parker v. Powell (1882) 133 Ind. 178, 18 L.R.A. 567, 32 N. E. 836, 33 N. E. 119; Denney v. State (1896) 144 Ind. 503; 31 L.R.A. 726, 42 N. E. 929; Marion County v. Jewett (1915) 184 Ind. 63, 110 N. E. 553.) (Kentucky-Ragland v. Anderson (1907) 125 Ky 141, 128 Am. St. Rep. 242, 100 S. W. 865.) (Massachusetts-Atty. Gen. v. Suffolk County Apportionment Comrs., etc.)

It may be added in this connection, that the mere impact of the suit upon the political situation does not render it political instead of judicial. (Lamb v. Cunningham, 17 L.R.A. 145, 83 Wis. 90.) .

The alleged circumstance that this statute improves the present set-up constitutes no excuse for approving a transgression of constitutional limitations, because the end does not justify the means. Furthermore, there is no reason to doubt that, aware of the existing inequality of representation, and impelled by its sense of duty, Congress will opportunely approve remedial legislation in accord with the precepts of the Constitution.

Needless to say, equality of representation3 in the Legislature being such an essential feature of republican institutions, and affecting so many lives, the judiciary may not with a clear conscience stand by to give free hand to the discretion of the political departments of the Government. Cases are numerous wherein courts intervened upon proof of violation of the constitutional principle of equality of representation.

· An injunction to prevent the secretary of state from issuing notices of election under an

unconstitutional apportionment act gerry-mandering the state is not a usurpation of authority by the court, on the ground that the question is a political one, but the constitutionality of the act is purely a judicial question. (State ex rel. Adams County v. Cunningham, 15 L.R.A. 561, 81 Wis. 440, 51 N.W. 724.)

· The fact that the action may have a political effect, and in that sense effect a political object, does not make the questions involved in a suit to declare the unconstitutionality of an apportionment act political instead of judicial. (State ex rel. Lamb v. Cunningham, 17 L.R.A. 145, 83 Wis. 90, 53 N.W. 48.)

· An unconstitutional apportionment law may be declared void by the courts, notwithstanding the fact that such statute is an exercise of political power. (Denney vs. State ex rel. Basler, 31 L.R.A. 726, 144 Ind. 503, 42 N.E. 929.)

· The constitutionality of a statute forming a delegate district or apportioning delegates for the house of delegates is a judicial question for the courts, although the statute is an exercise of political power. (Harmison v. Ballot Comrs. 42 L.R.A. 591, 45 W. Va. 179, 31 S. E. 394.) [3 L.R.A. Digest, p. 2737.)

Conclusion. For all the foregoing, we hereby reiterate our resolution declaring that Republic Act 3040 infringed the provisions of the Constitution and is therefore void.

Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, De Leon and Natividad, JJ., concur.Bautista Angelo, J., is on leave.

Footnotes

· 1". . . Provided, That in the case of Acts of the Philippine Commission or the Philippine Legislature when there is in existence a copy signed by the presiding officers and the secretaries of said bodies, it shall be conclusive proof of the provisions of such Act and of the due enactment thereof." (Emphasis supplied)

· 2;To prevent fraud, trickery, deceit and subterfuge in the enactment of bills (59 Corpus Juris 54).

· 3"lies at the foundation of representative government" (18 Am. Jur. 192).

EN BANC

IN THE MATTER OF THE PETITION

FOR DISQUALIFICATION OF

TESS DUMPIT-MICHELENA,


Petitioner,

- versus -

CARLOS BOADO,

FERNANDO CALONGE,

SALVADOR CARRERA,

BENITO CARRERA,

DOMINGO CARRERA, and

ROGELIO DE VERA,

Respondents.

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

IN THE MATTER OF THE PETITION

TO DENY DUE COURSE OR

TO CANCEL CERTIFICATE

OF CANDIDACY FOR MAYOR,


Petitioner,

- versus -

CARLOS BOADO,

FERNANDO CALONGE,

SALVADOR CARRERA,

BENITO CARRERA,

DOMINGO CARRERA, and

ROGELIO DE VERA,

Respondents.G.R. Nos. 163619-20

Present:

Davide, Jr., C.J.,

Puno,

Panganiban,

Quisumbing,

Ynares-Santiago,

Sandoval-Gutierrez,

Carpio,

Austria-Martinez,

Corona,

Carpio Morales,

Callejo, Sr.,

Azcuna,

Tinga,

Chico-Nazario, and

Garcia, JJ.

Promulgated:

November 17, 2005 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO, J.:

The Cases

Before this Court is a petition for certiorari[1] assailing the 9 March 2004 Resolution[2] of the

Commission on Elections (COMELEC) Second Division and the 7 May 2004 Resolution[3] of the

COMELEC En Banc in SPA 04-015[4] and SPA 04-016.[5]

The COMELEC Second Division cancelled the certificate of candidacy of Tess Dumpit-Michelena

(Dumpit-Michelena) on the ground of material misrepresentation. The COMELEC En Banc denied

Dumpit-Michelenas motion for reconsideration for late filing.

The Antecedent Facts

Dumpit-Michelena was a candidate for the position of mayor in the municipality of Agoo, La Union

during the 10 May 2004 Synchronized National and Local Elections. Engineer Carlos Boado, Rogelio

L. De Vera, Fernando Calonge, Benito Carrera, Salvador Carrera and Domingo Carrera (Boado, et al.)

sought Dumpit-Michelenas disqualification and the denial or cancellation of her certificate of

candidacy on the ground of material misrepresentation under Sections 74[6] and 78[7] of Batas

Pambansa Blg. 881 (Omnibus Election Code).

Boado, et al. alleged that Dumpit-Michelena, the daughter of Congressman Tomas Dumpit, Sr. (Congressman Dumpit) of the Second District of La Union, is not a resident of Agoo, La Union. Boado, et al. claimed that Dumpit-Michelena is a resident and was a registered voter of Naguilian, La Union and that Dumpit-Michelena only transferred her registration as voter to San Julian West, Agoo, La Union on 24 October 2003. Her presence in San Julian West, Agoo, La Union was noticed only after she filed her certificate of candidacy. Boado, et al. presented, among other things, a joint affidavit of all barangay officials of San Julian West to prove that Dumpit-Michelena is not a resident of the barangay.

Dumpit-Michelena countered that she already acquired a new domicile in San Julian West when she

purchased from her father, Congressman Dumpit, a residential lot on 19 April 2003. She even

designated one Gardo Fontanilla as a caretaker of her residential house. Dumpit-Michelena presented

the affidavits and certifications of her neighbors in San Julian West to prove that she actually resides in

the area.

The Ruling of the COMELEC

In a Resolution issued on 9 March 2004, the COMELEC Second Division ruled, as follows:

WHEREFORE, premises considered, the instant petitions are hereby GRANTED. Respondent is hereby adjudged to be a non-resident of Brgy. San Julian West, Agoo, La Union for purposes of the May 10, 2004 synchronized national and local elections. Accordingly, her Certificate of Candidacy is hereby CANCELLED on the ground of material misrepresentation under Sections 78 and 74 of the Omnibus Election Code, as amended, in relation to Comelec Resolution No. 6452.

SO ORDERED.[8]

The COMELEC Second Division held that Boado, et al. established by convincing evidence that Dumpit-Michelena is not a bona fide resident of San Julian West, Agoo, La Union. The COMELEC Second Division found that among the neighbors of Dumpit-Michelena who executed affidavits in her favor, only one is a resident of San Julian West. The others are from other barangays of Agoo, La Union. The COMELEC Second Division noted that several affiants who declared that Dumpit-Michelena resides in San Julian West later retracted their statements on the ground that they did not read the contents of the documents when they signed the affidavits.

Dumpit-Michelena moved for the reconsideration of the Resolution of the COMELEC Second Division.

In a Resolution issued on 7 May 2004, the COMELEC En Banc denied Dumpit-Michelenas motion for reconsideration. The COMELEC En Banc ruled that the motion for reconsideration was filed three days after the last day of the prescribed period for filing the motion.

Hence, the present recourse by Dumpit-Michelena.

The Issues

The issues raised in the petition are the following:

1. Whether Dumpit-Michelenas motion for reconsideration was filed on time;

2. Whether Dumpit-Michelena was denied due process of law; and

3. Whether Dumpit-Michelena satisfied the residency requirement under the Local Government Code of 1991.


The petition is partly meritorious.

On Timeliness of the Motion for Reconsideration

We rule that the COMELEC En Banc committed grave abuse of discretion in denying Dumpit-

Michelenas motion for reconsideration for late filing.

Resolution No. 6452[9] provides:

SECTION 8. Motion for Reconsideration. - A motion to reconsider a decision, resolution, order or ruling of a division shall be filed within three (3) days from the promulgation thereof. Such motion, if not pro-forma, suspends the execution for implementation of the decision, resolution, order and ruling.

Within twenty-four (24) hours from the filing thereof, the Clerk of the Commission shall notify the Presiding Commissioner. The latter shall, within two (2) days thereafter, certify the case to the Commission en banc.

The Clerk of the Commission shall calendar the motion for reconsideration for the resolution of the Commission en banc within three (3) days from the certification thereof.

In this case, the Resolution cancelling Dumpit-Michelenas Certificate of Candidacy was promulgated

in open court on 9 March 2004. Dumpit-Michelenas counsel was present during the promulgation.

Following Section 8 of Resolution No. 6452, Dumpit-Michelena had until 12 March 2004 within

which to file her motion for reconsideration. However, while Dumpit-Michelena claims to be familiar

with Resolution No. 6452, she filed her motion for reconsideration on 15 March 2004. This is because

during the promulgation of the cases on 9 March 2004, the COMELEC Second Division issued an

Order[10] which states:

On call of these cases today for promulgation, counsels for the respondent appeared. There was no appearance for the petitioners. Counsel manifested that they filed a manifestation and motion and an urgent motion holding in abeyance the promulgation of the resolution of these cases. The motions to hold in abeyance the promulgation is hereby denied. However, the respondent may file a motion for reconsideration within five (5) days from receipt of the decision if the decision is adverse to their client. (Emphasis supplied)

Apparently, the COMELEC committed an oversight in declaring that Dumpit-Michelena had five days

within which to file her motion for reconsideration. The COMELEC overlooked Resolution No. 6452.

For her part, Dumpit-Michelena only followed the period provided in the Order. She filed her motion

for reconsideration on 15 March 2004 since 14 March 2004 fell on a Sunday. This Court can hardly

fault her for following the COMELEC Order.

On Denial of Due Process

Dumpit-Michelena asserts that she was denied due process when the COMELEC summarily resolved

the disqualification case against her without giving her a fair opportunity to submit additional evidence

to support her case.

Resolution No. 6452 delegates the reception of evidence in disqualification cases to field officials designated by the COMELEC.[11] The summary nature of disqualification proceedings is provided under Section 5(A)(6) of Resolution No. 6452 which states:

6. The proceeding shall be summary in nature. In lieu of the testimonies, the parties shall submit their affidavits or counter-affidavits and other documentary evidence including their position paper or memorandum within a period of three (3) inextendible days;

The position paper or memorandum of each party shall contain the following:

a. A Statement of the Case, which is a clear and concise statement of the nature of the action, a summary of the documentary evidence and other matters necessary to an understanding of the nature of the controversy;

b. A Statement of the Issues, which is a clear and concise statement of the issues;

c. The Argument which is a clear and concise presentation of the argument in support of each issue; and

d. The Relief which is a specification of the judgment which the party seeks to obtain. The issues raised in his/its pleadings but not included in the Memorandum shall be deemed waived or abandoned. Being a summation of the parties pleadings and documentary evidence, the Commission may consider the memorandum alone in deciding or resolving the petition.

In these cases, Dumpit-Michelena filed a motion for the inhibition of Atty. Marino V. Salas (Atty. Salas), the Provincial Election Supervisor and hearing officer designated to receive the evidence of the parties. She alleged that Boado, et al.s counsel was the former Regional Director of the COMELEC Regional Office and undue influence might be exerted over Atty. Salas. In the meanwhile, she submitted a semblance of a memorandum if only to insure x x x that she would be able to convey her opposition to the petitions filed against her.[12] Dumpit-Michelena alleged that she wanted to submit her evidence to a hearing officer who would not be biased and would not be inclined to side with Boado, et al.

Without resolving the Motion to Inhibit, Atty. Salas forwarded the records of the case to COMELEC Manila. However, to obviate suspicion of partiality, Atty. Salas did not make any recommendation as required under Resolution No. 6452.

We rule that there was no denial of due process in the cases before the Court.

Section 5(A) of Resolution No. 6452 provides:

7. The hearing must be completed within ten (10) days from the date of the filing of the answer. The Hearing Officer concerned shall personally or through his authorized representative submit to the Clerk of the Commission his Hearing/Case report(s) indicating his findings and recommendations within five (5) days from the completion of the hearing and reception of evidence together with the complete records of the case;

8. Upon receipt of the records of the case [indicating] the findings and recommendations of the Hearing Officer concerned, the Clerk of the Commission shall immediately docket the case consecutively and calendar the same for raffle to a division;

9. The division to whom the case is raffled shall, after evaluation and consultation, assign immediately the same to a member who shall pen the decision within five (5) days from the date of consultation.

Resolution No. 6452 is clear. The hearing officer is only designated to hear and receive evidence. His

conclusions are merely recommendatory upon the COMELEC. Dumpit-Michelena knew fully well that

the entire records of the case would be forwarded to COMELEC Manila for the resolution of the cases.

She had all the opportunity to present her evidence to support her stand. Instead, she chose to file a

Memorandum which she described as one done in half-hearted compliance with the rules.[13] She

may not claim now that she was denied due process because she was unable to present all her evidence

before the hearing officer.

On Residency Requirement

Dumpit-Michelena failed to prove that she has complied with the residency requirement.

Section 65 of the Omnibus Election Code provides that the qualifications for elective provincial, city,

municipal and barangay officials shall be those provided for in the Local Government Code. Section 39(a) of the Local Government Code of 1991[14] states:

SEC. 39. Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panglungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (Emphasis supplied)

The concept of residence in determining a candidates qualification is already a settled matter. For election purposes, residence is used synonymously with domicile.[15] In Co v. Electoral Tribunal of the House of Representatives,[16] this Court declared:

x x x The term residence has been understood as synonymous with domicile not only under the previous Constitutions but also under the 1987 Constitution.

The deliberations of the Constitutional Commission reveal that the meaning of residence vis-a-vis the qualifications of a candidate for congress continues to remain the same as that of domicile, to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of the elections. So my question is: What is the committees concept of residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile or constructive residence?

Mr. Davide: Madame President, insofar as the regular members of the National Assembly are concerned, the proposed section merely provides, among others, and a resident thereof, that is, in the district, for a period of not less than one year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the interpretation given to it was domicile. (Records of the 1987 Constitutional Convention, Vol. II, July 22, 1986, p. 87)

x x x

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised the same point that resident has been interpreted at times as a matter of intention rather than actual residence.

Mr. Delos Reyes: Domicile.

M[r]s. Rosario Braid: Yes, So, would the gentlemen consider at the proper time to go back to actual residence rather than mere intention to reside?

Mr. Delos Reyes: But we might encounter some difficulty especially considering that a provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept that it should be by domicile and not physical and actual residence. (Records of the 1987 Constitutional Commission, Vol. II, July 22, 1986, p. 110)

The framers of the Constitution adhered to the earlier definition given to the word residence which regarded it as having the same meaning as domicile.

Prior to her transfer, Dumpit-Michelena was a resident and registered voter of Ambaracao North, Naguilian, La Union. She claims that she has already acquired a new domicile in San Julian West and is thus qualified to run for the position of mayor. She transferred her registration as a voter of San Julian West on 24 October 2003.

Dumpit-Michelena presented a Deed of Sale dated 19 April 2003 showing her acquisition of a parcel of land in San Julian West where she eventually built a house. However, property ownership is not indicia of the right to vote or to be voted for an office.[17] Further, domicile of origin is not easily lost.[18] To successfully effect a change of domicile, there must be concurrence of the following requirements:

(1) an actual removal or an actual change of domicile;

(2) a bona fide intention of abandoning the former place of residence and establishing a new

one; and

(3) acts which correspond with the purpose.[19]

Without clear and positive proof of the concurrence of these three requirements, the domicile of origin continues.[20] To effect change, there must be animus manendi coupled with animus non revertendi.[21] The intent to remain in the new 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.[22]

The Court agrees with the COMELEC Second Division that Dumpit-Michelena failed to establish that she has abandoned her former domicile. Among the documents submitted by Dumpit-Michelena is a Special Power of Attorney[23] authorizing Clyde Crispino (Crispino) to apply, facilitate and follow up the issuance of a building permit of the beach house she intended to put up in her lot. She also authorized Crispino to help her caretaker oversee the lot and the construction of the beach house. As correctly pointed out by the COMELEC Second Division, a beach house is at most a place of temporary relaxation. It can hardly be considered a place of residence.

In addition, the designation of caretaker with monthly compensation of P2,500[24] only shows that Dumpit-Michelena does not regularly reside in the place. The Deed of Absolute Sale states that Dumpit-Michelena is a resident of Naguilian, La Union[25] while the Special Power of Attorney states that she is a resident of San Julian West, Agoo, La Union and No. 6 Butterfly St. Valle Verde 6, Pasig, Metro Manila. Dumpit-Michelena obviously has a number of residences and the acquisition of another one does not automatically make the most recently acquired residence her new domicile.

We considered the affidavits submitted by Dumpit-Michelena where the affiants retracted their previous affidavits stating that Dumpit-Michelena was not a resident of San Julian West. The affiants alleged that they signed the first affidavits without knowing their contents. However, the COMELEC Second Division pointed out that Boado, et al. also submitted affidavits with the affiants repudiating their previous affidavits that Dumpit-Michelena was a resident of San Julian West. The Court is inclined to give more weight to the joint affidavit of all the barangay officials of San Julian West attesting that Dumpit-Michelena is not a resident of their barangay.

Hence, the COMELEC Second Division did not commit grave abuse of discretion in cancelling Dumpit-Michelenas Certificate of Candidacy.

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution dated 9 March 2004 of the COMELEC Second Division and the Resolution dated 7 May 2004 of the COMELEC En Banc with MODIFICATION that Tess Dumpit-Michelenas motion for reconsideration was not filed late.

1.2SO ORDERED.

ANTONIO T. CARPIOAssociate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

2Chief Justice

2.1.1REYNATO S. PUNOAssociate Justice


Associate Justice

LEONARDO A. QUISUMBING

Associate Justice

CONSUELO YNARES-SANTIAGO

Associate JusticeANGELINA SANDOVAL-GUTIERREZ

3Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA

3.1Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

ROMEO J. CALLEJO, SR.

Associate Justice

ADOLFO S. AZCUNA

Associate Justice

DANTE O. TINGA

Associate Justice

MINITA V. CHICO-NAZARIO

Associate Justice

CANCIO C. GARCIAAssociate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

HILARIO G. DAVIDE, JR.Chief Justice

[1] Denominated by petitioner as Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure.

[2] Signed by Presiding Commissioner Mehol K. Sadain, Commissioners Florentino A. Tuason, Jr. and Manuel A. Barcelona, Jr. Rollo, pp. 29-43.

[3] Signed by COMELEC Chairman Benjamin S. Abalos, Sr., Commissioners Rufino S.B. Javier, Mehol K. Sadain, Resurreccion Z. Borra, Florentino A. Tuason, Jr., Virgilio O. Garcillano and Manuel A. Barcelona, Jr. Rollo, pp. 271-279.

[4] In the Matter of the Petition for Disqualification of Tess Dumpit-Michelena as Candidate for Mayor of Agoo, La Union. Carlos Boado, et al. v. Tess Dumpit-Michelena.

[5] In the Matter of the Petition to Deny Due Course to or Cancel Certificate of Candidacy of Tess

Dumpit-Michelena as Candidate for Mayor of Agoo, La Union. Carlos Boado, et al. v. Tess Dumpit-Michelena.

[6] Section 74 enumerates the contents of certificates of candidacy which include the place of the candidates residence.

[7] Under Section 78, any person may file a verified petition to deny due course to or cancel a certificate of candidacy exclusively on the ground that any material representation contained therein as required under Section 74 is false.

[8] Rollo, p. 43.

[9] Rules Delegating to COMELEC Field Officials the Hearing and Reception of Evidence of Disqualification Cases Filed in Connection with the May 10, 2004 National and Local Elections; Motu Proprio Actions and Disposition of Disqualification Cases (10 December 2003).

[10] Signed by Presiding Commissioner Mehol K. Sadain. Rollo, pp. 44-45.

[11] Section 1, Resolution No. 6452.

[12] Rollo, p. 13.

[13] Ibid., p. 21.

[14] Republic Act No. 7160.

[15] Romualdez-Marcos v. Commission on Elections, G.R. No. 119976, 18 September 1995, 248 SCRA 300.

[16] G.R. Nos. 92191-92, 30 July 1991, 199 SCRA 692.

[17] Aquino v. Commission on Elections, G.R. No. 120265, 18 September 1995, 248 SCRA 400.

[18] Romualdez-Marcos v. Commission on Elections, supra note 15.

[19] Ibid.

[20] Aquino v. Commission on Elections, supra note 17.

[21] Domino v. COMELEC, 369 Phil. 798 (1999).

[22] Ibid.

[23] Rollo, p. 83.

[24] Per a Letter dated 19 April 2003 submitted by Dumpit-Michelena as part of her evidence. COMELEC Resolution of 9 March 2004, Rollo, p. 33

[25] Rollo, p. 82.


EN BANC G.R. No. 73155 July 11, 1986

PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO HILADO, VIRGILIO GASTON, CONCHITA MINAYA, TERESITA ESTACIO, DESIDERIO DEFERIA, ROMEO GAMBOA, ALBERTO LACSON, FE HOFILENA, EMILY JISON, NIEVES LOPEZ AND CECILIA MAGSAYSAY, petitioners, vs.THE COMMISSION ON ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS OCCIDENTAL, respondents.

Gamboa & Hofile 馻 Law Office for petitioners.

ALAMPAY, J.:

Prompted by the enactment of Batas Pambansa Blg. 885-An Act Creating a New Province in the Island of Negros to be known as the Province of Negros del Norte, which took effect on December 3, 1985, Petitioners herein, who are residents of the Province of Negros Occidental, in the various cities and municipalities therein, on December 23, 1985, filed with this Court a case for Prohibition for the purpose of stopping respondents Commission on Elections from conducting the plebiscite which, pursuant to and in implementation of the aforesaid law, was scheduled for January 3, 1986. Said law provides:

· SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby separated from the province to be known as the Province of Negros del Norte.

· SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south and the territorial limits of the northern portion to the Island of Negros on the west, north and east, comprising a territory of 4,019.95 square kilometers more or less.

· SEC. 3. The seat of government of the new province shall be the City of Cadiz.

· SEC. 4. A plebiscite shall be conducted in the proposed new province which are the areas affected within a period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a majority of the votes cast in such plebiscite, the President of the Philippines shall appoint the first officials of the province.

· SEC. 5. The Commission on Elections shall conduct and supervise the plebiscite herein provided, the expenses for which shall be charged to local funds.

· SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp. 23-24)

· Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it is not in complete accord with the Local Government Code as in Article XI, Section 3 of our Constitution, it is expressly mandated that

· See. 3. No province, city, municipality or barrio may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or units affected.

Section 197 of the Local Government Code enumerates the conditions which must exist to provide the legal basis for the creation of a provincial unit and these requisites are:

· SEC. 197. Requisites for Creation. A province may be created if it has a territory of at least three thousand five hundred square kilometers, a population of at least five hundred thousand persons, an average estimated annual income, as certified by the Ministry of Finance, of not less than ten million pesos for the last three consecutive years, and its creation shall not reduce the population and income of the mother province or provinces at the time of said creation to less than the minimum requirements under this section. The territory need not be contiguous if it comprises two or more islands.

· The average estimated annual income shall include the income alloted for both the general and infrastructural funds, exclusive of trust funds, transfers and nonrecurring income. (Rollo, p. 6)

Due to the constraints brought about by the supervening Christmas holidays during which the Court was in recess and unable to timely consider the petition, a supplemental pleading was filed by petitioners on January 4, 1986, averring therein that the plebiscite sought to be restrained by them was held on January 3, 1986 as scheduled but that there are still serious issues raised in the instant case affecting the legality, constitutionality and validity of such exercise which should properly be passed upon and resolved by this Court.

The plebiscite was confined only to the inhabitants of the territory of Negros del Nrte, namely: the Cities of Silay, Cadiz, and San Carlos, and the municipalities of� Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.B. Magalona and Don Salvador Benedicto. Because of the exclusions of the voters from the rest of the province of Negros Occidental, petitioners found need to change the prayer of their petition "to the end that the constitutional issues which they have raised in the action will be ventilated and given final resolution.'"At the same time, they asked that the effects of the plebiscite which they sought to stop be suspended until the Supreme Court shall have rendered its decision on the very fundamental and far-reaching questions that petitioners have brought out.

Acknowledging in their supplemental petition that supervening events rendered moot the prayer in their initial petition that the plebiscite scheduled for January 3, 1986, be enjoined, petitioners plead, nevertheless, that-

· ... a writ of Prohibition be issued, directed to Respondent Commission on Elections to desist from issuing official proclamation of the results of the plebiscite held on January 3, 1986.

· Finding that the exclusion and non-participation of the voters of the Province of Negros Occidental other than those living within the territory of the new province of Negros del Norte to be not in accordance with the Constitution, that a writ of mandamus be issued, directed to the respondent Commission on Elections, to schedule the holding of another plebiscite at which all the qualified voters of the entire Province of Negros Occidental as now existing shall participate, at the same time making pronouncement that the plebiscite held on January 3, 1986 has no legal effect, being a patent legal nullity;

· And that a similar writ of Prohibition be issued, directed to the respondent Provincial Treasurer, to desist from ordering the release of any local funds to answer for expenses incurred in the holding of such plebiscite until ordered by the Court. (Rollo pp. 9-10).

· Petitioners further prayed that the respondent COMELEC hold in abeyance the issuance of any official proclamation of the results of the aforestated plebiscite.

During the pendency of this case, a motion that he be allowed to appear as amicus curiae in this case (dated December 27, 1985 and filed with the Court on January 2, 1986) was submitted by former Senator Ambrosio Padilla. Said motion was granted in Our resolution of January 2, 1986.

Acting on the petition, as well as on the supplemental petition for prohibition with preliminary injunction with prayer for restraining order, the Court, on January 7, 1986 resolved, without giving due course to the same, to require respondents to comment, not to file a motion to dismiss. Complying with said resolution, public respondents, represented by the Office of the Solicitor General, on January 14, 1986, filed their Comment, arguing therein that the challenged statute.-Batas Pambansa 885, should be accorded the presumption of legality. They submit that the said law is not void on its face and that the petition does not show a clear, categorical and undeniable demonstration of the supposed infringement of the Constitution. Respondents state that the powers of the Batasang-Pambansa to enact the assailed law is beyond question. They claim that Batas Pambansa Big. 885 does not infringe the Constitution because the requisites of the Local Government Code have been complied with. Furthermore, they submit that this case has now become moot and academic with the proclamation of the new Province of Negros del Norte.

Respondents argue that the remaining cities and municipalities of the Province of Negros Occidental not included in the area of the new Province of Negros del Norte, de not fall within the meaning and scope of the term "unit or units affected", as referred to in Section 3 of Art. XI of our Constitution. On this reasoning, respondents maintain that Batas Pambansa Blg. 885 does not violate the Constitution, invoking and citing the case of Governor Zosimo Paredes versus the Honorable Executive Secretary to the President, et al. (G.R. No. 55628, March 2, 1984 (128 SCRA 61), particularly the pronouncements therein, hereunder quoted:

· 1. Admittedly,this is one of those cases where the discretion of the Court is allowed considerable leeway. There is indeed an element of ambiguity in the use of the expression 'unit or units affected'. It is plausible to assert as petitioners do that when certain Barangays are separated from a parent municipality to form a new one, all the voters therein are affected. It is much more persuasive, however, to contend as respondents do that the acceptable construction is for those voters, who are not from the barangays to be separated, should be excluded in the plebiscite.

· 2. For one thing, it is in accordance with the settled doctrine that between two possible constructions, one avoiding a finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That which will save, not that which will destroy, commends itself for acceptance. After all, the basic presumption all these years is one of validity. ...

· 3. ... Adherence to such philosophy compels the conclusion that when there are indications that the inhabitants of several barangays are inclined to separate from a parent municipality they should be allowed to do so. What is more logical than to ascertain their will in a plebiscite called for that purpose. It is they, and they alone, who shall constitute the new unit. New responsibilities will be assumed. New burdens will be imposed. A new municipal corporation will come into existence. Its birth will be a matter of choice-their choice. They should be left alone then to decide for themselves. To allow other voters to participate will not yield a true expression of their will. They may even frustrate it, That certainly will be so if they vote against it for selfish reasons, and they constitute the majority. That is not to abide by the fundamental principle of the Constitution to promote local autonomy, the preference being for smaller units. To rule as this Tribunal does is to follow an accepted principle of constitutional construction, that in ascertaining the meaning of a particular provision that may give rise to doubts, the intent of the framers and of the people may be gleaned from provisions in pari materia.

Respondents submit that said ruling in the aforecited case applies equally with force in the case at bar. Respondents also maintain that the requisites under the Local Government Code (P.D. 337) for the creation of the new province of Negros del Norte have all been duly complied with, Respondents discredit petitioners' allegations that the requisite area of 3,500 square kilometers as so prescribed in the Local Government Code for a new province to be created has not been satisfied. Petitioners insist that the area which would comprise the new province of Negros del Norte, would only be about 2,856.56 square kilometers and which evidently would be lesser than the minimum area prescribed by the governing statute. Respondents, in this regard, point out and stress that Section 2 of Batas Pambansa Blg. 885 creating said new province plainly declares that the territorial boundaries of Negros del Norte comprise an area of 4,019.95 square kilometers, more or less.

As a final argument, respondents insist that instant petition has been rendered moot and academic considering that a plebiscite has been already conducted on January 3, 1986; that as a result thereof, the corresponding certificate of canvass indicated that out of 195,134 total votes cast in said plebiscite, 164,734 were in favor of the creation of Negros del Norte and 30,400 were against it; and because "the affirmative votes cast represented a majority of the total votes cast in said plebiscite, the Chairman of the Board of Canvassers proclaimed the new province which shall be known as "Negros del Norte". Thus, respondents stress the fact that following the proclamation of Negros del Norte province, the appointments of the officials of said province created were announced. On these considerations, respondents urge that this case should be dismissed for having been rendered moot and academic as the creation of the new province is now a "fait accompli."

In resolving this case, it will be useful to note and emphasize the facts which appear to be agreed to by the parties herein or stand unchallenged.

Firstly, there is no disagreement that the Provincial Treasurer of the Province of Negros Occidental has not disbursed, nor was required to disburse any public funds in connection with the plebiscite held on January 3, 1986 as so disclosed in the Comment to the Petition filed by the respondent Provincial Treasurer of Negros Occidental dated January 20, 1986 (Rollo, pp. 36-37). Thus, the prayer of the petitioners that said Provincial Treasurer be directed by this Court to desist from ordering the release of any public funds on account of such plebiscite should not longer deserve further consideration.

Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Batas Pambansa Blg. 885 and the creation of the new Province of Negros del Norte, it expressly declared in Sec. 2 of the aforementioned Parliamentary Bill, the following:

· SEC. 2. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the South and the natural boundaries of the northern portion of the Island of Negros on the West, North and East, containing an area of 285,656 hectares more or less. (Emphasis supplied).

However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas Pambansa Blg. 885, the boundaries of the new Province of Negros del Norte were defined therein and its boundaries then stated to be as follows:

· SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of Calatrava, Toboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby separated from the Province of Negros Occidental and constituted into a new province to be known as the Province of Negros del Norte.

· SEC. 1. The boundaries of the new province shall be the southern limits of the City of Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south and the territorial limits of the northern portion of the Island of Negros on the West, North and East, comprising a territory of 4,019.95 square kilometers more or less.

Equally accepted by the parties is the fact that under the certification issued by Provincial Treasurer Julian L. Ramirez of the Province of Negros Occidental, dated July 16, 1985, it was therein certified as follows:

· xxx xxx xxx

· This is to certify that the following cities and municipalities of Negros Occidental have the land area as indicated hereunder based on the Special Report No. 3, Philippines 1980, Population, Land Area and Density: 1970, 1975 and 1980 by the National Census and Statistics Office, Manila.

· Land Area

· (Sq. Km.)

· 1. Silay City ...................................................................214.8

· 2. E.B. Magalona............................................................113.3

· 3. Victorias.....................................................................133.9

· 4. Manapla......................................................................112.9

· 5. Cadiz City ..................................................................516.5

· 6. Sagay .........................................................................389.6

· 7. Escalante ....................................................................124.0

· 8. Toboso.......................................................................123.4

· 9. Calatrava.....................................................................504.5

· 10. San Carlos City...........................................................451.3

· 11. Don Salvador Benedicto.................................... (not available)

· This certification is issued upon the request of Dr. Patricio Y. Tan for whatever purpose it may serve him.

· (SGD.) JULIAN L. RAMIREZ

· Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).

Although in the above certification it is stated that the land area of the relatively new municipality of Don Salvador Benedicto is not available, it is an uncontradicted fact that the area comprising Don Salvador municipality, one of the component units of the new province, was derived from the City of San Carlos and from the Municipality of Calatrava, Negros Occidental, and added thereto was a portion of about one-fourth the land area of the town of Murcia, Negros Occidental. It is significant to note the uncontroverted submission of petitioners that the total land area of the entire municipality of Murcia, Negros Occidental is only 322.9 square kilometers (Exh. "D", Rollo, p. 91). One-fourth of this total land area of Murcia that was added to the portions derived from the land area of Calatrava, Negros Occidental and San Carlos City (Negros Occidental) would constitute, therefore, only 80.2 square kilometers. This area of 80.2 square kilometers if then added to 2,685.2 square kilometers, representing the total land area of the Cities of Silay, San Carlos and Cadiz and the Municipalities of E.R. Magalona, Victorias, Manapla, Sagay, Escalante, Taboso and Calatrava, will result in approximately an area of only 2,765.4 square kilometers using as basis the Special Report, Philippines 1980, Population, Land Area and Density: 1970, 1975 and 1980 of the National Census and Statistics Office, Manila (see Exhibit "C", Rollo, p. 90).

No controversion has been made by respondent with respect to the allegations of petitioners that the original provision in the draft legislation, Parliamentary Bill No. 3644, reads:

· SEC. 4. A plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days from the approval of this Act. After the ratification of the creation of the Province of Negros del Norte by a majority of the votes cast in such plebiscite, the President shall appoint the first officials of the new province.

However, when Batas Pambansa Blg. 885 was enacted, there was a significant change in the above provision. The statute, as modified, provides that the requisite plebiscite "shall be conducted in the proposed new province which are the areas affected."

It is this legislative determination limiting the plebiscite exclusively to the cities and towns which would comprise the new province that is assailed by the petitioners as violative of the provisions of our Constitution. Petitioners submit that Sec. 3, ART XI thereof, contemplates a plebiscite that would be held in the unit or units affected by the creation of the new province as a result of the consequent division of and substantial alteration of the boundaries of the existing province. In this instance, the voters in the remaining areas of the province of Negros Occidental should have been allowed to participate in the questioned plebiscite.

Considering that the legality of the plebiscite itself is challenged for non-compliance with constitutional requisites, the fact that such plebiscite had been held and a new province proclaimed and its officials appointed, the case before Us cannot truly be viewed as already moot and academic. Continuation of the existence of this newly proclaimed province which petitioners strongly profess to have been illegally born, deserves to be inquired into by this Tribunal so that, if indeed, illegality attaches to its creation, the commission of that error should not provide the very excuse for perpetuation of such wrong. For this Court to yield to the respondents' urging that, as there has been fait accompli then this Court should passively accept and accede to the prevailing situation is an unacceptable suggestion. Dismissal of the instant petition, as respondents so propose is a proposition fraught with mischief. Respondents' submission will create a dangerous precedent. Should this Court decline now to perform its duty of interpreting and indicating what the law is and should be, this might tempt again those who strut about in the corridors of power to recklessly and with ulterior motives, create, merge, divide and/or alter the boundaries of political subdivisions, either brazenly or stealthily, confident that this Court will abstain from entertaining future challenges to their acts if they manage to bring about a fait accompli.

In the light of the facts and circumstances alluded to by petitioners as attending to the unusually rapid creation of the instant province of Negros del Norte after a swiftly scheduled plebiscite, this Tribunal has the duty to repudiate and discourage the commission of acts which run counter to the mandate of our fundamental law, done by whatever branch of our government. This Court gives notice that it will not look with favor upon those who may be hereafter inclined to ram through all sorts of legislative measures and then implement the same with indecent haste, even if such acts would violate the Constitution and the prevailing statutes of our land. It is illogical to ask that this Tribunal be blind and deaf to protests on the ground that what is already done is done. To such untenable argument the reply would be that, be this so, the Court, nevertheless, still has the duty and right to correct and rectify the wrong brought to its attention.

On the merits of the case.

Aside from the simpler factual issue relative to the land area of the new province of Negros del Norte, the more significant and pivotal issue in the present case revolves around in the interpretation and application in the case at bar of Article XI, Section 3 of the Constitution, which being brief and for convenience, We again quote:

· SEC. 3. No province, city, municipality or barrio may be created, divided, merged abolished, or its boundary substantially altered, except in accordance with the criteria established in the local government code, and subject to the approval by a majority of the votes in a plebiscite in the unit or units affected.

It can be plainly seen that the aforecited constitutional provision makes it imperative that there be first obtained "the approval of a majority of votes in the plebiscite in the unit or units affected" whenever a province is created, divided or merged and there is substantial alteration of the boundaries. It is thus inescapable to conclude that the boundaries of the existing province of Negros Occidental would necessarily be substantially altered by the division of its existing boundaries in order that there can be created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate than that two political units would be affected. The first would be the parent province of Negros Occidental because its boundaries would be substantially altered. The other affected entity would be composed of those in the area subtracted from the mother province to constitute the proposed province of Negros del Norte.

We find no way to reconcile the holding of a plebiscite that should conform to said constitutional requirement but eliminates the participation of either of these two component political units. No amount of rhetorical flourishes can justify exclusion of the parent province in the plebiscite because of an alleged intent on the part of the authors and implementors of the challenged statute to carry out what is claimed to be a mandate to guarantee and promote autonomy of local government units. The alleged good intentions cannot prevail and overrule the cardinal precept that what our Constitution categorically directs to be done or imposes as a requirement must first be observed, respected and complied with. No one should be allowed to pay homage to a supposed fundamental policy intended to guarantee and promote autonomy of local government units but at the same time transgress, ignore and disregard what the Constitution commands in Article XI Section 3 thereof. Respondents would be no different from one who hurries to pray at the temple but then spits at the Idol therein.

We find no merit in the submission of the respondents that the petition should be dismissed because the motive and wisdom in enacting the law may not be challenged by petitioners. The principal point raised by the petitioners is not the wisdom and motive in enacting the law but the infringement of the Constitution which is a proper subject of judicial inquiry.

Petitioners' discussion regarding the motives behind the enactment of B.P. Blg. 885 to say the least, are most enlightening and provoking but are factual issues the Court cannot properly pass upon in this case. Mention by petitioners of the unexplained changes or differences in the proposed Parliamentary Bill No. 3644 and the enacted Batas Pambansa Blg. 885; the swift and surreptitious manner of passage and approval of said law; the abrupt scheduling of the plebiscite; the reference to news articles regarding the questionable conduct of the said plebiscite held on January 3, 1986; all serve as interesting reading but are not the decisive matters which should be reckoned in the resolution of this case.

What the Court considers the only significant submissions lending a little support to respondents' case is their reliance on the rulings and pronouncements made by this Court in the case of Governor Zosimo Paredes versus The Honorable Executive Secretary to the President, et al., G.R. No. 55628, March 2, 1984 (128 SCRA 6). In said case relating to a plebiscite held to ratify the creation of a new municipality from existing barangays, this Court upheld the legality of the plebiscite which was participated in exclusively by the people of the barangay that would constitute the new municipality.

This Court is not unmindful of this solitary case alluded to by respondents. What is, however, highly significant are the prefatory statements therein stating that said case is "one of those cases where the discretion of the Court is allowed considerable leeway" and that "there is indeed an element of ambiguity in the use of the expression unit or units affected." The ruling rendered in said case was based on a claimed prerogative of the Court then to exercise its discretion on the matter. It did not resolve the question of how the pertinent provision of the Constitution should be correctly interpreted.

The ruling in the aforestated case of Paredes vs. The Honorable Executive Secretary, et al. (supra) should not be taken as a doctrinal or compelling precedent when it is acknowledged therein that "it is plausible to assert, as petitioners do, that when certain Barangays are separated from a parent municipality to form a new one, all the voters therein are affected."

It is relevant and most proper to mention that in the aforecited case of Paredes vs. Executive Secretary, invoked by respondents, We find very lucidly expressed the strong dissenting view of Justice Vicente Abad Santos, a distinguished member of this Court, as he therein voiced his opinion, which We hereunder quote:

· 2. ... when the Constitution speaks of "the unit or units affected" it means all of the people of the municipality if the municipality is to be divided such as in the case at bar or an of the people of two or more municipalities if there be a merger. I see no ambiguity in the Constitutional provision.

This dissenting opinion of Justice Vicente Abad Santos is theforerunner of the ruling which We now consider applicable to the case at bar, In the analogous case of Emilio C. Lopez, Jr., versus the Honorable Commission on Elections, L-56022, May 31, 1985, 136 SCRA 633, this dissent was reiterated by Justice Abad Santos as he therein assailed as suffering from a constitutional infirmity a referendum which did not include all the people of Bulacan and Rizal, when such referendum was intended to ascertain if the people of said provinces were willing to give up some of their towns to Metropolitan Manila. His dissenting opinion served as a useful guideline in the instant case.

Opportunity to re-examine the views formerly held in said cases is now afforded the present Court. The reasons in the mentioned cases invoked by respondents herein were formerly considered acceptable because of the views then taken that local autonomy would be better promoted However, even this consideration no longer retains persuasive value.

The environmental facts in the case before Us readily disclose that the subject matter under consideration is of greater magnitude with concomitant multifarious complicated problems. In the earlier case, what was involved was a division of a barangay which is the smallest political unit in the Local Government Code. Understandably, few and lesser problems are involved. In the case at bar, creation of a new province relates to the largest political unit contemplated in Section 3, Art. XI of the Constitution. To form the new province of Negros del Norte no less than three cities and eight municipalities will be subtracted from the parent province of Negros Occidental. This will result in the removal of approximately 2,768.4 square kilometers from the land area of an existing province whose boundaries will be consequently substantially altered. It becomes easy to realize that the consequent effects cf the division of the parent province necessarily will affect all the people living in the separate areas of Negros Occidental and the proposed province of Negros del Norte. The economy of the parent province as well as that of the new province will be inevitably affected, either for the better or for the worse. Whatever be the case, either or both of these political groups will be affected and they are, therefore, the unit or units referred to in Section 3 of Article XI of the Constitution which must be included in the plebiscite contemplated therein.

It is a well accepted rule that "in ascertaining the meaning of a particular provision that may give rise to doubts, the intent of the framers and of the people, may be gleaned from the provisions in pari materia." Parliamentary Bill No. 3644 which proposed the creation of the new province of Negros del Norte recites in Sec. 4 thereof that "the plebiscite shall be conducted in the areas affected within a period of one hundred and twenty days from the approval of this Act." As this draft legislation speaks of "areas," what was contemplated evidently are plurality of areas to participate in the plebiscite. Logically, those to be included in such plebiscite would be the people living in the area of the proposed new province and those living in the parent province. This assumption will be consistent with the requirements set forth in the Constitution.

We fail to find any legal basis for the unexplained change made when Parliamentary Bill No. 3644 was enacted into Batas Pambansa Blg. 885 so that it is now provided in said enabling law that the plebiscite "shall be conducted in the proposed new province which are the areas affected." We are not disposed to agree that by mere legislative fiat the unit or units affected referred in the fundamental law can be diminished or restricted by the Batasang Pambansa to cities and municipalities comprising the new province, thereby ignoring the evident reality that there are other people necessarily affected.

In the mind of the Court, the change made by those responsible for the enactment of Batas Pambansa Blg. 885 betrays their own misgivings. They must have entertained apprehensions that by holding the plebiscite only in the areas of the new proposed province, this tactic will be tainted with illegality. In anticipation of a possible strong challenge to the legality of such a plebiscite there was, therefore, deliberately added in the enacted statute a self-serving phrase that the new province constitutes the area affected. Such additional statement serves no useful purpose for the same is misleading, erroneous and far from truth. The remaining portion of the parent province is as much an area affected. The substantial alteration of the boundaries of the parent province, not to mention the other adverse economic effects it might suffer, eloquently argue the points raised by the petitioners.

Petitioners have averred without contradiction that after the creation of Negros del Norte, the province of Negros Occidental would be deprived of the long established Cities of Silay, Cadiz, and San Carlos, as well as the municipality of Victorias. No controversion has been made regarding petitioners' assertion that the areas of the Province of Negros Occidental will be diminished by about 285,656 hectares and it will lose seven of the fifteen sugar mills which contribute to the economy of the whole province. In the language of petitioners, "to create Negros del Norte, the existing territory and political subdivision known as Negros Occidental has to be partitioned and dismembered. What was involved was no 'birth' but "amputation." We agree with the petitioners that in the case of Negros what was involved was a division, a separation; and consequently, as Sec. 3 of Article XI of the Constitution anticipates, a substantial alteration of boundary.

As contended by petitioners,—

· Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in the constitutional provision do not contemplate distinct situation

isolated from the mutually exclusive to each other. A Province maybe created where an existing province is divided or two provinces merged. Such cases necessarily will involve existing unit or units abolished and definitely the boundary being substantially altered.

· It would thus be inaccurate to state that where an existing political unit is divided or its boundary substantially altered, as the Constitution provides, only some and not all the voters in the whole unit which suffers dismemberment or substantial alteration of its boundary are affected. Rather, the contrary is true.

It is also Our considered view that even hypothetically assuming that the merits of this case can depend on the mere discretion that this Court may exercise, nevertheless, it is the petitioners' case that deserve to be favored.

It is now time for this Court to set aside the equivocations and the indecisive pronouncements in the adverted case of Paredes vs. the Honorable Executive Secretary, et al. (supra). For the reasons already here express, We now state that the ruling in the two mentioned cases sanctioning the exclusion of the voters belonging to an existing political unit from which the new political unit will be derived, from participating in the plebiscite conducted for the purpose of determining the formation of another new political unit, is hereby abandoned.

In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners that a writ of mandamus be issued, directing the respondent Commission on Elections, to schedule the holding of another plebiscite at which all the qualified voters of the entire province of Negros Occidental as now existing shall participate and that this Court make a pronouncement that the plebiscite held on January 3, 1986 has no legal effect for being a patent nullity.

The Court is prepared to declare the said plebiscite held on January 3, 1986 as null and void and violative of the provisions of Sec. 3, Article XI of the Constitution. The Court is not, however, disposed to direct the conduct of a new plebiscite, because We find no legal basis to do so. With constitutional infirmity attaching to the subject Batas Pambansa Big. 885 and also because the creation of the new province of Negros del Norte is not in accordance with the criteria established in the Local Government Code, the factual and legal basis for the creation of such new province which should justify the holding of another plebiscite does not exist.

Whatever claim it has to validity and whatever recognition has been gained by the new province of Negros del Norte because of the appointment of the officials thereof, must now be erased. That Negros del Norte is but a legal fiction should be announced. Its existence should be put to an end as quickly as possible, if only to settle the complications currently attending to its creation. As has been manifested, the parent province of Negros del Norte has been impleaded as the defendant in a suit filed by the new Province of Negros del Norte, before the Regional Trial Court of Negros (del Norte), docketed as Civil Case No. 169-C, for the immediate allocation, distribution and transfer of funds by the parent province to the new province, in an amount claimed to be at least P10,000,000.00.

The final nail that puts to rest whatever pretension there is to the legality of the province of Negros del Norte is the significant fact that this created province does not even satisfy the area requirement prescribed in Section 197 of the Local Government Code, as earlier discussed.

It is of course claimed by the respondents in their Comment to the exhibits submitted by the petitioners (Exhs. C and D, Rollo, pp. 19 and 91), that the new province has a territory of 4,019.95 square kilometers, more or less. This assertion is made to negate the proofs submitted, disclosing that the land area of the new province cannot be more than 3,500 square kilometers because its land area would, at most, be only about 2,856 square kilometers, taking into account government statistics relative to the total area of the cities and municipalities constituting Negros del Norte. Respondents insist that when Section 197 of the Local Government Code speaks of the territory of the province to be created and requires that such territory be at least 3,500 square kilometers, what is contemplated is not only the land area but also the land and water over which the said province has jurisdiction and control. It is even the submission of the respondents that in this regard the marginal sea within the three mile limit should be considered in determining the extent of the territory of the new province. Such an interpretation is strained, incorrect, and fallacious.

The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein the "territory need not be contiguous if it comprises two or more islands." The use of the word territory in this particular provision of the Local Government Code and in the very last sentence thereof, clearly reflects that "territory" as therein used, has reference only to the mass of land area and excludes the waters over which the political unit exercises control.

Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical contact; (b) touching along all or most of one side; (c) near, text, or adjacent (Webster's New World Dictionary, 1972 Ed., p. 307). "Contiguous", when employed as an adjective, as in the above sentence, is only used when it describes physical contact, or a touching of sides of two solid masses of matter. The meaning of particular terms in a statute may be ascertained by reference to words associated with or related to them in the statute (Animal Rescue League vs. Assessors, 138 A.L.R. p. 110). Therefore, in the context of the sentence above, what need not be "contiguous" is the "territory" the physical mass of land area. There would arise no need for the legislators to use the word contiguous if they had intended that the term "territory" embrace not only land area but also territorial waters. It can be safely concluded that the word territory in the first paragraph of Section 197 is meant to be synonymous with "land area" only. The words and phrases used in a statute should be given the meaning intended by the legislature (82 C.J.S., p. 636). The sense in which the words are used furnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p. 664).

The distinction between "territory" and "land area" which respondents make is an artificial or strained construction of the disputed provision whereby the words of the statute are arrested from their plain and obvious meaning and made to bear an entirely different meaning to justify an absurd or unjust result. The plain meaning in the language in a statute is the safest guide to follow in construing the statute. A construction based on a forced or artificial meaning of its words and out of harmony of the statutory scheme is not to be favored (Helvering vs. Hutchings, 85 L. Ed., p. 909).

It would be rather preposterous to maintain that a province with a small land area but which has a long, narrow, extended coast line, (such as La Union province) can be said to have a larger territory than a land-locked province (such as Ifugao or Benguet) whose land area manifestly exceeds the province first mentioned.

Allegations have been made that the enactment of the questioned state was marred by "dirty tricks", in the introduction and passing of Parliamentary Bill No. 3644 "in secret haste" pursuant to sinister designs to achieve "pure and simple gerrymandering; "that recent happenings more than amply demonstrate that far from guaranteeing its autonomy it (Negros del Norte) has become the fiefdom of a local strongman" (Rollo, p. 43; emphasis supplied).

It is not for this Court to affirm or reject such matters not only because the merits of this case can be resolved without need of ascertaining the real motives and wisdom in the making of the questioned law. No proper challenge on those grounds can also be made by petitioners in this proceeding. Neither may this Court venture to guess the motives or wisdom in the exercise of legislative powers. Repudiation of improper or unwise actions taken by tools of a political machinery rests ultimately, as recent events have shown, on the electorate and the power of a vigilant people.

Petitioners herein deserve and should receive the gratitude of the people of the Province of Negros Occidental and even by our Nation. Commendable is the patriotism displayed by them in daring to institute this case in order to preserve the continued existence of their historic province. They were inspired undoubtedly by their faithful commitment to our Constitution which they wish to be respected and obeyed. Despite the setbacks and the hardships which petitioners aver confronted them, they valiantly and unfalteringly pursued a worthy cause. A happy destiny for our Nation is assured as long as among our people there would be exemplary citizens such as the petitioners herein.

WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The proclamation of the new province of Negros del Norte, as well as the appointment of the officials thereof are also declared null and void.

SO ORDERED.

Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz and Paras, JJ., concur.

Melencio-Herrera, J., concurs in the result.

Separate Opinions TEEHANKEE, C.J., concurring:

I congratulate my brethren for the unanimous decision we issue today striking down an Act approved in "deep secrecy and inordinate haste" apparently on the last day of session of the Batasang Pambansa on December 3, 1985 and signed on the same day by the then President of the authoritarian regime. The Act provided for the partitioning of the province of Negros Occidental and would substantially alter its boundaries by lopping off the progressive cities of Silay, Cadiz and San Carlos and municipality of Victorias with seven other municipalities to constitute the proposed new province of Negros del Norte. Negros Occidental would thereby lose 4,019.95 square kilometers in area and seven of fifteen sugar mills which contribute to the economic progress and welfare of the whole province.

The discredited Commission on Elections of the time played its customary subservient role by setting the plebiscite with equal "indecent haste" for January 3, 1986, notwithstanding that the Act itself provided for an ample period of 120 days from its approval within which to inform the people of the proposed dismemberment and allow them to freely express and discuss the momentous issue and cast their vote intelligently. This was learned by petitioners through an item in the printed media one day before they filed the present rush petition on December 23, 1985 to seek a restraining order to atop the plebiscite, even as no printed copies of the Act as finally enacted and approved were available to them and the Act had not been published, as required by law, for its effectivity. As petitioners ruefully state: "it was in vain hope" for everything had apparently been timed for the Christmas holidays; the Court was in Christmas recess and "there was no chance to have their plea for a restraining order acted upon speedily enough." In fact, it was only on January 7, 1986 that the Court took cognizance of the petition and required respondents' comment.

The scenario, as petitioners urgently asserted, was "to have the creation of the new Province a fait accompli by the time elections are held on February 7, 1986. The transparent purpose is unmistakably so that the new Governor and other officials shall by then have been installed in office, ready to function for purposes of the election for President and Vice-President." Thus, the petitioners reported after the event: "With indecent haste, the plebiscite was held; Negros del Norte was set up and proclaimed by President Marcos as in existence; a new set of government officials headed by Governor Armando Gustilo was appointed; and, by the time the elections were held on February 7, 1986, the political machinery was in place to deliver the 'solid North' to ex-President Marcos. The rest is history. What happened in Negros del Norte during the elections-the unashamed use of naked power and resources contributed in no small way to arousing 'people's power' and steel the ordinary citizen to perform deeds of courage and patriotism that makes one proud to be a Filipino today. (Record, pp. 9, 41).

The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts complained of, viz. the plebiscite, the proclamation of a new province of Negros del Norte and the appointment of its officials are equally void. The limited holding of the plebiscite only in the areas of the proposed new province (as provided by Section 4 of the Act) to the exclusion of the voters of the remaining areas of the integral province of Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota and the Municipalities of La Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan ,Hinoba-an and Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI, section 3 of the then prevailing 1973 Constitution that no province may be created or divided or its boundary substantially altered without "the approval of a majority of the votes in a plebiscite in the unit or units affected." It is plain that all the cities and municipalities of the province of Negros Occidental, not merely those of the proposed new province, comprise the units affected. It follows that the voters of the whole and entire province of Negros Occidental have to participate and give their approval in the plebiscite, because the whole province is affected by its proposed division and substantial alteration of its boundary. To limit the plebiscite to only the voters of the areas to be partitioned and seceded from the province is as absurd and illogical as allowing only the secessionists to vote for the secession that they demanded against the wishes of the majority and to nullify the basic principle of majority rule.

The argument of fait accompli viz. that the railroaded plebiscite of January 3, 1986 was held and can no longer be enjoined and that the new province of Negros del Norte has been constituted, begs the issue of invalidity of the challenged Act. This Court has always held that it "does not look with favor upon parties 'racing to beat an injunction or restraining order' which they have reason to believe might be forthcoming from the Court by virtue of the filing and pendency of the appropriate petition therefor. Where the restraining order or preliminary injunction are found to have been properly issued, as in the case at bar, mandatory writs shall be issued by the Court to restore matters to the status quo ante." (Banzon v. Cruz, 45 SCRA 475, 506 [1972]). Where, as in this case, there was somehow a failure to properly issue the restraining order stopping the holding of the illegal plebiscite, the Court will issue the mandatory writ or judgment to restore matters to the status quo ante and restore the territorial integrity of the province of Negros Occidental by declaring the unconstitutionality of the challenged Act and nullifying the invalid proclamation of the proposed new province of Negros del Norte and the equally invalid appointment of its officials.

Separate Opinions

TEEHANKEE, C.J., concurring:

I congratulate my brethren for the unanimous decision we issue today striking down an Act approved in "deep secrecy and inordinate haste" apparently on the last day of session of the Batasang Pambansa on December 3, 1985 and signed on the same day by the then President of the authoritarian regime. The Act provided for the partitioning of the province of Negros Occidental and would substantially alter its boundaries by lopping off the progressive cities of Silay, Cadiz and San Carlos and municipality of Victorias with seven other municipalities to constitute the proposed new province of Negros del Norte. Negros Occidental would thereby lose 4,019.95 square kilometers in area and seven of fifteen sugar mills which contribute to the economic progress and welfare of the whole province.

The discredited Commission on Elections of the time played its customary subservient role by setting the plebiscite with equal "indecent haste" for January 3, 1986, notwithstanding that the Act itself provided for an ample period of 120 days from its approval within which to inform the people of the proposed dismemberment and allow them to freely express and discuss the momentous issue and cast their vote intelligently. This was learned by petitioners through an item in the printed media one day before they filed the present rush petition on December 23, 1985 to seek a restraining order to atop the plebiscite, even as no printed copies of the Act as finally enacted and approved were available to them and the Act had not been published, as required by law, for its effectivity. As petitioners ruefully state: "it was in vain hope" for everything had apparently been timed for the Christmas holidays; the Court was in Christmas recess and "there was no chance to have their plea for a restraining order acted upon speedily enough." In fact, it was only on January 7, 1986 that the Court took cognizance of the petition and required respondents' comment.

The scenario, as petitioners urgently asserted, was "to have the creation of the new Province a fait accompli by the time elections are held on February 7, 1986. The transparent purpose is unmistakably so that the new Governor and other officials shall by then have been installed in office, ready to function for purposes of the election for President and Vice-President." Thus, the petitioners reported after the event: "With indecent haste, the plebiscite was held; Negros del Norte was set up and proclaimed by President Marcos as in existence; a new set of government officials headed by Governor Armando Gustilo was appointed; and, by the time the elections were held on February 7, 1986, the political machinery was in place to deliver the 'solid North' to ex-President Marcos. The rest is history. What happened in Negros del Norte during the elections-the unashamed use of naked power and resources contributed in no small way to arousing 'people's power' and steel the ordinary citizen to perform deeds of courage and patriotism that makes one proud to be a Filipino today. (Record, pp. 9, 41).

The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts complained of, viz. the plebiscite, the proclamation of a new province of Negros del Norte and the appointment of its officials are equally void. The limited holding of the plebiscite only in the areas of the proposed new province (as provided by Section 4 of the Act) to the exclusion of the voters of the remaining areas of the integral province of Negros Occidental (namely, the three cities of Bacolod, Bago and La Carlota and the Municipalities of La Castellana, Isabela, Moises Padilla, Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia,

Valladolid, San Enrique, Ilog, Cauayan ,Hinoba-an and Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI, section 3 of the then prevailing 1973 Constitution that no province may be created or divided or its boundary substantially altered without "the approval of a majority of the votes in a plebiscite in the unit or units affected." It is plain that all the cities and municipalities of the province of Negros Occidental, not merely those of the proposed new province, comprise the units affected. It follows that the voters of the whole and entire province of Negros Occidental have to participate and give their approval in the plebiscite, because the whole province is affected by its proposed division and substantial alteration of its boundary. To limit the plebiscite to only the voters of the areas to be partitioned and seceded from the province is as absurd and illogical as allowing only the secessionists to vote for the secession that they demanded against the wishes of the majority and to nullify the basic principle of majority rule.

The argument of fait accompli viz. that the railroaded plebiscite of January 3, 1986 was held and can no longer be enjoined and that the new province of Negros del Norte has been constituted, begs the issue of invalidity of the challenged Act. This Court has always held that it "does not look with favor upon parties 'racing to beat an injunction or restraining order' which they have reason to believe might be forthcoming from the Court by virtue of the filing and pendency of the appropriate petition therefor. Where the restraining order or preliminary injunction are found to have been properly issued, as in the case at bar, mandatory writs shall be issued by the Court to restore matters to the status quo ante." (Banzon v. Cruz, 45 SCRA 475, 506 [1972]). Where, as in this case, there was somehow a failure to properly issue the restraining order stopping the holding of the illegal plebiscite, the Court will issue the mandatory writ or judgment to restore matters to the status quo ante and restore the territorial integrity of the province of Negros Occidental by declaring the unconstitutionality of the challenged Act and nullifying the invalid proclamation of the proposed new province of Negros del Norte and the equally invalid appointment of its officials.


EN BANC

G.R. No. 22041 September 11, 1924

JOSE ALEJANDRINO, petitioner, vs.MANUEL L. QUEZON, ET AL., respondents.

Araneta & Zaragoza for petitioner.Attorney-General Villa-Real for respondents.

MALCOLM, J.:

The petitioner in this original proceeding in mandamus and injunction is Jose Alejandrino, a Senator appointed by the Governor-General to represent the Twelfth Senatorial District. The respondents are Manuel L. Quezon, President of the Philippine Senate; Isabelo de los Reyes, Santiago Fonacier, Alejo Mabanag, Bernabe de Guzman, Ramon Fernandez, Emiliano T. Tirona, Antero Soriano, Juan B. Alegre, Vicente de Vera, Jose Ma. Arroyo, Francisco Enage, Tomas Gomez, Sergio Osme馻, Celestino Rodriguez, Francisco Soriano, Jose A. Clarin, Hadji Butu, Espiridion Guanco, Hermenegildo Villanueva, Jose Hontiveros, Teodoro Sandiko, and Santiago Lucero, all members of the Philippine Senate; Faustino Aguilar, Secretary of the Philippine Senate; Bernabe Bustamante, Sergeant-at-arms of the Philippine Senate, and Francisco Dayaw, Paymaster of the Philippine Senate.

The casus belli is a resolution adopted by the Philippine Senate composed of the respondent Senators, on February 5, 1924, depriving Senator Alejandrino of all the prerogatives, privileges, and emoluments of his office for the period of one year from the first of January, 1924. The resolution reads as follows:

· Resolved: That the Honorable Jose Alejandrino, Senator for the Twelfth District, be, as he is hereby declared guilty of disorderly conduct and flagrant violation of the privileges of the Senate for having treacherously assaulted the Honorable Vicente de Vera, Senator for the Sixth District on the occasion of the debate regarding the credentials of said Mr. Alejandrino;

· Resolved, further: That the Honorable Jose Alejandrino be, as he is hereby, deprived of all of his prerogatives, privileges and emoluments as such Senator during one year from the first of January, nineteen hundred and twenty-four;

· And, resolved, lastly: That the said Honorable Jose Alejandrino, being a Senator appointed by the Governor-General of these Islands, a copy of this resolution be furnished said Governor-General for his information.

The burden of petitioner's complaint is that the resolution above quoted is unconstitutional and entirely of no effect, for five reasons. He prays the court: (1) To issue a preliminary injunction against the respondents enjoining them from executing the resolution; (2) to declare the aforesaid resolution of the Senate null and void; and (3) as a consequence of the foregoing, to issue a final writ of mandamus and injunction against the respondents ordering them to recognize the rights of the petitioner to exercise his office as Senator and that he enjoy all of his prerogatives, privileges, and emoluments, and prohibiting them from preventing the petitioner from exercising the rights of his office, and from carrying the order of suspension, into effect. By special appearance, the Attorney-General, in representation of the respondents, has objected to the jurisdiction of the court, and later, by demurrer, has pressed the same point.

In order that an obvious angle to the case may not subsequently embarrass us, we desire first of all to say that looking through the form of the action to the substance, this is, in effect, a suit instituted by one member of the Philippine Senate against the Philippine Senate and certain of its official employees. May the Supreme Court of the Philippines Islands by mandamus and injunction annul the suspension of Senator Alejandrino and compel the Philippine Senate to reinstate him in his official position? Without, therefore, at this time discussing any of the other interesting questions which have been raised and argued, we proceed at once to resolve the issue here suggested.

There are certain basic principles which lie at the foundation of the Government of the Philippine Islands, which are familiar to students of public law. It is here only necessary to recall that under our system of government, each of the three departments is distinct and not directly subject to the control of another department. The power to control is the power to abrogate and the power to abrogate is the power to usurp. Each department may, nevertheless, indirectly restrain the others.

It is peculiarly the duty of the judiciary to say what the law is, to enforce the Constitution, and to decide whether the proper constitutional sphere of a department has been transcended. The courts must determine the validity of legislative enactments as well as the legality of all private and official acts. To this extent, do the courts restrain the other departments.

With these sound premises in mind, we are not at all surprised to find the general rule of mandamus to be, that the writ will not lie from one branch of the government to a coordinate branch, for the very obvious reason that neither is inferior to the other. Mandamus will not lie against the legislative body, its members, or its officers, to compel the performance of duties purely legislative in their character which therefore pertain to their legislative, functions and over which they have exclusive control. The courts cannot dictate action in this respect without a gross usurpation of power. So it has been held that there where a member has been expelled by the legislative body, the courts have no power, irrespective of whether the expulsion was right or wrong, to issue a mandate to compel his reinstatement. (Code of Civil Procedure, secs. 222, 515; 18 R. C. L., 186, 187; Cooley, Constitutional Limitations, 190; French vs. Senate [1905], 146 Cal., 604; Hiss vs. Bartlett [1855], 69 Mass., 468; Ex parte Echols [1886], 39 Ala., 698; State vs. Bolte [1889], 151 Mo., 362; De Diego vs. House of Delegates [1904], 5 Porto Rico, 235; Greenwood Cemetery Land Co. vs. Routt [1892], 17 Colo., 156; State ex rel. Cranmer vs. Thorson [1896], 33 L. R. A., 582; People ex rel. Billings vs. Bissell [1857], 19 Ill., 229; People ex rel. Bruce vs. Dunne [1913], 258 Ill., 441; People ex rel. La Chicote vs. Best [1907], 187 N. Y., 1; Abueva vs. Wood [1924], 45 Phil., 612.)

The authorities which support the doctrines above announced are numerous and instructive. They are found among the decisions of our own court, of the United States Supreme Court, and of other jurisdictions. If some of these cases relate to the chief executive rather than to the legislature, it is only necessary to explain that the same rules which govern the relations of the court to the chief executive likewise govern the relations of the courts to the legislature.

The controlling case in this jurisdiction on the subject is Severino vs. Governor-General and Provincial Board of Occidental Negros ([1910], 16 Phil., 366). This was an original application made in this court praying for a writ of mandamus to the Governor-General to compel him to call a special election as provided by law. The Attorney-General demurred to the petition on the ground of lack of jurisdiction, and the court, after an elaborate discussion, reached the conclusion that "we have no jurisdiction to interfere with the Governor-General of these Islands, as the head of the executive department, in the performance of any of his official acts." The demurrer was accordingly sustained and the complaint dismissed. It is noted that in this decision reliance was placed on the cases of Mississippi vs. Johnson and Ord ([1867], 4 Wall., 475, and Sutherland vs. Governor ([1874], 29 Mich., 320), which we will now proceed to notice.

State of Mississippi vs. Andrew Johnson, President of the United States, supra, concerned a bill praying the United States, Supreme Court to enjoin and restrain Andrew Johnson, President of the United States, and E. O. C. Ord, General Commanding in the District of Mississippi and Arkansas from executing certain Acts of Congress. Mr. Chief Justice Chase delivering the opinion of the court said the single point which required consideration was this: Can the President be restrained by injunction from carrying into effect an Act of Congress alleged to be unconstitutional? He continued:

· The Congress is the Legislative Department of the Government; the President is the Executive Department. Neither can be restrained in its action by the Judicial Department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.

· The impropriety of such interference will be clearly seen upon consideration of its possible consequences.

· Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the Acts of Congress, is it not clear that a collision may occur between the Executive and Legislative Departments of the Government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public wonder of an attempt by this court to arrest proceedings in that court?

· These questions answer themselves.

xxx xxx xxx

· We are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.

· It has been suggested that the bill contains a prayer that, if the relief sought cannot be had against Andrew Johnson, as President, it may be granted against Andrew Johnson, as a citizen of Tennessee. But it is plain that relief as against the execution of an Act of Congress by Andrew Johnson, is relief against its execution by the President. . . .

Sutherland vs. Governor of Michigan, supra, well known to the legal fraternity on account of being written by Judge Cooley, related to an application for mandamus to the Governor to compel him to perform a duty imposed upon him by statute. Judge Cooley, in part, said:

· . . . Our government is on whose powers have been carefully apportioned between three distinct departments, which emanate alike from the people, have their powers alike limited and defined by the constitution, are of equal dignity, and within their respective spheres of action equally independent.

· xxx xxx xxx

· It is true that neither of the departments can operate in all respects independently of the others, and that what are called the checks and balances of government constitute each a restraint upon the rest. . . . But in each of these cases the action of the department which controls, modifies, or in any manner influences that of another, is had strictly within its own sphere, and for that reason gives no occasion for conflict, controversy or jealousy. The Legislature in prescribing rules for the courts, is acting within its proper province in making

laws, while the courts, in declining to enforce an unconstitutional law, are in like manner acting within their proper province, because they are only applying that which is law to the controversies in which they are called upon to give judgment. It is mainly by means of these checks and balances that the officers of the several departments are kept within their jurisdiction, and if they are disregarded in any case, and power is usurped or abused, the remedy is by impeachment, and not by another department of the government attempting to correct the wrong by asserting a superior authority over that which by the constitution is its equal.

· It has long been a maxim in this country that the Legislature cannot dictate to the courts what their judgments shall be, or set aside or alter such judgments after they have been rendered. If it could, constitutional liberty would cease to exist; and if the Legislature could in like manner override executive action also, the government would become only a despotism under popular forms. On the other hand it would be readily cancelled that no court can compel the Legislature to make or to refrain from making laws, or to meet or adjourn at its command, or to take any action whatsoever, though the duty to take it be made ever so clear by the constitution or the laws. In these cases the exemption of the one department from the control of the other is not only implied in the framework of government, but is indispensably necessary if any useful apportionment of power is to exist.

· xxx xxx xxx

· It is not attempted to be disguised on the part of the relators that any other course than that which leaves the head of the executive department to act independently in the discharge of his duties might possibly lead to unseemly conflicts, if not to something worse, should the courts undertake to enforce their mandates and the executive refuse to obey. . . . And while we should concede, if jurisdiction was plainly vested in us, the inability to enforce our judgment would be no sufficient reason for failing to pronounce it, especially against an officer who would be presumed ready and anxious in all cases to render obedience to the law, yet in a case where jurisdiction is involved in doubt it is not consistent with the dignity of the court to pronounce judgments which may be disregarded with impunity, nor with that of the executive to place him in position where, in a matter within his own province, he must act contrary to his judgment, or strand convicted of a disregard of the laws.

We only take space to notice on more case, which concerns specifically the right of the judiciary to control by mandamus the action of the legislature. French vs. Senate of the State of California, supra, was an original proceeding in mandamus brought by the petitioners who were duly elected senators of the state to compel the Senate of California to admit them as members thereof. It was alleged that the petitioners had been expelled without hearing or opportunity for defense. The writ was denied, Mr. Justice Shaw delivering the opinion of the court, saying:

· Even if we should give these allegations their fullest force in favor of the pleader, they do not make a case justifying the interposition of this court. Under our form of government the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of their house thereof, taken in pursuance of the power committed exclusively to that department by the constitution. . . .

There can be noted as specific corroborative authority, State vs. Bolte, supra, Abueva vs. Wood, supra, and Commonwealth of Massachusetts vs. Mellon, Secretary of the Treasury ([1923], 262 U. S., 447), the latest expression of opinion by the United States Supreme Court. The record discloses that it was the firm opinion of the late Chief Justice that the court should not assume jurisdiction of the proceedings.

So as to be perfectly fair to the petitioner, it is but proper to state that the principles laid down in some of the preceding authorities have been the subject of adverse criticism. It is said that the fallacy of the argument lies in the statement that the three departments of the government are independent of each other. "They are independent in so far as they proceed within their legitimate province and perform the duties that the law requires; yet it has never been held that the executive was the sole judge of what duties the law imposes upon him, or the manner in which duties shall be exercised. The final arbiter in cases of dispute is the judiciary, and to this extent at least the executive department may be said to be dependent upon and subordinate to the judiciary. . . . It is not the office of the person to whom the writ of mandamus is directed, but the nature of the thing to be done, by which the propriety of issuing a mandamus is to be determined." (2 Bailey on Mandamus, pp. 926-927.) But these were arguments which should have been presented years ago in this court, and which when recently presented by counsel in his argument for the petitioner in the case of Perfecto vs. Wood, R. G. No. 20867, 1 met with no favorable response from the court. It is now too late to go back and revise previous decisions and overturn them; in fact this would be not only impracticable but impossible since at least two decision of the United States Supreme Court seem to us to be controlling.

No court has ever held and we apprehend no court will ever hold that it possesses the power to direct the Chief Executive or the Legislature or a branch thereof to take any particular action. If a court should ever be so rash as to thus trench on the domain of either of the other departments, it will be the end of popular government as we know it in democracies.

It is intimated rather faintly that, conceding all that is said with reference to the right of the Supreme Court to issue mandamus directed to the Philippine Senate, yet we would be justified in having our mandate run not against the Philippine Senate or against the President of the Philippine Senate and his fellow Senators but against the secretary, the sergeant-at-arms, and the disbursing officer of the Senate. But this begs the question. If we have no authority to control the Philippine Senate, we have no authority to control the actions of subordinate employees acting under the direction of the Senate. The secretary, sergeant-at-arms, and disbursing officer of the Senate are mere agents of the Senate who cannot act independently of the will of that body. Should the Court do as requested, we might have the spectable presented of the court ordering the secretary, the sergeant-at-arms, and the disbursing officer of the Philippine Senate to do one thing, and the Philippine Senate ordering them to do another thing. The writ of mandamus should not be granted unless it clearly appears that the person to whom it is directed has the absolute power to execute it. (Turnbull vs. Giddings [1893], 95 Mich., 314; Abueva vs. Wood, supra.)

The question of jurisdiction is invariably one of perplexing difficulty. On the one hand, no consideration of policy or convenience should induce this court to exercise a power that does not belong to it. On the other hand, no consideration of policy or convenience should induce this court to surrender a power which it is its duty to exercise. But certainly mandamus should never issue from this court where it will not prove to be effectual and beneficial. It should not be awarded where it will create discord and confusion. It should not be awarded where mischievous consequences are likely to follow. Judgment should not be pronounced which might possibly lead to unseemly conflicts or which might be disregarded with impunity. This court should offer no means by a decision for any possible collision between it as the highest court in the Philippines and the Philippine Senate as a branch of a coordinate department, or between the Court and the Chief Executive or the Chief Executive and the Legislature.

On the merits of the controversy, we will only say this: The Organic Act authorizes the Governor-General of the Philippine Islands to appoint two senators and nine representatives to represent the non-Christian regions in the Philippine Legislature. These senators and representatives "hold office until

removed by the Governor-General." (Organic Act, secs. 16, 17.) They may not be removed by the Philippine Legislature. However, to the Senate and the House of Representatives, respectively, is granted the power to "punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel an elective member." (Organic Act, sec. 18.) Either House may thus punish an appointive member for disorderly behavior. Neither House may expel an appointive member for any reason. As to whether the power to "suspend" is then included in the power to "punish," a power granted to the two Houses of the Legislature by the Constitution, or in the power to "remove," a power granted to the Governor-General by the Constitution, it would appear that neither is the correct hypothesis. The Constitution has purposely withheld from the two Houses of the Legislature and the Governor-General alike the power to suspend an appointive member of the Legislature.

It is noteworthy that the Congress of the United States has not in all its long history suspended a member. And the reason is obvious. Punishment by way of reprimand or fine vindicates the outraged dignity of the House without depriving the constituency of representation; expulsion, when permissible, likewise vindicates the honor of the legislative body while giving to the constituency an opportunity to elect anew; but suspension deprives the electoral district of representation without that district being afforded any means by which to fill the vacancy. By suspension, the seat remains filed but the occupant is silenced. Suspension for one year is equivalent to qualified expulsion or removal.

It is beyond the power of any branch of the Government of the Philippine Islands to exercise its functions in any other way than that prescribed by the Organic Law or by local laws which conform to the Organic Law. This was, in effect, our holding in the comparatively recent case of Concepcion vs. Paredes ([1921], 42 Phil., 599), when we had under particular consideration a legislative attempt to deprive the Chief Executive of his constitutional power of appointment. What was there announced is equally applicable to the instant proceedings.

While what has just been said may be unnecessary for a correct decision, it is inserted so that the vital question argued with so much ability may not pass entirely unnoticed, and so that there may be at least an indication of the attitude of the court as a restraining force, with respect to the checks and balances of government. The Supreme Court, out of respect for the Upper House of a coordinate branch of the government, takes no affirmative action. But the perfection of the entire system suggests the thought that no action should be taken elsewhere which would constitute, or even seem to constitute, disregard for the Constitution.

Conceding therefore that the power of the Senate to punish its members for disorderly behavior does not authorize it to suspend on appointive member from the exercise of his office for one year, conceding what has been so well stated by the learned counsel for the petitioner, conceding all this and more, yet the writ prayed for cannot issue, for the all-conclusive reason that the Supreme Court does not possess the power of coercion to make the Philippine Senate take any particular action. If it be said that this conclusion leaves the petitioner without a remedy, the answer is that the judiciary is not the repository of all wisdom and all power. It would hardly be becoming for the judiciary to assume the role of either a credulous inquisitor, a querulous censor, or a jaunty knight, who passes down the halls of legislation and of administration giving heed to those who have grievances against the Legislature and the Chief Executive.

We rule that neither the Philippine Legislature nor a branch thereof can be directly controlled in the exercise of their legislative powers by any judicial process. The court accordingly lacks jurisdiction to consider the petition and the demurrer must be sustained. As it is unlikely that the petition could be amended to state a cause of action, it must be dismissed without costs. Such is the judgment of the court. So ordered.

Street, Villamor and Romualdez, JJ., concur.

Separate Opinions

AVANCE袮, J., concurring:

I agree with the dispositive part and the grounds and considerations set forth in the decision about the want of jurisdiction of this court to review the proceeding of the Senate. But this court having no jurisdiction, the insinuation contained in the decision that proceeding of the Senate was illegal seems to me unnecessary and improper.

JOHNSON, J., dissenting:

Among the important questions presented by the petition and demurrer in the present case, three may be mentioned:

First. Is the resolution in question legal or illegal?

Second. Has the Supreme Court jurisdiction even to consider its legality?

Third. Can the Supreme Court grant the remedy prayed for?

FIRST. Legality of the resolution

The Supreme Court is unanimous in its opinion that the resolution, by which Jose Alejandrino was deprived of "all his prerogatives, privileges, and emoluments for the period of one year" as an appointed senator, is an expulsion or removal of him as such senator and therefore illegal and ultra vires for the reason that the power of expulsion or removal of an appointed senator is vested exclusively in the Governor-General of the Philippine Islands. (Section 17 of the Jones Law Act of Congress of August 29, 1916 Public Laws, vol. 12 p. 243.)

By reason of the unanimous opinion upon that question, it becomes unnecessary further to discuss it except to give the particular reasons which induced my opinion. Said section 17 provides that: "Senators and representatives appointed by the Governor-General shall hold office until removed by the Governor-General." Section 18 provides, among other things, that "each house may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel an elective member." The petitioner is an appointive member of the Senate.

It will be noted from the two quotations just given, that the power to expel a member of either branch of the Legislature, by the Legislature, is limited to "elective members," while the power "to punish members for disorderly behavior" applies to all members whether elective or appointive. In view of the fact that neither branch of the Legislature can expel an appointive member, can either branch deprive such a member of all his "prerogatives, privileges, and emoluments for the period of one year" under the power "to punish for disorderly behavior"? It will be noted that the law contains no definition of the "punishment" which may be imposed for disorderly behavior. Considering, however, that neither branch has the right to expel an appointive member, certainly no one will contend that the punishment imposed for disorderly behavior may amount to an expulsion. If the punishment amounts to an expulsion then certainly the Legislature has exceeded its authority and has encroached upon the power of the executive, for the reason that the power to expel belongs to the Governor-General.

We have, then, the question squarely presented, whether or not a resolution of the Senate of the Philippine Islands which deprives an appointed senator of all his "prerogatives, privileges, and emoluments for the period of one year" amounts to an expulsion. If it does, then the resolution is illegal, null, and void, and beyond the powers of the legislative department of the Government and an unwarranted exercise of the powers which belong to the Governor-General.

The said resolution not only deprives the petitioner of all his "prerogatives, privileges, and emoluments for the period of one year" but also deprives the people of his district, composed of about one million persons, of any representation or participation in the legislative, affairs of the government for a period of one year, a right which is guaranteed to them under the constitution. Such a result was certainly not contemplated by the provisions of the Jones Law. Certainly the framers of the constitution of the Philippine Islands never dreamed that when the Legislature of the Philippine Islands was given the power to "punish" its members for misbehavior, that such a power would ever be used as a guise for "expelling" an appointive member.

The power to punish for misbehavior was intended purely as a disciplinary measure. When a member of the Legislature is removed either by the Governor-General or by the Legislature, a vacancy exists, and the law gives the Governor-General the right to appoint, and the people of the district the right to fill the vacancy by election, so that the people may again, under either case, be represented. A "suspension" of a member, however, does not create a vacancy, and the people of the district are without a representative and the Governor-General cannot appoint one and the people cannot elect one during the period of suspension. They are without representation during that period. They are, for the period of suspension, taxed without representation. If a member, under the power to punish, can be suspended for one year, for the same reason he may be suspended for ten or more years, thus depriving the Governor-General of his right under the law, and the people of the district, of a representative, and without a remedy in the premises.

If the power "to punish for disorderly behavior" includes the power to suspend or to deprive a member of all his rights, and if the suspension is in effect a removal, then an appointed member may be removed, under the power to punish, by a mere majority, while the law requires a two-thirds majority to remove an elective member. In other words, if under the power to "punish," any member of the Legislature, including an appointive member, may be in effect removed, then an elective member may be removed by a majority vote only thus encroaching upon the power of the executive department of the government, as well as violating the powers conferred upon the Legislature, because the Legislature cannot remove an elective member except by two-thirds majority.

It is strenuously argued by the respondent that the resolution depriving the petitioner "of all his prerogatives, privileges, and emoluments for the period of one year" is not a removal from his office but a mere suspension. The resolution does not use the word "suspend" but does use the word "deprive." It provides that the petitioner is "deprived" of all his prerogatives, etc., for a period of one year. If that word means anything it means that all of the prerogatives, privileges, and emoluments of the petitioner and the citizens whom he represents have been taken from him and them. His prerogatives, privileges, and emoluments constitute his right to be a member of the Senate under his appointment, his right to represent the people of his district, and his right to exercise all the duties and to assume all the responsibilities pertaining to his office. His emoluments constitute his right to receive his salary and the benefits pertaining to his office as a senator. If a value can be placed upon his prerogatives, privileges, and emoluments, and if he has been deprived of them, then it must follow that they have been removed from him, or that he has been removed from them. At any rate, the resolution has separated the petitioner and the people whom he represents and deprived them of all of their prerogatives, privileges, and emoluments for the period of one year; and, for all intents and purposes, he and the people whom he represents, have been deprived of their prerogatives, privileges, and emoluments, and in effect, have been removed from any participation in the legislative affairs of the government.

A great many cases have been studied on the question of removal and suspension, and we are confident in the assertion that the power to punish does not include the power to remove or suspend. A

suspension from an office or a deprivation of the rights of an officer of all his prerogatives, privileges, and emoluments, is in effect a deprivation or a removal from office for the time mentioned in the order of suspension. It has been held that a suspension from office for an indefinite time and lasting for a period of six months, lost its temporary character, ceased to be a suspension, and in effect became a removal from such office. It was held, in the case of State vs. Chamber of Commerce, that the suspension of a member was a qualified expulsion, and that whether it was called a suspension or expulsion or removal, it in effect disfranchised the person suspended. In the case of Metsker vs. Nelly, it was held that a suspension or a deprivation for either a definite or indefinite period is in effect a removal. In the case of Gregory vs. New York, it was held that the power to remove an officer or punish him does not include the power to suspend him temporarily from his office. A mere suspension would not create a vacancy, and the anomalous and unfortunate condition would exist of an office, an officer, but no vacancy, and of no one whose right and duty it was to execute the office. In the case of Commonwealth vs. Barry, it was decided that to punish an officer for "disorderly behavior" such misbehavior must be such as affects the performance of his duties or the legal or ordinary procedure of the body of which he is a member, and not disorderly behavior which affects his character as a private individual.

In this connection it may be noted that the alleged "misbehavior" on the part of the petitioner was committed outside of the legislative halls and at a time when there was no session of the Senate; that said alleged "misbehavior" did not take place in or near the Senate chamber, nor cause any disorder, disturbance, annoyance, or impediment whatever to the orderly and dignified procedure of any session of the Senate; that said "misbehavior" did not interfere in any manner whatever with the honor, dignity, and efficiency, nor with the orderly proceedings of the Senate; that the petitioner did not know, at the time of the alleged "misbehavior," that he had been admitted as a member of the Philippine Senate. The question of his admission as a senator had been under discussion for weeks theretofore.

Paragraph 2 of section 5 of the Constitution of the United States provides that "each house may determined the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member." That provision of the Constitution of the United States is exactly the language used in section 18 of the Jones Law, with the only difference that the phrase "expel a member" in the Constitution is changed in the Jones Law to "expel and elective member." That provision of the Constitution of the United States has been enforced for a period of about one hundred forty years. It will be noted that said provision of the Constitution of the United States contains two provisions: (a) to punish and (b) to expel.

An examination of the long history of the Congress of the United States has been made for the purpose of ascertaining how that august body has interpreted its powers under said provisions. First, it may be said that the Congress of the United States is perhaps as dignified a legislative body as that of any of the states or territories of the United States. Its records have been searched upon the question of its power to punish and remove its members, and no case has been found and it is believed there are none where Congress, under its power to punish, has attempted to deprive a member of all his rights, prerogatives, privileges, and emoluments for anytime whatever, although many cases of removal have been found under that power to remove. The power to punish for disorderly behavior has never been exercised further than to impose a mere reprimand. We regard the fact that the Congress of the United States has never exercised its power, to punish for disorderly behavior, by depriving a member of all of his rights, prerogatives, privileges, and emoluments, as strong proof that it did not believe that its power to punish justified an order or resolution depriving a member of all of his rights, prerogatives, privileges, and emoluments. Many cases might be cited showing misbehavior of much more serious character than that charged against the petitioner and where a reprimand only was imposed.

SECOND. Jurisdiction to consider question.

Whether or not the courts will take jurisdiction of any action whatever to interfere with, direct or control the action of either the executive or legislative departments of the government, is a question which has been presented to the courts many times since the leading case of Marbury vs. Madison was decided ([1803], 1 Cranch, [U. S.]., 137). In hundreds of cases which have come before the courts since that time, the decisions have been about equally divided. One line of decisions indicates that the courts will never take jurisdiction to control, order, or direct either the executive or legislative departments of the government to perform or not to perform any particular act expressly imposed upon or confined to them either by the organic act or by statute. (Mississippi vs. Johnson and Ord, 4 Wall. [U. S.], 475; Sutherland vs. Governor, 29 Mich., 320; Hawkins vs. Governor, 1 Ark., 570; People vs. Bissell, 19 Ill., 229; State vs. Governor, 22 La. Ann., 1; Rice vs. Governor, 27 Minn., 1; Vicksburg & Co. vs. Governor, 61 Miss., 102.)

The other line of decisions hold that the courts will take jurisdiction to control, order and direct both the executive and legislative departments of the government to do and to perform what are generally termed purely ministerial duties imposed by either the organic act or by statute. (Tennessee & Railway Co. vs. Governor, 36 Ala., 371; Middleton vs. Governor, 30 Cal., 596; State vs. Governor, 72 Ind., 567; State vs. Governor, 5 Ohio State, 528.)

It is here confidently asserted that a careful study of the first line of decisions will show, that each case might have been decided upon the ground that the duty, the performance of which was sought to be coerced, was one which was either a discretionary or official duty of the respondent, and that the doctrine relied upon, as announced in said cases, was purely obiter dicta; that each of the first line of cases might have been decided upon the ground that the performance of the particular acts was entirely within the discretion or official duty of the respondent and a question confided solely to them.

From an examination of all of the cases upon the question before us, the following rule of law is accepted as the general rule:

"That the executive, legislative, and judicial departments of the government are distinct and independent, and neither is responsible to the other for the performance of its duties, and neither can enforce the performance of the duties of the other." Exceptions or modifications of this general rule will be noted later.

After a careful study of all the cases on the subject, we are of the opinion that a fair summary of the power of the courts in the premises may be stated under two heads as follows:

First. That the courts have jurisdiction to examine acts "actually" taken by the executive or legislative departments of the government when such acts affect the rights, privileges, property, or lives of individuals.

Second. That the courts will not take jurisdiction to order, coerce, or enjoin any act or acts of either the executive or legislative departments of the government upon any question or questions, the performance of which is confided by law to said departments. The courts will not take jurisdiction until some positive "action" is taken by the other coordinate departments of the government.

With reference to the first proposition, we desire to say that, while the courts hesitate, and rightfully so, to inquire into the legality of the acts of the executive or legislative departments of government, yet they are without discretion in the premises in cases where it is alleged that a person is illegally deprived of his life, liberty, or property by said departments. The law makes no distinction with reference to the person or persons, or departments or bureaus who are responsible for the illegal and unlawful deprivation of the right of individuals in the state. The mere fact that such alleged illegal

deprivation of life, liberty or property is caused by the chief executive or the legislative department of the government, in the face of mandatory provisions of the law, is no sufficient excuse or justification for a refusal on the part of the courts to take jurisdiction for the purpose of inquiring into such alleged illegal deprivation and to make pronouncement thereon. Under the system of checks and balances, by virtue of the existence of the different departments of the government, in the Government of the United States and its territories, it becomes the legal and bounded duty of the courts to inquire into the legality, when called upon so to do, of the acts of either of the other departments of the government and to make pronouncements thereon. (Barcelon vs. Baker and Thompson, 5 Phil., 87; Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil., 534 [228 U. S., 549]; In re McCulloch Dick, 38 Phil., 41, 211 224; Borromeo vs. Mariano, 41 Phil., 322; U. S. vs. Joson, 26 Phil., 1, 65; U. S. vs. Ten Yu, 24 Phil., 1, 10; Case vs. Board of Health and Heiser, 24 Phil., 250, 276; U. S. vs. Gomez Jesus, 31 Phil., 218.)

There is no more sacred duty of the courts, when a case is presented to them in which the life, liberty, or property of the citizens of the state are involved, than that of maintaining, unimpaired, those securities for the personal rights of the individuals of the state which have been guaranteed to them by the organic law of the land and which have received for ages the sanction of the jurists and the statesmen of the civilized nations of the world. In such cases no narrow or illiberal construction should be given to the language of the fundamental law of the state. (Ex parte Lang, 85 U. S., 163.)

Since the Constitution of the Philippine Islands is intended for the observance of the judiciary as well as the other departments of the government, and the judges are sworn to support its provisions, they are not liberty to overlook or disregard its command, and therefore when it is clear that a statute or resolution of the Legislature transgresses the authority vested by the Constitution in the Legislature, it is the duty of the courts to declare the acts or resolutions unconstitutional, and from that duty the courts cannot shrink without violating their oath of office. (United States vs. Fisher, 2 Cranch [U. S.], 396; Darmouth College vs. Woodward, 4 Wheaton [U. S.], 518; Green vs. Biddle, 8 Wheaton [U. S.], 1.)

The duty of the courts to declare a law or resolution unconstitutional, in a proper case, cannot be declined and must be performed in accordance with the deliberate judgment of the court. (Pollock vs. Farmer's Loan & Trust Co., 157 U. S., 429.) Since the question as to the constitutionality of a statute or resolution of the legislature is a judicial matter, the courts will not decline to exercise jurisdiction upon the mere suggestion that some action might be taken by the political agencies of the government in disregard of the judgment of the court. (McPherson vs. Blacker, 146 U. S., 869.)

The doctrine of the all omnipotent power of the legislature as recognized by the Government of England, does not prevail in the United States, and every law or resolution adopted by the legislative department of the government must conform to the constitution. When a statute or a resolution of the legislative department exceeds the jurisdiction and powers of the legislature, it is null and void.

The principle which permits courts to pronounce an act or resolution of the legislature null and void, because it conflicts with the provisions of the constitution, is a doctrine so well established under constitutional governments that it seems really unnecessary to discuss it here. It has been declared in many cases that the power of the court to make pronouncements upon the legality of acts or resolutions of the legislative department, is the strongest barrier ever devised against the tyrannies of political assemblies. The right to construe the constitution and to apply it to particular laws or resolution of the legislature must necessarily be lodged in some department of the government to insure that practical sanction to its mandates which are essential for the preservation of their validity and force and the perpetuation of stable and orderly government. The duty of the court to maintain the constitution as the fundamental law of the state and to permit no one to transgress its provisions, is imperative. Whenever a statute is in violation of the fundamental law, it is the sworn duty of the courts so to adjudge. Any other course would lead to the destruction of the fundamental law of the state. It has been said by

eminent jurists and authorities that the judiciary should protect the rights of the people with great care and jealousy, not only because it is its sworn duty, but also because in times of great popular excitement the courts are the last resort. (Gardner vs. Stephens, 2 Am. Rep., 700; State vs. Peel Splint Co., 17 L. R. A., 385; Rathbone vs. Wirth, 34 L. R. A., 408; Wells vs. Mo. Railway Co., 15 L. R. A., 847; State vs. Butler, 24 L. R. A., [N. S.], 744; Sanders vs. Commonwealth, 111 Am. State Rep., 219; State vs. Miller, 87 Ohio State, 12; Miller vs. Johnson, 15 L. R. A., 524.)

The right and power of the courts to declare whether enactments of the legislature exceed the constitutional limitations and are invalid, has always been considered a grave responsibility as well as a solemn duty, and its exercise is, at all times, a matter of much delicacy, for, apart from the necessity of avoiding conflicts between coordinate branches of the government, it is often difficult to determine whether such enactments are within the powers granted to or possessed by the legislature. It has also been said that the power of the courts to nullify acts of the legislature, as being in violation of the constitution, is one of the highest functions and authorities of the courts. (Nichol vs. Ames, 173 U. S., 509; People vs. Henning Co., 260 Ill., 554; Edwards vs. Lesueur, 31 L. R. A., 815.)

The courts have no jurisdiction in matters of a purely political nature which have been confided to the executive or legislative department of the government, nor the power to interfere with the duties of either of said departments, unless under special circumstances and when it becomes necessary for the protection of the rights, the life and the property of the individuals of the state. ( In re Sawyer, 124 U. S., 200; Luther vs. Borden, 7 Howard [U. S.], 1; Mississippi vs. Johnson and Ord, 4 Wall. [U. S.], 475.)

The jurisdiction of the courts over the acts of either of the other departments is limited to cases where the acts of such departments tend to deprive the citizens of their rights, liberties, and property. To assume jurisdiction to control the exercise of purely political rights, would be to invade the domain of the other departments of the government. (Fletcher vs. Tutle, 151 Ill., 41.)

We do not desire to be understood, however, as holding that even political rights are not a matter of judicial solicitude and protection and that the appropriate judicial tribunal will not, in a proper case, give a prompt and efficient protection to citizens. (Muskrat vs. United States, 219 U. S., 346.)

In the case of Burnham vs. Morrissey (14 Gray [Mass.], 226), Mr. Justice Hoar, later a United States Senator, said: "The house of representatives is not the final judge of its own powers and privileges in cases in which the rights and liberties of the subject are concerned; but the legality of its action may be examined and determined by this court. . . . Especially is it competent and proper for this court to consider whether its (legislature's) proceedings are in conformity with the constitution and laws, because, living under a written constitution no branch or department of the department is supreme; and it is the province and duty of the judicial department to determine, in cases regularly brought before them, whether the powers of any branch of the government and even those of the legislature in the enactment of laws (or resolutions), have been exercised in conformity with the constitution; and if they have not been, to treat their acts as null and void.

· The house of representatives has the power, under the constitution, to imprison for contempt; but this power is limited to cases expressly provided for by the constitution, or to cases where the power is necessarily implied from those constitutional functions and duties, to the proper performance of which it is essential. . . .

The doctrine of the omnipotence of either the executive or legislative department of government has long since been denied, and has no place under the American flag.

Of course, when a discretionary power is conferred, with the right to act or not to act, and when the discretion is honestly exercised and not abused, then the official or department is relieved from

personal responsibility; but when action is taken, and an individual of the state is thereby deprived, illegally, of his life, liberty or property, his remedy to be restored to his rights is properly submitted to the courts. In every case where the courts are called upon to exercise their original jurisdiction to question the illegality of action already taken by the legislative or executive department of the government, they will not do so upon a mere formal or colorable showing either as to the parties or subject-matter. The courts will look through the form to the real character or substance of the alleged illegal act. (Wisconsin vs. Insurance Co., 127 U. S., 265; Louisiana vs. Texas, 176 U. S., 1; Oklahoma vs. Railway Co., 220 U. S., 277.)

A statute or a resolution of the legislative department of the government which deprives a citizen of the rights guaranteed to him by the Organic Law of the land is null and void. (Harrison vs. Railway Co., 232 U. S., 318; Terral vs. Burke & Co., 257 U. S., 529.)

Decision of the highest courts, without number, may be cited in support of the rule "that all governmental officers, departments or agencies are subject to judicial restraint when they act in excess of their authority either statutory or constitutional, by virtue of which citizens are deprived of their rights." (Osborn vs. U. S. Bank, 9 Wheaton [U. S.], 739; Board of Liquidation vs. McComb, 92 U. S., 531; United States vs. Lee, 106 U. S., 196; Virginia Cases, 114 U. S., 311; Regan vs. Farmers & Co., 154 U. S., 362; Smith vs. Ames, 169 U. S., 466; Ex parte Young, 209 U. S., 123; Philadelphia Co. vs. Stimson, 223 U. S., 605.)

CHECKS AND BALANCES

The three great departments of the government the executive, legislative, and judicial were created for the purpose of "checks and balances." Under the Organic Law of the Philippine Islands the executive power of the states is conferred upon the Governor-General. The legislative power is vested in the Senate and House of Representatives. The judicial power is vested in the courts. The three great branches of the government are separate and distinct, but are coequal and coordinate. Their powers have been carefully apportioned. The legislature makes the laws, the courts construe them and adjudge as to the rights of persons to life, liberty, and property thereunder, while the executive department executes the laws and the judgments of the courts. Each department, in its own sphere, is in a sense independent. Each operates as a check or restraint upon the other. The Acts of the legislative department have to be presented to the executive department for its approval. The executive department may disapprove the Acts of the legislature if in its judgment they are not in conformity with the organic law of the state or if in their enforcement they might work a hardship upon the people. The judicial department is authorized to construe and interpret the Acts of the legislature. The judicial department is authorized to determine the validity of the Acts of the legislature under the constitution. The executive department may also set aside the judgments of the judicial department and modify the action of the courts by the interposition of its pardoning power. The legislative department may also recall, modify, or annul decisions of the courts if in its judgment the interpretation given to a law by the courts is not in harmony with the general policy of the state, by the enactment of a new law or by an amendment of the old, giving its such a nondisputed meaning and interpretation as to clearly wipe out the decisions of the judicial department.

Thus, we have the checks and balances known under the American form of government. But in every case in which one department controls, modifies, or influences the action of another, it acts strictly within its own sphere, thus giving no occasion for conflict and thus preserving the purpose of the original scheme of a division of powers among the three great coordinate branches of government, each operating as a restraint upon the other, but still in harmony.

By the use of the power of veto and or pardoning, the executive department may annul and set aside absolutely the action of both the legislative and judicial departments. The legislative department may,

by adopting a new law or by amendment or by passing a law over the veto of the executive department, annul, recall, and set aside the action of both the executive and judicial departments. But it must be observed that when the judicial department inquires into an act of either the executive or legislative departments for the purpose or determining the legality of such acts, it is not because it desires to impose its own opinions upon such departments nor to examine into the wisdom or advisability of a particular act or statute, but simply because said departments have acted in a way which is forbidden by the fundamental law of the land and because the will of the people, as declared in such fundamental law, is paramount and must be obeyed even by the legislative and executive departments. In pronouncing a statute of the legislature illegal or an act of the executive department beyond its powers, the courts are simply interpreting the meaning, force and application o the fundamental law of the state.

If the doctrine that the different departments executive, legislative and judicial are absolutely independent and one can never interfere to control or restrain, modify or annul, the action of the other, then the very purpose of the organization of the three departments for "checks and balances" would be defeated. (Case vs. Board of Health and Heiser, 24 Phil., 250; U. S. vs. Joson, 26 Phil., 1, 64; U. S. vs. Gomez Jesus, 31 Phil., 218, 225, 228; Tajanlangit vs. Pe 馻 randa, 37 Phil., 155; Central Capiz vs. Ramirez, 40 Phil., 883, 899; Severino vs. Governor-General and Provincial Board of Occidental Negros, 16 Phil., 366; U. S. vs. Bull., 15 Phil., 7; Borromeo vs. Mariano, 41 Phil., 322; Concepcion vs. Paredes, 42 Phil., 599; Marbury vs. Madison, 1 Cranch [U. S.], 137, 152, 170, 172.)

The following are among the leading cases in which the courts have taken jurisdiction for the purpose of determining the legality or illegality of acts, or orders or resolutions of the executive and legislative departments:

First. Acts of the Executive Department of the Government

· (a) Barcelon vs. Baker and Thompson (5 Phil., 87), where the action of the Governor-General was pronounced legal;

· (b) Forbes vs. Chuoco Tiaco and Crossfield (16 Phil., 534; 228 U. S., 549) where the action of the Governor-General was pronounced legal;

· (c) In re McCulloch Dick (38 Phil., 41, 62, 63, 109, 211, 244), where the action of the Governor-General was pronounced legal;

· (d) Borromeo vs. Mariano (41 Phil., 322), where the action of the Governor-General was pronounced illegal.

Second. Acts of the Legislative Department of the Government

· (a) Concepcion vs. Paredes (42 Phil., 599), where the act of the legislative department was pronounced illegal;

· (b) Kilbourn vs. Thompson (103 U. S., 168, 181, 199), where the act of the one branch of the Congress of the United States was held illegal.

Referring to the second "Summary of the Powers of the Courts" above, it may be said that in this jurisdiction the doctrine is now well established, that, until the executive or legislative department has taken some steps or has acted upon some question, the courts will neither undertake to compel action nor to restrain action in said departments. It is only when said departments have acted and their acts detrimentally affect the interest of the citizen, that the courts will inquire into the legality or constitutionality of such acts. (Barcelon vs. Baker and Thompson, 5 Phil., 87; Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil., 534; Borromeo vs. Mariano, 41 Phil., 322; Perfecto vs. Wood, R. G. No. 208671; Abueva vs. Wood, 45 Phil., 612.)

The judicial department of the government will not attempt to intervene or control or direct or command any action whatever upon any subject which has been specifically confided by law to the other departments, until they have taken some action which tends to and does establish some theory or policy contrary to the organic law of the land, or has deprived some citizen of his life, liberty, property, or privilege granted to him by the organic law. Under such facts, the judicial department is, under the law, bound to take jurisdiction and to make pronouncements thereon. In such cases it becomes the legal and bounden duty of the courts to inquire into the legality or illegality of the acts of the other departments of the government and to declare what the law is and what the rights of the parties are. When such a case is presented to the courts, its responsibility to the people of the state, under the law, demands that a thorough investigation of the facts be made and of the rights of the parties under the law, and to make a pronouncement, without reference to the fact whether or not the court have the proper machinery for the purpose of enforcing their conclusions and judgments.

The following are among the cases holding that the courts will not intervene for the purpose of compelling or directing any action on the part of the executive or legislative departments of the government with reference to any duty or obligation specifically confided to said departments:

First. Acts of the Executive Department of the Government

· (a) Severino vs. Governor-General and Provincial Board of Occidental Negros, 16 Phil., 366;

· (b) Abueva vs. Wood, 45 Phil., 612;

· (c) Sutherland vs. Governor, 29 Mich., 320;

· (d) Hawkins vs. Governor, 1 Ark., 570;

· (e) People vs. Bissell, 19 Ill., 229.

Second. Acts of the Legislative Department of the Government

· Abueva vs. Wood, 45 Phil., 612.

In view of the foregoing arguments and citation of authorities and inasmuch as the petitioner alleges that by an act or resolution of the Senate of the Philippine Islands he has been deprived of his prerogatives, privileges, and emoluments for a period of one year, which have been granted to him by the organic law of the land, through the officers and employees of the Senate, we are of the opinion, and so decide, that under such allegations the court is not only justified, but authorized and compelled under the duties and powers conferred upon it, to take jurisdiction of the petition for the purpose of examining into the question whether or not the petitioner has been deprived of any rights granted to him under the Constitution of the Philippine Islands.

Are the facts stated in the petition and admitted by the demurrer sufficient to constitute a cause of action, and do they justify the court in taking jurisdiction of the case?

The petitioner alleges that he is a Senator of the Philippine Islands legally appointed by the Governor-General under the provisions of section 16 of the Jones Law; that by virtue of said appointment he is given all the rights of a senator, with all the prerogatives, privileges, and emoluments thereunto belonging; that he has, as such senator, the right to continue to serve the people of his district; that he has the right to be and act as a member of the Senate until removed by the Governor-General; that he has been deprived of the right to act as a senator and has been removed as such senator by the respondents and thereby deprived of a right conferred upon him by law and of all of the rights, prerogatives, privileges, and emoluments belonging to him as a citizen of the Philippine Islands and as a member of the Senate; that the citizens of his district have been deprived of their right to be represented and to participate in the affairs of their government; that unless the said resolution of the Senate be pronounced illegal, null, and void, he will be unable to exercise the rights of a citizen and a senator and to enjoy the prerogatives, privileges, and emoluments to him rightfully belonging; that by becoming a member of the Senate he has not lost his rights as a citizen; that he is still entitled to be protected in all of his rights and privileges as a citizen under the law; that the punishment imposed by said resolution is one created after the alleged grounds for suspension had occurred; that the punishment imposed is quasi-criminal; that no punishment for his acts had been prescribed as is expressly provided under the substantive law of the Philippine Islands; that the punishment provided for in said resolution of the 5th day of February, 1924, was ex post facto and is illegal and void under section 3 of the Organic Law, in that his acts were pronounced to be illegal by said resolution long after they had been committed; that the respondents were without authority of law to remove him as a member of the Senate; that the Governor-General only has the authority to remove him; that the alleged acts for which he has been suspended were not committed in or near the Senate chamber; that they in no way tended to or did interfere with the orderly procedure of the Senate and therefore cannot be regarded as "disorderly behavior;" that the Senate has no right or authority to suspend or remove one of its members for disorderly behavior unless and until such disorderly behavior tends to and does interfere with, hamper or impede the legal and orderly procedure of the body; that while it requires a two-thirds vote of the Senate to expel its elective members, he has been removed, contrary to law, by the Senate, when the Governor-General is the only authority who can remove him; that if the Senate can remove him under the power to punish, then an appointive member can be removed by a majority vote, while it requires a two-thirds majority vote to remove an elective member; and, for all of the foregoing reasons, the petitioner and the people of his district have been deprived of their rights, privileges, prerogatives, and emoluments by an actual act or resolution of the Senate, which is contrary to law, and that he is entitled to have a pronouncement of his rights made by the courts and to be restored to his rights, prerogatives, privileges, and emoluments of which he has been so illegally deprived.

The Constitution of the Philippine Islands, the Organic Act (Jones Law) provides: "That no law shall be enacted which deprives any person of life, liberty or property without due process of law, or deny to person therein the equal protection of the laws." That provision of law is equally binding upon each department of government. "Due process of law" cannot be used as a cloak for depriving a citizen of his rights when the procedure is based upon a illegal or unconstitutional act or resolution.

Under the American form of government, the executive, legislative, and judicial departments are coequal and co-important. But it does not follow that the judiciary, the constitutional duty of which is to declare and interpret the supreme law of the land, has not the power to declare a law or a resolution, passed by the legislature or either of its branches, unconstitutional. The will of the people, as expressed in their constitution, is the paramount law and controls every and each department of the government. The judiciary, under its powers to interpret the constitution and the laws, has the duty and the right to declare what the will of the people is, as expressed in the fundamental law of the land. Hence, where

the acts of the executive or legislative departments violate the will of the people as expressed in the organic law of the land, it is the sworn duty of the judiciary to interpret and to declare that the will of the people and the right of a citizen has been violated and transgressed.

While the imposition of a disciplinary measure by the legislature or either branch thereof upon one of its members for an offense committed against its dignity may be regarded as a matter of internal concern only of that body, over which the other departments may not exercise jurisdiction by virtue of the separation established by the fundamental law, it does not follow that the legislature, in imposing disciplinary measure, has not or may not overstep its own powers as limited or defined by the Organic Law. The legislative department of the government cannot, under the guise of a resolution imposing disciplinary measure, transgress the constitution, and when it does, its acts cease to be a mere internal concern. Even the members of the legislature have their rights under the constitution. They have not lost the fundamental rights to their life, liberty, and privileges as citizens by becoming members of the legislative department of the government.

The argument of the respondents leads to the conclusion that under their power to punish they may impose any punishment which their wish, whim, prejudice, or caprice may dictate. That contention will hardly withstand the scrutiny of modern civilization.

The respondents defend upon the ground that they are absolutely immune from judicial inquiry; that the courts have no power or authority to inquire into the acts of the executive or legislative branches of the government, however clear it may be made to appear that such departments do not possess the power or authority exercised. The fact is evidently overlooked by them that the provision of the Jones Law above quoted is as binding upon them as it is upon any department, bureau, or person in the government. The provisions of the Jones Law, for the security of the rights of the citizen, stand in the same connection and upon the same ground as they do in regard to his liberty and his property. It cannot be denied that both were intended to be enforced by the judicial department of the government. As has been said, the writ of habeas corpus has been often used to defend the liberty of the citizen, and even his life, against the exercise of unlawful authority on the part of the executive and legislative branches of the government.

No man, individual, department, bureau, or officer in the Philippine Islands, under the Jones Law, is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. The Philippine Government is a government by law and not a government by the whim or caprice of any individual or department. It (the law) is the only supreme power in our system of government; and every man who, by accepting an office by appointment or election, participates in its function, is only the more strongly bound to that supremacy (the law) and to observe the limitations which it imposes upon the exercise of the authority which it (the law) gives. Courts of justice are established, not only to decide upon the controverted rights of the citizens as against each other, but also upon rights and controversies between them and the government, and the dockets of the courts are not without cases containing controversies of the latter class.

Shall it be said, in the face of the provisions of the Jones Law, and of the acknowledged right of the judicial department of the government to decide in proper cases, that statutes which have been passed by both branches of the Legislature and approved by the Governor-General are illegal and unconstitutional, and that said department cannot give a remedy when the citizen has been deprived of his life or property without lawful authority and without due compensation, simply because the executive or legislative department has ordered it? If that is the law in the Philippines it sanctions a tyranny which has no existence in the monarchies of Europe nor in any other government which has a just claim to a well-regulated liberty and the protection of the personal rights, privileges, life, and

property of the individual.

Can it be said that the judicial department of the government can intervene in a petition for the writ of habeas corpus to relieve a citizen who has been imprisoned, illegally, and cannot take jurisdiction in proper proceedings to consider the question whether or not he has been deprived of his property even though such deprivation has been brought about by an illegal act or resolution of the Legislature, or by an order of the executive department of the government? Here again we are of the opinion that the question contains its own answer to the average citizen.

We cannot give our assent to the doctrine that the Senate or House of Representatives is the final judge of its own powers and privileges, without restraint, especially in cases in which the rights, privileges, emoluments, property, and liberties of a citizen are concerned. The legality of their action may always be examined and determined by the courts. Especially are the courts competent, and it is proper for them to consider whether the proceedings of the legislative department of the government are in conformity with the laws and the constitution of the land, because, living under a written constitution, no branch or department of the government is supreme; and it is not only the province, but the sworn duty, of the judicial department, to determine in cases regularly brought before it, whether the powers of any branch of the government, even those of the legislature in the enactment of laws or resolutions, have been exercised in conformity with the organic law of the land, if they have not, to treat such acts or resolutions as null and void.

All of the foregoing arguments are intended to apply only to cases in which some action has been taken, which illegally deprives a citizen of his rights, privileges, prerogatives, and emoluments. Nothing herein is intended to modify in the slightest degree the decisions heretofore announced in the cases of Severino vs. Governor-General and Provincial Board of Occidental Negros, Perfecto vs. Wood, and Abueva vs. Wood, above cited. In those cases the courts were called upon to require one or both of the other two coordinate departments to act in a particular way upon questions which were specially confided to those departments, while in the present case the courts are called upon to decide whether or not the action which the legislative department of the government has taken is legal and in conformity with the powers conferred by the organic law of the land. A wide distinction must be made between requiring a particular act to be done and a pronouncement upon the legality of that act after it is performed. The courts will not require the legislative department of the government to adopt a particular law, but they are authorized and empowered, and it is their sworn duty to pronounce a statute null and void after adoption if the same is found to be contrary to the provisions of the organic law of the land and beyond the powers of the legislative department. This doctrine is amply exemplified in the thousands of cases which have been brought before the courts in petitions for habeas corpus where the petitioner alleged that he has been imprisoned under an unconstitutional law and in many, many cases where men have been deprived of their rights and property by an illegal and unconstitutional act adopted by the legislature. In the first class of cases mentioned, the courts will never interfere in this jurisdiction to direct or coerce action, while in the second class of cases the courts should always take jurisdiction for the purpose of determining and making pronouncements upon the legality and constitutionality of acts actually taken.

In view of the facts and the law, we are compelled to decide that we are justified, authorized, and, under our oath of office, compelled to take jurisdiction of the petition for the purpose of ascertaining whether or not the petitioner has been deprived, illegally, of a right guaranteed to him under the Constitution and laws of the Philippine Islands. In exercising the high authority conferred upon us to pronounce valid or invalid a particular resolution or statute of the legislature, we are only the administrators of the public will as expressed in the fundamental law of the land. If an act of the legislature is to be held illegal by the courts, it is not because the judges have any control over the

legislature, but because the particular statute or resolution is forbidden by the fundamental law of the land, and because the will of the people, as declared in such fundamental law, is paramount and must be obeyed by every citizen, even the Legislature. In pronouncing a statute or resolution illegal, we are simply interpreting the meaning, force, and application of the fundamental law of the state. If a particular resolution or statute of the legislature is within its constitutional power, it will be sustained, whether the courts agree or not in the wisdom of its enactment. If the resolution or statute covers a subject not authorized by the fundamental law of the land, then the courts are not only authorized but are compelled and justified in pronouncing the same illegal and void, no matter how wise or beneficient such resolution or statute may seem to be. The courts will not measure their opinion with the opinion of the legislative department, as expressed in the resolution or statute, upon the question of the wisdom, justice, and advisability of a particular law, but the wisdom, justice, and advisability of a particular law must be tested by the provisions of the fundamental law of the state. It is the sworn duty of the judicial department of the government to determine the limits, under the law and the constitution, of the authority of both the executive and legislative departments.

THIRD. May the Supreme Court grant the remedy prayed for?

In the Government of the Philippine Islands no man is so high that he is above the law. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It cannot be said, in view of the acknowledge right of the judicial department of the government to pass upon the constitutionality of statutes or resolutions of the legislative department, that the courts cannot give a remedy to a citizen of the state when he has been illegally deprived of his life, his property, or his liberty by force, or by virtue of an unconstitutional act or resolution of the legislative department. A contrary conclusion would sanction a tyranny under the American flag, which has no existence even in the monarchies nor in any other government which has a just claim to a stable government, a well-regulated liberty, and the protection of the personal rights of individuals. Every department, every officer of the government, and every individual, are equally bound by the mandatory provisions of the fundamental law. When a citizen under the American flag has been deprived of his life, his liberty, or his property by an illegal statute or resolution, the official or department so depriving him cannot say to the courts: "Stop here, for the reason that I (we) have acted as a representative of a different department of the government."

A pronouncement, by the highest tribunal of justice in the Philippine Islands, that the resolution is ultra vires, illegal, and void, we confidently believe, will be sufficient to cause an immediate revocation of the same, and the adoption of a further order to the effect that all persons affected by it will be restored to their rights. We are confident in that belief, because we cannot believe that the resolution was adopted out of a spirit of malice, hatred, or revenge, but in the full belief that the law permitted it as a disciplinary measure. We cannot believe that the honorable senators who took part in its adoption intended to deprive any of the citizens of their county of the constitutional right. We are confident that the honorable senators recognize, as fully as the courts do, that the constitution is the supreme law of the land and is equally binding upon them as it is upon every citizen, high or low, and upon every branch, bureau, or department of the government. We are sure that the respondents will be among the very first to openly criticize and vigorously denounce any person, entity, or department within the Philippine Islands, who should be guilty of the slightest disregard or disobedience to the mandates of the constitution the law of the people.

The majority opinion decides that the petitioner and the people whom he represents have been illegally deprived of their rights, but that he and they are without a remedy damnum absque injuria. To that doctrine we cannot give our assent.

The nightmare which runs through the majority opinion concerning the impossibility of the execution

of a judgment, is hardly justified in a stable and well-organized government, among a people who love peace and good order, who despise disobedience to law and disloyalty to the constituted authorities. The history of the Filipino people shows that they love peace, good order, and will, with a spirit of alacrity, obey the law when they once understand what the law is. We rest in the confident faith that spirit still controls in the Philippine Islands. The remedy prayed for should be granted in a modified form.

RESUME

1. The Organic Law (Jones Law) prohibits the removal of an appointive senator by the Legislature.

2. The said resolution has the effect of a removal of an appointive senator.

3. The resolution, therefore, is invalid, illegal, and void, according to the unanimous opinion of the court.

4. The legislative power and procedure of the Senate must be exercised in conformity with the Organic Law.

5. The courts have jurisdiction to inquire into the legality or constitutionality of a law or resolution of the legislative department, whenever a citizen alleges that he has been deprived of his rights under such law or resolution.

6. The courts of the Philippine Islands have jurisdiction to determine the constitutionality of acts or resolutions or procedure of the Senate.

7. The petition and demurrer present the question of the constitutionality of said resolution, as well as the constitutional power of the Senate to adopt it.

8. The Supreme Court of the Philippine Islands, having jurisdiction, its decree or order should afford relief from the effect of said illegal resolution.

Therefore, the enforcement of the said illegal and void resolution should be enjoined.

OSTRAND, J., dissenting:

With much of what is said in the majority opinion I am in entire accord. I agree that the Senate in suspending the petitioner, declaring his pay forfeited and depriving his senatorial district of the representation granted by the Organic Act, exceeds its powers and jurisdiction. I also concede that the courts will not, by mandamus or other writs, attempt to control the exercise by the other departments of the government of discretional or executive powers or duties conferred upon them by the constitution or by constitutional statutes. I further concede that the courts will not interfere with acts of another department when such acts are of a purely political and non-justiciable character.

But when the court holds, as it in effects does in this case, that because the respondents are members of officers of another department the courts have no power to restrain or prohibit them from carrying into effect an unconstitutional and therefore void act of that department, an act wholly outside of its province, and which deprives a citizen of rights and privileges to which he, by law, is entitled, I find myself unable to follow its reasoning or to yield my assent to its conclusions.

Before entering upon a more extended discussion of the issues in the case, it may be well to emphasize that there is here no question as to the power of the Philippine Senate to punish its members for disorderly behavior. That is conceded. But I contend that the court may intervene to prevent the execution of the penalty imposed if such penalty transcends the domain of the Legislature and encroaches upon that of the Chief Executive in direct violation of the Organic Act. I shall also maintain that the assertion in the majority opinion to the effect that this, in substance, is an action against the Senate as a body, is erroneous.

The fundamental error into which the court has fallen is that it has failed to note the distinction between acts within the province of a department and those outside thereof; it confuses entire absence of power with the alleged improper exercise of legitimate powers. This distinction is obvious and very important. Where a power or duty has been entrusted to the Chief Executive by the Organic Act, this court will not, under the rule laid down in the case of Severino vs. Governor-General and Provincial Board of Occidental Negros (16 Phil., 366), attempt to control or direct the exercise by him of that power or duty; he is presumed to be the best judge of the time and the manner of its exercise. For the same reason, the court will not undertake to direct the exercise of the discretional powers of the legislative department within its legitimate sphere. But it must necessarily be otherwise where either department steps outside of its province and arrogates to itself any of the constitutional powers of the other. The doctrine of non-interference by the judiciary with the other departments of the government rests primarily on the ground that each department is presumed to possess special qualifications and opportunities for the exercise of the powers entrusted to it by the constitution. It follows that the doctrine does not apply to cases where a department goes beyond its legitimate sphere. This is, indeed, the first time any court has ever held that in such cases there may be no judicial interference. (Bailey on Mandamus, p. 926.)

That the court has overlooked this distinction is very apparent from the fact that in all of the cases cited in support of its conclusion, the acts complained of were within the province of the respondents and that in none of them is there any question of the encroachment by one department upon the domain of another. It is very true that in some of the cases dicta are to be found which, taken by themselves alone and without reference to the context, may, at first sight, lead to the inference that the separation of the various departments of the government is so complete that the courts, under no circumstances, will review any act of the Legislature or the Executive, irrespective of its character, but when the cases where such dicta occur are closely examined, this impression disappears and it becomes obvious that the dicta have no reference to acts of clear usurpation of powers.

Five of the cases cited relate to judicial review of the exercise of the legislative powers. In the first of these cases, Hiss vs. Bartlett ([1853], 69 Mass., 468), a habeas corpus proceeding, it was held that the House of Representatives of Massachusetts had the implied power to expel a member and that the reasons for the expulsion, and the question whether a member was duly heard before being expelled, could not be inquired into by the courts.

French vs. Senate ([1905], 146 Cal., 604), was a proceeding in mandamus. The Constitution of the State of California expressly gives either house of the Legislature authority to expel members by a two-thirds majority vote. The petitioners had been so expelled from the Senate but alleged that it had been done without due process of law and therefore asked that the Senate be compelled to again admit them as members. The court denied the writ holding that the judicial department had no power "to revise even the most arbitrary and unfair action of the legislative department, or of either house thereof, taken in pursuance of the power committed exclusively to that department by the Constitution."

State vs. Bolte ([1899], 151 Mo., 362), was a suit for a writ of mandamus to compel the presiding officer and the secretary of the State Senate, and the Speaker of the House of Representatives and its

chief clerk, to take the necessary steps to complete the enactment of a certain bill, it being alleged that it had already passed both houses by a majority vote. The petition was resisted on the ground that the presiding officer of the Senate had ruled that the bill did not pass the Senate and that the court had no jurisdiction to review the ruling. The court held that the duty the performance of which it was sought to enforce was one strictly within the line of the duties of the presiding officer of the Senate and was not merely ministerial. The writ was therefore denied.

The case of Ex-parte Echols ({[1886], 89 Ala., 698), was a petition by one of the members of the State Legislature for a writ of mandamus to the Speaker of the House of Representatives to compel him to send a certain bill to the Senate. The Speaker ruled that the bill had not passed the house with the requisite majority of votes and therefore refused to certify it to the Senate. The petition was denied, the court stating that it would not "interfere with either of the coordinate departments of the government in the legitimate exercise of their jurisdiction and powers."

There is, as far as I can see, absolutely nothing in these cases which can have any direct bearing on the present case. In two of them the question before the court was the alleged abuse of constitutional powers resting in the Legislature; the other three were actions to compel the performance of duties entrusted by law to the Legislature or its officers and which were not merely ministerial. In all of them the Legislature operated within its own domain.

The other cases cited to the same point in the majority opinion are actions directed against chief executives. The two most favorable to the majority of the court are Mississippi vs. Johnson and Ord (4 Wall., 475) and Sutherland vs. Governor (29 Mich., 320). The facts of the first case are stated in the majority opinion and need not be restated here. But the portions quoted from the decision in that case should be read in connection with the following quotation from the same decision, which I think forms its real basis:

· The single point which requires consideration is this: Can the President be restrained by injunction from carrying into effect an Act of Congress alleged to be unconstitutional?

· It is assumed by the counsel of the State of Mississippi, that the President, in the execution of the Reconstruction Acts, is required to perform a mere ministerial duty. In this assumption there is, we think, a confounding of the terms `ministerial' and `executive,' which are by no means equivalent in import.

· A ministerial duty, the performance of which may, in proper cases, be required of the head of the department, by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.

xxx xxx xxx

· Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws the Acts named in the bill. By the first of these Acts he is required to assign generals to command in the several military districts, and to detail sufficient military force to enable such officers to discharge their duties under the law. By the supplementary Act, other duties are imposed on the several commanding generals, and these duties must necessarily be performed under the supervision of the President as Commander-in-Chief. The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political.

Considering the language here quoted, it is difficult to regard the first paragraph of the quotation from the same decision in the majority opinion as anything but dictum. In any event, if it is to be taken as

authority for the proposition that the United States Supreme Court may prevent officers or members of Congress from carrying into effect an unconstitutional resolution, it is definitely overruled by the decision in the case of Kilbourn vs. Thompson (103 U. S., 168), in which the court held that an action would lie against the Speaker and other officers of the House of Representatives of Congress for attempting to carry into effect an unconstitutional resolution of the house committing Kilbourn to prison for contempt. The court further held that "the House of Representatives (of Congress) is not the final judge of its own power and privileges in cases in which the rights and liberties of the subject are concerned, but the legality of its action may be examined and determined by this court."

The case of Sutherland vs. Governor, supra, is the leading case in favor of the view that all official acts of the chief executive of a State are executive as distinguished from ministerial and therefore not subject to judicial review. The case represents the extreme limit to which courts have gone in that direction and its soundness has been questioned by most authorities on the subject, but because of the high reputation of the writer of the decision, Judge Cooley, it is, nevertheless, entitled to consideration.

The case was a petition for a writ of mandamus to compel the Governor of Michigan to issue a certificate of the completion of the construction of the Portage Lake and Lake Superior Ship Canal. The statutes required the governor to issue the certificate when he should be satisfied that the work had been done in conformity with the law. The duty devolving upon the governor was therefore clearly discretional and this was recognized by the court, but Judge Cooley preferred to plant the decision on additional and broader grounds, which may best be stated in the language of the court:

· . . . There is no very clear and palpable line of distinction between those duties of the governor which are political and those which are to be considered ministerial merely; and if we should undertake to draw one, and to declare that in all cases falling on one side the line the governor was subject to judicial process, and in all falling on the other he was independent of it, we should open the doors to an endless train of litigation, and the cases would be numerous in which neither the governor nor the parties would be able to determine whether his conclusion was, under the law, to be final, and the courts would be appealed to by every dissatisfied party to subject a coordinate department of the government to their jurisdiction. However desirable a power in the judiciary to interfere in such cases might seem from the standpoint of interested parties, it is manifest that harmony of action between the executive and judicial departments would be directly threatened, and that the exercise of such power could only be justified on most imperative reasons. Moreover, it is not customary in our republican government to confer upon the governor duties merely ministerial, and in the performance of which he is to be left to no discretion whatever; and the presumption in all cases must be, where a duty is devolved upon the chief executive of the State rather than upon an inferior officer, that it is so because this superior judgment, discretion, and sense of responsibility were confided in for a more accurate, faithful, and discreet performance than could be relied upon if the duty were devolved upon an officer chosen for inferior duties. And if we concede that cases may be pointed out in which it is manifest that the governor is left to no discretion, the present is certainly not among them, for here, by law, he is required to judge, on a personal inspection of the work, and must give his certificate on his own judgment, and not on that of any other person, officer, or department.

· We are not disposed, however, in the present case, to attempt on any grounds to distinguish it from other cases of executive duty with a view to lay down a narrow rule which, while disposing of this motion, may leave the grave question it presents to be presented again and again in other cases which the ingenuity of counsel may be able to distinguish in some minor

particulars from the one before us. If a broad general principle underlies all these cases, and requires the same decision in all, it would scarcely be respectful to the governor, or consistent with our own sense of duty, that we should seek to avoid its application and strive to decide each in succession upon some narrow and perhaps technical point peculiar to the special case, if such might be discovered.

· And that there is such a broad general principle seems to us very plain. Our government is one whose powers have been carefully apportioned among three distinct departments, which emanate alike from the people, have their powers alike limited and defined by the constitution, are of equal dignity, and within their respective spheres of action equally independent. One makes the laws, another applies the laws in contested cases, while the other must see that the laws are executed. This division is accepted as a necessity in all free governments, and the very apportionment of power to one department is understood to be a prohibition of its exercise by either of the others. The executive is forbidden to exercise judicial power by the same implication which forbids the courts to take upon themselves his duties.

· It is true that neither of the departments can operate in all respects independently of the others, and that what are called the checks and balances of government constitute each a restraint upon the rest. The legislature prescribes rules of action for the courts, and in many particulars may increase or diminish their jurisdiction; it also, in many cases, may prescribe rules for executive action, and impose duties upon, or take powers from the governor; while in turn the governor may veto legislative acts, and the courts may declare them void where they conflict with the constitution, notwithstanding, after having been passed by the legislature, they have received the governor's approval. But in each of these cases the action of the department which controls, modifies, or in any manner influences that of another, is had strictly within its own sphere, and for that reason gives no occasion for conflict, controversy, or jealousy. The legislature in prescribing rules for the courts, is acting within its proper province in making laws, while the courts, in declining to enforce an unconstitutional law, are in like manner acting within their proper province, because they are only applying that which is law to the controversies in which they are called upon to give judgment. It is mainly by means of these checks and balances that the officers of the several departments are kept within their jurisdiction, and if they are disregarded in any case, and power is usurped or abused, the remedy is by impeachment, and not by another department of the government attempting to correct the wrong by asserting a superior authority over that which by the constitution is its equal.

· It has long been a maxim in this country that the legislature cannot dictate to the courts what their judgments shall be, or set aside or alter such judgments after they have been rendered. If it could, constitutional liberty would cease to exist; and if the legislature could in like manner override executive action also, the government would become only a despotism under popular forms. On the other hand it would be readily conceded that no court can compel the legislature to make or to refrain from making laws, or to meet or adjourn at its command, or to take any action whatsoever, though the duty to take it be made ever so clear by the constitution or the laws. In these cases the exemption of the one department from the control of the other is not only implied in the framework of government, but is indispensably necessary in any useful apportionment of power is to exist.

In view of the fact that the duty to be performed was discretional and therefore, by the concensus of judicial opinion, not subject to judicial review, the extensive discussion of other grounds for the

decision lays it open to the same criticism as that frequently voiced in regard to Chief Justice Marshall's dissertation in the case of Murbury vs. Madison (1 Cranch, 137); namely, that it was unnecessary to the decision of the case and therefore in the nature of obiter dicta. It may also be noted that the courts of last resort in the States of Alabama, California, Colorado, Kansas, Maryland, Montana, Nebraska, Nevada, North Carolina, Ohio and Wyoming have allowed writs of mandamus to the governors of their States for the performance of ministerial duties, without bringing about any of the serious consequences predicted in Sutherland vs. Governor, supra. These States seem to have fared fully as well as the States of Arkansas, Florida, Georgia, Illinois, Indiana, Louisiana, Michigan, Minnesotta, Mississippi, Missouri, New Jersey, New York, Tennessee, and Texas which, together with the Philippine Islands, have adopted the opposite view.

But taking the decision in Sutherland vs. Governor, supra, at its full face value, I am unable to see that it is determinative of the present case. I readily concede that under the decisions of this court all acts of the chief executive within the limits of his jurisdiction are executive acts involving a measure of discretion and may not be reviewed by the courts. It may also be conceded that no court can compel the legislature as such to make or refrain from making laws, or to meet or adjourn at its command, or "to take any action whatsoever though the duty to take it be made ever so clear by the constitution or the laws." But that does not mean that the courts may not restrain officers and individual members of the legislature from carrying into effect an unconstitutional resolution transcending the limits of the legislative department and encroaching upon another. If that is beyond the power of the courts, what will then become of the checks and balances of which Judge Cooley speaks and which are regarded fully as essential a feature of our system of government as that of departmental distribution of powers?

Time forbids a full discussion of other decisions of courts in the United States which adhere to the doctrine that the judiciary will not interfere with the acts of the chief executive within the limits of his jurisdiction. It is sufficient to say that they all relate to acts within the domain of the executive and that none of them has any direct application to the present case.

But we are given to understand that by reason of its own previous decisions this court stands committed to the doctrine that it has no power to interfere with any act of the other coordinate departments of the government whether they transcend the limits of their jurisdiction or not.

A brief analysis of the decisions of this court upon the subject will show that this is a misapprehension.

The first of these decisions is that in the case of Barcelon vs. Baker and Thompson (5 Phil., 87), a petition for a writ of habeas corpus. Section 5 of the Act of Congress of July 1, 1902, conferred on the Governor-General the power to suspend the writ whenever the public safety might require it in cases of rebellion, insurrection, or invasion, and the case involved the question as to whether the courts may inquire into the legality of an order of the Governor-General suspending the privilege of the writ. The court held that "whenever a statute gives discretionary power to a person to be exercised by him upon his own opinion on certain facts, such statute constitutes him the sole and exclusive judge of the existence of those facts;" and that when the Governor-General, "with the approval of the Philippine Commission declares that a state of rebellion, insurrection, or invasion exists, this declaration or conclusion is conclusive against the judicial department of the government." The writ was therefore denied.

The leading case of Severino vs. Governor-General and Provincial Board of Occidental Negros (16 Phil., 366), was a petition for a writ of mandamus to compel the Governor-General to call a special election for the purpose of electing a municipal president of the town of Silay, Occidental Negros, and to restrain the provincial board of Occidental Negros from appointing a municipal president during the pendency of the action. By statute, the duty of calling a special election devolves upon the Governor-General and the principal question presented for consideration was whether the court had power to

compel the Governor-General to immediately perform such duty. The court denied the writ holding that "where a duty is devolved upon the Governor-General of the Philippine Islands, rather that upon an inferior officer, it will be presumed to have been done because his superior judgment, discretion, and sense of responsibility were confined in for a more accurate, faithful, and discreet performance than could be relied upon if the duty were put upon an officer chosen for inferior duties," and that the court would not undertake to direct or control the exercise of such duty. Incidentally, the court also stated that "the powers, duties, and responsibilities of the Governor-General of the Philippine Islands are far more comprehensive than those of State governors of the United States;" and laid down the rule that "the courts of the Philippine Islands have no jurisdiction to interfere, by means of a writ of mandamus or injunction, with the Governor-General as the head of the executive department in the performance of any of his official acts."

In the case of Forbes vs. Chuoco Tiaco and Crossfield (16 Phil., 534), the facts may be briefly stated as follows:

The Governor-General deported certain Chinese persons from Manila to Amoy, China. The deportees subsequently returned to Manila and brought an action in the Court of First Instance against the Governor-General and certain police officials for damages, alleging that the deportation was unlawful. The defendants thereupon filed a petition in this court for a writ of prohibition commanding the Judge of the Court of First Instance to refrain from assuming jurisdiction in the case brought by the deportees, the petitioners alleging that "the power to deport foreign subjects of the Chinese Empire is a privative one of the Governor-General and is not subject to judicial review." This court granted the writ holding that "the Governor-General, acting in his political and executive capacity, is invested with plenary power to deport obnoxious aliens whose continued presence in the territory is found by him to be injurious to the public interest, and in the absence of express or prescribed rules as to the method of deporting or expelling them, he may use such methods as his official judgment and good conscience may dictate;" that he could not be held liable in damages for the exercise of such power and that the courts would not interfere.

Case R. G. No. 20867, Perfecto vs. Wood (not published in the reports) involved exactly the same principles as Severino vs. Governor-General and Provincial Board of Occidental Negros, supra, except that the special election was to be called for the purpose of filing a vacancy in the Senate. The majority decision, signed by four justices, denied the petition on the same grounds as those stated in the Severino case. Three justices concurred in the result on the ground that the case had then become a moot case.

The doctrine laid down in Forbes vs. Chuoco Tiaco and Crossfield, supra, was followed in the case of In re McCulloch Dick.

The case of Abueva vs. Wood (45 Phil., 612), was a petition for a writ of mandamus to compel the Governor-General, the President of the Senate, the Speaker of the House of Representatives, the Insular Auditor, the Executive Secretary of the Independence Committee and the Secretary of the same Committee to permit the petitioners to examine all vouchers and documents in connection with disbursements and payments made from the fund of the Independent Commission. The petition was denied, the court stating:

· . . . It may be asserted as a principle founded upon the clearest legal reasoning that the legislature or legislative officers, in so far as concerns their purely legislative functions, are beyond the control of the courts by the writ of mandamus. The legislative department, being a coordinate and independent branch of the government, its action within its own sphere cannot be revised or controlled by mandamus by the judicial department, without a gross usurpation of power upon the part of the latter. When the legislative department of the

government imposes upon its officers the performance of certain duties which are not prohibited by the organic law of the land, the performance, the nonperformance, or the manner of the performance is under the direct control of the legislature, and such officers are not subject to the direction of the courts. . . .

The case of Concepcion vs. Paredes (42 Phil., 599), was a petition for a writ of prohibition commanding the respondent Secretary of Justice to desist from carrying into effect the provisions of Act No. 2941 requiring the Judges of the Courts of First Instance to draw lots every five years for exchange of districts. The court held that the Act constituted an encroachment by the Legislature upon the Governor-General's power of appointment and was therefore unconstitutional. The writ was granted.

What is there in these cases which can serve as authority for the theory that the courts may not interfere with the execution of acts beyond the jurisdiction of the department sought to be restrained? Absolutely nothing. The rather broad dictum in the case of Severino vs. Governor-General and Provincial Board of Occidental Negros, supra, that the courts of the Philippine Islands have no jurisdiction to interfere with the head of the executive department in the performance of any of his official acts, must be considered in connection with the context and is clearly limited to acts within the limits of his jurisdiction.

In Abueva vs. Wood, supra, the doctrine of noninterference with the Legislature is carefully limited to "actions within its own sphere" and "duties not prohibited by the organic law of the land."

In the present case we are not dealing with an act of political and nonjusticiable character, nor is there a question of interference with the exercise of discretionary powers of duties resting in the Legislature under the Organic Act. We are simply called upon to prevent the carrying into effect of unconstitutional and therefore, in a legal sense, nonexistent parts of a resolution of one of the branches of the Legislature which, if executed, will result in an encroachment upon the domain of another department and deprive the petitioner of rights and privileges to which he is by law entitled. There is no question as to the power of the Senate to punish its members for disorderly behavior, but it must be insisted that the penalty shall not constitute a usurpation of the powers of another department of the government in violation of the Organic Act. It is agreed that as long as the penalty does not expressly or impliedly violate that Act, the courts will not interfere.

That the resolution is unconstitutional and void cannot be seriously questioned and is conceded in the majority opinion, but in order to bring the issue into clear relief, it may be well to briefly state the reasons why it must be so held:

The Senate exercises delegated powers, all of which are derived from the Organic Act. That Act provides for twenty-two senators to be elected by the people and for two other senators to be appointed by the Governor-General. In the language of the Act, the appointive senators "shall hold office until removed by the Governor-General." The Act further provides that "The Senate and House of Representatives, respectively, shall be the sole judges of the elections, returns and qualifications of their elective member." It will be observed that no power to expel or remove appointive members is conferred on the houses of the Legislature, nor can such power be inferred or implied from the statute, in view of the fact that it is expressly placed in the hands of the Governor-General. The Act does not limit or qualify the term "remove" and it therefore includes both temporary and permanent removals.

An examination of the Senate resolution in question shows that in effect it provides for a complete temporary removal of the petitioner. It does not merely exclude him from the floor of the Senate Chamber, but he is also "deprived of all his prerogatives, privileges, and emoluments as such senator," for the period of one year. As far as he is concerned, his removal from office for that period could not

be made more complete. In attempting to exercise the power of such removal, the Senate clearly arrogated to itself powers which it does not possess and which, under the Organic Act, rest in the Chief Executive. Its resolution to that effect is consequent unconstitutional and void. As is the case with an unconstitutional statute, it has, in the eyes of the law, never existed.

We are therefore confronted with the facts that the petitioner is a duly appointed senate; that he, as a matter of law, is not and never has been removed or suspended from office; that he, therefore, as such senate always has been, and still is, entitled to all the prerogative, privileges, and emoluments of his office; and that, nevertheless, certain officers and members of the Senate, without any legal authority whatever, deprive him of such prerogatives, privileges, and emoluments, including his salary. The Senate has nothing to do with the appointment of an appointive senator and is not, as in the case of elective members, the judge of his qualifications; when duly appointed, the officers of the Senate are legally bound to recognize him as a senator; they have no discretion in the matter and their duties in regard thereto are purely ministerial.

In the circumstances, upon what legal principles is this court precluded from granting the petitioner the relief he demands? Why cannot, for instance, members of the Committee on Accounts and the Paymaster of the Senate be directed to cause to be paid to the petitioner the salary fixed by law?

Other courts have not hesitated to use the writ of mandamus to compel performance of similar duties by officers of the legislature. In Ex parte Pickett (24 Ala., 91), the writ was issued to the Speaker of the House of Representatives to compel him to certify to the Comptroller of Public Accounts the amount to which the petitioner was entitled as a member of the House for mileage and per diem compensation. In State vs. Elder (31 Neb., 169), the writ was issued to compel the Speaker to open and publish returns of the general election. In State vs. Moffitt (5 Ohio, 350), mandamus was held to lie to the Speaker of the House to compel him to certify the election and appointment of officers. In Wolfe vs. McCaull (76 Va., 87), the writ was issued to compel the Keeper of the Rolls of the House of Delegates to print and publish a bill passed by the Legislature and upon request to furnish a copy thereof properly certified. (See also Kilbourn vs. Thompson, 103 U. S., 168; State vs. Gilchrist, 64 Fla., 41; People vs. Marton, 156 N. Y., 136.) As stated as the outset, it is erroneously asserted in the majority opinion that this action is, in substance, a suit against the Senate as a body. This might be true if the act complained of was an act within the jurisdiction of the Senate, but such is not the case here. A practical illustration may, perhaps, make the point clear. Let us suppose that a majority of the members of the Senate should agree to commit a crime against another member and should pass a senatorial resolution to that effect. Would that, in anything but form, constitute a senatorial act? And suppose the same members should proceed to carry the resolution into effect, would not an action lie against such members and could that, in substance, be regarded as an action against the Senate? The questions answer themselves, and though in the present case the illegal act does not constitute a crime, the analogy is, nevertheless obvious; the distinction is one without a difference. As has already been pointed out, the United States Supreme Court has held that an action may, at the instances of the injured party, be maintained against the presiding officer, as well as other officers, of one of the houses of Congress for the execution of an unconstitutional resolution. In the same case it is also intimated that the action will lie against all members who take direct part in the execution of such a resolution. (Kilbourn vs. Thompson, supra.)

It may further be noted that though the prayer in the petition in this case does not expressly so state, the body of the petition shows sufficiently that the remedy to be applied may not be the same in regard to all of the defendants. The allegations seem broad enough to cover both mandamus and prohibition and the petition is not demurred to on that ground. It is also possible that if evidence were permitted some of the defendants might be absolved from the complaint.

It has been suggested that to entertain an action against a coordinate department of the government

would be an unwarranted assertion of superiority on our part. I fail to see the validity of this observation. This is not a question of departmental superiority or inferiority. This court asserts no superiority for itself; it only maintains the superiority of the law to which all of us must yield obedience. The pronouncements of the court are simply the voice of the law as understood by the court and are not personal matters. Even if this action were brought against a coordinate department as a body which it is not the court would still be in duty bound to apply the law of the land to the case and do its best to enforce that law irrespective of the rank or importance of the parties.

In the course of the argument of the case it was intimated that if the writ prayed for were issued its enforcement might be the cause of disturbance and strife. The suggestion is almost an insult to the intelligence and patriotism of the defendants and I feel sure that the fear thus expressed is entirely without foundation. At least there has been no trouble of that kind in other jurisdictions where writs have issued to officers or members of the legislature. If courts perform their duties with firmless, rectitude and moderation, regardless of personal or political considerations, their decisions will be respected and their orders and writs generally obeyed. It is usually when courts fail in these respects, and thus prove unfaithful to their trust, that their orders are disregarded and trouble ensues.

The decision of the court in the present case enjoys the distinction of being without a precedent and of resting on no sound legal prejudice of which I am aware. The arguments advanced in its support are excuses and not reasons. If carried to its logical conclusion, it may have far-reaching and serious consequences. If one branch of the government may with impunity, and with freedom from judicial intervention, freely usurp the powers of another branch, it may eventually lead either to anarchy or to tyranny. A wrong has been committed for which there is no other remedy but that there sought by the petitioner, yet the court refuses to take jurisdiction on the strength of alleged precedents which, as we have seen, in reality have no bearing whatever upon the issues of the case. It is hardly necessary to say that when men are deliberately denied redress for wrongs, the temptation is strong for them to take the law into their own hands and there is perhaps no more fruitful source of popular unrest and disturbance.

I regret to see the decision find a place in our jurisprudence and can only hope that it will not be followed by this court in the future.

The demurrer to the petition should be overruled.

Footnotes

· 1 Promulgated January 25, 1924, not reported.

EN BANC

[G.R. No. 128055. April 18, 2001]

MIRIAM DEFENSOR SANTIAGO, petitioner, vs. SANDIGANBAYAN, FRANCIS E. GARCHITORENA, JOSE S. BALAJADIA AND MINITA V. CHICO-NAZARIO, AS PRESIDING JUSTICE AND MEMBERS OF THE FIRST DIVISION, respondents.

D E C I S I O NVITUG, J.:

The Court is called upon to review the act of the Sandiganbayan, and how far it can go, in ordering the preventive suspension of petitioner, Mme. Senator Miriam Defensor-Santiago, in connection with pending criminal cases filed against her for alleged violation of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act.

The instant case arose from complaints filed by a group of employees of the Commission of Immigration and Deportation (CID) against petitioner, then CID Commissioner, for alleged violation of the Anti-Graft and Corrupt Practices Act. The investigating panel, that took over the case from Investigator Gualberto dela Llana after having been constituted by the Deputy Ombudsman for Luzon upon petitioners request, came up with a resolution which it referred, for approval, to the Office of the Special Prosecutor (OSP) and the Ombudsman. In his Memorandum, dated 26 April 1991, the Ombudsman directed the OSP to file the appropriate informations against petitioner. On 13 May 1991, OSP submitted to the Ombudsman the informations for clearance; approved, forthwith, three informations were filed on even date.

In Criminal Case No. 16698 filed before the Sandiganbayan, petitioner was indicted thusly:

That on or about October 17, 1988, or sometime prior or subsequent thereto, in Manila, Philippines and within the jurisdiction of this Honorable Court, accused MIRIAM DEFENSOR-SANTIAGO, a public officer, being then the Commissioner of the Commission on Immigration and Deportation, with evident bad faith and manifest partiality in the exercise of her official functions, did then and there willfully, unlawfully and criminally approve the application for legalization of the stay of the following aliens: Jhamtani Shalini Narendra, Ting Siok Hun, Ching Suat Liong Ting, Cu Kui Pein Uy, Cu Kui Pwe Uy, Hong Shao Guan, Hong Xiao Yuan, Xu Li Xuan, Qui Ming Xia Ong, Wu Sui Xin Quiu, Wu Hong Guan Qui @ Betty Go, Wu Hong Ru Qui @ Mary Go Xu Yin Yin Kua, Hong Shao Hua Xu, Hong Shao Wei Xu, Lu Shing Qing, Lu Shi Tian, Lu Se Chong, Shi Qing Yu, Xu Angun @ Xu An Cin, Xu Pinting, Wang Xiu Jin, Cai Pian Pian, Cai Wen Xu, Cai Min Min, Cai Ping Ping, Choi Kin Kwok @ Bernardo Suarez, Yen Liang Ju @ Jeslyn Gan, Cai Yan Nan, Yen Ling Chien @ Chrismayne Gan, So Chen Yueh-O, Cai Ya Rong, who arrived in the Philippines after January 1, 1984 in violation of Executive Order no. 324 dated April 13, 1988 which prohibits the legalization of said disqualified aliens knowing fully well that said aliens are disqualified, thereby giving unwarranted benefits to said aliens whose stay in the Philippines was unlawfully legalized by said accused.[1]

Two other criminal cases, one for violation of the provisions of Presidential Decree No. 46 and the other for libel, were filed with the Regional Trial Court of Manila, docketed, respectively, No. 91-94555 and no. 91-94897.

Pursuant to the information filed with the Sandiganbayan, Presiding Justice Francis E. Garchitorena issued an order for the arrest of petitioner, fixing the bail at Fifteen Thousand (P15,000.00) Pesos. Petitioner posted a cash bail without need for physical appearance as she was then recuperating from injuries sustained in a vehicular accident. The Sandiganbayan granted her provisional liberty until 05 June 1991 or until her physical condition would warrant her physical appearance in court. Upon

manifestation by the Ombudsman, however, that petitioner was able to come unaided to his office on 20 May 1991, Sandiganbayan issued an order setting the arraignment on 27 May 1991.

Meanwhile, petitioner moved for the cancellation of her cash bond and prayed that she be allowed provisional liberty upon a recognizance.

On 24 May 1991, petitioner filed, concurrently, a Petition for Certiorari with Prohibition and Preliminary Injunction before the Court, docketed G.R. No. 99289-90, seeking to enjoin the Sandiganbayan from proceeding with Criminal Case No. 16698 and a motion before the Sandiganbayan to meanwhile defer her arraignment. The Court taking cognizance of the petition issued a temporary restraining order.

The Sandiganbayan, thus, informed, issued an order deferring petitioners arraignment and the consideration of her motion to cancel the cash bond until further advice from the court.

On 13 January 1992, the Court rendered its decision dismissing the petition and lifting the temporary restraining order. The subsequent motion for reconsideration filed by petitioner proved unavailing.

On 06 July 1992, in the wake of media reports announcing petitioners intention to accept a fellowship from the John F. Kennedy School of Government at Harvard University, the Sandiganbayan issued an order to enjoin petitioner from leaving the country.

On 15 October 1992, petitioner moved to inhibit Sandiganbayan Presiding Justice Garchitorena from the case and to defer her arraignment pending action on her motion to inhibit. On 09 November 1992, her motion was denied by the Sandiganbayan. The following day, she filed anew a Petition for Certiorari and Prohibition with urgent Prayer for Preliminary Injunction with the Court, docketed G.R. No. 99289-90. At the same time, petitioner filed a motion for bill of particulars with the Sandiganbayan asseverating that the names of the aliens whose applications she purportedly approved and thereby supposedly extended undue advantage were conspicuously omitted in the complaint.

The Court, in its resolution of 12 November 1992, directed the Sandiganbayan to reset petitioners arraignment not later than five days from receipt of notice thereof.

On 07 December 1992, the OSP and the Ombudsman filed with the Sandiganbayan a motion to admit thirty-two amended informations. Petitioner moved for the dismissal of the 32 informations. The court, in its 11th March 1993 resolution, denied her motion to dismiss the said informations and directed her to post bail on the criminal cases, docketed Criminal Case No. 18371-18402, filed against her.

Unrelenting, petitioner, once again came to this Court via a Petition for Certiorari, docketed G.R. No. 109266, assailing the 03rd March 1993 resolution of the Sandiganbayan which resolved not to disqualify its Presiding Justice, as well as its 14th March 1993 resolution admitting the 32 Amended Informations, and seeking the nullification thereof.

Initially, the Court issued a temporary restraining order directing Presiding Justice Garchitorena to cease and desist from sitting in the case, as well as from enforcing the 11th March 1993 resolution ordering petitioner to post bail bonds for the 32 amended informations, and from proceeding with her arraignment on 12 April 1993 until the matter of his disqualification would have been resolved by the Court.

On 02 December 1993, the Court, in its decision in G.R. 109266, directed the OSP and Ombudsman to consolidate the 32 amended informations. Conformably therewith, all the 32 informations were consolidated into one information under Criminal Case No. 16698.

Petitioner, then filed with the Sandiganbayan a Motion to Redetermine probable Cause and to dismiss

or quash said information. Pending the resolution of this incident, the prosecution filed on 31 July 1995 with the Sandiganbayan a motion to issue an order suspending petitioner.

On 03 August 1995, the Sandiganbayan resolved to allow the testimony of one Rodolfo Pedellaga (Pedellaga). The presentation was scheduled on 15 September 1995.

In the interim, the Sandiganbayan directed petitioner to file her opposition to the 31st July 1995 motion for the prosecution within fifteen (15) days from receipt thereof.

On 18 August 1995, petitioner submitted to the Sandiganbayan a motion for reconsideration of its 03rd August 1995 order which would allow the testimony of Pedellaga. The incident, later denied by the Sandiganbayan, was elevated to the Court via a Petition for Review on Certiorari, entitled Miriam Defensor-Santiago vs. Sandiganbayan, docketed G.R. No. 123792.

On 22 August 1995, petitioner filed her opposition to the motion of the prosecution to suspend her. On 25 January 1996, the Sandiganbayan resolved:

WHEREFORE, for all the foregoing, the Court hereby grants the motion under consideration and hereby suspends the accused Miriam Defensor-Santiago from her position as Senator of the Republic of the Philippines and from any other government position she may be holding at present or hereafter. Her suspension shall be for ninety (90) days only and shall take effect immediately upon notice.

Let a copy of this Resolution be furnished to the Hon. Ernesto Maceda, Senate President, Senate of the Philippines, Executive House, Taft Ave., Manila, through the Hon. Secretary of the Senate, for the implementation of the suspension herein ordered. The Secretary of the Senate shall inform this court of the action taken thereon within five (5) days from receipt hereof.

The said official shall likewise inform this Court of the actual date of implementation of the suspension order as well as the expiry of the ninetieth day thereof so that the same may be lifted at the time.[2]

Hence, the instant recourse. The petition assails the authority of the Sandiganbayan to decree a ninety-day preventive suspension of Mme. Miriam Defensor-Santiago, a Senator of the Republic of the Philippines, from any government position, and furnishing a copy thereof to the Senate of the Philippines for the implementation of the suspension order.

The authority of the Sandiganbayan to order the preventive suspension of an incumbent public official charged with violation of the provisions of Republic Act No. 3019 has both legal and jurisprudential support. Section 13 of the statute provides:

SEC. 13. Suspension and loss of benefits. any incumbent public officer against whom any criminal prosecution under a valid information under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or public funds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.

In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall be liable to restitute the same to the Government. (As amended by BP Blg. 195, March 16, 1982).

In the relatively recent case of Segovia vs. Sandiganbayan,[3] the Court reiterated:

The validity of Section 13, R.A. 3019, as amended --- treating of the suspension pendente lite of an accused public officer --- may no longer be put at issue, having been repeatedly upheld by this Court.

xxx xxx xxx

The provision of suspension pendente lite applies to all persons indicted upon a valid information under the Act, whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to the career or non-career service.[4]

It would appear, indeed, to be a ministerial duty of the court to issue an order of suspension upon determination of the validity of the information filed before it. Once the information is found to be sufficient in form and substance, the court is bound to issue an order of suspension as a matter of course, and there seems to be no ifs and buts about it.[5] Explaining the nature of the preventive suspension, the Court in the case of Bayot vs. Sandiganbayan[6] observed:

x x x It is not a penalty because it is not imposed as a result of judicial proceedings. In fact, if acquitted, the official concerned shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension.[7]

In issuing the preventive suspension of petitioner, the Sandiganbayan merely adhered to the clear an unequivocal mandate of the law, as well as the jurisprudence in which the Court has, more than once, upheld Sandiganbayans authority to decree the suspension of public officials and employees indicted before it.

Section 13 of Republic Act No. 3019 does not state that the public officer concerned must be suspended only in the office where he is alleged to have committed the acts with which he has been charged. Thus, it has been held that the use of the word office would indicate that it applies to any office which the officer charged may be holding, and not only the particular office under which he stands accused.[8]

En passan, while the imposition of suspension is not automatic or self-operative as the validity of the information must be determined in a pre-suspension hearing, there is no hard and fast rule as to the conduct thereof. It has been said that-

x x x No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that the accused should be given a fair and adequate opportunity to challenge the VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g. that he has not been afforded the right of due preliminary investigation; that the acts for which he stands charged do not constitute a violation of the provisions of Republic Act 3019 or the bribery provisions of the revised Penal Code which would warrant his mandatory suspension from office under section 13 of the Act; or he may present a motion to quash the information on any of the grounds provided for in Rule 117 of the Rules of Court x x x.

xxx xxx xxx

Likewise, he is accorded the right to challenge the propriety of his prosecution on the ground that the acts for which he is charged do not constitute a violation of Rep. Act 3019, or of the provisions on bribery of the Revised Penal Code, and the right to present a motion to quash the information on any other grounds provided in Rule 117 of the Rules of Court.

However, a challenge to the validity of the criminal proceedings on the ground that the acts for which the accused is charged do not constitute a violation of the provisions of Rep. Act 3019, or of the provisions on bribery of the revised Penal Code, should be treated only in the same manner as a challenge to the criminal proceeding by way of a motion to quash on the ground provided in Paragraph (a), section 2 of Rule 117 of the Rules of Court, i.e., that the facts charged do not constitute an offense.

In other words, a resolution of the challenge to the validity of the criminal proceeding, on such ground, should be limited to an inquiry whether the facts alleged in the information, if hypothetically admitted, constitute the elements of an offense punishable under Rep. Act 3019 or the provisions on bribery of the Revised Penal Code.[9]

The law does not require that the guilt of the accused must be established in a pre-suspension proceeding before trial on the merits proceeds. Neither does it contemplate a proceeding to determine (1) the strength of the evidence of culpability against him, (2) the gravity of the offense charged, or (3) whether or not his continuance in office could influence the witnesses or pose a threat to the safety and integrity of the records an other evidence before the court could have a valid basis in decreeing preventive suspension pending the trial of the case. All it secures to the accused is adequate opportunity to challenge the validity or regularity of the proceedings against him, such as, that he has not been afforded the right to due preliminary investigation, that the acts imputed to him do not constitute a specific crime warranting his mandatory suspension from office under Section 13 of Republic Act No. 3019, or that the information is subject to quashal on any of the grounds set out in Section 3, Rule 117, of the Revised Rules on Criminal procedure.[10]

The instant petition is not the first time that an incident relating to petitioners case before the Sandiganbayan has been brought to this Court. In previous occasions, the Court has been called upon the resolve several other matters on the subject. Thus: (1) In Santiago vs. Vasquez,[11] petitioner sought to enjoin the Sandiganbayan from proceeding with Criminal case No. 16698 for violation of Republic Act No. 3019; (2) in Santiago vs. Vasquez,[12] petitioner sought the nullification of the hold departure order issued by the Sandiganbayan via a Motion to Restrain the Sandiganbayan from Enforcing its Hold Departure Order with Prayer for Issuance of a Temporary Restraining Order and/or Preliminary Injunction, with Motion to set Pending Incident for Hearing; (3) in Santiago vs. Garchitorena,[13] petitioner sought the nullification of the resolution, dated 03 March 1993, in Criminal Case No. 16698 of the Sandiganbayan (First Division) and to declare Presiding Justice Garchitorena disqualified from acting in said criminal case, and the resolution, dated 14 March 1993, which deemed as filed the 32 amended informations against her; and (4) in Miriam Defensor Santiago vs. Sandiganbayan,[14] petitioner assailed the denial by the Sandiganbayan of her motion for her reconsideration from its 03rd August 1995 order allowing the testimony of Pedellaga. In one of these cases,[15] the Court declared:

We note that petitioner had previously filed two petitions before us involving Criminal Case No. 16698 (G.R. Nos. 99289-99290; G.R. No. 107598). Petitioner has not explained why she failed to raise the issue of the delay in the preliminary investigation and the filing of the information against her in those petitions. A piece-meal presentation of issues, like the splitting of causes of action, is self-defeating.

Petitioner next claims that the Amended informations did not charge any offense punishable under Section 3 (e) of R.A. No. 3019 because the official acts complained of therein were authorized under Executive Order No. 324 and that the Board of Commissioners of the Bureau of Investigation adopted the policy of approving applications for legalization of spouses and unmarried, minor children of qualified aliens even though they had arrived in the Philippines after December 31 1983. She concludes that the Sandiganbayan erred in not granting her motion to quash the informations (Rollo, pp. 25-31).

In a motion to quash, the accused admits hypothetically the allegations of fact in the information (People vs. Supnad, 7 SCRA 603 [1963]). Therefore, petitioner admitted hypothetically in her motion that:

(1) She was a public officer;

(2) She approved the application for legalization of the stay of aliens, who arrived in the Philippines after January 1, 1984;

(3) Those aliens were disqualified;

(4) She was cognizant of such fact; and

(5) She acted in evident bad faith and manifest partiality in the execution of her official functions.

The foregoing allegations of fact constitute the elements of the offense defined in Section 3 (e) of R.A. No. 3019.[16]

The pronouncement, upholding the validity of the information filed against petitioner, behooved Sandiganbayan to discharge its mandated duty to forthwith issue the order of preventive suspension.

The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of Congress to discipline its own ranks under the Constitution which provides that each-

x x x house may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.[17]

The suspension contemplated in the above constitutional provision is a punitive measure that is imposed upon determination by the Senate or the house of Representatives, as the case may be, upon an erring member. Thus, in its resolution in the case of Ceferino Paredes, Jr., vs. Sandiganbayan, et al.,[18] the Court affirmed the order of suspension of Congressman Paredes by the Sandiganbayan, despite his protestations on the encroachment by the court on the prerogatives of congress. The Court ruled:

x x x. Petitioners invocation of Section 16 (3), Article VI of the Constitution which deals with the power of each House of Congress inter alia to punish its Members for disorderly behavior, and suspend or expel a Member by a vote of two-thirds of all its Members subject to the qualification that the penalty of suspension, when imposed, should not exceed sixty days is unavailing, as it appears to be quite distinct from the suspension spoken of in Section 13 of RA 3019, which is not a penalty but a preliminary, preventive measure, prescinding from the fact that the latter is not being imposed on petitioner for misbehavior as a Member of the House of Representatives.

The doctrine of separation of powers by itself may not be deemed to have effectively excluded members of Congress from Republic Act No. 3019 nor from its sanctions. The maxim simply recognizes each of the three co-equal and independent, albeit coordinate, branches of the government the Legislative, the Executive and the Judiciary has exclusive prerogatives and cognizance within its own sphere of influence and effectively prevents one branch from unduly intruding into the internal affairs of either branch.

Parenthetically, it might be well to elaborate a bit. Section 1, Article VIII, of the 1987 Constitution, empowers the Court to act not only in the settlement of actual controversies involving rights which are legally demandable and enforceable, but also in the determination of whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. The provision allowing the Court to look into any possible grave abuse of discretion committed by any government instrumentality has evidently been couched in general terms in order to make it malleable to judicial interpretation in the light of any emerging milieu. In its normal concept, the term has been said to imply an arbitrary, despotic, capricious or whimsical exercise of judgment amounting to lack or excess of jurisdiction. When the question, however, pertains to an affair internal to either of Congress or the Executive, the Court subscribes to the view[19] that unless an infringement of any specific Constitutional proscription thereby

inheres the Court should not deign substitute its own judgment over that of any of the other two branches of government. It is an impairment or a clear disregard of a specific constitutional precept or provision that can unbolt the steel door for judicial intervention. If any part of the Constitution is not, or ceases to be, responsive to contemporary needs, it is the people, not the Court, who must promptly react in the manner prescribed by the Charter itself.

Republic Act No. 3019 does not exclude from its coverage the members of Congress and that, therefore, the Sandiganbayan did not err in thus decreeing the assailed preventive suspension order.

Attention might be called to the fact that Criminal Case No. 16698 has been decided by the First Division of the Sandiganbayan on 06 December 1999, acquitting herein petitioner. The Court, nevertheless, deems it appropriate to render this decision for future guidance on the significant issue raised by petitioner.

WHEREFORE, the instant petition for certiorari is DISMISSED. No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

[1] Rollo, p. 96.

[2] Rollo, p. 20.

[3] 288 SCRA 328.

[4] At pp. 336-337.

[5] Libanan vs. Sandiganbayan, 163 SCRA 163.

[6] Bayot vs. Sandiganbayan, 128 SCRA 383.

[7] At p. 386.

[8] Bayot vs. Sandiganbayan, supra; Segovia vs. Sandiganbayan, supra.

[9] Luciano vs. Mariano, 40 SCRA 187; People vs. Albano, 163 SCRA 511, 517-519.

[10] Segovia vs. Sandiganbayan, supra; Resolution of the Supreme Court in A.M. No. 00-05-03-SC, dated 03 October 2000, which became effective on 01 December 2000.

[11] 205 SCRA 162.

[12] 217 SCRA 633.

[13] 228 SCRA 214.

[14] G.R. No. 123792.

[15] Santiago vs. Garchitorena, Idem.

[16] At pp. 221-222.

[17] Section 16(3), Article VI, 1987 Constitution.

[18] G.R. No. 118364, 08 August 1995.

[19] Somewhat made implicit in my understanding of Arroyo vs. De Venecia, 277 SCRA 268, 289.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-17931 February 28, 1963

CASCO PHILIPPINE CHEMICAL CO., INC., petitioner, vs.HON. PEDRO GIMENEZ, in his capacity as Auditor General of the Philippines, and HON. ISMAEL MATHAY, in his capacity as Auditor of the Central Bank, respondents.

Jalandoni & Jamir for petitioner.Officer of the Solicitor General for respondents.

CONCEPCION, J.:

This is a petition for review of a decision of the Auditor General denying a claim for refund of petitioner Casco Philippine Chemical Co., Inc.

The main facts are not disputed. Pursuant to the provisions of Republic Act No. 2609, otherwise known as the Foreign Exchange Margin Fee Law, the Central Bank of the Philippines issued on July 1, 1959, its Circular No. 95. fixing a uniform margin fee of 25% on foreign exchange transactions. To supplement the circular, the Bank later promulgated a memorandum establishing the procedure for applications for exemption from the payment of said fee, as provided in said Republic Act No. 2609. Several times in November and December 1959, petitioner Casco Philippine Chemical Co., Inc. which is engaged in the manufacture of synthetic resin glues, used in bonding lumber and veneer by plywood and hardwood producers bought foreign exchange for the importation of urea and formaldehyde which are the main raw materials in the production of said glues and paid therefor the aforementioned margin fee aggregating P33,765.42. In May, 1960, petitioner made another purchase of foreign exchange and paid the sum of P6,345.72 as margin fee therefor.

Prior thereto, petitioner had sought the refund of the first sum of P33,765.42, relying upon Resolution No. 1529 of the Monetary Board of said Bank, dated November 3, 1959, declaring that the separate importation of urea and formaldehyde is exempt from said fee. Soon after the last importation of these products, petitioner made a similar request for refund of the sum of P6,345.72 paid as margin fee therefor. Although the Central Bank issued the corresponding margin fee vouchers for the refund of said amounts, the Auditor of the Bank refused to pass in audit and approve said vouchers, upon the ground that the exemption granted by the Monetary Board for petitioner's separate importations of urea and formaldehyde is not in accord with the provisions of section 2, paragraph XVIII of Republic Act No. 2609. On appeal taken by petitioner, the Auditor General subsequently affirmed said action of the Auditor of the Bank. Hence, this petition for review.

The only question for determination in this case is whether or not "urea" and "formaldehyde" are exempt by law from the payment of the aforesaid margin fee. The pertinent portion of Section 2 of Republic Act No. 2609 reads:

· The margin established by the Monetary Board pursuant to the provision of section one hereof shall not be imposed upon the sale of foreign exchange for the importation of the following:.

· x x x x x x x x x

· XVIII. Urea formaldehyde for the manufacture of plywood and hardboard when imported by and for the exclusive use of end-users.

· Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. 1鋡 ph.耠 t

Petitioner maintains that the term "urea formaldehyde" appearing in this provision should be construed as "urea and formaldehyde" (emphasis supplied) and that respondents herein, the Auditor General and the Auditor of the Central Bank, have erred in holding otherwise. In this connection, it should be noted that, whereas "urea" and "formaldehyde" are the principal raw materials in the manufacture of synthetic resin glues, the National Institute of Science and Technology has expressed, through its Commissioner, the view that:

· Urea formaldehyde is not a chemical solution. It is the synthetic resin formed as a condensation product from definite proportions of urea and formaldehyde under certain conditions relating to temperature, acidity, and time of reaction. This produce when applied in water solution and extended with inexpensive fillers constitutes a fairly low cost adhesive for use in the manufacture of plywood.

Hence, "urea formaldehyde" is clearly a finished product, which is patently distinct and different from urea" and "formaldehyde", as separate articles used in the manufacture of the synthetic resin known as "urea formaldehyde". Petitioner contends, however, that the bill approved in Congress contained the copulative conjunction "and" between the terms "urea" and "formaldehyde", and that the members of Congress intended to exempt "urea" and "formaldehyde" separately as essential elements in the manufacture of the synthetic resin glue called "urea" formaldehyde", not the latter as a finished product, citing in support of this view the statements made on the floor of the Senate, during the consideration of the bill before said House, by members thereof. But, said individual statements do not necessarily reflect the view of the Senate. Much less do they indicate the intent of the House of Representatives (see Song Kiat Chocolate Factory vs. Central Bank, 54 Off. Gaz., 615; Mayon Motors Inc. vs. Acting Commissioner of Internal Revenue, L-15000 [March 29, 1961]; Manila Jockey Club, Inc. vs. Games & Amusement Board, L-12727 [February 29, 1960]). Furthermore, it is well settled that the enrolled bill which uses the term "urea formaldehyde" instead of "urea and formaldehyde" is conclusive upon the courts as regards the tenor of the measure passed by Congress and approved by the President (Primicias vs. Paredes, 61 Phil. 118, 120; Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs. Comm. on Elections, L-18684, September 14, 1961). If there has been any mistake in the printing ofthe bill before it was certified by the officers of Congress and approved by the Executive on which we cannot speculate, without jeopardizing the principle of separation of powers and undermining one of the cornerstones of our democratic system the remedy is by amendment or curative legislation, not by judicial decree.

WHEREFORE, the decision appealed from is hereby affirmed, with costs against the petitioner. It is so ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.

EN BANC

[G. R. No. 119775. October 24, 2003]

JOHN HAY PEOPLES ALTERNATIVE COALITION, MATEO CARIO FOUNDATION INC., CENTER FOR ALTERNATIVE SYSTEMS FOUNDATION INC., REGINA VICTORIA A. BENAFIN REPRESENTED AND JOINED BY HER MOTHER MRS. ELISA BENAFIN, IZABEL M. LUYK REPRESENTED AND JOINED BY HER MOTHER MRS. REBECCA MOLINA LUYK, KATHERINE PE REPRESENTED AND JOINED BY HER MOTHER ROSEMARIE G. PE, SOLEDAD S. CAMILO, ALICIA C. PACALSO ALIAS KEVAB, BETTY I. STRASSER, RUBY C. GIRON, URSULA C. PEREZ ALIAS BA-YAY, EDILBERTO T. CLARAVALL, CARMEN CAROMINA, LILIA G. YARANON, DIANE MONDOC, petitioners, vs. VICTOR LIM, PRESIDENT, BASES CONVERSION DEVELOPMENT AUTHORITY; JOHN HAY PORO POINT DEVELOPMENT CORPORATION, CITY OF BAGUIO, TUNTEX (B.V.I.) CO. LTD., ASIAWORLD INTERNATIONALE GROUP, INC., DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, respondents.

D E C I S I O N

CARPIO MORALES, J.:

By the present petition for prohibition, mandamus and declaratory relief with prayer for a temporary restraining order (TRO) and/or writ of preliminary injunction, petitioners assail, in the main, the constitutionality of Presidential Proclamation No. 420, Series of 1994, CREATING AND DESIGNATING a portion of the area covered by the former Camp John [Hay] as THE JOHN HAY Special Economic Zone pursuant to Republic Act No. 7227.

Republic Act No. 7227, AN ACT ACCELERATING THE CONVERSION OF MILITARY RESERVATIONS INTO OTHER PRODUCTIVE USES, CREATING THE BASES CONVERSION AND DEVELOPMENT AUTHORITY FOR THIS PURPOSE, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES, otherwise known as the Bases Conversion and Development Act of 1992, which was enacted on March 13, 1992, set out the policy of the government to accelerate the sound and balanced conversion into alternative productive uses of the former military bases under the 1947 Philippines-United States of America Military Bases Agreement, namely, the Clark and Subic military reservations as well as their extensions including the John Hay Station (Camp John Hay or the camp) in the City of Baguio.[1]

As noted in its title, R.A. No. 7227 created public respondent Bases Conversion and Development Authority[2] (BCDA), vesting it with powers pertaining to the multifarious aspects of carrying out the ultimate objective of utilizing the base areas in accordance with the declared government policy.

R.A. No. 7227 likewise created the Subic Special Economic [and Free Port] Zone (Subic SEZ) the metes and bounds of which were to be delineated in a proclamation to be issued by the President of the Philippines.[3]

R.A. No. 7227 granted the Subic SEZ incentives ranging from tax and duty-free importations, exemption of businesses therein from local and national taxes, to other hallmarks of a liberalized financial and business climate.[4]

And R.A. No. 7227 expressly gave authority to the President to create through executive proclamation, subject to the concurrence of the local government units directly affected, other Special Economic Zones (SEZ) in the areas covered respectively by the Clark military reservation, the Wallace Air Station in San Fernando, La Union, and Camp John Hay.[5]

On August 16, 1993, BCDA entered into a Memorandum of Agreement and Escrow Agreement with private respondents Tuntex (B.V.I.) Co., Ltd (TUNTEX) and Asiaworld Internationale Group, Inc. (ASIAWORLD), private corporations registered under the laws of the British Virgin Islands, preparatory to the formation of a joint venture for the development of Poro Point in La Union and Camp John Hay as premier tourist destinations and recreation centers. Four months later or on December 16, 1993, BCDA, TUNTEX and ASIAWORD executed a Joint Venture Agreement[6] whereby they bound themselves to put up a joint venture company known as the Baguio International Development and Management Corporation which would lease areas within Camp John Hay and Poro Point for the purpose of turning such places into principal tourist and recreation spots, as originally envisioned by the parties under their Memorandum of Agreement.

The Baguio City government meanwhile passed a number of resolutions in response to the actions taken by BCDA as owner and administrator of Camp John Hay.

By Resolution[7] of September 29, 1993, the Sangguniang Panlungsod of Baguio City (the sanggunian) officially asked BCDA to exclude all the barangays partly or totally located within Camp John Hay from the reach or coverage of any plan or program for its development.

By a subsequent Resolution[8] dated January 19, 1994, the sanggunian sought from BCDA an abdication, waiver or quitclaim of its ownership over the home lots being occupied by residents of nine (9) barangays surrounding the military reservation.

Still by another resolution passed on February 21, 1994, the sanggunian adopted and submitted to BCDA a 15-point concept for the development of Camp John Hay.[9] The sanggunians vision expressed, among other things, a kind of development that affords protection to the environment, the making of a family-oriented type of tourist destination, priority in employment opportunities for Baguio residents and free access to the base area, guaranteed participation of the city government in the management and operation of the camp, exclusion of the previously named nine barangays from the area for development, and liability for local taxes of businesses to be established within the camp.[10]

BCDA, Tuntex and AsiaWorld agreed to some, but rejected or modified the other proposals of the sanggunian.[11] They stressed the need to declare Camp John Hay a SEZ as a condition precedent to its full development in accordance with the mandate of R.A. No. 7227.[12]

On May 11, 1994, the sanggunian passed a resolution requesting the Mayor to order the determination of realty taxes which may otherwise be collected from real properties of Camp John Hay.[13] The resolution was intended to intelligently guide the sanggunian in determining its position on whether Camp John Hay be declared a SEZ, it (the sanggunian) being of the view that such declaration would exempt the camps property and the economic activity therein from local or national taxation.

More than a month later, however, the sanggunian passed Resolution No. 255, (Series of 1994),[14] seeking and supporting, subject to its concurrence, the issuance by then President Ramos of a presidential proclamation declaring an area of 288.1 hectares of the camp as a SEZ in accordance with the provisions of R.A. No. 7227. Together with this resolution was submitted a draft of the proposed proclamation for consideration by the President.[15]

On July 5, 1994 then President Ramos issued Proclamation No. 420,[16] the title of which was earlier indicated, which established a SEZ on a portion of Camp John Hay and which reads as follows:

x x x

Pursuant to the powers vested in me by the law and the resolution of concurrence by the City Council of Baguio, I, FIDEL V. RAMOS, President of the Philippines, do hereby create and designate a portion

of the area covered by the former John Hay reservation as embraced, covered, and defined by the 1947 Military Bases Agreement between the Philippines and the United States of America, as amended, as the John Hay Special Economic Zone, and accordingly order:

SECTION 1. Coverage of John Hay Special Economic Zone. The John Hay Special Economic Zone shall cover the area consisting of Two Hundred Eighty Eight and one/tenth (288.1) hectares, more or less, of the total of Six Hundred Seventy-Seven (677) hectares of the John Hay Reservation, more or less, which have been surveyed and verified by the Department of Environment and Natural Resources (DENR) as defined by the following technical description:

A parcel of land, situated in the City of Baguio, Province of Benguet, Island of Luzon, and particularly described in survey plans Psd-131102-002639 and Ccs-131102-000030 as approved on 16 August 1993 and 26 August 1993, respectively, by the Department of Environment and Natural Resources, in detail containing :

Lot 1, Lot 2, Lot 3, Lot 4, Lot 5, Lot 6, Lot 7, Lot 13, Lot 14, Lot 15, and Lot 20 of Ccs-131102-000030

-and-

Lot 3, Lot 4, Lot 5, Lot 6, Lot 7, Lot 8, Lot 9, Lot 10, Lot 11, Lot 14, Lot 15, Lot 16, Lot 17, and Lot 18 of Psd-131102-002639 being portions of TCT No. T-3812, LRC Rec. No. 87.

With a combined area of TWO HUNDRED EIGHTY EIGHT AND ONE/TENTH HECTARES (288.1 hectares); Provided that the area consisting of approximately Six and two/tenth (6.2) hectares, more or less, presently occupied by the VOA and the residence of the Ambassador of the United States, shall be considered as part of the SEZ only upon turnover of the properties to the government of the Republic of the Philippines.

Sec. 2. Governing Body of the John Hay Special Economic Zone. Pursuant to Section 15 of Republic Act No. 7227, the Bases Conversion and Development Authority is hereby established as the governing body of the John Hay Special Economic Zone and, as such, authorized to determine the utilization and disposition of the lands comprising it, subject to private rights, if any, and in consultation and coordination with the City Government of Baguio after consultation with its inhabitants, and to promulgate the necessary policies, rules, and regulations to govern and regulate the zone thru the John Hay Poro Point Development Corporation, which is its implementing arm for its economic development and optimum utilization.

Sec. 3. Investment Climate in John Hay Special Economic Zone. Pursuant to Section 5(m) and Section 15 of Republic Act No. 7227, the John Hay Poro Point Development Corporation shall implement all necessary policies, rules, and regulations governing the zone, including investment incentives, in consultation with pertinent government departments. Among others, the zone shall have all the applicable incentives of the Special Economic Zone under Section 12 of Republic Act No. 7227 and those applicable incentives granted in the Export Processing Zones, the Omnibus Investment Code of 1987, the Foreign Investment Act of 1991, and new investment laws that may hereinafter be enacted.

Sec. 4. Role of Departments, Bureaus, Offices, Agencies and Instrumentalities. All Heads of departments, bureaus, offices, agencies, and instrumentalities of the government are hereby directed to give full support to Bases Conversion and Development Authority and/or its implementing subsidiary or joint venture to facilitate the necessary approvals to expedite the implementation of various projects of the conversion program.

Sec. 5. Local Authority. Except as herein provided, the affected local government units shall retain their basic autonomy and identity.

Sec. 6. Repealing Clause. All orders, rules, and regulations, or parts thereof, which are inconsistent with the provisions of this Proclamation, are hereby repealed, amended, or modified accordingly.

Sec. 7. Effectivity. This proclamation shall take effect immediately.

Done in the City of Manila, this 5th day of July, in the year of Our Lord, nineteen hundred and ninety-four.

The issuance of Proclamation No. 420 spawned the present petition[17] for prohibition, mandamus and declaratory relief which was filed on April 25, 1995 challenging, in the main, its constitutionality or validity as well as the legality of the Memorandum of Agreement and Joint Venture Agreement between public respondent BCDA and private respondents Tuntex and AsiaWorld.

Petitioners allege as grounds for the allowance of the petition the following:

I. PRESIDENTIAL PROCLAMATION NO. 420, SERIES OF 1990 (sic) IN SO FAR AS IT GRANTS TAX EXEMPTIONS IS INVALID AND ILLEGAL AS IT IS AN UNCONSTITUTIONAL EXERCISE BY THE PRESIDENT OF A POWER GRANTED ONLY TO THE LEGISLATURE.

II. PRESIDENTIAL PROCLAMATION NO. 420, IN SO FAR AS IT LIMITS THE POWERS AND INTERFERES WITH THE AUTONOMY OF THE CITY OF BAGUIO IS INVALID, ILLEGAL AND UNCONSTITUTIONAL.

III. PRESIDENTIAL PROCLAMATION NO. 420, SERIES OF 1994 IS UNCONSTITUTIONAL IN THAT IT VIOLATES THE RULE THAT ALL TAXES SHOULD BE UNIFORM AND EQUITABLE.

IV. THE MEMORANDUM OF AGREEMENT ENTERED INTO BY AND BETWEEN PRIVATE AND PUBLIC RESPONDENTS BASES CONVERSION DEVELOPMENT AUTHORITY HAVING BEEN ENTERED INTO ONLY BY DIRECT NEGOTIATION IS ILLEGAL.

V. THE TERMS AND CONDITIONS OF THE MEMORANDUM OF AGREEMENT ENTERED INTO BY AND BETWEEN PRIVATE AND PUBLIC RESPONDENT BASES CONVERSION DEVELOPMENT AUTHORITY IS (sic) ILLEGAL.

VI. THE CONCEPTUAL DEVELOPMENT PLAN OF RESPONDENTS NOT HAVING UNDERGONE ENVIRONMENTAL IMPACT ASSESSMENT IS BEING ILLEGALLY CONSIDERED WITHOUT A VALID ENVIRONMENTAL IMPACT ASSESSMENT.

A temporary restraining order and/or writ of preliminary injunction was prayed for to enjoin BCDA, John Hay Poro Point Development Corporation and the city government from implementing Proclamation No. 420, and Tuntex and AsiaWorld from proceeding with their plan respecting Camp John Hays development pursuant to their Joint Venture Agreement with BCDA.[18]

Public respondents, by their separate Comments, allege as moot and academic the issues raised by the petition, the questioned Memorandum of Agreement and Joint Venture Agreement having already been deemed abandoned by the inaction of the parties thereto prior to the filing of the petition as in fact, by letter of November 21, 1995, BCDA formally notified Tuntex and AsiaWorld of the revocation of their said agreements.[19]

In maintaining the validity of Proclamation No. 420, respondents contend that by extending to the John Hay SEZ economic incentives similar to those enjoyed by the Subic SEZ which was established under R.A. No. 7227, the proclamation is merely implementing the legislative intent of said law to turn the US military bases into hubs of business activity or investment. They underscore the point that the governments policy of bases conversion can not be achieved without extending the same tax exemptions granted by R.A. No. 7227 to Subic SEZ to other SEZs.

Denying that Proclamation No. 420 is in derogation of the local autonomy of Baguio City or that it is violative of the constitutional guarantee of equal protection, respondents assail petitioners lack of standing to bring the present suit even as taxpayers and in the absence of any actual case or controversy to warrant this Courts exercise of its power of judicial review over the proclamation.

Finally, respondents seek the outright dismissal of the petition for having been filed in disregard of the hierarchy of courts and of the doctrine of exhaustion of administrative remedies.

Replying,[20] petitioners aver that the doctrine of exhaustion of administrative remedies finds no application herein since they are invoking the exclusive authority of this Court under Section 21 of R.A. No. 7227 to enjoin or restrain implementation of projects for conversion of the base areas; that the established exceptions to the aforesaid doctrine obtain in the present petition; and that they possess the standing to bring the petition which is a taxpayers suit.

Public respondents have filed their Rejoinder[21] and the parties have filed their respective memoranda.

Before dwelling on the core issues, this Court shall first address the preliminary procedural questions confronting the petition.

The judicial policy is and has always been that this Court will not entertain direct resort to it except when the redress sought cannot be obtained in the proper courts, or when exceptional and compelling circumstances warrant availment of a remedy within and calling for the exercise of this Courts primary jurisdiction.[22] Neither will it entertain an action for declaratory relief, which is partly the nature of this petition, over which it has no original jurisdiction.

Nonetheless, as it is only this Court which has the power under Section 21[23] of R.A. No. 7227 to enjoin implementation of projects for the development of the former US military reservations, the issuance of which injunction petitioners pray for, petitioners direct filing of the present petition with it is allowed. Over and above this procedural objection to the present suit, this Court retains full discretionary power to take cognizance of a petition filed directly to it if compelling reasons, or the nature and importance of the issues raised, warrant.[24] Besides, remanding the case to the lower courts now would just unduly prolong adjudication of the issues.

The transformation of a portion of the area covered by Camp John Hay into a SEZ is not simply a re-classification of an area, a mere ascription of a status to a place. It involves turning the former US military reservation into a focal point for investments by both local and foreign entities. It is to be made a site of vigorous business activity, ultimately serving as a spur to the countrys long awaited economic growth. For, as R.A. No. 7227 unequivocally declares, it is the governments policy to enhance the benefits to be derived from the base areas in order to promote the economic and social development of Central Luzon in particular and the country in general.[25] Like the Subic SEZ, the John Hay SEZ should also be turned into a self-sustaining, industrial, commercial, financial and investment center.[26]

More than the economic interests at stake, the development of Camp John Hay as well as of the other base areas unquestionably has critical links to a host of environmental and social concerns. Whatever use to which these lands will be devoted will set a chain of events that can affect one way or another the social and economic way of life of the communities where the bases are located, and ultimately the nation in general.

Underscoring the fragility of Baguio Citys ecology with its problem on the scarcity of its water supply, petitioners point out that the local and national government are faced with the challenge of how to provide for an ecologically sustainable, environmentally sound, equitable transition for the city in the wake of Camp John Hays reversion to the mass of government property.[27] But that is why R.A. No.

7227 emphasizes the sound and balanced conversion of the Clark and Subic military reservations and their extensions consistent with ecological and environmental standards.[28] It cannot thus be gainsaid that the matter of conversion of the US bases into SEZs, in this case Camp John Hay, assumes importance of a national magnitude.

Convinced then that the present petition embodies crucial issues, this Court assumes jurisdiction over the petition.

As far as the questioned agreements between BCDA and Tuntex and AsiaWorld are concerned, the legal questions being raised thereon by petitioners have indeed been rendered moot and academic by the revocation of such agreements. There are, however, other issues posed by the petition, those which center on the constitutionality of Proclamation No. 420, which have not been mooted by the said supervening event upon application of the rules for the judicial scrutiny of constitutional cases. The issues boil down to:

(1) Whether the present petition complies with the requirements for this Courts exercise of jurisdiction over constitutional issues;

(2) Whether Proclamation No. 420 is constitutional by providing for national and local tax exemption within and granting other economic incentives to the John Hay Special Economic Zone; and

(3) Whether Proclamation No. 420 is constitutional for limiting or interfering with the local autonomy of Baguio City;

It is settled that when questions of constitutional significance are raised, the court can exercise its power of judicial review only if the following requisites are present: (1) the existence of an actual and appropriate case; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.[29]

An actual case or controversy refers to an existing case or controversy that is appropriate or ripe for determination, not conjectural or anticipatory.[30] The controversy needs to be definite and concrete, bearing upon the legal relations of parties who are pitted against each other due to their adverse legal interests.[31] There is in the present case a real clash of interests and rights between petitioners and respondents arising from the issuance of a presidential proclamation that converts a portion of the area covered by Camp John Hay into a SEZ, the former insisting that such proclamation contains unconstitutional provisions, the latter claiming otherwise.

R.A. No. 7227 expressly requires the concurrence of the affected local government units to the creation of SEZs out of all the base areas in the country.[32] The grant by the law on local government units of the right of concurrence on the bases conversion is equivalent to vesting a legal standing on them, for it is in effect a recognition of the real interests that communities nearby or surrounding a particular base area have in its utilization. Thus, the interest of petitioners, being inhabitants of Baguio, in assailing the legality of Proclamation No. 420, is personal and substantial such that they have sustained or will sustain direct injury as a result of the government act being challenged.[33] Theirs is a material interest, an interest in issue affected by the proclamation and not merely an interest in the question involved or an incidental interest,[34] for what is at stake in the enforcement of Proclamation No. 420 is the very economic and social existence of the people of Baguio City.

Petitioners locus standi parallels that of the petitioner and other residents of Bataan, specially of the town of Limay, in Garcia v. Board of Investments[35] where this Court characterized their interest in the establishment of a petrochemical plant in their place as actual, real, vital and legal, for it would affect not only their economic life but even the air they breathe.

Moreover, petitioners Edilberto T. Claravall and Lilia G. Yaranon were duly elected councilors of Baguio at the time, engaged in the local governance of Baguio City and whose duties included deciding for and on behalf of their constituents the question of whether to concur with the declaration of a portion of the area covered by Camp John Hay as a SEZ. Certainly then, petitioners Claravall and Yaranon, as city officials who voted against[36] the sanggunian Resolution No. 255 (Series of 1994) supporting the issuance of the now challenged Proclamation No. 420, have legal standing to bring the present petition.

That there is herein a dispute on legal rights and interests is thus beyond doubt. The mootness of the issues concerning the questioned agreements between public and private respondents is of no moment.

By the mere enactment of the questioned law or the approval of the challenged act, the dispute is deemed to have ripened into a judicial controversy even without any other overt act. Indeed, even a singular violation of the Constitution and/or the law is enough to awaken judicial duty.[37]

As to the third and fourth requisites of a judicial inquiry, there is likewise no question that they have been complied with in the case at bar. This is an action filed purposely to bring forth constitutional issues, ruling on which this Court must take up. Besides, respondents never raised issues with respect to these requisites, hence, they are deemed waived.

Having cleared the way for judicial review, the constitutionality of Proclamation No. 420, as framed in the second and third issues above, must now be addressed squarely.

The second issue refers to petitioners objection against the creation by Proclamation No. 420 of a regime of tax exemption within the John Hay SEZ. Petitioners argue that nowhere in R. A. No. 7227 is there a grant of tax exemption to SEZs yet to be established in base areas, unlike the grant under Section 12 thereof of tax exemption and investment incentives to the therein established Subic SEZ. The grant of tax exemption to the John Hay SEZ, petitioners conclude, thus contravenes Article VI, Section 28 (4) of the Constitution which provides that No law granting any tax exemption shall be passed without the concurrence of a majority of all the members of Congress.

Section 3 of Proclamation No. 420, the challenged provision, reads:

Sec. 3. Investment Climate in John Hay Special Economic Zone. Pursuant to Section 5(m) and Section 15 of Republic Act No. 7227, the John Hay Poro Point Development Corporation shall implement all necessary policies, rules, and regulations governing the zone, including investment incentives, in consultation with pertinent government departments. Among others, the zone shall have all the applicable incentives of the Special Economic Zone under Section 12 of Republic Act No. 7227 and those applicable incentives granted in the Export Processing Zones, the Omnibus Investment Code of 1987, the Foreign Investment Act of 1991, and new investment laws that may hereinafter be enacted. (Emphasis and underscoring supplied)

Upon the other hand, Section 12 of R.A. No. 7227 provides:

x x x

(a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent provisions of the Local Government Code, the Subic Special Economic Zone shall be developed into a self-sustaining, industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments;

b) The Subic Special Economic Zone shall be operated and managed as a separate customs territory ensuring free flow or movement of goods and capital within, into and exported out of the Subic Special

Economic Zone, as well as provide incentives such as tax and duty free importations of raw materials, capital and equipment. However, exportation or removal of goods from the territory of the Subic Special Economic Zone to the other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines;

(c) The provisions of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local and national, shall be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three percent (3%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone shall be remitted to the National Government, one percent (1%) each to the local government units affected by the declaration of the zone in proportion to their population area, and other factors. In addition, there is hereby established a development fund of one percent (1%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone to be utilized for the Municipality of Subic, and other municipalities contiguous to be base areas. In case of conflict between national and local laws with respect to tax exemption privileges in the Subic Special Economic Zone, the same shall be resolved in favor of the latter;

(d) No exchange control policy shall be applied and free markets for foreign exchange, gold, securities and futures shall be allowed and maintained in the Subic Special Economic Zone;

(e) The Central Bank, through the Monetary Board, shall supervise and regulate the operations of banks and other financial institutions within the Subic Special Economic Zone;

(f) Banking and Finance shall be liberalized with the establishment of foreign currency depository units of local commercial banks and offshore banking units of foreign banks with minimum Central Bank regulation;

(g) Any investor within the Subic Special Economic Zone whose continuing investment shall not be less than Two Hundred fifty thousand dollars ($250,000), his/her spouse and dependent children under twenty-one (21) years of age, shall be granted permanent resident status within the Subic Special Economic Zone. They shall have freedom of ingress and egress to and from the Subic Special Economic Zone without any need of special authorization from the Bureau of Immigration and Deportation. The Subic Bay Metropolitan Authority referred to in Section 13 of this Act may also issue working visas renewable every two (2) years to foreign executives and other aliens possessing highly-technical skills which no Filipino within the Subic Special Economic Zone possesses, as certified by the Department of Labor and Employment. The names of aliens granted permanent residence status and working visas by the Subic Bay Metropolitan Authority shall be reported to the Bureau of Immigration and Deportation within thirty (30) days after issuance thereof;

x x x (Emphasis supplied)

It is clear that under Section 12 of R.A. No. 7227 it is only the Subic SEZ which was granted by Congress with tax exemption, investment incentives and the like. There is no express extension of the aforesaid benefits to other SEZs still to be created at the time via presidential proclamation.

The deliberations of the Senate confirm the exclusivity to Subic SEZ of the tax and investment privileges accorded it under the law, as the following exchanges between our lawmakers show during the second reading of the precursor bill of R.A. No. 7227 with respect to the investment policies that would govern Subic SEZ which are now embodied in the aforesaid Section 12 thereof:

x x x

Senator Maceda: This is what I was talking about. We get into problems here because all of these following policies are centered around the concept of free port. And in the main paragraph above, we have declared both Clark and Subic as special economic zones, subject to these policies which are, in

effect, a free-port arrangement.

Senator Angara: The Gentleman is absolutely correct, Mr. President. So we must confine these policies only to Subic.

May I withdraw then my amendment, and instead provide that THE SPECIAL ECONOMIC ZONE OF SUBIC SHALL BE ESTABLISHED IN ACCORDANCE WITH THE FOLLOWING POLICIES. Subject to style, Mr. President.

Thus, it is very clear that these principles and policies are applicable only to Subic as a free port.

Senator Paterno: Mr. President.

The President: Senator Paterno is recognized.

Senator Paterno: I take it that the amendment suggested by Senator Angara would then prevent the establishment of other special economic zones observing these policies.

Senator Angara: No, Mr. President, because during our short caucus, Senator Laurel raised the point that if we give this delegation to the President to establish other economic zones, that may be an unwarranted delegation.

So we agreed that we will simply limit the definition of powers and description of the zone to Subic, but that does not exclude the possibility of creating other economic zones within the baselands.

Senator Paterno: But if that amendment is followed, no other special economic zone may be created under authority of this particular bill. Is that correct, Mr. President?

Senator Angara: Under this specific provision, yes, Mr. President. This provision now will be confined only to Subic.[38]

x x x (Underscoring supplied).

As gathered from the earlier-quoted Section 12 of R.A. No. 7227, the privileges given to Subic SEZ consist principally of exemption from tariff or customs duties, national and local taxes of business entities therein (paragraphs (b) and (c)), free market and trade of specified goods or properties (paragraph d), liberalized banking and finance (paragraph f), and relaxed immigration rules for foreign investors (paragraph g). Yet, apart from these, Proclamation No. 420 also makes available to the John Hay SEZ benefits existing in other laws such as the privilege of export processing zone-based businesses of importing capital equipment and raw materials free from taxes, duties and other restrictions;[39] tax and duty exemptions, tax holiday, tax credit, and other incentives under the Omnibus Investments Code of 1987;[40] and the applicability to the subject zone of rules governing foreign investments in the Philippines.[41]

While the grant of economic incentives may be essential to the creation and success of SEZs, free trade zones and the like, the grant thereof to the John Hay SEZ cannot be sustained. The incentives under R.A. No. 7227 are exclusive only to the Subic SEZ, hence, the extension of the same to the John Hay SEZ finds no support therein. Neither does the same grant of privileges to the John Hay SEZ find support in the other laws specified under Section 3 of Proclamation No. 420, which laws were already extant before the issuance of the proclamation or the enactment of R.A. No. 7227.

More importantly, the nature of most of the assailed privileges is one of tax exemption. It is the legislature, unless limited by a provision of the state constitution, that has full power to exempt any person or corporation or class of property from taxation, its power to exempt being as broad as its power to tax.[42] Other than Congress, the Constitution may itself provide for specific tax exemptions,[43] or local governments may pass ordinances on exemption only from local taxes.[44]

The challenged grant of tax exemption would circumvent the Constitutions imposition that a law granting any tax exemption must have the concurrence of a majority of all the members of Congress.[45] In the same vein, the other kinds of privileges extended to the John Hay SEZ are by tradition and usage for Congress to legislate upon.

Contrary to public respondents suggestions, the claimed statutory exemption of the John Hay SEZ from taxation should be manifest and unmistakable from the language of the law on which it is based; it must be expressly granted in a statute stated in a language too clear to be mistaken.[46] Tax exemption cannot be implied as it must be categorically and unmistakably expressed.[47]

If it were the intent of the legislature to grant to the John Hay SEZ the same tax exemption and incentives given to the Subic SEZ, it would have so expressly provided in the R.A. No. 7227.

This Court no doubt can void an act or policy of the political departments of the government on either of two groundsinfringement of the Constitution or grave abuse of discretion.[48]

This Court then declares that the grant by Proclamation No. 420 of tax exemption and other privileges to the John Hay SEZ is void for being violative of the Constitution. This renders it unnecessary to still dwell on petitioners claim that the same grant violates the equal protection guarantee.

With respect to the final issue raised by petitioners that Proclamation No. 420 is unconstitutional for being in derogation of Baguio Citys local autonomy, objection is specifically mounted against Section 2 thereof in which BCDA is set up as the governing body of the John Hay SEZ.[49]

Petitioners argue that there is no authority of the President to subject the John Hay SEZ to the governance of BCDA which has just oversight functions over SEZ; and that to do so is to diminish the city governments power over an area within its jurisdiction, hence, Proclamation No. 420 unlawfully gives the President power of control over the local government instead of just mere supervision.

Petitioners arguments are bereft of merit. Under R.A. No. 7227, the BCDA is entrusted with, among other things, the following purpose:[50]

x x x

(a) To own, hold and/or administer the military reservations of John Hay Air Station, Wallace Air Station, ODonnell Transmitter Station, San Miguel Naval Communications Station, Mt. Sta. Rita Station (Hermosa, Bataan) and those portions of Metro Manila Camps which may be transferred to it by the President;

x x x (Underscoring supplied)

With such broad rights of ownership and administration vested in BCDA over Camp John Hay, BCDA virtually has control over it, subject to certain limitations provided for by law. By designating BCDA as the governing agency of the John Hay SEZ, the law merely emphasizes or reiterates the statutory role or functions it has been granted.

The unconstitutionality of the grant of tax immunity and financial incentives as contained in the second sentence of Section 3 of Proclamation No. 420 notwithstanding, the entire assailed proclamation cannot be declared unconstitutional, the other parts thereof not being repugnant to law or the Constitution. The delineation and declaration of a portion of the area covered by Camp John Hay as a SEZ was well within the powers of the President to do so by means of a proclamation.[51] The requisite prior concurrence by the Baguio City government to such proclamation appears to have been given in the form of a duly enacted resolution by the sanggunian. The other provisions of the proclamation had been proven to be consistent with R.A. No. 7227.

Where part of a statute is void as contrary to the Constitution, while another part is valid, the valid

portion, if separable from the invalid, may stand and be enforced.[52] This Court finds that the other provisions in Proclamation No. 420 converting a delineated portion of Camp John Hay into the John Hay SEZ are separable from the invalid second sentence of Section 3 thereof, hence they stand.

WHEREFORE, the second sentence of Section 3 of Proclamation No. 420 is hereby declared NULL AND VOID and is accordingly declared of no legal force and effect. Public respondents are hereby enjoined from implementing the aforesaid void provision.

Proclamation No. 420, without the invalidated portion, remains valid and effective.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Vitug, Panganiban, Sandoval-Gutierrez, Carpio, Austria-Martinez, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

Puno, J., no part, due to relationship.

Quisumbing, J., due prior action, no part.

Ynares-Santiago, and Corona, JJ., on leave.

[1] R.A. 7227, Section 2.

[2] Id., Section 3.

[3] Id., Section 12.

[4] Ibid.

[5] R. A. 7227, Section 15.

[6] Rollo, Annex A, pp. 45-57.

[7] Id., Annex C, pp. 64-65.

[8] Rollo, Annex D, pp. 66-67.

[9] Id., Annex E, pp. 68-69.

[10] Id., Annex E-1, pp. 70-71.

[11] Id., Annex B, pp. 58-63.

[12] Ibid.

[13] Rollo, Annex F, p. 72.

[14] Id., Annex H, p. 76.

[15] Id. at 77-78.

[16] Id. at 79-81.

[17] Rollo, pp. 2-44.

[18] Rollo, pp. 22-23.

[19] Rollo, p. 167.

[20] Rollo, pp. 181-200.

[21] Id. at 235-240.

[22] Tano v. Socrates, 278 SCRA 154 [1997] citing Santiago v. Vasquez, 217 SCRA 633 [1993].

[23] R. A. 7227, Section 21 provides: The implementation of the projects for the conversion into alternative productive uses of the military reservations are urgent and necessary and shall not be restrained or enjoined except by an order issued by the Supreme Court of the Philippines.

[24] Fortich v. Corona, 289 SCRA 624 [1998].

[25] R.A. 7227, Section 2.

[26] Id. at Section 12 (a).

[27] Rollo, pp. 20-21.

[28] R. A. 7227, Section 4 (b).

[29] Integrated Bar of the Philippines v. Zamora, 338 SCRA 81 [2000].

[30] Board of Optometry v. Colet, 260 SCRA 88 [1996].

[31] Cruz, Philippine Political Law, p. 258 [1998].

[32] Vide R. A. 7227, Sections 12 and 15.

[33] Joya v. Presidential Commission on Good Government, 225 SCRA 568 (1993).

[34] Ibid.

[35] 177 SCRA 374 (1989).

[36] Rollo, Annex H, p. 76.

[37] Pimentel, Jr. v. Aguirre, 336 SCRA 201 (2000).

[38] Record of the Senate, Vol. III, N. 56, p. 329 [January 22, 1992].

[39] Vide R.A. 7916, The Special Economic Zone Act of 1995.

[40] There are a multitude of incentives under the Omnibus Investments Code of 1987 depending on the classification of the business or enterprise that is covered by the Code.

[41] See R.A. 7042, Foreign Investments Act of 1991.

[42] 71 Am. Jur. 2d 309.

[43] Vide CONSTITUTION, Article VI, Section 28 (3).

[44] Vide R.A. 7160, Section 192.

[45] CONSTITUTION, Article VI, Section 28 (4).

[46] Commissioner of Internal Revenue v. Court of Appeals, 298 SCRA 83 (1998).

[47] National Development Company v. Commissioner of Internal Revenue, 151 SCRA 472 (1987).

[48] Garcia v. Corona , Separate Opinion of Justice Panganiban , 321 SCRA 218, 237 (1999).

[49] Proc. No. 420, Section 2. Governing Body of the John Hay Special Economic Zone. Pursuant to Section 15 of Republic Act No. 7227, the Bases Conversion and Development Authority is hereby established as the governing body of the John Hay Special Economic Zone and, as such, authorized to determine the utilization and disposition of the lands comprising it, subject to private rights, if any, and in consultation and coordination with the City Government of Baguio after consultation with its

inhabitants, and to promulgate the necessary policies, rules, and regulations to govern and regulate the zone thru the John Hay Poro Point Development Corporation, which is its implementing arm for its economic development and optimum utilization.

[50] R.A. 7227, Section 4.

[51] R.A. 7227, Section 15.

[52] Agpalo, Statutory Construction, pp. 27-28 [1995].


EN BANC

G.R. No. 109289 October 3, 1994

RUFINO R. TAN, petitioner, vs.RAMON R. DEL ROSARIO, JR., as SECRETARY OF FINANCE & JOSE U. ONG, as COMMISSIONER OF INTERNAL REVENUE, respondents.

G.R. No. 109446 October 3, 1994

CARAG, CABALLES, JAMORA AND SOMERA LAW OFFICES, CARLO A. CARAG, MANUELITO O. CABALLES, ELPIDIO C. JAMORA, JR. and BENJAMIN A. SOMERA, JR., petitioners, vs.RAMON R. DEL ROSARIO, in his capacity as SECRETARY OF FINANCE and JOSE U. ONG, in his capacity as COMMISSIONER OF INTERNAL REVENUE, respondents.

Rufino R. Tan for and in his own behalf.

Carag, Caballes, Jamora & Zomera Law Offices for petitioners in G.R. 109446.

VITUG, J.:

These two consolidated special civil actions for prohibition challenge, in G.R. No. 109289, the constitutionality of Republic Act No. 7496, also commonly known as the Simplified Net Income Taxation Scheme ("SNIT"), amending certain provisions of the National Internal Revenue Code and, inG.R. No. 109446, the validity of Section 6, Revenue Regulations No. 2-93, promulgated by public respondents pursuant to said law.

Petitioners claim to be taxpayers adversely affected by the continued implementation of the amendatory legislation.

In G.R. No. 109289, it is asserted that the enactment of Republic ActNo. 7496 violates the following provisions of the Constitution:

· Article VI, Section 26(1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof.

· Article VI, Section 28(1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation.

· Article III, Section 1 No person shall be deprived of . . . property without due process of law, nor shall any person be denied the equal protection of the laws.

In G.R. No. 109446, petitioners, assailing Section 6 of Revenue Regulations No. 2-93, argue that public respondents have exceeded their rule-making authority in applying SNIT to general professional partnerships.

The Solicitor General espouses the position taken by public respondents.

The Court has given due course to both petitions. The parties, in compliance with the Court's directive, have filed their respective memoranda.

G.R. No. 109289

Petitioner contends that the title of House Bill No. 34314, progenitor of Republic Act No. 7496, is a misnomer or, at least, deficient for being merely entitled, "Simplified Net Income Taxation Scheme for the Self-Employedand Professionals Engaged in the Practice of their Profession" (Petition in G.R. No. 109289).

The full text of the title actually reads:

· An Act Adopting the Simplified Net Income Taxation Scheme For The Self-Employed and Professionals Engaged In The Practice of Their Profession, Amending Sections 21 and 29 of the National Internal Revenue Code, as Amended.

The pertinent provisions of Sections 21 and 29, so referred to, of the National Internal Revenue Code, as now amended, provide:

· Sec. 21. Tax on citizens or residents. —

· xxx xxx xxx

· (f) Simplified Net Income Tax for the Self-Employed and/or Professionals Engaged in the Practice of Profession. A tax is hereby imposed upon the taxable net income as determined in Section 27 received during each taxable year from all sources, other than income covered by paragraphs (b), (c), (d) and (e) of this section by every individual whethera citizen of the Philippines or an alien residing in the Philippines who is self-employed or practices his profession herein, determined in accordance with the following schedule:

· Not over P10,000 3%

· Over P10,000 P300 + 9%but not over P30,000 of excess over P10,000

· Over P30,000 P2,100 + 15%but not over P120,00 of excess over P30,000

· Over P120,000 P15,600 + 20%but not over P350,000 of excess over P120,000

· Over P350,000 P61,600 + 30%of excess over P350,000

· Sec. 29. Deductions from gross income. In computing taxable income subject to tax under Sections 21(a), 24(a), (b) and (c); and 25 (a)(1), there shall be allowed as deductions the items specified in paragraphs (a) to (i) of this section: Provided, however, That in computing taxable income subject to tax under Section 21 (f) in the case of individuals engaged in business or practice of profession, only the following direct costs shall be allowed as deductions:

· (a) Raw materials, supplies and direct labor;

· (b) Salaries of employees directly engaged in activities in the course of or pursuant to the business or practice of their profession;

· (c) Telecommunications, electricity, fuel, light and water;

· (d) Business rentals;

· (e) Depreciation;

· (f) Contributions made to the Government and accredited relief organizations for the rehabilitation of calamity stricken areas declared by the President; and

· (g) Interest paid or accrued within a taxable year on loans contracted from accredited financial institutions which must be proven to have been incurred in connection with the conduct of a taxpayer's profession, trade or business.

· For individuals whose cost of goods sold and direct costs are difficult to determine, a maximum of forty per cent (40%) of their gross receipts shall be allowed as deductions to answer for business or professional expenses as the case may be.

On the basis of the above language of the law, it would be difficult to accept petitioner's view that the amendatory law should be considered as having now adopted a gross income, instead of as having still retained the net income, taxation scheme. The allowance for deductible items, it is true, may have significantly been reduced by the questioned law in comparison with that which has prevailed prior to the amendment; limiting, however, allowable deductions from gross income is neither discordant with, nor opposed to, the net income tax concept. The fact of the matter is still that various deductions, which are by no means inconsequential, continue to be well provided under the new law.

Article VI, Section 26(1), of the Constitution has been envisioned so as (a) to prevent log-rolling legislation intended to unite the members of the legislature who favor any one of unrelated subjects in support of the whole act, (b) to avoid surprises or even fraud upon the legislature, and (c) to fairly apprise the people,

through such publications of its proceedings as are usually made, of the subjects of legislation. 1 The above objectives of the fundamental law appear to us to have been sufficiently met. Anything else would be to require a virtual compendium of the law which could not have been the intendment of the constitutional mandate.

Petitioner intimates that Republic Act No. 7496 desecrates the constitutional requirement that taxation "shall be uniform and equitable" in that the law would now attempt to tax single proprietorships and professionals differently from the manner it imposes the tax on corporations and partnerships. The contention clearly forgets, however, that such a system of income taxation has long been the prevailing rule even prior to Republic Act No. 7496.

Uniformity of taxation, like the kindred concept of equal protection, merely requires that all subjects or objects of taxation, similarly situated, are to be treated alike both in privileges and liabilities (Juan Luna Subdivision vs. Sarmiento, 91 Phil. 371). Uniformity does not forfend classification as long as: (1) the standards that are used therefor are substantial and not arbitrary, (2) the categorization is germane to achieve the legislative purpose, (3) the law applies, all things being equal, to both present and future conditions, and (4) the classification applies equally well to all those belonging to the same class (Pepsi Cola vs. City of Butuan, 24 SCRA 3; Basco vs. PAGCOR, 197 SCRA 52).

What may instead be perceived to be apparent from the amendatory law is the legislative intent to increasingly shift the income tax system towards the schedular approach 2 in the income taxation of individual taxpayers and to maintain, by and large, the present global treatment 3 on taxable corporations. We certainly do not view this classification to be arbitrary and inappropriate.

Petitioner gives a fairly extensive discussion on the merits of the law, illustrating, in the process, what he believes to be an imbalance between the tax liabilities of those covered by the amendatory law and those who are not. With the legislature primarily lies the discretion to determine the nature (kind), object (purpose), extent (rate), coverage (subjects) and situs (place) of taxation. This court cannot freely delve into those matters which, by constitutional fiat, rightly rest on legislative judgment. Of course, where a tax measure becomes so unconscionable and unjust as to amount to confiscation of property, courts will not hesitate to strike it down, for, despite all its plenitude, the power to tax cannot override constitutional proscriptions. This stage, however, has not been demonstrated to have been reached within any appreciable distance in this controversy before us.

Having arrived at this conclusion, the plea of petitioner to have the law declared unconstitutional for being violative of due process must perforce fail. The due process clause may correctly be invoked only when there is a clear contravention of inherent or constitutional limitations in the exercise of the tax power. No such transgression is so evident to us.

· G.R. No. 109446

The several propositions advanced by petitioners revolve around the question of whether or not public respondents have exceeded their authority in promulgating Section 6, Revenue Regulations No. 2-93, to carry out Republic Act No. 7496.

The questioned regulation reads:

· Sec. 6. General Professional Partnership The general professional partnership (GPP) and the partners comprising the GPP are covered by R. A. No. 7496. Thus, in determining the net profit of the partnership, only the direct costs mentioned in said law are to be deducted from partnership income. Also, the expenses paid or incurred by partners in their individual capacities in the practice of their profession which are not reimbursed or paid by the partnership but are not considered as direct cost, are not deductible from his gross income.

The real objection of petitioners is focused on the administrative interpretation of public respondents that would apply SNIT to partners in general professional partnerships. Petitioners cite the pertinent deliberations in Congress during its enactment of Republic Act No. 7496, also quoted by the Honorable Hernando B. Perez, minority floor leader of the House of Representatives, in the latter's privilege speech by way of commenting on the questioned implementing regulation of public respondents following the effectivity of the law, thusly:

· MR. ALBANO, Now Mr. Speaker, I would like to get the correct impression of this bill. Do we speak here of individuals who are earning, I mean, who earn through business enterprises and therefore, should file an income tax return?

· MR. PEREZ. That is correct, Mr. Speaker. This does not apply to corporations. It applies only to individuals.

· (See Deliberations on H. B. No. 34314, August 6, 1991, 6:15 P.M.; Emphasis ours).

· Other deliberations support this position, to wit:

· MR. ABAYA . . . Now, Mr. Speaker, did I hear the Gentleman from Batangas say that this bill is intended to increase collections as far as individuals are concerned and to make collection of taxes equitable?

· MR. PEREZ. That is correct, Mr. Speaker.

· (Id. at 6:40 P.M.; Emphasis ours).

· In fact, in the sponsorship speech of Senator Mamintal Tamano on the Senate version of the SNITS, it is categorically stated, thus:

· This bill, Mr. President, is not applicable to business corporations or to partnerships; it is only with respect to individuals and professionals. (Emphasis ours)

The Court, first of all, should like to correct the apparent misconception that general professional partnerships are subject to the payment of income tax or that there is a difference in the tax treatment between individuals engaged in business or in the practice of their respective professions and partners in general professional partnerships. The fact of the matter is that a general professional partnership, unlike an ordinary business partnership (which is treated as a corporation for income tax purposes and so subject to the corporate income tax), is not itself an income taxpayer. The income tax is imposed not on the professional partnership, which is tax exempt, but on the partners themselves in their individual capacity computed on their distributive shares of partnership profits. Section 23 of the Tax Code, which has not been amended at all by Republic Act 7496, is explicit:

· Sec. 23. Tax liability of members of general professional partnerships. (a) Persons exercising a common profession in general partnership shall be liable for income tax only in their individual capacity, and the share in the net profits of the general professional partnership to which any taxable partner would be entitled whether distributed or otherwise, shall be returned for taxation and the tax paid in accordance with the provisions of this Title.

· (b) In determining his distributive share in the net income of the partnership, each partner —

· (1) Shall take into account separately his distributive share of the partnership's income, gain, loss, deduction, or credit to the extent provided by the pertinent provisions of this Code, and

· (2) Shall be deemed to have elected the itemized deductions, unless he declares his distributive share of the gross income undiminished by his share of the deductions.

There is, then and now, no distinction in income tax liability between a person who practices his profession alone or individually and one who does it through partnership (whether registered or not) with others in the exercise of a common profession. Indeed, outside of the gross compensation income tax and the final tax on passive investment income, under the present income tax system all individuals deriving income from any source whatsoever are treated in almost invariably the same manner and under a common set of rules.

We can well appreciate the concern taken by petitioners if perhaps we were to consider Republic Act No. 7496 as an entirely independent, not merely as an amendatory, piece of legislation. The view can easily become myopic, however, when the law is understood, as it should be, as only forming part of, and subject to, the whole income tax concept and precepts long obtaining under the National Internal Revenue Code. To elaborate a little, the phrase "income taxpayers" is an all embracing term used in the Tax Code, and it practically covers all persons who derive taxable income. The law, in levying the tax, adopts the most comprehensive tax situs of nationality and residence of the taxpayer (that renders citizens, regardless of residence, and resident aliens subject to income tax liability on their income from all sources) and of the generally accepted and internationally recognized income taxable base (that can subject non-resident aliens and foreign corporations to income tax on their income from Philippine sources). In the process, the Code classifies taxpayers into four main groups, namely: (1) Individuals, (2) Corporations, (3) Estates under Judicial Settlement and (4) Irrevocable Trusts (irrevocable both as to corpus and as to income).

Partnerships are, under the Code, either "taxable partnerships" or "exempt partnerships." Ordinarily, partnerships, no matter how created or organized, are subject to income tax (and thus alluded to as "taxable partnerships") which, for purposes of the above categorization, are by law assimilated to be within the context of, and so legally contemplated as, corporations. Except for few variances, such as in the application of the "constructive receipt rule" in the derivation of income, the income tax approach is alike to both juridical persons. Obviously, SNIT is not intended or envisioned, as so correctly pointed out in the discussions in Congress during its deliberations on Republic Act 7496, aforequoted, to cover corporations and partnerships which are independently subject to the payment of income tax.

"Exempt partnerships," upon the other hand, are not similarly identified as corporations nor even considered as independent taxable entities for income tax purposes. A general professional partnership is such an example. 4 Here, the partners themselves, not the partnership (although it is still obligated to file an income tax return [mainly for administration and data]), are liable for the payment of income tax in their individual capacity computed on their respective and distributive shares of profits. In the determination of the tax liability, a partner does so as an individual, and there is no choice on the matter. In fine, under the Tax Code on income taxation, the general professional partnership is deemed to be no more than a mere mechanism or a flow-through entity in the generation of income by, and the ultimate distribution of such income to, respectively, each of the individual partners.

Section 6 of Revenue Regulation No. 2-93 did not alter, but merely confirmed, the above standing rule as now so modified by Republic ActNo. 7496 on basically the extent of allowable deductions applicable to all individual income taxpayers on their non-compensation income. There is no evident intention of the law, either before or after the amendatory legislation, to place in an unequal footing or in significant variance the income tax treatment of professionals who practice their respective professions individually and of those who do it through a general professional partnership.

WHEREFORE, the petitions are DISMISSED. No special pronouncement on costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Kapunan and Mendoza, JJ., concur.

Padilla and Bidin, JJ., are on leave.

#Footnotes

· 1 Justice Isagani A. Cruz on Philippine Political Law 1993 edition, pp. 146-147, citing with approval Cooley on Constitutional Limitations.

· 2 A system employed where the income tax treatment varies and made to depend on the kind or category of taxable income of the taxpayer.

· 3 A system where the tax treatment views indifferently the tax base and generally treats in common all categories of taxable income of the taxpayer.

· 4 A general professional partnership, in this context, must be formed for the sole purpose of exercising a common profession, no part of the income of which is derived from its engaging in any trade business; otherwise, it is subject to tax as an ordinary business partnership or, which is to say, as a corporation and thereby subject to the corporate income tax. The only other exempt partnership is a joint venture for undertaking construction projects or engaging in petroleum operations pursuant to an operating agreement under a service contract with the government (see Sections 20, 23 and 24, National Internal Revenue Code).

[G.R. No. 130240.February 5, 2002]

DE VENECIA, JR., et al., vs. SANDIGANBAYAN (1st DIV.)

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated FEB 5 2002.

G.R. No. 130240(Jose de Venecia, Jr., in his capacity as Speaker of the House of Representatives; Roberto P. Nazareno, in his capacity as Secretary-General of the House of Representatives; Jose Ma. Antonio B. Tua駉, Cashier, House of Representatives; Antonio M. Chan, Chief, Property Division, House of Representatives, petitioners, vs. The Honorable Sandiganbayan (First Division), respondent.)

The principal issue in this petitioner for certiorari[1]cralaw is whether of not the Sandiganbayan may cite in contempt of court the Speaker of the House of Representatives for refusing to implement the preventive suspension order it issued in a criminal case against a member of the House.

Petitioners seek the annulment of:

(1) the Order dated August 18, 1997 of the Sandiganbayan (First Division),[2]cralaw directing Speaker Jose de Venecia of the House of Representatives, to implement the preventive suspension of then Congressman Ceferino S. Paredes, Jr., in connection with Criminal Case No. 18857 entitled "People of the Philippines v. Ceferino S. Paredes, Jr. and Gregorio S. Branzuela"; and

(2) the Resolution dated August 29, 1997,[3]cralaw also of the Sandiganbayan, declaring Speaker de Venecia in contempt of court for refusing to implement the preventive suspension order.

The facts are as follows:

On March 12, 1993, an Information (docketed as Criminal Case No. 18857) was filed with the Sandiganbayan (First Division) against then Congressman Ceferino S. Paredes, Jr., of Agusan del Sur for violation of Section 3 (e) of Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act, as amended).

After the accused pleaded not guilty, the prosecution filed a "Motion To Suspend The Accused Pendente Lite."

In its Resolution dated June 6, 1997, the Sandiganbayan granted the motion and ordered the Speaker to suspend the accused.But the Speaker did not comply.Thus, on August 12, 1997, the Sandiganbayan issued a Resolution requiring him to appear before it, on August 18, 1997 at 8:00 o'clock in the morning, to show cause why he should not be held in contempt of court.

Unrelenting, the Speaker filed, through counsel, a motion for reconsideration, invoking the rule on separation of powers and claiming that he can only act as may be dictated by the House as a body pursuant to House Resolution No. 116 adopted on August 13, 1997.

On August 29, 1997, the Sandiganbayan rendered the now assailed Resolution[4]cralaw declaring Speaker Jose C. de Venecia, Jr. in contempt of court and ordering him to pay a fine of P10,000.00 within 10 days from notice.

Hence, the instant recourse.

The issue before us had long been settled by this Court in Ceferino S. Paredes, Jr. v. Sandiganbayan in G.R. No. 118354 (August 8, 1995).We ruled that the suspension provided for in the Anti-Graft law is mandatory and is of different nature and purpose.It is imposed by the court, not as a penalty, but as a precautionary measure resorted to upon the filing of a valid Information.Its purpose is to prevent the accused public officer from frustrating his prosecution by influencing witnesses or tampering with documentary evidence and from committing further acts of malfeasance while in office.It is thus an incident to the criminal proceedings before the court.On the other hand, the suspension or expulsion contemplated in the Constitution is a House-imposed sanction against its members.It is, therefore, a penalty for disorderly behavior to enforce discipline, maintain order in its proceedings, or vindicate its honor and integrity.

Just recently, in Miriam Defensor Santiago v. Sandiganbayan, et al., this Court en banc, through Justice Jose C. Vitug, held that the doctrine of separation of powers does not exclude the members of Congress from the mandate of R.A. 3019, thus:

"The order of suspension prescribed by Republic Act No. 3019 is distinct from the power of Congress to discipline its own ranks under the Constitution. x x x.

"The suspension contemplated in the above constitutional provision is a punitive measure that is imposed upon a determination by the Senate or the House of Representatives, as the case may be, upon an erring member. x x x.

"The doctrine of separation of powers by itself may not be deemed to have effectively excluded members of Congress from Republic Act No. 3019 nor from its sanctions.The maxim simply recognizes that each of the three co-equal and independent, albeit coordinate, branches of the government - the Legislative, the Executive and the Judiciary - has exclusive prerogatives and cognizance within its own sphere of influence and effectively prevents one branch from unduly intruding into the internal affairs of either branch." (Emphasis ours)

We note that the term of then Congressman Ceferino Paredes, Jr. expired on June 30, 1988.This rendered moot and academic the instant case.

WHEREFORE, for being moot, this case is deemed CLOSED and TERMINATED.(Quisumbing, J., no part.Quisumbing and Carpio, JJ., abroad on official business)

Very truly yours,

LUZVIMINDA D. PUNO

Clerk of Court

(Sgd.) MA. LUISA D. VILLARAMA

Asst. Clerk of Court

Endnotes:

[1]cralaw Under rule 65 of the Revised Rules of Court.

[2]cralaw Penned by Presiding Justice Francis E. Garchitorena, and concurred in by Justices Minita V. Chico-Nazario and Sabino R. de Leon, Jr. (a special member, now a member of the Supreme Court).

[3]cralaw Penned by Presiding Justice Francis E. Garchitorena, and concurred in by Justices Minita V. Chico-Nazario and Edilberto G. Sandoval.

[4]cralaw Annex "B," ibid., pp. 48-67.


EN BANC

G.R. No. L-17144 October 28, 1960

SERGIO OSME袮, JR., petitioner, vs.SALIPADA K. PENDATUN, LEON Z. GUINTO, JR., VICENTE L. PERALTA, FAUSTINO TOBIA, LORENZO G. TEVES, JOPSE J. ROY, FAUSTINO DUGENIO, ANTONIO Y. DE PIO, BENJAMIN T. LIGOT, PEDRO G. TRONO, FELIPE ABRIGO, FELIPE S. ABELEDA, TECLA SAN ANDRES ZIGA, ANGEL B. FERNADEZ, and EUGENIO S. BALTAO, in their capacity as members of the Special Committee created by House Resolution No. 59, respondents.

Antonio Y. de Pio in his own behalf.F. S. Abeleda, A. b. Fernandez. E. S. Baltao and Tecla San Andres Ziga in their own behalf.C. T. Villareal and R. D. Bagatsing as amici curiae.

BENGZON, J.:

On July 14, 1960, Congressman Sergio Osme 馻 , Jr., submitted to this Court a verified petition for "declaratory relief, certiorari and prohibition with preliminary injunction" against Congressman Salapida K. Pendatun and fourteen other congressmen in their capacity as members of the Special Committee created by House Resolution No. 59. He asked for annulment of such Resolution on the ground of infringenment of his parliamentary immunity; he also asked, principally, that said members of the special committee be enjoined from proceeding in accordance with it, particularly the portion authorizing them to require him to substantiate his charges against the President with the admonition that if he failed to do so, he must show cause why the House should not punish him.

The petition attached a copy of House Resolution No. 59, the pertinent portions of which reads as follows:

· WHEREAS, on the 23rd day of June, 1960 , the Honorable Sergio Osme馻, Jr., Member of the House of Representatives from the Second District of the province of Cebu, took the floor of this chamber on the one hour privilege to deliver a speech, entitled 'A Message to Garcia;

· WHEREAS, in the course of said speech, the Congressman from the Second District of Cebu stated the following:.

xxx xxx xxx

· The people, Mr. President, have been hearing of ugly reports that under your unpopular administration the free things they used to get from the government are now for sale at premium prices. They say that even pardons are for sale, and that regardless of the gravity or seriousness of a criminal case, the culprit can always be bailed out forever from jail as long as he can come across with a handsome dole. I am afraid, such an anomalous situation would reflect badly on the kind of justice that your administration is dispensing. . . . .

· WHEREAS, the charges of the gentleman from the Second District of Cebu, if made maliciously or recklessly and without basis in truth and in fact, would constitute a serious assault upon the dignity and prestige of the Office of 37 3 the President, which is the one visible symbol of the sovereignty of the Filipino people, and would expose said office to contempt and disrepute; . . . .

· Resolved by the House of Representative, that a special committee of fifteen Members to be appointed by the Speaker be, and the same hereby is, created to investigate the truth of the charges against the President of the Philippines made by Honorable Sergio Osme 馻, Jr., in his privilege speech of June 223, 1960, and for such purpose it is authorized to summon Honorable Sergio Osme馻 , jr., to appear before it to substantiate his charges, as well as to issue subpoena and/or subpoena duces tecum to require the attendance of witnesses and/or the production of pertinent papers before it, and if Honorable Sergio Osme馻, Jr., fails to do so to require him to show cause why he should not be punished by the House. The special committee shall submit to the House a report of its findings and recommendations before the adjournment of the present special session of the Congress of the Philippines.

In support of his request, Congressman Osme 馻 alleged; first, the Resolution violated his constitutional absolute parliamentary immunity for speeches delivered in the House; second, his words constituted no actionable conduct; and third, after his allegedly objectionable speech and words, the House took up other business, and Rule XVII, sec. 7 of the Rules of House provides that if other business has intervened after the member had uttered obnoxious words in debate, he shall not be held to answer therefor nor be subject to censure by the House.

Although some members of the court expressed doubts of petitioner's cause of action and the Court's jurisdiction, the majority decided to hear the matter further, and required respondents to answer, without issuing any preliminary injunction. Evidently aware of such circumstance with its implications, and pressed for time in view of the imminent adjournment of the legislative session, the special committee continued to perform its talk, and after giving Congressman Osme 馻 a chance to defend himself, submitted its reports on July 18, 1960, finding said congressman guilty of serious disorderly behaviour; and acting on such report, the House approved on the same day 梑 efore closing its session 桯 ouse Resolution No. 175, declaring him guilty as recommended, and suspending him from office for fifteen months.

Thereafter, on July 19, 1960, the respondents (with the exception of Congressmen De Pio, Abeleda, San Andres Ziga, Fernandez and Balatao)1 filed their answer, challenged the jurisdiction of this Court to entertain the petition, defended the power of Congress to discipline its members with suspension, upheld a House Resolution No. 175 and then invited attention to the fact that Congress having ended its session on July 18, 1960, the Committee 梬 hose members are the sole respondents 梙 ad thereby ceased to exist.

There is no question that Congressman Osme 馻 , in a privilege speech delivered before the House, made the serious imputations of bribery against the President which are quoted in Resolution No. 59 and that he refused to produce before the House Committee created for the purpose, evidence to substantiate such imputations. There is also no question that for having made the imputations and for failing to produce evidence in support thereof, he was, by resolution of the House, suspended from office for a period of fifteen months for serious disorderly behaviour.

Resolution No. 175 states in part:

· WHEREAS, the Special Committee created under and by virtue of Resolution No. 59, adopted on July 8, 1960, found Representative Sergio Osme 馻 , Jr., guilty of serious disorderly behaviour for making without basis in truth and in fact, scurrilous, malicious, reckless and irresponsible charges against the President of the Philippines in his privilege speech of June 23, 1960; and

· WHEREAS, the said charges are so vile in character that they affronted and degraded the dignity of the House of Representative: Now, Therefore, be it

· RESOLVED by the House of Representatives. That Representative Sergio Osme馻, Jr., be, as he hereby is, declared guilty of serious disorderly behaviour; and . . .

As previously stated, Osme 馻 contended in his petition that: (1) the Constitution gave him complete parliamentary immunity, and so, for words spoken in the House, he ought not to be questioned; (20 that his speech constituted no disorderly behaviour for which he could be punished; and (3) supposing he could be questioned and discipline therefor, the House had lost the power to do so because it had taken up other business before approving House Resolution No. 59. Now, he takes the additional position (4) that the House has no power, under the Constitution, to suspend one of its members.

Section 15, Article VI of our Constitution provides that "for any speech or debate" in Congress, the Senators or Members of the House of Representative "shall not be questioned in any other place." This section was taken or is a copy of sec. 6, clause 1 of Art. 1 of the Constitution of the United States. In that country, the provision has always been understood to mean that although exempt from prosecution or civil actions for their words uttered in Congress, the members of Congress may, nevertheless, be questioned in Congress itself. Observe that "they shall not be questioned in any other place" than Congress.

Furthermore, the Rules of the House which petitioner himself has invoked (Rule XVII, sec. 7), recognize the House's power to hold a member responsible "for words spoken in debate."

Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in every legislative assembly of the democratic world. As old as the English Parliament, its purpose "is to enable and encourage a representative of the public to discharge his public trust with firmness and success" for "it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom exercise of that liberty may occasion offense."2 Such immunity has come to this country from the practices of Parliamentary as construed and applied by the Congress of the United States. Its extent and application remain no longer in doubt in so far as related to the question before us. It guarantees the legislator complete freedom of expression without fear of being made responsible in criminal or civil actions before the courts or any other forum outside of the Congressional Hall. But is does not protect him from responsibility before the legislative body itself whenever his words and conduct are considered by the latter disorderly or unbecoming a member thereof. In the United States Congress, Congressman Fernando Wood of New York was censured for using the following language on the floor of the House: "A monstrosity, a measure the most infamous of the many infamous acts of the infamous Congress." (Hinds' Precedents, Vol. 2,. pp. 798-799). Two other congressmen were censured for employing insulting words during debate. (2 Hinds' Precedents, 799-801). In one case, a member of Congress was summoned to testify on a statement made by him in debate, but invoked his parliamentary privilege. The Committee rejected his plea. (3 Hinds' Precedents 123-124.)

For unparliamentary conduct, members of Parliament or of Congress have been, or could be censured, committed to prison3, even expelled by the votes of their colleagues. The appendix to this decision amply attest to the consensus of informed opinion regarding the practice and the traditional power of legislative assemblies to take disciplinary action against its members, including imprisonment, suspension or expulsion. It mentions one instance of suspension of a legislator in a foreign country.

And to cite a local illustration, the Philippine Senate, in April 1949, suspended a senator for one year.

Needless to add, the Rules of Philippine House of Representatives provide that the parliamentary practices of the Congress of the United States shall apply in a supplementary manner to its proceedings.

This brings up the third point of petitioner: the House may no longer take action against me, he argues, because after my speech, and before approving Resolution No. 59, it had taken up other business. Respondents answer that Resolution No. 59 was unanimously approved by the House, that such approval amounted to a suspension of the House Rules, which according to standard parliamentary practice may done by unanimous consent.

Granted, counters the petitioner, that the House may suspended the operation of its Rules, it may not, however, affect past acts or renew its rights to take action which had already lapsed.

The situation might thus be compared to laws4 extending the period of limitation of actions and making them applicable to actions that had lapsed. The Supreme Court of the United States has upheld such laws as against the contention that they impaired vested rights in violation of the Fourteenth Amendment (Campbell vs. Holt, 115 U. S. 620). The states hold divergent views. At any rate, court are subject to revocation modification or waiver at the pleasure of the body adopting them."5 And it has been said that "Parliamentary rules are merely procedural, and with their observancem, the courts have no concern. They may be waived or disregarded by the legislative body." Consequently, "mere failure to conform to parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisited number of members have agreed to a particular measure."6

The following is quoted from a reported decision of the Supreme court of Tennessee:

· The rule here invoked is one of parliamentary procedure, and it is uniformly held that it is within the power of all deliberative bodies to abolish, modify, or waive their own rules of procedure, adopted for the orderly con duct of business, and as security against hasty action. (Bennet vs. New Bedford, 110 Mass, 433; Holt vs. Somerville, 127 Mass. 408, 411; City of Sadalia vs. Scott, 104 Mo. App. 595, 78 S. W. 276; Ex parte Mayor, etc., of Albany, 23 Wend. [N. Y.] 277, 280; Wheelock vs. City of Lowell, 196 Mass. 220, 230. 81 N. e. 977, 124 Am. St. Rep. 543, 12 Ann. Cas. 1109; City of Corinth vs. Sharp, 107 Miss. 696, 65 So. 888; McGraw vs. Whitson, 69 Iowa, 348, 28 N. W. 632; Tuell vs. Meacham Contracting Co. 145 Ky. 181, 186, 140 S. W. Ann. Cas. 1913B, 802.) [Takenfrom the case of Rutherford vs. City of Nashville, 78 south Western Reporter, p. 584.]

It may be noted in this connection, that in the case of Congressman Stanbery of Ohio, who insulted the Speaker, for which Act a resolution of censure was presented, the House approved the resolution, despite the argument that other business had intervened after the objectionable remarks. (2 Hinds' Precedents pp. 799-800.)

On the question whether delivery of speeches attacking the Chief Executive constitutes disorderly conduct for which Osme 馻 may be discipline, many arguments pro and con have been advanced. We believe, however, that the House is the judge of what constitutes disorderly behaviour, not only because the Constitution has conferred jurisdiction upon it, but also because the matter depends mainly on factual circumstances of which the House knows best but which can not be depicted in black and white for presentation to, and adjudication by the Courts. For one thing, if this Court assumed the power to determine whether Osme 馻 conduct constituted disorderly behaviour, it would thereby have assumed appellate jurisdiction, which the Constitution never intended to confer upon a coordinate branch of the Government. The theory of separation of powers fastidiously observed by this Court, demands in such situation a prudent refusal to interfere. Each department, it has been said, had exclusive cognizance of matters within its jurisdiction and is supreme within its own sphere. (Angara vs. Electoral Commission, 63 Phil., 139.)

· SEC. 200. Judicial Interference with Legislature. The principle is well established that the courts will not assume a jurisdiction in any case amount to an interference by the judicial

department with the legislature since each department is equally independent within the power conferred upon it by the Constitution. . . . .

· The general rule has been applied in other cases to cause the courts to refuse to intervene in what are exclusively legislative functions. Thus, where the stated Senate is given the power to example a member, the court will not review its action or revise even a most arbitrary or unfair decision. (11 Am. Jur., Const. Law, sec. p. 902.) [Emphasis Ours.].

The above statement of American law merely abridged the landmark case of Clifford vs. French.7 In 1905, several senators who had been expelled by the State Senate of California for having taken a bribe, filed mandamus proceeding to compel reinstatement, alleging the Senate had given them no hearing, nor a chance to make defense, besides falsity of the charges of bribery. The Supreme Court of California declined to interfere , explaining in orthodox juristic language:

· Under our form of government, the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either house thereof, taking in pursuance of the power committed exclusively to that department by the Constitution. It has been held by high authority that, even in the absence of an express provision conferring the power, every legislative body in which is vested the general legislative power of the state has the implied power to expel a member for any cause which it may deem sufficient. In Hiss. vs. Barlett, 3 Gray 473, 63 Am. Dec. 768, the supreme court of Mass. says, in substance, that this power is inherent in every legislative body; that it is necessary to the to enable the body 'to perform its high functions, and is necessary to the safety of the state;' 'That it is a power of self-protection, and that the legislative body must necessarily be the sole judge of the exigency which may justify and require its exercise. '. . . There is no provision authority courts to control, direct, supervise, or forbid the exercise by either house of the power to expel a member. These powers are functions of the legislative department and therefore, in the exercise of the power this committed to it, the senate is supreme. An attempt by this court to direct or control the legislature, or either house thereof, in the exercise of the power, would be an attempt to exercise legislative functions, which it is expressly forbidden to do.

We have underscored in the above quotation those lines which in our opinion emphasize the principles controlling this litigation. Although referring to expulsion, they may as well be applied to other disciplinary action. Their gist as applied to the case at bar: the House has exclusive power; the courts have no jurisdiction to interfere.

Our refusal to intervene might impress some readers as subconscious hesitation due to discovery of impermissible course of action in the legislative chamber. Nothing of that sort: we merely refuse to disregard the allocation of constitutional functions which it is our special duty to maintain. Indeed, in the interest of comity, we feel bound to state that in a conscientious survey of governing principles and/or episodic illustrations, we found the House of Representatives of the United States taking the position upon at least two occasions, that personal attacks upon the Chief Executive constitute unparliamentary conduct or breach of orders.8 And in several instances, it took action against offenders, even after other business had been considered.9

Petitioner's principal argument against the House's power to suspend is the Alejandrino precedent. In 1924, Senator Alejandrino was, by resolution of Senate, suspended from office for 12 months because he had assaulted another member of the that Body or certain phrases the latter had uttered in the course of a debate. The Senator applied to this Court for reinstatement, challenging the validity of the resolution. Although this Court held that in view of the separation of powers, it had no jurisdiction to compel the Senate to reinstate petitioner, it nevertheless went on to say the Senate had no power to

adopt the resolution because suspension for 12 months amounted to removal, and the Jones Law (under which the Senate was then functioning) gave the Senate no power to remove an appointive member, like Senator Alejandrino. The Jones Law specifically provided that "each house may punish its members for disorderly behaviour, and, with the concurrence of two-thirds votes, expel an elective member (sec. 18). Note particularly the word "elective."

The Jones Law, it mist be observed, empowered the Governor General to appoint "without consent of the Senate and without restriction as to residence senators . . . who will, in his opinion, best represent the Twelfth District." Alejandrino was one appointive Senator.

It is true, the opinion in that case contained an obiter dictum that "suspension deprives the electoral district of representation without that district being afforded any means by which to fill that vacancy." But that remark should be understood to refer particularly to the appointive senator who was then the affected party and who was by the same Jones Law charged with the duty to represent the Twelfth District and maybe the view of the Government of the United States or of the Governor-General, who had appointed him.

It must be observed, however, that at that time the Legislature had only those power which were granted to it by the Jones Law10; whereas now the Congress has the full legislative powers and preprogatives of a sovereign nation, except as restricted by the Constitution. In other words, in the Alejandrino case, the Court reached the conclusion that the Jones Law did not give the Senate the power it then exercised梩 he power of suspension for one year. Whereas now, as we find, the Congress has the inherent legislative prerogative of suspension11 which the Constitution did not impair. In fact, as already pointed out, the Philippine Senate suspended a Senator for 12 months in 1949.

· The Legislative power of the Philippine Congress is plenary, subject only to such limitations are found in the Republic's Constitution. So that any power deemed to be legislative by usage or tradition, is necessarily possessed by the Philippine Congress, unless the Constitution provides otherwise. (Vera vs. Avelino, 77 Phil., 192, 212 .)

In any event, petitioner's argument as to the deprivation of the district's representation can not be more weightly in the matter of suspension than in the case of imprisonment of a legislator; yet deliberative bodies have the power in proper cases, to commit one of their members to jail.12

Now come questions of procedure and jurisdiction. the petition intended to prevent the Special Committee from acting tin pursuance of House Resolution No. 59. Because no preliminary injunction had been issued, the Committee performed its task, reported to the House, and the latter approved the suspension order. The House had closed it session, and the Committee has ceased to exist as such. It would seem, therefore, the case should be dismissed for having become moot or academic.13 Of course, there is nothing to prevent petitioner from filing new pleadings to include all members of the House as respondents, ask for reinstatement and thereby to present a justiciable cause. Most probable outcome of such reformed suit, however, will be a pronouncement of lack of jurisdiction, as in Vera vs. Avelino14 and Alejandrino vs. Qeuaon.15

At any rate, having perceived suitable solutions to the important questions of political law, the Court thought it proper to express at this time its conclusions on such issues as were deemed relevant and decisive.

ACCORDINGLY, the petition has to be, and is hereby dismissed. So ordered.

Paras, C. J., Bautista Angelo, Concepcion, Barrera, Gutierrez David, Paredes, and Dizon, JJ., concur.

Separate Opinions

REYES, J. B. L., J., dissenting:

I concur with the majority that the petition filed by Congressman Osme 馻 , Jr. does not make out a case either for declaratory judgment or certiorari, since this Court has no original jurisdiction over declaratory judgment proceedings, and certiorari is available only against bodies exercising judicial or quasi-judicial powers. The respondent committee, being merely fact finding, was not properly subject to certiorari.

I submit, however, that Congressman Osme 馻 was entitled to invoke the Court's jurisdiction on his petition for a writ of prohibition against the committee, in so far as House Resolution No. 59 (and its sequel, Resolution No. 175) constituted an unlawful attempt to divest him of an immunity from censure or punishment, an immunity vested under the very Rules of the House of Representatives.

House Rule XVII, on Decorum and Debates, in its section V, provides as follows:

· If it is requested that a Member be called to order for words spoken in debate, the Member making such request shall indicate the words excepted to, and they shall be taken down in writing by the Secretary and read aloud to the House; but the Member who uttered them shall not be held to answer, nor be subject to the censure of the House therefor, if further debate or other business has intervened.

Now, it is not disputed that after Congressman Osme 馻 had delivered his speech and before the House adopted, fifteen days later, the resolution (No. 59) creating the respondent Committee and empowering it to investigate and recommend proper action in the case, the House had acted on other matters and debated them. That being the case, the Congressman, even before the resolution was adopted, had ceased to be answerable for the words uttered by him in his privilege speech. By the express wording of the Rules, he was no longer subject to censure or disciplinary action by the House. Hence, the resolution, in so far as it attempts to divest him of the immunity so acquired and subject him to discipline and punishment, when he was previously not so subject, violates the constitutional inhibition against ex post facto legislation, and Resolution Nos. 59 and 175 are legally obnoxious and invalid on that score. The rule is well established that a law which deprives an accused person of any substantial right or immunity possessed by him before its passage is ex post facto as to prior offenses (Cor. Jur. vol. 16-A, section 144, p. 153; People vs. Mc Donnell, 11 Fed. Supp. 1015; People vs. Talklington, 47 Pac. 2d 368; U. S. vs. Garfinkel, 69 F. Supp. 849).

The foregoing also answer the contention that since the immunity was but an effect of section 7 of House Rule XVII, the House could, at any time, remove it by amending those Rules, and Resolutions Nos. 59 and 175 effected such an amendment by implication. the right of the House to amend its Rules does not carry with it the right to retroactive divest the petitioner of an immunity he had already acquired. The Bill of Rights is against it.

It is contended that as the liability for his speech attached when the Congressman delivered it, the subsequent action of the House only affected the procedure for dealing with that liability. But whatever liability Congressman Sergio Osme 馻, Jr. then incurred was extinguished when the House thereafter considered other business; and this extinction is a substantive right that can not be subsequently torn away to his disadvantage. On an analogous issue, this Court, in People vs. Parel, 44 Phil., 437 has ruled:

· In regards to the point that the subject of prescription of penalties and of penal actions pertains to remedial and not substantive law, it is to be observed that in the Spanish legal system, provisions for limitation or prescription of actions are invariably classified as

substantive and not as remedial law; we thus find the provisions for the prescription of criminal actions in the Penal Code and not in the 'Ley de Enjuiciamiento Criminal.' This is in reality a more logical law. In criminal cases prescription is not, strictly speaking, a matter of procedure; it bars or cuts off the right to punish the crime and consequently, goes directly to the substance of the action. . . . (Emphasis supplied.).

I see no substantial difference, from the standpoint of the constitutional prohibition against ex post facto laws, that the objectionable measures happen to be House Resolutions and not statutes. In so far as the position of petitioner Osme 馻 is concerned, the essential point is that he is being subjected to a punishment to which he was formerly not amenable. And while he was only meted out a suspension of privileges that suspension is as much a penalty as imprisonment or a fine, which the House could have inflicted upon him had it been so minded. Such punitive action is violative of the spirit, if not of the letter, of the constitutional provision against ex post facto legislation. Nor is it material that the punishment was inflicted in the exercise of disciplinary power. "The ex post facto effect of a law," the Federal Supreme Court has ruled, "can not be evaded by giving civil form to that which is essentially criminal" (Burgess vs. Salmon, 97 L. Ed. [U. S.] 1104, 1106; Cummings vs. MIssouri, 18 L. Ed. 276).

The plain purpose of the immunity provided by the House rules is to protect the freedom of action of its members and to relieve them from the fear of disciplinary action taken upon second thought, as a result of political convenience, vindictiveness, or pressures. it is unrealistic to overlook that, without the immunity so provided, no member of Congress can remain free from the haunting fear that his most innocuous expressions may at any time afterwards place him in jeopardy of punishment whenever a majority, however transient, should feel that the shifting sands of political expediency so demand. A rule designed to assure that members of the House of the House may freely act as their conscience and sense of duty should dictate complements the parliamentary immunity from outside pressure enshrined in our Constitution, and is certainly deserving of liberal interpretation and application.

The various precedents, cited in the majority opinion, as instances of disciplinary taken notwithstanding intervening business, are not truly applicable. Of the five instances cited by Deschkler (in his edition of Jefferson's Manual), the case of Congressman Watson of Georgia involved also printed disparaging remarks by the respondent (III Hinds' Precedents, sec. 2637), so that the debate immunity rule afforded no defense; that of Congressmen Weaver and Sparks was one of censure for actual disorderly conduct (II Hinds, sec. 1657); while the cases of Congressmen Stanbery of Ohio, Alex Long of Ohio, and of Lovell Rousseau of Kentucky (II Hinds, sec. 1248, 1252 and 1655) were decided under Rule 62 of the U. s. House of Representatives as it stood before the 1880 amendments, and was differently worded. Thus, in the Rousseau case, the ruling of Speaker Colfax was to the following effect (II Hinds' Precedents, page 1131):

· This sixty-second rule is divided in the middle a semicolon, and the Chair asks the attention of the gentleman from Iowa (Mr. Wilson) top the language of that rule, as it settles the whole question:

· 62. If a Member be called to order for words spoken in debate, the person calling him to be order shall repeat the words excerpted to —

· That is, the "calling to order" is "excepting" to words spoken in debate "and they shall be taken done in writing at the Clerk's table; and no Member shall be held to answer, or be subject to the censure of the House, for words spoken, or other business has intervened, after the words spoken, and before exception to them shall have been taken.

· The first part of this rule declares that "calling to order" is "excepting to words spoken in debate." the second part of the rule declares that a Member shall not be held subject to

censure for words spoken in debate if other business has intervened after the words have been spoken and before "exception" to them has been taken. Exception to the words of the gentleman from Iowa (Mr. Grinnell) was taken by the gentleman from Illinois (Mr. Harding), the gentleman from Massachusetts (Mr. Banks), the gentleman from Kentucky (Mr. Rosseau), and also by the Speaker of the House, as the records of the Congressional Globe will show. The distinction is obvious between the two parts of the rule. In the first part it speaks of a Member excepting to language of another and having the words taken down. In the last part of the rule it says he shall not be censured thereafter unless exception to his words were taken; but it omits to add as an condition that words must also have been taken down. The substantial point, indeed the only point, required in the latter part of the rule is, that exception to the objectionable words must have taken.

The difference between the Rules as invoked in these cases and the Rules of our House of Representatives is easily apparent. As Rule 62 of the United States House of Representatives stood before 1880, all that was required to preserve the disciplinary power of the Hose was that exception should have been taken to the remarks on the floor before further debate or other business intervened. Under the rules of the Philippines House of Representatives, however, the immunity becomes absolute if other debate or business has taken place before the motion for censure is made, whether or not exceptions or point of order have been made to the remarks complained of at the time they were uttered.

While it is clear that the parliamentary immunity established in Article VI, section 15 of our Constitution does not bar the members being questioned and disciplined by Congress itself fro remarks made on the floor, that disciplinary power does not, as I have noted, include the right to retroactively amend the rules so as to divest a member of an immunity already gained. And if Courts can shield an ordinary citizen from the effects of ex post facto legislation, I see no reason why a member of Congress should be deprived of the same protection. Surely membership in the Legislature does not mean forfeiture of the liberties enjoyed by the individual citizen.

· The Constitution empowers each house to determine its rules of proceedings. If may not by its rules ignore constitutional restraint or violate fundamental rights and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitation all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate or even more just. (U. S. vs. Ballin, Joseph & Co., 36 Law Ed., 324-325.)

· Court will not interfere with the action of the state senate in reconsideration its vote on a resolution submitting an amendment to the Constitution, where its action was in compliance with its own rules, and there was no constitutional provision to the contrary. (Crawford vs. Gilchrist, 64 Fla. 41, 59 So. 963) (Emphasis supplied.).

Finally, that this Court possesses no power to direct or compel the Legislature to act in any specified manner, should not deter it from recognizing and declaring the unconstitutionality and nullify of the questioned resolutions and of all action that has been disbanded after the case was filed, the basic issues remain so important as to require adjudication by this Court.

LABRADOR, J., dissenting:

I fully concur in the above dissent Mr. Justice J. B. L. Reyes, Reyes, and I venture to add:

Within a constitutional government and in a regime which purports to be one of law, where law is supreme, even the Congress in the exercise of the power conferred upon it to discipline its members, must follow the rules and regulation that it had itself promulgated for its guidance and for that of its members. The rules in force at the time Congressman Osme 馻 delivered the speech declared by the House to constitutes a disorderly conduct provides:

· . . . but the Member who uttered them shall not be held to answer, nor be subject to the censure of the House therefor, if further debate or other business has intervened. (Rule XVII, Sec. 7, Rules, House of Representatives.)

Congressman Osme 馻 delivered the speech in question on June 23, 1960. It was only on July 8, or 15 days after June 23, 1060 when the House created the committee that would investigated him. For fully 15 days the House took up other matters. All that was done, while the speech was being delivered, was to have certains portions thereof deleted. I hold that pursuant to its own Rules the House may no longer punish Congressman Osme 馻 for the delivered fifteen days before.

The fact that no action was promptly taken to punish Congressman Osme 馻 immediately after its delivery, except to have some part of the speech deleted, show that the members of the House did not consider Osme 馻 's speech a disorderly conduct. The idea to punish Congressman Osme 馻 , which came 15 days after, was, therefore, an afterthought. It is, therefore, clear that Congressman Osme 馻 is being made to answer for an act, after the time during which he could be punished therefor had lapsed.

The majority opinion holds that the House can amend its rules any time. We do not dispute this principle, but we hold that the House may not do so in utter disregard of the fundamental principle of law that an amendment takes place only after its approval, or, as in this case, to the extent of punishing an offense after the time to punishing an had elapsed. Since the rule, that a member can be punished only before other proceedings have intervened, was in force at the time Congressman Osme 馻 delivered his speech, the House may not ignore said rule. It is said in the majority opinion that the rule limiting the period for imposition of a penalty for a speech to the day it was made, is merely one of procedure. With due respect to the majority, we do not think that it is merely a rule of procedure; we believe it actually is a limitation of the time in which the House may take punitive action against an offending member; it is alienation (in reference to time) on the liability to punishment. As Mr. Justice J.B.L., Reyes points out, the rule is substantive, not merely a procedural principle, and may not be ignored when invoked.

If this Government of laws and not of men, then the House should observe its own rule and not violate it by punishing a member after the period for indictment and punishment had already passed. Not because the subject of the Philippic is no less than the Chief Magistrate of the nation should the rule of the House be ignored by itself. It is true that our Government is based on the principle of separation of powers between the three branches thereof. I also agree to the corollary proposition that this Court should not interfere with the legislature in the manner it performs its functions; but I also hold that the Court cannot abandon its duty to pronounce what the law is when any of its (the House) members, or any humble citizen, invokes the law.

Congressman Osme 馻 had invoked the protection of a rule of the House. I believe it is our bounden duty to state what the rule being invoked by him is, to point out the fact that the rule is being violated in meting out punishment for his speech; we should not shirk our responsibility to declare his rights under the rule simply on the board excuse of separation of powers. Even the legislature may not ignore the rule it has promulgated for the government of the conduct of its members, and the fact that a coordinate branches of the Government is involved, should not deter us from performing our duty. We may not possess the power to enforce our opinion if the House chooses to disregard the same. In such case the members thereof stand before the bar of public opinion to answer for their act in ignoring

what they themselves have approved as their norm of conduct.

Let it be clearly understood that the writer of this dissent personally believe that vitreous attacks against the Chief Executive, or any official or citizen for that matter, should be condemned. But where the Rules, promulgated by the House itself, fix the period during which punishment may be meted out, said Rules should be enforced regardless of who may be prejudicated thereby. Only in that way may the supermacy of the law be maintained.

Footnotes

· 1 These, except Congressman Abeleda, share the views of petitioner.

· 2 Tenney vs. Brandhove, 341 U. S. 367.

· 3 Kilbourn vs. Thompson, 103 U. S. 189; Hiss. vs. Barlett & Gray. 468, 63 Am. Dec. 768, 770.

· 4 Rules of the House not the force of law, but they are merely in the nature of by-laws prescribed for the orderly and convenient conduct of their own proceedings. (67 Corpus Juris Secundum, p. 870)

· 5 Corpus Juris Secumdum, p. 870.

· 6 South Georgia Power vs. Bauman, 169 Ga. 649; 151 s. w. 515.

· 7 146 Cal. 604; 69 L. R. A. 556.

· 8 Canno's Precedents (1936) par. 2497) William Willet, Jr. of New York); par. 2498 (Louis v. Mc Fadden of Pensylvania).

· 9 Constitution, Jefferson's Manual and the House of Representative by Louis Deschler (1955) p. 382.

· 10 the Jones Law placed "in the hands of the people of the Philippines as large a control of their domestic affairs as can be given them, without in the meantime impairing the rights of sovereignty by the people of the United States." (Preamble)

· 11 Apart from the view that power to remove includes the power to suspend asan incident. (Burnap vs. U. s. 252, U. S. 512, 64 L. Ed. 693, 695.) This view is distinguishable from Hebron vs. Reyes, 104 Phil., 175.(See Gregory vs. Mayor, 21 N. E. 120) But we need not explain this now. Enough to rely on congressional inherent power.

· 12 See appendix par. VII, Cushing.

· 13 This, apart from doubts on (a) our jurisdiction to entertain original petitions for declaratory judgments, and (b) availability of certiorari or prohibition against respondents who are not exercising judicial or ministerial functions (Rule 67, sec. 1 and 2).

· 14 See supra.

·15 Phil., 83.

EN BANC

SENATOR AQUILINO PIMENTEL, JR., G.R. No. 158088REP. ETTA ROSALES, PHILIPPINECOALITION FOR THE ESTABLISHMENT OF THE INTERNATIONAL Present:CRIMINAL COURT, TASK FORCEDETAINEES OF THE PHILIPPINES, Davide, Jr., C.J.,FAMILIES OF VICTIMS OF Puno,INVOLUNTARY DISAPPEARANCES, Panganiban,BIANCA HACINTHA R. ROQUE, Quisumbing,HARRISON JACOB R. ROQUE, Ynares-Santiago,AHMED PAGLINAWAN, RON P. SALO, *Sandoval-Gutierrez,LEAVIDES G. DOMINGO, EDGARDO *Carpio,CARLO VISTAN, NOEL VILLAROMAN, Austria-Martinez,CELESTE CEMBRANO, LIZA ABIERA, *Corona,JAIME ARROYO, MARWIL LLASOS, Carpio Morales,CRISTINA ATENDIDO, ISRAFEL Callejo, Sr.,FAGELA, and ROMEL BAGARES, Azcuna,Petitioners, Tinga, Chico-Nazario, and- versus - Garcia, JJ.

OFFICE OF THE EXECUTIVE

SECRETARY, represented by Promulgated:HON. ALBERTO ROMULO, and the DEPARTMENT OF FOREIGN AFFAIRS, represented by HON. BLAS OPLE, July 6, 2005Respondents. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

PUNO J.:

This is a petition for mandamus filed by petitioners to compel the

Office of the Executive Secretary and the Department of Foreign Affairs to transmit the

signed copy of the Rome Statute of the International Criminal Court to the Senate of the

Philippines for its concurrence in accordance with Section 21, Article VII of the 1987

Constitution.

The Rome Statute established the International Criminal Court which shall have the

power to exercise its jurisdiction over persons for the most serious crimes of

international concern xxx and shall be complementary to the national criminal

jurisdictions.[1] Its jurisdiction covers the crime of genocide, crimes against humanity,

war crimes and the crime of aggression as defined in the Statute.[2] The Statute was

opened for signature by all states in Rome on July 17, 1998 and had remained open for

signature until December 31, 2000 at the United Nations Headquarters in New York. The

Philippines signed the Statute on December 28, 2000 through Charge d Affairs Enrique

A. Manalo of the Philippine Mission to the United Nations.[3] Its provisions, however,

require that it be subject to ratification, acceptance or approval of the signatory states.[4]

Petitioners filed the instant petition to compel the respondents the Office of the

Executive Secretary and the Department of Foreign Affairs to transmit the signed text of

the treaty to the Senate of the Philippines for ratification.

It is the theory of the petitioners that ratification of a treaty, under both domestic law and

international law, is a function of the Senate. Hence, it is the duty of the executive

department to transmit the signed copy of the Rome Statute to the Senate to allow it to

exercise its discretion with respect to ratification of treaties. Moreover, petitioners

submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty

law and customary international law. Petitioners invoke the Vienna Convention on the

Law of Treaties enjoining the states to refrain from acts which would defeat the object

and purpose of a treaty when they have signed the treaty prior to ratification unless they

have made their intention clear not to become parties to the treaty.[5]

The Office of the Solicitor General, commenting for the respondents, questioned the

standing of the petitioners to file the instant suit. It also contended that the petition at bar

violates the rule on hierarchy of courts. On the substantive issue raised by petitioners,

respondents argue that the executive department has no duty to transmit the Rome

Statute to the Senate for concurrence.

A petition for mandamus may be filed when any tribunal, corporation, board, officer or

person unlawfully neglects the performance of an act which the law specifically enjoins

as a duty resulting from an office, trust, or station.[6] We have held that to be given due

course, a petition for mandamus must have been instituted by a party aggrieved by the

alleged inaction of any tribunal, corporation, board or person which unlawfully excludes

said party from the enjoyment of a legal right. The petitioner in every case must

therefore be an aggrieved party in the sense that he possesses a clear legal right to be

enforced and a direct interest in the duty or act to be performed.[7] The Court will

exercise its power of judicial review only if the case is brought before it by a party who

has the legal standing to raise the constitutional or legal question. Legal standing means

a personal and substantial interest in the case such that the party has sustained or will

sustain direct injury as a result of the government act that is being challenged. The term

interest is material interest, an interest in issue and to be affected by the decree, as

distinguished from mere interest in the question involved, or a mere incidental interest.

[8]

The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal

standing to file the suit as member of the Senate; Congresswoman Loretta Ann Rosales,

a member of the House of Representatives and Chairperson of its Committee on Human

Rights; the Philippine Coalition for the Establishment of the International Criminal

Court which is composed of individuals and corporate entities dedicated to the

Philippine ratification of the Rome Statute; the Task Force Detainees of the Philippines,

a juridical entity with the avowed purpose of promoting the cause of human rights and

human rights victims in the country; the Families of Victims of Involuntary

Disappearances, a juridical entity duly organized and existing pursuant to Philippine

Laws with the avowed purpose of promoting the cause of families and victims of human

rights violations in the country; Bianca Hacintha Roque and Harrison Jacob Roque, aged

two (2) and one (1), respectively, at the time of filing of the instant petition, and suing

under the doctrine of inter-generational rights enunciated in the case of Oposa vs.

Factoran, Jr.;[9] and a group of fifth year working law students from the University of

the Philippines College of Law who are suing as taxpayers.

The question in standing is whether a party has alleged such a personal stake in the

outcome of the controversy as to assure that concrete adverseness which sharpens the

presentation of issues upon which the court so largely depends for illumination of

difficult constitutional questions.[10]

We find that among the petitioners, only Senator Pimentel has the legal standing to file

the instant suit. The other petitioners maintain their standing as advocates and defenders

of human rights, and as citizens of the country. They have not shown, however, that they

have sustained or will sustain a direct injury from the non-transmittal of the signed text

of the Rome Statute to the Senate. Their contention that they will be deprived of their

remedies for the protection and enforcement of their rights does not persuade. The Rome

Statute is intended to complement national criminal laws and courts. Sufficient remedies

are available under our national laws to protect our citizens against human rights

violations and petitioners can always seek redress for any abuse in our domestic courts.

As regards Senator Pimentel, it has been held that to the extent the powers of Congress

are impaired, so is the power of each member thereof, since his office confers a right to

participate in the exercise of the powers of that institution.[11] Thus, legislators have the

standing to maintain inviolate the prerogatives, powers and privileges vested by the

Constitution in their office and are allowed to sue to question the validity of any official

action which they claim infringes their prerogatives as legislators. The petition at bar

invokes the power of the Senate to grant or withhold its concurrence to a treaty entered

into by the executive branch, in this case, the Rome Statute. The petition seeks to order

the executive branch to transmit the copy of the treaty to the Senate to allow it to

exercise such authority. Senator Pimentel, as member of the institution, certainly has the

legal standing to assert such authority of the Senate.

We now go to the substantive issue.

The core issue in this petition for mandamus is whether the Executive Secretary and the

Department of Foreign Affairs have a ministerial duty to transmit to the Senate the copy

of the Rome Statute signed by a member of the Philippine Mission to the United Nations

even without the signature of the President.

We rule in the negative.

In our system of government, the President, being the head of state, is regarded as the

sole organ and authority in external relations and is the countrys sole representative with

foreign nations.[12] As the chief architect of foreign policy, the President acts as the

countrys mouthpiece with respect to international affairs. Hence, the President is vested

with the authority to deal with foreign states and governments, extend or withhold

recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the

business of foreign relations.[13] In the realm of treaty-making, the President has the

sole authority to negotiate with other states.

Nonetheless, while the President has the sole authority to negotiate and enter into

treaties, the Constitution provides a limitation to his power by requiring the concurrence

of 2/3 of all the members of the Senate for the validity of the treaty entered into by him.

Section 21, Article VII of the 1987 Constitution provides that no treaty or international

agreement shall be valid and effective unless concurred in by at least two-thirds of all

the Members of the Senate. The 1935 and the 1973 Constitution also required the

concurrence by the legislature to the treaties entered into by the executive. Section 10

(7), Article VII of the 1935 Constitution provided:

Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members of the Senate, to make treaties xxx.

Section 14 (1) Article VIII of the 1973 Constitution stated:

Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless concurred in by a majority of all the Members of the Batasang Pambansa.

The participation of the legislative branch in the treaty-making process was deemed

essential to provide a check on the executive in the field of foreign relations.[14] By

requiring the concurrence of the legislature in the treaties entered into by the President,

the Constitution ensures a healthy system of checks and balance necessary in the nations

pursuit of political maturity and growth.[15]

In filing this petition, the petitioners interpret Section 21, Article VII of the 1987

Constitution to mean that the power to ratify treaties belongs to the Senate.

We disagree.

Justice Isagani Cruz, in his book on International Law, describes the treaty-making

process in this wise:

The usual steps in the treaty-making process are: negotiation, signature, ratification, and

exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.

Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even collapse in case the parties are unable to come to an agreement on the points under consideration.

If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state.

Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them.

x x x

The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.[16] [emphasis supplied]

Petitioners arguments equate the signing of the treaty by the Philippine representative

with ratification. It should be underscored that the signing of the treaty and the

ratification are two separate and distinct steps in the treaty-making process. As earlier

discussed, the signature is primarily intended as a means of authenticating the instrument

and as a symbol of the good faith of the parties. It is usually performed by the states

authorized representative in the diplomatic mission. Ratification, on the other hand, is

the formal act by which a state confirms and accepts the provisions of a treaty concluded

by its representative. It is generally held to be an executive act, undertaken by the head

of the state or of the government.[17] Thus, Executive Order No. 459 issued by

President Fidel V. Ramos on November 25, 1997 provides the guidelines in the

negotiation of international agreements and its ratification. It mandates that after the

treaty has been signed by the Philippine representative, the same shall be transmitted to

the Department of Foreign Affairs. The Department of Foreign Affairs shall then prepare

the ratification papers and forward the signed copy of the treaty to the President for

ratification. After the President has ratified the treaty, the Department of Foreign Affairs

shall submit the same to the Senate for concurrence. Upon receipt of the concurrence of

the Senate, the Department of Foreign Affairs shall comply with the provisions of the

treaty to render it effective. Section 7 of Executive Order No. 459 reads:

Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. The domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto, shall be as follows:

A. Executive Agreements.

i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing for the preparation of the ratification papers. The transmittal shall include the highlights of the agreements and the benefits which will accrue to the Philippines arising from them.

ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall transmit the agreements to the President of the Philippines for his ratification. The original signed instrument of ratification shall then be returned to the Department of Foreign Affairs for appropriate action.

B. Treaties.

i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-paragraph[s] 1 and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall submit the treaties to the Senate of the Philippines for concurrence in the ratification by the President. A certified true copy of the treaties, in such numbers as may be required by the Senate, together with a certified true copy of the ratification instrument, shall accompany the submission of the treaties to the Senate.

ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with the provision of the treaties in effecting their entry into force.

Petitioners submission that the Philippines is bound under treaty law and international

law to ratify the treaty which it has signed is without basis. The signature does not

signify the final consent of the state to the treaty. It is the ratification that binds the state

to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the

representatives of the states be subject to ratification, acceptance or approval of the

signatory states. Ratification is the act by which the provisions of a treaty are formally

confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state

expresses its willingness to be bound by the provisions of such treaty. After the treaty is

signed by the states representative, the President, being accountable to the people, is

burdened with the responsibility and the duty to carefully study the contents of the treaty

and ensure that they are not inimical to the interest of the state and its people. Thus, the

President has the discretion even after the signing of the treaty by the Philippine

representative whether or not to ratify the same. The Vienna Convention on the Law of

Treaties does not contemplate to defeat or even restrain this power of the head of states.

If that were so, the requirement of ratification of treaties would be pointless and futile. It

has been held that a state has no legal or even moral duty to ratify a treaty which has

been signed by its plenipotentiaries.[18] There is no legal obligation to ratify a treaty, but

it goes without saying that the refusal must be based on substantial grounds and not on

superficial or whimsical reasons. Otherwise, the other state would be justified in taking

offense.[19]

It should be emphasized that under our Constitution, the power to ratify is vested in the

President, subject to the concurrence of the Senate. The role of the Senate, however, is

limited only to giving or withholding its consent, or concurrence, to the ratification.[20]

Hence, it is within the authority of the President to refuse to submit a treaty to the Senate

or, having secured its consent for its ratification, refuse to ratify it.[21] Although the

refusal of a state to ratify a treaty which has been signed in its behalf is a serious step

that should not be taken lightly,[22] such decision is within the competence of the

President alone, which cannot be encroached by this Court via a writ of mandamus. This

Court has no jurisdiction over actions seeking to enjoin the President in the performance

of his official duties.[23] The Court, therefore, cannot issue the writ of mandamus

prayed for by the petitioners as it is beyond its jurisdiction to compel the executive

branch of the government to transmit the signed text of Rome Statute to the Senate.

IN VIEW WHEREOF, the petition is DISMISSED.

SO ORDERED.

REYNATO S. PUNOAssociate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.Chief Justice

ARTEMIO V. PANGANIBAN LEONARDO A. QUISUMBING Associate Justice Associate Justice

EN BANC

[G.R. No. 163193. June 15, 2004]

SIXTO S. BRILLANTES, JR. petitioner, vs. JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J. ANGARA, DR. JAIME Z. GALVEZ, TAN, FRANKLIN M. DRILON, FRISCO SAN JUAN, NORBERTO M. GONZALES, HONESTO M. ISLETA, AND JOSE A. BERNAS, petitioners-in-intervention, vs.

COMMISSION ON ELECTIONS, respondent.

D E C I S I O N

CALLEJO, SR., J.:

Before us is the petition for certiorari and prohibition under Rule 65 of the Rules of Court filed by Atty. Sixto S. Brillantes, Jr., a voter and taxpayer, seeking to nullify, for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, Resolution No. 6712 dated April 28, 2004 approved by the Commission on Elections (COMELEC) En Banc captioned GENERAL INSTRUCTIONS FOR THE ELECTRONIC TRANSMISSION AND CONSOLIDATION OF ADVANCED RESULTS IN THE MAY 10, 2004 ELECTIONS.[1] The petitioner, likewise, prays for the issuance of a temporary restraining order and, after due proceedings, a writ of prohibition to permanently enjoin the respondent COMELEC from enforcing and implementing the questioned resolution.

After due deliberation, the Court resolved to require the respondent to comment on the petition and to require the parties to observe the status quo prevailing before the issuance by the COMELEC of the assailed resolution. The parties were heard on oral arguments on May 8, 2004. The respondent COMELEC was allowed during the hearing to make a presentation of the Electronic Transmission, Consolidation and Dissemination (PHASE III) program of the COMELEC, through Mr. Renato V. Lim of the Philippine Multi-Media System, Inc. (PMSI).

The Court, thereafter, resolved to maintain the status quo order issued on May 6, 2004 and expanded it to cover any and all other issuances related to the implementation of the so-called election quick count project. In compliance with the resolution of the Court, the respondent, the petitioner and the petitioners-in-intervention submitted the documents required of them.

The Antecedents

On December 22, 1997, Congress enacted Republic Act No. 8436[2] authorizing the COMELEC to use an automated election system (AES) for the process of voting, counting of votes and canvassing/consolidating the results of the national and local elections. It also mandated the COMELEC to acquire automated counting machines (ACMs), computer equipment, devices and materials; and to adopt new electoral forms and printing materials.

The COMELEC initially intended to implement the automation during the May 11, 1998 presidential elections, particularly in the Autonomous Region in Muslim Mindanao (ARMM). The failure of the machines to read correctly some automated ballots, however, deferred its implementation.[3]

In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done manually, as no additional ACMs had been acquired for that electoral exercise because of time constraints.

On October 29, 2002, the COMELEC adopted, in its Resolution No. 02-0170, a modernization program for the 2004 elections consisting of three (3) phases, to wit:

(1) PHASE I Computerized system of registration and voters validation or the so-called biometrics

system of registration;

(2) PHASE II Computerized voting and counting of votes; and

(3) PHASE III Electronic transmission of results.

It resolved to conduct biddings for the three phases.

On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172,[4] which allocated the sum of P2,500,000,000 to exclusively fund the AES in time for the May 10, 2004 elections.

On January 28, 2003, the COMELEC issued an Invitation to Bid[5] for the procurement of supplies, equipment, materials and services needed for the complete implementation of all three phases of the AES with an approved budget of P2,500,000,000.

On February 10, 2003, upon the request of the COMELEC, President Gloria Macapagal-Arroyo issued Executive Order No. 175,[6] authorizing the release of a supplemental P500 million budget for the AES project of the COMELEC. The said issuance, likewise, instructed the Department of Budget and Management (DBM) to ensure that the aforementioned additional amount be used exclusively for the AES prescribed under Rep. Act No. 8436, particularly the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections.[7]

On April 15, 2003, the COMELEC promulgated Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific Consortium and correspondingly entered into a contract with the latter to implement the project. On the same day, the COMELEC entered into a separate contract with Philippine Multi-Media System, Inc. (PMSI) denominated ELECTRONIC TRANSMISSION, CONSOLIDATION & DISSEMINATION OF ELECTION RESULTS PROJECT CONTRACT.[8] The contract, by its very terms, pertains to Phase III of the respondent COMELECs AES modernization program. It was predicated on a previous bid award of the contract, for the lease of 1,900 units of satellite-based Very Small Aperture Terminals (VSAT) each unit consisting of an indoor and outdoor equipment, to PMSI for possessing the legal, financial and technical expertise necessary to meet the projects objectives. The COMELEC bound and obliged itself to pay PMSI the sum of P298,375,808.90 as rentals for the leased equipment and for its services.

In the meantime, the Information Technology Foundation of the Philippines (ITFP), filed a petition for certiorari and prohibition in this Court for the nullification of Resolution No. 6074 approving the contract for Phase II of AES to Mega Pacific Consortium, entitled and docketed as Information Technology Foundation of the Philippines, et al. vs. COMELEC, et al., G.R. No. 159139. While the case was pending in this Court, the COMELEC paid the contract fee to the PMSI in trenches.

On January 13, 2004, this Court promulgated its Decision nullifying COMELEC Resolution No. 6074 awarding the contract for Phase II of the AES to Mega Pacific Consortium. Also voided was the subsequent contract entered into by the respondent COMELEC with Mega Pacific Consortium for the purchase of computerized voting/counting machines for the purpose of implementing the second phase of the modernization program. Phase II of the AES was, therefore, scrapped based on the said Decision of the Court and the COMELEC had to maintain the old manual voting and counting system for the May 10, 2004 elections.

On the other hand, the validation scheme under Phase I of the AES apparently encountered problems in its implementation, as evinced by the COMELECs pronouncements prior to the elections that it was reverting to the old listing of voters. Despite the scrapping of Phase II of the AES, the COMELEC nevertheless ventured to implement Phase III of the AES through an electronic transmission of advanced unofficial results of the 2004 elections for national, provincial and municipal positions, also

dubbed as an unofficial quick count.

Senate President Franklin Drilon had misgivings and misapprehensions about the constitutionality of the proposed electronic transmission of results for the positions of President and Vice-President, and apprised COMELEC Chairman Benjamin Abalos of his position during their meeting on January 28, 2004. He also wrote Chairman Abalos on February 2, 2004. The letter reads:

Dear Chairman Abalos,

This is to confirm my opinion which I relayed to you during our meeting on January 28th that the Commission on Elections cannot and should not conduct a quick count on the results of the elections for the positions of President and Vice-President.

Under Section 4 of Article VII of the Constitution, it is the Congress that has the sole and exclusive authority to canvass the votes for President and Vice-President. Thus, any quick count to be conducted by the Commission on said positions would in effect constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive of the authority of the Congress, but also would be lacking of any Constitutional authority. You conceded the validity of the position we have taken on this point.

In view of the foregoing, we asked the COMELEC during that meeting to reconsider its plan to include the votes for President and Vice-President in the quick count, to which you graciously consented. Thank you very much.[9]

The COMELEC approved a Resolution on February 10, 2004 referring the letter of the Senate President to the members of the COMELEC and its Law Department for study and recommendation. Aside from the concerns of the Senate President, the COMELEC had to contend with the primal problem of sourcing the money for the implementation of the project since the money allocated by the Office of the President for the AES had already been spent for the acquisition of the equipment. All these developments notwithstanding, and despite the explicit specification in the project contract for Phase III that the same was functionally intended to be an interface of Phases I and II of the AES modernization program, the COMELEC was determined to carry out Phase III of the AES. On April 6, 2004, the COMELEC, in coordination with the project contractor PMSI, conducted a field test of the electronic transmission of election results.

On April 27, 2004, the COMELEC met en banc to update itself on and resolve whether to proceed with its implementation of Phase III of the AES.[10] During the said meeting, COMELEC Commissioner Florentino Tuason, Jr. requested his fellow Commissioners that whatever is said here should be confined within the four walls of this room and the minutes so that walang masyadong problema.[11] Commissioner Tuason, Jr. stated that he had no objection as to the Phase III of the modernization project itself, but had concerns about the budget. He opined that other funds of the COMELEC may not be proper for realignment. Commissioners Resurreccion Z. Borra and Virgilio Garcillano also expressed their concerns on the budget for the project. Commissioner Manuel Barcelona, Jr. shared the sentiments of Commissioners Garcillano and Tuason, Jr. regarding personnel and budgetary problems. Commissioner Sadain then manifested that the consideration for the contract for Phase III had already been almost fully paid even before the Courts nullification of the contract for Phase II of the AES, but he was open to the possibility of the realignment of funds of the COMELEC for the funding of the project. He added that if the implementation of Phase III would not be allowed to continue just because Phase II was nullified, then it would be P300,000,000 down the drain, in addition to the already allocated disbursement on Phase II of the AES.[12] Other concerns of the Commissioners were on the legality of the project considering the scrapping of Phase II of the AES, as well as the operational constraints related to its implementation.

Despite the dire and serious reservations of most of its members, the COMELEC, the next day, April 28, 2004, barely two weeks before the national and local elections, approved the assailed resolution declaring that it adopts the policy that the precinct election results of each city and municipality shall be immediately transmitted electronically in advance to the COMELEC, Manila.[13] For the purpose, respondent COMELEC established a National Consolidation Center (NCC), Electronic Transmission Centers (ETCs) for every city and municipality, and a special ETC at the COMELEC, Manila, for the Overseas Absentee Voting.[14]

Briefly, the procedure for this electronic transmission of precinct results is outlined as follows:

I. The NCC shall receive and consolidate all precinct results based on the data transmitted to it by each ETC;[15]

II. Each city and municipality shall have an ETC where votes obtained by each candidate for all positions shall be encoded, and shall consequently be transmitted electronically to the NCC, through Very Small Aperture Terminal (VSAT) facilities.[16] For this purpose, personal computers shall be allocated for all cities and municipalities at the rate of one set for every one hundred seventy-five (175) precincts;[17]

III. A Department of Education (DepEd) Supervisor shall be designated in the area who will be assigned in each polling center for the purpose of gathering from all Board of Election Inspectors (BEI) therein the envelopes containing the Copy 3 of the Election Returns (ER) for national positions and Copy 2 of the ER for local positions, both intended for the COMELEC, which shall be used as basis for the encoding and transmission of advanced precinct results.[18]

The assailed resolution further provides that written notices of the date, time and place of the electronic transmission of advanced precinct results shall be given not later than May 5, 2004 to candidates running for local positions, and not later than May 7, 2004 to candidates running for national positions, as well as to political parties fielding candidates, and parties, organizations/coalitions participating under the party-list system.[19]

In relation to this, Section 13 of the assailed resolution provides that the encoding proceedings were ministerial and the tabulations were advanced unofficial results. The entirety of Section 13, reads:

Sec. 13. Right to observe the ETC proceedings. Every registered political party or coalition of parties, accredited political party, sectoral party/organization or coalition thereof under the party-list, through its representative, and every candidate for national positions has the right to observe/witness the encoding and electronic transmission of the ERs within the authorized perimeter.

Provided, That candidates for the sangguniang panlalawigan, sangguniang panglungsod or sangguniang bayan belonging to the same slate or ticket shall collectively be entitled to only one common observer at the ETC.

The citizens arm of the Commission, and civic, religious, professional, business, service, youth and other similar organizations collectively, with prior authority of the Commission, shall each be entitled to one (1) observer. Such fact shall be recorded in the Minutes.

The observer shall have the right to observe, take note of and make observations on the proceedings of the team. Observations shall be in writing and, when submitted, shall be attached to the Minutes.

The encoding proceedings being ministerial in nature, and the tabulations being advanced unofficial results, no objections or protests shall be allowed or entertained by the ETC.

In keeping with the unofficial character of the electronically transmitted precinct results, the assailed resolution expressly provides that no print-outs shall be released at the ETC and at the NCC.[20]

Instead, consolidated and per-precinct results shall be made available via the Internet, text messaging, and electronic billboards in designated locations. Interested parties may print the result published in the COMELEC web site.[21]

When apprised of the said resolution, the National Citizens Movement for Free Elections (NAMFREL), and the heads of the major political parties, namely, Senator Edgardo J. Angara of the Laban ng Demokratikong Pilipino (LDP) and Chairman of the Koalisyon ng mga Nagkakaisang Pilipino (KNP) Executive Committee, Dr. Jaime Z. Galvez Tan of the Aksyon Demokratiko, Frisco San Juan of the Nationalist Peoples Coalition (NPC), Gen. Honesto M. Isleta of Bangon Pilipinas, Senate President Franklin Drilon of the Liberal Party, and Speaker Jose de Venecia of the Lakas-Christian Muslim Democrats (CMD) and Norberto M. Gonzales of the Partido Demokratiko Sosyalista ng Pilipinas, wrote the COMELEC, on May 3, 2004 detailing their concerns about the assailed resolution:

This refers to COMELEC Resolution 6712 promulgated on 28 April 2004.

NAMFREL and political parties have the following concerns about Resolution 6712 which arose during consultation over the past week[:]

a) The Resolution disregards RA 8173, 8436, and 7166 which authorize only the citizens arm to use an election return for an unofficial count; other unofficial counts may not be based on an election return; Indeed, it may be fairly inferred from the law that except for the copy of the citizens arm, election returns may only be used for canvassing or for receiving dispute resolutions.

b) The Commissions copy, the second or third copy of the election return, as the case may be, has always been intended to be an archived copy and its integrity preserved until required by the Commission to resolve election disputes. Only the Board of Election Inspectors is authorized to have been in contact with the return before the Commission unseals it.

c) The instruction contained in Resolution 6712, to break the seal of the envelope containing copies Nos. 2 and 3 will introduce a break in the chain of custody prior to its opening by the Commission on Election[s]. In the process of prematurely breaking the seal of the Board of Election Inspectors, the integrity of the Commissions copy is breached, thereby rendering it void of any probative value.

To us, it does appear that the use of election returns as prescribed in Resolution 6712 departs from the letters and spirit of the law, as well as previous practice. More importantly, questions of legalities aside, the conduct of an advanced count by the COMELEC may affect the credibility of the elections because it will differ from the results obtained from canvassing. Needless to say, it does not help either that Resolution 6712 was promulgated only recently, and perceivably, on the eve of the elections.

In view of the foregoing, we respectfully request the Commission to reconsider Resolution 6712 which authorizes the use of election returns for the consolidation of the election results for the May 10, 2004 elections.[22]

The Present Petition

On May 4, 2004, the petition at bar was filed in this Court.

Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara, Dr. Jaime Z. Galvez-Tan, Franklin M. Drilon, Frisco San Juan, Norberto M. Gonzales, Honesto M. Isleta and Jose A. Bernas, filed with this Court their Motion to Admit Attached Petition-in-Intervention. In their petition-in-intervention, movants-petitioners urge the Court to declare as null and void the assailed resolution and permanently enjoin the respondent COMELEC from implementing the same. The Court granted the motion of the petitioners-in-intervention and admitted their petition.

In assailing the validity of the questioned resolution, the petitioner avers in his petition that there is no

provision under Rep. Act No. 8436 which authorizes the COMELEC to engage in the biometrics/computerized system of validation of voters (Phase I) and a system of electronic transmission of election results (Phase III). Even assuming for the nonce that all the three (3) phases are duly authorized, they must complement each other as they are not distinct and separate programs but mere stages of one whole scheme. Consequently, considering the failed implementation of Phases I and II, there is no basis at all for the respondent COMELEC to still push through and pursue with Phase III. The petitioner essentially posits that the counting and consolidation of votes contemplated under Section 6 of Rep. Act No. 8436 refers to the official COMELEC count under the fully automated system and not any kind of unofficial count via electronic transmission of advanced results as now provided under the assailed resolution.

The petitioners-in-intervention point to several constitutional infractions occasioned by the assailed resolution. They advance the view that the assailed resolution effectively preempts the sole and exclusive authority of Congress under Article VII, Section 4 of the Constitution to canvass the votes for President and Vice-President. Further, as there has been no appropriation by Congress for the respondent COMELEC to conduct an unofficial electronic transmission of results of the May 10, 2004 elections, any expenditure for the said purpose contravenes Article VI, Section 29 (par. 1) of the Constitution.

On statutory grounds, the petitioner and petitioners-in-intervention contend that the assailed resolution encroaches upon the authority of NAMFREL, as the citizens accredited arm, to conduct the unofficial quick count as provided under pertinent election laws. It is, likewise, impugned for violating Section 52(i) of the Omnibus Election Code, relating to the requirement of notice to the political parties and candidates of the adoption of technological and electronic devices during the elections.

For its part, the COMELEC preliminarily assails the jurisdiction of this Court to pass upon the assailed resolutions validity claiming that it was promulgated in the exercise of the respondent COMELECs executive or administrative power. It asserts that the present controversy involves a political question; hence, beyond the ambit of judicial review. It, likewise, impugns the standing of the petitioner to file the present petition, as he has not alleged any injury which he would or may suffer as a result of the implementation of the assailed resolution.

On the merits, the respondent COMELEC denies that the assailed resolution was promulgated pursuant to Rep. Act No. 8436, and that it is the implementation of Phase III of its modernization program. Rather, as its bases, the respondent COMELEC invokes the general grant to it of the power to enforce and administer all laws relative to the conduct of elections and to promulgate rules and regulations to ensure free, orderly and honest elections by the Constitution, the Omnibus Election Code, and Rep. Acts Nos. 6646 and 7166. The COMELEC avers that granting arguendo that the assailed resolution is related to or connected with Phase III of the modernization program, no specific law is violated by its implementation. It posits that Phases I, II and III are mutually exclusive schemes such that, even if the first two phases have been scrapped, the latter phase may still proceed independently of and separately from the others. It further argues that there is statutory basis for it to conduct an unofficial quick count. Among others, it invokes the general grant to it of the power to ensure free, orderly, honest, peaceful and credible elections. Finally, it claims that it had complied with Section 52(i) of the Omnibus Election Code, as the political parties and all the candidates of the 2004 elections were sufficiently notified of the electronic transmission of advanced election results.

The COMELEC trivializes as purely speculative these constitutional concerns raised by the petitioners-in-intervention and the Senate President. It maintains that what is contemplated in the assailed resolution is not a canvass of the votes but merely consolidation and transmittal thereof. As such, it cannot be made the basis for the proclamation of any winning candidate. Emphasizing that the project

is unofficial in nature, the COMELEC opines that it cannot, therefore, be considered as preempting or usurping the exclusive power of Congress to canvass the votes for President and Vice-President.

The Issues

At the said hearing on May 8, 2004, the Court set forth the issues for resolution as follows:

1. Whether the petitioner and the petitioners-intervenors have standing to sue;

2. Assuming that they have standing, whether the issues they raise are political in nature over which the Court has no jurisdiction;

3. Assuming the issues are not political, whether Resolution No. 6712 is void:

(a) for preempting the sole and exclusive authority of Congress under Art. VII, Sec. 4 of the 1987 Constitution to canvass the votes for the election of President and Vice-President;

(b) for violating Art. VI, Sec. 29 (par. 1) of the 1987 Constitution that no money shall be paid out of the treasury except in pursuance of an appropriation made by law;

(c) for disregarding Rep. Acts Nos. 8173, 8436 and 7166 which authorize only the citizens arm to use an election return for an unofficial count;

(d) for violation of Sec. 52(i) of the Omnibus Election Code, requiring not less than thirty (30) days notice of the use of new technological and electronic devices; and,

(e) for lack of constitutional or statutory basis; and,

4. Whether the implementation of Resolution No. 6712 would cause trending, confusion and chaos.


The issues, as earlier defined, shall now be resolved in seriatim:

The Petitioners And Petitioners-In-Intervention Possess The LocusStandi To Maintain The PresentAction

The gist of the question of standing is whether a party has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.[23] Since the implementation of the assailed resolution obviously involves the expenditure of funds, the petitioner and the petitioners-in-intervention, as taxpayers, possess the requisite standing to question its validity as they have sufficient interest in preventing the illegal expenditure of money raised by taxation.[24] In essence, taxpayers are allowed to sue where there is a claim of illegal disbursement of public funds, or that public money is being deflected to any improper purpose, or where the petitioners seek to restrain the respondent from wasting public funds through the enforcement of an invalid or unconstitutional law.[25]

Most of the petitioners-in-intervention are also representatives of major political parties that have participated in the May 10, 2004 elections. On the other hand, petitioners-in-intervention Concepcion and Bernas represent the National Citizens Movement for Free Elections (NAMFREL), which is the

citizens arm authorized to conduct an unofficial quick count during the said elections. They have sufficient, direct and personal interest in the manner by which the respondent COMELEC would conduct the elections, including the counting and canvassing of the votes cast therein.

Moreover, the petitioners-in-intervention Drilon and De Venecia are, respectively, President of the Senate and Speaker of the House of Representatives, the heads of Congress which is exclusively authorized by the Constitution to canvass the votes for President and Vice-President. They have the requisite standing to prevent the usurpation of the constitutional prerogative of Congress.

The Issue Raised By ThePetition Is Justiciable

Article VIII, Section 1 of the 1987 Constitution expands the concept of judicial review by providing that:

SEC. 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

The Court does not agree with the posture of the respondent COMELEC that the issue involved in the present petition is a political question beyond the jurisdiction of this Court to review. As the leading case of Taada vs. Cuenco[26] put it, political questions are concerned with issues dependent upon the wisdom, not legality of a particular measure.

The issue raised in the present petition does not merely concern the wisdom of the assailed resolution but focuses on its alleged disregard for applicable statutory and constitutional provisions. In other words, that the petitioner and the petitioners-in-intervention are questioning the legality of the respondent COMELECs administrative issuance will not preclude this Court from exercising its power of judicial review to determine whether or not there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the respondent COMELEC in issuing Resolution No. 6712. Indeed, administrative issuances must not override, supplant or modify the law, but must remain consistent with the law they intend to carry out.[27] When the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable the problem being one of legality or validity, not its wisdom.[28] In the present petition, the Court must pass upon the petitioners contention that Resolution No. 6712 does not have adequate statutory or constitutional basis.

Although not raised during the oral arguments, another procedural issue that has to be addressed is whether the substantive issues had been rendered moot and academic. Indeed, the May 10, 2004 elections have come and gone. Except for the President and Vice-President, the newly- elected national and local officials have been proclaimed. Nonetheless, the Court finds it necessary to resolve the merits of the substantive issues for future guidance of both the bench and bar.[29] Further, it is settled rule that courts will decide a question otherwise moot and academic if it is capable of repetition, yet evading review.[30]

The Respondent COMELECCommitted Grave Abuse OfDiscretion Amounting To Lack OrExcess Of Jurisdiction In Issuing

Resolution No. 6712

The preliminary issues having been thus resolved, the Court shall proceed to determine whether the respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in promulgating the assailed resolution.

The Court rules in the affirmative.

An administrative body or tribunal acts without jurisdiction if it does not have the legal power to determine the matter before it; there is excess of jurisdiction where the respondent, being clothed with the power to determine the matter, oversteps its authority as determined by law.[31] There is grave abuse of discretion justifying the issuance of the writ of certiorari when there is a capricious and whimsical exercise of his judgment as is equivalent to lack of jurisdiction.[32]

First. The assailed resolution usurps, under the guise of an unofficial tabulation of election results based on a copy of the election returns, the sole and exclusive authority of Congress to canvass the votes for the election of President and Vice-President. Article VII, Section 4 of the Constitution provides in part:

The returns of every election for President and Vice-President duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.

As early as January 28, 2004, Senate President Franklin M. Drilon already conveyed to Chairman Benjamin S. Abalos, Sr. his deep-seated concern that the respondent COMELEC could not and should not conduct any quick count of the votes cast for the positions of President and Vice-President. In his Letter dated February 2, 2004[33] addressed to Chairman Abalos, Senate President Drilon reiterated his position emphasizing that any quick count to be conducted by the Commission on said positions would in effect constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive of the authority of Congress, but would also be lacking of any constitutional authority.[34]

Nonetheless, in disregard of the valid objection of the Senate President, the COMELEC proceeded to promulgate the assailed resolution. Such resolution directly infringes the authority of Congress, considering that Section 4 thereof allows the use of the third copy of the Election Returns (ERs) for the positions of President, Vice-President, Senators and Members of the House of Representatives, intended for the COMELEC, as basis for the encoding and transmission of advanced precinct results, and in the process, canvass the votes for the President and Vice-President, ahead of the canvassing of the same votes by Congress.

Parenthetically, even the provision of Rep. Act No. 8436 confirms the constitutional undertaking of Congress as the sole body tasked to canvass the votes for the President and Vice-President. Section 24 thereof provides:

SEC. 24. Congress as the National Board of Canvassers for President and Vice-President. -- The Senate and the House of Representatives, in joint public session, shall compose the national board of canvassers for president and vice-president. The returns of every election for president and vice-president duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the president of the Senate. Upon receipt of the certificates of canvass, the president of the Senate shall, not later than thirty (30) days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and

the Congress upon determination of the authenticity and the due execution thereof in the manner provided by law, canvass all the results for president and vice-president by consolidating the results contained in the data storage devices submitted by the district, provincial and city boards of canvassers and thereafter, proclaim the winning candidates for president and vice-president.

The contention of the COMELEC that its tabulation of votes is not prohibited by the Constitution and Rep. Act No. 8436 as such tabulation is unofficial, is puerile and totally unacceptable. If the COMELEC is proscribed from conducting an official canvass of the votes cast for the President and Vice-President, the COMELEC is, with more reason, prohibited from making an unofficial canvass of said votes.

The COMELEC realized its folly and the merits of the objection of the Senate President on the constitutionality of the resolution that it decided not to conduct an unofficial quick count of the results of the elections for President and Vice-President. Commissioner Sadain so declared during the hearing:

JUSTICE PUNO:

The word you are saying that within 36 hours after election, more or less, you will be able to tell the people on the basis of your quick count, who won the election, is that it?

COMM. SADAIN:

Well, its not exactly like that, Your Honor. Because the fact of winning the election would really depend on the canvassed results, but probably, it would already give a certain degree of comfort to certain politicians to people rather, as to who are leading in the elections, as far as Senator down are concerned, but not to President and Vice-President.

JUSTICE PUNO:

So as far as the Senatorial candidates involved are concerned, but you dont give this assurance with respect to the Presidential and Vice-Presidential elections which are more important?

COMM. SADAIN:

In deference to the request of the Senate President and the House Speaker, Your Honor. According to them, they will be the ones canvassing and proclaiming the winner, so it is their view that we will be pre-empting their canvassing work and the proclamation of the winners and we gave in to their request.[35]


Perhaps what you are saying is that the system will minimize dagdag-bawas but not totally eradicate dagdag-bawas?

COMM. SADAIN:

Yes, Your Honor.


Now, I heard either Atty. Bernas or Atty. Brillantes say (sic) that there was a conference between the Speaker and the Senate President and the Chairman during which the Senate President and the Speaker voice[d] their objections to the electronic transmission results system, can you share with us the objections of the two gentlemen?

COMM. SADAIN:

These was relayed to us Your Honor and their objection or request rather was for us to refrain from consolidating and publishing the results for presidential and vice-presidential candidates which we

have already granted Your Honors. So, there is going to be no consolidation and no publication of the

COMM. SADAIN:

Reason behind being that it is actually Congress that canvass that the official canvass for this and proclaims the winner.[36]

Second. The assailed COMELEC resolution contravenes the constitutional provision that no money shall be paid out of the treasury except in pursuance of an appropriation made by law.[37]

By its very terms, the electronic transmission and tabulation of the election results projected under Resolution No. 6712 is unofficial in character, meaning not emanating from or sanctioned or acknowledged by the government or government body.[38] Any disbursement of public funds to implement this project is contrary to the provisions of the Constitution and Rep. Act No. 9206, which is the 2003 General Appropriations Act. The use of the COMELEC of its funds appropriated for the AES for the unofficial quick count project may even be considered as a felony under Article 217 of the Revised Penal Code, as amended.[39]

Irrefragably, the implementation of the assailed resolution would entail, in due course, the hiring of additional manpower, technical services and acquisition of equipment, including computers and software, among others. According to the COMELEC, it needed P55,000,000 to operationalize the project, including the encoding process.[40] Hence, it would necessarily involve the disbursement of public funds for which there must be the corresponding appropriation.

The COMELEC posited during the hearing that the 2003 General Appropriations Act has appropriated the amount needed for its unofficial tabulation. We quote the transcript of stenographic notes taken during the hearing:

JUSTICE VITUG:

And you mentioned earlier something about 55 million not being paid as yet?

COMM. SADAIN:

This is an extra amount that we will be needing to operationalize.

JUSTICE VITUG:

And this has not yet been done?

COMM. SADAIN:

It has not yet been done, Your Honor.

JUSTICE VITUG:

Would you consider the funds that were authorized by you under the General Appropriations Act as capable of being used for this purpose?

COMM. SADAIN:

Yes, thats our position, Your Honor.[41]

But then the COMELEC, through Commissioner Sadain, admitted during the said hearing that although it had already approved the assailed resolution, it was still looking for the P55,000,000 needed to operationalize the project:

JUSTICE CARPIO:


COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:


COMM. SADAIN:


JUSTICE CARPIO:


COMM. SADAIN:

Yes.[42]

Inexplicably, Commissioner Sadain contradicted himself when he said that its Financial Department had already found the money, but that proper documentation was forthcoming:

JUSTICE CARPIO:


COMM. SADAIN:

Yes, Your Honor.

JUSTICE CARPIO:


COMM. SADAIN:


JUSTICE CARPIO:


COMM. SADAIN:

Yes.

JUSTICE CARPIO:

So, you have two (2) days to look for the 55 million, you have signed the contract on the main contract and if you dont get that 55 million, that 300 million main contract goes to waste, because you cannot encode?

COMM. SADAIN:

Its just a matter of proper documentation, Your Honor, because I was informed by our Finance Department that the money is there.

JUSTICE CARPIO:

So, you have found the money already?

COMM. SADAIN:

Yes, Your Honor.[43]

Earlier, during the April 27, 2004 meeting of the COMELEC En Banc, the Commissioners expressed their serious concerns about the lack of funds for the project, the propriety of using the funds for Phase III of its modernization, and the possibility of realigning funds to finance the project:

Comm. Tuason:

May I just request all the parties who are in here na whatever is said here should be confined within the four walls of this room and the minutes so that walang masyadong problema.

Comm. Borra:

Sa akin lang, we respect each others opinion. I will not make any observations. I will just submit my own memo to be incorporated in the minutes.

Comm. Tuason:

Commissioner Borra will submit a comment to be attached to the minutes but not on the resolution. Ako naman, I will just make it on record my previous reservation. I do not have any objection as to the Phase III modernization project itself. My main concern is the budget. I would like to make it on record that the budget for Phase III should be taken from the modernization program fund because Phase III is definitely part of the modernization project. Other funds, for instance other funds to be used for national elections may not be proper for realignment. That is why I am saying that the funds to be used for Phase III should properly come from the modernization. The other reservation is that the Election Officers are now plagued with so much work such as the preparation of the list of voters and their concern in their respective areas. They were saying to me, specially so in my own region, that to burden them with another training at this point in time will make them loose (sic) focus on what they are really doing for the national elections and what they are saying is that they should not be subjected to any training anymore. And they also said that come canvassing time, their priority would be to canvass first before they prepare the certificate of votes to be fed to the encoders [to be fed to the encoders] for electronic transmission. I share the sentiments of our people in the field. That is also one of my reservations. Thank you.

Comm. Garcillano:

I also have my observations regarding the financial restraint that we are facing if the money that is going to be used for this is taken from the Phase II, I dont think there is money left.

Comm. Borra:

There is no more money in Phase II because the budget for Phase II is 1.3 Billion. The award on the contract for Phase II project is 1.248 billion. So the remaining has been allocated for additional expenses for the technical working group and staff for Phase II.

Comm. Garcillano:

I also have one problem. We have to have additional people to man this which I think is already being taken cared of. Third is, I know that this will disrupt the canvassing that is going to be handled by our EO and Election Assistant. I do not know if it is given to somebody (inaudible)

Comm. Tuason:

Those are your reservations.

Comm. Barcelona:

As far as I am concerned, I also have my reservations because I have the same experience as Commissioner Tuason when I went to Region IX and Caraga. Our EOs and PES expressed apprehension over the additional training period that they may have to undergo although, they say, that if that is an order they will comply but it will be additional burden on them. I also share the concern of Commissioner Tuason with regard to the budget that should be taken from the modernization budget.

Comm. Borra:

For the minutes, my memo is already prepared. I will submit it in detail. On three counts naman yan eh legal, second is technical/operational and third is financial.

Comm. Sadain:

Ako naman, for my part as the CIC for Phase III, we were left with no choice but to implement Phase III inasmuch as expenses has already been incurred in Phase III to the tune of almost 100% at the time when the Phase II contract was nullified. So if we stop the implementation of Phase III just because Phase II was nullified, which means that there would be no consolidation and accounting consolidation for the machines, then it would be again 300 million pesos down the drain. Necessarily there would be additional expense but we see this as a consequence of the loss of Phase II. I share the view of Comm. Tuason that as much as possible this should be taken from the modernization fund as much as this is properly modernization concern. However, I would like to open myself to the possibility na in case wala talaga , we might explore the possibility of realigning funds although that might not (inaudible). Now with regards the legality, I think what Commissioner Borra has derived his opinion but I would like to think the legality issue must have been settled already as early as when we approved the modernization program involving all three phases although we also grant the benefit of the argument for Commissioner Borra if he thinks that there is going to be a legal gap for the loss of Phase II. With regards the concern with the Election Officers, I also share the same concern. In fact, on this matter alone, we try to make the GI as simple as possible so that whatever burden we will be giving to the EOs and EAs will be minimized. As in fact, we will be recommending that the EOs will no longer be bothered to attend the training. They can probably just sit in for the first hour and then they can go on with their normal routine and then leave the encoders as well as the reception officers to attend the training because there (sic) are the people who will really be doing the ministerial, almost mechanical, work of encoding and transmitting the election results. Yun lang . [44]

We have reviewed Rep. Act No. 9206, the General Appropriations Act, which took effect on April 23, 2003 and find no appropriation for the project of the COMELEC for electronic transmission of unofficial election results. What is appropriated therein is the amount of P225,000,000 of the capital outlay for the modernization of the electoral system.

EN BANC

[G.R. Nos. 132875-76. November 16, 2001]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs., ROMEO G. JALOSJOS, accused-appellant.

D E C I S I O N

YNARES-SANTIAGO, J.:

This Court has declared that the state policy on the heinous offense of rape is clear and unmistakable. Under certain circumstances, some of them present in this case, the offender may be sentenced to a long period of confinement, or he may suffer death. The crime is an assault on human dignity. No legal system worthy of the name can afford to ignore the traumatic consequences for the unfortunate victim and grievous injury to the peace and good order of the community.[1]

Rape is particularly odious, one which figuratively scrapes the bottom of the barrel of moral depravity, when committed against a minor.[2]

In view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant is always scrutinized with extreme caution.[3]

In the present case, there are certain particulars which impelled the court to devote an even more painstaking and meticulous examination of the facts on record and a similarly conscientious evaluation of the arguments of the parties. The victim of rape in this case is a minor below twelve (12) years of age. As narrated by her, the details of the rape are mesmerically sordid and repulsive. The victim was peddled for commercial sex by her own guardian whom she treated as a foster father. Because the complainant was a willing victim, the acts of rape were preceded by several acts of lasciviousness on distinctly separate occasions. The accused is also a most unlikely rapist. He is a member of Congress. Inspite of his having been charged and convicted by the trial court for statutory rape, his constituents liked him so much that they knowingly re-elected him to his congressional office, the duties of which he could not perform.

Statutory rape committed by a distinguished Congressman on an eleven (11) year old commercial sex worker is bound to attract widespread media and public attention. In the words of accused-appellant, he has been demonized in the press most unfairly, his image transmogrified into that of a dastardly, ogre, out to get his slimy hands on innocent and nave girls to satiate his lustful desires.[4] This Court, therefore, punctiliously considered accused-appellants claim that he suffered invidiously discriminatory treatment. Regarding the above allegation, the Court has ascertained that the extensive publicity generated by the case did not result in a mistrial; the records show that the accused had ample and free opportunity to adduce his defenses.

This is an appeal from the decision[5] of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 96-1985 and 96-1986, convicting accused-appellant Romeo Jalosjos of two (2) counts of statutory rape, and in Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, for six (6) counts of acts of lasciviousness defined and penalized under Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, also known as the Child Abuse Law.

There were six (6) other cases, Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998, where the accused-appellant was acquitted of the charges of acts of lasciviousness for failure of the prosecution to prove his guilt beyond reasonable doubt.

On December 16, 1996, two (2) informations for the crime of statutory rape; and twelve (12) for acts of lasciviousness defined and penalized under Article 336 of the Revised Penal Code, in relation to Section 5(b) of Republic Act No. 7610, were filed against accused-appellant. The accusatory portion of

said informations for the crime of statutory rape state:

In Criminal Case No. 96-1985:

The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as follows:

That on or about June 18, 1996 at Room No.1702, Ritz Towers, Makati City, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic) eleven year old minor Rosilyn Delantar against her will, with damage and prejudice.

CONTRARY TO LAW.[6]

In Criminal Case No. 96-1986:

The undersigned, upon prior sworn complaint by the offended party, eleven (11) year old minor ROSILYN DELANTAR, accuses ROMEO JALOSJOS of the crime of RAPE defined and penalized under Art. 335 (3) of the Revised Penal Code, committed as follows:

That on or about June 20, 1996 at Room No. 1702, Ritz Towers, Makati City, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have carnal knowledge with (sic) eleven year old minor Rosilyn Delantar against her will, with damage and prejudice.

CONTRARY TO LAW.[7]

For acts of lasciviousness, the informations[8] under which accused-appellant was convicted were identical except for the different dates of commission on June 14, 1996; June 15, 1996; June 16, 1996; June 20, 1996; June 21, 1996; and June 22, 1996, to wit:

The undersigned, upon prior sworn complaint by the offended party, eleven (11)-year old minor ROSILYN DELANTAR accuses ROMEO JALOSJOS of the crime of ACTS OF LASCIVIOUSNESS in relation to Section 5 (b), Article III of Republic Act No. 7610, otherwise known as the Special Protection of Children against Abuse, Exploitation and Discrimination Act, committed as follows:

That in the evening of June 14, 1996, or thereabout, in Room No. 1702, Ritz Towers, Makati City, Metro-Manila and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design, did then and there wilfully, unlawfully and feloniously kiss, caress and fondle said complainant's face, lips, neck, breasts, whole body, and vagina, suck her nipples and insert his finger and then his tongue into her vagina, place himself on top of her, then insert his penis in between her thighs until ejaculation, and other similar lascivious conduct against her will, to her damage and prejudice.

CONTRARY TO LAW.

In Criminal Cases Nos. 96-1988; 96-1990; and 96-1993, there were added averments that on the different dates, the accused gave the complainant P10,000.00, P5,000.00 and P5,000.00 respectively.

Upon arraignment on January 29, 1997, accused-appellant refused to enter a plea. Hence, the trial court entered a plea of not guilty for him. At the trial, the prosecution presented eight (8) main witnesses and seven (7) rebuttal witnesses as well as documentary evidences marked as Exhibits A to EEEE, inclusive of submarkings. The defense, on the other hand presented twenty-six (26) witnesses. Its documentary evidence consists of Exhibits 1 to 153, inclusive of submarkings. The records of the case are extremely voluminous.

The Peoples version of the facts, culled mainly from the testimony of the victim, are as follows:

Maria Rosilyn Delantar was a slim, eleven-year old lass with long, straight black hair and almond-shaped black eyes. She grew up in a two-storey apartment in Pasay City under the care of Simplicio Delantar, whom she treated as her own father. Simplicio was a fifty-six year old homosexual whose ostensible source of income was selling longganiza and tocino and accepting boarders at his house. On the side, he was also engaged in the skin trade as a pimp.

Rosilyn never got to see her mother, though she had known a younger brother, Shandro, who was also under the care of Simplicio. At a very young age of 5, fair and smooth-complexioned Rosilyn was exposed by Simplicio to his illicit activities. She and her brother would tag along with Simplicio whenever he delivered prostitutes to his clients. When she turned 9, Rosilyn was offered by Simplicio as a prostitute to an Arabian national known as Mr. Hammond. Thus begun her ordeal as one of the girls sold by Simplicio for sexual favors.

Rosilyn first met accused-appellant, Romeo Jalosjos, sometime in February 1996 at his office located near Robinsons Galleria. Rosilyn and Simplicio were brought there and introduced by a talent manager by the name of Eduardo Suarez. Accused-appellant promised to help Rosilyn become an actress. When he saw Rosilyn, accused-appellant asked how old she was. Simplicio answered, 10. She is going to be 11 on May 11. Accused-appellant inquired if Rosilyn knows how to sing. Simplicio told Rosilyn to sing, so she sang the song, Tell Me You Love Me. Accused-appellant then asked if Rosilyn has nice legs and then raised her skirt up to the mid-thighs. He asked if she was already menstruating, and Simplicio said yes. Accused-appellant further inquired if Rosilyn already had breasts. When nobody answered, accused-appellant cupped Rosilyns left breast. Thereafter, accused-appellant assured them that he would help Rosilyn become an actress as he was one of the producers of the TV programs, Valiente and Eat Bulaga.

Simplicio and Suarez then discussed the execution of a contract for Rosilyns movie career. Accused-appellant, on the other hand, said that he would adopt Rosilyn and that the latter would have to live with him in his condominium at the Ritz Towers. Before Simplicio and Rosilyn went home, accused-appellant gave Rosilyn P2,000.00.

The second time Rosilyn met accused-appellant was at his condominium unit, located at Room 1702, Ritz Towers, Makati City. Accused-appellant and Simplicio discussed the contract and his plan to finance Rosilyns studies. Accused-appellant gave Simplicio P500.00, thereafter, Rosilyn, Shandro and Simplicio left.

The third meeting between Rosilyn and accused-appellant was also at Ritz Towers to discuss her acting career. Accused-appellant referred the preparation of Rosilyns contract to his lawyer, who was also present. After the meeting, Simplicio and Rosilyn left. As they were walking towards the elevator, accused-appellant approached them and gave Rosilyn P3,000.00.

On June 14, 1996, at about 8:30 to 9:00 p.m., Simplicio and Rosilyn returned to accused-appellants condominium unit at Ritz Towers. When accused-appellant came out of his bedroom, Simplicio told Rosilyn to go inside the bedroom, while he and accused-appellant stayed outside. After a while, accused-appellant entered the bedroom and found Rosilyn watching television. He walked towards Rosilyn and kissed her on the lips, then left the room again. Simplicio came in and bid her goodbye. Rosilyn told Simplicio that accused-appellant kissed her to which Simplicio replied, Halik lang naman.

Rosilyn was left alone in the bedroom watching television. After some time, accused-appellant came in and entered the bathroom. He came out clad in a long white T-shirt on which was printed the word, Dakak. In his hand was a plain white T-shirt. Accused-appellant told Rosilyn that he wanted to change her clothes. Rosilyn protested and told accused-appellant that she can do it herself, but accused-

appellant answered, Daddy mo naman ako. Accused-appellant then took off Rosilyns blouse and skirt. When he was about to take off her panties, Rosilyn said, Huwag po. Again, accused-appellant told her, After all, I am your Daddy. Accused-appellant then removed her panties and dressed her with the long white T-shirt.

The two of them watched television in bed. After sometime, accused-appellant turned off the lamp and the television. He turned to Rosilyn and kissed her lips. He then raised her shirt, touched her breasts and inserted his finger into her vagina. Rosilyn felt pain and cried out, Tama na po. Accused-appellant stopped. He continued to kiss her lips and fondle her breasts. Later, accused-appellant told Rosilyn to sleep.

The following morning, Rosilyn was awakened by accused-appellant whom she found bent over and kissing her. He told her to get up, took her hand and led her to the bathroom. He removed Rosilyns shirt and gave her a bath. While accused-appellant rubbed soap all over Rosilyns body, he caressed her breasts and inserted his finger into her vagina. After that, he rinsed her body, dried her with a towel and applied lotion on her arms and legs. Then, he dried her hair and told her to dress up. Rosilyn put on her clothes and went out of the bathroom, while accused-appellant took a shower.

Accused-appellant ate breakfast while Rosilyn stayed in the bedroom watching television. When accused-appellant entered the room, he knelt in front of her, removed her panties and placed her legs on his shoulders. Then, he placed his tongue on her vagina. Thereafter, he gave Rosilyn P10,000.00 and told his housemaid to take her shopping at Shoemart. When she returned to the Ritz Towers, Simplicio was waiting for her. The two of them went home. Rosilyn narrated to Simplicio what accused-appellant did to her, and pleaded for him not to bring her back to the Ritz Towers. Simplicio told her that everything was alright as long as accused-appellant does not have sexual intercourse with her.

That same evening, at around 9:00 to 9:30 in the evening, Simplicio again brought Rosilyn to the Ritz Towers. After Simplicio left, accused-appellant removed Rosilyns clothes and dressed her with the same long T-shirt. They watched television for a while, then accused-appellant sat beside Rosilyn and kissed her on the lips. He made Rosilyn lie down, lifted her shirt above her breasts, and inserted his finger into her vagina. Then, accused-appellant removed his own clothes, placed his penis between Rosilyns thighs and made thrusting motions until he ejaculated on her thighs. Thereafter, accused-appellant kissed her and told her to sleep.

The next day, June 16, 1996, accused-appellant roused her from sleep and bathed her. Again, he rubbed soap all over her body, washed her hair, and thereafter rinsed her body and dried her hair. While accused-appellant was bathing Rosilyn, he asked her to fondle his penis while he caressed her breasts and inserted his finger into her vagina. After their shower, accused-appellant ate breakfast. He gave Rosilyn P5,000.00 and told her to just wait for Simplicio in the condominium unit. On their way home, Simplicio told Rosilyn that if accused-appellant tries to insert his penis into her vagina, she should refuse.

At around 8:00 p.m. of June 18, 1996, Simplicio brought Rosilyn to the Ritz Towers. They found accused-appellant sitting on the bed in his bedroom. Simplicio told Rosilyn to approach accused-appellant, then he left. Accused-appellant took off Rosilyns clothes and dressed her with a long T-shirt on which was printed a picture of accused-appellant and a woman, with the caption, Cong. Jalosjos with his Toy. They watched television for a while, then accused-appellant lay beside Rosilyn and kissed her on the lips. He raised her shirt and parted her legs. He positioned himself between the spread legs of Rosilyn, took off his own shirt, held his penis, and poked and pressed the same against Rosilyns vagina. This caused Rosilyn pain inside her sex organ. Thereafter, accused-appellant fondled her breasts and told her to sleep.

When Rosilyn woke up the following morning, June 19, 1996, accused-appellant was no longer around but she found P5,000.00 on the table. Earlier that morning, she had felt somebody touching her private parts but she was still too sleepy to find out who it was. Rosilyn took a bath, then went off to school with Simplicio, who arrived to fetch her.

The next encounter of Rosilyn with accused-appellant was on June 21, 1996, at about 9:00 oclock in the evening in his bedroom at the Ritz Towers. Accused-appellant stripped her naked and again put on her the long shirt he wanted her to wear. After watching television for a while, accused-appellant knelt beside Rosilyn, raised her shirt, caressed her breasts and inserted his finger into her vagina. Then, he clipped his penis between Rosilyns thighs, and made thrusting motions until he ejaculated. Thereafter, Rosilyn went to sleep.

The next day, June 22, 1996, Rosilyn was awakened by accused-appellant who was kissing her and fondling her sex organ. She, however, ignored him and went back to sleep. When she woke up, she found the P5,000.00 which accused-appellant left and gave the same to Simplicio Delantar, when the latter came to pick her up.

On June 29, 1996, Rosilyn again went to the Ritz Towers. During that visit, accused-appellant took photographs of Rosilyn. He asked her to pose with her T-shirt pulled down thereby exposing her breasts. He also took her photographs with her T-shirt rolled up to the pelvis but without showing her pubis, and finally, while straddled on a chair facing the backrest, showing her legs.

Before Rosilyn went to sleep, accused-appellant kissed her lips, fondled her breasts and inserted his finger into her vagina. The following morning, she woke up and found the P5,000.00 left by accused-appellant on the table. She recalled that earlier that morning, she felt somebody caressing her breasts and sex organ.

On July 2, 1996 at 7:00 p.m., Rosilyn and Simplicio returned to the Ritz Towers. Rosilyn had to wait for accused-appellant, who arrived between 12:00 to 1:00 a.m. He again dressed her with the long white shirt similar to what he was wearing. While sitting on the bed, accused-appellant kissed her lips and inserted his tongue into her mouth. He then fondled her breasts and inserted his finger into her vagina, causing her to cry in pain. Accused-appellant stopped and told her to sleep.

The next morning, accused-appellant bathed her again. While he soaped her body, he fondled her breasts and inserted his finger in her vagina. Rosilyn felt pain and shoved his hand away. After bathing her, accused-appellant had breakfast. Before he left, he gave Rosilyn P5,000.00. As soon as Simplicio arrived, Rosilyn gave her the money and then they left for school.

On July 20, 1996, Simplicio again brought Rosilyn to the Ritz Towers. Accused-appellant was waiting in his bedroom. He took off Rosilyns clothes, including her panties, and dressed her with a long T-shirt similar to what he was wearing. After watching television, accused-appellant kissed Rosilyn on the lips, inserted his tongue in her mouth and fondled her breasts. Then, he made Rosilyn lie on the bed, spread her legs apart and placed a pillow under her back. He inserted his finger in her vagina and mounted himself between her legs with his hands rested on her sides. After that, he lifted his shirt, then pointed and pressed his penis against her vagina. Accused-appellant made thrusting motions, which caused Rosilyn pain. Thereafter, accused-appellant told her to sleep.

In the early morning of July 21, 1996, Rosilyn felt somebody touching her sex organ, but she did not wake up. When she woke up later, she found P5,000.00 on the table, and she gave this to Simplicio when he came to fetch her.

On August 15, 1996, Rosilyn and Simplicio went to the Ritz Towers at around 7:00 p.m. Accused-appellant was about to leave, so he told them to come back later that evening. The two did not return.

The following day, Rosilyn ran away from home with the help of Yamie Estreta, one of their boarders. Yamie accompanied Rosilyn to the Pasay City Police, where she executed a sworn statement against Simplicio Delantar. Rosilyn was thereafter taken to the custody of the Department of Social Welfare and Development (DSWD). The National Bureau of Investigation (NBI) conducted an investigation, which eventually led to the filing of criminal charges against accused-appellant.

On August 23, 1996, Rosilyn was examined by Dr. Emmanuel L. Aranas at Camp Crame. The examination yielded the following results:

EXTERNAL AND EXTRAGENITAL

Fairly developed, fairly nourished and coherent female subject. Breasts are conical with pinkish brown areola and nipples from which no secretions could be pressed out. Abdomen is flat and soft

GENITAL

There is moderate growth of pubic hair. Labia majora are full, convex and coaptated with the pinkish brown labia minora presenting in between. On separating the same disclosed an elastic, fleshy type hymen, with shallow healed laceration at 3 o'clock position and deep healed laceration at 8 o'clock position. External vaginal orifice offers moderate resistance to the introduction of the examining index finger and the virgin sized vaginal speculum. Vaginal canal is narrow with prominent rugosities. Cervix is firm and closed.

CONCLUSION:

Subject is in non-virgin state physically.

There are no external signs of application of any form of violence.[9]

During the trial, accused-appellant raised the defense of denial and alibi. He claimed that it was his brother, Dominador Jun Jalosjos, whom Rosilyn had met, once at accused-appellants Dakak office and twice at the Ritz Towers. Accused-appellant insisted that he was in the province on the dates Rosilyn claimed to have been sexually abused. He attributed the filing of the charges against him to a small group of blackmailers who wanted to extort money from him, and to his political opponents, particularly Ex-Congressman Artemio Adaza, who are allegedly determined to destroy his political career and boost their personal agenda.

More specifically, accused-appellant claims that on June 16, 1996, he was on the Philippine Airlines (PAL) 9:40 a.m. flight from Manila to Dipolog. He stayed in Dipolog until June 18, 1996. He submitted in evidence airline ticket no. 10792424,[10] showing that he was on board Flight PR 165; the said flights passengers manifest,[11] where the name JALOSJOS/RM/MR appears; and photographs showing accused-appellants constituents welcoming his arrival and showing accused-appellant talking with former Mayor Hermanico Carreon and Fiscal Empainado.

Accused-appellant further alleges that on June 28, 1996, he again took the 9:40 a.m. flight from Manila to Dipolog City. On the same flight, he met Armando Nocom of the Philippine Daily Inquirer. Upon arrival and after talking to his representatives, he proceeded to his residence known as Barangay House in Taguinon, Dapitan, near Dakak Beach resort, and spent the night there.

On June 29, 1996, accused-appellant attended the fiesta at Barangay San Pedro. He stayed in the house of Barangay Captain Mila Yap until 5:30 p.m. Then, together with some friends, he visited the Rizal Shrine and the Pirate Bar at Dakak Beach Resort. Thereafter, he retired in the Barangay House in Taguilon.

On June 30, 1996, accused-appellant alleges that he attended a city-wide consultation with his political leaders at the Blue Room of Dakak, which lasted till the afternoon. In the evening, he went home and

slept in the Barangay House.

On July 1, 1996, he attended the whole day celebration of Dipolog Day. He spent the night in the Barangay House.

On July 2, 1996, he attended the inauguration of the reception hall of Dakak Beach Resort. The blessing ceremony was officiated by Assistant Parish Priest Adelmo Laput.

On July 3, 1996, he was the guest in the inaguration of the 3rd Engineering District of Dapitan City. After the mass, he visited the Jamboree site in Barangay Taguilon, Dapitan City.

He further contended that after his arrival in Dipolog on June 28, 1996, there was never an instance when he went to Manila until July 9, 1996, when he attended a conference called by the President of the Philippines.

Accused-appellant likewise alleged that on July 21, 1996, he took the 5:00 a.m. flight of PAL from Manila to Dumaguete City. From there, he was flown by a private plane to Dipolog, where he stayed until the President of the Philippines arrived.

To buttress the theory of the defense, Dominador Jun Jalosjos testified that he was the one, and not accused-appellant, whom Rosilyn met on three occasions. These occurred once during the first week of May 1996, at accused-appellants Dakak office where Rosilyn and Simplicio Delantar were introduced to him by Eduardo Suarez, and twice at the Ritz Towers when he interviewed Rosilyn, and later when Rosilyn and Simplicio followed up the proposed entry of Rosilyn into the show business.

Dominadors admission of his meetings with Rosilyn on three instances were limited to interviewing her and assessing her singing and modeling potentials. His testimony made no mention of any sexual encounter with Rosilyn.

After trial, the court rendered the assailed decision, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. In Criminal Cases Nos. 96-1985 and 96-1986, the prosecution has proven beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in the two (2) counts of statutory rape defined and penalized under Article 335 of the Revised Penal Code. He is hereby declared CONVICTED in each of these cases.

2. Accordingly, he is sentenced to:

2a. suffer the penalty of reclusion perpetua in each of these cases.

2b. indemnify the victim, MA. ROSILYN DELANTAR, in the amount of FIFTY THOUSAND PESOS (P50,000.00) as moral damages for each of the cases.

3. In Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992 and 96-1993, the prosecution has proven beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, as principal in six (6) counts of acts of lasciviousness defined under Article 336 of the Revised Penal Code and penalized under Section 5 (b) of R.A. 7610 otherwise known as the Child Abuse Law. He is hereby declared CONVICTED in each of these cases;

4. Accordingly he is sentenced to:

4.a. suffer in each of the cases an indeterminate prison term of from eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period, as maximum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal in its medium period, as maximum;

4.b. indemnify the victim, MA ROSILYN DELANTAR, in the amount of TWENTY THOUSAND

(P20,000.00) as moral damages for each of the cases;

5. In Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997 and 96-1998, the prosecution has failed to prove beyond reasonable doubt the guilt of the accused, ROMEO JALOSJOS y GARCIA, in six (6) counts of acts of lasciviousness. Therefore, on the ground of reasonable doubt, the accused in these cases is hereby ACQUITTED.

SO ORDERED.[12]

Hence, the instant appeal. Accused-appellant contends:

A.

THE TRIAL COURT GRIEVOUSLY ERRED IN CONVICTING THE ACCUSED-APPELLANT BASED ON TESTIMONY OF THE PRIVATE COMPLAINANT, CONSIDERING THE ATTENDANT INDICIA OF INCONSISTENCIES AND UNTRUTHS.

B.

THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF THE CONFLICTING STATEMENTS GIVEN BY THE PRIVATE COMPLAINANT.

C.

THE TRIAL COURT GRIEVOUSLY ERRED IN DISREGARDING THE SIGNIFICANCE OF PRIVATE COMPLAINANTS FAILURE TO IDENTIFY THE ACCUSED-APPELLANT.

D.

THE TRIAL COURT GRIEVOUSLY ERRED IN RULING THAT THE PRIVATE COMPLAINANT WAS A MINOR LESS THAN TWELVE YEARS OF AGE WHEN THE CLAIMED INCIDENTS ALLEGEDLY TOOK PLACE.

E.

THE TRIAL COURT GRIEVOUSLY ERRED IN FINDING THAT RAPE WAS COMMITTED AGAINST THE PRIVATE COMPLAINANT.[13]

In this jurisdiction, the testimony of the private complainant in rape cases is scrutinized with utmost caution. The constitutional presumption of innocence requires no less than moral certainty beyond any scintilla of doubt. This applies with more vigor in rape cases where the evidence for the prosecution must stand or fall on its own merits and is not allowed to draw strength from the weakness of the evidence of the defense. As an inevitable consequence, it is the rape victim herself that is actually put on trial. The case at bar is no exception. Bent on destroying the veracity of private complainants testimony, the errors assigned by accused-appellant, particularly the first three, are focused on the issue of credibility.

Accused-appellant makes much of his acquittal in Criminal Case Nos. 96-1991, 96-1994, 96-1995, 96-1996, 96-1997, and 96-1998, for acts of lasciviousness. According to him, the fact that the trial court sustained his defense of alibi in the said cases only shows that Rosilyn concocted her stories and the rest of her testimony ought not to be believed. Stated differently, accused-appellant urges the application of the doctrine of "falsus in uno falsus in omnibus (false in part, false in everything).[14]

The contention is without merit. Falsus in uno falsus in omnibus is not an absolute rule of law and is in fact rarely applied in modern jurisprudence.[15] Thus, in People v. Yanson-Dumancas,[16] citing People v. Li Bun Juan,[17] this Court held that:

... In this connection it must be borne in mind that the principle falsus in uno falsus in omnibus is not

an absolute one, and that it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. In People vs. Keller, 46 O.G. No. 7, pp. 3222-3223, the following was quoted with approval by the Court of Appeals from 1 Moore on Facts, p. 23:

18. Testimony may be partly credited and partly rejected. --- Trier of facts are not bound to believe all that any witness has said; they may accept some portions of his testimony and reject other portions, according to what seems to them, upon other facts and circumstances to be the truth Even when witnesses are found to have deliberately falsified in some material particulars, the jury are not required to reject the whole of their uncorroborated testimony, but may credit such portions as they deem worthy of belief. (p. 945)[18]

Being in the best position to discriminate between the truth and the falsehood, the trial court's assignment of values and weight on the testimony of Rosilyn should be given credence. Significantly, it should be borne in mind that the issue at hand hinges on credibility, the assessment of which, as oft-repeated, is best made by the trial court because of its untrammeled opportunity to observe her demeanor on the witness stand.

On the demeanor and manner of testifying shown by the complainant, the trial court stated:

Guided by the foregoing principles, this court found no reason why it should not believe Rosilyn when she claimed she was raped. Testimonies of rape victims especially those who are young and immature deserve full credence (People v. Liquiran, 228 SCRA 62 (1993) considering that no woman would concoct a story of defloration, allow an examination of her private parts and thereafter allow herself to be perverted in a public trial if she was not motivated solely by the desire to have the culprit apprehended and punished. (People v. Buyok, 235 SCRA 622 [1996]).

When asked to describe what had been done to her, Rosilyn was able to narrate spontaneously in detail how she was sexually abused. Her testimony in this regard was firm, candid, clear and straightforward, and it remained to be so even during the intense and rigid cross-examination made by the defense counsel.[19]

Accused-appellant next argues that Rosilyns direct and redirect testimonies were rehearsed and lacking in candidness. He points to the supposed hesitant and even idiotic answers of Rosilyn on cross and re-cross examinations. He added that she was trained to give answers such as, Ano po?, Parang po, Medyo po, and Sa tingin ko po.

Accused-appellants arguments are far from persuasive. A reading of the pertinent transcript of stenographic notes reveals that Rosilyn was in fact firm and consistent on the fact of rape and lascivious conduct committed on her by accused-appellant. She answered in clear, simple and natural words customary of children of her age. The above phrases quoted by accused-appellant as uttered by Rosilyn are, as correctly pointed out by the Solicitor General, typical answers of child witnesses like her.

At any rate, even assuming that Rosilyn, during her lengthy ordeals on the witness stand, may have given some ambiguous answers, they refer merely to minor and peripheral details which do not in any way detract from her firm and straightforward declaration that she had been molested and subjected to lascivious conduct by accused-appellant. Moreover, it should be borne in mind that even the most candid witness oftentimes makes mistakes and confused statements. At times, far from eroding the effectiveness of the evidence, such lapses could, indeed, constitute signs of veracity.[20]

Then, too, accused-appellant capitalizes on the alleged absence of any allegation of rape in the five (5) sworn statements executed by Rosilyn as well as in the interviews and case study conducted by the representatives of the DSWD. In particular, accused-appellant points to the following documents:

(1) Sworn statements dated August 22 and 26, 1996, executed before SPO5 Milagros A. Carrasco of the Pasay City Police;

(2) Sworn statements dated September 5, 11, and 19, 1996, executed before NBI Agents Cynthia L. Mariano and Supervising NBI Agent Arlis E. Vela;

(3) The Initial Interview of Rosilyn by the DSWD dated August 30, 1996;

(4) DSWD Final Case Study Report dated January 10, 1997.

It must be stressed that rape is a technical term, the precise and accurate definition of which could not have been understood by Rosilyn. Indeed, without the assistance of a lawyer, who could explain to her the intricacies of rape, she expectedly could not distinguish in her affidavits and consequently disclose with proficient exactitude the act or acts of accused-appellant that under the contemplation of law constitute the crime of rape. This is especially true in the present case where there was no exhaustive and clear-cut evidence of full and complete penetration of the victims vagina. It may well be that Rosilyn thought, as any layman would probably do, that there must be the fullest penetration of the victims vagina to qualify a sexual act to rape.

In People v. Campuhan,[21] we ruled that rape is consummated by the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis. There need not be full and complete penetration of the victims vagina for rape to be consummated. There being no showing that the foregoing technicalities of rape was fully explained to Rosilyn on all those occasions that she was interviewed by the police, the NBI agents and DSWD social workers, she could not therefore be expected to intelligibly declare that accused-appellants act of pressing his sex organ against her labia without full entry of the vaginal canal amounted to rape.

In the decision of the trial court, the testimony on one of the rapes is cited plus the courts mention of the jurisprudence on this issue, to wit:

Q: You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested on a pillow and your legs were spread wide apart, what else did he do?

A: He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari niya sa ari ko. (underscoring supplied)

Q: And, after doing that: Idinikit-dikit niya yong ari niya sa ari ko; what else did he do?

A: After that, Itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko. ( underscoring supplied)

(pp. 23, 25 to 30, TSN, 16 April 1997)

It is well-entrenched in this jurisdiction that rape can be committed even without full penetration of the male organ into the vagina of the woman. It is enough that there be proof of the entrance of the male organ within the labia of the pudendum of the female organ. (People vs. Mangalino, 182 SCRA 329; People vs. Tismo, 204 SCRA 535; People vs. Bacani, 181 SCRA 393). Penetration of the penis by entry into the lips of the female organ suffices to warrant a conviction. (People vs. Galimba, G.R. No. 111563-64, February 20, 1996 citing People vs. Abonada, 169 SCRA 530). Hence, with the testimony of Rosilyn that the accused pressed against (idiniin) and pointed to (itinutok) Rosilyns vagina his sexual organ on two (2) occasions, two (2) acts of rape were consummated.[22]

Moreover, it must be borne in mind that Rosilyns purpose in executing the affidavits on August 22 and 26, 1996 before the Pasay City Police was to charge Simplicio Delantar, not accused-appellant. As aptly pointed out by the trial court, it is preposterous to expect Rosilyn to make an exhaustive narration of the sexual abuse of accused-appellant when he was not the object of the said complaint.

Additionally, Rosilyns statements, given to the NBI on September 11 and 19, 1996, concerned mainly the identification of pictures. There was thus no occasion for her to narrate the details of her sexual encounter with accused-appellant.

As to the interviews and studies conducted by the DSWD, suffice it to state that said meetings with Rosilyn were specially focused on the emotional and psychological repercussions of the sexual abuse on Rosilyn, and had nothing to do with the legal actions being prepared as a consequence thereof. Thus, the documents pertaining to said interviews and studies cannot be relied upon to reveal every minute aspect of the sexual molestations complained of.

At any rate, the inconsistencies between the affidavits and Rosilyns testimony, if at all they existed, cannot diminish the probative value of Rosilyns declarations on the witness stand. The consistent ruling of this Court is that, if there is an inconsistency between the affidavit of a witness and her testimonies given in open court, the latter commands greater weight than the former.[23]

In the third assigned error, accused-appellant attempts to impress upon this Court that Rosilyn gave the name Congressman Romeo Jalosjos as her abuser only because that was the name given to her by the person to whom she was introduced. That same name, accused-appellant claims, was merely picked up by Rosilyn from the name plate, plaque, and memo pad she saw on accused-appellants office desk. Accused-appellant presented his brother, Dominador Jun Jalosjos, in an attempt to cast doubt on his culpability. It was Dominador Jun Jalosjos who allegedly met and interviewed Rosilyn at the Dakak office. In advancement of this theory, accused-appellant cites the fact that out of a total of 16 pictures presented to Rosilyn for identification, she picked up only 4, which depict Dominador Jun Jalosjos. In the same vein, accused-appellant claims that the resulting cartographic sketch from the facial characteristics given by Rosilyn to the cartographer, resembles the facial appearance of Dominador Jun Jalosjos. Accused-appellant also points out that Rosilyn failed to give his correct age or state that he has a mole on his lower right jaw.

Contrary to the contentions of accused-appellant, the records reveal that Rosilyn positively and unhesitatingly identified accused-appellant at the courtroom. Such identification during the trial cannot be diminished by the fact that in her sworn statement, Rosilyn referred to accused-appellant as her abuser based on the name she heard from the person to whom she was introduced and on the name she saw and read in accused-appellants office. Verily, a persons identity does not depend solely on his name, but also on his physical features. Thus, a victim of a crime can still identify the culprit even without knowing his name. Similarly, the Court, in People v. Vasquez,[24] ruled that:

It matters little that the eyewitness initially recognized accused-appellant only by face [the witness] acted like any ordinary person in making inquiries to find out the name that matched [appellants] face. Significantly, in open court, he unequivocally identified accused-appellant as their assailant.

Even in the case of People v. Timon,[25] relied upon by accused-appellant to discredit his identification, this Court said that even assuming that the out-of-court identification of accused-appellant was defective, their subsequent identification in court cured any flaw that may have initially attended it.

In light of the foregoing, Rosilyns failure to identify accused-appellant out of the 16 pictures shown to her does not foreclose the credibility of her unqualified identification of accused-appellant in open court. The same holds true with the subject cartographic sketch which, incidentally, resembles accused-appellant. As noted by the trial court, accused-appellant and his brother Dominador Jalosjos have a striking similarity in facial features. Naturally, if the sketch looks like Dominador, it logically follows that the same drawing would definitely look like accused-appellant.

Likewise, Rosilyns failure to correctly approximate the age of accused-appellant and to state that he

has a mole on the lower right jaw, cannot affect the veracity of accused-appellants identification. At a young age, Rosilyn cannot be expected to give the accurate age of a 56 year-old person. As to accused-appellants mole, the Solicitor General is correct in contending that said mole is not so distinctive as to capture Rosilyns attention and memory. When she was asked to give additional information about accused-appellant, Rosilyn described him as having a prominent belly. This, to our mind, is indeed a more distinguishing feature that would naturally catch the attention of an eleven year-old child like Rosilyn.

In his fifth assigned error, accused-appellant insists that the words idinikit, itinutok, and idiniin-diin, which Rosilyn used to describe what accused-appellant did to her vagina with his genitals, do not constitute consummated rape. In addition, the defense argued that Rosilyn did not actually see accused-appellants penis in the supposed sexual contact. In fact, they stressed that Rosilyn declared that accused-appellants semen spilled in her thighs and not in her sex organ.

Moreover, in his Reply Brief, accused-appellant, citing People v. Campuhan, argued that, assuming that his penis touched or brushed Rosilyns external genitals, the same is not enough to establish the crime of rape.

True, in People v. Campuhan,[26] we explained that the phrase, the mere touching of the external genitalia by the penis capable of consummating the sexual act is sufficient to constitute carnal knowledge, means that the act of touching should be understood here as inherently part of the entry of the penis into the labia of the female organ and not mere touching alone of the mons pubis or the pudendum. We further elucidated that:

The pudendum or vulva is the collective term for the female genital organs that are visible in the perineal area, e.g., mons pubis, labia majora, labia minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the rounded eminence that becomes hairy after puberty, and is instantly visible within the surface. The next layer is the labia majora or the outer lips of the female organ composed of the outer convex surface and the inner surface. The skin of the outer convex surface is covered with hair follicles and is pigmented, while the inner surface is a thin skin which does not have any hairs but has many sebaceous glands. Directly beneath the labia majora is the labia minora. Jurisprudence dictates that the labia majora must be entered for rape to be consummated, and not merely for the penis to stroke the surface of the female organ. Thus, a grazing of the surface of the female organ or touching the mons pubis of the pudendum is not sufficient to constitute consummated rape. Absent any showing of the slightest penetration of the female organ, i.e., touching of either labia of the pudendum by the penis, there can be no consummated rape; at most, it can only be attempted rape, if not acts of lasciviousness.[27]

In the present case, there is sufficient proof to establish that the acts of accused-appellant went beyond strafing of the citadel of passion or shelling of the castle of orgasmic potency, as depicted in the Campuhan case, and progressed into bombardment of the drawbridge [which] is invasion enough,[28] there being, in a manner of speaking, a conquest of the fortress of ignition. When the accused-appellant brutely mounted between Rosilyns wide-spread legs, unfetteredly touching, poking and pressing his penis against her vagina, which in her position would then be naturally wide open and ready for copulation, it would require no fertile imagination to belie the hypocrisy claimed by accused-appellant that his penis or that of someone who looked like him, would under the circumstances merely touch or brush the external genital of Rosilyn. The inevitable contact between accused-appellants penis, and at the very least, the labia of the pudendum of Rosilyn, was confirmed when she felt pain inside her vagina when the idiniin part of accused appellants sex ritual was performed.

The incident on June 18, 1996 was described by Rosilyn as follows:

PROS. ZUNO:

Q. And, after kissing your lips; after kissing you in your lips, what else did he do?

A. After that, he was lifting my shirt.

Q. Now, while he was lifting your shirt, what was your position; will you tell the court?

A. I was lying, sir.

Q. Lying on what?

A. On the bed, sir.

Q. And, after lifting your shirt, what else did he do?

A. He spread my legs sir.

Q. And, after spreading your legs apart; what did he do?

A. After that, he lifted his shirt and held his penis.

Q. And while he was holding his penis; what did he do?

A. He pressed it in my vagina.

ATTY. FERNANDEZ:

May we request that the vernacular be used?

A. Tapos po, idinikit-dikit po niya yong ari niya sa ari ko.

PROS. ZUNO:

May I respectfully move that the word: idinikit-dikit niya ang ari niya sa ari ko, be incorporated?

Q. And while he was doing that; according to you, idinikit-dikit niya ang ari niya sa ari mo; what did you feel?

A. I was afraid and then, I cried.

Q. Will you tell the Court why you felt afraid and why you cried?

A. Because I was afraid he might insert his penis into my vagina.

Q. And, for how long did Congressman Jalosjos perform that act, which according to you, idinikit-dikit niya yong ari niya sa ari ko?

COURT:

Place the Tagalog words, into the records.

A. Sandali lang po yon.

Q. What part of your vagina, or ari was being touched by the ari or penis?

x x x x x x x x x

Q. You said that you felt I withdraw that question. How did you know that Congressman Jalosjos was doing, idinikit-dikit niya yung ari niya sa ari ko?

A. Because I could feel it, sir.

Q. Now, you said you could feel it. What part of the vagina in what part of your vagina was Congressman Jalosjos, according to you, idinikit-dikit niya yong ari niya sa ari mo?

A. In front of my vagina, sir.

Q. In front of your vagina? O.K.; will you tell the Court the position?

Will you describe the position of Congressman Jalosjos when he was doing that. Idinikit-dikit niya sa ari ko?

A. Ide-demonstrate ko po ba?

FISCAL ZUNO:

Q. Can you demonstrate?

x x x x x x x x x

A. He was holding me like this with his one hand; and was holding his penis while his other hand, or his free hand was on the bed.

x x x x x x x x x

PROS. ZUNO:

Now, according to you, you dont know how to say it; or what was done to you. Now, will you tell the Court how can you describe what was done to you?

A. After he dinikit-dikit niya yong ari niya sa ari ko; itinutok naman niya ito.

Q. O.K. you said itinutok niya ito; what else did he do?

PROS. ZUNO:

She is now trying to describe.

COURT:

Translate.

A. He seems to be parang idinidiin po niya.

Q. Now, what did you feel, when according to you; as I would quote: parang idinidiin niya?

A. Masakit po.

Q. And, just to make it clear in Tagalog: Ano itong idinidiin niya?

COURT:

Q. Sabi mo itinutok. Nakita mo bang itinutok?

A. I saw him na nakaganuon po sa ano niya.

PROS. ZUNO:

Q. O.K., clarify. You said nakaganuon siya what do you mean by nakaganuon siya?

A. He was holding his penis, and then, that was the one which he itinutok sa ari ko.

PROS. ZUNO:

Q. And, when you said idinidiin po niya; to which you are referring? What is this idinidiin niya?

A. Idinidiin niya ang ari niya sa ari ko.

Q. And what did you feel when you said: he was idinidiin niya ang ari niya sa ari ko?

A. Masakit po.

COURT:

The answer is masakit po.

Proceed.

PROS. ZUNO:

Q. Where did you feel the pain?

A. Inside my ari po. (Sa loob po ng ari ko.)

x x x x x x x x x

PROS. ZUNO:

Q. And then, after that, what else did he do

A. After that, he touched my breast, sir.

Q. And, after touching your breast, what did he do?

A. And after that I felt that he was (witness demonstrating to the court, with her index finger, rubbing against her open left palm)

Q. And after doing that, what else did he do?

A. After that, he instructed me to go to sleep.

x x x x x x x x x

A. I put down my clothes and then, I cried myself to sleep, sir.

Q. Why did you cry? Will you tell the court, why did you cried after putting down your clothes?

A. Because I felt pity for myself.

(Naaawa po ako sa sarili ko.)

x x x x x x x x x.

(Emphasis supplied.)[29]

Even the July 20, 1996 encounter between Rosilyn and accused-appellant would not tax the sketchy visualization of the nave and uninitiated to conclude that there was indeed penile invasion by accused-appellant of Rosilyns labia. On that occasion, accused-appellant was similarly ensconced between the parted legs of Rosilyn, except that, this time, Rosilyn was conveniently rested on, and elevated with a pillow on her back while accused-appellant was touching, poking and pressing his penis against her vagina. Topped with the thrusting motions employed by accused-appellant, the resulting pain felt by Rosilyn in her sex organ was no doubt a consequence of consummated rape.

The pertinent portions of Rosilyns account of the July 20, 1996 incident is as follows:

PROS. ZUNO:

x x x x x x x x x

Q. The moment when Cong. Jalosjos inserted his finger into your vagina, what was your position?

INTERPRETER:

The witness is asking he (sic) she has to demonstrate?

FISCAL ZUNO:

Q. Ipaliwanag mo lang?

A. My back was rested on a pillow and my legs were spread apart.

Q. You said that when Congressman Jalosjos inserted his finger into your vagina, your back was rested on a pillow and your legs were spread wide apart, what else did he do?

A. He lifted his shirt, and held his penis; and again idinikit-dikit niya ang ari niya sa ari ko.

Q. And what did you feel when he was doing that which according to you and I would quote in Tagalog: idinikit-dikit niya yong ari niya sa ari ko?

A. I was afraid sir.

Q. And, after doing that: idinikit-dikit niya yong ari niya sa ari ko, what else did he do?

A. After that, itinutok niya po yong ari niya at idiniin-diin niya ang ari niya sa ari ko.

Q. You said: Congressman Jalosjos itinutok niya yong ari niya sa ari ko; at idiniin-diin niya yong ari niya sa ari ko; Now, while he was doing that act, what was the position of Congressman Jalosjos?

A. His two (2) hands were on my side and since my legs were spread apart; he was in-between them, and doing an upward and downward movement.

(Witness demonstrated a pushing, or pumping movement)

Q. For how long did Congressman Jalosjos perform that act, pushing or pumping movement while his penis, or ang ari niya ay nakatutok at idinidiin-diin yong ari niya sa ari mo?

A. I dont know.

Q. And what did you feel when Congressman Jalosjos was making that movement, pushing, or pumping?

A. I felt pain and then I cried.

Q. Where did you feel the pain?

A. Inside my vagina, sir.

x x x x x x x x x.[30]

The childs narration of the rape sequence is revealing. The act of idinikit-dikit niya was followed by itinutok niya xxx at idiniin-diin niya. The idiniin-diin niya was succeeded by Masakit po. Pain inside her ari is indicative of consummated penetration.

The environmental circumstances displayed by the graphic narration of what took place at the appellants room from June 14 to June 16 and June 21 to June 22, 1996 are consistent with the complainants testimony which shows that rape was legally consummated.

In the case of People v. Campuhan, the victim put up a resistance --- by putting her legs close together --- which, although futile, somehow made it inconvenient, if not difficult, for the accused-appellant to attempt penetration. On the other hand, the ease with which accused-appellant herein perpetrated the sexual abuse, not to mention the absence of time constraint, totally distinguishes the instant case from Campuhan. Here, the victim was passive and even submissive to the lecherous acts of accused-appellant. Thus, even assuming that his penis then was flaccid, his act of holding, guiding and assisting his penis with his one hand, while touching, poking and pressing the same against Rosilyn's vagina, would surely result in even the slightest contact between the labia of the pudendum and accused-appellant's sex organ.

Considering that Rosilyn is a self-confessed sex worker, and the circumstances of the alleged sexual assault at bar, the defense argued that it is highly improbable and contrary to human experience that accused-appellant exercised a Spartan-like discipline and restrained himself from fully consummating the sexual act when there was in fact no reason for him not to do so. In the same light, the defense likewise branded as unnatural the testimony of Rosilyn that accused-appellant contented himself with rubbing his penis clipped between her thighs until he reached orgasm and desisted from fully penetrating her, when Rosilyn was then entirely at his disposal.

The defense seems to forget that there is no standard form of behavior when it comes to gratifying ones basic sexual instinct. The human sexual perversity is far too intricate for the defense to prescribe certain forms of conduct. Even the word perverse is not entirely precise, as what may be perverse to one may not be to another. Using a child of tender years who could even pass as ones granddaughter, to unleash what others would call downright bestial lust, may be utterly nauseating and repulsive to some, but may peculiarly be a festive celebration of salacious fantasies to others. For all we know, accused-appellant may have found a distinct and complete sexual gratification in such kind of libidinous stunts and maneuvers.

Nevertheless, accused-appellant may not have fully and for a longer period penetrated Rosilyn for fear of perpetrating his name through a child from the womb of a minor; or because of his previous agreement with his suking bugaw, Simplicio Delantar, that there would be no penetration, otherwise the latter would demand a higher price. This may be the reason why Simplicio Delantar gave his mocking fatherly advice to Rosilyn that it is bad if accused-appellant inserts his penis into her sex organ, while at the same time ordering her to call him if accused-appellant would penetrate her. Such instance of penile invasion would prompt Simplicio to demand a higher price, which is, after all, as the Solicitor General calls it, the peculiarity of prostitution.

The defense contends that the testimony of Rosilyn that accused-appellant ejaculated on her thighs and not in her vagina, only proves that there was no rape. It should be noted that this portion of Rosilyns testimony refers to the June 15 and 21, 1996 charges of acts of lasciviousness, and not the rape charges. In any event, granting that it occurred during the twin instances of rape on June 18 and July 20, 1996, the ejaculation on the victims thighs would not preclude the fact of rape.

There is no truth to the contention of the defense that Rosilyn did not see the penis of accused-appellant. As can be gleaned from the above-quoted portions of the transcripts, Rosilyn unequivocally testified that accused-appellant held his penis then poked her vagina with it. And even if she did not actually see accused-appellants penis go inside her, surely she could have felt whether it was his penis or just his finger.

We now come to the issue of whether or not Rosilyn was below twelve (12) years of age at the time the rape complained of occurred. To bolster the declaration of Rosilyn that she was then eleven years old, the prosecution presented the following documents:

(1) Rosilyns birth certificate showing her birthday as May 11, 1985;[31]

(2) Rosilyns baptismal certificate showing her birthday as May 11, 1985;[32]

(3) Master List of Live Births stating that Ma. Rosilyn Delantar was born on May 11, 1985 to Librada Telen as the mother;[33]

(4) Marked pages of the Cord Dressing Room Book;[34]

(5) Summary of the Cord Dressing Book, showing her birthday as May 11, 1985 and her parents (Librada Telen and Simplicio Delantar) patient file number (39-10-71);[35]

(6) Record of admission showing her parents patient number (39-10-71) and confinement at the Jose Fabella Memorial Hospital from May 5-14, 1985.[36]

It is settled that in cases of statutory rape, the age of the victim may be proved by the presentation of her birth certificate. In the case at bar, accused-appellant contends that the birth certificate of Rosilyn should not have been considered by the trial court because said birth certificate has already been ordered cancelled and expunged from the records by the Regional Trial Court of Manila, Branch 38, in Special Proceedings No. 97-81893, dated April 11, 1997.[37] However, it appears that the said decision has been annulled and set aside by the Court of Appeals on June 10, 1999, in CA-G.R. SP No. 45289. The decision of the Court of Appeals was appealed to this Court by petition for review, docketed as G.R. No. 140305. Pending the final outcome of that case, the decision of the Court of Appeals is presumed valid and can be invoked as prima facie basis for holding that Rosilyn was indeed eleven years old at the time she was abused by accused-appellant.

However, even assuming the absence of a valid birth certificate, there is sufficient and ample proof of the complainants age in the records.

Rosilyns Baptismal Certificate can likewise serve as proof of her age. In People v. Liban,[38] we ruled that the birth certificate, or in lieu thereof, any other documentary evidence that can help establish the age of the victim, such as the baptismal certificate, school records, and documents of similar nature, can be presented.

And even assuming ex gratia argumenti that the birth and baptismal certificates of Rosilyn are inadmissible to prove her age, the Master List of Live Births and the Cord Dressing Book of Dr. Jose Fabella Memorial Hospital where Rosilyn was born are sufficient evidence to prove that her date of birth was May 11, 1985. These documents are considered entries in official records, admissible as prima facie evidence of their contents and corroborative of Rosilyns testimony as to her age.

Thus, Rule 130, Section 44, of the Rules of Court states:

Entries in official records. --- Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty especially enjoined by law, are prima facie evidence of the facts therein stated.

In Africa v. Caltex, et al., (Phil), Inc., et al.,[39] the Court laid down the requisites for the application of the foregoing rule, thus:

(a) That the entry was made by a public officer, or by another person specially enjoined by law to do so;

(b) That it was made by the public officer in the performance of his duties or by such other person in the performance of a duty specially enjoined by law; and

(c) That the public office or the other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information.

In order for a book to classify as an official register and admissible in evidence, it is not necessary that it be required by an express statute to be kept, nor that the nature of the office should render the book indispensable; it is sufficient that it be directed by the proper authority to be kept. Thus, official registers, though not required by law, kept as convenient and appropriate modes of discharging official duties, are admissible.[40]

Entries in public or official books or records may be proved by the production of the books or records themselves or by a copy certified by the legal keeper thereof.[41] It is not necessary to show that the person making the entry is unavailable by reason of death, absence, etc., in order that the entry may be

admissible in evidence, for his being excused from appearing in court in order that public business be not deranged, is one of the reasons for this exception to the hearsay rule.[42]

Corollary thereto, Presidential Decree No. 651, as amended by P.D. No. 766,[43] mandates hospitals to report and register with the local civil registrar the fact of birth, among others, of babies born under their care. Said Decree imposes a penalty of a fine of not less that P500.00 nor more than P1,000.00 or imprisonment of not less than three (3) months nor more than six (6) months, or both, in the discretion of the court, in case of failure to make the necessary report to the local civil registrar.

Hence, under the above-cited P.D. 651, as amended, in connection with Rule 30, Section 44, of the Rules of Court, it is clear that the Cord Dressing Room Book where the fact of birth, name of the mother and other related entries are initially recorded, as well as the Master List of Live Births of the hospital, are considered entries in official record, being indispensable to and appropriate modes of recording the births of children preparatory to registration of said entries with the local civil registrar, in compliance with a duty specifically mandated by law.

It matters not that the person presented to testify on these hospital records was not the person who actually made those entries way back in 1985, but Amelita Avenante, the records custodian of the hospital in 1995. To reiterate, these records may be proved by the presentation of the record itself or by a certified copy or the legal keeper thereof. Proof of the unavailability of the person who made those entries is not a requisite for their admissibility. What is important is that the entries testified to by Avenante were gathered from the records of the hospital which were accomplished in compliance with a duty specifically mandated by law.

Therefore, the Cord Dressing Room Book and the Master List of Live Births of the hospital are admissible as evidence of the facts stated therein.

The preparation of these hospital documents preceded that of the birth and baptismal certificates of Rosilyn. They establish independent and material facts prepared by unbiased and disinterested persons under environmental circumstances apart from those that may have attended the preparation of the birth and baptismal certificates. Hence, these hospital records, to reiterate, are sufficient to support the testimony of Rosilyn as to her age.

Consequently, the testimony of Simplicio Delantar that the entries in the birth certificate of Rosilyn are false and that he merely made them up, particularly her date of birth, was correctly disregarded by the trial court. It should be noted that the criminal charges for child abuse filed by Rosilyn against him was the direct cause of his incarceration. This raises a possibility that Simplicio falsely testified in the present case, to get even with Rosilyn.

Likewise, the trial court correctly disregarded the testimonies of Gloria Binay and Angelito Intruzo because the defense failed to prove that they were knowledgeable as to the circumstances of Rosilyns birth. Their testimonies consist mainly of observations tending to show that Rosilyns appearance belie her claim that she was born on May 11, 1985.

In the four instances of acts of lasciviousness allegedly committed on June 29, June 30, July 2, and July 3, 1996 (Criminal Cases Nos. 96-1994, 96-1995, 96-1996, and 96-1997, respectively), the trial court acquitted accused-appellant on the ground of reasonable doubt as the defense was able to prove that accused-appellant was not in Manila but either in Dipolog or Dapitan City at the time the lascivious acts were supposedly committed. The evidence of the defense established that accused-appellant flew to Dipolog on June 28, 1996, and stayed there until July 9, 1996.

In Criminal Cases Nos. 96-1991 and 96-1998, for two counts of acts of lasciviousness allegedly committed both in the early mornings of June 19 and July 21, 1996, Rosilyn merely testified that she

felt somebody touching her private part but failed to identify the person who was performing those lecherous acts as she was too sleepy to wake up. Hence, accused-appellant was likewise acquitted in these cases on the ground of reasonable doubt.

With respect, however, to the acts of lasciviousness committed in the morning of June 15 and 22, 1996, and in the evening of June 14, 15, 18, and 21, 1996, as well as the rape perpetrated on June 18, 1996 and July 20, 1996, accused-appellant failed to account for his whereabouts. A careful review of the pertinent transcript of stenographic notes reveals that accused-appellant did not give any testimony as to where he was at the time these crimes were committed. Clearly, therefore, the trial court correctly disregarded his unsubstantiated defense of denial, which cannot prevail over his positive identification by Rosilyn as the culprit.

As regards the charge of acts of lasciviousness committed in the morning of June 16, 1996, accused-appellant claimed that it was impossible for him to have committed the same because he flew to Dipolog on that day. The records disclose, however, that accused-appellants flight was at 9:40 a.m. The possibility, therefore, of accused-appellants having performed the lascivious acts on the victim before he went off to the airport is not at all precluded. For his failure to prove the physical impossibility of his presence at the Ritz Towers in the morning of June 16, 1996, when the sexual abuse of Rosilyn was committed, his defense of alibi must fail.

Article III, Section 5 of Republic Act No. 7610, states:

Child Prostitution and other Sexual Abuse. --- Children, whether male or female, who for money or profit, or any other consideration or due to the coercion or influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious conduct are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be imposed upon the following:

xxx xxx xxx

(b) Those who commit the act of sexual intercourse or lascivious conduct with a child exploited in prostitution or subjected to other sexual abuse; Provided, That when the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under Article 335, paragraphs 3, for rape and Article 336 of Act No. 3815, as amended, the Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That the penalty for lascivious conduct when the victim is under twelve (12) years of age shall be reclusion temporal in its medium period; x x x . (Emphasis supplied.)

In People v. Optana,[44] the Court, citing the case of People v. Larin,[45] explained the elements of the offense of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, as follows:

1. The accused commits the act of sexual intercourse or lascivious conduct.

2. The said act is performed with a child exploited in prostitution or subjected other sexual abuse.

3. The child, whether male or female, is below 18 years of age.

A child is deemed exploited in prostitution or subjected to other sexual abuse, when the child indulges in sexual intercourse or lascivious conduct (a) for money, profit, or any other consideration; or (b) under the coercion or influence of any adult, syndicate or group. Under RA 7610, children are persons below eighteen years of age or those unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of their age or mental disability or condition.

Lascivious conduct is defined under Article XIII, Section 32 of the Implementing Rules and Regulation

of R.A. 7610, as follows:

[T]he intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a person.

In the case at bar, accused-appellants acts of kissing Rosilyn on the lips, fondling her breast, inserting his finger into her vagina and placing his penis between her thighs, all constitute lascivious conduct intended to arouse or gratify his sexual desire. Hence, the trial court correctly convicted accused-appellant of violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, in Criminal Cases Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, charging him with the above-described lascivious acts.

The penalty for violation of Section 5 (b) of R.A. 7610, or the Child Abuse Law, where the victim is below 12 years of age, is reclusion temporal in its medium period.

The records show that on at least nine (9) separate occasions, the accused-appellant inserted his finger into the complainants vagina. These insertions took place in 1996. A year later, Congress enacted Republic Act No. 8353, the Anti-Rape law of 1997. It does not apply to this case but it indicates state policy on rape. The Revised Penal Code is now amended to read as follows:

Article 266-A. Rape; When and How Committed. Rape is committed

1. By a man who have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though none of the circumstances mentioned above be present.

2. By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit an act of sexual assault by inserting his penis into another persons mouth or anal orifice or any instrument or object, into the genital or anal orifice of another person. (Emphasis supplied.)

Indicative of the continuing state policy towards rape, the Anti-Rape Law of 1997 now classifies the crime as an offense against persons. Any public prosecutor, not necessarily the victim or her parents, can prosecute the case.

The penalties for the crime of rape in the light of various circumstances, which are now set forth and contained in Article 266-B of the Revised Penal Code, have also been increased.

Considering that there are neither mitigating nor aggravating circumstance, the trial court correctly imposed on accused-appellant the maximum penalty of fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, which is within the medium period of reclusion temporal medium, pursuant to our ruling in Dulla v. Court of Appeals.[46] Notwithstanding that R.A. 7610 is a special law, accused-appellant may enjoy a minimum term of the indeterminate sentence to be taken within the range of the penalty next lower to that prescribed by the Code.[47] However, the trial court erroneously fixed the minimum term of the indeterminate sentence at eight (8) years, eight (8) months and one (1) day of prision mayor in its medium period. In the aforesaid case of Dulla,[48] we held that the penalty next lower in degree to reclusion temporal medium is reclusion temporal minimum, the

range of which is from twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Hence, for violation of Article III, Section 5 (b) of R.A. 7610, accused-appellant shall suffer the indeterminate sentence of twelve years (12) and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum.

At the time of commission of the crimes complained of herein in 1996, statutory rape was penalized under Section 11 of R.A. 7659, which amended Article 335 of the Revised Penal Code, to wit:

When and how rape is committed. --- Rape is committed by having carnal knowledge of a woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua. xxx.

In statutory rape, mere sexual congress with a woman below twelve years of age consummates the crime of statutory rape regardless of her consent to the act or lack of it. The law presumes that a woman of tender age does not possess discernment and is incapable of giving intelligent consent to the sexual act. Thus, it was held that carnal knowledge of a child below twelve years old even if she is engaged in prostitution is still considered statutory rape. The application of force and intimidation or the deprivation of reason of the victim becomes irrelevant. The absence of struggle or outcry of the victim or even her passive submission to the sexual act will not mitigate nor absolve the accused from liability.[49]

In the case at bar, the prosecution established beyond reasonable doubt that accused-appellant had carnal knowledge of Rosilyn. Moreover, the prosecution successfully proved that Rosilyn was only eleven years of age at the time she was sexually abused. As such, the absence of proof of any struggle, or for that matter of consent or passive submission to the sexual advances of accused-appellant, was of no moment. The fact that accused-appellant had sexual congress with eleven year-old Rosilyn is sufficient to hold him liable for statutory rape, and sentenced to suffer the penalty of reclusion perpetua.

As to accused-appellant's civil liability, the amount of moral damages awarded by the trial court for each count of acts of lasciviousness under Section 5 (b) of R.A. 7610 should be increased from P20,000.00 to P50,000.00.[50] On the other hand, the award of the amount of P50,000.00 as moral damages for each count of statutory rape was correct.

In People v. Lor,[51] citing the cases of People v. Victor,[52] and People v. Gementiza,[53] we held that the indemnity authorized by our criminal law as civil indemnity ex delicto for the offended party, in the amount authorized by the prevailing judicial policy and aside from other proven actual damages, is itself equivalent to actual or compensatory damages in civil law. Said civil indemnity is mandatory upon finding of the fact of rape; it is distinct from and should not be denominated as moral damages which are based on different jural foundations and assessed by the court in the exercise of sound judicial discretion.[54] Hence, accused-appellant should be ordered to pay the offended party another P50,000.00 as civil indemnity for each count of rape and acts of lasciviousness.

WHEREFORE, the Decision of the Regional Trial Court of Makati, Branch 62, in Criminal Case Nos. 96-1985 and 96-1986 finding accused-appellant Romeo Jalosjos guilty beyond reasonable doubt of two counts of statutory rape, and sentencing him to suffer the penalty of reclusion perpetua for each count, is AFFIRMED. Likewise, the appealed Decision of the Regional Trial Court of Makati, Branch 62 in

Criminal Case Nos. 96-1987, 96-1988, 96-1989, 96-1990, 96-1992, and 96-1993, finding accused-appellant guilty beyond reasonable doubt of acts of lasciviousness in six counts, is AFFIRMED with MODIFICATIONS. As modified, accused-appellant is sentenced to suffer, for each count of acts of lasciviousness, the indeterminate penalty of twelve years (12) and one (1) day of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal as maximum. Further, accused-appellant is ordered to pay the victim, Ma. Rosilyn Delantar, the additional amount of P50,000.00 as civil indemnity for each count of statutory rape and acts of lasciviousness. Finally, the award of moral damages for each count of acts of lasciviousness is increased to P50,000.00.

SO ORDERED.

Davide, Jr., CJ., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

[1] People v. Nazareno, 80 SCRA 484, 491 [1977].

[2] People v. Sangil 276 SCRA 532 [1997].

[3] People v. Herrick, 187 SCRA 364 [1990].

[4] Rollo, p. 325

[5] Penned by Judge Roberto C. Diokno

[6] Rollo, p. 25.

[7] Rollo, p. 27.

[8] Criminal Cases Nos. 96-1987; 96-1988; 96-1989; 96-1990; 96-1992; and 96-1993. Rollo, pp. 29-52.

[9] Annex G, Records, p. 1854.

[10] Exhibit "145".

[11] Exhibit "145" and "145-C".

[12] Rollo, pp. 195-197.

[13] Rollo, pp. 327-328.

[14] People v. Garcia, 271 SCRA 621, 629 [1997].

[15] People v. Paredes, 264 SCRA 578, 583 [1996]

[16] 320 SCRA 584, [1999]

[17] 17 SCRA 934 [1966].

[18] Id., p. 607.

[19] Decision, p.35; Rollo p. 3, 315.

[20] People v. Bernal, 254 SCRA 659, 669 [1997].

[21] 329 SCRA 270, 282 [2000].

[22] Decision p. 39; Rollo, p. 3,319.

[23] People v. Salimbago, 314 SCRA 282, 291-292 [1999].

[24] 281 SCRA 123, 129 [1997].

[25] 281 SCRA 577, 592 [1997].

[26] 329 SCRA 270, 279-280 [2000].

[27] Id., 281-282.

[28] People v. Salinas, 232 SCRA 274, 279 [1994].

[29] TSN, April 16, 1997, pp. 24-41.

[30] TSN, April 17, 1997, pp. 27-30.

[31] Exhibit A.

[32] Exhibit F.

[33] Exhibit E.

[34] Exhibit C.

[35] Exhibit B.

[36] Exhibit D.

[37] Exhibit B-6, Records, pp. 1841-1844.

[38] G.R. No. 136247 and 138330, November 22, 2000.

[39] 16 SCRA 448, 452 [1996]; citing 3 Moran, Comments on the Rules of Court, p. 398 [1957].

[40] VII Francisco, The Revised Rules of Court in the Philippines, Part I, pp. 618-619 [1997]; citing Kyburg v. Perkins, 6 Cal. 674. and Bell v. Kendrick, 25 Fla. 778.

[41] Id., pp. 620-621, citing 4 Jones on Evidence, 2d ed., 1704

[42] Id., p. 620, citing 3 Wigmore on Evidence, 1621.

[43] SECTION 1. Registration of births. -All babies born in hospitals, maternity clinics, private home, or elsewhere within the period staring from January 1, 1974 up to the date when this decree becomes effective, irrespective of the nationality, race, culture, religion or belief of the parents, whether the mother is a permanent resident or transient in the Philippines, and whose births have not yet been registered must be reported for registration in the office of the local civil registrar of the place of birth by the physician, nurse, midwife, hilot, or hospital or clinic administrator who attended the birth or in default thereof, by either parent or a responsible member of the family or a relative, or any person who has knowledge of the birth of the individual child.

The report referred to above shall be accompanied with an affidavit describing the circumstances surrounding the delayed registration.

SEC. 2. Period of registration of births. - The registration of the birth of babies referred to in the preceding section must be done within sixty (60) days from the date of effectivity of this decree without fine or fee of any kind. Babies born after the effectivity of this decree must be registered in the office of the local civil registrar of the place of birth within thirty (30) days after birth, by the attending physician, nurse, midwife, hilot or hospital or clinic administrator or, in default of the same, by either parent or a responsible member of the family or any person who has knowledge of the birth.

The parents or the responsible member of the family and the attendant at birth or the hospital or clinic administrator referred to above shall be jointly liable in case they fail to register the new born child.

x x x x x x x x x

SEC. 9. Penalty. Any person required under this decree to report for registration any fact concerning the civil status of persons and who fails to do so, or who deliberately makes false statements in the birth or death form and presents the same for registration, or who violates any rule or regulation which may be issued pursuant to this decree, and any local public health officer who fails to perform his duties as provided for in this decree, shall upon conviction, be punished by a fine of not less than P500.00 nor more than P1,000.00 or imprisonment of not less than three (3) months nor more than six (6) months, or both, in the discretion of the court.

[44] G.R. No. 133922, February 12, 2001.

[45] 297 SCRA 309 [1998].

[46] 326 SCRA 32, 48 [2000]; see also Article 65 of the Revised Penal Code.

[47] People v. Simon, 234 SCRA 555 [1994].

[48] Supra.

[49] People v. Quinagoran 315 SCRA 508, 516-517 [1999].

[50] People v. Optana, supra.

[51] G.R. No. 133190, July 19, 2001.

[52] 292 SCRA 186, 200 [1998].

[53] 285 SCRA 478, 492 [1998].

[54] People v. De los Santos, 295 SCRA 583, 605 [1998]; citing People v. Prades, 293 SCRA 411, 430 [1998].

EN BANC[G.R. No. 137004. July 26, 2000]

ARNOLD V. GUERRERO, petitioner, vs. THE COMMISSION ON ELECTIONS, HON. MANUEL B. VILLAR, JR., as the Speaker of the House of Representatives, 11th Congress, HON. ROBERTO P. NAZARENO, as the Secretary General of the House of Representatives, 11th Congress, RODOLFO C. FARIAS and GUILLERMO R. RUIZ, respondents.

D E C I S I O NQUISUMBING, J.:Before the Court is a petition for certiorari, prohibition, and mandamus, with prayer for a temporary restraining order and/or preliminary injunction, under Rule 65 of the Rules of Court. It assails the Order of the Commission on Elections, Second Division, dated May 10, 1998, in COMELEC Case No. SPA 98-227, which dismissed the petition filed by herein respondent Guillermo C. Ruiz to disqualify respondent Rodolfo C. Farias as a candidate for the elective office of Congressman in the first district of Ilocos Norte during the May 11, 1998 elections. It also assails the Resolution dated May 16, 1998, of the COMELEC En Banc, denying the motion for reconsideration filed by respondent Ruiz and dismissing the petition-in-intervention filed by herein petitioner Arnold V. Guerrero.

In the Second Division of the COMELEC, Ruiz sought to perpetually disqualify respondent Farias as a candidate for the position of Congressman.[1] Ruiz alleged that Farias had been campaigning as a candidate for Congressman in the May 11, 1998 polls, despite his failure to file a Certificate of Candidacy for said office. Ruiz averred that Farias failure to file said Certificate violated Section 73 of the Omnibus Election Code[2] in relation to COMELEC Resolution No. 2577, dated January 15, 1998. Ruiz asked the COMELEC to declare Farias as a "nuisance candidate" pursuant to Section 69 of the Omnibus Election Code [3] and to disqualify him from running in the May 11, 1998 elections, as well as in all future polls.

On May 8, 1998, Farias filed his Certificate of Candidacy with the COMELEC, substituting candidate Chevylle V. Farias who withdrew on April 3, 1998.

On May 9, 1998, Ruiz filed an "Urgent Ex-Parte Motion To Resolve Petition" with the COMELEC, attaching thereto a copy of the Certificate of Candidacy of Farias.

On May 10, 1998, the Second Division of the COMELEC decided Case No. SPA 98-227, disposing as follows:

"WHEREFORE, premises considered, the Commission (Second Division) RESOLVES to DISMISS the instant petition for utter lack of merit.

"SO ORDERED."[4]

In dismissing Ruizs petition, the Second Division of the COMELEC stated, "[T]here is none (sic) in the records to consider respondent an official candidate to speak of without the filing of said certificate. Hence, there is no certificate of candidacy to be cancelled, consequently, no candidate to be disqualified."[5]

On May 11, 1998, the elections pushed through as scheduled. The post-election tally of votes

in Ilocos Norte showed that Farias got a total of 56,369 votes representing the highest number of votes received in the first district. Farias was duly proclaimed winner.

On May 16, 1998, Ruiz filed a motion for reconsideration, contending that Farias could not validly substitute for Chevylle V. Farias, since the latter was not the official candidate of the Lakas ng Makabayan Masang Pilipino (LAMMP), but was an independent candidate. Another person cannot substitute for an independent candidate. Thus, Farias certificate of candidacy claiming to be the official candidate of LAMMP in lieu of Chevylle V. Farias was fatally defective, according to Ruiz.

On June 3, 1998, Farias took his oath of office as a member of the House of Representatives.

On June 10, 1998, petitioner herein filed his "Petition-In-Intervention" in COMELEC Case No. SPA 98-227. Petitioner averred that he was the official candidate of the Liberal Party (LP) in said elections for Congressman, and stood to be adversely affected by Case No. SPA 98-227. Guerrero contended that Farias, having failed to file his Certificate of Candidacy on or before the last day therefor, being midnight of March 27, 1998, Farias illegally resorted to the remedy of substitution provided for under Section 77 of the Omnibus Election Code [6] and thus, Farias disqualification was in order. Guerrero then asked that the position of Representative of the first district of Ilocos Norte be declared vacant and special elections called for, but disallowing the candidacy of Farias.

On January 6, 1999, the COMELEC En Banc dismissed Ruizs motion for reconsideration and Guerreros petition-in-intervention in Case No. SPA 98-227. The decretal portion of its Resolution reads:

"PRESCINDING FROM THE FOREGOING PREMISES, this Commission (En Banc) RESOLVED, as it hereby RESOLVES, to AFFIRM the Order of the Commission (Second Division) and thereafter, DISMISS this instant motion for reconsideration for lack of jurisdiction (italics in the original) without prejudice to the filing of a quo warranto case, if he so desires.

"SO ORDERED."[7]

Hence, the instant petition, anchored on the following grounds:

A.....THE RESPONDENT COMELEC GRAVELY ABUSED ITS DISCRETION AND ACTED IN EXCESS AND/OR WITHOUT JURISDICTION IN REFUSING TO RULE ON THE VALIDITY OR INVALIDITY OF THE CANDIDACY OR PURPORTED CERTIFICATE OF CANDIDACY OF PRIVATE RESPONDENT FARIAS.

B.....THE RESPONDENT COMELEC GRAVELY ABUSED ITS DISCRETION AND ACTED IN EXCESS AND/OR WITHOUT JURISDICTION IN TOSSING THE DUTY TO RULE ON THE VALIDITY OR INVALIDITY OF THE CANDIDACY OR PURPORTED CERTIFICATE OF CANDIDACY OF PRIVATE RESPONDENT FARIAS TO THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET) CONSIDERING THAT THE LATTER (HRET) OBVIOUSLY LACKS JURISDICTION TO RULE ON THE ISSUE THEREBY UNDULY CREATING A VACUUM AND RENDERING PETITIONER WITHOUT A REMEDY.

C.....THE RESPONDENT COMELEC GRAVELY ABUSED ITS DISCRETION AND ACTED IN EXCESS AND/OR WITHOUT JURISDICTION IN NOT RENDERING A RULING, BASED ON THE FACTS AS STATED IN ITS ASSAILED RESOLUTION DATED JANUARY 6, 1999 (Annex "B" hereof) DISQUALIFYING PRIVATE RESPONDENT FARIAS AS A CANDIDATE

FOR CONGRESSMAN OF THE FIRST LEGISLATIVE DISTRICT OF ILOCOS NORTE DURING THE MAY 11, 1998 ELECTIONS, PREMISED ON ITS FINDINGS THAT "THERE IS NONE IN THE RECORDS TO CONSIDER RESPONDENT (FARIAS) AN OFFICIAL CANDIDATE TO SPEAK OF WITHOUT THE FILING OF SAID CERTIFICATE, HENCE, THERE IS NO CERTIFICATE OF CANDIDACY TO BE CANCELLED, CONSEQUENTLY, NO CANDIDATE TO BE DISQUALIFIED."

D.....THE RESPONDENT COMELEC GRAVELY ABUSED ITS DISCRETION AND ACTED IN EXCESS AND/OR WITHOUT JURISDICTION IN NOT CALLING A SPECIAL ELECTION TO FILL-UP THE VACANT POSITION OF CONGRESSMAN OF THE FIRST LEGISLATIVE DISTRICT OF ILOCOS NORTE DUE TO THE DISQUALIFICATION OF RESPONDENT FARIAS AS A CANDIDATE THERETO AND WHO APPEARS TO HAVE OBTAINED THE HIGHEST NUMBER OF VOTES CAST IN THE MAY 11, 1998 ELECTIONS.

We find pertinent for our resolution this issue:

Did the COMELEC commit grave abuse of discretion in holding that the determination of the validity of the certificate of candidacy of respondent Farias is already within the exclusive jurisdiction of the Electoral Tribunal of the House of Representatives?

In its assailed resolution, the COMELEC had noted that respondent Farias had taken his oath and assumed office as a Member of the 11th Congress and by express mandate of the Constitution,[8] it had lost jurisdiction over the case.

Petitioner Guerrero argues that the refusal of the COMELEC to rule on the validity or invalidity of the certificate of candidacy of Farias amounted to grave abuse of discretion on its part. He claims that COMELEC failed in its Constitutional duty to uphold and enforce all laws relative to elections.[9] He relies on Gallardo v. Judge Tabamo, Jr., 218 SCRA 253 (1993), which reiterated the doctrine laid down in Zaldivar v. Estenzo, 23 SCRA 533 (1968), that the COMELEC has exclusive charge of the enforcement and administration of all laws relative to the conduct of an electoral exercise.

A special civil action for certiorari may be availed of when the tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction and there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law for the purpose of annulling the proceeding.[10] It is the proper remedy to question any final order, ruling and decision of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.[11] But for an action for certiorari to prosper, there must be a showing that the COMELEC acted with grave abuse of discretion. This means such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or excess thereof, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility, and it must be so patent as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined by law.[12]

In the present case, we find no grave abuse of discretion on the part of the COMELEC when it held that its jurisdiction over Case No. SPA 98-277 had ceased with the assumption of office of respondent Farias as Representative for the first district of Ilocos Norte. While the COMELEC is vested with the power to declare valid or invalid a certificate of candidacy, its refusal to exercise that power following the proclamation and assumption of the position by Farias is a recognition of the jurisdictional boundaries separating the COMELEC and the Electoral Tribunal of the House of Representatives (HRET). Under Article VI, Section 17 of the Constitution, the HRET has sole and exclusive jurisdiction over all contests relative to the

election, returns, and qualifications of members of the House of Representatives. Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a member of the House of Representatives, COMELECs jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRETs own jurisdiction begins. [13] Thus, the COMELECs decision to discontinue exercising jurisdiction over the case is justifiable, in deference to the HRETs own jurisdiction and functions.

However, petitioner contends that the jurisdiction of the HRET as defined under Article VI, Section 17 of the Constitution is limited only to the qualifications prescribed under Article VI, Section 6 of the Constitution.[14] Consequently, he claims that any issue which does not involve these constitutional qualifications is beyond the realm of the HRET. The filing of a certificate of candidacy being a statutory qualification under the Omnibus Election Code is outside the pale of the HRET, according to him.

This contention lacks cogency and is far from persuasive. Article VI, Section 17 of the Constitution cannot be circumscribed lexically. The word "qualifications" cannot be read as qualified by the term "constitutional." Ubi lex non distinguit noc nos distinguire debemos. Basic is the rule in statutory construction that where the law does not distinguish, the courts should not distinguish.[15] There should be no distinction in the application of a law where none is indicated. For firstly, the drafters of the fundamental law, in making no qualification in the use of a general word or expression, must have intended no distinction at all. Secondly, the courts could only distinguish where there are facts or circumstances showing that the lawgiver intended a distinction or qualification. In such a case, the courts would merely give effect to the lawgivers intent.[16]

Petitioner further argues that the HRET assumes jurisdiction only if there is a valid proclamation of the winning candidate. He contends that if a candidate fails to satisfy the statutory requirements to qualify him as a candidate, his subsequent proclamation is void ab initio. Where the proclamation is null and void, there is no proclamation at all and the mere assumption of office by the proclaimed candidate does not deprive the COMELEC at all of its power to declare such nullity, according to petitioner. But as we already held, in an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as Congressman is raised, that issue is best addressed to the HRET.[17] The reason for this ruling is self-evident, for it avoids duplicity of proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the peoples mandate.

Whether respondent Farias validly substituted Chevylle V. Farias and whether respondent became a legitimate candidate, in our view, must likewise be addressed to the sound judgment of the Electoral Tribunal. Only thus can we demonstrate fealty to the Constitutional provision that the Electoral Tribunal of each House of Congress shall be the "sole judge of all contests relating to the election, returns, and qualifications of their respective members". [18]

WHEREFORE, the petition is hereby DISMISSED for lack of merit. Costs against petitioner.

SO ORDERED.Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

[1] Annex "C," Rollo, pp. 51-58.

[2] SEC. 73. Certificate of candidacy. No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.

"A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath.

"No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who has filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices.

"The filing or withdrawal of certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred."

[3] "SEC. 69. Nuisance candidates. The Commission may, motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy, if it is shown that said certificate has been filed to put the election process in mockery or disrepute or cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate."

[4] Supra Note 1, at 43.

[5] Id. at 42-43.

[6] SEC. 77. Candidates in case of death, disqualification or withdrawal of another. If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission."

[7] Rollo, p. 49.

[8] Art. VI, Sec. 17 provides: "The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman."[9] "Art. IX-C, Sec. 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. x x x"

[10] Suntay v. Cojuangco-Suntay, 300 SCRA 760, 766 (1998) citing Sempio v. Court of Appeals, 263 SCRA 617 (1996).

[11] Loong v. Commission on Elections, 305 SCRA 832, 852 (1999) citing Filipinas Engineering and Machine Shop v. Ferrer, 135 SCRA 25 (1985); Reyes v. Regional Trial Court of Oriental Mindoro, Br. XXXIX, 244 SCRA 41, 45 (1995).

[12] Cuison v. Court of Appeals, 289 SCRA 159, 171 (1998) citing Esguerra v. Court of Appeals, 267 SCRA 380 (1997).

[13] Aquino v. Commission on Elections, 248 SCRA 400, 417-418 (1995); Romualdez-Marcos v. Commission on Elections, 248 SCRA 300, 340-341 (1995).

[14] Art. VI, Sec. 6 provides: "No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election."

[15] Olfato v. Commission on Elections, 103 SCRA 741, 778 (1981).

[16] Social Security System v. City of Bacolod, 115 SCRA 412, 415 (1982).

[17] Lazatin v. Commission on Elections, 157 SCRA 337, 338 (1988).

[18] CONST., Art. VI, Section 17.

EN BANC[G.R. No. 137004. July 26, 2000]

ARNOLD V. GUERRERO, petitioner, vs. THE COMMISSION ON ELECTIONS, HON. MANUEL B. VILLAR, JR., as the Speaker of the House of Representatives, 11th Congress, HON. ROBERTO P. NAZARENO, as the Secretary General of the House of Representatives, 11th Congress, RODOLFO C. FARIAS and GUILLERMO R. RUIZ, respondents.

D E C I S I O NQUISUMBING, J.:Before the Court is a petition for certiorari, prohibition, and mandamus, with prayer for a temporary restraining order and/or preliminary injunction, under Rule 65 of the Rules of Court. It assails the Order of the Commission on Elections, Second Division, dated May 10, 1998, in COMELEC Case No. SPA 98-227, which dismissed the petition filed by herein respondent Guillermo C. Ruiz to disqualify respondent Rodolfo C. Farias as a candidate for the elective office of Congressman in the first district of Ilocos Norte during the May 11, 1998 elections. It also assails the Resolution dated May 16, 1998, of the COMELEC En Banc, denying the motion for reconsideration filed by respondent Ruiz and dismissing the petition-in-intervention filed by herein petitioner Arnold V. Guerrero.

In the Second Division of the COMELEC, Ruiz sought to perpetually disqualify respondent Farias as a candidate for the position of Congressman.[1] Ruiz alleged that Farias had been campaigning as a candidate for Congressman in the May 11, 1998 polls, despite his failure to file a Certificate of Candidacy for said office. Ruiz averred that Farias failure to file said Certificate violated Section 73 of the Omnibus Election Code[2] in relation to COMELEC Resolution No. 2577, dated January 15, 1998. Ruiz asked the COMELEC to declare Farias as a "nuisance candidate" pursuant to Section 69 of the Omnibus Election Code [3] and to disqualify him from running in the May 11, 1998 elections, as well as in all future polls.

On May 8, 1998, Farias filed his Certificate of Candidacy with the COMELEC, substituting candidate Chevylle V. Farias who withdrew on April 3, 1998.

On May 9, 1998, Ruiz filed an "Urgent Ex-Parte Motion To Resolve Petition" with the COMELEC, attaching thereto a copy of the Certificate of Candidacy of Farias.

On May 10, 1998, the Second Division of the COMELEC decided Case No. SPA 98-227, disposing as follows:

"WHEREFORE, premises considered, the Commission (Second Division) RESOLVES to DISMISS the instant petition for utter lack of merit.

"SO ORDERED."[4]

In dismissing Ruizs petition, the Second Division of the COMELEC stated, "[T]here is none (sic) in the records to consider respondent an official candidate to speak of without the filing of said certificate. Hence, there is no certificate of candidacy to be cancelled, consequently, no candidate to be disqualified."[5]

On May 11, 1998, the elections pushed through as scheduled. The post-election tally of votes

in Ilocos Norte showed that Farias got a total of 56,369 votes representing the highest number of votes received in the first district. Farias was duly proclaimed winner.

On May 16, 1998, Ruiz filed a motion for reconsideration, contending that Farias could not validly substitute for Chevylle V. Farias, since the latter was not the official candidate of the Lakas ng Makabayan Masang Pilipino (LAMMP), but was an independent candidate. Another person cannot substitute for an independent candidate. Thus, Farias certificate of candidacy claiming to be the official candidate of LAMMP in lieu of Chevylle V. Farias was fatally defective, according to Ruiz.

On June 3, 1998, Farias took his oath of office as a member of the House of Representatives.

On June 10, 1998, petitioner herein filed his "Petition-In-Intervention" in COMELEC Case No. SPA 98-227. Petitioner averred that he was the official candidate of the Liberal Party (LP) in said elections for Congressman, and stood to be adversely affected by Case No. SPA 98-227. Guerrero contended that Farias, having failed to file his Certificate of Candidacy on or before the last day therefor, being midnight of March 27, 1998, Farias illegally resorted to the remedy of substitution provided for under Section 77 of the Omnibus Election Code [6] and thus, Farias disqualification was in order. Guerrero then asked that the position of Representative of the first district of Ilocos Norte be declared vacant and special elections called for, but disallowing the candidacy of Farias.

On January 6, 1999, the COMELEC En Banc dismissed Ruizs motion for reconsideration and Guerreros petition-in-intervention in Case No. SPA 98-227. The decretal portion of its Resolution reads:

"PRESCINDING FROM THE FOREGOING PREMISES, this Commission (En Banc) RESOLVED, as it hereby RESOLVES, to AFFIRM the Order of the Commission (Second Division) and thereafter, DISMISS this instant motion for reconsideration for lack of jurisdiction (italics in the original) without prejudice to the filing of a quo warranto case, if he so desires.

"SO ORDERED."[7]

Hence, the instant petition, anchored on the following grounds:

A.....THE RESPONDENT COMELEC GRAVELY ABUSED ITS DISCRETION AND ACTED IN EXCESS AND/OR WITHOUT JURISDICTION IN REFUSING TO RULE ON THE VALIDITY OR INVALIDITY OF THE CANDIDACY OR PURPORTED CERTIFICATE OF CANDIDACY OF PRIVATE RESPONDENT FARIAS.

B.....THE RESPONDENT COMELEC GRAVELY ABUSED ITS DISCRETION AND ACTED IN EXCESS AND/OR WITHOUT JURISDICTION IN TOSSING THE DUTY TO RULE ON THE VALIDITY OR INVALIDITY OF THE CANDIDACY OR PURPORTED CERTIFICATE OF CANDIDACY OF PRIVATE RESPONDENT FARIAS TO THE HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL (HRET) CONSIDERING THAT THE LATTER (HRET) OBVIOUSLY LACKS JURISDICTION TO RULE ON THE ISSUE THEREBY UNDULY CREATING A VACUUM AND RENDERING PETITIONER WITHOUT A REMEDY.

C.....THE RESPONDENT COMELEC GRAVELY ABUSED ITS DISCRETION AND ACTED IN EXCESS AND/OR WITHOUT JURISDICTION IN NOT RENDERING A RULING, BASED ON THE FACTS AS STATED IN ITS ASSAILED RESOLUTION DATED JANUARY 6, 1999 (Annex "B" hereof) DISQUALIFYING PRIVATE RESPONDENT FARIAS AS A CANDIDATE

FOR CONGRESSMAN OF THE FIRST LEGISLATIVE DISTRICT OF ILOCOS NORTE DURING THE MAY 11, 1998 ELECTIONS, PREMISED ON ITS FINDINGS THAT "THERE IS NONE IN THE RECORDS TO CONSIDER RESPONDENT (FARIAS) AN OFFICIAL CANDIDATE TO SPEAK OF WITHOUT THE FILING OF SAID CERTIFICATE, HENCE, THERE IS NO CERTIFICATE OF CANDIDACY TO BE CANCELLED, CONSEQUENTLY, NO CANDIDATE TO BE DISQUALIFIED."

D.....THE RESPONDENT COMELEC GRAVELY ABUSED ITS DISCRETION AND ACTED IN EXCESS AND/OR WITHOUT JURISDICTION IN NOT CALLING A SPECIAL ELECTION TO FILL-UP THE VACANT POSITION OF CONGRESSMAN OF THE FIRST LEGISLATIVE DISTRICT OF ILOCOS NORTE DUE TO THE DISQUALIFICATION OF RESPONDENT FARIAS AS A CANDIDATE THERETO AND WHO APPEARS TO HAVE OBTAINED THE HIGHEST NUMBER OF VOTES CAST IN THE MAY 11, 1998 ELECTIONS.

We find pertinent for our resolution this issue:

Did the COMELEC commit grave abuse of discretion in holding that the determination of the validity of the certificate of candidacy of respondent Farias is already within the exclusive jurisdiction of the Electoral Tribunal of the House of Representatives?

In its assailed resolution, the COMELEC had noted that respondent Farias had taken his oath and assumed office as a Member of the 11th Congress and by express mandate of the Constitution,[8] it had lost jurisdiction over the case.

Petitioner Guerrero argues that the refusal of the COMELEC to rule on the validity or invalidity of the certificate of candidacy of Farias amounted to grave abuse of discretion on its part. He claims that COMELEC failed in its Constitutional duty to uphold and enforce all laws relative to elections.[9] He relies on Gallardo v. Judge Tabamo, Jr., 218 SCRA 253 (1993), which reiterated the doctrine laid down in Zaldivar v. Estenzo, 23 SCRA 533 (1968), that the COMELEC has exclusive charge of the enforcement and administration of all laws relative to the conduct of an electoral exercise.

A special civil action for certiorari may be availed of when the tribunal, board, or officer exercising judicial or quasi-judicial functions has acted without or in excess of jurisdiction and there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law for the purpose of annulling the proceeding.[10] It is the proper remedy to question any final order, ruling and decision of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers.[11] But for an action for certiorari to prosper, there must be a showing that the COMELEC acted with grave abuse of discretion. This means such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or excess thereof, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility, and it must be so patent as to amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined by law.[12]

In the present case, we find no grave abuse of discretion on the part of the COMELEC when it held that its jurisdiction over Case No. SPA 98-277 had ceased with the assumption of office of respondent Farias as Representative for the first district of Ilocos Norte. While the COMELEC is vested with the power to declare valid or invalid a certificate of candidacy, its refusal to exercise that power following the proclamation and assumption of the position by Farias is a recognition of the jurisdictional boundaries separating the COMELEC and the Electoral Tribunal of the House of Representatives (HRET). Under Article VI, Section 17 of the Constitution, the HRET has sole and exclusive jurisdiction over all contests relative to the

election, returns, and qualifications of members of the House of Representatives. Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a member of the House of Representatives, COMELECs jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRETs own jurisdiction begins. [13] Thus, the COMELECs decision to discontinue exercising jurisdiction over the case is justifiable, in deference to the HRETs own jurisdiction and functions.

However, petitioner contends that the jurisdiction of the HRET as defined under Article VI, Section 17 of the Constitution is limited only to the qualifications prescribed under Article VI, Section 6 of the Constitution.[14] Consequently, he claims that any issue which does not involve these constitutional qualifications is beyond the realm of the HRET. The filing of a certificate of candidacy being a statutory qualification under the Omnibus Election Code is outside the pale of the HRET, according to him.

This contention lacks cogency and is far from persuasive. Article VI, Section 17 of the Constitution cannot be circumscribed lexically. The word "qualifications" cannot be read as qualified by the term "constitutional." Ubi lex non distinguit noc nos distinguire debemos. Basic is the rule in statutory construction that where the law does not distinguish, the courts should not distinguish.[15] There should be no distinction in the application of a law where none is indicated. For firstly, the drafters of the fundamental law, in making no qualification in the use of a general word or expression, must have intended no distinction at all. Secondly, the courts could only distinguish where there are facts or circumstances showing that the lawgiver intended a distinction or qualification. In such a case, the courts would merely give effect to the lawgivers intent.[16]

Petitioner further argues that the HRET assumes jurisdiction only if there is a valid proclamation of the winning candidate. He contends that if a candidate fails to satisfy the statutory requirements to qualify him as a candidate, his subsequent proclamation is void ab initio. Where the proclamation is null and void, there is no proclamation at all and the mere assumption of office by the proclaimed candidate does not deprive the COMELEC at all of its power to declare such nullity, according to petitioner. But as we already held, in an electoral contest where the validity of the proclamation of a winning candidate who has taken his oath of office and assumed his post as Congressman is raised, that issue is best addressed to the HRET.[17] The reason for this ruling is self-evident, for it avoids duplicity of proceedings and a clash of jurisdiction between constitutional bodies, with due regard to the peoples mandate.

Whether respondent Farias validly substituted Chevylle V. Farias and whether respondent became a legitimate candidate, in our view, must likewise be addressed to the sound judgment of the Electoral Tribunal. Only thus can we demonstrate fealty to the Constitutional provision that the Electoral Tribunal of each House of Congress shall be the "sole judge of all contests relating to the election, returns, and qualifications of their respective members". [18]

WHEREFORE, the petition is hereby DISMISSED for lack of merit. Costs against petitioner.

SO ORDERED.Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

[1] Annex "C," Rollo, pp. 51-58.

[2] SEC. 73. Certificate of candidacy. No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein.

"A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by submitting to the office concerned a written declaration under oath.

"No person shall be eligible for more than one office to be filled in the same election, and if he files his certificate of candidacy for more than one office, he shall not be eligible for any of them. However, before the expiration of the period for the filing of certificates of candidacy, the person who has filed more than one certificate of candidacy may declare under oath the office for which he desires to be eligible and cancel the certificate of candidacy for the other office or offices.

"The filing or withdrawal of certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred."

[3] "SEC. 69. Nuisance candidates. The Commission may, motu proprio or upon a verified petition of an interested party, refuse to give due course to or cancel a certificate of candidacy, if it is shown that said certificate has been filed to put the election process in mockery or disrepute or cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate."

[4] Supra Note 1, at 43.

[5] Id. at 42-43.

[6] SEC. 77. Candidates in case of death, disqualification or withdrawal of another. If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission."

[7] Rollo, p. 49.

[8] Art. VI, Sec. 17 provides: "The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman."[9] "Art. IX-C, Sec. 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall. x x x"

[10] Suntay v. Cojuangco-Suntay, 300 SCRA 760, 766 (1998) citing Sempio v. Court of Appeals, 263 SCRA 617 (1996).

[11] Loong v. Commission on Elections, 305 SCRA 832, 852 (1999) citing Filipinas Engineering and Machine Shop v. Ferrer, 135 SCRA 25 (1985); Reyes v. Regional Trial Court of Oriental Mindoro, Br. XXXIX, 244 SCRA 41, 45 (1995).

[12] Cuison v. Court of Appeals, 289 SCRA 159, 171 (1998) citing Esguerra v. Court of Appeals, 267 SCRA 380 (1997).

[13] Aquino v. Commission on Elections, 248 SCRA 400, 417-418 (1995); Romualdez-Marcos v. Commission on Elections, 248 SCRA 300, 340-341 (1995).

[14] Art. VI, Sec. 6 provides: "No person shall be a Member of the House of Representatives unless he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and write, and, except the party-list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the day of the election."

[15] Olfato v. Commission on Elections, 103 SCRA 741, 778 (1981).

[16] Social Security System v. City of Bacolod, 115 SCRA 412, 415 (1982).

[17] Lazatin v. Commission on Elections, 157 SCRA 337, 338 (1988).

[18] CONST., Art. VI, Section 17.


EN BANC

G.R. No. 103524 April 15, 1992

CESAR BENGZON, QUERUBE MAKALINTAL, LINO M. PATAJO, JOSE LEUTERIO, ET AL., petitioners, vs.HON. FRANKLIN N. DRILON, in his capacity as Executive Secretary, HON. GUILLERMO CARAGUE, in his capacity as Secretary of Department of Budget and Management, and HON. ROSALINA CAJUCOM, in her capacity as National Treasurer, respondents.

A.M. No. 91-8-225-CA April 15, 1992

REQUEST OF RETIRED JUSTICES MANUEL P. BARCELONA, JUAN P. ENRIQUEZ, JUAN O. REYES, JR. and GUARDSON R. LOOD FOR READJUSTMENT OF THEIR MONTHLY PENSION.

GUTIERREZ, JR., J.:

The issue in this petition is the constitutionality of the veto by the President of certain provisions in the General Appropriations Act for the Fiscal Year 1992 relating to the payment of the adjusted pensions of retired Justices of the Supreme Court and the Court of Appeals.

The petitioners are retired Justices of the Supreme Court and Court of Appeals who are currently receiving monthly pensions under Republic Act No. 910 as amended by Republic Act No. 1797. They filed the instant petition on their own behalf and in representation of all other retired Justices of the Supreme Court and the Court of Appeals similarly situated.

Named respondents are Hon. Franklin Drilon the Executive Secretary, Hon. Guillermo Carague as Secretary of the Department of Budget and Management, and Hon. Rosalinda Cajucom, the Treasurer of the Philippines. The respondents are sued in their official capacities, being officials of the Executive Department involved in the implementation of the release of funds appropriated in the Annual Appropriations Law.

We treat the Comments of the Office of the Solicitor General (OSG) as an Answer and decide the petition on its merits.

The factual backdrop of this case is as follows:

On June 20, 1953, Republic Act No, 910 was enacted to provide the retirement pensions of Justices of the Supreme Court and of the Court of Appeals who have rendered at least twenty (20) years service either in the Judiciary or in any other branch of the Government or in both, having attained the age of seventy (70) years or who resign by reason of incapacity to discharge the duties of the office. The retired Justice shall receive during the residue of his natural life the salary which he was receiving at the time of his retirement or resignation.

Republic Act No. 910 was amended by Republic Act No. 1797 (approved on June 21, 1957) which provided that:

· Sec. 3-A. In case the salary of Justices of the Supreme Court or of the Court of Appeals is increased or decreased, such increased or decreased salary shall, for purposes of this Act, be deemed to be the salary or the retirement pension which a Justice who as of June twelve, nineteen hundred fifty-four had ceased to be such to accept another position in the Government or who retired was receiving at the time of his cessation in office. Provided, that any benefits that have already accrued prior to such increase or decrease shall not be affected thereby.

Identical retirement benefits were also given to the members of the Constitutional Commissions under Republic Act No. 1568, as amended by Republic Act No. 3595. On November 12, 1974, on the occasion of the Armed Forces Loyalty Day, President Marcos signed Presidential Decree 578 which extended similar retirement benefits to the members of the Armed Forces giving them also the automatic readjustment features of Republic Act No. 1797 and Republic Act No. 3595.

Two months later, however, President Marcos issued Presidential Decree 644 on January 25, 1975 repealing Section 3-A of Republic Act No. 1797 and Republic Act No. 3595 (amending Republic Act No. 1568 and Presidential Decree No. 578) which authorized the adjustment of the pension of the retired Justices of the Supreme Court, Court of Appeals, Chairman and members of the Constitutional Commissions and the officers and enlisted members of the Armed Forces to the prevailing rates of salaries.

Significantly, under Presidential Decree 1638 the automatic readjustment of the retirement pension of officers and enlisted men was subsequently restored by President Marcos. A later decree Presidential Decree 1909 was also issued providing for the automatic readjustment of the pensions of members of the Armed Forces who have retired prior to September 10, 1979.

While the adjustment of the retirement pensions for members of the Armed Forces who number in the tens of thousands was restored, that of the retired Justices of the Supreme Court and Court of Appeals who are only a handful and fairly advanced in years, was not.

Realizing the unfairness of the discrimination against the members of the Judiciary and the Constitutional Commissions, Congress approved in 1990 a bill for the reenactment of the repealed provisions of Republic Act No. 1797 and Republic Act No. 3595. Congress was under the impression that Presidential Decree 644 became law after it was published in the Official Gazette on April 7, 1977. In the explanatory note of House Bill No. 16297 and Senate Bill No. 740, the legislature saw the need to reenact Republic Act Nos. 1797 and 3595 to restore said retirement pensions and privileges of the retired Justices and members of the Constitutional Commissions, in order to assure those serving in the Supreme Court, Court of Appeals and Constitutional Commissions adequate old age pensions even during the time when the purchasing power of the peso has been diminished substantially by worldwide recession or inflation. This is underscored by the fact that the petitioner retired Chief Justice, a retired Associate Justice of the Supreme Court and the retired Presiding Justice are presently receiving monthly pensions of P3,333.33, P2,666.66 and P2,333.33 respectively.

President Aquino, however vetoed House Bill No. 16297 on July 11, 1990 on the ground that according to her "it would erode the very foundation of the Government's collective effort to adhere faithfully to and enforce strictly the policy on standardization of compensation as articulated in Republic Act No. 6758 known as Compensation and Position Classification Act of 1989." She further said that "the Government should not grant distinct privileges to select group of officials whose retirement benefits under existing laws already enjoy preferential treatment over those of the vast majority of our civil service servants."

Prior to the instant petition, however, Retired Court of Appeals Justices Manuel P. Barcelona, Juan P. Enriquez, Juan O. Reyes, Jr. and Guardson R. Lood filed a letter/petition dated April 22, 1991 which we treated as Administrative Matter No. 91-8-225-CA. The petitioners asked this Court far a readjustment of their monthly pensions in accordance with Republic Act No. 1797. They reasoned out that Presidential Decree 644 repealing Republic Act No. 1797 did not become law as there

was no valid publication pursuant to Ta馻 da v. Tuvera, (136 SCRA 27 [1985]) and 146 SCRA 446 [1986]). Presidential Decree 644 promulgated on January 24, 1975 appeared for the first time only in the supplemental issue of the Official Gazette, (Vol. 74, No. 14) purportedly dated April 4, 1977 but published only on September 5, 1983. Since Presidential Decree 644 has no binding force and effect of law, it therefore did not repeal Republic Act No. 1797.

In a Resolution dated November 28, 1991 the Court acted favorably on the request. The dispositive portion reads as follows:

· WHEREFORE, the requests of retired Justices Manuel P. Barcelona, Juan P. Enriquez, Juan O. Reyes and Guardson Lood are GRANTED. It is hereby AUTHORIZED that their monthly pensions be adjusted and paid on the basis of RA 1797 effective January 1, 1991 without prejudice to the payment on their pension differentials corresponding to the previous years upon the availability of funds for the purpose.

Pursuant to the above resolution, Congress included in the General Appropriations Bill for Fiscal Year 1992 certain appropriations for the Judiciary intended for the payment of the adjusted pension rates due the retired Justices of the Supreme Court and Court of Appeals.

The pertinent provisions in House Bill No. 34925 are as follows:

XXVIII. THE JUDICIARY

· A. Supreme Court of the Philippines and the Lower Courts.

· For general administration, administration of personnel benefits, supervision of courts, adjudication of constitutional questions appealed and other cases, operation and maintenance of the Judicial and Bar Council in the Supreme Court, and the adjudication of regional court cases, metropolitan court cases, municipal trial court cases in Cities, municipal circuit court cases, municipal, court cases, Shari'a district court cases and Shari'a circuit court cases as indicated hereunder P2,095,651,000

· xxx xxx xxx

Special Provisions.

· 1. Augmentation of any Item in the Court's Appropriations. Any savings in the appropriation for the Supreme Court and the Lower Courts may be utilized by the Chief Justice of the Supreme Court to augment any item of the Court's appropriations for: (a) printing of decisions and publications of Philippine Reports; b) commutable terminal leaves of Justices and other personnel of the Supreme Court and any payment of adjusted pension rates to retired Justices entitled thereto pursuant to Administrative Matter No. 91-8-225-CA; (c) repair, maintenance, improvement, and other operating expenses of the courts' books and periodicals; (d) purchase, maintenance and improvement of printing equipment; e) necessary expenses for the employment of temporary employees, contractual and casual employees, for judicial administration; f) maintenance and improvement of the Court's Electronic Data Processing; (g) extraordinary expenses of the Chief Justice, attendance in international conferences and conduct of training programs; (h) commutable transportation and representation allowances and fringe benefits for Justices, Clerks of Court, Court Administrator, Chief of Offices and other Court personnel in accordance with the rates prescribed by law; and (i) compensation of attorneys-de-oficio; PROVIDED, that as mandated by LOI No. 489 any increases in salary and allowances shall be subject to the usual procedures and policies as provided for under P.D. No. 985 and other pertinent laws. (page 1071, General Appropriations Act, FY 1992; Emphasis supplied)

xxx xxx xxx

· 4. Payment of Adjusted Pension Rates to Retired Justices. The amount herein appropriated for payment of pensions to retired judges and justices shall include the payment of pensions at the adjusted rates to retired justices of the Supreme Court entitled thereto pursuant to the ruling of the Court in Administrative Matter No. 91-8-225-C.A. (page 1071, General Appropriations Act, FY 1992).

xxx xxx xxx

· Activities and Purposes

· 1. General Administration and Support Services.

· a. General administrative Services P 43,515,000b. Payment of retirement gratuityof national goverment officialsand employees P 206,717,000c. Payment of terminal leave benefits toofficials and employees antitled thereto P 55,316,000d. Payment of pension totired judeand justice entitled thereto P 22,500,000

(page 1071, General Appropriations Act, FY 1992)

· C. COURT OF APPEALS

· For general administration, administrationof personnel benefit, benefits and theadjudication of appealed and other casesas indicated hereunder P114,615,000

Special Provisions.

· 1. Authority to Use Savings. Subject to the approval of the Chief Justice of the Supreme Court in accordance with Section 25(5), Article VI of the Constitution of the Republic of the Philippines, the Presiding Justice may be authorized to use any savings in any item of the appropriation for the Court of Appeals for purposes of: (1) improving its compound and facilities; and (2) for augmenting any deficiency in any item of its appropriation including its extraordinary expenses and payment of adjusted pension rates to retired justices entitled thereto pursuant to Administrative Matter No. 91-8-225-C.A. (page 1079, General Appropriations Act, FY 1992; Emphasis supplied)

· 2. Payment of adjustment Pension Rates to Retired Justices. The amount herein appropriated for payment of pensions to retired judges and justices shall include the payment of pensions at the adjusted rates to retired justices of the Court of Appeals entitled thereto pursuant to the Ruling of the Supreme Court in Administrative Matter No. 91-6-225-C.A. (page 1079 General Appropriations Act, FY 1992).

· XL. GENERAL FUND ADJUSTMENT

· For general fund adjustment foroperational and special requirementsas indicated hereunder P500,000,000

· xxx xxx xxx

Special Provisions

1. Use of the Fund. This fund shall be used for:

· xxx xxx xxx

· 1.3. Authorized overdrafts and/or valid unbooked obligations, including the payment of back salaries and related personnel benefits arising from decision of competent authority including the Supreme Court decision in Administrative Matter No. 91-8-225-C.A. and COA decision in No. 1704." (page 11649 Gen. Appropriations Act, FY 1992; Emphasis supplied)

On January 15, 1992, the President vetoed the underlined portions of Section 1 and the entire Section 4 the Special Provisions for the Supreme Court of the Philippines and the Lower Courts (General Appropriations Act, FY 1992, page 1071) and the underlined portions of Section 1 and the entire Section 2, of the Special Provisions for the Court of Appeals (page 1079) and the underlined portions of Section 1.3 of Article XLV of the Special Provisions of the General Fund Adjustments (page 1164, General Appropriations Act, FY 1992).

The reason given for the veto of said provisions is that "the resolution of this Honorable Court in Administrative Matter No. 91-8-225-CA pursuant to which the foregoing appropriations for the payment of the retired Justices of the Supreme Court and the Court of Appeals have been enacted effectively nullified the veto of the President on House Bill No. 16297, the bill which provided for the automatic increase in the retirement pensions of the Justices of the Supreme Court and the Court of Appeals and chairmen of the Constitutional Commissions by re-enacting Republic Act No. 1797 and Republic Act No. 3595. The President's veto of the aforesaid provisions was further justified by reiterating the earlier reasons for vetoing House Bill No. 16297: "they would erode the very foundation of our collective effort to adhere faithfully to and enforce strictly the policy and standardization of compensation. We should not permit the grant of distinct privileges to select group of officials whose retirement pensions under existing laws already enjoy preferential treatment over those of the vast majority of our civil servants."

Hence, the instant petition filed by the petitioners with the assertions that:

· 1) The subject veto is not an item veto;

· 2) The veto by the Executive is violative of the doctrine of separation of powers;

· 3) The veto deprives the retired Justices of their rights to the pensions due them;

· 4) The questioned veto impairs the Fiscal Autonomy guaranteed by the Constitution.

Raising similar grounds, the petitioners in AM-91-8-225-CA, brought to the attention of this Court that the veto constitutes no legal obstacle to the continued payment of the adjusted pensions pursuant to the Court's resolution.

On February 14, 1992, the Court resolved to consolidate Administrative Matter No. 91-8-225-CA with G.R. No. 103524.

The petitioners' contentions are well-taken.

· I

It cannot be overstressed that in a constitutional government such as ours, the rule of law must prevail. The Constitution is the basic and paramount law to which all other laws must conform and to which all persons including the highest official of this land must defer. From this cardinal postulate, it follows that the three branches of government must discharge their respective functions within the limits of authority conferred by the Constitution. Under the principle of separation of powers, neither Congress, the President nor the Judiciary may encroach on fields allocated to the other branches of government. The legislature is generally limited to the enactment of laws, the executive to the enforcement of laws and the judiciary to their interpretation and application to cases and controversies.

The Constitution expressly confers or the judiciary the power to maintain inviolate what it decrees. As the guardian of the Constitution we cannot shirk the duty of seeing to it that the officers in each branch of government do not go beyond their constitutionally allocated boundaries and that the entire Government itself or any of its branches does not violate the basic liberties of the people. The essence of this judicial duty was emphatically explained by Justice Laurel in the leading case of Angara v. Electoral Commission, (63 Phil. 139 [1936]) to wit:

· The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries it does not assert any superiority over the other department, it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them. (Emphasis supplied)

The act of the Executive in vetoing the particular provisions is an exercise of a constitutionally vested power. But even as the Constitution grants the power, it also provides limitations to its exercise. The veto power is not absolute.

The pertinent provision of the Constitution reads:

· The President shall have the power to veto any particular item or items in an appropriation, revenue or tariff bill but the veto shall not affect the item or items to which he does not object. (Section 27(2), Article VI, Constitution)

The OSG is correct when it states that the Executive must veto a bill in its entirety or not at all. He or she cannot act like an editor crossing out specific lines, provisions, or paragraphs in a bill that he or she dislikes. In the exercise of the veto power, it is generally all or nothing. However, when it comes to appropriation, revenue or tariff bills, the Administration needs the money to run the machinery of government and it can not veto the entire bill even if it may contain objectionable features. The President is, therefore, compelled to approve into law the entire bill, including its undesirable parts. It is for this reason that the Constitution has wisely provided the "item veto power" to avoid inexpedient riders being attached to an indispensable appropriation or revenue measure.

The Constitution provides that only a particular item or items may be vetoed. The power to disapprove any item or items in an appropriate bill does not grant the authority to veto a part of an item and to approve the remaining portion of the same item. (Gonzales v. Macaraig, Jr., 191 SCRA 452, 464 [1990])

We distinguish an item from a provision in the following manner:

· The terms item and provision in budgetary legislation and practice are concededly different. An item in a bill refers to the particulars, the details, the distinct and severable parts . . . of the bill (Bengzon, supra, at 916.) It is an indivisible sum of money dedicated to a stated purpose (Commonwealth v. Dodson, 11 S.E. 2d 120, 124, 125, etc., 176 Va. 281) The United States Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S. 410, 414, 57 Ct. 252, 81 L. Ed, 312) declared "that an "tem" of an appropriation bill obviously means an item which in itself is a specific appropriation of money, not some general provision of law, which happens to be put into an appropriation bill." (id. at page 465)

We regret having to state that misimpressions or unfortunately wrong advice must have been the basis of the disputed veto.

The general fund adjustment is an item which appropriates P500,000,000.00 to enable the Government to meet certain unavoidable obligations which may have been inadequately funded by the specific items for the different branches, departments, bureaus, agencies, and offices of the government.

The President did not veto this item. What were vetoed were methods or systems placed by Congress to insure that permanent and continuing obligations to certain officials would be paid when they fell due.

An examination of the entire sections and the underlined portions of the law which were vetoed will readily show that portions of the item have been chopped up into vetoed and unvetoed parts. Less than all of an item has been vetoed. Moreover, the vetoed portions are not items. They are provisions.

Thus, the augmentation of specific appropriations found inadequate to pay retirement payments, by transferring savings from other items of appropriation is a provision and not an item. It gives power to the Chief Justice to transfer funds from one item to another. There is no specific appropriation of money involved.

In the same manner, the provision which states that in compliance with decisions of the Supreme Court and the Commission on Audit, funds still undetermined in amount may be drawn from the general fund adjustment is not an item. It is the "general fund adjustment" itself which is the item. This was not touched. It was not vetoed.

More ironic is the fact that misinformation led the Executive to believe that the items in the 1992 Appropriations Act were being vetoed when, in fact, the veto struck something else.

What were really vetoed are:

(1) Republic Act No. 1797 enacted as early as June 21, 1957; and

(2) The Resolution of the Supreme Court dated November 28, 1991 in Administrative Matter No. 91-8-225-CA.

We need no lengthy justifications or citations of authorities to declare that no President may veto the provisions of a law enacted thirty-five (35) years before his or her term of office. Neither may the President set aside or reverse a final and executory judgment of this Court through the exercise of the veto power.

A few background facts may be reiterated to fully explain the unhappy situation.

Republic Act No. 1797 provided for the adjustment of pensions of retired Justices which privilege was extended to retired members of Constitutional Commissions by Republic Act No. 3595.

On January 25, 1975, President Marcos issued Presidential Decree No. 644 which repealed Republic Acts 1797 and 3595. Subsequently, automatic readjustment of pensions for retired Armed Forces officers and men was surreptitiously restored through Presidential Decree Nos. 1638 and 1909.

It was the impression that Presidential Decree No. 644 had reduced the pensions of Justices and Constitutional Commissioners which led Congress to restore the repealed provisions through House Bill No. 16297 in 1990. When her finance and budget advisers gave the wrong information that the questioned provisions in the 1992 General Appropriations Act were simply an attempt to overcome her earlier 1990 veto, she issued the veto now challenged in this petition.

It turns out, however, that P.D. No. 644 never became valid law. If P.D. No. 644 was not law, it follows that Rep. Act No. 1797 was not repealed and continues to be effective up to the present. In the same way that it was enforced from 1951 to 1975, so should it be enforced today.

House Bill No. 16297 was superfluous as it tried to restore benefits which were never taken away validly. The veto of House Bill No. 16297 in 1991 did not also produce any effect. Both were based on erroneous and non-existent premises.

From the foregoing discussion, it can be seen that when the President vetoed certain provisions of the 1992 General Appropriations Act, she was actually vetoing Republic Act No. 1797 which, of course, is beyond her power to accomplish.

Presidential Decree No. 644 which purportedly repealed Republic Act No. 1717 never achieved that purpose because it was not properly published. It never became a law.

The case of Ta馾 a v. Tuvera (134 SCRA 27 [1985]and 146 SCRA 446 [1986]) specifically requires that "all laws 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." This was the Court's answer to the petition of Senator Lorenzo Ta 馻 da and other opposition leaders who challenged the validity of Marcos' decrees which, while never published, were being enforced. Secret decrees are anathema in a free society.

In support of their request, the petitioners in Administrative Matter No. 91-9-225-CA secured certification from Director Lucita C. Sanchez of the National Printing Office that the April 4, 1977 Supplement to the Official Gazette was published only on September 5, 1983 and officially released on September 29, 1983.

On the issue of whether or not Presidential Decree 644 became law, the Court has already categorically spoken in a definitive ruling on the matter, to wit:

· xxx xxx xxx

· PD 644 was promulgated by President Marcos on January 24, 1975, but was not immediately or soon thereafter published although preceding and subsequent decrees were duly published in the Official Gazette. It now appears that it was intended as a secret decree "NOT FOR PUBLICATION" as the notation on the face of the original copy thereof plainly indicates (Annex B). It is also clear that the decree was published in the back-dated Supplement only after it was challenged in the Ta 馻 da case as among the presidential decrees that had not become effective for lack of the required publication. The petition was filed on May 7, 1983, four months before the actual publication of the decree.

· It took more than eight years to publish the decree after its promulgation in 1975. Moreover, the publication was made in bad faith insofar as it purported to show that it was done in 1977 when the now demonstrated fact is that the April 4, 1977 supplement was actually published and released only in September 1983. The belated publication was obviously intended to refute the petitioner's claim in the Ta馻 da case and to support the Solicitor General's submission that the petition had become moot and academic.

· xxx xxx xxx

· We agree that PD 644 never became a law because it was not validly published and that, consequently, it did not have the effect of repealing RA 1797. The requesting Justices (including Justice Lood, whose request for the upgrading of his pension was denied on January 15, 1991) are therefore entitled to be paid their monthly pensions on the basis of the latter measure, which remains unchanged to date.

The Supreme Court has spoken and it has done so with finality, logically and rightly so as to assure stability in legal relations, and avoid confusion. (see Ver v. Quetullo, 163 SCRA 80 [1988]) Like other decisions of this Court, the ruling and principles set out in the Court resolution constitute binding precedent. (Bulig-Bulig Kita Kamaganak Association, et al. v. Sulpicio Lines, Inc., Regional Trial Court, etc., G.R. 847500 16 May 1989, En Banc, Minute Resolution)

The challenged veto has far-reaching implications which the Court can not countenance as they undermine the principle of separation of powers. The Executive has no authority to set aside and overrule a decision of the Supreme Court.

We must emphasize that the Supreme Court did not enact Rep. Act No. 1797. It is not within its powers to pass laws in the first place. Its duty is confined to interpreting or defining what the law is and whether or not it violates a provision of the Constitution.

As early as 1953, Congress passed a law providing for retirement pensions to retired Justices of the Supreme Court and the Court of Appeals. This law was amended by Republic Act 1797 in 1957. Funds necessary to pay the retirement pensions under these statutes are deemed automatically appropriated every year.

Thus, Congress included in the General Appropriations Act of 1992, provisions identifying funds and savings which may be used to pay the adjusted pensions pursuant to the Supreme Court Resolution. As long as retirement laws remain in the statute book, there is an existing obligation on the part of the government to pay the adjusted pension rate pursuant to RA 1797 and AM-91-8-225-CA.

Neither may the veto power of the President be exercised as a means of repealing RA 1797. This is arrogating unto the Presidency legislative powers which are beyond its authority. The President has no power to enact or amend statutes promulgated by her predecessors much less to repeal existing laws. The President's power is merely to execute the laws as passed by Congress.

· II

There is a matter of greater consequence arising from this petition. The attempt to use the veto power to set aside a Resolution of this Court and to deprive retirees of benefits given them by Rep. Act No. 1797 trenches upon the constitutional grant of fiscal autonomy to the Judiciary.

Sec. 3, Art. VIII mandates that:

· Sec. 3 The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released.

We can not overstress the importance of and the need for an independent judiciary. The Court has on various past occasions explained the significance of judicial independence. In the case of De la Llana v. Alba (112 SCRA 294 [1982]), it ruled:

· It is a cardinal rule of faith of our constitutional regime that it is the people who are endowed with rights, to secure which a government is instituted. Acting as it does through public officials, it has to grant them either expressly or implicitly certain powers. These they exercise not for their own benefit but for the body politic. . . .

· A public office is a public trust. That is more than a moral adjuration. It is a legal imperative. The law may vest in a public official certain rights. It does so to enable them to perform his functions and fulfill his responsibilities more efficiently. . . . It is an added guarantee that justices and judges can administer justice undeterred by any fear of reprisal or untoward consequence. Their judgments then are even more likely to be inspired solely by their knowledge of the law and the dictates of their conscience, free from the corrupting influence of base or unworthy motives. The independence of which they are assured is impressed with a significance transcending that of a purely personal right. (At pp. 338-339)

The exercise of the veto power in this case may be traced back to the efforts of the Department of Budget and Management (DBM) to ignore or overlook the plain mandate of the Constitution on fiscal autonomy. The OSG Comment reflects the same truncated view of the provision.

We have repeatedly in the past few years called the attention of DBM that not only does it allocate less than one percent (1%) of the national budget annually for the 22,769 Justices, Judges, and court personnel all over the country but it also examines with a fine-toothed come how we spend the funds appropriated by Congress based on DBM recommendations.

The gist of our position papers and arguments before Congress is as follows:

· The DBM requires the Supreme Court, with Constitutional Commissions, and the Ombudsman to submit budget proposals in accordance with parameters it establishes. DBM evaluates the proposals, asks each agency to defend its proposals during DBM budget hearings, submits its own version of the proposals to Congress without informing the agency of major alterations and mutilations inflicted on their proposals, and expects each agency to defend in Congress proposals not of the agency's making.

· After the general appropriations bill is passed by Congress and signed into law by the President, the tight and officious control by DBM continues. For the release of appropriated funds, the Judiciary, Constitutional Commissions, and Ombudsman are instructed through "guidelines", how to prepare Work and Financial Plans and requests for monthly allotments. The DBM evaluates and approves these plans and requests and on the basis of its approval authorizes the release of allotments with corresponding notices of cash allocation. These notices specify the maximum withdrawals each month which the Supreme Court, the Commissions and the Ombudsman may make from the servicing government bank. The above agencies are also required to submit to DBM monthly, quarterly and year-end budget accountability reports to indicate their performance, physical and financial operations and income,

· The DBM reserves to itself the power to review the accountability reports and when importuned for needed funds, to release additional allotments to the agency. Since DBM always prunes the budget proposals to below subsistence levels and since emergency situations usually occur during the fiscal year, the Chief Justices, Chairmen of the Commissions, and Ombudsman are compelled to make pilgrimages to DBM for additional funds to tide their respective agencies over the emergency.

What is fiscal autonomy?

As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee on full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions.

Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100 typewriters but DBM rules we need only 10 typewriters and sends its recommendations to Congress without even informing us, the autonomy given by the Constitution becomes an empty and illusory platitude.

The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence end flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based. In the interest of comity and cooperation, the Supreme Court, Constitutional Commissions, and the Ombudsman have so far limited their objections to constant reminders. We now agree with the petitioners that this grant of autonomy should cease to be a meaningless provision.

In the case at bar, the veto of these specific provisions in the General Appropriations Act is tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly repugnant to fiscal autonomy. The freedom of the Chief Justice to make adjustments in the utilization of the funds appropriated for the expenditures of the judiciary, including the use of any savings from any particular item to cover deficits or shortages in other items of the Judiciary is withheld. Pursuant to the Constitutional mandate, the Judiciary must enjoy freedom in the disposition of the funds allocated to it in the appropriations law. It knows its priorities just as it is aware of the fiscal restraints. The Chief Justice must be given a free hand on how to augment appropriations where augmentation is needed.

Furthermore, in the case of Gonzales v. Macaraig (191 SCRA 452 [1990]), the Court upheld the authority of the President and other key officials to augment any item or any appropriation from savings in the interest of expediency and efficiency. The Court stated that:

· There should be no question, therefore, that statutory authority has, in fact, been granted. And once given, the heads of the different

branches of the Government and those of the Constitutional Commissions are afforded considerable flexibility in the use of public funds and resources (Demetria v. Alba, supra). The doctrine of separation of powers is in no way endangered because the transfer is made within a department (or branch of government) and not from one department (branch) to another.

The Constitution, particularly Article VI, Section 25(5) also provides:

· Sec. 25. (5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.

In the instant case, the vetoed provisions which relate to the use of savings for augmenting items for the payment of the pension differentials, among others, are clearly in consonance with the abovestated pronouncements of the Court. The veto impairs the power of the Chief Justice to augment other items in the Judiciary's appropriation, in contravention of the constitutional provision on "fiscal autonomy."

· III

Finally, it can not be denied that the retired Justices have a vested right to the accrued pensions due them pursuant to RA 1797.

The right to a public pension is of statutory origin and statutes dealing with pensions have been enacted by practically all the states in the United States (State ex rel. Murray v, Riley, 44 Del 505, 62 A2d 236), and presumably in most countries of the world. Statutory provisions for the support of Judges or Justices on retirement are founded on services rendered to the state. Where a judge has complied with the statutory prerequisite for retirement with pay, his right to retire and draw salary becomes vested and may not, thereafter, be revoked or impaired. (Gay v. Whitehurst, 44 So ad 430)

Thus, in the Philippines, a number of retirement laws have been enacted, the purpose of which is to entice competent men and women to enter the government service and to permit them to retire therefrom with relative security, not only those who have retained their vigor but, more so, those who have been incapacitated by illness or accident. (In re: Amount of the Monthly Pension of Judges and Justices Starting From the Sixth Year of their Retirement and After the Expiration of the Initial Five-year Period of Retirement, (190 SCRA 315 [1990]).

As early as 1953, Rep. Act No. 910 was enacted to grant pensions to retired Justices of the Supreme Court and Court of Appeals.

This was amended by RA 1797 which provided for an automatic adjustment of the pension rates. Through the years, laws were enacted and jurisprudence expounded to afford retirees better benefits.

P.D. No. 1438, for one, was promulgated on June 10, 1978 amending RA 910 providing that the lump sum of 5 years gratuity to which the retired Justices of the Supreme Court and Court of Appeals were entitled was to be computed on the basis of the highest monthly aggregate of transportation, living and representation allowances each Justice was receiving on the date of his resignation. The Supreme Court in a resolution dated October 4, 1990, stated that this law on gratuities covers the monthly pensions of retired Judges and Justices which should include the highest monthly aggregate of transportation, living and representation allowances the retiree was receiving on the date of retirement. (In Re: Amount of the Monthly Pension of Judges and Justices, supra)

The rationale behind the veto which implies that Justices and Constitutional officers are unduly favored is, again, a misimpression.

Immediately, we can state that retired Armed Forces officers and enlisted men number in the tens of thousands while retired Justices are so few they can be immediately identified. Justices retire at age 70 while military men retire at a much younger age some retired Generals left the military at age 50 or earlier. Yet the benefits in Rep. Act No. 1797 are made to apply equally to both groups. Any ideas arising from an alleged violation of the equal protection clause should first be directed to retirees in the military or civil service where the reason for the retirement provision is not based on indubitable and constitutionally sanctioned grounds, not to a handful of retired Justices whose retirement pensions are founded on constitutional reasons.

The provisions regarding retirement pensions of justices arise from the package of protections given by the Constitution to guarantee and preserve the independence of the Judiciary.

The Constitution expressly vests the power of judicial review in this Court. Any institution given the power to declare, in proper cases, that act of both the President and Congress are unconstitutional needs a high degree of independence in the exercise of its functions. Our jurisdiction may not be reduced by Congress. Neither may it be increased without our advice and concurrence. Justices may not be removed until they reach age 70 except through impeachment. All courts and court personnel are under the administrative supervision of the Supreme Court. The President may not appoint any Judge or Justice unless he or she has been nominated by the Judicial and Bar Council which, in turn, is under the Supreme Court's supervision. Our salaries may not be decreased during our continuance in office. We cannot be designated to any agency performing administrative or quasi-judicial functions. We are specifically given fiscal autonomy. The Judiciary is not only independent of, but also co-equal and coordinate with the Executive and Legislative Departments. (Article VIII and section 30, Article VI, Constitution)

Any argument which seeks to remove special privileges given by law to former Justices of this Court and the ground that there should be no "grant of distinct privileges" or "preferential treatment" to retired Justices ignores these provisions of the Constitution and, in effect, asks that these Constitutional provisions on special protections for the Judiciary be repealed. The integrity of our entire constitutional system is premised to a large extent on the independence of the Judiciary. All these provisions are intended to preserve that independence. So are the laws on retirement benefits of Justices.

One last point.

The Office of the Solicitor General argues that:

· . . . Moreover, by granting these benefits to retired Justices implies that public funds, raised from taxes on other citizens, will be paid off to select individuals who are already leading private lives and have ceased performing public service. Said the United States Supreme Court, speaking through Mr. Justice Miller: "To lay with one hand the power of the government on the property of the citizen, and with the other to bestow upon favored individuals . . . is nonetheless a robbery because it is done under the forms of law . . ." (Law Association V. Topeka, 20 Wall. 655) (Comment, p. 16)

The above arguments are not only specious, impolite and offensive; they certainly are unbecoming of an office whose top officials are supposed to be, under their charter, learned in the law.

Chief Justice Cesar Bengzon and Chief Justice Querube Makalintal, Justices J.B.L. Reyes, Cecilia Mu 駉 z Palma, Efren Plana, Vicente Abad Santos, and, in fact, all retired Justices of the Supreme Court and the Court of Appeals may no longer be in the active service. Still, the Solicitor General and all lawyers under him who represent the government before the two courts and whose predecessors themselves appeared before these retirees, should show some continuing esteem and good manners toward these Justices who are now in the evening of their years.

All that the retirees ask is to be given the benefits granted by law. To characterize them as engaging in "robbery" is intemperate, abrasive, and disrespectful more so because the argument is unfounded.

If the Comment is characteristic of OSG pleadings today, then we are sorry to state that the then quality of research in that institution has severely deteriorated.

In the first place, the citation of the case is, wrong. The title is not LAW Association v. Topeka but Citizen's Savings and Loan Association of Cleveland, Ohio v. Topeka City (20 Wall. 655; 87 U.S. 729; 22 Law. Ed. 455 [1874]. Second, the case involved the validity of a statute authorizing cities and counties to issue bonds for the purpose of building bridges, waterpower, and other public works to aid private railroads improve their services. The law was declared void on the ground that the right of a municipality to impose a tax cannot be used for private interests.

The case was decided in 1874. The world has turned over more than 40,000 times since that ancient period. Public use is now equated with public interest. Public money may now be used for slum clearance, low-cost housing, squatter resettlement, urban and agrarian reform where only private persons are the immediate beneficiaries. What was "robbery" in 1874 is now called "social justice." There is nothing about retirement benefits in the cited case. Obviously, the OSG lawyers cited from an old textbook or encyclopedia which could not even spell "loan" correctly. Good lawyers are expected to go to primary sources and to use only relevant citations.

The Court has been deluged with letters and petitions by former colleagues in the Judiciary requesting adjustments in their pensions just so they would be able to cope with the everyday living expenses not to mention the high cost of medical bills that old age entails. As Justice Cruz aptly stated in Teodoro J. Santiago v. COA, (G.R. No. 92284, July 12, 1991);

· Retirement laws should be interpreted liberally in favor of the retiree because their intention is to provide for his sustenance, and hopefully even comfort, when he no longer has the stamina to continue earning his livelihood. After devoting the best years of his life to the public service, he deserves the appreciation of a grateful government as best concretely expressed in a generous retirement gratuity commensurate with the value and length of his services. That generosity is the least he should expect now that his work is done and his youth is gone. Even as he feels the weariness in his bones and glimpses the approach of the lengthening shadows, he should be able to luxuriate in the thought that he did his task well, and was rewarded for it.

For as long as these retired Justices are entitled under laws which continue to be effective, the government can not deprive them of their vested right to the payment of their pensions.

WHEREFORE, the petition is hereby GRANTED. The questioned veto is SET ASIDE as illegal and unconstitutional. The vetoed provisions of the 1992 Appropriations Act are declared valid and subsisting. The respondents are ordered to automatically and regularly release pursuant to the grant of fiscal autonomy the funds appropriated for the subject pensions as well as the other appropriations for the Judiciary. The resolution in Administrative Matter No. 91-8-225-CA dated November 28, 1991 is likewise ordered to be implemented as promulgated.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Cruz, Paras, Feliciano, Padilla, Bidin, Gri駉-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur.

Bellosillo, J., is on leave.


EN BANC

G.R. No. 89914 November 20, 1991

JOSE F.S. BENGZON JR., ABELARDO TERMULO, JOSE MANTECON, VICENTE MILLS JR., LEONARDO GAMBOA, KURT BACHMANN JR., JOSE V.E. JIMENEZ, ERNESTO CALUYA, AGERICO UNGSON, SUSAN ROXAS, ELVIE CASTILLO, and CYNTHIA SABIDO LIMJAP, petitioners, vs.THE SENATE BLUE RIBBON COMMITTEE AND ITS MEMBERS, represented by and through the CHAIRMAN, HON. WIGBERTO TA袮DA, respondents, JOSE S. SANDEJAS, intervenor.

Bengzon, Zarraga, Narciso, Cudala, Pecson & Bengson for petitioners.

Balgos & Perez for intervening petitioner.

Eddie Tamondong and Antonio T. Tagaro for respondents.

PADILLA, J.:p

This is a petition for prohibition with prayer for the issuance of a temporary restraining order and/or injuective relief, to enjoin the respondent Senate Blue Ribbon committee from requiring the petitioners to testify and produce evidence at its inquiry into the alleged sale of the equity of Benjamin "Kokoy" Romualdez to the Lopa Group in thirty-six (36) or thirty-nine (39) corporations.

On 30 July 1987, the Republic of the Philippines, represented by the Presidential Commission on Good Government (PCGG), assisted by the Solicitor General, filed with the Sandiganbayan Civil Case No. 0035 (PCGG Case No. 35) entitled "Republic of the Philippines vs. Benjamin "Kokoy" Romualdez, et al.", for reconveyance, reversion, accounting, restitution and damages.

The complaint was amended several times by impleading new defendants and/or amplifying the allegations therein. Under the Second Amended Complaint, 1 the herein petitioners were impleaded as party defendants.

The complaint insofar as pertinent to herein petitioners, as defendants, alleges among others that:

· 14. Defendants Benjamin (Kokoy) Romualdez and Juliette Gomez Romualdez, acting by themselves and/or in unlawful concert with Defendants Ferdinand E. Marcos and Imelda R. Marcos, and taking undue advantage of their relationship, influence and connection with the latter Defendant spouses, engaged in devices, schemes and strategems to unjuestly enrigh themselves at the expense of Plaintiff and the Filipino people, among others:

· (a) Obatained, with the active collaboration of Defendants Sene J. Gabaldon, Mario D. Camacho, Mamerto Nepomuceno, Carlos J. Valdez, Cesar C. Zalamea and Francisco Tantuico, Atty. Jose Bengzon, Jr. and his law partners, namely: Edilberto S. Narciso, Jr., Jose Vicente E. Jimenez, Amando V. Faustino, Jr., and Leonardo C. Cruz; Jose S. Sandejas and his fellow senior managers of FMMC/PNI Holdings groups of companies such as Leonardo Gamboa, Vicente T. Mills, Jr., Jose M. Mantecon, Abelardo S. Termulo, Rex C. Drilon II and Kurt Bachmann, Jr., control of some of the biggest business enterprises in the Philippines, such as the Manila Corporation (MERALCO), Benguet Consolidated and the Philippine Commercial International Bank (PCI Bank) by employing devious financial schemes and techniques calculated to require the massive infusion and hemorrhage of government funds with minimum or negligible "cashout" from Defendant Benjamin Romualdez...

· xxx xxx xxx

· (m) manipulated, with the support, assistance and collaboration of Philgurantee officials led by chairman Cesar E.A. Virata and the Senior managers of FMMC/PNI Holdings, Inc. led by Jose S. Sandejas, Jr., Jose M. Mantecom and Kurt S. Bachmann, Jr., among others, the formation of Erectors Holdings, Inc. without infusing additional capital solely for the purpose of Erectors Incorporated with Philguarantee in the amount of P527,387,440.71 with insufficient securities/collaterals just to enable Erectors Inc, to appear viable and to borrow more capitals, so much so that its obligation with Philgurantee has reached a total of more than P2 Billion as of June 30, 1987.

· (n) at the onset of the present Administration and/or within the week following the February 1986 People's Revolution, in conspiracy with, supoort, assistance and collaboration of the abovenamed lawyers of the Bengzon Law Offices, or specifically Defendants Jose F.S. Bengzon, Jr., V.E. Jimenez, Amando V. Faustino, Jr., and Edilberto S. Narciso, Jr., manipulated, shcemed, and/or executed a series of devices intended to conceal and place, and/or for the purpose of concealing and placing, beyond the inquiry and jurisdiction of the Presidential Commission on Good Government (PCGG) herein Defendant's individual and collective funds, properties, and assets subject of and/or suited int he instant Complaint.

· (o) manuevered, with the technical know-how and legalitic talents of the FMMC senior manager and some of the Bengzon law partners, such as Attys. Jose F.S. Bengzon, Jr., Edilberto S. Narciso, Jr., Amando V. Faustino, Jose Vicente E. Jimenez and Leonardo C. Cruz, the purported sale of defendant Benjamin Romualdez's interests in the (i) Professional Managers, (ii) A & E International Corporation (A & E), (iii) First Manila Managerment Corporation (FMMC), (iv) Philippine World Travel Inc. (PWTI) and its subsidiaries consisting of 36 corporations in all, to PNI Holdings, Inc. (wjose purported incorporations are all members of Atty. Jose F.S. Bengzon's law firm) for only P5 million on March 3, 1986 or three days after the creation of the Presidential Commission on Good Government on February 28, 1986, for the sole purpose of deceiving and preempting the Government, particularly the PCGG, and making it appear that defendant Benjamin Romualdez had already divested himself of his ownership of the same when in truth and in fact, his interests are well intact and being protected by Atty. Jose F.S. Bengzon, Jr. and some of his law partners, together with the FMMC senior managers who still control and run the affiars of said corporations, and in order to entice the PCGG to approve the said fictitious sale, the above-named defendants offered P20 million as "donation" to the Government;

· (p) misused, with the connivance, support and technical assitance of the Bengzon law firm represented by Atty. Jose F.S. Bengzon, Jr. as legal counsel, together with defendants Cesar Zalamea, Antonio Ozaeta, Mario D. Camacho amd Senen J. Gabaldon as members of the Board of Directors of the Philippine Commercial International bank (PCIB), the Meralco Pension Fund (Fund, for short) in the amount of P25 million by cuasing it to be invested in the PCIB and through the Bank's TSG, assigned to PCI Development and PCI Equity at 50% each, the Fund's (a) 8,028.011 common shares in the Bank and (b) "Deposit in Subscription" in the amount of P4,929.972.50 but of the agreed consideration of P28 million for the said assignment, PCI Development and PCI Equity were able to pay only P5,500.00 downpayment and the first amortization of P3,937,500.00 thus prompting the Fund to rescind its assignment, and the consequent reversion of the assigned brought the total shareholding of the Fund to 11,470,555 voting shares or 36.8% of the voting stock of the PCIB, and this development (which the defendants themselves orchestrated or allowed to happen) was used by them as an excuse for the unlawful dismantling or cancellation of the Fund's 10 million shares for allegedly exceeding the 30-percent ceiling prescribed by Section 12-B of the General Banking Act, although they know for a fact that what the law declares as unlawful and void ab initio are the subscriptions in excess of the 30% ceiling "to the extent of the excess over any of the ceilings prescribed ..." and not the whole or entire stockholding which they allowed to stay for six years (from June 30, 1980 to March 24, 1986);

· (q) cleverly hid behind the veil of corporate entity, through the use of the names and managerial expertise of the FMMC senior manager and lawyers identified as Jose B. Sandejas, Leonardo Gamboa, Vicente T. Mills, Abelardo S, Termulo, Edilberto S. Narciso, Jr., Jose M. Mantecon, Rex C. Drilon II, Kurt Bachmann, Jr. together with the legal talents of corporate lawyers, such as Attys. Jose F.S. Bengzon, Jr., Jose V.E. Jimenez, Amando V. Faustino, Jr., and Leonardo C. Cruz, the ill-gotten wealth of Benjamin T. Romualdez including, among others, the 6,229,177 shares in PCIB registered in the names of Trans Middle East Phils. Equities, Inc. and Edilberto S. Narciso, Jr. which they refused to surrender to PCGG despite their disclosure as they tried and continue to exert efforts in getting hold of the same as well as the shares in Benguet registered in the names of Palm Avenue Holdings and Palm Avenue Realty Development Corp. purportedly to be applied as payment for the claim of P70 million of a "merger company of the First Manila Managerment Corp. group" supposedly owned by them although the truth is that all the said firms are still beneficially owned by defendants Benjamin Romualdez.

xxx xxx xxx

On 28 September 1988, petitioner (as defendants) filed their respective answers. 2 Meanwhile, from 2 to 6 August 1988, conflicting reports on the disposition by the PCGG of the "Romualdez corporations" were carried in various metropolitan newspapers. Thus, one newspaper reported that the Romuladez firms had not been sequestered because of the opposition of certain PCGG officials who "had worked prviously as lawyers of the Marcos crony firms." Another daily reported otherwise, while others declared that on 3 March 1986, or shortly after the EDSA February 1986 revolution, the Romualdez companies" were sold for P5 million, without PCGG approval, to a holding company controlled by Romualdez, and that Ricardo Lopa, the President's brother-in-law, had effectively taken over the firms, even pending negotiations for the purchase of the corporations, for the same price of P5 million which was reportedly way below the fair value of their assets. 3

On 13 September 1988, the Senate Minority Floor Leader, Hon. Juan Ponce Enrile delivered a speech "on a matter of personal privilege" before the Senate on the alleged "take-over personal privilege" before the Senate on the alleged "take-over of SOLOIL Incorporated, the flaship of the First Manila Management of Companies (FMMC) by Ricardo Lopa" and called upon "the Senate to look into the possible violation of the law in the case, particularly with regard to Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act." 4

On motion of Senator Orlando Mercado, the matter was referred by the Senate to the Committee on Accountability of Public Officers (Blue Ribbon Committee). 5 Thereafter, the Senate Blue Ribbon Committee started its investigation on the matter. Petitioners and Ricardo Lopa were subpoenaed by the Committee to appear before it and testify on "what they know" regarding the "sale of thirty-six (36) corporations belonging to Benjamin "Kokoy" Romualdez."

At the hearing held on 23 May 1989, Ricardo Lopa declined to testify on the ground that his testimony may "unduly prejudice" the defendants in Civil Case No. 0035 before the Sandiganbayan. Petitioner Jose F.S. Bengzon, Jr. likewise refused to testify involing his constitutional right to due process, and averring that the publicity generated by respondents Committee's inquiry could adversely affect his rights as well as those of the other petitioners who are his co-defendants in Civil Case No. 0035 before the Sandiganbayan.

The Senate Blue Ribbon Committee, thereupon, suspended its inquiry and directed the petitioners to file their memorandum on the constitutional issues raised, after which, it issued a resolution 6 dated 5 June 1989 rejecting the petitioner's plea to be excused from testifying, and the Committee voted to pursue and continue its investigation of the matter. Senator Neptali Gonzales dissented. 7

Claiming that the Senate Blue Ribbon Committee is poised to subpoena them and required their attendance and testimony in proceedings before the Committee, in excess of its jurisdiction and legislative purpose, in clear and blatant disregard of their constitutional rights, and to their grave and irreparable damager, prejudice and injury, and that there is no appeal nor any other plain, speedy and adequate remedy in the ordinary course of law, the petitioners filed the present petition for prohibition with a prayer for temporary restraning order and/or injunctive relief.

Meanwhile, one of the defendants in Civil Case No. 0035 before the Sandiganbayan, Jose S. Sandejas, filed with the Court of motion for intervention, 8 which the Court granted in the resolution 9 of 21 December 1989, and required the respondent Senate Blue Ribbon Committee to comment on the petition in intervention. In compliance, therewith, respondent Senate Blue Ribbon Committee filed its comment 10 thereon.

Before discussing the issues raised by petitioner and intervenor, we will first tackle the jurisdictional question raised by the respondent Committee.

In its comment, respondent Committee claims that this court cannot properly inquire into the motives of the lawmakers in conducting legislative investigations, much less cna it enjoin the Congress or any its regular and special commitees like what petitioners seek from making inquiries in aid of legislation, under the doctrine of separation of powers, which obtaines in our present system of government.

The contention is untenable. In Angara vs. Electoral Commission, 11 the Court held:

· The separation of powers is a fundamental principle in our system of government. It obtains not hrough express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters wihtin its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government...

xxx xxx xxx

· But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The ovelapping and interlacing of funcstions and duties between the several deaprtments, however, sometimes makes it hard to say just where the political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated, in cases of conflict, the judicial departments is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.

xxx xxx xxx

· The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational way. And when the judiciary mediates to allocate constitutional boundaries; it does not assert any superiority over the other departments; it does not inr eality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by tyhe Constitution to determine conflicting claims of authority under the Constitution and to established for the parties in an actual controversy the rights which that instrument secures and guarantess to them. This is in thruth all that is involved in what is termed "judicial supremacy" which properly is the power of judicial review under the Constitution. Even the, this power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or expediency of legislation. More thatn that, courts accord the presumption of constitutionality to legislative enactments, not only because the legislature is presumed to abide by the Constitution but also becuase the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people as expressed through their representatives in the executive and legislative departments of the government.

The "allocation of constituional boundaries" is a task that this Court must perfomr under the Constitution. Moreowever, as held in a recent case, 12 "(t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does away with kthe applicability of the principle in appropriate cases." 13

The Court is thus of the considered view that it has jurisdiction over the present controversy for the purpose of determining the scope and extent of the power of the Senate Blue Ribbon Committee to conduct inquiries into private affirs in purported aid of legislation.

Coming to the specific issues raised in this case, petitioners contend that (1) the Senate Blue Ribbon Committee's inquiry has no valid legislative purpose, i.e., it is not done in aid of legislation; (2) the sale or disposition of hte Romualdez corporations is a "purely private transaction" which is beyond the power of the Senate Blue Ribbon Committee to inquire into; and (3) the inquiry violates their right to due process.

The 1987 Constition expressly recognizes the power of both houses of Congress to conduct inquiries in aid of legislation. 14 Thus, Section 21, Article VI thereof provides:

· The Senate or the House of Representatives or any of its respective committee may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. 15

The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore, absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in accordance with its duly published rules of procedure" and that "the rights of persons appearing in or affected by such inquiries shall be respected." It follows then that the rights of persons under the Bill of Rights must be respected, including the right to due process and the right not to be compelled to testify against one's self.

The power to conduct formal inquiries or investigations in specifically provided for in Sec. 1 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation. Such inquiries may refer to the implementation or re-examination of any law or in connection with any proposed legislation or the formulation of future legislation. They may also extend to any and all matters vested by the Constitution in Congress and/or in the Seante alone.

As held in Jean L. Arnault vs. Leon Nazareno, et al., 16 the inquiry, to be within the jurisdiction of the legislative body making it, must be material or necessary to the exervise of a power in it vested by the Constitution, such as to legislate or to expel a member.

Under Sec. 4 of the aforementioned Rules, the Senate may refer to any committee or committees any speech or resolution filed by any Senator which in tis judgment requires an appropriate inquiry in aid of legislation. In order therefore to ascertain the character or nature of an inquiry, resort must be had to the speech or resolution under which such an inquiry is proposed to be made.

A perusal of the speech of Senator Enrile reveals that he (Senator Enrile) made a statement which was published in various newspapers on 2 September 1988 accusing Mr. Ricardo "Baby" Lopa of "having taken over the FMMC Group of Companies." As a consequence thereof, Mr. Lopa wrote a letter to Senator Enrile on 4 September 1988 categorically denying that he had "taken over " the FMMC Group of Companies; that former PCGG Chairman Ramon Diaz himself categorically stated in a telecast interview by Mr. Luis Beltran on Channel 7 on 31 August 1988 that there has been no takeover by him (Lopa); and that theses repeated allegations of a "takeover" on his (Lopa's) part of FMMC are baseless as they are malicious.

The Lopa reply prompted Senator Enrile, during the session of the Senate on 13 September 1988, to avail of the privilege hour, 17 so that he could repond to the said Lopa letter, and also to vindicate his reputation as a Member of the Senate of the Philippines, considering the claim of Mr. Lopa that his (Enrile's) charges that he (Lopa) had taken over the FMMC Group of Companies are "baseless" and "malicious." Thus, in his speech, 18 Senator Enrile said, among others, as follows:

· Mr. President, I rise this afternnon on a matter of personal privilege; the privilege being that I received, Mr. President, a letter dated September 4, 1988, signed by Mr. ricardo A. Lopa, a.k.a. or Baby Lopa, wherein he denied categorically that he has taken over the First Manila Management Group of Companies which includes SOLOIL Incorporated.

· xxx xxxx xxx

· In answer to Mr. Lopa, I will quote pertinent portions from an Official Memorandum to the Presidential Commission of Good Government written and signed by former Governor, now Congressman Jose Ramirez, in his capacity as head of the PCGG Task Force for Region VIII. In his memorandum dated July 3, 1986, then Governor Ramirez stated that when he and the members of his task force sought to serve a sequestration order on the management of SOLOIL in Tanauan, Leyte, management officials assured him that relatives of the President of the Philippines were personally discussing and representing SOLOIL so that the order of sequestration would be lifted and that the new owner was Mr. Ricardo A. Lopa.

· I will quote the pertinent portions in the Ramire's memorandum.

· The first paragraph of the memorandum reads as follows and I quote, Mr. President:

· "Our sequestration work of SOLOIL in Tanauan, Leyte was not heeded by management because they said another representation was being made to this Commission for the ventual lifting of our sequestrationorder. They even assured us that Mr. Ricardo Lopa and Peping Cojunangco were personally discussing and representing SOLOIL, so the order of sequestration will finally be lifted. While we attempted to carry on our order, management refused to cooperate and vehemently turned down our request to make available to us the records of the company. In fact it was obviously clear that they will meet us with forcethe moment we insist on doing normally our assigned task. In view of the impending threat, and to avoid any untoward incident we decided to temporarily suspend our work until there is a more categorical stand of this Commission in view of the seemingly influential represetation being made by SOLOIL for us not to continue our work."

· Another pertinent portion of the same memorandum is paragraph five, which reads as follows, and I quote Mr. President:

· "The President, Mr. Gamboa, this is, I understand, the President of SOLOIL, and the Plant Superintendent, Mr. Jimenez including their chief counsel, Atty. Mandong Mendiola are now saying that there have been divestment, and that the new owner is now Mr. Ricardo Lopa who according to them, is the brother-in-law of the President. They even went further by telling us that even Peping Cojuangco who we know is the brother of her excellency is also interested in the ownership and management of SOLOIL. When he demanded for supporting papers which will indicate aforesaid divestment, Messrs. Gamboa, Jimenez and Mendiola refused vehemently to submit these papers to us, instead they said it will be submitted directly to this Commission. To our mind their continuous dropping of names is not good for this Commission and even to the President if our dersire is to achieve respectability and stability of the government."

· The contents of the memorandum of then Governor and now Congressman Jose Ramirez were personally confirmed by him in a news interview last September 7, 1988.

· xxx xxxx xxx

· Also relevant to this case, Mr. President, is a letter of Mr. Ricardo Lopa himself in August 11, 1988 issue of the newspaper Malaya headlined "On Alleged Takeover of Romualdez Firms."

· Mr. Lopa states in the last paragraph of the published letter and I quote him:

· 12. As of this writing, the sales agreement is under review by the PCGG solely to determine the appropriate price. The sale of these companies and our prior rigtht to requires them have never been at issue.

· Perhaps I could not make it any clearer to Mr. Lopa that I was not really making baseless and malicious statements.

Senator Enrile concluded his privilege speech in the following tenor:

· Mr. President, it may be worthwhile for the Senate to look into the possible violation of the law in the case particularly with regard to Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act, Section 5 of which reads as follows and I quote:

· Sec. 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for nay relative, by consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives, to intervene directly or indirectly, in any business, transaction, contract or application with the Government: Provided, that this section shall not apply to any person who prior to the assumption of office of any of the above officials to whom he is related, has been already dealing with the Government along the same line of business, nor to any transaction, contract or application filed by him for approval of which is not discretionary on the part of the officials concerned but depends upon compliance with requisites provided by law, nor to any act lawfully performed in an official capacity or in the exercise of a profession.

· Mr. President, I have done duty to this Senate and to myself. I leave it to this august Body to make its own conclusion.

Verily, the speech of Senator Enrile contained no suggestion of contemplated legislation; he merely called upon the Senate to look into a possible violation of Sec. 5 of RA No. 3019, otherwise known as "The Anti-Graft and Corrupt Practices Act." I other words, the purpose of the inquiry to be conducted by respondent Blue Ribbon commitee was to find out whether or not the relatives of President Aquino, particularly Mr. ricardo Lopa, had violated the law in connection with the alleged sale of the 36 or 39 corporations belonging to Benjamin "Kokoy" Romualdez to the Lopaa Group. There appears to be, therefore, no intended legislation involved.

The Court is also not impressed with the respondent Committee's argument that the questioned inquiry is to be conducted pursuant to Senate Resolution No. 212. The said resolution was introduced by Senator Jose D. Lina in view of the representaions made by leaders of school youth, community groups and youth of non-governmental organizations to the Senate Committee on Youth and Sports Development, to look into the charges against the PCGG filed by three (3) stockholders of Oriental petroleum, i.e., that it has adopted a "get-rich-quick scheme" for its nominee-directors in a sequestered oil exploration firm.The pertinent portion of Senate Resolution No. 212 reads as follows:

· xxx xxx xxx

· WHEREAS, recent developments have shown that no less than the Solicitor-General has stated that the PCGG Chairman and at least three Commissioners should resign and that the agency should rid itself of "ineptness, incompetence and corruption" and that the Sandiganbayan has reportedly ordered the PCGG to answer charges filed by three stockholders of Oriental Petroleum that it has adopted a "get-rich-quick scheme" for its nominee-directors in a sequestered oil exploration firm;

· WHEREAS, leaders of school youth, community groups and youth of non-governmental organization had made representations to the Senate Committee on Youth and Sports Development to look into the charges against the PCGG since said agency is a symbol of the changes expected by the people when the EDSA revolution took place and that the ill-gotten wealth to be recovered will fund priority projects which will benefit our people such as CARP, free education in the elementary and secondary levels reforestration, and employment generation for rural and urban workers;

· WHEREAS, the government and the present leadeship must demonstrate in their public and private lives integrity, honor and efficient management of government services lest our youth become disillusioned and lose hope and return to an Idelogy and form of government which is repugnant to true freedom, democratic participation and human rights: Now, therefore, be it.

· Resolved by the Senate, That the activities of the Presidential Commission on Good Government be investigated by the appropriate Committee in connection with the implementation of Section 26, Article XVIII of the Constitution. 19

Thus, the inquiry under Senate Resolution No. 212 is to look into the charges against the PCGG filed by the three (3) stockholders of Oriental Petroleum in connection with the implementation of Section 26, Article XVIII of the Constitution.

It cannot, therefore, be said that the contemplated inquiry on the subject of the privilege speech of Senator Juan Ponce Enrile, i.e., the alleged sale of the 36 (or 39) corporations belonging to Benjamin "Kokoy" Romualdez to the Lopa Group is to be conducted pursuant to Senate Resolution No. 212 because, firstly, Senator Enrile did not indict the PCGG, and, secondly, neither Mr. Ricardo Lopa nor the herein petitioners are connected with the government but are private citizens.

It appeals, therefore, that the contemplated inquiry by respondent Committee is not really "in aid of legislation" becuase it is not related to a purpose within the jurisdiction of Congress, since the aim of the investigation is to find out whether or not the ralatives of the President or Mr. Ricardo Lopa had violated Section 5 RA No. 3019, the "Anti-Graft and Corrupt Practices Act", a matter that appears more within the province of the courts rather than of the legislature. Besides, the Court may take judicial notice that Mr. Ricardo Lopa died during the pendency of this case. In John T. Watkins vs. United States, 20 it was held held:

· ... The power of congress to conduct investigations in inherent in the legislative process. That power is broad. it encompasses inquiries concerning the administration of existing laws as well as proposed, or possibly needed statutes. It includes surveys of defects in our social,economic, or political system for the purpose of enabling Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But broad asis this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs ofindividuals without justification in terms of the functions of congress. This was freely

conceded by Solicitor General in his argument in this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to and in furtherance of a legitimate task of Congress. Investigations conducted soly for the personal aggrandizement of the investigators or to "punish" those investigated are indefensible. (emphasis supplied)

It can not be overlooked that when respondent Committee decide to conduct its investigation of the petitioners, the complaint in Civil No. 0035 had already been filed with the Sandiganbayan. A perusal of that complaint shows that one of its principal causes of action against herein petitioners, as defendants therein, is the alleged sale of the 36 (or 39) corporations belonging to Benjamin "Kokoy" Romualdez. Since the issues in said complaint had long been joined by the filing of petitioner's respective answers thereto, the issue sought to be investigated by the respondent Commitee is one over which jurisdiction had been acquired by the Sandiganbayan. In short, the issue had been pre-empted by that court. To allow the respondent Committee to conduct its own investigation of an issue already before the Sandiganbayan would not only pose the possibility of conflicting judgments betweena legislative commitee and a judicial tribunal, but if the Committee's judgment were to be reached before that of the Sandiganbayan, the possibility of its influence being made to bear on the ultimate judgment of the Sandiganbayan can not be discounted.

In fine, for the rspondent Committee to probe and inquire into the same justiciable controversy already before the Sandiganbayan, would be an encroachment into the exclusive domain of judicial jurisdiction that had much earlier set in. In Baremblatt vs. United States, 21 it was held that:

· Broad as it is, the power is not, howevern, without limitations. Since congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches of the government. Lacking the judicial power given to the Judiciary, it cannot inquire into mattes that are exclusively the concern of the Judiciary. Neither can it suplant the Executive in what exclusively belongs to the Executive. ...

Now to another matter. It has been held that "a congressional committee's right to inquire is 'subject to all relevant limitations placed by the Constitution on governmental action,' including "'the relevant limitations of the Bill of Rights'." 22

In another case —

· ... the mere semblance of legislative purpose would not justify an inquiry in the face of the Bill of Rights. The critical element is the exeistence of, and the weight to be ascribed to, the interest of the Congress in demanding disclosures from an unwilling witness. We cannot simply assume, however, that every congressional investigation is justified by a public need that over-balances any private rights affected. To do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroah upon an individual's right to privacy nor abridge his liberty of speech, press, religion or assembly. 23

One of the basic rights guaranteed by the Constitution to an individual is the right against self-incrimination. 24 Thir right constured as the right to remain completely silent may be availed of by the accused in a criminal case; but kit may be invoked by other witnesses only as questions are asked of them.

This distinction was enunciated by the Court in Romeo Chavez vs. The Honorable Court of Appeals, et al. 25 thus —

· Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is hot at him, an accused may altother refuse to take the witness stand and refuse to answer any all questions.

Moreover, this right of the accused is extended to respondents in administrative investigations but only if they partake of the nature of a criminal proceeding or analogous to a criminal proceeding. In Galman vs. Pamaran, 26 the Court reiterated the doctrine in Cabal vs. Kapuanan (6 SCRA 1059) to illustrate the right of witnesses to invoke the right against self-incrimination not only in criminal proceedings but also in all other types of suit

It was held that:

· We did not therein state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right against self-incrimination only when a question which tends to elicit an answer that will incriminate him is propounded to him. Clearly then, it is not the characeter of the suit involved but the nature of the proceedings that controls. The privilege has consistenly been held to extend to all proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness, whether a party or not.

We do not here modify these doctrines. If we presently rule that petitioners may not be compelled by the respondent Committee to appear, testify and produce evidenc before it, it is only becuase we hold that the questioned inquiry is not in aid of legislation and, if pursued, would be violative of the principle of separation of powers between the legislative and the judicial departments of government, ordained by the Constitution.

WHEREFORE, the petition is GRANTED. The Court holds that, under the facts, including the circumtance that petitioners are presently impleaded as defendants in a case before the Sandiganbayan, which involves issues intimately related to the subject of contemplated inquiry before the respondet Committee, the respondent Senate Blue Ribbon Committee is hereby enjoined from compelling the petitioners and intervenor to testify before it and produce evidence at the said inquiry.

SO ORDERED.

Fernan, C.J., Melencio-Herrera, Feliciano, Bidin, Gri駉-Aquino, Medialdea, Regalado, Davide, Jr. and Romero, JJ., concur.

Separate Opinions

PARAS, J., concurring:I concur principally because any decision of the respondent committee may unduly influence the Sandiganbayan

GUTIERREZ, JR., J., dissenting:I regret that I must express a strong dissent the Court's opinion in this case.The Court is asserting a power which I believe we do not possess. We are encroaching on the turf of Congress. We are prohibiting the Senate from proceeding with a consitutionally vested function. We are stopping the Senate Blue Ribbon Committee from exercising a legislative prerogative investigations in aid of legislation. We do so becuase we somehow feel that the purported aim is not the real purpose.The Court has no power to second guess the motives behind an act of a House of Congress. Neither can we substitute our judgment for its judgment on a matter specifically given to it by the Constitution. The scope of the legislative power is broad. it emcompasses practically every aspect of human or corporate behavior capable of regulation. How can this Court say that unraveling the tangled and secret skeins behind the acquisition by Benjamin "Kokoy" Romualdez of 39 corporations under the past regime and their sudden sale to the Lopa Group at the outset of the new dispensation will not result in useful legislation?The power of either House of Congress to conduct investigations is inherent. It needs no textual grant. As stated in Arnault v. Nazareno, 87 Phil. 29 (1950)

· Our form of government being patterned after the American system the framers of our Constitution having drawn largely from American institutions and practices we can, in this case, properly draw also from American precedents in interpreting analogous provisions of our Constitution, as we have done in other cases in the past.

· Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisely and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change: and where the legislative body does not itself possess the requisite information which is not infrequently true recourse must be had to others who do possess it. ... (At p. 45)

The framers of the present Constitution were not content to leave the power inherent, incidental or implied. The power is now expressed as follows:

· Sec. 21 The Senate or the House of Representatives or may of its respective committees may conduct inquiries in aid of legialtion in accordance with its duly published rules of precedure. The rights of persons appearing in or affected by such inquiries shall be respected.

Apart from the formal requirement of publishing the rules of procedure, I agree that there are three queries which, if answered in the affirmative, may give us cause to intervene.First, is the matter being investigated one on which no valid legislation could possibly be enacted?Second, is Congress encroaching on terrain which the

Constitution has reserved as the exclusive domain of another branch of government?And third, is Congress violating the basic liberties of an individual?The classic formulation of the power of the Court to interpret the meaning of "in aid of legislation" is expressed in Kilbourn v. Thompson, 103 U.S. 168 (1880).The House of Representatives passed a resolution creating a committee to investigate the financial relations between Jay Cooke and Co., a depositary of federal funds and a real estate pool. A debtor of Jay Cooke and Co, Kilbourn, general manager of the pool refused to answer questions put to him by the Committee and to produce certain book sna papers. Consequently, he was ordered jailed for forty-five days. He brought an action for false imprisonment and the Supreme Court decided in his favor.Speaking through Justice Miller, the Court ruled:

· The resolution adopted as a sequence of this preamble contains no hint of any intention of final action by Congress on the subject, In all the argument of the case no suggestion has been made of what the House of Respresentatives or the Congress could have done in the way of remedying the wrong or securing the creditors of Jay Cooke and Co., or even the United States. Was it to be simply a fruitless investigation into the personal affiars of individuals? If so the House of Representatives had no power or authority in the matter more than any other equal number of gentlemen interested for the government of their country. By fruitless we mean that it could result in

no valid legislation on the subject to which the inquiry referrred. (Kilbourn v. Thompson, Id. at page 388)

The Kilbourn decision is, however, crica 1880. The world has turned over many times since that era. The same court which validated separate but equal facilities against of racial discrimination and ruled that a private contract may bar improved labor standards and social justice legislation has reversed itslef on these and many other questions.In McGrain v. Daugherty, 273 U.S. 135; 71 L. Ed. 580 [1927], the court went beyond the express terms of the Senate resolution directing the investigation of a former Attorney General for non-feasance, misfeasance, and malfeasance in office. It presumed that the action of the Senate was with a legitimate object.

· ... Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney-General and the duties of his assitants, are all subject to regulation by congressional legislation, and that the department is maintained and its activitites are carried on under such appropriations as in the judgment of Congress are needed from year to year.

· The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think the subject was the real object. An express avowal of the object would have

been better; but in view of the particular subject matter was not indispenable. In People ex rel. Mc Donald v. Keeler, 99, N.Y. 463, 52 Am. Rep. 49, 2 N.E. 615, where the Court of Appeals of New york sustained an investigation order by the House of Representatives of that state where the resolution contained no avowal, but disclosed that it definitely related to the administrative of public office the duties of which were subject to legislative regulation, the court said (pp. 485, 487): Where public institutions under the control of the State are ordered to be investigated, it is generally with the view of some legislative action respecting them, and the same may be said in respect of public officers,' And again "We are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no right to assume that the contrary was intended." (McGrain v. Daugherty Id., at page 594-595, Emphasis supplied)

The American Court was more categorical in United States v. Josephson, 333 U.S. 858 (1938). It declared that declaration of legislative purpose was conclusive on the Courts:

· Whatever may be said of the Committee on the un-American activities, its authorizing resolution recites it is in aid of legislation and that fact is establshed for courts.

And since the matter before us in somethingwe inherited from the American constitutional system, rulings from the decision of federal courts may be apropos. (Stamler v. Willis, 287 F. Supp. 734 [1968]

· The Court cannot probe into the motives of the members of the Congress.

Barsky v. United States, 167 F. 2d 241 [1948]· The measure of the power of inquiry is the

potentiality that constitutional legislation might ensue from information derived from such inquiry.

· The possibility that invalid as well as valid legislation might ensue from an inquiry does not limit the power of inquiry, since invalid legislation might ensue from any inquiry.

United States v. Shelton, 148 F. Supp. 926 [1957]· The contention of the defendant that the hearing at

which he testified and from which the indictment arose was not in furtherance og a legislative purpose proceeds on the assumption that a failure to have specific legislation in contemplation, or a failure to show that legislation was in fact enacted, estabished an absence of legislative purpose. This argument is patently unsound. The investigative power of Congress is not subject to the limitation that hearings must result in legislation or recommendations for legislation.

United States v. Deutch (147 F. Supp. 89 (1956)· Under the Constitution of the U.S., the Federal

Government is a government of limited powers. The Congress, being the legislative branch of the Federal Government, is also clothed with limited legislative powers. In orders, however, to carry its legislative powers into effect successfully, it has always been held that Congress has the power to

secure information concerning matters in respect to which it has the authority to legislate. In fact, it would seem that Congress must secure information in order to legislate intelligently. Beyond that, the Congress has the right secure information in order to determine whether or not to legislate on a particular subject matter on which it is within its constitutional powers to act. (Emphasis Supplied)

The even broader scope of legislative investigation in the Philippine context is explained by a member of the Constitutional Commission.

· The requirement that the investigation be "in aid of legislation" is an essential element for establishing the jurisdiction of the legislative body. It is, however, a requirement which is not difficult to satisfy becuase, unlike in the United States, where legislative power is shared by the United State Congress and the states legislatures, the totality of legislative power is possessed by the Congress nad its legislative field is well-nigh unlimited. "It would be difficult to define any limits by which the subject matter of its inquiry can be bounded." (Supra, at p. 46) Moreover, it is not necessary that every question propounded to a witness must be material to a proposed legislation. "In other words, the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation. The reason is that the necessity or lack of necessity for legislative action and form and character of the action itself are determined by the sum total of the information to

be gathered as a result of the investigation, and not by a fraction to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single question. (Id., at 48)

· On the basis of this interpretation of what "in aid of legislation" means, it can readily be seen that the phrase contributes practically nothing towards protecting witnesses. Practically any investigation can be in aid of the broad legislative power of Congress. The limitation, therefore cannot effectively prevent what Kilbourn v. Thompson (103 U.S. 168 [1880]) characterized as "roving commissions" or what Watkins v. United States (354 U.S. 178, 200 [1957] labeled as exposure for the sake of exposure. (Bernas, Constitution of the Republic of the Philippines, Vol. II, 1st Ed., page 132).

Applying the above principles to the present casem, it can readily be seen that the Senate is investigating an area where it may potentially legislate. The ease with which relatives of the President were allegedly able to amass great wealth under the past regime is a legitimate area of inquiry. And if we tack on the alleged attempts o f relatives of a succeeding adminsitration to duplicate the feat, the need for remedial legislation becomes more imperative.Our second area of concern is congressional encroachment on matters reserved by the Constitution for the Executive or the Judiciary.The majority opinion cites the decision in Angara v. Electoral Commission, 63 Phil. 139 (1936) explaining our power to

determined conflicting claims of authority. It is indeed the function on this Court to allocate constitutional boundaries but in the exercise of this "umpire" function we have to take care that we do not keep any of the three great departments of government from performing functions peculiar to each department or specifically vested to it sby the Constitution. When a power is vested, ti carries with is everything legitimately neede to exercise it.It may be argued that the investigation into the Romualdez Lopa transactions is more appropriate for the Department of Justice and the judiciary. This argument misses the point of legislative inquiry.The prosecution of offenders by the Department of Justice or the Ombudsman and their trial before courts of justice is intended to punish persons who violate the law. Legislative investigations go further. The aim is to arrive at policy determinations which may or may not be enacted into legislation. Referral to prosecutors or courts of justice is an added bonus. For sure, the Senate Blue Ribbon Committee knows it cannot sentence any offender, no matter how overwhelming the proof that it may gatherm to a jail term. But certainly, the Committee can recommend to Congress how the situation which enabled get-rich-quick schemes to flourish may be remedied. The fact that the subject of the investigation may currently be undergoing trial does not restrict the power of Congress to investigate for its own purposes. The legislative purpose is distinctly different from the judicial purpose.In Sinclair v. United States, 279 U.S. 263, 73 L ed. 692 (1928), leases of naval reservations to oil companies were investigated by the United States Senate. On a finding that

certain leases were fraudulent, court action was recommended. In other words, court action on one hand and legislation on the other, are not mutually exclusive. They may complement each other.

· ... It may be conceded that Congress is without authority to compel disclosyres for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through it Committees, to require pertinent disclosures in aid of its own consitutional power is not abridged because the information sought to be elicited may also be of use in such suits... It is plain that investigation of the matters involved in suits brought or to be commenced under the Senate resolution directing the institution of suits for the cancellation of the leases might directly aid in respect of legislative action... (Sinclair v. United States, Id.at page 698).

In United States v. Orman, 207 F. 2d Ed. 148 (1953), the court declared that it was pertinent for a legislative committee to seek facts indicating that a witness was linked to unlawful intestate gambling.

· The power of a congressional committee to investigate matters cannot be challenged on the ground that the Committee went beyond the scope of any contemplated legislative and assumed the functions of a grand jury. Whre the genral subject of investigation is one concerning which Congress can legislate, and the information sought might aid the congressional consideration, in such a situation a legitimate legislative purpose must be presumed...

I submit that the filing of indictments or informations or the trial of certain persons cannot, by themselves, half the intitiation or stop the progress of legislative investigations.The other ground which I consider the more important one is where the legislative investigation violates the liberties of the witnesses.The Constitution expressly provides that "the rights of persons appearing in or affected by such inquiries shall be respected.It should be emphasized that the constitutional restriction does not call for the banning or prohibition of investigations where a violation of a basis rights is claimed. It only requires that in the course of the proceedings, the right of persons should be respected.What the majority opinion mandates is a blanket prohibition against a witness testifying at all, simply because he is already facing charges before the Sandiganbayan. To my mind, the Consitution allows him to interpose objections whenever an incriminating question is posed or when he is compelled to reveal his ocurt defenses, but not ot refuse to take the witness stand completely.

Arnault v. Nazareno, supra, illustrates the reticence, with which the court views petitions to curtail legislative investigations even where an invocation of individual liberties is made.In Arnault, the entire country already knew the name of the presidential realtive whom the Sentate was trying to link to the Tambobong-Buenavista estate anomalies. Still, the Court did not interfere when Arnault refused to answer specific questions directed at him and he was punished for hir refusal. The Court did not restrain the Senate when Arnault was sent o the national penitentiary for an indefinite visit until the name which the Senate wanted him to utter was extracted. Only when the imprisonment became ureasonably prolonged and the situation in Congress had changed was he released.As pointed out by the respondents, not one question has been asked requiring an answer that would incriminate the petitioners. The allegation that their basic rights are vilolated is not only without basis but is also premature.I agree with the respondents that the slae of 39 Romualdez corporations to Mr. Lopa is not a purely private transaction into which the Senate may not inquire. if this were so, much of the work of the Presidential Commission on Good Government (PCGG) as it seeks to recover illegally acquired wealth would be negated. Much of what PCGG is trying to recover is the product of arrangements which are not only private but also secret and hidden.I therefore, vote to DISMISS the petition.Narvasa, J., dissents.CRUZ, J., dissenting:I regret I am unable to give my concurrence, I do not agree

that the investigation being conducted by the Blue Ribbon Committee is not in aid of legislation.In Arnault v. Nazareno, 87 Phil. 29, this Court observed that "we are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no right ot assume that the contrary was intended." (People ex rel. Mc Donald vs. Keeler, 99 N.Y. 463; 52 Am. Rep., 49; 2 N.E., 615, quoted with approval by the U.S. Supreme Court in McGrain vs. Daugherty, 273 U.S. 135). As far as I know, that is still the rule today.More importantly, the presumption is supported by the established facts. The inquiry is sustainable as an implied of power the legislature and even as expressly limited by the Constitution. The inquiry deals with alleged manipulations of public funds and illicit acquisitions of properties now being claimed by the PCGG for the Republic of the Philippines. The purpose of the Committee is to ascertain if and how such anomalies have been committed. It is settled that the legislature has a right to investigate the disposition of the public funds it has appropriated; indeed, "an inquiry into the expenditure of all public money is na indispensable duty of the legislature." Moreover, an investigation of a possible violation of a law may be useful in the drafting of amendatory legislation to correct or strengthen that law.The ponencia quotes lengthily from Senator Enrile's speech and concludes that it "contained no suggestions of contemplated legislation; he merely called upon the Senate to look into a possible violation of section 5 of R.A. No. 3019." However, according to McGrain v. Daugherty, supra:

· Primarily, the purpose for which legislative inquiry

and investigation is pursued is to serve as an aid in legislation. Through it, the legislature is able to obtain facts or data in aid fo proposed legislation. However, it is not necessary that the resolution ordering an investigation should in terms expressly state that the object of the inquiry is to obtain data in aid of proposed legislation. It is enough that such purpose appears from a consideration of the entire proceedings or one in which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. An express avowal of the object would be better, but such is not indispensable. (Emphasis supplied).

The petitioner's contention that the questioned investigation would compel them to reveal their defense in the cases now pending against them in the Sandigangbayan is untenable. They know or should know that they cannot be compelled to answer incriminating questions. The case of Chavez v. Court of Appeals, 24 SCRA 663, where we held that an accused may refuse at the outset to take the stand on the ground that the questions to be put by the prosecutor will tend to incriminate him is, of course, not applicable to them. They are not facing criminal charges before the Blue Ribbon Committee. Like any ordinary witness, they can invoke the right against self-incrimination only when and as the incriminating question is propounded.While it is true that the Court is now allowed more leeway in reviewing the traditionally political acts of the legislative and executive departments, the power must be exercised with the utmost circumspection lest we unduly trench on their prerogatives and disarrange the constitutional separation of

powers. That power is available to us only if there is a clear showing of a grave abuse of discretion, which I do not see in the case at bar.Guided by the presumption and the facts, I vote to DISMISS the petition.Narvasa, J., dissents.

# Separate Opinions

PARAS, J., concurring:

I concur principally because any decision of the respondent committee may unduly influence the Sandiganbayan

GUTIERREZ, JR., J., dissenting:

I regret that I must express a strong dissent the Court's opinion in this case.

The Court is asserting a power which I believe we do not possess. We are encroaching on the turf of Congress. We are prohibiting the Senate from proceeding with a consitutionally vested function. We are stopping the Senate Blue Ribbon Committee from exercising a legislative prerogative investigations in aid of legislation. We do so becuase we somehow feel that the purported aim is not the real purpose.

The Court has no power to second guess the motives behind an act of a House of Congress. Neither can we substitute our judgment for its judgment on a matter specifically given to it by the Constitution. The scope of the legislative power is broad. it emcompasses practically every aspect of human or corporate behavior capable of regulation. How can this Court say that unraveling the tangled and secret skeins behind the acquisition by Benjamin "Kokoy" Romualdez of 39 corporations under the past regime and their sudden sale to the Lopa Group at the outset of the new dispensation will not result in useful legislation?

The power of either House of Congress to conduct investigations is inherent. It needs no textual grant. As stated in Arnault v. Nazareno, 87 Phil. 29 (1950)

· Our form of government being patterned after the American system the framers of our Constitution having drawn largely from American institutions and practices we can, in this case, properly draw also from American precedents in interpreting analogous provisions of our Constitution, as we have done in other cases in the past.

· Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisely and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change: and where the legislative body does not itself possess the requisite information which is not infrequently true recourse must be had to others who do possess it. ... (At p. 45)

The framers of the present Constitution were not content to leave the power inherent, incidental or implied. The power is now expressed as follows:

· Sec. 21 The Senate or the House of Representatives or may of its respective committees may conduct inquiries in aid of legialtion in accordance with its duly published rules of precedure. The rights of persons appearing in or affected by such inquiries shall be respected.

Apart from the formal requirement of publishing the rules of procedure, I agree that there are three queries which, if answered in the affirmative, may give us cause to intervene.

First, is the matter being investigated one on which no valid legislation could possibly be enacted?

Second, is Congress encroaching on terrain which the Constitution has reserved as the exclusive domain of another branch of government?

And third, is Congress violating the basic liberties of an individual?

The classic formulation of the power of the Court to interpret the meaning of "in aid of legislation" is expressed in Kilbourn v. Thompson, 103 U.S. 168 (1880).

The House of Representatives passed a resolution creating a committee to investigate the financial relations between Jay Cooke and Co., a depositary of federal funds and a real estate pool. A debtor of Jay Cooke and Co, Kilbourn, general manager of the pool refused to answer questions put to him by the Committee and to produce certain book sna papers. Consequently, he was ordered jailed for forty-five days. He brought an action for false imprisonment and the Supreme Court decided in his favor.

Speaking through Justice Miller, the Court ruled:

· The resolution adopted as a sequence of this preamble contains no hint of any intention of final action by Congress on the subject, In all the argument of the case no suggestion has been made of what the House of Respresentatives or the Congress could have done in the way of remedying the wrong or securing the creditors of Jay Cooke and Co., or even the United States. Was it to be simply a fruitless investigation into the personal affiars of individuals? If so the House of Representatives had no power or authority in the matter more than any other equal number of gentlemen interested for the government of their country. By fruitless we mean that it could result in no valid legislation on the subject to which the inquiry referrred. (Kilbourn v. Thompson, Id. at page 388)

The Kilbourn decision is, however, crica 1880. The world has turned over many times since that era. The same court which validated separate but equal facilities against of racial discrimination and ruled that a private contract may bar improved labor standards and social justice legislation has reversed itslef on these and many other questions.

In McGrain v. Daugherty, 273 U.S. 135; 71 L. Ed. 580 [1927], the court went beyond the express terms of the Senate resolution directing the investigation of a former Attorney General for non-feasance, misfeasance, and malfeasance in office. It presumed that the action of the Senate was with a legitimate object.

· ... Plainly the subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of the Attorney-General and the duties of his assitants, are all subject to regulation by congressional legislation, and that the department is maintained and its activitites are carried on under such appropriations as in the judgment of Congress are needed from year to year.

· The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think the subject was the real object. An express avowal of the object would have been better; but in view of the particular subject matter was not indispenable. In People ex rel. Mc Donald v. Keeler, 99, N.Y. 463, 52 Am. Rep. 49, 2 N.E. 615, where the Court of Appeals of New york sustained an investigation order by the House of Representatives of that state where the resolution contained no avowal, but disclosed that it definitely related to the administrative of public office the duties of which were subject to legislative regulation, the court said (pp. 485, 487): Where public institutions under the control of the State are ordered to be investigated, it is generally with the view of some legislative action respecting them, and the same may be said in respect of public officers,' And again "We are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no right to assume that the contrary was intended." (McGrain v. Daugherty Id., at page 594-595, Emphasis supplied)

The American Court was more categorical in United States v. Josephson, 333 U.S. 858 (1938). It declared that declaration of legislative purpose was conclusive on the Courts:

· Whatever may be said of the Committee on the un-American activities, its authorizing resolution recites it is in aid of legislation and that fact is establshed for courts.

And since the matter before us in somethingwe inherited from the American constitutional system, rulings from the decision of federal courts may be apropos. (Stamler v. Willis, 287 F. Supp. 734 [1968]

· The Court cannot probe into the motives of the members of the Congress.

Barsky v. United States, 167 F. 2d 241 [1948]

· The measure of the power of inquiry is the potentiality that constitutional legislation might ensue from information derived from such inquiry.

· The possibility that invalid as well as valid legislation might ensue from an inquiry does not limit the power of inquiry, since invalid legislation might ensue from any inquiry.

United States v. Shelton, 148 F. Supp. 926 [1957]

· The contention of the defendant that the hearing at which he testified and from which the indictment arose was not in furtherance og a legislative purpose proceeds on the assumption that a failure to have specific legislation in contemplation, or a failure to show that legislation was in fact enacted, estabished an absence of legislative purpose. This argument is patently unsound. The investigative power of Congress is not subject to the limitation that hearings must result in legislation or recommendations for legislation.

United States v. Deutch (147 F. Supp. 89 (1956)

· Under the Constitution of the U.S., the Federal Government is a government of limited powers. The Congress, being the legislative branch of the Federal Government, is also clothed with limited legislative powers. In orders, however, to carry its legislative powers into effect successfully, it has always been held that Congress has the power to secure information concerning matters in respect to which it has the authority to legislate. In fact, it would seem that Congress must secure information in order to legislate intelligently. Beyond that, the Congress has the right secure information in order to determine whether or not to legislate on a particular subject matter on which it is within its constitutional powers to act. (Emphasis Supplied)

The even broader scope of legislative investigation in the Philippine context is explained by a member of the Constitutional Commission.

· The requirement that the investigation be "in aid of legislation" is an essential element for establishing the jurisdiction of the legislative body. It is, however, a requirement which is not difficult to satisfy becuase, unlike in the United States, where legislative power is shared by the United State Congress and the states legislatures, the totality of legislative power is possessed by the Congress nad its legislative field is well-nigh unlimited. "It would be difficult to define any limits by which the subject matter of its inquiry can be bounded." (Supra, at p. 46) Moreover, it is not necessary that every question propounded to a witness must be material to a proposed legislation. "In other words, the materiality of the question must be determined by its direct relation to the subject of the inquiry and not by its indirect relation to any proposed or possible legislation. The reason is that the necessity or lack of necessity for legislative action and form and character of the action itself are determined by the sum total of the information to be gathered as a result of the investigation, and not by a fraction to be gathered as a result of the investigation, and not by a fraction of such information elicited from a single question. (Id., at 48)

· On the basis of this interpretation of what "in aid of legislation" means, it can readily be seen that the phrase contributes practically nothing towards protecting witnesses. Practically any investigation can be in aid of the broad legislative power of Congress. The limitation, therefore cannot effectively prevent what Kilbourn v. Thompson (103 U.S. 168 [1880]) characterized as "roving commissions" or what Watkins v. United States (354 U.S. 178, 200 [1957] labeled as exposure for the sake of exposure. (Bernas, Constitution of the Republic of the Philippines, Vol. II, 1st Ed., page 132).

Applying the above principles to the present casem, it can readily be seen that the Senate is investigating an area where it may potentially legislate. The ease with which relatives of the President were allegedly able to amass great wealth under the past regime is a legitimate area of inquiry. And if we tack on the alleged attempts o f relatives of a succeeding adminsitration to duplicate the feat, the need for remedial legislation becomes more imperative.

Our second area of concern is congressional encroachment on matters reserved by the Constitution for the Executive or the Judiciary.

The majority opinion cites the decision in Angara v. Electoral Commission, 63 Phil. 139 (1936) explaining our power to determined conflicting claims of authority. It is indeed the function on this Court to allocate constitutional boundaries but in the exercise of this "umpire" function we have to take care that we do not keep any of the three great departments of government from performing functions peculiar to each department or specifically vested to it sby the Constitution. When a power is vested, ti carries with is everything legitimately neede to exercise it.

It may be argued that the investigation into the Romualdez Lopa transactions is more appropriate for the Department of Justice and the judiciary. This argument misses the point of legislative inquiry.

The prosecution of offenders by the Department of Justice or the Ombudsman and their trial before courts of justice is intended to punish persons who violate the law. Legislative investigations go further. The aim is to arrive at policy determinations which may or may not be enacted into legislation. Referral to prosecutors or courts of justice is an added bonus. For sure, the Senate Blue Ribbon Committee knows it cannot sentence any offender, no matter how overwhelming the proof

that it may gatherm to a jail term. But certainly, the Committee can recommend to Congress how the situation which enabled get-rich-quick schemes to flourish may be remedied. The fact that the subject of the investigation may currently be undergoing trial does not restrict the power of Congress to investigate for its own purposes. The legislative purpose is distinctly different from the judicial purpose.

In Sinclair v. United States, 279 U.S. 263, 73 L ed. 692 (1928), leases of naval reservations to oil companies were investigated by the United States Senate. On a finding that certain leases were fraudulent, court action was recommended. In other words, court action on one hand and legislation on the other, are not mutually exclusive. They may complement each other.

· ... It may be conceded that Congress is without authority to compel disclosyres for the purpose of aiding the prosecution of pending suits; but the authority of that body, directly or through it Committees, to require pertinent disclosures in aid of its own consitutional power is not abridged because the information sought to be elicited may also be of use in such suits... It is plain that investigation of the matters involved in suits brought or to be commenced under the Senate resolution directing the institution of suits for the cancellation of the leases might directly aid in respect of legislative action... (Sinclair v. United States, Id.at page 698).

In United States v. Orman, 207 F. 2d Ed. 148 (1953), the court declared that it was pertinent for a legislative committee to seek facts indicating that a witness was linked to unlawful intestate gambling.

· The power of a congressional committee to investigate matters cannot be challenged on the ground that the Committee went beyond the scope of any contemplated legislative and assumed the functions of a grand jury. Whre the genral subject of investigation is one concerning which Congress can legislate, and the information sought might aid the congressional consideration, in such a situation a legitimate legislative purpose must be presumed...

I submit that the filing of indictments or informations or the trial of certain persons cannot, by themselves, half the intitiation or stop the progress of legislative investigations.

The other ground which I consider the more important one is where the legislative investigation violates the liberties of the witnesses.

The Constitution expressly provides that "the rights of persons appearing in or affected by such inquiries shall be respected.

It should be emphasized that the constitutional restriction does not call for the banning or prohibition of investigations where a violation of a basis rights is claimed. It only requires that in the course of the proceedings, the right of persons should be respected.

What the majority opinion mandates is a blanket prohibition against a witness testifying at all, simply because he is already facing charges before the Sandiganbayan. To my mind, the Consitution allows him to interpose objections whenever an incriminating question is posed or when he is compelled to reveal his ocurt defenses, but not ot refuse to take the witness stand completely.

Arnault v. Nazareno, supra, illustrates the reticence, with which the court views petitions to curtail legislative investigations even where an invocation of individual liberties is made.

In Arnault, the entire country already knew the name of the presidential realtive whom the Sentate was trying to link to the Tambobong-Buenavista estate anomalies. Still, the Court did not interfere when Arnault refused to answer specific questions directed at him and he was punished for hir refusal. The Court did not restrain the Senate when Arnault was sent o the national penitentiary for an indefinite visit until the name which the Senate wanted him to utter was extracted. Only when the imprisonment became ureasonably prolonged and the situation in Congress had changed was he released.

As pointed out by the respondents, not one question has been asked requiring an answer that would incriminate the petitioners. The allegation that their basic rights are vilolated is not only without basis but is also premature.

I agree with the respondents that the slae of 39 Romualdez corporations to Mr. Lopa is not a purely private transaction into which the Senate may not inquire. if this were so, much of the work of the Presidential Commission on Good Government (PCGG) as it seeks to recover illegally acquired wealth would be negated. Much of what PCGG is trying to recover is the product of arrangements which are not only private but also secret and hidden.

I therefore, vote to DISMISS the petition.

Narvasa, J., dissents.

CRUZ, J., dissenting:

I regret I am unable to give my concurrence, I do not agree that the investigation being conducted by the Blue Ribbon Committee is not in aid of legislation.

In Arnault v. Nazareno, 87 Phil. 29, this Court observed that "we are bound to presume that the action of the legislative body was with a legitimate object if it is capable of being so construed, and we have no right ot assume that the contrary was intended." (People ex rel. Mc Donald vs. Keeler, 99 N.Y. 463; 52 Am. Rep., 49; 2 N.E., 615, quoted with approval by the U.S. Supreme Court in McGrain vs. Daugherty, 273 U.S. 135). As far as I know, that is still the rule today.

More importantly, the presumption is supported by the established facts. The inquiry is sustainable as an implied of power the legislature and even as expressly limited by the Constitution.

The inquiry deals with alleged manipulations of public funds and illicit acquisitions of properties now being claimed by the PCGG for the Republic of the Philippines. The purpose of the Committee is to ascertain if and how such anomalies have been committed. It is settled that the legislature has a right to investigate the disposition of the public funds it has appropriated; indeed, "an inquiry into the expenditure of all public money is na indispensable duty of the legislature." Moreover, an investigation of a possible violation of a law may be useful in the drafting of amendatory legislation to correct or strengthen that law.

The ponencia quotes lengthily from Senator Enrile's speech and concludes that it "contained no suggestions of contemplated legislation; he merely called upon the Senate to look into a possible violation of section 5 of R.A. No. 3019." However, according to McGrain v. Daugherty, supra:

· Primarily, the purpose for which legislative inquiry and investigation is pursued is to serve as an aid in legislation. Through it, the legislature is able to obtain facts or data in aid fo proposed legislation. However, it is not necessary that the resolution ordering an investigation should in terms expressly state that the object of the inquiry is to obtain data in aid of proposed legislation. It is enough that such purpose appears from a consideration of the entire proceedings or one in which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit. An express avowal of the object would be better, but such is not indispensable. (Emphasis supplied).

The petitioner's contention that the questioned investigation would compel them to reveal their defense in the cases now pending against them in the Sandigangbayan is untenable. They know or should know that they cannot be compelled to answer incriminating questions. The case of Chavez v. Court of Appeals, 24 SCRA 663, where we held that an accused may refuse at the outset to take the stand on the ground that the questions to be put by the prosecutor will tend to incriminate him is, of course, not applicable to them. They are not facing criminal charges before the Blue Ribbon Committee. Like any ordinary witness, they can invoke the right against self-incrimination only when and as the incriminating question is propounded.

While it is true that the Court is now allowed more leeway in reviewing the traditionally political acts of the legislative and executive departments, the power must be exercised with the utmost circumspection lest we unduly trench on their prerogatives and disarrange the constitutional separation of powers. That power is available to us only if there is a clear showing of a grave abuse of discretion, which I do not see in the case at bar.

Guided by the presumption and the facts, I vote to DISMISS the petition.

Narvasa, J., dissents.

# Footnotes

· 1 Annex "A", Rollo, p. 38.

· 2 Annexes "B", "C" and "D", Rollo, pp. 98, 114 and 128.

· 3 Rollo, pp. 219-220.

· 4 Annex "E-1", Rollo, p. 143.

· 5 Annex "E", Rollo, p. 142.

· 6 Annex "H-1", Rollo, p. 162.

· 7 Annex "H-2", Rollo, p. 189.

· 8 Rollo, p. 264.

· 9 Ibid., p. 263.

· 10 Ibid., p. 284.

· 11 63 Phil. 139, 156, 157, 158-159.

· 12 Neptali A. Gonzales, et al. vs. Hon. Catalino Macaraig, Jr., et al., G.R. No. 87636, 19 November 1990, 191 SCRA 452, 463.

· 13 Section 1, Article VII of the 1987 Constitution provides:

· Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

· Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

· 14 In Arnault vs. Nazareno, 87 Phil. 29, this Court held that although there was no express provision in the 1935 Constitution giving such power to both houses of Congress, it was so incidental to the legislative function as to be implied.

· 15 This was taken from Section 12(2), Article VII of the 1973 Constitution.

· 16 No. L-3820, July 18, 1950, 87 Phil. 29.

· 17 Questions of privilege are those affecting the rights, privileges, reputation, conduct, decorum and dignity of the Senate or its Members as well as the integrity of its proceedings." (Sec. 8, Rule XXXIX, Rules of hte Senate.)

· 18 Annex 2, Rollo, p. 242.

· 19 Sec. 26, Article XVIII of the Constitution provides: The authority to issue sequestration or freeze orders under Proclamation No. 3, dated March 24, 1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than eighteen months after the retification of this Constitution. However, in the national interest, as certified by the President, the Congress may extend said period.

· 20 354 U.S. 178, 1 L. ed. 1273 (1957).

· 21 360 U.S. 109, 3 L ed. 2d 1115, S CT 1081 (1959).

· 22 Maurice A. Hutcheson vs. U.S., 369 US 599.

· 23 Watkins vs. US, 354 USS 178 citing US vs. Rumely, 345 US 41.

· 24 Sec. 17, Article III of the Constitution provides:

· No person shall be compelled to be a witness against himself.

· 25 G.R. No. L-29169, August 19, 1968, 24 SCRA 663.

· 26 G.R. Nos. 71208-09, August 30, 1985, 138 SCRA 294.


EN BANC

G.R. No. 169777* April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,

vs.EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the Philippines, Respondents.

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

G.R. No. 169659 April 20, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL VIRADOR, COURAGE represented by FERDINAND GAITE, and COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL) represented by ATTY. REMEDIOS BALBIN, Petitioners, vs.EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, Respondent.

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

G.R. No. 169660 April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner, vs.EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of Staff, Respondents.

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

G.R. No. 169667 April 20, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, vs.HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.

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

G.R. No. 169834 April 20, 2006

PDP- LABAN, Petitioner,

vs.EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

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

G.R. No. 171246 April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE PHILIPPINES, Petitioners, vs.HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

D E C I S I O N

CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of the public interest. Explaining the reason for vesting executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said: "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished."1

History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence, the necessity to guard it zealously.

The present consolidated petitions for certiorari and prohibition proffer that the President has abused such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray for its declaration as null and void for being unconstitutional.

In resolving the controversy, this Court shall proceed with the recognition that the issuance under review has come from a co-equal branch of government, which thus entitles it to a strong presumption of constitutionality. Once the challenged order is found to be indeed violative of the Constitution, it is duty-bound to declare it so. For the Constitution, being the highest expression of the sovereign will of the Filipino people, must prevail over any issuance of the government that contravenes its mandates.

In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the executive department, bureaus, and offices including those employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group (hereinafter North Rail Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project.

The Senate Committee on National Defense and Security likewise issued invitations2 dated September 22, 2005 to the following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy

Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by Senator Biazon Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines.

Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its postponement "due to a pressing operational situation that demands [his utmost personal attention" while "some of the invited AFP officers are currently attending to other urgent operational matters."

On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R. Ermita a letter4 dated September 27, 2005 "respectfully request[ing] for the postponement of the hearing [regarding the NorthRail project] to which various officials of the Executive Department have been invited" in order to "afford said officials ample time and opportunity to study and prepare for the various issues so that they may better enlighten the Senate Committee on its investigation."

Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are unable to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations and arrangements as well as notices to all resource persons were completed [the previous] week."

Senate President Drilon likewise received on September 28, 2005 a letter6 from the President of the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be postponed or cancelled until a copy of the report of the UP Law Center on the contract agreements relative to the project had been secured.

On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately. The salient provisions of the Order are as follows:

SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege.

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);

Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).

Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).

(b) Who are covered. The following are covered by this executive order:

Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege;

Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege;

Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege;

Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and

Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied)

Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a copy of E.O. 464, and another letter8 informing him "that officials of the Executive Department invited to appear at the meeting [regarding the NorthRail project] will not be able to attend the same without the consent of the President, pursuant to [E.O. 464]" and that "said officials have not secured the required consent from the President." On even date which was also the scheduled date of the hearing on the alleged wiretapping, Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the Committee

on National Defense and Security, informing him "that per instruction of [President Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is authorized to appear before any Senate or Congressional hearings without seeking a written approval from the President" and "that no approval has been granted by the President to any AFP officer to appear before the public hearing of the Senate Committee on National Defense and Security scheduled [on] 28 September 2005."

Despite the communications received from Executive Secretary Ermita and Gen. Senga, the investigation scheduled by the Committee on National Defense and Security pushed through, with only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending.

For defying President Arroyo 抯 order barring military personnel from testifying before legislative inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military posts and were made to face court martial proceedings.

As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in response to the invitations sent to the following government officials: Light Railway Transit Authority Administrator Melquiades Robles, Metro Rail Transit Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza, Philippine National Railways General Manager Jose Serase II, Monetary Board Member Juanita Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets likewise citing E.O. 464.11

On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for certiorari and prohibition, were filed before this Court challenging the constitutionality of E.O. 464.

In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of government employees, and Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion of justice, democracy and peace, all claiming to have standing to file the suit because of the transcendental importance of the issues they posed, pray, in their petition that E.O. 464 be declared null and void for being unconstitutional; that respondent Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear before Congress due to congressional summons. Additionally, petitioners claim that E.O. 464 infringes on their rights and impedes them from fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its right as a political party entitled to participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws; Courage alleges that the tenure of its members in public office is predicated on, and threatened by, their submission to the requirements of E.O. 464 should they be summoned by Congress; and CODAL alleges that its members have a sworn duty to uphold the rule of law, and their rights to information and to transparent governance are threatened by the imposition of E.O. 464.

In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen, taxpayer and law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null and void for being unconstitutional.

In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of 17 legal resource non-governmental organizations engaged in developmental lawyering and work with the poor and marginalized sectors in different parts of the country, and as an organization of citizens of

the Philippines and a part of the general public, it has legal standing to institute the petition to enforce its constitutional right to information on matters of public concern, a right which was denied to the public by E.O. 464,13 prays, that said order be declared null and void for being unconstitutional and that respondent Executive Secretary Ermita be ordered to cease from implementing it.

On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained the same with its continued enforcement since it directly interferes with and impedes the valid exercise of the Senate 抯 powers and functions and conceals information of great public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional.

On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the Philippine Senate and House of Representatives, filed a similar petition for certiorari and prohibition, docketed as G.R. No. 169834, alleging that it is affected by the challenged E.O. 464 because it hampers its legislative agenda to be implemented through its members in Congress, particularly in the conduct of inquiries in aid of legislation and transcendental issues need to be resolved to avert a constitutional crisis between the executive and legislative branches of the government.

Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga for him and other military officers to attend the hearing on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied, however, by letter15 dated February 8, 2006, that "[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a clearance from the President to allow [them] to appear before the public hearing" and that "they will attend once [their] request is approved by the President." As none of those invited appeared, the hearing on February 10, 2006 was cancelled.16

In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under the Ginintuang Masaganang Ani program of the Department of Agriculture (DA), several Cabinet officials were invited to the hearings scheduled on October 5 and 26, November 24 and December 12, 2005 but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana,17 and those from the Department of Budget and Management18 having invoked E.O. 464.

In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department of Interior and Local Government Undersecretary Marius P. Corpus21 communicated their inability to attend due to lack of appropriate clearance from the President pursuant to E.O. 464. During the February 13, 2005 budget hearing, however, Secretary Bunye was allowed to attend by Executive Secretary Ermita.

On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as the official organization of all Philippine lawyers, all invoking their constitutional right to be informed on matters of public interest, filed their petition for certiorari and prohibition, docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and void.

All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from implementing, enforcing, and observing E.O. 464.

In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues

were ventilated: (1) whether respondents committed grave abuse of discretion in implementing E.O. 464 prior to its publication in the Official Gazette or in a newspaper of general circulation; and (2) whether E.O. 464 violates the following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or controversy that calls for judicial review was not taken up; instead, the parties were instructed to discuss it in their respective memoranda.

After the conclusion of the oral arguments, the parties were directed to submit their respective memoranda, paying particular attention to the following propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming that it is not, it is unconstitutional as applied in four instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity of the ISAFP; and (d) the investigation on the Venable contract.22

Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006, while those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not file any memorandum.

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file memorandum27 was granted, subsequently filed a manifestation28 dated March 14, 2006 that it would no longer file its memorandum in the interest of having the issues resolved soonest, prompting this Court to issue a Resolution reprimanding them.29

Petitioners submit that E.O. 464 violates the following constitutional provisions:

· Art. VI, Sec. 2130



· Art. XI, Sec. 133

· Art. III, Sec. 734

· Art. III, Sec. 435

· Art. XIII, Sec. 16 36

· Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated memorandum38 on March 13, 2006 for the dismissal of the petitions for lack of merit.

The Court synthesizes the issues to be resolved as follows:

· 1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;

· 2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and

· 3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to its publication in a newspaper of general circulation.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites for a valid exercise of the Court 抯 power of judicial review are present is in order.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have standing to challenge the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.39

Except with respect to the requisites of standing and existence of an actual case or controversy where the disagreement between the parties lies, discussion of the rest of the requisites shall be omitted.

Standing

Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660 and 169667 make it clear that they, adverting to the non-appearance of several officials of the executive department in the investigations called by the different committees of the Senate, were brought to vindicate the constitutional duty of the Senate or its different committees to conduct inquiry in aid of legislation or in the exercise of its oversight functions. They maintain that Representatives Ocampo et al. have not shown any specific prerogative, power, and privilege of the House of Representatives which had been effectively impaired by E.O. 464, there being no mention of any investigation called by the House of Representatives or any of its committees which was aborted due to the implementation of E.O. 464.

As for Bayan Muna 抯 alleged interest as a party-list representing the marginalized and underrepresented, and that of the other petitioner groups and individuals who profess to have standing as advocates and defenders of the Constitution, respondents contend that such interest falls short of that required to confer standing on them as parties "injured-in-fact."40

Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a taxpayer for the implementation of E.O. 464 does not involve the exercise of taxing or spending power.41

With regard to the petition filed by the Senate, respondents argue that in the absence of a personal or direct injury by reason of the issuance of E.O. 464, the Senate and its individual members are not the proper parties to assail the constitutionality of E.O. 464.

Invoking this Court 抯 ruling in National Economic Protectionism Association v. Ongpin42 and Valmonte v. Philippine Charity Sweepstakes Office,43 respondents assert that to be considered a proper party, one must have a personal and substantial interest in the case, such that he has sustained or will sustain direct injury due to the enforcement of E.O. 464.44

That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-making in a democratic system, but more especially for sound legislation45 is not disputed. E.O. 464, however, allegedly stifles the ability of the members of Congress to access information that is crucial to law-making.46 Verily, the Senate, including its individual members, has a substantial and direct interest over the outcome of the controversy and is the proper party to assail the constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative, powers and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim infringes their prerogatives as legislators.47

In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are allowed to sue to question the constitutionality of E.O. 464, the absence of any claim that an investigation called by the House of Representatives or any of its committees was aborted due to the implementation of E.O. 464 notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws.

The national political party, Bayan Muna, likewise meets the standing requirement as it obtained three seats in the House of Representatives in the 2004 elections and is, therefore, entitled to participate in the legislative process consonant with the declared policy underlying the party list system of affording citizens belonging to marginalized and underrepresented sectors, organizations and parties who lack well-defined political constituencies to contribute to the formulation and enactment of legislation that will benefit the nation.48

As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing on the standing of their co-petitioners Courage and Codal is rendered unnecessary.49

In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and the incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer members,50

invoke their constitutional right to information on matters of public concern, asserting that the right to information, curtailed and violated by E.O. 464, is essential to the effective exercise of other constitutional rights51 and to the maintenance of the balance of power among the three branches of the government through the principle of checks and balances.52

It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v. House of Representatives,53 this Court held that when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest.

As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the transcendental issues raised in its petition which this Court needs to resolve in order to avert a constitutional crisis. For it to be accorded standing on the ground of transcendental importance, however, it must establish (1) the character of the funds (that it is public) or other assets involved in the case, (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government, and (3) the lack of any party with a more direct and specific interest in raising the questions being raised.54 The first and last determinants not being present as no public funds or assets are involved and petitioners in G.R. Nos. 169777 and 169659 have direct and specific interests in the resolution of the controversy, petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464 hampers its legislative agenda is vague and uncertain, and at best is only a "generalized interest" which it shares with the rest of the political parties. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution.55 In fine, PDP-Laban抯 alleged interest as a political party does not suffice to clothe it with legal standing.

Actual Case or Controversy

Petitioners assert that an actual case exists, they citing the absence of the executive officials invited by the Senate to its hearings after the issuance of E.O. 464, particularly those on the NorthRail project and the wiretapping controversy.

Respondents counter that there is no case or controversy, there being no showing that President Arroyo has actually withheld her consent or prohibited the appearance of the invited officials.56 These officials, they claim, merely communicated to the Senate that they have not yet secured the consent of the President, not that the President prohibited their attendance.57 Specifically with regard to the AFP officers who did not attend the hearing on September 28, 2005, respondents claim that the instruction not to attend without the President 抯 consent was based on its role as Commander-in-Chief of the Armed Forces, not on E.O. 464.

Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the President will abuse its power of preventing the appearance of officials before Congress, and that such apprehension is not sufficient for challenging the validity of E.O. 464.

The Court finds respondentsassertion that the President has not withheld her consent or prohibited the appearance of the officials concerned immaterial in determining the existence of an actual case or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a deliberate withholding of consent or an express prohibition issuing from the President in order to bar officials from appearing before Congress.

As the implementation of the challenged order has already resulted in the absence of officials invited to the hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further event before considering the present case ripe for adjudication. Indeed, it would be sheer abandonment of duty if this Court would now refrain from passing on the constitutionality of E.O. 464.

Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress of the information in the possession of these officials. To resolve the question of whether such withholding of information violates the Constitution, consideration of the general power of Congress to obtain information, otherwise known as the power of inquiry, is in order.

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads:

SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. (Underscoring supplied)

This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it vests the power of inquiry in the unicameral legislature established therein the Batasang Pambansa and its committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,58 a case decided in 1950 under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to answer the questions of the senators on an important point, he was, by resolution of the Senate, detained for contempt. Upholding the Senate 抯 power to punish Arnault for contempt, this Court held:

Although there is no provision in the Constitution expressly investing either House of Congress with

power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which is not infrequently true recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed.59 . . . (Emphasis and underscoring supplied)

That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case. The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate.60 The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation.

Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a proper exercise of the power of inquiry. Besides being related to the expenditure of public funds of which Congress is the guardian, the transaction, the Court held, "also involved government agencies created by Congress and officers whose positions it is within the power of Congress to regulate or even abolish."

Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold that the power of inquiry does not extend to executive officials who are the most familiar with and informed on executive operations.

As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof.

As evidenced by the American experience during the so-called "McCarthy era," however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Court 抯 certiorari powers under Section 1, Article VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or House 抯 duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if they belong to the executive branch. Nonetheless, there may be exceptional circumstances, none appearing to obtain at present, wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting in palpable violations of the rights guaranteed to members of the executive department under the Bill of Rights. In such instances, depending on the particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction.

Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of "executive privilege." Since this term figures prominently in the challenged order, it being mentioned in its provisions, its preambular clauses,62 and in its very title, a discussion of executive privilege is crucial for determining the constitutionality of E.O. 464.

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution.63 Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States.

Schwartz defines executive privilege as "the power of the Government to withhold information from the public, the courts, and the Congress."64 Similarly, Rozell defines it as "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public."65

Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of varying kinds.67 Tribe, in fact, comments that while it is customary to employ the phrase "executive privilege," it may be more accurate to speak of executive privileges "since presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations."

One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informer 抯 privilege, or the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. 68

Tribe 抯 comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our government. Courts ruled early that the executive had a right to withhold documents that might reveal military or state secrets. The courts have also granted the executive a right to withhold the identity of government informers in some circumstances and a qualified right to withhold information related to pending investigations. x x x"69

(Emphasis and underscoring supplied)

The entry in Black 抯 Law Dictionary on "executive privilege" is similarly instructive regarding the

scope of the doctrine.

This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations, and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executivedomestic decisional and policy making functions, that is, those documents reflecting the frank expression necessary in intra-governmental advisory and deliberative communications.70 (Emphasis and underscoring supplied)

That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting.71

The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In issue in that case was the validity of President Nixon 抯 claim of executive privilege against a subpoena issued by a district court requiring the production of certain tapes and documents relating to the Watergate investigations. The claim of privilege was based on the President 抯 general interest in the confidentiality of his conversations and correspondence. The U.S. Court held that while there is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a President 抯 powers. The Court, nonetheless, rejected the President 抯 claim of privilege, ruling that the privilege must be balanced against the public interest in the fair administration of criminal justice. Notably, the Court was careful to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against congressional demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress are rare.73 Despite frequent assertion of the privilege to deny information to Congress, beginning with President Washington 抯 refusal to turn over treaty negotiation records to the House of Representatives, the U.S. Supreme Court has never adjudicated the issue.74 However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the President 抯 privilege over his conversations against a congressional subpoena.75 Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest protected by the claim of privilege against the interest that would be served by disclosure to the Committee. Ruling that the balance favored the President, the Court declined to enforce the subpoena. 76

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.77 Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not involve, as expressly stated in the decision, the right of the people to information. 78

Nonetheless, the Court recognized that there are certain types of information which the government may withhold from the public, thus acknowledging, in substance if not in name, that executive privilege may be claimed against citizensdemands for information.

In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters."80 The same case held that closed-door Cabinet meetings are also a recognized limitation on the right to information.

Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does not extend to matters recognized as "privileged information under the separation of powers,"82 by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. It also held that information on military and diplomatic secrets and those affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused were exempted from the right to information.

From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure.

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of the President prior to appearing before Congress. There are significant differences between the two provisions, however, which constrain this Court to discuss the validity of these provisions separately.

Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by any official whether they are covered by E.O. 464. The President herself has, through the challenged order, made the determination that they are. Further, unlike also Section 3, the coverage of department heads under Section 1 is not made to depend on the department headspossession of any information which might be covered by executive privilege. In fact, in marked contrast to Section 3 vis-vis Section 2, there is no reference to executive privilege at all. Rather, the required prior consent under Section 1 is grounded on Article VI, Section 22 of the Constitution on what has been referred to as the question hour.

SECTION 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of Article VI. Section 22 which provides for the question hour must be interpreted vis-vis Section 21 which provides for the power of either House of Congress to "conduct inquiries in aid of legislation." As the following excerpt of the deliberations of the Constitutional Commission shows, the framers were aware that these two provisions involved distinct functions of Congress.

MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour] yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear before the House of Representatives or before the Senate. I have a particular problem in this regard, Madam President, because in our experience in the Regular Batasang Pambansa as the Gentleman himself has experienced in the interim Batasang Pambansa one of the most competent inputs that we can put in our committee deliberations, either in aid of legislation or in congressional investigations, is the testimonies of Cabinet ministers. We usually invite them, but if they do not come and it is a congressional investigation, we usually issue subpoenas.

I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the Cabinet ministers may refuse to come to the House of Representatives or the Senate [when requested under Section 22] does not mean that they need not come when they are invited or subpoenaed by the committee of either House when it comes to inquiries in aid of legislation or congressional investigation. According to Commissioner Suarez, that is allowed and their presence can be had under Section 21. Does the gentleman confirm this, Madam President?

MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of legislation, under which anybody for that matter, may be summoned and if he refuses, he can be held in contempt of the House.83 (Emphasis and underscoring supplied)

A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. The reference to Commissioner Suarez bears noting, he being one of the proponents of the amendment to make the appearance of department heads discretionary in the question hour.

So clearly was this distinction conveyed to the members of the Commission that the Committee on Style, precisely in recognition of this distinction, later moved the provision on question hour from its original position as Section 20 in the original draft down to Section 31, far from the provision on inquiries in aid of legislation. This gave rise to the following exchange during the deliberations:

MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr. Presiding Officer, to the Article on Legislative and may I request the chairperson of the Legislative Department, Commissioner Davide, to give his reaction.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|avvphi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I propose that instead of putting it as Section 31, it should follow Legislative Inquiries.

THE PRESIDING OFFICER. What does the committee say?

MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.

MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in terms of its own lawmaking; whereas, a Question Hour is not actually a power in terms of its own lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put Question Hour as Section 31. I hope Commissioner Davide will consider this.

MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a complement to or a supplement of the Legislative Inquiry. The appearance of the members of Cabinet would be very, very essential not only in the application of check and balance but also, in effect, in aid of legislation.

MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of Commissioner Davide. In other words, we are accepting that and so this Section 31 would now become Section 22. Would it be, Commissioner Davide?

MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong proceeded from the same assumption that these provisions pertained to two different functions of the legislature. Both Commissioners understood that the power to conduct inquiries in aid of legislation is different from the power to conduct inquiries during the question hour. Commissioner Davide 抯 only concern was that the two provisions on these distinct powers be placed closely together, they being complementary to each other. Neither Commissioner considered them as identical functions of Congress.

The foregoing opinion was not the two Commissionersalone. From the above-quoted exchange, Commissioner Maambong 抯 committee the Committee on Style shared the view that the two provisions reflected distinct functions of Congress. Commissioner Davide, on the other hand, was speaking in his capacity as Chairman of the Committee on the Legislative Department. His views may thus be presumed as representing that of his Committee.

In the context of a parliamentary system of government, the "question hour" has a definite meaning. It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts and the operation of the government,85 corresponding to what is known in Britain as the question period. There was a specific provision for a question hour in the 1973 Constitution86 which made the appearance of ministers mandatory. The same perfectly conformed to the parliamentary system established by that Constitution, where the ministers are also members of the legislature and are directly accountable to it.

An essential feature of the parliamentary system of government is the immediate accountability of the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the National Assembly for the program of government and shall determine the guidelines of national policy. Unlike in the presidential system where the tenure of office of all elected officials cannot be terminated before their term expired, the Prime Minister and the Cabinet remain in office only as long as they enjoy the confidence of the National Assembly. The moment this confidence is lost the Prime Minister and the Cabinet may be changed.87

The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour in the present Constitution so as to conform more fully to a system of separation of

powers.88 To that extent, the question hour, as it is presently understood in this jurisdiction, departs from the question period of the parliamentary system. That department heads may not be required to appear in a question hour does not, however, mean that the legislature is rendered powerless to elicit information from them in all circumstances. In fact, in light of the absence of a mandatory question period, the need to enforce Congressright to executive information in the performance of its legislative function becomes more imperative. As Schwartz observes:

Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that the Congress has the right to obtain information from any source even from officials of departments and agencies in the executive branch. In the United States there is, unlike the situation which prevails in a parliamentary system such as that in Britain, a clear separation between the legislative and executive branches. It is this very separation that makes the congressional right to obtain information from the executive so essential, if the functions of the Congress as the elected representatives of the people are adequately to be carried out. The absence of close rapport between the legislative and executive branches in this country, comparable to those which exist under a parliamentary system, and the nonexistence in the Congress of an institution such as the British question period have perforce made reliance by the Congress upon its right to obtain information from the executive essential, if it is intelligently to perform its legislative tasks. Unless the Congress possesses the right to obtain executive information, its power of oversight of administration in a system such as ours becomes a power devoid of most of its practical content, since it depends for its effectiveness solely upon information parceled out ex gratia by the executive.89 (Emphasis and underscoring supplied)

Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congressoversight function.

When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory for the same reasons stated in Arnault.90

In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission.

Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information.

When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on her being the highest official of the executive branch, and the due respect accorded to a co-equal branch of government which is sanctioned by a long-standing custom.

By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis not only of separation of powers but also on the fiscal autonomy and the constitutional independence of the judiciary. This point is not in dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief Justice.

Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now proceeds to pass on the constitutionality of Section 1 of E.O. 464.

Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in aid of legislation, must be construed as limited in its application to appearances of department heads in the question hour contemplated in the provision of said Section 22 of Article VI. The reading is dictated by the basic rule of construction that issuances must be interpreted, as much as possible, in a way that will render it constitutional.

The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the question hour, is valid on its face. For under Section 22, Article VI of the Constitution, the appearance of department heads in the question hour is discretionary on their part.

Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation. Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary.

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and all senior national security officials who, in the judgment of the heads of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are "covered by the executive privilege."

The enumeration also includes such other officers as may be determined by the President. Given the title of Section 2 "Nature, Scope and Coverage of Executive Privilege" it is evident that under the rule of ejusdem generis, the determination by the President under this provision is intended to be based on a similar finding of coverage under executive privilege.

En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to specific categories of information and not to categories of persons.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive privilege, the reference to persons being "covered by the executive privilege" may be read as an abbreviated way of saying that the person is in possession of information which is, in the judgment of the head of office concerned, privileged as defined in Section 2(a). The Court shall thus proceed on the assumption that this is the intention of the challenged order.

Upon a determination by the designated head of office or by the President that an official is "covered by the executive privilege," such official is subjected to the requirement that he first secure the consent of the President prior to appearing before Congress. This requirement effectively bars the appearance of the official concerned unless the same is permitted by the President. The proviso allowing the President to give its consent means nothing more than that the President may reverse a prohibition which already exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the President under E.O. 464, or by the President herself, that such official is in possession of information that is covered by executive privilege. This determination then becomes the basis for the official 抯 not showing up in the legislative investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be construed as a declaration to Congress that the President, or a head of office authorized by the President, has determined that the requested information is privileged, and that the President has not reversed such determination. Such declaration, however, even without mentioning the term "executive privilege," amounts to an implied claim that the information is being withheld by the executive branch, by authority of the President, on the basis of executive privilege. Verily, there is an implied claim of privilege.

The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads:

In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be informed that officials of the Executive Department invited to appear at the meeting will not be able to attend the same without the consent of the President, pursuant to Executive Order No. 464 (s. 2005), entitled "Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public Officials Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes". Said officials have not secured the required consent from the President. (Underscoring supplied)

The letter does not explicitly invoke executive privilege or that the matter on which these officials are being requested to be resource persons falls under the recognized grounds of the privilege to justify their absence. Nor does it expressly state that in view of the lack of consent from the President under E.O. 464, they cannot attend the hearing.

Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the order means that a determination has been made, by the designated head of office or the President, that the invited official possesses information that is covered by executive privilege. Thus, although it is not stated in the letter that such determination has been made, the same must be deemed implied. Respecting the statement that the invited officials have not secured the consent of the President, it only means that the President has not reversed the standing prohibition against their appearance before Congress.

Inevitably, Executive Secretary Ermita 抯 letter leads to the conclusion that the executive branch, either through the President or the heads of offices authorized under E.O. 464, has made a determination that the information required by the Senate is privileged, and that, at the time of writing, there has been no contrary pronouncement from the President. In fine, an implied claim of privilege has been made by the executive.

While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in the possession of the executive may validly be claimed as privileged even against Congress. Thus, the case holds:

There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of powers. The information does not cover Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations

of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the instant case.91 (Emphasis and underscoring supplied)

Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions claims of executive privilege. This Court must look further and assess the claim of privilege authorized by the Order to determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis, examining the ground invoked therefor and the particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated by the letter of respondent Executive Secretary quoted above, the implied claim authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.). While Section 2(a) enumerates the types of information that are covered by the privilege under the challenged order, Congress is left to speculate as to which among them is being referred to by the executive. The enumeration is not even intended to be comprehensive, but a mere statement of what is included in the phrase "confidential or classified information between the President and the public officers covered by this executive order."

Certainly, Congress has the right to know why the executive considers the requested information privileged. It does not suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and that the President has not overturned that determination. Such declaration leaves Congress in the dark on how the requested information could be classified as privileged. That the message is couched in terms that, on first impression, do not seem like a claim of privilege only makes it more pernicious. It threatens to make Congress doubly blind to the question of why the executive branch is not providing it with the information that it has requested.

A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.92 (Underscoring supplied)

Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected.93 These, in substance, were the same criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v. Vasquez94 and, more in point, against a committee of the Senate in Senate Select Committee on Presidential Campaign Activities v. Nixon.95

A.O. Smith v. Federal Trade Commission is enlightening:

[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure impossible, thereby preventing the Court from balancing such harm against plaintiffsneeds to

determine whether to override any claims of privilege.96 (Underscoring supplied)

And so is U.S. v. Article of Drug:97

On the present state of the record, this Court is not called upon to perform this balancing operation. In stating its objection to claimant 抯 interrogatories, government asserts, and nothing more, that the disclosures sought by claimant would inhibit the free expression of opinion that non-disclosure is designed to protect. The government has not shown nor even alleged that those who evaluated claimant

抯 product were involved in internal policymaking, generally, or in this particular instance. Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is based must be established. To find these interrogatories objectionable, this Court would have to assume that the evaluation and classification of claimant 抯 products was a matter of internal policy formulation, an assumption in which this Court is unwilling to indulge sua sponte.98 (Emphasis and underscoring supplied)

Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide 憄recise and certainreasons for preserving the confidentiality of requested information."

Black v. Sheraton Corp. of America100 amplifies, thus:

A formal and proper claim of executive privilege requires a specific designation and description of the documents within its scope as well as precise and certain reasons for preserving their confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of disclosure of the very thing sought to be protected. As the affidavit now stands, the Court has little more than its sua sponte speculation with which to weigh the applicability of the claim. An improperly asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a claim was made by the proper executive as Reynolds requires, the Court can not recognize the claim in the instant case because it is legally insufficient to allow the Court to make a just and reasonable determination as to its applicability. To recognize such a broad claim in which the Defendant has given no precise or compelling reasons to shield these documents from outside scrutiny, would make a farce of the whole procedure.101 (Emphasis and underscoring supplied)

Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S:102

We think the Court 抯 decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to these questions. For it is as true here as it was there, that 慽 f (petitioner) had legitimate reasons for failing to produce the records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have required that (he) state (his) reasons for noncompliance upon the return of the writ. Such a statement would have given the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to obtain the records. 慣 o deny the Committee the opportunity to consider the objection or remedy is in itself a contempt of its authority and an obstruction of its processes. His failure to make any such statement was "a patent evasion of the duty of one summoned to produce papers before a congressional committee[, and] cannot be condoned." (Emphasis and underscoring supplied; citations omitted)

Upon the other hand, Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect.103

A useful analogy in determining the requisite degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v. U.S.104 declares:

The witness is not exonerated from answering merely because he declares that in so doing he would

incriminate himself his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, and to require him to answer if 慽 t clearly appears to the court that he is mistaken.However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." x x x (Emphasis and underscoring supplied)

The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled with an announcement that the President has not given her consent. It is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case. It severely frustrates the power of inquiry of Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the other branches of government. It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of executive privilege.

Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of the United States where, so it claims, only the President can assert executive privilege to withhold information from Congress.

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged, such determination is presumed to bear the President 抯 authority and has the effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch,105 or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities.106 The doctrine of executive privilege is thus premised on the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of the President," which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.

It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance.

The Court notes that one of the expressed purposes for requiring officials to secure the consent of the President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials appearing in inquiries in aid of legislation." That such rights must indeed be respected by Congress is an echo from Article VI Section 21 of the Constitution mandating that "[t]he rights of persons appearing in or affected by such inquiries shall be respected."

In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied claims of executive privilege, for which reason it must be invalidated. That such authorization is partly motivated by the need to ensure respect for such officials does not change the infirm nature of the authorization itself.

Right to Information

E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is not merely the legislative power of inquiry, but the right of the people to information.

There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress and not to an individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information.

To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:

It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people 抯 will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit.107 (Emphasis and underscoring supplied)

The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense explained above, just as direct as its violation of the legislature 抯 power of inquiry.

Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is exempt from the need for publication. On the need for publishing even those statutes that do not directly apply to people in general, Ta馻 da v. Tuvera states:

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 courts of justice.108 (Emphasis and underscoring supplied)

Although the above statement was made in reference to statutes, logic dictates that the challenged order must be covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people to information on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may question before this Court. Due process thus requires that the people should have been apprised of this issuance before it was implemented.

Conclusion

Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must be respected.

The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. That is impermissible. For

[w]hat republican theory did accomplish厀 as to reverse the old presumption in favor of secrecy, based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on the doctrine of popular sovereignty. (Underscoring supplied)109

Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations of government, but we shall have given up something of much greater value our right as a people to take part in government.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive

Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes," are declared VOID. Sections 1 and 2(a) are, however, VALID.

SO ORDERED.

CONCHITA CARPIO MORALES Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBANChief Justice

(ON LEAVE)REYNATO S. PUNO

Associate JusticeCONSUELO YNARES- SANTIAGO

Asscociate JusticeLEONARDO A. QUISUMBINGAssociate JusticeANGELINA SANDOVAL-GUTIERREZ

Asscociate JusticeANTONIO T. CARPIOAssociate JusticeMA. ALICIA AUSTRIA-MARTINEZ

Asscociate JusticeRENATO C. CORONAAssociate JusticeADOLFO S. AZCUNA

Asscociate JusticeROMEO J. CALLEJO, SR.Associate JusticeDANTE O. TINGA

Asscociate JusticeMINITA V. CHICO-NAZARIOAssociate JusticeCANCIO C. GARCIA

Asscociate JusticePRESBITERO J. VELASCO, JR.Associate Justice

C E R T I F I C A T I O N

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Resolution were reached in consultation before the case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN Chief Justice

Footnotes

· * Henceforth, in consolidated petitions which assail the validity or constitutionality of an issuance of a government official or agency, the petitioner which is the most directly affected by the issuance shall be first in the order of enumeration of the titles of the petitions irrespective of their docket numbers or dates of filing.

· ** On Leave.

· 1 Hamilton, The Federalist No. 70.

· 2 Annexes "J-2" to "J-7," rollo (G.R. No. 169777), pp. 72-77.

· 3 Annex "G," id. at 58.

· 4 Annex "B," id. at 52.

· 5 Annex "C," id. at 53.

· 6 Annex "D," id. at 54-55.

· 7 Annex "A," id. at 48-51.

· 8 Annex "F," id. at 57.

· 9 Annex "H," id. at 59.

· 10 Rollo (G.R. No. 169777), p. 379.

· 11 Ibid.

· 12 The petitioner names the following organizations as members: Albert Schweitzer Association, Philippines, Inc. (ASAP), Alternative Law Research and Development Center, Inc. (ALTERLAW), Ateneo Human Rights Center (AHRC), Balay Alternative Legal Advocates for Development in Mindanaw, Inc (BALAOD Mindanaw), Children 抯 Legal Bureau (CLB), Inc., Environment Legal Assistance Center (ELAC), Free Rehabilitation, Economic, Education and Legal Assistance Volunteers Association, Inc. (FREELAVA), Kaisahan Tungo sa Kaunlaran ng Kanayunan at Repormang Pansakahan (KAISAHAN), Legal Rights and Natural Resources Center-Kasama sa Kalikasan/Friends of the Earth-Philippines, Inc. (LRC-LSK/FOEI-Phils.), Paglilingkod Batas Pangkapatiran Foundation (PBPF), Participatory Research Organization of Communities and Education Towards Struggle for Self-Reliance (PROCESS) Foundation-PANAY, Inc., Pilipina Legal Resources Center (PLRC), Sentro ng Alternatibong Lingap Panligal (SALIGAN), Tanggapang Panligal ng Katutubong Pilipino (PANLIPI), Tanggol Kalikasan (TK), Women 抯 Legal Bureau (WLB), and Women 抯 Legal Education, Advocacy and Defense Foundation, Inc. (WomenLEAD).

· 13 Rollo (G.R. No. 169667), p. 22.

· 14 Annex "H," id. at 460-461.

· 15 Annex "H-1," id. at 462.

· 16 Rollo (G.R. No. 169777), pp. 383-384.

· 17 Annex "K," rollo (G.R. No. 169777), p. 466.

· 18 Annex "J," id. at 465.

· 19 Annex "M," id. at 468.

· 20 Annex "N," id. at 469.

· 21 Annex "O," id. at 470.

· 22 Court En Banc Resolution dated February 21, 2006, rollo (G.R. No. 169659), pp. 370-372.

· 23 Rollo (G.R. No. 169660), pp. 339-370.

· 24 Rollo (G.R. No. 169777), pp. 373-439.

· 25 Rollo (G.R. No. 169667), pp. 388-426.

· 26 Rollo (G.R. No. 169834), pp. 211-240.

· 27 Rollo (G.R. No. 169659), pp. 419-421.

· 28 id. at 469-471.

· 29 Court En Banc Resolution dated March 21, 2006, rollo (G.R. No. 169659), pp. 570-572.

· 30 Sec. 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.

· 31 Sec. 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.

· 32 Sec. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum.1avvphil.net

· 33 Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.

· 34 Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

· 35 Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.

· 36 Sec. 16. The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms.

· 37 Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

· 38 Rollo (G.R. No. 169777), pp. 524-569.

· 39 Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133.

· 40 Citing Lujan v. Defenders of Wildlife, 504 US 555, 119 L. Ed.2d 351 (1992), rollo (G.R. No. 169777), p. 116.

· 41 Citing Lim v. Hon. Exec. Sec., 430 Phil. 555 (2002), rollo (G.R. No. 169777), p. 116.

· 42 G.R. No. 67752, April 10, 1989, 171 SCRA 657.

· 43 G.R. No. 78716, September 22, 1987 (res).

· 44 Rollo (G.R. No. 169777), p. 117.

· 45 Id. at 279.

· 46 Ibid.

· 47 Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 623, 631-632.

· 48 Section 2 of The Party-List System Act (Republic Act 7941) reads:

· SEC. 2. Declaration of Policy. The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible.

· 49 Chavez v. PCGG, G.R. No. 130716, December 9, 1998, 299 SCRA 744 , 761 (1998).

· 50 IBP Board of Governors Resolution No. XVII-2005-18, rollo (G.R. No 171246), p. 28.

· 51 Rollo (G.R. No. 169667), p. 3.

· 52 Rollo (G.R. No. 169660), p. 5.

· 53 Supra note 39 at 136.

· 54 Francisco, Jr. v. House of Representatives, supra note 39 at 139.

· 55 Lozada v. Commission on Elections, 205 Phil. 283, 287 (1983).

· 56 Rollo (G.R. No. 169659), p. 79.

· 57 Rollo (G.R. No. 169659), pp. 80-81.

· 58 87 Phil. 29 (1950).

· 59 Supra at 45, citing McGrain v. Daugherty 273 US 135, 47 S. Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1 (1927).

· 60 Id. at 46.

· 61 G.R. 89914, Nov. 20, 1991, 203 SCRA 767.

· 62 "WHEREAS, pursuant to the rule on executive privilege, the President and those who assist her must be free to explore the alternatives in the process of shaping policies and making decisions since this is fundamental to the operation of the government and is rooted in the separation of powers under the Constitution;

· x x x x

· "WHEREAS, recent events, particularly with respect to the invitation of a member of the Cabinet by the Senate as well as various heads of offices, civilian and military, have highlighted the need to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of persons appearing in such inquiries in aid of legislation and due regard to constitutional mandate; x x x"

· 63 II Record, Constitutional Commission 150-151 (July 23, 1986).

· 64 B. Schwartz, Executive Privilege and Congressional Investigatory Power 47 Cal. L. Rev. 3.

· 65 M. Rozell, Executive Privilege and the Modern Presidents: In Nixon 抯 Shadow (83 Minn. L. Rev. 1069).

· 66 P. Shane & H. Bruff, Separation of Powers: Law Cases and Materials 292 (1996).

· 67 Id. at 293.

· 68 I L.Tribe, American Constitutional Law 770-1 (3rd ed., 2000).

· 69 121 F.3d 729, 326 U.S. App. D.C. 276.

· 70 Black 抯 Law Dictionary 569-570 (6th ed., 1991) citing 5 U.S.C.A. Sec. 552(b)(1); Black v. Sheraton Corp. of America, D.C.D.C., 371 F.Supp. 97, 100.

· 71 I L.Tribe, supra note 68 at 771.

· 72 418 U.S. 683 (1974)

· 73 In re Sealed Case 121 F.3d 729, 326 U.S.App.D.C. 276 (1997) states: "It appears that the courts have been drawn into executive-congressional privilege disputes over access to information on only three recent occasions. These were: Unites States v. AT&T, 551 F.2d 384 (D.C. Cir.1976), appeal after remand, 567 F.2d 121 (D.C.Cir.1977); Senate Select Committee on Presidential Campaign Activities v. Nixon (Senate Committee), 498 F.2d 725 (D.C. Cir. 1974); United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983)"; Vide R. Iraola, Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal Criminal Investigations and Prosecutions (87 Iowa L. Rev. 1559): "The Supreme Court has yet to rule on a dispute over information requested by Congress where executive privilege has been asserted; in the past twenty-five years, there have been only three reported cases dealing with this issue."

· 74 J. Chaper & R. Fallon, Jr., Constitutional Law: Cases Comments Questions 197 (9th ed., 2001).

· 75 Senate Select Committee on Presidential Campaign Activities v. Nixon 498 F.2d 725, 162 U.S.App.D.C.183 (May 23, 1974).

· 76 N. Redlich & B. Schwartz, Constitutional Law 333 (3rd ed. ,1996) states in Note 24: "Now that the Supreme Court decision has specifically recognized a "privilege of confidentiality of Presidential communications," the Select Committee decision appears even stronger. If the need of the Watergate Committee for evidence was not enough before the Supreme Court recognized executive privilege, the same would surely have been true after

the recognition. And, if the demand of the Watergate Committee, engaged in a specific investigation of such importance, was not enough to outweigh the nondisclosure claim, it is hard to see what Congressional demand will fare better when met by an assertion of privilege."

· 77 314 Phil. 150 (1995).

· 78 Comm. Almonte v. Hon. Vasquez, 314 Phil. 150, 166 (1995) states: "To put this case in perspective it should be stated at the outset that it does not concern a demand by a citizen for information under the freedom of information guarantee of the Constitution."

· 79 360 Phil. 133 (1998).

· 80 Chavez v. PCGG, 360 Phil. 133, 160 (1998).

· 81 433 Phil. 506 (2002).

· 82 Chavez v. Public Estates Authority, 433 Phil. 506, 534 (2002).

· 83 II Record, Constitutional Commission 199 (July 24, 1986).

· 84 II Record, Constitutional Commission 900-1 (October 12, 1986).

· 85 H. Mendoza & A. Lim, The New Constitution 177 (1974).

· 86 Constitution (1973), Art. VIII, Sec. 12(1).

· 87 R. Martin, The New Constitution of the Philippines 394 (1973).

· 88 II Record, Constitutional Commission 133 (July 23, 1986).

· 89 Schwartz, supra at 11-12.

· 90 Supra.

· 91 Supra note 82 at 189.

· 92 345 U.S. 1 , 73 S. Ct. 528, 97 L.Ed. 727, 32 A.L.R.2d 382 (1953).

· 93 Vide Tribe, supra note 68.

· 94 Supra note 78.

· 95 Supra note 75.

· 96 403 F.Supp. 1000, 20 Fed,R.Serv.2d 1382 (1975).

· 97 43 F.R.D. 181 (1967).

· 98 Ibid., citation omitted.

· 99 520 F.Supp.414, 32 Fed.R.Serv.2d 913 (1981).

· 100 371 F.Supp.97, 18 Fed.R.Serv.2d 563 (1974).

· 101 Ibid., citations omitted.

· 102 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960).

· 103 U.S. v. Reynolds, supra note 85.

· 104 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

· 105 In re Sealed Case, supra note 69.

· 106 Black 抯 Law Dictionary, supra note 70 at 569.

· 107 G.R. No. 74930, February 13, 1989, 170 SCRA 256.

· 108 G.R. No. L-63915, December 29, 1986, 146 SCRA 446, 453.

· 109 Hoffman, Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls (1981) 13.


EN BANC

G.R. No. L-51122 March 25, 1982EUGENIO J. PUYAT, ERWIN L. CHIONGBIAN, EDGARDO P. REYES, ANTONIO G. PUYAT, JAIME R. BLANCO, RAFAEL R. RECTO and REYNALDO L. LARDIZABAL, petitioners, vs.HON. SIXTO T. J. DE GUZMAN, JR., as Associate Commissioner of the Securities & Exchange Commission, EUSTAQUIO T. C. ACERO, R. G. VILDZIUS, ENRIQUE M. BELO, MANUEL G. ABELLO, SERVILLANO DOLINA, JUANITO MERCADO and ESTANISLAO A. FERNANDEZ, respondents.

MELENCIO-HERRERA, J.:This suit for certiorari and Prohibition with Preliminary Injunction is poised against the Order of respondent Associate Commissioner of the Securities and Exchange Commission (SEC) granting Assemblyman Estanislao A. Fernandez leave to intervene in SEC Case No. 1747.

A question of novel import is in issue. For its resolution, the following dates and allegations are being given and made:

a) May 14,1979. An election for the eleven Directors of the International Pipe Industries Corporation (IPI) a private corporation, was held. Those in charge ruled that the following were elected as Directors:

· Eugenio J. Puyat Eustaquio T.C. AceroErwin L. Chiongbian R. G. VildziusEdgardo P. Reyes Enrique M. BeloAntonio G. Puyat Servillano DolinaJaime R. Blanco Juanito MercadoRafael R. Recto

Those named on the left list may be called the Puyat Group; those on the right, the Acero Group. Thus, the Puyat Group would be in control of the Board and of the management of IPI.

b) May 25, 1979. The Acero Group instituted at the Securities and Exchange Commission (SEC) quo warranto proceedings, docketed as Case No. 1747 (the SEC Case), questioning the election of May 14, 1979. The Acero Group claimed that the stockholders' votes were not properly counted.

c) May 25-31, 1979. The Puyat Group claims that at conferences of the parties with respondent SEC Commissioner de Guzman, Justice Estanislao A. Fernandez, then a member of the Interim Batasang Pambansa, orally entered his appearance as counsel for respondent Acero to which the Puyat Group objected on Constitutional grounds. Section 11, Article VIII, of the 1973 Constitution, then in force, provided that no Assemblyman could "appear as counsel before ... any administrative body", and SEC was an administrative body. Incidentally, the same prohibition was maintained by the April 7, 1981 plebiscite. The cited Constitutional prohibition being clear, Assemblyman Fernandez did not continue his

appearance for respondent Acero.

d) May 31, 1979. When the SEC Case was called, it turned out that:

· (i) On May 15, 1979, Assemblyman Estanislao A. Fernandez had purchased from Augusto A. Morales ten (10) shares of stock of IPI for P200.00 upon request of respondent Acero to qualify him to run for election as a Director.

· (ii) The deed of sale, however, was notarized only on May 30, 1979 and was sought to be registered on said date.

· (iii) On May 31, 1979, the day following the notarization of Assemblyman Fernandez' purchase, the latter had filed an Urgent Motion for Intervention in the SEC Case as the owner of ten (10) IPI shares alleging legal interest in the matter in litigation.

e) July 17, 1979. The SEC granted leave to intervene on the basis of Atty. Fernandez' ownership of the said ten shares. 1 It is this Order allowing intervention that precipitated the instant petition for certiorari and Prohibition with Preliminary Injunction.

f) July 3, 1979. Edgardo P. Reyes instituted a case before the Court of First Instance of Rizal (Pasig), Branch XXI, against N.V. Verenigde Bueinzenfabrieken Excelsior De Maas and respondent Eustaquio T. C. Acero and others, to annul the sale of Excelsior's shares in the IPI to respondent Acero (CC No. 33739). In that case, Assemblyman Fernandez appeared as counsel for defendant Excelsior In L-51928, we ruled that Assemblyman Fernandez could not appear as counsel in a case originally filed with a Court of First Instance as in such situation the Court would be one "without appellate jurisdiction."

On September 4, 1979, the Court en banc issued a temporary Restraining Order enjoining respondent SEC Associate Commissioner from allowing the participation as an intervenor, of respondent Assemblyman Estanislao Fernandez at the proceedings in the SEC Case.

The Solicitor General, in his Comment for respondent Commissioner, supports the stand of the latter in allowing intervention. The Court en banc, on November 6, 1979, resolved to consider the Comment as an Answer to the Petition.

The issue which will be resolved is whether or not Assemblyman Fernandez, as a then stockholder of IPI may intervene in the SEC Case without violating Section 11, Article VIII of the Constitution, which, as amended, now reads:

· SEC. 11.

· No Member of the Batasang Pambansa shall appear as counsel before any court without appellate jurisdiction.

· before any court in any civil case wherein the Government, or any subdivision, agency, or instrumentality thereof is the adverse party,

· or in any criminal case wherein any officer or employee of the Government is accused of an offense committed in relation to his office,

· or before any administrative body.

· Neither shall he, directly or indirectly be interested financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency or instrumentality thereof, including any government-owned or controlled corporation, during his term of office.

· He shall not accept employment to intervene in any cause or matter where he may be called to act on account of his office. (Emphasis supplied)

What really has to be resolved is whether or not, in intervening in the SEC Case, Assemblyman Fernandez is, in effect, appearing as counsel, albeit indirectly, before an administrative body in contravention of the Constitutional provision.

Ordinarily, by virtue of the Motion for Intervention, Assemblyman Fernandez cannot be said to be appearing as counsel. Ostensibly, he is not appearing on behalf of another, although he is joining the cause of the private respondents. His appearance could theoretically be for the protection of his ownership of ten (10) shares of IPI in respect of the matter in litigation and not for the protection of the petitioners nor respondents who have their respective capable and respected counsel.

However, certain salient circumstances militate against the intervention of Assemblyman Fernandez in the SEC Case. He had acquired a mere P200.00 worth of stock in IPI, representing ten shares out of 262,843 outstanding shares. He acquired them "after the fact" that is, on May 30, 1979, after the contested election of Directors on May 14, 1979, after the quo warranto suit had been filed on May 25, 1979 before SEC and one day before the scheduled hearing of the case before the SEC on May 31, 1979. And what is more, before he moved to intervene, he had signified his intention to appear as counsel for respondent Eustaquio T. C. Acero, 2 but which was objected to by petitioners. Realizing, perhaps, the validity of the objection, he decided, instead, to "intervene" on the ground of legal interest in the matter under litigation. And it maybe noted that in the case filed before the Rizal Court of First Instance (L-51928), he appeared as counsel for defendant Excelsior, co-defendant of respondent Acero therein.

Under those facts and circumstances, we are constrained to find that there has been an indirect "appearance as counsel before ... an administrative body" and, in our opinion, that is a circumvention of the Constitutional prohibition. The "intervention" was an afterthought to enable him to appear actively in the proceedings in some other capacity. To believe the avowed purpose, that is, to enable him eventually to vote and to be elected as Director in the event of an unfavorable outcome of the SEC Case would be pure naivete. He would still appear as counsel indirectly.

A ruling upholding the "intervention" would make the constitutional provision ineffective. All an Assemblyman need do, if he wants to influence an administrative body is to acquire a minimal participation in the "interest" of the client and then "intervene" in the proceedings. That which the Constitution directly prohibits may not be done by indirection or by a general legislative act which is intended to accomplish the objects specifically or impliedly prohibited. 3

In brief, we hold that the intervention of Assemblyman Fernandez in SEC. No. 1747 falls within the ambit of the prohibition contained in Section 11, Article VIII of the Constitution.

Our resolution of this case should not be construed as, absent the question of the constitutional prohibition against members of the Batasan, allowing any stockholder, or any number of stockholders, in a corporation to intervene in any controversy before the SEC relating to intra-corporate matters. A resolution of that question is not necessary in this case.

WHEREFORE, respondent Commissioner's Order granting Atty. Estanislao A. Fernandez leave to intervene in SEC Case No. 1747 is hereby reversed and set aside. The temporary Restraining Order heretofore issued is hereby made permanent.

No costs.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro, Ericta, Plana and Escolin, JJ., concur.

Aquino, J., took no part.

Barredo, J., I reserve my vote.

Footnotes

· 1 p. 23, Rollo.

· 2 p. 6, Ibid.

· 3 Am. Digest, 2d Dicennial Ed., Vol. 5, citing Atkinson vs. Board, etc., 108 P. 1046.


EN BANC

G.R. No. 115455 October 30, 1995

ARTURO M. TOLENTINO, petitioner, vs.THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL REVENUE, respondents.

G.R. No. 115525 October 30, 1995

JUAN T. DAVID, petitioner, vs.TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as Secretary of Finance; LIWAYWAY VINZONS-CHATO, as Commissioner of Internal Revenue; and their AUTHORIZED AGENTS OR REPRESENTATIVES, respondents.

G.R. No. 115543 October 30, 1995

RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, petitioners, vs.THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE BUREAU OF INTERNAL REVENUE AND BUREAU OF CUSTOMS, respondents.

G.R. No. 115544 October 30, 1995

PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; KAMAHALAN PUBLISHING CORPORATION; PHILIPPINE JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L. DIMALANTA, petitioners, vs.HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary; and HON. ROBERTO B. DE OCAMPO, in his capacity as Secretary of Finance, respondents.

G.R. No. 115754 October 30, 1995

CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA), petitioner, vs.THE COMMISSIONER OF INTERNAL REVENUE, respondent.

G.R. No. 115781 October 30, 1995

KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. ("MABINI"), FREEDOM FROM DEBT COALITION, INC., and PHILIPPINE BIBLE SOCIETY, INC. and WIGBERTO TA袮DA, petitioners, vs.THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF INTERNAL REVENUE and THE COMMISSIONER OF CUSTOMS, respondents.

G.R. No. 115852 October 30, 1995

PHILIPPINE AIRLINES, INC., petitioner, vs.THE SECRETARY OF FINANCE and COMMISSIONER OF INTERNAL REVENUE, respondents.

G.R. No. 115873 October 30, 1995

COOPERATIVE UNION OF THE PHILIPPINES, petitioner, vs.HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of Internal Revenue, HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, and HON. ROBERTO B. DE OCAMPO, in his capacity as Secretary of Finance, respondents.

G.R. No. 115931 October 30, 1995

PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC. and ASSOCIATION OF PHILIPPINE BOOK SELLERS, petitioners, vs.HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. LIWAYWAY V. CHATO, as the Commissioner of Internal Revenue; and HON. GUILLERMO PARAYNO, JR., in his capacity as the Commissioner of Customs, respondents.

· R E S O L U T I O N

· MENDOZA, J.:

These are motions seeking reconsideration of our decision dismissing the petitions filed in these cases for the declaration of unconstitutionality of R.A. No. 7716, otherwise known as the Expanded Value-Added Tax Law. The motions, of which there are 10 in all, have been filed by the several petitioners in these cases, with the exception of the Philippine Educational Publishers Association, Inc. and the Association of Philippine Booksellers, petitioners in G.R. No. 115931.

The Solicitor General, representing the respondents, filed a consolidated comment, to which the Philippine Airlines, Inc., petitioner in G.R. No. 115852, and the Philippine Press Institute, Inc., petitioner in G.R. No. 115544, and Juan T. David, petitioner in G.R. No. 115525, each filed a reply. In turn the Solicitor General filed on June 1, 1995 a rejoinder to the PPI's reply.

On June 27, 1995 the matter was submitted for resolution.

I. Power of the Senate to propose amendments to revenue bills. Some of the petitioners (Tolentino, Kilosbayan, Inc., Philippine Airlines (PAL), Roco, and Chamber of Real Estate and Builders Association (CREBA)) reiterate previous claims made by them that R.A. No. 7716 did not "originate exclusively" in the House of Representatives as required by Art. VI, 4 of the Constitution. Although they admit that H. No. 11197 was filed in the House of Representatives where it passed three readings and that afterward it was sent to the Senate where after first reading it was referred to the Senate Ways and Means Committee, they complain that the Senate did not pass it on second and third readings. Instead what the Senate did was to pass its own version (S. No. 1630) which it approved on May 24, 1994. Petitioner Tolentino adds that what the Senate committee should have done was to amend H. No. 11197 by striking out the text of the bill and substituting it with the text of S. No. 1630. That way, it is said, "the bill remains a House bill and the Senate version just becomes the text (only the text) of the House bill."

The contention has no merit.

The enactment of S. No. 1630 is not the only instance in which the Senate proposed an amendment to a House revenue bill by enacting its own version of a revenue bill. On at least two occasions during the Eighth Congress, the Senate passed its own version of revenue bills, which, in consolidation with House bills earlier passed, became the enrolled bills. These were:

R.A. No. 7369 (AN ACT TO AMEND THE OMNIBUS INVESTMENTS CODE OF 1987 BY EXTENDING FROM FIVE (5) YEARS TO TEN YEARS THE PERIOD FOR TAX AND DUTY EXEMPTION AND TAX CREDIT ON CAPITAL EQUIPMENT) which was approved by the President on April 10, 1992. This Act is actually a consolidation of H. No. 34254, which was approved by the House on January 29, 1992, and S. No. 1920, which was approved by the Senate on February 3, 1992.

R.A. No. 7549 (AN ACT GRANTING TAX EXEMPTIONS TO WHOEVER SHALL GIVE REWARD TO ANY FILIPINO ATHLETE WINNING A MEDAL IN OLYMPIC GAMES) which was approved by the President on May 22, 1992. This Act is a consolidation of H. No. 22232, which was approved by the House of Representatives on August 2, 1989, and S. No. 807, which was approved by the Senate on October 21, 1991.

On the other hand, the Ninth Congress passed revenue laws which were also the result of the consolidation of House and Senate bills. These are the following, with indications of the dates on which the laws were approved by the President and dates the separate bills of the two chambers of Congress were respectively passed:

· 1. R.A. NO. 7642

· AN ACT INCREASING THE PENALTIES FOR TAX EVASION, AMENDING FOR THIS PURPOSE THE PERTINENT SECTIONS OF THE NATIONAL INTERNAL REVENUE CODE (December 28, 1992).

· House Bill No. 2165, October 5, 1992

· Senate Bill No. 32, December 7, 1992

· 2. R.A. NO. 7643

· AN ACT TO EMPOWER THE COMMISSIONER OF INTERNAL REVENUE TO REQUIRE THE PAYMENT OF THE VALUE-ADDED TAX EVERY MONTH AND TO ALLOW LOCAL GOVERNMENT UNITS TO SHARE IN VAT REVENUE, AMENDING FOR THIS PURPOSE CERTAIN SECTIONS OF THE NATIONAL INTERNAL REVENUE CODE (December 28, 1992)

· House Bill No. 1503, September 3, 1992

· Senate Bill No. 968, December 7, 1992

· 3. R.A. NO. 7646

· AN ACT AUTHORIZING THE COMMISSIONER OF INTERNAL REVENUE TO PRESCRIBE THE PLACE FOR PAYMENT OF INTERNAL REVENUE TAXES BY LARGE TAXPAYERS, AMENDING FOR THIS PURPOSE CERTAIN PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED (February 24, 1993)

· House Bill No. 1470, October 20, 1992

· Senate Bill No. 35, November 19, 1992

· 4. R.A. NO. 7649

· AN ACT REQUIRING THE GOVERNMENT OR ANY OF ITS POLITICAL SUBDIVISIONS, INSTRUMENTALITIES OR AGENCIES INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS (GOCCS) TO DEDUCT AND WITHHOLD THE VALUE-ADDED TAX DUE AT THE RATE OF THREE PERCENT (3%) ON GROSS PAYMENT FOR THE PURCHASE OF GOODS AND SIX PERCENT (6%) ON GROSS RECEIPTS FOR SERVICES RENDERED BY CONTRACTORS (April 6, 1993)

· House Bill No. 5260, January 26, 1993

· Senate Bill No. 1141, March 30, 1993

· 5. R.A. NO. 7656

· AN ACT REQUIRING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS TO DECLARE DIVIDENDS UNDER CERTAIN CONDITIONS TO THE NATIONAL GOVERNMENT, AND FOR OTHER PURPOSES (November 9, 1993)

· House Bill No. 11024, November 3, 1993


· 6. R.A. NO. 7660

· AN ACT RATIONALIZING FURTHER THE STRUCTURE AND ADMINISTRATION OF THE DOCUMENTARY STAMP TAX, AMENDING FOR THE PURPOSE CERTAIN PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, ALLOCATING FUNDS FOR SPECIFIC PROGRAMS, AND FOR OTHER PURPOSES (December 23, 1993)

· House Bill No. 7789, May 31, 1993


· 7. R.A. NO. 7717

· AN ACT IMPOSING A TAX ON THE SALE, BARTER OR EXCHANGE OF SHARES OF STOCK LISTED AND TRADED THROUGH THE LOCAL STOCK EXCHANGE OR THROUGH INITIAL PUBLIC OFFERING, AMENDING FOR THE PURPOSE THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, BY INSERTING A NEW SECTION AND REPEALING CERTAIN SUBSECTIONS THEREOF (May 5, 1994)

· House Bill No. 9187, November 3, 1993

· Senate Bill No. 1127, March 23, 1994

Thus, the enactment of S. No. 1630 is not the only instance in which the Senate, in the exercise of its power to propose amendments to bills required to originate in the House, passed its own version of a House revenue measure. It is noteworthy that, in the particular case of S. No. 1630, petitioners Tolentino and Roco, as members of the Senate, voted to approve it on second and third readings.

On the other hand, amendment by substitution, in the manner urged by petitioner Tolentino, concerns a mere matter of form. Petitioner has not shown what substantial difference it would make if, as the Senate actually did in this case, a separate bill like S. No. 1630 is instead enacted as a substitute measure, " taking into Consideration . . . H.B. 11197."

Indeed, so far as pertinent, the Rules of the Senate only provide:

· RULE XXIX

· AMENDMENTS

· xxx xxx xxx

· 8. Not more than one amendment to the original amendment shall be considered.

· No amendment by substitution shall be entertained unless the text thereof is submitted in writing.

· Any of said amendments may be withdrawn before a vote is taken thereon.

· 9. No amendment which seeks the inclusion of a legislative provision foreign to the subject matter of a bill (rider) shall be entertained.

· xxx xxx xxx

· 0-A. A bill or resolution shall not be amended by substituting it with another which covers a subject distinct from that proposed in the original bill or resolution. (emphasis added).

Nor is there merit in petitioners' contention that, with regard to revenue bills, the Philippine Senate possesses less power than the U.S. Senate because of textual differences between constitutional provisions giving them the power to propose or concur with amendments.

Art. I, , cl. 1 of the U.S. Constitution reads:

· All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.

Art. VI, 4 of our Constitution reads:

· All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments.

The addition of the word "exclusively" in the Philippine Constitution and the decision to drop the phrase "as on other Bills" in the American version, according to petitioners, shows the intention of the framers of our Constitution to restrict the Senate's power to propose amendments to revenue bills. Petitioner Tolentino contends that the word "exclusively" was inserted to modify "originate" and "the words 'as in any other bills' (sic) were eliminated so as to show that these bills were not to be like other bills but must be treated as a special kind."

The history of this provision does not support this contention. The supposed indicia of constitutional intent are nothing but the relics of an unsuccessful attempt to limit the power of the Senate. It will be recalled that the 1935 Constitution originally provided for a unicameral National Assembly. When it was decided in 1939 to change to a bicameral legislature, it became necessary to provide for the procedure for lawmaking by the Senate and the House of Representatives. The work of proposing amendments to the Constitution was done by the National Assembly, acting as a constituent assembly, some of whose members, jealous of preserving the Assembly's lawmaking powers, sought to curtail the powers of the proposed Senate. Accordingly they proposed the following provision:

· All bills appropriating public funds, revenue or tariff bills, bills of local application, and private bills shall originate exclusively in the Assembly, but the Senate may propose or concur with amendments. In case of disapproval by the Senate of any such bills, the Assembly may repass the same by a two-thirds vote of all its members, and thereupon, the bill so repassed shall be deemed enacted and may be submitted to the President for corresponding action. In the event that the Senate should fail to finally act on any such bills, the Assembly may, after thirty days from the opening of the next regular session of the same legislative term, reapprove the same with a vote of two-thirds of all the members of the Assembly. And upon such reapproval, the bill shall be deemed enacted and may be submitted to the President for corresponding action.

The special committee on the revision of laws of the Second National Assembly vetoed the proposal. It deleted everything after the first sentence. As rewritten, the proposal was approved by the National Assembly and embodied in Resolution No. 38, as amended by Resolution No. 73. (J. ARUEGO, KNOW YOUR CONSTITUTION 65-66 (1950)). The proposed amendment was submitted to the people and ratified by them in the elections held on June 18, 1940.

This is the history of Art. VI, 8 (2) of the 1935 Constitution, from which Art. VI, 4 of the present Constitution was derived. It explains why the word "exclusively" was added to the American text from which the framers of the Philippine Constitution borrowed and why the phrase "as on other Bills" was not copied. Considering the defeat of the proposal, the power of the Senate to propose amendments must be understood to be full, plenary and complete "as on other Bills." Thus, because revenue bills are required to originate exclusively in the House of Representatives, the Senate cannot enact revenue measures of its own without such bills. After a revenue bill is passed and sent over to it by the House, however, the Senate certainly can pass its own version on the same subject matter. This follows from the coequality of the two chambers of Congress.

That this is also the understanding of book authors of the scope of the Senate's power to concur is clear from the following commentaries:

· The power of the Senate to propose or concur with amendments is apparently without restriction. It would seem that by virtue of this power, the Senate can practically re-write a bill required to come from the House and leave only a trace of the original bill. For example, a general revenue bill passed by the lower house of the United States Congress contained provisions for the imposition of an inheritance tax . This was changed by the Senate into a corporation tax. The amending authority of the Senate was declared by the United States Supreme Court to be sufficiently broad to enable it to make the alteration. [Flint v. Stone Tracy Company, 220 U.S. 107, 55 L. ed. 389].

· (L. TA袮DA AND F. CARREON, POLITICAL LAW OF THE PHILIPPINES 247 (1961))

· The above-mentioned bills are supposed to be initiated by the House of Representatives because it is more numerous in membership and therefore also more representative of the people. Moreover, its members are presumed to be more familiar with the needs of the country in regard to the enactment of the legislation involved.

· The Senate is, however, allowed much leeway in the exercise of its power to propose or concur with amendments to the bills initiated by the House of Representatives. Thus, in one case, a bill introduced in the U.S. House of Representatives was changed by the

Senate to make a proposed inheritance tax a corporation tax. It is also accepted practice for the Senate to introduce what is known as an amendment by substitution, which may entirely replace the bill initiated in the House of Representatives.

· (I. CRUZ, PHILIPPINE POLITICAL LAW 144-145 (1993)).

In sum, while Art. VI, 4 provides that all appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills must "originate exclusively in the House of Representatives," it also adds, "but the Senate may propose or concur with amendments." In the exercise of this power, the Senate may propose an entirely new bill as a substitute measure. As petitioner Tolentino states in a high school text, a committee to which a bill is referred may do any of the following:

· (1) to endorse the bill without changes; (2) to make changes in the bill omitting or adding sections or altering its language; (3) to make and endorse an entirely new bill as a substitute, in which case it will be known as a committee bill; or (4) to make no report at all.

· (A. TOLENTINO, THE GOVERNMENT OF THE PHILIPPINES 258 (1950))

To except from this procedure the amendment of bills which are required to originate in the House by prescribing that the number of the House bill and its other parts up to the enacting clause must be preserved although the text of the Senate amendment may be incorporated in place of the original body of the bill is to insist on a mere technicality. At any rate there is no rule prescribing this form. S. No. 1630, as a substitute measure, is therefore as much an amendment of H. No. 11197 as any which the Senate could have made.

II. S. No. 1630 a mere amendment of H. No. 11197. Petitioners' basic error is that they assume that S. No. 1630 is an independent and distinct bill. Hence their repeated references to its certification that it was passed by the Senate "in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734 and H.B. No. 11197," implying that there is something substantially different between the reference to S. No. 1129 and the reference to H. No. 11197. From this premise, they conclude that R.A. No. 7716 originated both in the House and in the Senate and that it is the product of two "half-baked bills because neither H. No. 11197 nor S. No. 1630 was passed by both houses of Congress."

In point of fact, in several instances the provisions of S. No. 1630, clearly appear to be mere amendments of the corresponding provisions of H. No. 11197. The very tabular comparison of the provisions of H. No. 11197 and S. No. 1630 attached as Supplement A to the basic petition of petitioner Tolentino, while showing differences between the two bills, at the same time indicates that the provisions of the Senate bill were precisely intended to be amendments to the House bill.

Without H. No. 11197, the Senate could not have enacted S. No. 1630. Because the Senate bill was a mere amendment of the House bill, H. No. 11197 in its original form did not have to pass the Senate on second and three readings. It was enough that after it was passed on first reading it was referred to the Senate Committee on Ways and Means. Neither was it required that S. No. 1630 be passed by the House of Representatives before the two bills could be referred to the Conference Committee.

There is legislative precedent for what was done in the case of H. No. 11197 and S. No. 1630. When the House bill and Senate bill, which became R.A. No. 1405 (Act prohibiting the disclosure of bank deposits), were referred to a conference committee, the question was raised whether the two bills could be the subject of such conference, considering that the bill from one house had not been passed by the other and vice versa. As Congressman Duran put the question:

· MR. DURAN. Therefore, I raise this question of order as to procedure: If a House bill is passed by the House but not passed by the Senate, and a Senate bill of a similar nature is passed in the Senate but never passed in the House, can the two bills be the subject of a conference, and can a law be enacted from these two bills? I understand that the Senate bill in this particular instance does not refer to investments in government securities, whereas the bill in the House, which was introduced by the Speaker, covers two subject matters: not only investigation of deposits in banks but also investigation of investments in government securities. Now, since the two bills differ in their subject matter, I believe that no law can be enacted.

Ruling on the point of order raised, the chair (Speaker Jose B. Laurel, Jr.) said:

· THE SPEAKER. The report of the conference committee is in order. It is precisely in cases like this where a conference should be had. If the House bill had been approved by the Senate, there would have been no need of a conference; but precisely because the Senate passed another bill on the same subject matter, the conference committee had to be created, and we are now considering the report of that committee.

· (2 CONG. REC. NO. 13, July 27, 1955, pp. 3841-42 (emphasis added))

III. The President's certification. The fallacy in thinking that H. No. 11197 and S. No. 1630 are distinct and unrelated measures also accounts for the petitioners' (Kilosbayan's and PAL's) contention that because the President separately certified to the need for the immediate enactment of these measures, his certification was ineffectual and void. The certification had to be made of the version of the same revenue bill which at the moment was being considered. Otherwise, to follow petitioners' theory, it would be necessary for the President to certify as many bills as are presented in a house of Congress even though the bills are merely versions of the bill he has already certified. It is enough that he certifies the bill which, at the time he makes the certification, is under consideration. Since on March 22, 1994 the Senate was considering S. No. 1630, it was that bill which had to be certified. For that matter on June 1, 1993 the President had earlier certified H. No. 9210 for immediate enactment because it was the one which at that time was being considered by the House. This bill was later substituted, together with other bills, by H. No. 11197.

As to what Presidential certification can accomplish, we have already explained in the main decision that the phrase "except when the President certifies to the necessity of its immediate enactment, etc." in Art. VI, 6 (2) qualifies not only the requirement that "printed copies [of a bill] in its final form [must be] distributed to the members three days before its passage" but also the requirement that before a bill can become a law it must have passed "three readings on separate days." There is not only textual support for such construction but historical basis as well.

Art. VI, 1 (2) of the 1935 Constitution originally provided:

· (2) No bill shall be passed by either House unless it shall have been printed and copies thereof in its final form furnished its Members at least three calendar days prior to its passage, except when the President shall have certified to the necessity of its immediate enactment. Upon the last reading of a bill, no amendment thereof shall be allowed and the question upon its passage shall be taken immediately thereafter, and the yeas and nays entered on the Journal.

When the 1973 Constitution was adopted, it was provided in Art. VIII, 9 (2):

· (2) No bill shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to the Members three days before its passage, except when the Prime Minister certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal.

This provision of the 1973 document, with slight modification, was adopted in Art. VI, 6 (2) of the present Constitution, thus:

· (2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays entered in the Journal.

The exception is based on the prudential consideration that if in all cases three readings on separate days are required and a bill has to be printed in final form before it can be passed, the need for a law may be rendered academic by the occurrence of the very emergency or public calamity which it is meant to address.

Petitioners further contend that a "growing budget deficit" is not an emergency, especially in a country like the Philippines where budget deficit is a chronic condition. Even if this were the case, an enormous budget deficit does not make the need for R.A. No. 7716 any less urgent or the situation calling for its enactment any less an emergency.

Apparently, the members of the Senate (including some of the petitioners in these cases) believed that there was an urgent need for consideration of S. No. 1630, because they responded to the call of the President by voting on the bill on second and third readings on the same day. While the judicial department is not bound by the Senate's acceptance of the President's certification, the respect due coequal departments of the government in matters committed to them by the Constitution and the absence of a clear showing of grave abuse of discretion caution a stay of the judicial hand.

At any rate, we are satisfied that S. No. 1630 received thorough consideration in the Senate where it was discussed for six days. Only its distribution in advance in its final printed form was actually dispensed with by holding the voting on second and third readings on the same day (March 24, 1994). Otherwise, sufficient time between the submission of the bill on February 8, 1994 on second reading and its approval on March 24, 1994 elapsed before it was finally voted on by the Senate on third reading.

The purpose for which three readings on separate days is required is said to be two-fold: (1) to inform the members of Congress of what they must vote on and (2) to give them notice that a measure is progressing through the enacting process, thus enabling them and others interested in the measure to prepare their positions with reference to it. (1 J. G. SUTHERLAND, STATUTES AND STATUTORY CONSTRUCTION 0.04, p. 282 (1972)). These purposes were substantially achieved in the case of R.A. No. 7716.

IV. Power of Conference Committee. It is contended (principally by Kilosbayan, Inc. and the Movement of Attorneys for Brotherhood, Integrity and Nationalism, Inc. (MABINI)) that in violation of the constitutional policy of full public disclosure and the people's right to know (Art. II, 8 and Art. III, ) the Conference Committee met for two days in executive session with only the conferees present.

As pointed out in our main decision, even in the United States it was customary to hold such sessions with only the conferees and their staffs in attendance and it was only in 1975 when a new rule was adopted requiring open sessions. Unlike its American counterpart, the Philippine Congress has not adopted a rule prescribing open hearings for conference committees.

It is nevertheless claimed that in the United States, before the adoption of the rule in 1975, at least staff members were present. These were staff members of the Senators and Congressmen, however, who may be presumed to be their confidential men, not stenographers as in this case who on the last two days of the conference were excluded. There is no showing that the conferees themselves did not take notes of their proceedings so as to give petitioner Kilosbayan basis for claiming that even in secret diplomatic negotiations involving state interests, conferees keep notes of their meetings. Above all, the public's right to know was fully served because the Conference Committee in this case submitted a report showing the changes made on the differing versions of the House and the Senate.

Petitioners cite the rules of both houses which provide that conference committee reports must contain "a detailed, sufficiently explicit statement of the changes in or other amendments." These changes are shown in the bill attached to the Conference Committee Report. The members of both houses could thus ascertain what changes had been made in the original bills without the need of a statement detailing the changes.

The same question now presented was raised when the bill which became R.A. No. 1400 (Land Reform Act of 1955) was reported by the Conference Committee. Congressman Bengzon raised a point of order. He said:

· MR. BENGZON. My point of order is that it is out of order to consider the report of the conference committee regarding House Bill No. 2557 by reason of the provision of Section 11, Article XII, of the Rules of this House which provides specifically that the conference report must be accompanied by a detailed statement of the effects of the amendment on the bill of the House. This conference committee report is not accompanied by that detailed statement, Mr. Speaker. Therefore it is out of order to consider it.

Petitioner Tolentino, then the Majority Floor Leader, answered:

· MR. TOLENTINO. Mr. Speaker, I should just like to say a few words in connection with the point of order raised by the gentleman from Pangasinan.

· There is no question about the provision of the Rule cited by the gentleman from Pangasinan, but this provision applies to those cases where only portions of the bill have been amended. In this case before us an entire bill is presented; therefore, it can be easily seen from the reading of the bill what the provisions are. Besides, this procedure has been an established practice.

After some interruption, he continued:

· MR. TOLENTINO. As I was saying, Mr. Speaker, we have to look into the reason for the provisions of the Rules, and the reason for the requirement in the provision cited by the gentleman from Pangasinan is when there are only certain words or phrases inserted in or deleted from the provisions of the bill included in the conference report, and we cannot understand what those words and phrases mean and their relation to the bill. In that case, it is necessary to make a detailed statement on how those words and phrases will affect the bill as a whole; but when the entire bill itself is copied verbatim in the conference report, that is not necessary . So when the reason for the Rule does not exist, the Rule does not exist.

· (2 CONG. REC. NO. 2, p. 4056. (emphasis added))

Congressman Tolentino was sustained by the chair. The record shows that when the ruling was appealed, it was upheld by viva voce and when a division of the House was called, it was sustained by a vote of 48 to 5. (Id., p. 4058)

Nor is there any doubt about the power of a conference committee to insert new provisions as long as these are germane to the subject of the conference. As this Court held in Philippine Judges Association v. Prado, 227 SCRA 703 (1993), in an opinion written by then Justice Cruz, the jurisdiction of the conference committee is not limited to resolving differences between the Senate and the House. It may propose an entirely new provision. What is important is that its report is subsequently approved by the respective houses of Congress. This Court ruled that it would not entertain allegations that, because new provisions had been added by the conference committee, there was thereby a violation of the constitutional injunction that "upon the last reading of a bill, no amendment thereto shall be allowed."

· Applying these principles, we shall decline to look into the petitioners' charges that an amendment was made upon the last reading of the bill that eventually became R.A. No. 7354 and that copies thereof in its final form were not distributed among the members of each House. Both the enrolled bill and the legislative journals certify that the measure was duly enacted i.e., in accordance with Article VI, Sec. 26 (2) of the Constitution. We are bound by such official assurances from a coordinate department of the government, to which we owe, at the very least, a becoming courtesy.

· (Id. at 710. (emphasis added))

It is interesting to note the following description of conference committees in the Philippines in a 1979 study:

· Conference committees may be of two types: free or instructed. These committees may be given instructions by their parent bodies or

they may be left without instructions. Normally the conference committees are without instructions, and this is why they are often critically referred to as "the little legislatures." Once bills have been sent to them, the conferees have almost unlimited authority to change the clauses of the bills and in fact sometimes introduce new measures that were not in the original legislation. No minutes are kept, and members' activities on conference committees are difficult to determine. One congressman known for his idealism put it this way: "I killed a bill on export incentives for my interest group [copra] in the conference committee but I could not have done so anywhere else." The conference committee submits a report to both houses, and usually it is accepted. If the report is not accepted, then the committee is discharged and new members are appointed.

· (R. Jackson, Committees in the Philippine Congress, in COMMITTEES AND LEGISLATURES: A COMPARATIVE ANALYSIS 163 (J. D. LEES AND M. SHAW, eds.)).

In citing this study, we pass no judgment on the methods of conference committees. We cite it only to say that conference committees here are no different from their counterparts in the United States whose vast powers we noted in Philippine Judges Association v. Prado, supra. At all events, under Art. VI, 6(3) each house has the power "to determine the rules of its proceedings," including those of its committees. Any meaningful change in the method and procedures of Congress or its committees must therefore be sought in that body itself.

V. The titles of S. No. 1630 and H. No. 11197. PAL maintains that R.A. No. 7716 violates Art. VI, 6 (1) of the Constitution which provides that "Every bill passed by Congress shall embrace only one subject which shall be expressed in the title thereof." PAL contends that the amendment of its franchise by the withdrawal of its exemption from the VAT is not expressed in the title of the law.

Pursuant to 3 of P.D. No. 1590, PAL pays a franchise tax of 2% on its gross revenue "in lieu of all other taxes, duties, royalties, registration, license and other fees and charges of any kind, nature, or description, imposed, levied, established, assessed or collected by any municipal, city, provincial or national authority or government agency, now or in the future."

PAL was exempted from the payment of the VAT along with other entities by 03 of the National Internal Revenue Code, which provides as follows:

· 03. Exempt transactions. The following shall be exempt from the value-added tax:

· xxx xxx xxx

· (q) Transactions which are exempt under special laws or international agreements to which the Philippines is a signatory.

R.A. No. 7716 seeks to withdraw certain exemptions, including that granted to PAL, by amending 03, as follows:

· 03. Exempt transactions. The following shall be exempt from the value-added tax:

· xxx xxx xxx

· (q) Transactions which are exempt under special laws, except those granted under Presidential Decree Nos. 66, 529, 972, 1491, 1590. . . .

The amendment of 03 is expressed in the title of R.A. No. 7716 which reads:

· AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM, WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER PURPOSES.

By stating that R.A. No. 7716 seeks to "[RESTRUCTURE] THE VALUE-ADDED TAX (VAT) SYSTEM [BY] WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED AND FOR OTHER PURPOSES," Congress thereby clearly expresses its intention to amend any provision of the NIRC which stands in the way of accomplishing the purpose of the law.

PAL asserts that the amendment of its franchise must be reflected in the title of the law by specific reference to P.D. No. 1590. It is unnecessary to do this in order to comply with the constitutional requirement, since it is already stated in the title that the law seeks to amend the pertinent provisions of the NIRC, among which is 03(q), in order to widen the base of the VAT. Actually, it is the bill which becomes a law that is required to express in its title the subject of legislation. The titles of H. No. 11197 and S. No. 1630 in fact specifically referred to 03 of the NIRC as among the provisions sought to be amended. We are satisfied that sufficient notice had been given of the pendency of these bills in Congress before they were enacted into what is now R.A.No. 7716.

In Philippine Judges Association v. Prado, supra, a similar argument as that now made by PAL was rejected. R.A. No. 7354 is entitled AN ACT CREATING THE PHILIPPINE POSTAL CORPORATION, DEFINING ITS POWERS, FUNCTIONS AND RESPONSIBILITIES, PROVIDING FOR REGULATION OF THE INDUSTRY AND FOR OTHER PURPOSES CONNECTED THEREWITH. It contained a provision repealing all franking privileges. It was contended that the withdrawal of franking privileges was not expressed in the title of the law. In holding that there was sufficient description of the subject of the law in its title, including the repeal of franking privileges, this Court held:

· To require every end and means necessary for the accomplishment of the general objectives of the statute to be expressed in its title would not only be unreasonable but would actually render legislation impossible. [Cooley, Constitutional Limitations, 8th Ed., p. 297] As has been correctly explained:

· The details of a legislative act need not be specifically stated in its title, but matter germane to the subject as expressed in the title, and adopted to the accomplishment of the object in view, may properly be included in the act. Thus, it is proper to create in the same act the machinery by which the act is to be enforced, to prescribe the penalties for its infraction, and to remove obstacles in the way of its execution. If such matters are properly connected with the subject as expressed in the title, it is unnecessary that they should also have special mention in the title. (Southern Pac. Co. v. Bartine, 170 Fed. 725)

· (227 SCRA at 707-708)

VI. Claims of press freedom and religious liberty. We have held that, as a general proposition, the press is not exempt from the taxing power of the State and that what the constitutional guarantee of free press prohibits are laws which single out the press or target a group belonging to the press for special treatment or which in any way discriminate against the press on the basis of the content of the publication, and R.A. No. 7716 is none of these.

Now it is contended by the PPI that by removing the exemption of the press from the VAT while maintaining those granted to others, the law discriminates against the press. At any rate, it is averred, "even nondiscriminatory taxation of constitutionally guaranteed freedom is unconstitutional."

With respect to the first contention, it would suffice to say that since the law granted the press a privilege, the law could take back the privilege anytime without offense to the Constitution. The reason is simple: by granting exemptions, the State does not forever waive the exercise of its sovereign prerogative.

Indeed, in withdrawing the exemption, the law merely subjects the press to the same tax burden to which other businesses have long ago been subject. It is thus different from the tax involved in the cases invoked by the PPI. The license tax in Grosjean v. American Press Co., 297 U.S. 233, 80 L. Ed. 660 (1936) was found to be discriminatory because it was laid on the gross advertising receipts only of newspapers whose weekly circulation was over 20,000, with the result that the

tax applied only to 13 out of 124 publishers in Louisiana. These large papers were critical of Senator Huey Long who controlled the state legislature which enacted the license tax. The censorial motivation for the law was thus evident.

On the other hand, in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 75 L. Ed. 2d 295 (1983), the tax was found to be discriminatory because although it could have been made liable for the sales tax or, in lieu thereof, for the use tax on the privilege of using, storing or consuming tangible goods, the press was not. Instead, the press was exempted from both taxes. It was, however, later made to pay a special use tax on the cost of paper and ink which made these items "the only items subject to the use tax that were component of goods to be sold at retail." The U.S. Supreme Court held that the differential treatment of the press "suggests that the goal of regulation is not related to suppression of expression, and such goal is presumptively unconstitutional." It would therefore appear that even a law that favors the press is constitutionally suspect. (See the dissent of Rehnquist, J. in that case)

Nor is it true that only two exemptions previously granted by E.O. No. 273 are withdrawn "absolutely and unqualifiedly" by R.A. No. 7716. Other exemptions from the VAT, such as those previously granted to PAL, petroleum concessionaires, enterprises registered with the Export Processing Zone Authority, and many more are likewise totally withdrawn, in addition to exemptions which are partially withdrawn, in an effort to broaden the base of the tax.

The PPI says that the discriminatory treatment of the press is highlighted by the fact that transactions, which are profit oriented, continue to enjoy exemption under R.A. No. 7716. An enumeration of some of these transactions will suffice to show that by and large this is not so and that the exemptions are granted for a purpose. As the Solicitor General says, such exemptions are granted, in some cases, to encourage agricultural production and, in other cases, for the personal benefit of the end-user rather than for profit. The exempt transactions are:

· (a) Goods for consumption or use which are in their original state (agricultural, marine and forest products, cotton seeds in their original state, fertilizers, seeds, seedlings, fingerlings, fish, prawn livestock and poultry feeds) and goods or services to enhance agriculture (milling of palay, corn, sugar cane and raw sugar, livestock, poultry feeds, fertilizer, ingredients used for the manufacture of feeds).

· (b) Goods used for personal consumption or use (household and personal effects of citizens returning to the Philippines) or for professional use, like professional instruments and implements, by persons coming to the Philippines to settle here.

· (c) Goods subject to excise tax such as petroleum products or to be used for manufacture of petroleum products subject to excise tax and services subject to percentage tax.

· (d) Educational services, medical, dental, hospital and veterinary services, and services rendered under employer-employee relationship.

· (e) Works of art and similar creations sold by the artist himself.

· (f) Transactions exempted under special laws, or international agreements.

· (g) Export-sales by persons not VAT-registered.

· (h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.

· (Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 58-60)

The PPI asserts that it does not really matter that the law does not discriminate against the press because "even nondiscriminatory taxation on constitutionally guaranteed freedom is unconstitutional." PPI cites in support of this assertion the following statement in Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292 (1943):

· The fact that the ordinance is "nondiscriminatory" is immaterial. The protection afforded by the First Amendment is not so restricted. A license tax certainly does not acquire constitutional validity because it classifies the privileges protected by the First Amendment along with the wares and merchandise of hucksters and peddlers and treats them all alike. Such equality in treatment does not save the ordinance. Freedom of press, freedom of speech, freedom of religion are in preferred position.

The Court was speaking in that case of a license tax, which, unlike an ordinary tax, is mainly for regulation. Its imposition on the press is unconstitutional because it lays a prior restraint on the exercise of its right. Hence, although its application to others, such those selling goods, is valid, its application to the press or to religious groups, such as the Jehovah's Witnesses, in connection with the latter's sale of religious books and pamphlets, is unconstitutional. As the U.S. Supreme Court put it, "it is one thing to impose a tax on income or property of a preacher. It is quite another thing to exact a tax on him for delivering a sermon."

A similar ruling was made by this Court in American Bible Society v. City of Manila, 101 Phil. 386 (1957) which invalidated a city ordinance requiring a business license fee on those engaged in the sale of general merchandise. It was held that the tax could not be imposed on the sale of bibles by the American Bible Society without restraining the free exercise of its right to propagate.

The VAT is, however, different. It is not a license tax. It is not a tax on the exercise of a privilege, much less a constitutional right. It is imposed on the sale, barter, lease or exchange of goods or properties or the sale or exchange of services and the lease of properties purely for revenue purposes. To subject the press to its payment is not to burden the exercise of its right any more than to make the press pay income tax or subject it to general regulation is not to violate its freedom under the Constitution.

Additionally, the Philippine Bible Society, Inc. claims that although it sells bibles, the proceeds derived from the sales are used to subsidize the cost of printing copies which are given free to those who cannot afford to pay so that to tax the sales would be to increase the price, while reducing the volume of sale. Granting that to be the case, the resulting burden on the exercise of religious freedom is so incidental as to make it difficult to differentiate it from any other economic imposition that might make the right to disseminate religious doctrines costly. Otherwise, to follow the petitioner's argument, to increase the tax on the sale of vestments would be to lay an impermissible burden on the right of the preacher to make a sermon.

On the other hand the registration fee of P1,000.00 imposed by 07 of the NIRC, as amended by of R.A. No. 7716, although fixed in amount, is really just to pay for the expenses of registration and enforcement of provisions such as those relating to accounting in 08 of the NIRC. That the PBS distributes free bibles and therefore is not liable to pay the VAT does not excuse it from the payment of this fee because it also sells some copies. At any rate whether the PBS is liable for the VAT must be decided in concrete cases, in the event it is assessed this tax by the Commissioner of Internal Revenue.

VII. Alleged violations of the due process, equal protection and contract clauses and the rule on taxation . CREBA asserts that R.A. No. 7716 (1) impairs the obligations of contracts, (2) classifies transactions as covered or exempt without reasonable basis and (3) violates the rule that taxes should be uniform and equitable and that Congress shall "evolve a progressive system of taxation."

With respect to the first contention, it is claimed that the application of the tax to existing contracts of the sale of real property by installment or on deferred payment basis would result in substantial increases in the monthly amortizations to be paid because of the 10% VAT. The additional amount, it is pointed out, is something that the buyer did not anticipate at the time he entered into the contract.

The short answer to this is the one given by this Court in an early case: "Authorities from numerous sources are cited by the plaintiffs, but none of them show that a lawful tax on a new subject, or an increased tax on an old one, interferes with a contract or impairs its obligation, within the meaning of the Constitution. Even though such taxation may affect particular contracts, as it may increase the debt of one person and lessen the security of another, or may impose additional burdens upon one class and release the burdens of another, still the tax must be paid unless prohibited by the Constitution, nor can it be said that it impairs the obligation of any existing contract in its true legal sense." (La Insular v. Machuca Go-Tauco and Nubla Co-Siong, 39 Phil. 567, 574 (1919)). Indeed not only existing

laws but also "the reservation of the essential attributes of sovereignty, is . . . read into contracts as a postulate of the legal order." (Philippine-American Life Ins. Co. v. Auditor General, 22 SCRA 135, 147 (1968)) Contracts must be understood as having been made in reference to the possible exercise of the rightful authority of the government and no obligation of contract can extend to the defeat of that authority. (Norman v. Baltimore and Ohio R.R., 79 L. Ed. 885 (1935)).

It is next pointed out that while of R.A. No. 7716 exempts such transactions as the sale of agricultural products, food items, petroleum, and medical and veterinary services, it grants no exemption on the sale of real property which is equally essential. The sale of real property for socialized and low-cost housing is exempted from the tax, but CREBA claims that real estate transactions of "the less poor," i.e., the middle class, who are equally homeless, should likewise be exempted.

The sale of food items, petroleum, medical and veterinary services, etc., which are essential goods and services was already exempt under 03, pars. (b) (d) (1) of the NIRC before the enactment of R.A. No. 7716. Petitioner is in error in claiming that R.A. No. 7716 granted exemption to these transactions, while subjecting those of petitioner to the payment of the VAT. Moreover, there is a difference between the "homeless poor" and the "homeless less poor" in the example given by petitioner, because the second group or middle class can afford to rent houses in the meantime that they cannot yet buy their own homes. The two social classes are thus differently situated in life. "It is inherent in the power to tax that the State be free to select the subjects of taxation, and it has been repeatedly held that 'inequalities which result from a singling out of one particular class for taxation, or exemption infringe no constitutional limitation.'" (Lutz v. Araneta, 98 Phil. 148, 153 (1955). Accord, City of Baguio v. De Leon, 134 Phil. 912 (1968); Sison, Jr. v. Ancheta, 130 SCRA 654, 663 (1984); Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371 (1988)).

Finally, it is contended, for the reasons already noted, that R.A. No. 7716 also violates Art. VI, 8(1) which provides that "The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation."

Equality and uniformity of taxation means that all taxable articles or kinds of property of the same class be taxed at the same rate. The taxing power has the authority to make reasonable and natural classifications for purposes of taxation. To satisfy this requirement it is enough that the statute or ordinance applies equally to all persons, forms and corporations placed in similar situation. (City of Baguio v. De Leon, supra; Sison, Jr. v. Ancheta, supra)

Indeed, the VAT was already provided in E.O. No. 273 long before R.A. No. 7716 was enacted. R.A. No. 7716 merely expands the base of the tax. The validity of the original VAT Law was questioned in Kapatiran ng Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 383 (1988) on grounds similar to those made in these cases, namely, that the law was "oppressive, discriminatory, unjust and regressive in violation of Art. VI, 8(1) of the Constitution." (At 382) Rejecting the challenge to the law, this Court held:

· As the Court sees it, EO 273 satisfies all the requirements of a valid tax. It is uniform. . . .

· The sales tax adopted in EO 273 is applied similarly on all goods and services sold to the public, which are not exempt, at the constant rate of 0% or 10%.

· The disputed sales tax is also equitable. It is imposed only on sales of goods or services by persons engaged in business with an aggregate gross annual sales exceeding P200,000.00. Small corner sari-sari stores are consequently exempt from its application. Likewise exempt from the tax are sales of farm and marine products, so that the costs of basic food and other necessities, spared as they are from the incidence of the VAT, are expected to be relatively lower and within the reach of the general public.

· (At 382-383)

The CREBA claims that the VAT is regressive. A similar claim is made by the Cooperative Union of the Philippines, Inc. (CUP), while petitioner Juan T. David argues that the law contravenes the mandate of Congress to provide for a progressive system of taxation because the law imposes a flat rate of 10% and thus places the tax burden on all taxpayers without regard to their ability to pay.

The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are regressive. What it simply provides is that Congress shall " evolve a progressive system of taxation." The constitutional provision has been interpreted to mean simply that "direct taxes are . . . to be preferred [and] as much as possible, indirect taxes should be minimized." (E. FERNANDO, THE CONSTITUTION OF THE PHILIPPINES 221 (Second ed. (1977)). Indeed, the mandate to Congress is not to prescribe, but to evolve, a progressive tax system. Otherwise, sales taxes, which perhaps are the oldest form of indirect taxes, would have been prohibited with the proclamation of Art. VIII, 7(1) of the 1973 Constitution from which the present Art. VI, 8(1) was taken. Sales taxes are also regressive.

Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not impossible, to avoid them by imposing such taxes according to the taxpayers' ability to pay. In the case of the VAT, the law minimizes the regressive effects of this imposition by providing for zero rating of certain transactions (R.A. No. 7716, , amending 02 (b) of the NIRC), while granting exemptions to other transactions. (R.A. No. 7716, , amending 03 of the NIRC).

Thus, the following transactions involving basic and essential goods and services are exempted from the VAT:

· (a) Goods for consumption or use which are in their original state (agricultural, marine and forest products, cotton seeds in their original state, fertilizers, seeds, seedlings, fingerlings, fish, prawn livestock and poultry feeds) and goods or services to enhance agriculture (milling of palay, corn sugar cane and raw sugar, livestock, poultry feeds, fertilizer, ingredients used for the manufacture of feeds).

· (b) Goods used for personal consumption or use (household and personal effects of citizens returning to the Philippines) and or professional use, like professional instruments and implements, by persons coming to the Philippines to settle here.

· (c) Goods subject to excise tax such as petroleum products or to be used for manufacture of petroleum products subject to excise tax and services subject to percentage tax.

· (d) Educational services, medical, dental, hospital and veterinary services, and services rendered under employer-employee relationship.

· (e) Works of art and similar creations sold by the artist himself.

· (f) Transactions exempted under special laws, or international agreements.

· (g) Export-sales by persons not VAT-registered.

· (h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.

· (Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 58-60)

On the other hand, the transactions which are subject to the VAT are those which involve goods and services which are used or availed of mainly by higher income groups. These include real properties held primarily for sale to customers or for lease in the ordinary course of trade or business, the right or privilege to use patent, copyright, and other similar property or right, the right or privilege to use industrial, commercial or scientific equipment, motion picture films, tapes and discs, radio, television, satellite transmission and cable television time, hotels, restaurants and similar places, securities, lending investments, taxicabs, utility cars for rent, tourist buses, and other common carriers, services of franchise grantees of telephone and telegraph.

The problem with CREBA's petition is that it presents broad claims of constitutional violations by tendering issues not at retail but at wholesale and in the abstract. There is no fully developed record which can impart to adjudication the impact of actuality. There is no factual foundation to show in the concrete the application of the law to actual contracts and exemplify its effect on property rights. For the fact is that petitioner's members have not even been assessed the VAT. Petitioner's case is not made concrete by a series of hypothetical questions asked which are no different from those dealt with in advisory opinions.

· The difficulty confronting petitioner is thus apparent. He alleges arbitrariness. A mere allegation, as here, does not suffice. There must be a factual foundation of such unconstitutional taint. Considering that petitioner here would condemn such a provision as void on its face, he has not made out a case. This is merely to adhere to the authoritative doctrine that where the due process and equal protection clauses are invoked, considering that they are not fixed rules but rather broad standards, there is a need for proof of such persuasive character as would lead to such a conclusion. Absent such a showing, the presumption of validity must prevail.

· (Sison, Jr. v. Ancheta, 130 SCRA at 661)

Adjudication of these broad claims must await the development of a concrete case. It may be that postponement of adjudication would result in a multiplicity of suits. This need not be the case, however. Enforcement of the law may give rise to such a case. A test case, provided it is an actual case and not an abstract or hypothetical one, may thus be presented.

Nor is hardship to taxpayers alone an adequate justification for adjudicating abstract issues. Otherwise, adjudication would be no different from the giving of advisory opinion that does not really settle legal issues.

We are told that it is our duty under Art. VIII, , to decide whenever a claim is made that "there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." This duty can only arise if an actual case or controversy is before us. Under Art . VIII, our jurisdiction is defined in terms of "cases" and all that Art. VIII, , can plausibly mean is that in the exercise of that jurisdiction we have the judicial power to determine questions of grave abuse of discretion by any branch or instrumentality of the government.

Put in another way, what is granted in Art. VIII, , is "judicial power," which is "the power of a court to hear and decide cases pending between parties who have the right to sue and be sued in the courts of law and equity" (Lamb v. Phipps, 22 Phil. 456, 559 (1912)), as distinguished from legislative and executive power. This power cannot be directly appropriated until it is apportioned among several courts either by the Constitution, as in the case of Art. VIII, , or by statute, as in the case of the Judiciary Act of 1948 (R.A. No. 296) and the Judiciary Reorganization Act of 1980 (B.P. Blg. 129). The power thus apportioned constitutes the court's "jurisdiction," defined as "the power conferred by law upon a court or judge to take cognizance of a case, to the exclusion of all others." (United States v. Arceo, 6 Phil. 29 (1906)) Without an actual case coming within its jurisdiction, this Court cannot inquire into any allegation of grave abuse of discretion by the other departments of the government.

VIII. Alleged violation of policy towards cooperatives. On the other hand, the Cooperative Union of the Philippines (CUP), after briefly surveying the course of legislation, argues that it was to adopt a definite policy of granting tax exemption to cooperatives that the present Constitution embodies provisions on cooperatives. To subject cooperatives to the VAT would therefore be to infringe a constitutional policy. Petitioner claims that in 1973, P.D. No. 175 was promulgated exempting cooperatives from the payment of income taxes and sales taxes but in 1984, because of the crisis which menaced the national economy, this exemption was withdrawn by P.D. No. 1955; that in 1986, P.D. No. 2008 again granted cooperatives exemption from income and sales taxes until December 31, 1991, but, in the same year, E.O. No. 93 revoked the exemption; and that finally in 1987 the framers of the Constitution "repudiated the previous actions of the government adverse to the interests of the cooperatives, that is, the repeated revocation of the tax exemption to cooperatives and instead upheld the policy of strengthening the cooperatives by way of the grant of tax exemptions," by providing the following in Art. XII:

· . The goals of the national economy are a more equitable distribution of opportunities, income, and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged.

· The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises against unfair foreign competition and trade practices.

· In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. Private enterprises, including corporations, cooperatives, and similar collective organizations, shall be encouraged to broaden the base of their ownership.

· 5. The Congress shall create an agency to promote the viability and growth of cooperatives as instruments for social justice and economic development.

Petitioner's contention has no merit. In the first place, it is not true that P.D. No. 1955 singled out cooperatives by withdrawing their exemption from income and sales taxes under P.D. No. 175, . What P.D. No. 1955, did was to withdraw the exemptions and preferential treatments theretofore granted to private business enterprises in general, in view of the economic crisis which then beset the nation. It is true that after P.D. No. 2008, had restored the tax exemptions of cooperatives in 1986, the exemption was again repealed by E.O. No. 93, , but then again cooperatives were not the only ones whose exemptions were withdrawn. The withdrawal of tax incentives applied to all, including government and private entities . In the second place, the Constitution does not really require that cooperatives be granted tax exemptions in order to promote their growth and viability. Hence, there is no basis for petitioner's assertion that the government's policy toward cooperatives had been one of vacillation, as far as the grant of tax privileges was concerned, and that it was to put an end to this indecision that the constitutional provisions cited were adopted. Perhaps as a matter of policy cooperatives should be granted tax exemptions, but that is left to the discretion of Congress. If Congress does not grant exemption and there is no discrimination to cooperatives, no violation of any constitutional policy can be charged.

Indeed, petitioner's theory amounts to saying that under the Constitution cooperatives are exempt from taxation. Such theory is contrary to the Constitution under which only the following are exempt from taxation: charitable institutions, churches and parsonages, by reason of Art. VI, 8 (3), and non-stock, non-profit educational institutions by reason of Art. XIV, (3).

CUP's further ground for seeking the invalidation of R.A. No. 7716 is that it denies cooperatives the equal protection of the law because electric cooperatives are exempted from the VAT. The classification between electric and other cooperatives (farmers cooperatives, producers cooperatives, marketing cooperatives, etc.) apparently rests on a congressional determination that there is greater need to provide cheaper electric power to as many people as possible, especially those living in the rural areas, than there is to provide them with other necessities in life. We cannot say that such classification is unreasonable.

We have carefully read the various arguments raised against the constitutional validity of R.A. No. 7716. We have in fact taken the extraordinary step of enjoining its enforcement pending resolution of these cases. We have now come to the conclusion that the law suffers from none of the infirmities attributed to it by petitioners and that its enactment by the other branches of the government does not constitute a grave abuse of discretion. Any question as to its necessity, desirability or expediency must be addressed to Congress as the body which is electorally responsible, remembering that, as Justice Holmes has said, "legislators are the ultimate guardians of the liberties and welfare of the people in quite as great a degree as are the courts." (Missouri, Kansas & Texas Ry. Co. v. May, 194 U.S. 267, 270, 48 L. Ed. 971, 973 (1904)). It is not right, as petitioner in G.R. No. 115543 does in arguing that we should enforce the public accountability of legislators, that those who took part in passing the law in question by voting for it in Congress should later thrust to the courts the burden of reviewing measures in the flush of enactment. This Court does not sit as a third branch of the legislature, much less exercise a veto power over legislation.

WHEREFORE, the motions for reconsideration are denied with finality and the temporary restraining order previously issued is hereby lifted.

SO ORDERED.

Narvasa, C.J., Feliciano, Melo, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Padilla and Vitug, JJ., maintained their separate opinion.

Regalado, Davide, Jr., Romero, Bellosillo and Puno, JJ, maintained their dissenting opinion.

Panganiban, J., took no part.

Sampayan vs. Daza

on 6:42 AM in Case Digests, Political Law

0

213 SCRA 807

HRET has exclusive jurisdiction over election contests and qualifications of members of Congress

Remedies against a disqualified House of Representative candidate: (1) cancellation of certificate of candidacy filed with COMELEC before election; (2) quo warranto case filed with HRET after proclamation

FACTS:

Petitioners filed a petition seeking to disqualify Daza, then incumbent congressman of their congressional district in Makati, from continuing to exercise the functions of his office on the ground that the latter is a greencard holder and a lawful permanent resident of the United States. They also alleged that Mr. Daza has not by any act or declaration renounced his status as permanent resident thereby violating the Omnibus Election Code (Section 68) and the 1987 Constitution (section 18, Article III).

Respondent Congressman filed his Comment denying the fact that he is a permanent resident of the United States as evidenced by a letter order of the US Immigration and Naturalization Service, Los Angeles, U.S.A, he had long waived his status when he returned to the Philippines on August 12, 1985.

ISSUE:

Whether or not respondent Daza should be disqualified as a member of the House of Representatives for violation of Section 68 of the Omnibus Election Code

RULING:

The Supreme Court vote to dismiss the instant case, first, the case is moot and academic for it is evident from the manifestation filed by petitioners dated April 6, 1992, that they seek to unseat the respondent from his position as Congressman for the duration of his term of office commencing June 30, 1987 and ending June 30, 1992. Secondly, jurisdiction of this case rightfully pertains to the House Electoral Tribunal. Under Section 17 of Article VI of the 1987 Constitution, it is the House Electoral Tribunal which shall be the sole judge of all contests relating to the election returns and qualification of its members.

The petitioner 抯 appropriate remedy should have been to file a petition to cancel respondent Daza 抯certificate of candidacy before the election or a quo warranto case with the House of Electoral Tribunal within ten days after Daza 抯 proclamation.

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