ACADEMIC FREEDOM

We cannot sustain the respondent judge. Her decision

DECS VS SAN DIEGO (1989) must be reversed.

G.R. No. 89572 December 21, 1989 In Tablarin v. Gutierrez, 4 this Court upheld the
constitutionality of the NMAT as a measure intended to
DEPARTMENT OF EDUCATION, CULTURE AND limit the admission to medical schools only to those
SPORTS (DECS) and DIRECTOR OF CENTER FOR who have initially proved their competence and
EDUCATIONAL MEASUREMENT, petitioners, preparation for a medical education. Justice Florentino
vs. P. Feliciano declared for a unanimous Court:
ROBERTO REY C. SAN DIEGO and JUDGE
TERESITA DIZON-CAPULONG, in her capacity as Perhaps the only issue that needs some consideration
Presiding Judge of the Regional Trial Court of is whether there is some reasonable relation between
Valenzuela, Metro Manila, Branch 172, respondents. the prescribing of passing the NMAT as a condition for
admission to medical school on the one hand, and the
Ramon M. Guevara for private respondent. securing of the health and safety of the general
community, on the other hand. This question is
CRUZ, J.: perhaps most usefully approached by recalling that the
regulation of the pratice of medicine in all its branches
The issue before us is mediocrity. The question is has long been recognized as a reasonable method of
whether a person who has thrice failed the National protecting the health and safety of the public. That the
Medical Admission Test (NMAT) is entitled to take it power to regulate and control the practice of medicine
again. includes the power to regulate admission to the ranks
of those authorized to practice medicine, is also well
The petitioner contends he may not, under its rule that- recognized. Thus, legislation and administrative
regulations requiring those who wish to practice
h) A student shall be allowed only three (3) chances to medicine first to take and pass medical board
take the NMAT. After three (3) successive failures, a examinations have long ago been recognized as valid
student shall not be allowed to take the NMAT for the exercises of governmental power. Similarly, the
fourth time. establishment of minimum medical educational
requirements-i.e., the completion of prescribed
The private respondent insists he can, on constitutional courses in a recognized medical school-for admission
grounds. to the medical profession, has also been sustained as
a legitimate exercise of the regulatory authority of the
But first the facts. state. What we have before us in the instant case is
closely related: the regulation of access to medical
The private respondent is a graduate of the University schools. MECS Order No. 52, s. 1985, as noted earlier,
of the East with a degree of Bachelor of Science in articulates the rationale of regulation of this type: the
Zoology. The petitioner claims that he took the NMAT improvement of the professional and technical quality
three times and flunked it as many times.1 When he of the graduates of medical schools, by upgrading the
applied to take it again, the petitioner rejected his quality of those admitted to the student body of the
application on the basis of the aforesaid rule. He then medical schools. That upgrading is sought by
went to the Regional Trial Court of Valenzuela, Metro selectivity in the process of admission, selectivity
Manila, to compel his admission to the test. consisting, among other things, of limiting admission to
those who exhibit in the required degree the aptitude
In his original petition for mandamus, he first invoked for medical studies and eventually for medical practice.
his constitutional rights to academic freedom and The need to maintain, and the difficulties of
quality education. By agreement of the parties, the maintaining, high standards in our professional schools
private respondent was allowed to take the NMAT in general, and medical schools in particular, in the
scheduled on April 16, 1989, subject to the outcome of current state of our social and economic development,
his petition. 2 In an amended petition filed with leave of are widely known.
court, he squarely challenged the constitutionality of
MECS Order No. 12, Series of 1972, containing the We believe that the government is entitled to prescribe
above-cited rule. The additional grounds raised were an admission test like the NMAT as a means of
due process and equal protection. achieving its stated objective of "upgrading the
selection of applicants into [our] medical schools" and
After hearing, the respondent judge rendered a of "improv[ing] the quality of medical education in the
decision on July 4, 1989, declaring the challenged country." Given the widespread use today of such
order invalid and granting the petition. Judge Teresita admission tests in, for instance, medical schools in the
Dizon-Capulong held that the petitioner had been United States of America (the Medical College
deprived of his right to pursue a medical education Admission Test [MCAT] and quite probably, in other
through an arbitrary exercise of the police power. 3 countries with far more developed educational
resources than our own, and taking into account the
failure or inability of the petitioners to even attempt to A person cannot insist on being a physician if he will be
prove otherwise, we are entitled to hold that the NMAT a menace to his patients. If one who wants to be a
is reasonably related to the securing of the ultimate end lawyer may prove better as a plumber, he should be so
of legislation and regulation in this area. That end, it is advised and adviced. Of course, he may not be forced
useful to recall, is the protection of the public from the to be a plumber, but on the other hand he may not force
potentially deadly effects of incompetence and his entry into the bar. By the same token, a student who
ignorance in those who would undertake to treat our has demonstrated promise as a pianist cannot be
bodies and minds for disease or trauma. shunted aside to take a course in nursing, however
appropriate this career may be for others.
However, the respondent judge agreed with the
petitioner that the said case was not applicable. Her The right to quality education invoked by the private
reason was that it upheld only the requirement for the respondent is not absolute. The Constitution also
admission test and said nothing about the so-called provides that "every citizen has the right to choose a
"three-flunk rule." profession or course of study, subject to fair,
reasonable and equitable admission and academic
We see no reason why the rationale in the Tablarin requirements.6
case cannot apply to the case at bar. The issue raised
in both cases is the academic preparation of the The private respondent must yield to the challenged
applicant. This may be gauged at least initially by the rule and give way to those better prepared. Where
admission test and, indeed with more reliability, by the even those who have qualified may still not be
three-flunk rule. The latter cannot be regarded any less accommodated in our already crowded medical
valid than the former in the regulation of the medical schools, there is all the more reason to bar those who,
profession. like him, have been tested and found wanting.

There is no need to redefine here the police power of The contention that the challenged rule violates the
the State. Suffice it to repeat that the power is validly equal protection clause is not well-taken. A law does
exercised if (a) the interests of the public generally, as not have to operate with equal force on all persons or
distinguished from those of a particular class, require things to be conformable to Article III, Section 1 of the
the interference of the State, and (b) the means Constitution.
employed are reasonably necessary to the attainment
of the object sought to be accomplished and not unduly There can be no question that a substantial distinction
oppressive upon individuals.5 exists between medical students and other students
who are not subjected to the NMAT and the three-flunk
In other words, the proper exercise of the police power rule. The medical profession directly affects the very
requires the concurrence of a lawful subject and a lives of the people, unlike other careers which, for this
lawful method. reason, do not require more vigilant regulation. The
accountant, for example, while belonging to an equally
The subject of the challenged regulation is certainly respectable profession, does not hold the same
within the ambit of the police power. It is the right and delicate responsibility as that of the physician and so
indeed the responsibility of the State to insure that the need not be similarly treated.
medical profession is not infiltrated by incompetents to
whom patients may unwarily entrust their lives and There would be unequal protection if some applicants
health. who have passed the tests are admitted and others
who have also qualified are denied entrance. In other
The method employed by the challenged regulation is words, what the equal protection requires is equality
not irrelevant to the purpose of the law nor is it arbitrary among equals.
or oppressive. The three-flunk rule is intended to
insulate the medical schools and ultimately the medical The Court feels that it is not enough to simply invoke
profession from the intrusion of those not qualified to the right to quality education as a guarantee of the
be doctors. Constitution: one must show that he is entitled to it
because of his preparation and promise. The private
While every person is entitled to aspire to be a doctor, respondent has failed the NMAT five times. 7 While his
he does not have a constitutional right to be a doctor. persistence is noteworthy, to say the least, it is certainly
This is true of any other calling in which the public misplaced, like a hopeless love.
interest is involved; and the closer the link, the longer
the bridge to one's ambition. The State has the No depreciation is intended or made against the private
responsibility to harness its human resources and to respondent. It is stressed that a person who does not
see to it that they are not dissipated or, no less worse, qualify in the NMAT is not an absolute incompetent
not used at all. These resources must be applied in a unfit for any work or occupation. The only inference is
manner that will best promote the common good while that he is a probably better, not for the medical
also giving the individual a sense of satisfaction.

1
profession, but for another calling that has not excited "All institutions of higher learning shall enjoy academic
his interest. freedom."1 The petition must therefore fail.

In the former, he may be a bungler or at least Petitioner alleged: "3. That in summer, 1975,
lackluster; in the latter, he is more likely to succeed and Respondent admitted Petitioner for studies leading to
may even be outstanding. It is for the appropriate an M.A. in Theology; 4. That on May 30, 1975, when
calling that he is entitled to quality education for the full Petitioner wanted to enroll for the same course for the
harnessing of his potentials and the sharpening of his first semester, 1975-76, Respondent told her about the
latent talents toward what may even be a brilliant letter he had written her, informing her of the faculty's
future. decision to bar her from re-admission in their school; 5.
That the reasons stated in said letter, dated May 19,
We cannot have a society of square pegs in round 1975 ... do not constitute valid legal ground for
holes, of dentists who should never have left the farm expulsion, for they neither present any violation of any
and engineers who should have studied banking and of the school's regulation, nor are they indicative of
teachers who could be better as merchants. gross misconduct; 6. That from June 25, 1975,
Petitioner spent much time and effort in said school for
It is time indeed that the State took decisive steps to the purpose of arriving at a compromise that would not
regulate and enrich our system of education by duly inconvenience the professors and still allow her to
directing the student to the course for which he is best enjoy the benefits of the kind of instruction that the
suited as determined by initial tests and evaluations. school has to offer, but all in vain; she was in fact told
Otherwise, we may be "swamped with mediocrity," in by Fr. Pedro Sevilla, the school's Director, that the
the words of Justice Holmes, not because we are compromises she was offering were unacceptable,
lacking in intelligence but because we are a nation of their decision was final, and that it were better for her
misfits. to seek for admission at the UST Graduate School; 7
Petitioner then subsequently made inquiries in said
WHEREFORE, the petition is GRANTED. The decision school, as to the possibilities for her pursuing her
of the respondent court dated January 13, 1989, is graduate studies for an for M.A. in Theology, and she
REVERSED, with costs against the private was informed that she could enroll at the UST
respondent. It is so ordered. Ecclesiastical Faculties, but that she would have to
fulfill their requirements for Baccalaureate in
GARCIA VS FACULTY OF ADMISSION (1975) Philosophy in order to have her degree later in
Theology — which would entail about four to five years
G.R. No. L-40779 November 28, 1975 more of studies — whereas in the Loyola School of
Studies to which she is being unlawfully refused
EPICHARIS T. GARCIA, petitioner, readmission, it would entail only about two years more;
vs. 8. That Petitioner, considering that time was of the
THE FACULTY ADMISSION COMMITTEE, LOYOLA essence in her case, and not wanting to be deprived of
SCHOOL OF THEOLOGY, herein represented by FR. an opportunity for gaining knowledge necessary for her
ANTONIO B. LAMBINO, respondent. life's work, enrolled as a special student at said UST
Ecclesiastical Faculties, even if she would not thereby
Epicharis T Garcia in her own behalf. be credited with any academic units for the subject she
would take; 9. That Petitioner could have recourse
Bengzon, Villegas, Zarraga, Narciso and Cudala for neither to the President of her school, Fr. Jose Cruz,
respondents. he being with the First Couple's entourage now in Red
China, nor with the Secretary of Education, since this
is his busiest time of the year, and June 11, 1975 is the
FERNANDO, J.: last day for registration; ... "2 She prayed for a writ of
mandamus for the purpose of allowing her to enroll in
The specific issue posed by this mandamus the current semester. She made it more specific in a
proceeding to compel the Faculty Admission pleading she called Amended Petition so that she
Committee of the Loyola School of Theology, would be allowed cross-enrollment even beyond the
represented by Father Antonio B. Lambino, to allow June 11, 1975 deadline for registration and that
petitioner Epicharis T. Garcia, to continue studying whatever units may be accredited to her in the UST
therein is whether she is deemed possessed of such a Ecclesiastical Faculties be likewise recognized by
right that has to be respected. That is denied not only respondent. Her petition included the letter of
on general principle, but also in view of the character respondent Father Lambino which started on a happy
of the particular educational institution involved. It is a note that she was given the grade of B+ and B in two
seminary. It would appear therefore that at most she theology subjects, but ended in a manner far from
can lay claim to a privilege, no duty being cast on satisfactory for her, as shown by this portion thereof:
respondent school. Moreover, as a reinforcement to "Now, you will have to forgive me for going into a matter
such an obvious conclusion, there is the autonomy which is not too pleasant. The faculty had a meeting
recognized by the Constitution in this explicit language: after the summer session and several members are

2
strongly opposed to having you back with us at Loyola there is no duty, much less a clear duty, on the part of
School of Theology. In the spirit of honesty may I report respondent to admit the petitioner therein in the current
this to you as their reason: They felt that your frequent year to take up further courses in the Loyola School of
questions and difficulties were not always pertinent and Theology."5 It was likewise alleged in the aforesaid
had the effect of slowing down the progress of the comment that as set forth in the letter of May 19, 1975,
class; they felt you could have tried to give the the decision not to allow petitioner to take up further
presentation a chance and exerted more effort to courses in said seminary "is not arbitrary, as it is based
understand the point made before immediately thinking on reasonable grounds, ... ."6 Then reference was
of difficulties and problems. The way things are, I would made to the availability of non-judicial remedies which
say that the advisability of your completing a program petitioner could have pursued.7 The prayer was for the
(with all the course work and thesis writing) with us is dismissal of the petition for lack of merit. Petitioner
very questionable. That you have the requisite sought permission to reply and it was granted.
intellectual ability is not to be doubted. But it would Thereafter, she had a detailed recital of why under the
seem to be in your best interests to work with a faculty circumstances she is entitled to relief from the courts.
that is more compatible with your orientation. I regret to In a resolution of August 8, 1975, this Court considered
have to make this report, but I am only thinking of your the comment of respondent as answer and required
welfare."3 the parties to file their respective memoranda. That
they did, and the petition was deemed submitted for
This Court, in a resolution of June 23, 1975, required decision. As was made clear at the outset, we do not
comment on the part of respondent Faculty Admission see merit in it. It must therefore be dismissed.
Committee, Loyola School of Theology.4 As submitted
on behalf of Father Lambino, it set forth the following: 1. In respondent's memorandum, it was made
"Respondent is the Chairman of the Faculty Admission clear why a petition for mandamus is not the proper
Committee of the Loyola School of Theology, which is remedy. Thus: "Petitioner cannot compel by
a religious seminary situated in Loyola Heights, mandamus, the respondent to admit her into further
Quezon City; In collaboration with the Ateneo de studies in the Loyola School of Theology. For
Manila University, the Loyola School of Theology respondent has no clear duty to so admit the petitioner.
allows some lay students to attend its classes and/or The Loyola School of Theology is a seminary for the
take courses in said Loyola School of Theology but the priesthood. Petitioner is admittedly and obviously not
degree, if any, to be obtained from such courses is studying for the priesthood, she being a lay person and
granted by the Ateneo de Manila University and not by a woman. And even assuming ex gratia argumenti that
the Loyola School of Theology; For the reason above she is qualified to study for the priesthood, there is still
given, lay students admitted to the Loyola School of no duty on the part of respondent to admit her to said
Theology to take up courses for credit therein have to studies, since the school has clearly the discretion to
be officially admitted by the Assistant Dean of the turn down even qualified applicants due to limitations
Graduate School of the Ateneo de Manila University in of space, facilities, professors and optimum classroom
order for them to be considered as admitted to a size and component considerations."8 No authorities
degree program; Petitioner in the summer of 1975 was were cited, respondent apparently being of the view
admitted by respondent to take some courses for credit that the law has not reached the stage where the
but said admission was not an admission to a degree matter of admission to an institution of higher learning
program because only the Assistant Dean of the rests on the sole and uncontrolled discretion of the
Ateneo de Manila Graduate School can make such applicant. There are standards that must be met. There
admission; That in the case of petitioner, no are policies to be pursued. Discretion appears to be of
acceptance by the Assistant Dean of the Ateneo de the essence. In terms of Hohfeld's terminology, what a
Manila Graduate School was given, so that she was student in the position of petitioner possesses is a
not accepted to a degree program but was merely privilege rather than a right. She cannot therefore
allowed to take some courses for credit during the satisfy the prime and indispensable requisite of a
summer of 1975; Furthermore, petitioner was not mandamus proceeding. Such being the case, there is
charged a single centavo by the Loyola School of no duty imposed on the Loyola School of Theology. In
Theology and/or the Ateneo de Manila University in a rather comprehensive memorandum of petitioner,
connection with the courses she took in the summer of who unfortunately did not have counsel, an attempt
1975, as she was allowed to take it free of charge; That was made to dispute the contention of respondent.
respondent Fr. Antonio B. Lambino, S.J., and/or the There was a labored effort to sustain her stand, but it
Loyola School of Theology thru its Faculty Admission was not sufficiently persuasive. It is understandable
Committee, necessarily has discretion as to whether to why. It was the skill of a lay person rather than a
admit and/or to continue admitting in the said school practitioner that was evident. While she pressed her
any particular student, considering not only academic points with vigor, she was unable to demonstrate the
or intellectual standards but also other considerations existence of the clear legal right that must exist to
such as personality traits and character orientation in justify the grant of this writ.
relation with other students as well as considering the
nature of Loyola School of Theology as a seminary. 2. Nor is this all. There is, as previously noted,
The Petition for Mandamus therefore does not lie, as the recognition in the Constitution of institutions of

3
higher learning enjoying academic freedom. It is more express the truth as he personally sees it, both in his
often identified with the right of a faculty member to academic work and in his capacity as a private citizen.
pursue his studies in his particular specialty and Thus the status of the individual university teacher is at
thereafter to make known or publish the result of his least as important, in considering academic freedom,
endeavors without fear that retribution would be visited as the status of the institutions to which they belong
on him in the event that his conclusions are found and through which they disseminate their learning."' 13
distasteful or objectionable to the powers that be, He likewise quoted from the President of the Queen's
whether in the political, economic, or academic University in Belfast, Sir Eric Ashby: "'The internal
establishments. For the sociologist, Robert McIver it is conditions for academic freedom in a university are that
"a right claimed by the accredited educator, as teacher the academic staff should have de facto control of the
and as investigator, to interpret his findings and to following functions: (i) the admission and examination
communicate his conclusions without being subjected of students; (ii) the curricula for courses of study; (iii)
to any interference, molestation, or penalization the appointment and tenure of office of academic staff;
because these conclusions are unacceptable to some and (iv) the allocation of income among the different
constituted authority within or beyond the institution." 9 categories of expenditure. It would be a poor prospect
As for the educator and philosopher Sidney Hook, this for academic freedom if universities had to rely on the
is his version: "What is academic freedom? Briefly put, literal interpretation of their constitutions in order to
it is the freedom of professionally qualified persons to acquire for their academic members control of these
inquire, discover, publish and teach the truth as they four functions, for in one constitution or another most
see it in the field of their competence. It is subject to no of these functions are laid on the shoulders of the law
control or authority except the control or authority of the governing body .'" 14 Justice Frankfurter, with his
rational methods by which truths or conclusions are extensive background in legal education as a former
sought and established in these disciplines." 10 Professor of the Harvard Law School, referred to what
he called the business of a university and the four
3. That is only one aspect though. Such a view essential freedoms in the following language: "It is the
does not comprehend fully the scope of academic business of a university to provide that atmosphere
freedom recognized by the Constitution. For it is to be which is most conducive to speculation, experiment
noted that the reference is to the "institutions of higher and creation. It is an atmosphere in which there prevail
learning" as the recipients of this boon. It would follow "the four essential freedoms" of a university — to
then that the school or college itself is possessed of determine for itself on academic grounds who may
such a right. It decides for itself its aims and objectives teach, what may be taught, how it shall be taught, and
and how best to attain them. It is free from outside who may be admitted to study." 15 Thus is reinforced
coercion or interference save possibly when the the conclusion reached by us that mandamus does not
overriding public welfare calls for some restraint. It has lie in this case.
a wide sphere of autonomy certainly extending to the
choice of students. This constitutional provision is not 4. It is not an easy matter then to disregard the
to be construed in a niggardly manner or in a gradging views of persons knowledgeable in the field, to whom
fashion. That would be to frustrate its purpose, nullify cannot be imputed lack of awareness of the need to
its intent. Former President Vicente G. Sinco of the respect freedom of thought on the part of students and
University of the Philippines, in his Philippine Political scholars. Moreover, it could amount to minimizing the
Law, is similarly of the view that it "definitely grants the full respect that must be accorded the academic
right of academic freedom to the university as an freedom expressly granted by the Constitution "to
institution as distinguished from the academic freedom institutions of higher learning." It is equally difficult to
of a university professor." 11 He cited the following yield conformity to the approach taken that colleges
from Dr. Marcel Bouchard, Rector of the University of and universities should be looked upon as public
Dijon, France, President of the conference of rectors utilities devoid of any discretion as to whom to admit or
and vice-chancellors of European universities: " "It is a reject. Education, especially higher education, belongs
well-established fact, and yet one which sometimes to a different, and certainly higher, category.
tends to be obscured in discussions of the problems of
freedom, that the collective liberty of an organization is 5. It only remains to be added that the futility that
by no means the same thing as the freedom of the marked the persistence of petitioner to continue her
individual members within it; in fact, the two kinds of studies in the Loyola School of Theology is the result
freedom are not even necessarily connected. In solely of a legal appraisal of the situation before us.
considering the problems of academic freedom one The decision is not to be construed as in any way
must distinguish, therefore, between the autonomy of reflecting on the scholastic standing of petitioner.
the university, as a corporate body, and the freedom of There was on the part of respondent due
the individual university teacher." " 12 Also: "To clarify acknowledgment of her intelligence. Nonetheless, for
further the distinction between the freedom of the reasons explained in the letter of Father Lambino, it
university and that of the individual scholar, he says: was deemed best, considering the interest of the
"The personal aspect of freedom consists in the right school as well as of the other students and her own
of each university teacher — recognized and welfare, that she continue her graduate work
effectively guaranteed by society — to seek and elsewhere. There was nothing arbitrary in such

4
appraisal of the circumstances deemed relevant. It for the priesthood, she being a laywoman and not
could be that on more mature reflection, even petitioner eligible for admission to respondent seminary.
would realize that her transfer to some other institution Mandamus to order her admission in respondent
would redound to the benefit of all concerned. At any seminary cannot lie in the absence of a clear right on
rate, as indicated earlier, only the legal aspect of the her part and a clear duty on respondent's part to so
controversy was touched upon in this decision. admit her.

WHEREFORE, the petition is dismissed for lack of Petitioner in her petition admits that she has failed to
merit. avail of and exhaust the administrative remedies open
to her but seeks to justify her failure by alleging.
Makalintal, C.J., Barredo, Antonio, Esguerra, Muñoz
Palma, Aquino, Concepcion, Jr. and Martin, JJ., That Petitioner could have recourse neither to the
concur. President of her school, Fr. Jose Cruz, he being with
the First Couple's entourage now in Red China, nor
Castro, J., took no part. with the Secretary of Education, since this is his busiest
time of the year, and June 11, 1975 is the last day for
Separate Opinions registration; ...

TEEHANKEE, J., concurring: This execuse is of course patently inept, since neither
the university president's temporary absence nor the
I concur with the dismissal of the petition for manifest Secretary of Education's having "his busiest time of the
lack of merit. year" justifies petitioner's by passing these officials
whose final administrative decision should first be
On the threadbare claim that during the summer of given. Such exhaustion of administrative remedies is a
1975 she had been admitted by respondent Fr. Antonio pre-condition for court action and would get all the facts
B. Lambino, S.J., chairman of the Faculty Admission in so as to enable the courts in a petition for review
Committee of the Loyola School of Theology (a simply to decide on the basis of the facts whether the
religious seminary for the priesthood) to attend therein questioned act of petitioner's non-admission
free of charge two summer courses for credits, constitutes an arbitrary action that would warrant
petitioner has filed the present petition for mandamus judicial intervention.
against respondents to order her admission in said
school as a student for an M.A. in Theology and for the Withal, the facts of record amply show that far from
payment to her of exemplary and moral damages and being arbitrary , petitioner's non-admission was for
"an amount equivalent more or less to attorney's fees perfectly valid considerations, as follows:
which petitioner would have paid a competent lawyer,
had she employed one." (According to petitioner, her — The Loyola School of Theology, is a seminary for
enrollment in the Loyola seminary would allegedly the priesthood; and petitioner is admittedly and
entail "only about two years more" where she would obviously disqualified and is not studying, for the
need "about four to five years more of studies" at the priesthood, she being a laywoman and therefore not
UST Graduate School for Ecclesiastical Faculties eligible for admission;
where she has now enrolled as a special student
without credit for any academic units for the subjects — Petitioner was admitted free to take some summer
taken by her.) courses this year for credits, but according to
respondent Fr. Lambino this was not an admission to a
The original respondent, Fr. Lambino, filed his degree program since the official admission by the
comment on the petition, while the two other Assistant Dean of the Graduate School of the Ateneo
respondents, the Director of Private Schools and the de Manila University (which is the institution, not the
Director, UST Graduate School, did not even deign Loyola School of Theology, that grants the decree)
(and were not required) to file their comments, required for the purpose has neither been sought by
notwithstanding the Court's resolution of June 23, 1975 petitioner nor granted by the said Assistant Dean.
requiring their comment on the amended petition, since Respondent Fr. Lambino thus asserts that he is the
by the very terms of said petition, petitioner had not wrong party to be sued;
even bothered to make any application or
representations with them before hailing them before — Petitioner claims on the contrary that she was
this Court as parties-respondents on her fancied right actually admitted for a degree program, and arguing
to enrollment and cross-enrollment at the two that "The factual issue, however, of whether or not
institutions (Loyola and UST ). petitioner was actually admitted for a degree program
needs to be resolved first"1 vehemently insists that this
The petition must be dismissed, since petitioner has Court resolve the factual issue in her favor on the basis
admittedly failed to exhaust her administrative of her bare counter-assertions and the respondent
remedies. The facts of record amply show that school's very letter rejecting her admission; (Petitioner
petitioner is obviously disqualified, and is not studying, who is not a lawyer of course does not appreciate that

5
this Court is neither a trier nor reviewer of facts and that encroachments and the scorn and derision of those
precisely one of the reasons for exhaustion of who have no patience with general principles", and
administrative remedies is that all the facts may be Laski's thesis that "the happiness of the individual, not
placed before the final administrative authorities, the well-being of the State, was the criterion by which
whose decision may be reviewed by the courts only its behavior was to be judged, his interests, not its
upon a clear showing of fraud, collusion, arbitrariness, power, set the limits to the authority it was entitled to
illegality, imposition or mistake.2); and exercise" reaffirm forcefully the basic tenet that
distinguishes a democratic from a totalitarian state, viz,
— Aside from the fact that her non-admission to that the State exists for the individual rather than the
respondent seminary for the priesthood by virtue of her other way around.
being disqualified as a laywoman is a matter of school
policy and regulation that obviously can in no way be I part ways with him of course in his factual premises
said to be arbitrary (since females all over the world are and assumptions which to my mind are not supported
up to now not admitted to the priesthood), the faculty's by the record nor the facts at bar. Foremost among
"strong opposition" to having her back in the school these are the premise that petitioner had been
after summer because "they felt that (her) frequent admitted to the theology course and cannot be refused
questions and difficulties were not always pertinent and further attendance therein, when as shown above, the
had the effect of slowing down the progress of the question of whether petitioner was in fact admitted to a
class" and respondent Fr. Lambino's courteous but degree program is a controverted one with petitioner
candid appraisal "that the advisability of (her) herself making no such averment in her petition and
completing a program (with all the course work and precisely asking that this Court resolve this "factual
thesis writing) with us is very questionable" are matters issue" and the disinclination to give due credence to
of technical and academic judgment that the courts will the reason given by Fr. Lambino for the faculty's
not ordinarily interfere with. "strong opposition" to petitioner's admission viz, that
her "frequent questions and difficulties were not always
Petitioner's action for mandamus clearly does not lie, pertinent and had the effect of slowing down the
since no cleat right for her admission to a degree progress of the class" and her failure "to give the
program for an M.A. in Theology nor a clear duty on the (faculty's) presentation a chance and exert(ed) more
part of the Loyola School of Theology (or of the Ateneo effort to understand the point made before immediately
Graduate School which is not even a party) to so admit thinking of problems and difficulties",3 when not even
her have been shown. the petitioner questions in her petition the veracity of
such faculty opposition and the quoted factual reasons
Only after exhaustion of administrative remedies and therefor but only whether the same "constitutes valid
when there is marked arbitrariness, will the courts legal ground for expulsion".
interfere with the academic judgment of the school
faculty and the proper authorities as to the competence I do not share his view that private educational
and fitness of an applicant for enrollment or to continue institutions may operate only by delegation of the State
taking up graduate studies in a graduate school. The and "are no different in this respect from the
courts simply do not have the competence nor commercial public utilities whose right to exists and to
inclination to constitute themselves as Admission operate depends upon State authority"4 and the
Committees of the universities and institutions of assumption that respondent has prescribed
higher learning and to substitute their judgment for that "unreasonable rules or regulations" when such rules
of the regularly constituted Admission Committees of have not even been submitted to the Court nor is there
such educational institutions. Were the courts to do so, any claim that such rules have even been questioned
they would conceivable be swamped with petitions for in or disapproved by the Director of Public Schools
admission from the thousands refused admission (assuming that said official has jurisdiction over a
every year, and next the thousands who flunked and religious seminary such as the Loyola School of
were dropped would also be petitioning the courts for a Theology).
judicial review of their grades!
Petitioner according to her petition has obtained
————— enrollment at the UST Graduate School for
Ecclesiastical Faculties where according to her own
Before closing this concurrence, I must make of record petition she could pursue her graduate studies for an
my concurrence with and adherence to the M.A. in Theology (after fulfilling their requirements for
fundamental principles of freedom and liberty Baccalaureate in Philosophy and assuming she has
eloquently expressed by Mr. Justice Makasiar in his the required recognized undergraduate units, as to
dissent. His expression of deep concern for the which there is some question). Under the
preservation and enhancement of the dignity and worth circumstances, it seems fair to state that petitioner may
of the human personality citing Justice Cardoso's well heed the voices and visions (that call her to a
injunction that man's freedom must be given sanctuary degree in Theology) without rejection other than that of
"against the assaults of opportunism, the expediency respondent school and certainly without being destined
of the passing hour, the erosion of small to be another Joan of Arc.

6
 citizenship and vocational training to adult citizens and
Makalintal, C.J., concurs. out-of-school youths and to create and maintain
scholarships for poor and deserving students (Sec.
MAKASIAR, J., dissenting: 8[6], Art. XV) and to promote scientific research and
invention, to patronize arts and letters, scholarships,
With his usual scholarship and characteristic style, Mr. grants-in-aid or other forms of incentives for specially
Justice Fernando has woven a persuasive majority gifted children (Sec. 9[1], [2] and [3], Art. XV).
opinion that commands respect.
On the other hand, no private person or entity has the
The 1973 Constitution provides that: "All institutions of inherent right to establish and operate a school, college
higher learning shall enjoy academic freedom" (Sec. or university.
8[2], Art. XV). This is broader than Section 6 of Article
XIV of the 1935 Constitution, which provides that: Hence, there is need of re-examining and recasting the
"Universities established by the State shall enjoy limited definition of academic freedom conceived by
academic freedom." Under the aforecited clause of the Professor Arthur Lovejoy (Encyclopedia of Social
1973 Constitution, all colleges and universities of Sciences, p. 384) to the effect that it is "the freedom of
higher learning, whether established by the State or the teacher or research worker in higher institutions of
not, are guaranteed academic freedom. learning to investigate and discuss the problems of his
science and to express his conclusions, whether
It should be stressed that the academic freedom thus through publication or in the instruction of the teacher,
guaranteed is not limited to the members of the faculty without interference from political and ecclesiastical
nor to the administrative authorities of the educational authorities or administrative opinions of institutions in
institution. It should also be deemed granted in favor of which he is employed, unless his methods are found
the student body; because all three — the by a qualified body of his own profession to be clearly
administrative authorities of the college or university, incompetent or contrary to professional ethics", which
its faculty and its student population — constitute the is echoed by MacIver (MacIver, Academic Freedom in
educational institution, without any one of which the Our Time [6], 1955) and by Hook (Hook, Academic
educational institution can neither exist nor operate. Freedom and Academic Anarchy). The scope of
The educational institution is permitted by the State to academic freedom should not be restricted to the
exist and operate, not for the benefit of its narrow formulation of Mr. Justice Frankfurter as "an
administrative authorities or faculty members, but for atmosphere in which there prevail "the four essential
the benefit of its studentry. freedoms of a university — to determine for its own
academic grounds who may teach, what may be
As Chief Justice Warren, who penned the opinion in taught, how it shall be taught, and who may be
Sweezy versus New Hampshire, emphasized: "No field admitted to study"' (His concurring opinion in Sweezy
of education is so thoroughly comprehended by man vs. New Hampshire, 353, US 234, 263 [1957]), which
that new discoveries cannot yet be made. Particularly neutralizes his belief that "it is the business of a
is that true in the social sciences, where few, if any, university to provide that atmosphere which is most
principles are accepted as absolutes. Scholarship conducive to speculation, experiment and creation", to
cannot flourish in an atmosphere of suspicion and which he however exhibits loyalty as he continued to
distrust. Teachers and students must always remain state:
free to inquire, to study and to evaluate, to gain new
maturity and understanding; otherwise our civilization Progress in the natural sciences is not remotely
will stagnate and die" (354 US 234; 250; 1 L. ed. 2nd confined to findings made in the laboratory. Insights
1311, 1325, emphasis supplied). into the mysteries of nature are born of hypothesis and
speculation. The more so is this true in the pursuit of
An individual has a natural and inherent right to learn understanding in the groping endeavors of what are
and develop his faculties. It is for this reason that the called the social sciences, the concern of which is man
1973 Constitution directs the State to aid and support and society. The problems that are the respective
the parents in the rearing of the youth (Sec. 4, Art. II, preoccupations of anthropology, economics, law,
1973 Constitution); to promote their physical, psychology, sociology and related areas of scholarship
intellectual and social well-being (Sec. 5, Art II); to are merely departmentalized dealing, by way of
establish, maintain and ensure adequate social manageable division of analysis, with interpenetrating
services in the field of education (Sec. 7, Art. II; to aspects of holistic perplexities. For society's good — if
establish and maintain a complete adequate and understanding be an essential need of society —
integrated system of education relevant to the goals of inquiries into these problems, speculation about them,
national development (Sec. 8[1] Art, XV); to recognize stimulation in others of reaction upon them, must be left
and protect the academic freedom of all institutions of unfettered as
higher learning (Sec. 8[2], Art. XV); to maintain a possible ... .
system of free public elementary education and where
finances permit, a system of free public education up ... One need only refer to the address of T. H. Huxley
to the secondary level (Sec 8[5], Art. XV); to provide at the opening of Johns Hopkins University, ... :

7
 interests, not its power, set the limits to the authority it
"In a university knowledge is its own end, not merely a was entitled to exercise" (51 SCRA 201). This
means to an end. A university ceases to be true to its individual freedom and right to happiness should be
own nature if it becomes the tool of Church or State or recognized and respected not only by the State but
any sectional interest. A university is characterized by also by enterprises authorized by the State to operate;
the spirit of free inquiry, its ideal being the ideal of for as Laski stressed: "Without freedom of the mind ...
Socrates — "to follow the argument where it leads." a man has no protection in our social order. He may
This implies the right to examine, question, modify or speak wrongly or foolishly, ... . Yet a denial of his right
reject traditional ideas and beliefs. Dogma and ... is a denial of his happiness. Thereby he becomes an
hypothesis are incompatible, and the concept of an instrument of other people's ends, not himself an end"
immutable doctrine is repugnant to the spirit of a (Laski, Liberty in the Modern State, 73, cited in Tañada
university. The concern of its scholars is not merely to and Fernando, Constitution of the Philippines, 1952
add and revise facts in relation to an accepted ed., 315).
framework, but to be ever examining and modifying the
framework itself. As Justice Holmes pronounced, "the ultimate good
desired is better reached by free trade in ideas — that
"Freedom to reason and freedom for disputation on the the best test of truth is the power of the thought to get
basis of observation and experiment are the necessary itself accepted in the competition of the market; and
conditions for the advancement of scientific that truth is the only ground upon which their wishes
knowledge. A sense of freedom is also necessary for safely can be carried out" (Abrams vs. U.S. 250 US
creative work in the arts which, equally with scientific 616).
research, is the concern of the university" (Sweezy vs.
New Hampshire 354 US 234; 262-263, emphasis The human mind is by nature an inquiring mind,
supplied). whether of the very young or of the very old or in-
between; for freedom of speech in the words of John
The cardinal article of faith of our democratic Milton is the "liberty to know, to utter, and to argue
civilization is the preservation and enhancement of the freely according to conscience above all liberties."
dignity and worth of the human personality. It was Mr.
Justice Frankfurter himself who emphasized that man's What is involved here is not merely academic freedom
"inviolate character" should be "protected to the largest of the higher institutions of learning as guaranteed by
possible extent in his thoughts and in his beliefs as the Section 8(2) of Article SV of the 1973 Constitution. The
citadel of his person" (American Communications issue here strikes at the broader freedom of expression
Association, etc. vs. Douds, 339 US 382, 421, cited in of the individual — the very core of human liberty.
Phil. Blooming Mills Employees Assn. vs. Phil.
Blooming Mills Co., Inc., et al., L-31195, June 5, 1973, Even if the term "academic freedom" were to be limited
51 SCRA 189,200), so that the individual can fully to institutions of higher learning — which to the mind of
develop himself and achieve complete fulfillment. His Dr. Vicente Sinco, an eminent authority in
freedom to seek his own happiness would mean Constitutional Law, is the right of the university as an
nothing if the same were not given sanctuary "against institution, not the academic freedom of the university
the assaults of opportunism, the expediency of the professor (Sinco, Phil. Political Law, 1962 ed., 489) —
passing hour, the erosion of small encroachments and the term "institutions of higher learning" contained in
the scorn and derision of those who have no patience the aforecited provision of our New Constitution
with general principles" (Justice Cardoso, The Nature comprehends not only the faculty and the college
of Judicial Process, 90-93, cited in Phil. Blooming Mills administrators but also the members of the student
Employees Assn. vs. Phil. Blooming Mills Co., Inc., body. While it is true that the university professor may
supra, 201). have the initiative and resourcefulness to pursue his
own research and formulate his conclusions
WE likewise reiterated in the Philippine Blooming Mills concerning the problem of his own science or subject,
case, supra, that "the purpose of the Bill of Rights is to the motivation therefor may be provoked by questions
withdraw certain subjects from the vicissitudes of addressed to him by his students. In this respect, the
political controversy, to place them beyond the reach student — specially a graduate student — must not be
of majorities and officials and to establish them as legal restrained from raising questions or from challenging
principles to be applied by the Courts. One's rights to the validity of dogmas whether theological or not. The
life, liberty and property, to free speech or free press, true scholar never avoids, but on the contrary
freedom of worship and assembly, and to the welcomes and encourages, such searching questions
fundamental rights may not be submitted to a vote; they even if the same will have the tendency to uncover his
depend on the outcome of no elections" (51 SCRA own ignorance. It is not the happiness and self-
201), much less on the caprice of bigoted, intolerant fulfillment of the professor alone that are guaranteed.
and impatient professors and college administrators. In The happiness and full development of the curious
the stirring language of Laski, "the happiness of the intellect of the student are protected by the narrow
individual not the well-being of the State, was the guarantee of academic freedom and more so by the
criterion by which its behaviour was to be judged, his

8
broader right of free expression, which includes free the various courses of study offered by it, this
speech and press, and academic freedom. prerogative does not include the power to prescribe
unreasonable rules or regulations violative of the
After having been admitted to the theology, course, constitutional rights of the citizen, such as freedom of
petitioner cannot be refused further attendance therein expression in general and academic freedom in
on the ground that "her frequent questions and particular. The educational institutions perform a more
difficulties were not always pertinent and had the effect vital function than the ordinary public utilities. The
of slowing down the progress of the class ... ." It seems institution of learning feeds and nurtures the human
that this excuse is merely an euphemistic way of mind and spirit to insure a robust, healthy and
characterizing her questions which might be educated citizenry on whom national survival and
embarrassing to the clergy or to the professor or other national greatness depend. The ordinary public utilities
sensitive souls, for her questions might impugn the merely serve the material comforts and convenience of
validity of their tenets, dogmas and beliefs. It is hard to the people, who can certainly go on living without them.
believe that "her frequent questions and difficulties" But the people cannot wallow in darkness and
slowed down the progress of the class; because ignorance without hastening their extermination from
respondent Father Lambino himself recognized that the face of the earth.
the petitioner is endowed with "the requisite intellectual
ability" and accordingly merited grades of B+ and B in To repeat the reminder of Chief Justice Warren:
two theology subjects. "Scholarship cannot flourish in an atmosphere of
suspicion and distrust. Teachers and students must
Respondents obviously fear Laski's prophecy:" The always remain free to inquire, to study and to evaluate,
heresies we may suppress today may be the to gain new maturity and understanding; otherwise our
orthodoxies of tomorrow. New truths begins always in civilization will stagnate and die " (354 US 234, 250; 1
minority of one; it must be someone's perception L ed. 2nd 1311, 1325, emphasis supplied.).
before it becomes a general perception. The world
gains nothing from a refusal to entertain the possibility Justice Fernando himself fittingly concludes:
that a new idea may be true. Nor can we pick and "Intellectual liberty occupies a place inferior to none in
choose among our suppressions with any prospect of the hierarchy of human values. The mind must be free
success. It would, indeed, be hardly beyond the mark to think what it wills, whether in the secular or religious
to affirm that a list of opinions condemned in the past sphere, to give expression to its beliefs by oral
as wrong or dangerous would be a list of the discourse or through the media, and thus seek other
commonplaces of our time" (Laski, Liberty in the candid views in occasions or gatherings or in more
Modern State, p. 75, cited in Tañada and Fernando, permanent aggrupations. Embraced in such concept
Constitution of the Philippines, 1952 ed., 316-317). then are freedom of religion, freedom of speech, of the
press, assembly and petition, and freedom of
If she flunked in said subjects or the entire course, she association" (Fernando on the Philippine Constitution,
could have been justifiably denied enrollment in the 1974 ed., p. 565).
second semester. But that is not the case here, as
aforestated. The case of herein petitioner is a mild prelude to a re-
enactment of the persecution of Joan of Arc. Sectarian
The respondents never offered as justification for their schools should have realized by now that intolerance,
refusing petitioner admission to the next semester bigotry and the inquisition — relics of the Dark Ages —
limitations of space facilities, professors and optimum tyrannize the mind and spirit of man and are antithetical
classroom size. It is doubtful whether the same could to their very function of nourishing the intellect and
have been a valid reason in refusing her further spreading enlightenment.
admission, after she had complied with all the other
requirements. In my view, the petitioner has a clear right, and the
respondents have the equally clear duty to allow her to
And the fact that she was admitted free to study continue studying theology.
theology without intending to be a priest, does not
weaken her position. It should be stressed that Separate Opinions
education is a sovereign state function. It is a vital duty
of the state which can delegate the same to private TEEHANKEE, J., concurring:
educational institutions that are qualified and duly
authorized to operate. Private educational institutions I concur with the dismissal of the petition for manifest
therefore are no different in this respect from the lack of merit.
commercial public utilities, whose right to exist and to
operate depends upon State authority. The moment On the threadbare claim that during the summer of
they are allowed to operate, they must abide by the 1975 she had been admitted by respondent Fr. Antonio
Constitution, laws and implementing rules of the B. Lambino, S.J., chairman of the Faculty Admission
Government on the matter. While the college or Committee of the Loyola School of Theology (a
university can prescribe regulations for admission to religious seminary for the priesthood) to attend therein

9
free of charge two summer courses for credits, constitutes an arbitrary action that would warrant
petitioner has filed the present petition for mandamus judicial intervention.
against respondents to order her admission in said
school as a student for an M.A. in Theology and for the Withal, the facts of record amply show that far from
payment to her of exemplary and moral damages and being arbitrary , petitioner's non-admission was for
"an amount equivalent more or less to attorney's fees perfectly valid considerations, as follows:
which petitioner would have paid a competent lawyer,
had she employed one." (According to petitioner, her — The Loyola School of Theology, is a seminary for
enrollment in the Loyola seminary would allegedly the priesthood; and petitioner is admittedly and
entail "only about two years more" where she would obviously disqualified and is not studying, for the
need "about four to five years more of studies" at the priesthood, she being a laywoman and therefore not
UST Graduate School for Ecclesiastical Faculties eligible for admission;
where she has now enrolled as a special student
without credit for any academic units for the subjects — Petitioner was admitted free to take some summer
taken by her.) courses this year for credits, but according to
respondent Fr. Lambino this was not an admission to a
The original respondent, Fr. Lambino, filed his degree program since the official admission by the
comment on the petition, while the two other Assistant Dean of the Graduate School of the Ateneo
respondents, the Director of Private Schools and the de Manila University (which is the institution, not the
Director, UST Graduate School, did not even deign Loyola School of Theology, that grants the decree)
(and were not required) to file their comments, required for the purpose has neither been sought by
notwithstanding the Court's resolution of June 23, 1975 petitioner nor granted by the said Assistant Dean.
requiring their comment on the amended petition, since Respondent Fr. Lambino thus asserts that he is the
by the very terms of said petition, petitioner had not wrong party to be sued;
even bothered to make any application or
representations with them before hailing them before — Petitioner claims on the contrary that she was
this Court as parties-respondents on her fancied right actually admitted for a degree program, and arguing
to enrollment and cross-enrollment at the two that "The factual issue, however, of whether or not
institutions (Loyola and UST ). petitioner was actually admitted for a degree program
needs to be resolved first"1 vehemently insists that this
The petition must be dismissed, since petitioner has Court resolve the factual issue in her favor on the basis
admittedly failed to exhaust her administrative of her bare counter-assertions and the respondent
remedies. The facts of record amply show that school's very letter rejecting her admission; (Petitioner
petitioner is obviously disqualified, and is not studying, who is not a lawyer of course does not appreciate that
for the priesthood, she being a laywoman and not this Court is neither a trier nor reviewer of facts and that
eligible for admission to respondent seminary. precisely one of the reasons for exhaustion of
Mandamus to order her admission in respondent administrative remedies is that all the facts may be
seminary cannot lie in the absence of a clear right on placed before the final administrative authorities,
her part and a clear duty on respondent's part to so whose decision may be reviewed by the courts only
admit her. upon a clear showing of fraud, collusion, arbitrariness,
illegality, imposition or mistake.2); and
Petitioner in her petition admits that she has failed to
avail of and exhaust the administrative remedies open — Aside from the fact that her non-admission to
to her but seeks to justify her failure by alleging. respondent seminary for the priesthood by virtue of her
being disqualified as a laywoman is a matter of school
That Petitioner could have recourse neither to the policy and regulation that obviously can in no way be
President of her school, Fr. Jose Cruz, he being with said to be arbitrary (since females all over the world are
the First Couple's entourage now in Red China, nor up to now not admitted to the priesthood), the faculty's
with the Secretary of Education, since this is his busiest "strong opposition" to having her back in the school
time of the year, and June 11, 1975 is the last day for after summer because "they felt that (her) frequent
registration; ... questions and difficulties were not always pertinent and
had the effect of slowing down the progress of the
This execuse is of course patently inept, since neither class" and respondent Fr. Lambino's courteous but
the university president's temporary absence nor the candid appraisal "that the advisability of (her)
Secretary of Education's having "his busiest time of the completing a program (with all the course work and
year" justifies petitioner's by passing these officials thesis writing) with us is very questionable" are matters
whose final administrative decision should first be of technical and academic judgment that the courts will
given. Such exhaustion of administrative remedies is a not ordinarily interfere with.
pre-condition for court action and would get all the facts
in so as to enable the courts in a petition for review Petitioner's action for mandamus clearly does not lie,
simply to decide on the basis of the facts whether the since no cleat right for her admission to a degree
questioned act of petitioner's non-admission program for an M.A. in Theology nor a clear duty on the

10
part of the Loyola School of Theology (or of the Ateneo effort to understand the point made before immediately
Graduate School which is not even a party) to so admit thinking of problems and difficulties",3 when not even
her have been shown. the petitioner questions in her petition the veracity of
such faculty opposition and the quoted factual reasons
Only after exhaustion of administrative remedies and therefor but only whether the same "constitutes valid
when there is marked arbitrariness, will the courts legal ground for expulsion".
interfere with the academic judgment of the school
faculty and the proper authorities as to the competence I do not share his view that private educational
and fitness of an applicant for enrollment or to continue institutions may operate only by delegation of the State
taking up graduate studies in a graduate school. The and "are no different in this respect from the
courts simply do not have the competence nor commercial public utilities whose right to exists and to
inclination to constitute themselves as Admission operate depends upon State authority"4 and the
Committees of the universities and institutions of assumption that respondent has prescribed
higher learning and to substitute their judgment for that "unreasonable rules or regulations" when such rules
of the regularly constituted Admission Committees of have not even been submitted to the Court nor is there
such educational institutions. Were the courts to do so, any claim that such rules have even been questioned
they would conceivable be swamped with petitions for in or disapproved by the Director of Public Schools
admission from the thousands refused admission (assuming that said official has jurisdiction over a
every year, and next the thousands who flunked and religious seminary such as the Loyola School of
were dropped would also be petitioning the courts for a Theology).
judicial review of their grades!
Petitioner according to her petition has obtained
————— enrollment at the UST Graduate School for
Ecclesiastical Faculties where according to her own
Before closing this concurrence, I must make of record petition she could pursue her graduate studies for an
my concurrence with and adherence to the M.A. in Theology (after fulfilling their requirements for
fundamental principles of freedom and liberty Baccalaureate in Philosophy and assuming she has
eloquently expressed by Mr. Justice Makasiar in his the required recognized undergraduate units, as to
dissent. His expression of deep concern for the which there is some question). Under the
preservation and enhancement of the dignity and worth circumstances, it seems fair to state that petitioner may
of the human personality citing Justice Cardoso's well heed the voices and visions (that call her to a
injunction that man's freedom must be given sanctuary degree in Theology) without rejection other than that of
"against the assaults of opportunism, the expediency respondent school and certainly without being destined
of the passing hour, the erosion of small to be another Joan of Arc.
encroachments and the scorn and derision of those
who have no patience with general principles", and Makalintal, C.J., concurs.
Laski's thesis that "the happiness of the individual, not
the well-being of the State, was the criterion by which MAKASIAR, J., dissenting:
its behavior was to be judged, his interests, not its
power, set the limits to the authority it was entitled to With his usual scholarship and characteristic style, Mr.
exercise" reaffirm forcefully the basic tenet that Justice Fernando has woven a persuasive majority
distinguishes a democratic from a totalitarian state, viz, opinion that commands respect.
that the State exists for the individual rather than the
other way around. The 1973 Constitution provides that: "All institutions of
higher learning shall enjoy academic freedom" (Sec.
I part ways with him of course in his factual premises 8[2], Art. XV). This is broader than Section 6 of Article
and assumptions which to my mind are not supported XIV of the 1935 Constitution, which provides that:
by the record nor the facts at bar. Foremost among "Universities established by the State shall enjoy
these are the premise that petitioner had been academic freedom." Under the aforecited clause of the
admitted to the theology course and cannot be refused 1973 Constitution, all colleges and universities of
further attendance therein, when as shown above, the higher learning, whether established by the State or
question of whether petitioner was in fact admitted to a not, are guaranteed academic freedom.
degree program is a controverted one with petitioner
herself making no such averment in her petition and It should be stressed that the academic freedom thus
precisely asking that this Court resolve this "factual guaranteed is not limited to the members of the faculty
issue" and the disinclination to give due credence to nor to the administrative authorities of the educational
the reason given by Fr. Lambino for the faculty's institution. It should also be deemed granted in favor of
"strong opposition" to petitioner's admission viz, that the student body; because all three — the
her "frequent questions and difficulties were not always administrative authorities of the college or university,
pertinent and had the effect of slowing down the its faculty and its student population — constitute the
progress of the class" and her failure "to give the educational institution, without any one of which the
(faculty's) presentation a chance and exert(ed) more educational institution can neither exist nor operate.

11
The educational institution is permitted by the State to academic freedom should not be restricted to the
exist and operate, not for the benefit of its narrow formulation of Mr. Justice Frankfurter as "an
administrative authorities or faculty members, but for atmosphere in which there prevail "the four essential
the benefit of its studentry. freedoms of a university — to determine for its own
academic grounds who may teach, what may be
As Chief Justice Warren, who penned the opinion in taught, how it shall be taught, and who may be
Sweezy versus New Hampshire, emphasized: "No field admitted to study"' (His concurring opinion in Sweezy
of education is so thoroughly comprehended by man vs. New Hampshire, 353, US 234, 263 [1957]), which
that new discoveries cannot yet be made. Particularly neutralizes his belief that "it is the business of a
is that true in the social sciences, where few, if any, university to provide that atmosphere which is most
principles are accepted as absolutes. Scholarship conducive to speculation, experiment and creation", to
cannot flourish in an atmosphere of suspicion and which he however exhibits loyalty as he continued to
distrust. Teachers and students must always remain state:
free to inquire, to study and to evaluate, to gain new
maturity and understanding; otherwise our civilization Progress in the natural sciences is not remotely
will stagnate and die" (354 US 234; 250; 1 L. ed. 2nd confined to findings made in the laboratory. Insights
1311, 1325, emphasis supplied). into the mysteries of nature are born of hypothesis and
speculation. The more so is this true in the pursuit of
An individual has a natural and inherent right to learn understanding in the groping endeavors of what are
and develop his faculties. It is for this reason that the called the social sciences, the concern of which is man
1973 Constitution directs the State to aid and support and society. The problems that are the respective
the parents in the rearing of the youth (Sec. 4, Art. II, preoccupations of anthropology, economics, law,
1973 Constitution); to promote their physical, psychology, sociology and related areas of scholarship
intellectual and social well-being (Sec. 5, Art II); to are merely departmentalized dealing, by way of
establish, maintain and ensure adequate social manageable division of analysis, with interpenetrating
services in the field of education (Sec. 7, Art. II; to aspects of holistic perplexities. For society's good — if
establish and maintain a complete adequate and understanding be an essential need of society —
integrated system of education relevant to the goals of inquiries into these problems, speculation about them,
national development (Sec. 8[1] Art, XV); to recognize stimulation in others of reaction upon them, must be left
and protect the academic freedom of all institutions of unfettered as
higher learning (Sec. 8[2], Art. XV); to maintain a possible ... .
system of free public elementary education and where
finances permit, a system of free public education up ... One need only refer to the address of T. H. Huxley
to the secondary level (Sec 8[5], Art. XV); to provide at the opening of Johns Hopkins University, ... :
citizenship and vocational training to adult citizens and
out-of-school youths and to create and maintain "In a university knowledge is its own end, not merely a
scholarships for poor and deserving students (Sec. means to an end. A university ceases to be true to its
8[6], Art. XV) and to promote scientific research and own nature if it becomes the tool of Church or State or
invention, to patronize arts and letters, scholarships, any sectional interest. A university is characterized by
grants-in-aid or other forms of incentives for specially the spirit of free inquiry, its ideal being the ideal of
gifted children (Sec. 9[1], [2] and [3], Art. XV). Socrates — "to follow the argument where it leads."
This implies the right to examine, question, modify or
On the other hand, no private person or entity has the reject traditional ideas and beliefs. Dogma and
inherent right to establish and operate a school, college hypothesis are incompatible, and the concept of an
or university. immutable doctrine is repugnant to the spirit of a
university. The concern of its scholars is not merely to
Hence, there is need of re-examining and recasting the add and revise facts in relation to an accepted
limited definition of academic freedom conceived by framework, but to be ever examining and modifying the
Professor Arthur Lovejoy (Encyclopedia of Social framework itself.
Sciences, p. 384) to the effect that it is "the freedom of
the teacher or research worker in higher institutions of "Freedom to reason and freedom for disputation on the
learning to investigate and discuss the problems of his basis of observation and experiment are the necessary
science and to express his conclusions, whether conditions for the advancement of scientific
through publication or in the instruction of the teacher, knowledge. A sense of freedom is also necessary for
without interference from political and ecclesiastical creative work in the arts which, equally with scientific
authorities or administrative opinions of institutions in research, is the concern of the university" (Sweezy vs.
which he is employed, unless his methods are found New Hampshire 354 US 234; 262-263, emphasis
by a qualified body of his own profession to be clearly supplied).
incompetent or contrary to professional ethics", which
is echoed by MacIver (MacIver, Academic Freedom in The cardinal article of faith of our democratic
Our Time [6], 1955) and by Hook (Hook, Academic civilization is the preservation and enhancement of the
Freedom and Academic Anarchy). The scope of dignity and worth of the human personality. It was Mr.

12
Justice Frankfurter himself who emphasized that man's What is involved here is not merely academic freedom
"inviolate character" should be "protected to the largest of the higher institutions of learning as guaranteed by
possible extent in his thoughts and in his beliefs as the Section 8(2) of Article SV of the 1973 Constitution. The
citadel of his person" (American Communications issue here strikes at the broader freedom of expression
Association, etc. vs. Douds, 339 US 382, 421, cited in of the individual — the very core of human liberty.
Phil. Blooming Mills Employees Assn. vs. Phil.
Blooming Mills Co., Inc., et al., L-31195, June 5, 1973, Even if the term "academic freedom" were to be limited
51 SCRA 189,200), so that the individual can fully to institutions of higher learning — which to the mind of
develop himself and achieve complete fulfillment. His Dr. Vicente Sinco, an eminent authority in
freedom to seek his own happiness would mean Constitutional Law, is the right of the university as an
nothing if the same were not given sanctuary "against institution, not the academic freedom of the university
the assaults of opportunism, the expediency of the professor (Sinco, Phil. Political Law, 1962 ed., 489) —
passing hour, the erosion of small encroachments and the term "institutions of higher learning" contained in
the scorn and derision of those who have no patience the aforecited provision of our New Constitution
with general principles" (Justice Cardoso, The Nature comprehends not only the faculty and the college
of Judicial Process, 90-93, cited in Phil. Blooming Mills administrators but also the members of the student
Employees Assn. vs. Phil. Blooming Mills Co., Inc., body. While it is true that the university professor may
supra, 201). have the initiative and resourcefulness to pursue his
own research and formulate his conclusions
WE likewise reiterated in the Philippine Blooming Mills concerning the problem of his own science or subject,
case, supra, that "the purpose of the Bill of Rights is to the motivation therefor may be provoked by questions
withdraw certain subjects from the vicissitudes of addressed to him by his students. In this respect, the
political controversy, to place them beyond the reach student — specially a graduate student — must not be
of majorities and officials and to establish them as legal restrained from raising questions or from challenging
principles to be applied by the Courts. One's rights to the validity of dogmas whether theological or not. The
life, liberty and property, to free speech or free press, true scholar never avoids, but on the contrary
freedom of worship and assembly, and to the welcomes and encourages, such searching questions
fundamental rights may not be submitted to a vote; they even if the same will have the tendency to uncover his
depend on the outcome of no elections" (51 SCRA own ignorance. It is not the happiness and self-
201), much less on the caprice of bigoted, intolerant fulfillment of the professor alone that are guaranteed.
and impatient professors and college administrators. In The happiness and full development of the curious
the stirring language of Laski, "the happiness of the intellect of the student are protected by the narrow
individual not the well-being of the State, was the guarantee of academic freedom and more so by the
criterion by which its behaviour was to be judged, his broader right of free expression, which includes free
interests, not its power, set the limits to the authority it speech and press, and academic freedom.
was entitled to exercise" (51 SCRA 201). This
individual freedom and right to happiness should be After having been admitted to the theology, course,
recognized and respected not only by the State but petitioner cannot be refused further attendance therein
also by enterprises authorized by the State to operate; on the ground that "her frequent questions and
for as Laski stressed: "Without freedom of the mind ... difficulties were not always pertinent and had the effect
a man has no protection in our social order. He may of slowing down the progress of the class ... ." It seems
speak wrongly or foolishly, ... . Yet a denial of his right that this excuse is merely an euphemistic way of
... is a denial of his happiness. Thereby he becomes an characterizing her questions which might be
instrument of other people's ends, not himself an end" embarrassing to the clergy or to the professor or other
(Laski, Liberty in the Modern State, 73, cited in Tañada sensitive souls, for her questions might impugn the
and Fernando, Constitution of the Philippines, 1952 validity of their tenets, dogmas and beliefs. It is hard to
ed., 315). believe that "her frequent questions and difficulties"
slowed down the progress of the class; because
As Justice Holmes pronounced, "the ultimate good respondent Father Lambino himself recognized that
desired is better reached by free trade in ideas — that the petitioner is endowed with "the requisite intellectual
the best test of truth is the power of the thought to get ability" and accordingly merited grades of B+ and B in
itself accepted in the competition of the market; and two theology subjects.
that truth is the only ground upon which their wishes
safely can be carried out" (Abrams vs. U.S. 250 US Respondents obviously fear Laski's prophecy:" The
616). heresies we may suppress today may be the
orthodoxies of tomorrow. New truths begins always in
The human mind is by nature an inquiring mind, minority of one; it must be someone's perception
whether of the very young or of the very old or in- before it becomes a general perception. The world
between; for freedom of speech in the words of John gains nothing from a refusal to entertain the possibility
Milton is the "liberty to know, to utter, and to argue that a new idea may be true. Nor can we pick and
freely according to conscience above all liberties." choose among our suppressions with any prospect of
success. It would, indeed, be hardly beyond the mark

13
to affirm that a list of opinions condemned in the past sphere, to give expression to its beliefs by oral
as wrong or dangerous would be a list of the discourse or through the media, and thus seek other
commonplaces of our time" (Laski, Liberty in the candid views in occasions or gatherings or in more
Modern State, p. 75, cited in Tañada and Fernando, permanent aggrupations. Embraced in such concept
Constitution of the Philippines, 1952 ed., 316-317). then are freedom of religion, freedom of speech, of the
press, assembly and petition, and freedom of
If she flunked in said subjects or the entire course, she association" (Fernando on the Philippine Constitution,
could have been justifiably denied enrollment in the 1974 ed., p. 565).
second semester. But that is not the case here, as
aforestated. The case of herein petitioner is a mild prelude to a re-
enactment of the persecution of Joan of Arc. Sectarian
The respondents never offered as justification for their schools should have realized by now that intolerance,
refusing petitioner admission to the next semester bigotry and the inquisition — relics of the Dark Ages —
limitations of space facilities, professors and optimum tyrannize the mind and spirit of man and are antithetical
classroom size. It is doubtful whether the same could to their very function of nourishing the intellect and
have been a valid reason in refusing her further spreading enlightenment.
admission, after she had complied with all the other
requirements. In my view, the petitioner has a clear right, and the
respondents have the equally clear duty to allow her to
And the fact that she was admitted free to study continue studying theology.
theology without intending to be a priest, does not
weaken her position. It should be stressed that DLSU VS CA (2007)
education is a sovereign state function. It is a vital duty
of the state which can delegate the same to private G.R. No. 127980 December 19, 2007
educational institutions that are qualified and duly
authorized to operate. Private educational institutions DE LA SALLE UNIVERSITY, INC., EMMANUEL
therefore are no different in this respect from the SALES, RONALD HOLMES, JUDE DELA TORRE,
commercial public utilities, whose right to exist and to AMPARO RIO, CARMELITA QUEBENGCO, AGNES
operate depends upon State authority. The moment YUHICO and JAMES YAP, petitioners,
they are allowed to operate, they must abide by the vs.
Constitution, laws and implementing rules of the THE COURT OF APPEALS, HON. WILFREDO D.
Government on the matter. While the college or REYES, in his capacity as Presiding Judge of Branch
university can prescribe regulations for admission to 36, Regional Trial Court of Manila, THE COMMISSION
the various courses of study offered by it, this ON HIGHER EDUCATION, THE DEPARTMENT OF
prerogative does not include the power to prescribe EDUCATION CULTURE AND SPORTS, ALVIN
unreasonable rules or regulations violative of the AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD
constitutional rights of the citizen, such as freedom of REVERENTE and ROBERTO VALDES, JR.,
expression in general and academic freedom in respondents.
particular. The educational institutions perform a more
vital function than the ordinary public utilities. The DECISION
institution of learning feeds and nurtures the human
mind and spirit to insure a robust, healthy and REYES, R.T., J.:
educated citizenry on whom national survival and
national greatness depend. The ordinary public utilities NAGTATAGIS sa kasong ito ang karapatang mag-aral
merely serve the material comforts and convenience of ng apat na estudyante na nasangkot sa away ng
the people, who can certainly go on living without them. dalawang fraternity at ang karapatang akademiko ng
But the people cannot wallow in darkness and isang pamantasan.
ignorance without hastening their extermination from
the face of the earth. PRIVATE respondents Alvin Aguilar, James Paul
Bungubung, Richard Reverente and Roberto Valdes,
To repeat the reminder of Chief Justice Warren: Jr. are members of Tau Gamma Phi Fraternity who
"Scholarship cannot flourish in an atmosphere of were expelled by the De La Salle University (DLSU)
suspicion and distrust. Teachers and students must and College of Saint Benilde (CSB)1 Joint Discipline
always remain free to inquire, to study and to evaluate, Board because of their involvement in an offensive
to gain new maturity and understanding; otherwise our action causing injuries to petitioner James Yap and
civilization will stagnate and die " (354 US 234, 250; 1 three other student members of Domino Lux Fraternity.
L ed. 2nd 1311, 1325, emphasis supplied.). This is the backdrop of the controversy before Us
pitting private respondents' right to education vis-a-vis
Justice Fernando himself fittingly concludes: the University's right to academic freedom.
"Intellectual liberty occupies a place inferior to none in
the hierarchy of human values. The mind must be free ASSAILED in this Petition for Certiorari, Prohibition and
to think what it wills, whether in the secular or religious Mandamus under Rule 65 of the Rules of Court are the

14
following: (1) Resolution of the Court of Appeals (CA) running towards him. He panicked. He did not know
dated July 30, 1996 dismissing DLSU's petition for what to do. Then, respondent Bungubung punched him
certiorari against respondent Judge and private in the head with something heavy in his hands –
respondents Aguilar, Bungubung, Reverente, and "parang knuckles." Respondents Reverente and Lee
Valdes, Jr.;2 (2) Resolution of the CA dated October were behind Yap, punching him. Respondents
15, 1996 denying the motion for reconsideration;3 (3) Bungubung and Valdes who were in front of him, were
Order dated January 7, 1997 of the Regional Trial also punching him. As he was lying on the street,
Court (RTC), Branch 36 Manila granting private respondent Aguilar kicked him. People shouted;
respondent Aguilar's motion to reiterate writ of guards arrived; and the group of attackers left.
preliminary injunction;4 and (4) Resolution No. 181-96
dated May 14, 1996 of the Commission on Higher Mr. Yap could not recognize the other members of the
Education (CHED) exonerating private respondent group who attacked him. With respect to respondent
Aguilar and lowering the penalties for the other private Papio, Mr. Yap said "hindi ko nakita ang mukha niya,
respondents from expulsion to exclusion.5 hindi ko nakita sumuntok siya." What Mr. Yap saw was
a long haired guy also running with the group.
Factual Antecedents
Two guards escorted Mr. Yap inside the campus. At
Gleaned from the May 3, 1995 Decision of the DLSU- this point, Mr. Dennis Pascual was at the Engineering
CSB Joint Discipline Board, two violent incidents on Gate. Mr. Pascual accompanied Yap to the university
March 29, 1995 involving private respondents clinic; reported the incident to the Discipline Office; and
occurred: informed his fraternity brods at their tambayan.
According to Mr. Pascual, their head of the Domino Lux
x x x From the testimonies of the complaining Fraternity said: "Walang gagalaw. Uwian na lang."
witnesses, it appears that one week prior to March 29,
1995, Mr. James Yap was eating his dinner alone in Mr. Ericson Cano, who was supposed to hitch a ride
Manang's Restaurant near La Salle, when he with Dennis Pascual, saw him under the clock in Miguel
overheard two men bad-mouthing and apparently Building. However, they did not proceed directly for
angry at Domino Lux. He ignored the comments of the home. With a certain Michael Perez, they went towards
two. When he arrived at his boarding house, he the direction of Dagonoy Street because Mr. Pascual
mentioned the remarks to his two other brods while was supposed to pick up a book for his friend from
watching television. These two brods had earlier another friend who lives somewhere in the area.
finished eating their dinner at Manang's. Then, the
three, together with four other persons went back to As they were along Dagonoy Street, and before they
Manang's and confronted the two who were still in the could pass the Kolehiyo ng Malate Restaurant, Mr.
restaurant. By admission of respondent Bungubung in Cano first saw several guys inside the restaurant. He
his testimony, one of the two was a member of the Tau said not to mind them and just keep on walking.
Gamma Phi Fraternity. There was no rumble or However, the group got out of the restaurant, among
physical violence then. them respondents Reverente, Lee and Valdes. Mr.
Cano told Mr. Lee: "Ayaw namin ng gulo." But,
After this incident, a meeting was conducted between respondent Lee hit Mr. Cano without provocation.
the two heads of the fraternity through the intercession Respondent Reverente kicked Mr. Pascual and
of the Student Council. The Tau Gamma Phi Fraternity respondent Lee also hit Mr. Pascual. Mr. Cano and Mr.
was asking for an apology. "Kailangan ng apology" in Perez managed to run from the mauling and they were
the words of respondent Aguilar. But no apology was chased by respondent Lee and two others.
made.
Mr. Pascual was left behind. After respondent
Then, 5 members of the Tau Gamma Phi Fraternity Reverente first kicked him, Mr. Pascual was ganged-
went to the tambayan of the Domino Lux Fraternity in upon by the rest. He was able to run, but the group was
the campus. Among them were respondents able to catch up with him. His shirt was torn and he was
Bungubung, Reverente and Papio. They were looking hit at the back of his head with a lead pipe. Respondent
for a person whose description matched James Yap. Lee who was chasing Cano and Perez, then returned
According to them, this person supposedly "nambastos to Mr. Pascual.
ng brod." As they could not find Mr. Yap, one of them
remarked "Paano ba iyan. Pasensiya na lang." Mr. Pascual identified respondents Reverente and Lee,
as among those who hit him. Although Mr. Pascual did
Came March 29, 1995 and the following events. not see respondent Valdes hit him, he identified
respondent Valdez (sic) as also one of the members of
Ten minutes before his next class at 6:00 p.m., Mr. the group.
James Yap went out of the campus using the
Engineering Gate to buy candies across Taft Avenue. In fact, Mr. Cano saw respondent Valdes near Mr.
As he was about to re-cross Taft Avenue, he heard Pascual. He was almost near the corner of Leon Guinto
heavy footsteps at his back. Eight to ten guys were and Estrada; while respondent Pascual who managed

15
to run was stopped at the end of Dagonoy along Leon On or before April 18, 1995, you are further directed to
Guinto. Respondent Valdes shouted: "Mga putang-ina provide the Board, through the Discipline Office, with a
niyo." Respondent Reverente hit Mr. Pascual for the list of your witnesses as well as the sworn statement of
last time. Apparently being satisfied with their their proposed testimony.
handiwork, the group left. The victims, Cano, Perez
and Pascual proceeded to a friend's house and waited Your failure to appear at the scheduled hearing or your
for almost two hours, or at around 8:00 in the evening failure to submit the list of witnesses and the sworn
before they returned to the campus to have their statement of their proposed testimony will be
wounds treated. Apparently, there were three cars considered a waiver on your part to present evidence
roaming the vicinity.6 and as an admission of the principal act complained of.

The mauling incidents were a result of a fraternity war. For your strict compliance.13
The victims, namely: petitioner James Yap and Dennis
Pascual, Ericson Cano, and Michael Perez, are During the proceedings before the Board on April 19
members of the "Domino Lux Fraternity," while the and 28, 1995, private respondents interposed the
alleged assailants, private respondents Alvin Aguilar, common defense of alibi, summarized by the DLSU-
James Paul Bungubung, Richard Reverente and CSB Joint Discipline Board as follows:
Roberto Valdes, Jr. are members of "Tau Gamma Phi
Fraternity," a rival fraternity. First, in the case of respondent Bungubung, March 29,
1995 was one of the few instances when he was
The next day, March 30, 1995, petitioner Yap lodged a picked-up by a driver, a certain Romeo S. Carillo. Most
complaint7 with the Discipline Board of DLSU charging of the time, respondent Bungubung goes home alone
private respondents with "direct assault." Similar sans driver. But on this particular date, respondent
complaints8 were also filed by Dennis Pascual and Bungubung said that his dad asked his permission to
Ericson Cano against Alvin Lee and private use the car and thus, his dad instructed this driver
respondents Valdes and Reverente. Thus, cases Carillo to pick-up his son. Mr. Carillo is not a family
entitled "De La Salle University and College of St. driver, but works from 8:00 a.m. to 5:00 p.m. for the
Benilde v. Alvin Aguilar (AB-BSM/9152105), James Philippine Ports Authority where the elder Bungubung
Paul Bungubung (AB-PSM/9234403), Robert R. is also employed.
Valdes, Jr. (BS-BS-APM/9235086), Alvin Lee
(EDD/9462325), Richard Reverente (AB- Thus, attempting to corroborate the alibi of respondent
MGT/9153837) and Malvin A. Papio (AB- Bungubung, Mr. Carillo said that he arrived at La Salle
MGT/9251227)" were docketed as Discipline Case No. at 4:56 p.m.; picked-up respondent at 5:02 p.m.; took
9495-3-25121. the Roxas Blvd. route towards respondent's house in
BF Parañaque (on a Wednesday in Baclaran); and
The Director of the DLSU Discipline Office sent arrived at the house at 6:15 p.m. Respondent
separate notices to private respondents Aguilar, Bungubung was dropped-off in his house, and taking
Bungubung and Valdes, Jr. and Reverente informing the same route back, Mr. Carillo arrived at the South
them of the complaints and requiring them to answer. Harbor at 6:55 p.m. the Philippine Ports Authority is
Private respondents filed their respective answers.9 located at the South Harbor.14

As it appeared that students from DLSU and CSB10 xxxx

were involved in the mauling incidents, a joint DLSU-
CSB Discipline Board11 was formed to investigate the Secondly, respondent Valdes said that he was with his
incidents. Thus, petitioner Board Chairman Emmanuel friends at McDonald's Taft just before 6:00 p.m. of
Sales sent notices of hearing12 to private respondents March 29, 1995. He said that he left McDonald at 5:50
on April 12, 1995. Said notices uniformly stated as p.m. together to get some medicine at the university
follows: clinic for his throat irritation. He said that he was at the
clinic at 5:52 p.m. and went back to McDonald, all
Please be informed that a joint and expanded within a span of 3 or even 4 minutes.
Discipline Board had been constituted to hear and
deliberate the charge against you for violation of CHED Two witnesses, a certain Sharon Sia and the girlfriend
Order No. 4 arising from the written complaints of of respondent Valdes, a certain Jorgette Aquino,
James Yap, Dennis C. Pascual, and Ericson Y. Cano. attempted to corroborate Valdez' alibi.15

You are directed to appear at the hearing of the Board xxxx

scheduled on April 19, 1995 at 9:00 a.m. at the Bro.
Connon Hall for you and your witnesses to give Third, respondent Reverente told that (sic) the Board
testimony and present evidence in your behalf. You that he was at his home at 5:00 p.m. of March 29, 1995.
may be assisted by a lawyer when you give your He said that he was given the responsibility to be the
testimony or those of your witnesses. paymaster of the construction workers who were doing
some works in the apartment of his parents. Although

16
he had classes in the evening, the workers according Subsequently, private respondent Aguilar filed an ex
to him would wait for him sometimes up to 9:00 p.m. parte motion to amend his petition to correct an
when he arrives from his classes. The workers get paid allegation in paragraph 3.2125 of his original petition.
everyday. Respondent Judge amended the TRO26 to conform to
the correction made in the amended petition.27
Respondent Reverente submitted an affidavit,
unsigned by the workers listed there, supposedly On June 7, 1995, the CHED directed DLSU to furnish
attesting to the fact that he paid the workers at the date it with copies of the case records of Discipline Case No.
and time in question.16 9495-3-25121,28 in view of the authority granted to it
under Section 77(c) of the Manual of Regulations for
xxxx Private Schools (MRPS).

Fourth, respondent Aguilar "solemnly sw[ore] that [he] On the other hand, private respondents Bungubung
left DLSU at 5:00 p.m. for Camp Crame for a meeting and Reverente, and later, Valdes, filed petitions-in-
with some of the officers that we were preparing."17 intervention29 in Civil Case No. 95-74122. Respondent
Judge also issued corresponding temporary restraining
On May 3, 1995, the DLSU-CSB Joint Discipline Board orders to compel petitioner DLSU to admit said private
issued a Resolution18 finding private respondents respondents.
guilty. They were meted the supreme penalty of
automatic expulsion,19 pursuant to CHED Order No. On June 19, 1995, petitioner Sales filed a motion to
4.20 The dispositive part of the resolution reads: dismiss30 in behalf of all petitioners, except James
Yap. On June 20, 1995, petitioners filed a
WHEREFORE, considering all the foregoing, the supplemental motion to dismiss31 the petitions-in-
Board finds respondents ALVIN AGUILAR (AB- intervention.
BSM/9152105), JAMES PAUL BUNGUBUNG (AB-
PSM/9234403), ALVIN LEE (EDD/94623250) and On September 20, 1995, respondent Judge issued an
RICHARD V. REVERENTE (AB-MGT/9153837) guilty Order32 denying petitioners' (respondents there)
of having violated CHED Order No. 4 and thereby motion to dismiss and its supplement, and granted
orders their automatic expulsion. private respondents' (petitioners there) prayer for a writ
of preliminary injunction. The pertinent part of the
In the case of respondent MALVIN A. PAPIO (AB- Order reads:
MGT/9251227), the Board acquits him of the charge.
For this purpose, respondent, its agents,
SO ORDERED.21 representatives or any and all other persons acting for
and in its behalf is/are restrained and enjoined from –
Private respondents separately moved for
reconsideration22 before the Office of the Senior Vice- 1. Implementing and enforcing the Resolution dated
President for Internal Operations of DLSU. The May 3, 1995 ordering the automatic expulsion of
motions were all denied in a Letter-Resolution23 dated petitioner and the petitioners-in-intervention from the
June 1, 1995. De La Salle University and the letter-resolution dated
June 1, 1995, affirming the Resolution dated May 3,
On June 5, 1995, private respondent Aguilar filed with 1995; and
the RTC, Manila, against petitioners a petition for
certiorari and injunction under Rule 65 of the Rules of 2. Barring the enrolment of petitioner and petitioners-
Court with prayer for temporary restraining order (TRO) in-intervention in the courses offered at respondent De
and/or writ of preliminary injunction. It was docketed as La Salle University and to immediately allow them to
Civil Case No. 95-74122 and assigned to respondent enroll and complete their respective courses/degrees
Judge of Branch 36. The petition essentially sought to until their graduation thereat in accordance with the
annul the May 3, 1995 Resolution of the DLSU-CSB standards set by the latter.
Joint Discipline Board and the June 1, 1995 Letter-
Resolution of the Office of the Senior Vice-President WHEREFORE, the ancillary remedy prayed for is
for Internal Affairs. granted. Respondent, its agents, representatives, or
any and all persons acting for and its behalf are hereby
The following day, June 6, 1995, respondent Judge restrained and enjoyed from:
issued a TRO24 directing DLSU, its subordinates,
agents, representatives and/or other persons acting for 1. Implementing and enforcing the Resolution dated
and in its behalf to refrain and desist from implementing May 3, 1995 ordering the automatic expulsion of
Resolution dated May 3, 1995 and Letter-Resolution petitioner and petitioners-in-intervention and the
dated June 1, 1995 and to immediately desist from Letter-Resolution dated June 1, 1995; and
barring the enrollment of Aguilar for the second term of
school year (SY) 1995. 2. Barring the enrollment of petitioner and petitioners-
in-intervention in the courses offered at respondent (De

17
La Salle University) and to forthwith allow all said penalty of expulsion for all private respondents. As for
petitioner and petitioners-in-intervention to enroll and Aguilar, he was to be reinstated, while other private
complete their respective courses/degrees until their respondents were to be excluded.38 The Resolution
graduation thereat. states:

The Writ of Preliminary Injunction shall take effect upon RESOLUTION 181-96
petitioner and petitioners-in-intervention posting an
injunctive bond in the amount of P15,000.00 executed RESOLVED THAT THE REQUEST OF THE DE LA
in favor of respondent to the effect that petitioner and SALLE UNIVERSITY (DLSU), TAFT AVENUE,
petitioners-in-intervention will pay to respondent all MANILA FOR THE APPROVAL OF THE PENALTY
damages that the latter may suffer by reason of the OF EXPULSION IMPOSED ON MR. ALVIN AGUILAR,
injunction if the Court will finally decide that petitioner JAMES PAUL BUNGUBUNG, ROBERT R. VALDES,
and petitioners-in-intervention are not entitled thereto. JR., ALVIN LEE AND RICHARD V. REVERENTE BE,
AS IT IS HEREBY IS, DISAPPROVED.
The motion to dismiss and the supplement thereto is
denied for lack of merit. Respondents are directed to RESOLVED FURTHER, THAT THE COMMISSION
file their Answer to the Petition not later than fifteen (15) DIRECT THE DLSU TO IMMEDIATELY EFFECT THE
days from receipt thereof. REINSTATEMENT OF MR. AGUILAR AND THE
LOWERING OF THE PENALTY OF MR. JAMES
SO ORDERED.33 PAUL BUNGUBUNG, MR. ROBER R. VALDEZ, JR.,
(sic) MR. ALVIN LEE AND MR. RICHARD V.
Despite the said order, private respondent Aguilar was REVERENTE FROM EXPULSION TO
refused enrollment by petitioner DLSU when he EXCLUSION.39
attempted to enroll on September 22, 1995 for the
second term of SY 1995-1996. Thus, on September Despite the directive of CHED, petitioner DLSU again
25, 1995, Aguilar filed with respondent Judge an urgent prevented private respondent Aguilar from enrolling
motion to cite petitioners (respondents there) in and/or attending his classes, prompting his lawyer to
contempt of court.34 Aguilar also prayed that write several demand letters40 to petitioner DLSU. In
petitioners be compelled to enroll him at DLSU in view of the refusal of petitioner DLSU to enroll private
accordance with respondent Judge's Order dated respondent Aguilar, CHED wrote a letter dated June
September 20, 1995. On September 25, 1995, 26, 1996 addressed to petitioner Quebengco
respondent Judge issued35 a writ of preliminary requesting that private respondent Aguilar be allowed
injunction, the relevant portion of which reads: to continue attending his classes pending the
resolution of its motion for reconsideration of
IT IS HEREBY ORDERED by the undersigned of the Resolution No. 181-96. However, petitioner
REGIONAL TRIAL COURT OF MANILA that until Quebengco refused to do so, prompting CHED to
further orders, you the said DE LA SALLE University promulgate an Order dated September 23, 1996 which
as well as your subordinates, agents, representatives, states:
employees and any other person assisting or acting for
or on your behalf, to immediately desist from Acting on the above-mentioned request of Mr. Aguilar
implementing the Resolution dated May 3, 1995 through counsel enjoining De La Salle University
ordering the automatic expulsion of petitioner and the (DLSU) to comply with CHED Resolution 181-96 (Re:
intervenors in DLSU, and the letter-resolution dated Expulsion Case of Alvin Aguilar, et al. v. DLSU)
June 1, 1995 affirming the said Resolution of May 3, directing DLSU to reinstate Mr. Aguilar and finding the
1995 and to immediately desist from barring the urgent request as meritorious, there being no other
enrolment of petitioner and intervenors in the courses plain and speedy remedy available, considering the set
offered at DLSU and to allow them to enroll and deadline for enrollment this current TRIMESTER, and
complete their degree courses until their graduation in order to prevent further prejudice to his rights as a
from said school.36 student of the institution, DLSU, through the proper
school authorities, is hereby directed to allow Mr. Alvin
On October 16, 1995, petitioner DLSU filed with the CA Aguilar to provisionally enroll, pending the
a petition for certiorari37 (CA-G.R. SP No. 38719) with Commission's Resolution of the instant Motion for
prayer for a TRO and/or writ of preliminary injunction to Reconsideration filed by DLSU.
enjoin the enforcement of respondent Judge's
September 20, 1995 Order and writ of preliminary SO ORDERED.41
injunction dated September 25, 1995.
Notwithstanding the said directive, petitioner DLSU,
On April 12, 1996, the CA granted petitioners' prayer through petitioner Quebengco, still refused to allow
for preliminary injunction. private respondent Aguilar to enroll. Thus, private
respondent Aguilar's counsel wrote another demand
On May 14, 1996, the CHED issued its questioned letter to petitioner DLSU.42
Resolution No. 181-96, summarily disapproving the

18
Meanwhile, on June 3, 1996, private respondent Accordingly, private respondent Aguilar was allowed to
Aguilar, using CHED Resolution No. 181-96, filed a conditionally enroll in petitioner DLSU, subject to the
motion to dismiss43 in the CA, arguing that CHED continued effectivity of the writ of preliminary injunction
Resolution No. 181-96 rendered the CA case moot and dated September 25, 1995 and to the outcome of Civil
academic. Case No. 95-74122.

On July 30, 1996, the CA issued its questioned On February 17, 1997, petitioners filed the instant
resolution granting the motion to dismiss of private petition.
respondent Aguilar, disposing thus:
On June 15, 1998, We issued a TRO49 as prayed for
THE FOREGOING CONSIDERED, dismissal of herein by the urgent motion for the issuance of a TRO50 dated
petition is hereby directed. June 4, 1998 of petitioners, and enjoined respondent
Judge from implementing the writ of preliminary
SO ORDERED.44 injunction dated September 25, 1995 issued in Civil
Case No. 95-74122, effective immediately and until
On October 15, 1996, the CA issued its resolution further orders from this Court.
denying petitioners' motion for reconsideration, as
follows: On March 27, 2006, private respondent Aguilar filed his
manifestation51 stating that he has long completed his
It is obvious to Us that CHED Resolution No. 181-96 is course at petitioner DLSU. He finished and passed all
immediately executory in character, the pendency of a his enrolled subjects for the second trimester of 1997-
Motion for Reconsideration notwithstanding. 1998, as indicated in his transcript of records52 issued
by DLSU. However, despite having completed all the
After considering the Opposition and for lack of merit, academic requirements for his course, DLSU has not
the Motion for Reconsideration is hereby denied. issued a certificate of completion/graduation in his
favor.
SO ORDERED.45
Issues
On October 28, 1996, petitioners requested transfer of
case records to the Department of Education, Culture We are tasked to resolve the following issues:
and Sports (DECS) from the CHED.46 Petitioners
claimed that it is the DECS, not CHED, which has 1. Whether it is the DECS or the CHED which has legal
jurisdiction over expulsion cases, thus, necessitating authority to review decisions of institutions of higher
the transfer of the case records of Discipline Case No. learning that impose disciplinary action on their
9495-3-25121 to the DECS. students found violating disciplinary rules.

On November 4, 1996, in view of the dismissal of the 2. Whether or not petitioner DLSU is within its rights in
petition for certiorari in CA-G.R. SP No. 38719 and the expelling private respondents.
automatic lifting of the writ of preliminary injunction,
private respondent Aguilar filed an urgent motion to 2.a Were private respondents accorded due process of
reiterate writ of preliminary injunction dated September law?
25, 1995 before respondent RTC Judge of Manila.47
2.b Can petitioner DLSU invoke its right to academic
On January 7, 1997, respondent Judge issued its freedom?
questioned order granting private respondent Aguilar's
urgent motion to reiterate preliminary injunction. The 2.c Was the guilt of private respondents proven by
pertinent portion of the order reads: substantial evidence?

In light of the foregoing, petitioner Aguilar's urgent 3. Whether or not the penalty imposed by DLSU on
motion to reiterate writ of preliminary injunction is private respondents is proportionate to their misdeed.
hereby granted, and respondents' motion to dismiss is
denied. Our Ruling

The writ of preliminary injunction dated September 25, Prefatorily, there is merit in the observation of
1995 is declared to be in force and effect. petitioners53 that while CHED Resolution No. 181-96
disapproved the expulsion of other private
Let a copy of this Order and the writ be served respondents, it nonetheless authorized their exclusion
personally by the Court's sheriff upon the respondents from petitioner DLSU. However, because of the
at petitioners' expense. dismissal of the CA case, petitioner DLSU is now faced
with the spectacle of having two different directives
SO ORDERED.48 from the CHED and the respondent Judge – CHED
ordering the exclusion of private respondents

19
Bungubung, Reverente, and Valdes, Jr., and the Judge on Higher Education, Appropriating Funds Thereof and
ordering petitioner DLSU to allow them to enroll and for other purposes."
complete their degree courses until their graduation.
Section 3 of the said law, which paved the way for the
This is the reason We opt to decide the whole case on creation of the CHED, provides:
the merits, brushing aside technicalities, in order to
settle the substantial issues involved. This Court has Section 3. Creation of the Commission on Higher
the power to take cognizance of the petition at bar due Education. – In pursuance of the abovementioned
to compelling reasons, and the nature and importance policies, the Commission on Higher Education is
of the issues raised warrant the immediate exercise of hereby created, hereinafter referred to as Commission.
Our jurisdiction.54 This is in consonance with our case
law now accorded near-religious reverence that rules The Commission shall be independent and separate
of procedure are but tools designed to facilitate the from the Department of Education, Culture and Sports
attainment of justice, such that when its rigid (DECS) and attached to the office of the President for
application tends to frustrate rather than promote administrative purposes only. Its coverage shall be
substantial justice, this Court has the duty to suspend both public and private institutions of higher education
their operation.55 as well as degree-granting programs in all post
secondary educational institutions, public and private.
I. It is the CHED, not DECS, which has the
power of supervision and review over The powers and functions of the CHED are
disciplinary cases decided by institutions enumerated in Section 8 of R.A. No. 7722. They
of higher learning. include the following:

Ang CHED, hindi ang DECS, ang may kapangyarihan Sec. 8. Powers and functions of the Commission. – The
ng pagsubaybay at pagrepaso sa mga desisyong Commission shall have the following powers and
pandisiplina ng mga institusyon ng mas mataas na functions:
pag-aaral.
xxxx
Petitioners posit that the jurisdiction and duty to review
student expulsion cases, even those involving students n) promulgate such rules and regulations and exercise
in secondary and tertiary levels, is vested in the DECS such other powers and functions as may be necessary
not in the CHED. In support of their stance, petitioners to carry out effectively the purpose and objectives of
cite Sections 4,56 15(2) & (3),57 54,58 57(3)59 and this Act; and
7060 of Batas Pambansa (B.P.) Blg. 232, otherwise
known as the "Education Act of 1982." o) perform such other functions as may be necessary
for its effective operations and for the continued
According to them, Republic Act (R.A.) No. 7722 did enhancement of growth or development of higher
not transfer to the CHED the DECS' power of education.
supervision/review over expulsion cases involving
institutions of higher learning. They say that unlike B.P. Clearly, there is no merit in the contention of petitioners
Blg. 232, R.A. No. 7722 makes no reference to the right that R.A. No. 7722 did not transfer to the CHED the
and duty of learning institutions to develop moral DECS' power of supervision/review over expulsion
character and instill discipline among its students. The cases involving institutions of higher learning.
clear concern of R.A. No. 7722 in the creation of the
CHED was academic, i.e., the formulation, First, the foregoing provisions are all-embracing. They
recommendation, setting, and development of make no reservations of powers to the DECS insofar
academic plans, programs and standards for as institutions of higher learning are concerned. They
institutions of higher learning. The enumeration of show that the authority and supervision over all public
CHED's powers and functions under Section 8 does and private institutions of higher education, as well as
not include supervisory/review powers in student degree-granting programs in all post-secondary
disciplinary cases. The reference in Section 3 to educational institutions, public and private, belong to
CHED's "coverage" of institutions of higher education the CHED, not the DECS.
is limited to the powers and functions specified in
Section 8. The Bureau of Higher Education, which the Second, to rule that it is the DECS which has authority
CHED has replaced and whose functions and to decide disciplinary cases involving students on the
responsibilities it has taken over, never had any tertiary level would render nugatory the coverage of the
authority over student disciplinary cases. CHED, which is "both public and private institutions of
higher education as well as degree granting programs
We cannot agree. in all post secondary educational institutions, public
and private." That would be absurd.
On May 18, 1994, Congress approved R.A. No. 7722,
otherwise known as "An Act Creating the Commission

20
It is of public knowledge that petitioner DLSU is a Ang mga private respondents ay nabigyan ng tamang
private educational institution which offers tertiary proseso ng batas.
degree programs. Hence, it is under the CHED
authority. The Due Process Clause in Article III, Section 1 of the
Constitution embodies a system of rights based on
Third, the policy of R.A. No. 772261 is not only the moral principles so deeply imbedded in the traditions
protection, fostering and promotion of the right of all and feelings of our people as to be deemed
citizens to affordable quality education at all levels and fundamental to a civilized society as conceived by our
the taking of appropriate steps to ensure that education entire history.64 The constitutional behest that no
shall be accessible to all. The law is likewise concerned person shall be deprived of life, liberty or property
with ensuring and protecting academic freedom and without due process of law is solemn and inflexible.65
with promoting its exercise and observance for the
continued intellectual growth of students, the In administrative cases, such as investigations of
advancement of learning and research, the students found violating school discipline, "[t]here are
development of responsible and effective leadership, withal minimum standards which must be met before to
the education of high-level and middle-level satisfy the demands of procedural due process and
professionals, and the enrichment of our historical and these are: that (1) the students must be informed in
cultural heritage. writing of the nature and cause of any accusation
against them; (2) they shall have the right to answer
It is thus safe to assume that when Congress passed the charges against them and with the assistance if
R.A. No. 7722, its members were aware that counsel, if desired; (3) they shall be informed of the
disciplinary cases involving students on the tertiary evidence against them; (4) they shall have the right to
level would continue to arise in the future, which would adduce evidence in their own behalf; and (5) the
call for the invocation and exercise of institutions of evidence must be duly considered by the investigating
higher learning of their right to academic freedom. committee or official designated by the school
authorities to hear and decide the case."66
Fourth, petitioner DLSU cited no authority in its bare
claim that the Bureau of Higher Education, which Where a party was afforded an opportunity to
CHED replaced, never had authority over student participate in the proceedings but failed to do so, he
disciplinary cases. In fact, the responsibilities of other cannot complain of deprivation of due process.67
government entities having functions similar to those of Notice and hearing is the bulwark of administrative due
the CHED were transferred to the CHED.62 process, the right to which is among the primary rights
that must be respected even in administrative
Section 77 of the MRPS63 on the process of review in proceedings.68 The essence of due process is simply
student discipline cases should therefore be read in an opportunity to be heard, or as applied to
conjunction with the provisions of R.A. No. 7722. administrative proceedings, an opportunity to explain
one's side or an opportunity to seek reconsideration of
Fifth, Section 18 of R.A. No. 7722 is very clear in the action or ruling complained of.69 So long as the
stating that "[j]urisdiction over DECS-supervised or party is given the opportunity to advocate her cause or
chartered state-supported post-secondary degree- defend her interest in due course, it cannot be said that
granting vocational and tertiary institutions shall be there was denial of due process.70
transferred to the Commission [On Higher Education]."
This provision does not limit or distinguish that what is A formal trial-type hearing is not, at all times and in all
being transferred to the CHED is merely the instances, essential to due process – it is enough that
formulation, recommendation, setting and the parties are given a fair and reasonable opportunity
development of academic plans, programs and to explain their respective sides of the controversy and
standards for institutions of higher learning, as what to present supporting evidence on which a fair decision
petitioners would have us believe as the only concerns can be based.71 "To be heard" does not only mean
of R.A. No. 7722. Ubi lex non distinguit nec nos presentation of testimonial evidence in court – one may
distinguere debemus: Where the law does not also be heard through pleadings and where the
distinguish, neither should we. opportunity to be heard through pleadings is accorded,
there is no denial of due process.72
To Our mind, this provision, if not an explicit grant of
jurisdiction to the CHED, necessarily includes the Private respondents were duly informed in writing of
transfer to the CHED of any jurisdiction which the the charges against them by the DLSU-CSB Joint
DECS might have possessed by virtue of B.P. Blg. 232 Discipline Board through petitioner Sales. They were
or any other law or rule for that matter. given the opportunity to answer the charges against
them as they, in fact, submitted their respective
IIa. Private respondents were accorded due process of answers. They were also informed of the evidence
law. presented against them as they attended all the
hearings before the Board. Moreover, private
respondents were given the right to adduce evidence

21
on their behalf and they did. Lastly, the Discipline Ang pagkakasala ng private respondents na sina
Board considered all the pieces of evidence submitted Bungubung, Reverente at Valdes, Jr. ay napatunayan
to it by all the parties before rendering its resolution in ng ebidensiyang substansyal.
Discipline Case No. 9495-3-25121.
As has been stated earlier, private respondents
Private respondents cannot claim that they were interposed the common defense of alibi. However, in
denied due process when they were not allowed to order that alibi may succeed as a defense, "the
cross-examine the witnesses against them. This accused must establish by clear and convincing
argument was already rejected in Guzman v. National evidence (a) his presence at another place at the time
University73 where this Court held that "x x x the of the perpetration of the offense and (b) the physical
imposition of disciplinary sanctions requires impossibility of his presence at the scene of the
observance of procedural due process. And it bears crime."78
stressing that due process in disciplinary cases
involving students does not entail proceedings and On the other hand, the defense of alibi may not be
hearings similar to those prescribed for actions and successfully invoked where the identity of the assailant
proceedings in courts of justice. The proceedings in has been established by witnesses.79 Positive
student discipline cases may be summary; and cross identification of accused where categorical and
examination is not, x x x an essential part thereof." consistent, without any showing of ill motive on the part
of the eyewitness testifying, should prevail over the
IIb. Petitioner DLSU, as an institution of higher alibi and denial of appellants whose testimonies are not
learning, possesses academic freedom which includes substantiated by clear and convincing evidence.80
determination of who to admit for study. Well-settled is the rule that denial and alibi, being weak
defenses, cannot overcome the positive testimonies of
Ang petitioner DLSU, bilang institusyon ng mas mataas the offended parties.81
na pag-aaral, ay nagtataglay ng kalayaang akademiko
na sakop ang karapatang pumili ng mga mag-aaral Courts reject alibi when there are credible
dito. eyewitnesses to the crime who can positively identify
the accused.82 Alibi is an inherently weak defense and
Section 5(2), Article XIV of the Constitution guaranties courts must receive it with caution because one can
all institutions of higher learning academic freedom. easily fabricate an alibi.83 Jurisprudence holds that
This institutional academic freedom includes the right denial, like alibi, is inherently weak and crumbles in
of the school or college to decide for itself, its aims and light of positive declarations of truthful witnesses who
objectives, and how best to attain them free from testified on affirmative matters that accused were at the
outside coercion or interference save possibly when scene of the crime and were the victim's assailants. As
the overriding public interest calls for some restraint.74 between categorical testimonies that ring of truth on
According to present jurisprudence, academic freedom one hand and a bare denial on the other, the former
encompasses the independence of an academic must prevail.84 Alibi is the weakest of all defenses for
institution to determine for itself (1) who may teach, (2) it is easy to fabricate and difficult to disprove, and it is
what may be taught, (3) how it shall teach, and (4) who for this reason that it cannot prevail over the positive
may be admitted to study.75 identification of accused by the witnesses.85

It cannot be gainsaid that "the school has an interest in The required proof in administrative cases, such as in
teaching the student discipline, a necessary, if not student discipline cases, is neither proof beyond
indispensable, value in any field of learning. By reasonable doubt nor preponderance of evidence but
instilling discipline, the school teaches discipline. only substantial evidence. According to Ang Tibay v.
Accordingly, the right to discipline the student likewise Court of Industrial Relations,86 it means "such
finds basis in the freedom "what to teach."76 Indeed, reasonable evidence as a reasonable mind might
while it is categorically stated under the Education Act accept as adequate to support a conclusion."
of 1982 that students have a right "to freely choose
their field of study, subject to existing curricula and to Viewed from the foregoing, We reject the alibi of private
continue their course therein up to graduation,"77 such respondents Bungubung, Valdes Jr., and
right is subject to the established academic and Reverente.1awphi1 They were unable to show
disciplinary standards laid down by the academic convincingly that they were not at the scene of the
institution. Petitioner DLSU, therefore, can very well crime on March 29, 1995 and that it was impossible for
exercise its academic freedom, which includes its free them to have been there. Moreover, their alibi cannot
choice of students for admission to its school. prevail over their positive identification by the victims.

IIc. The guilt of private respondents Bungubung, We hark back to this Court's pronouncement affirming
Reverente and Valdes, Jr. was proven by substantial the expulsion of several students found guilty of
evidence. hazing:

22
No one can be so myopic as to doubt that the criminal liability. But where the prosecution evidence is
immediate reinstatement of respondent students who weak, and betrays lack of credibility as to the
have been investigated and found guilty by the identification of defendant, alibi assumes
Disciplinary Board to have violated petitioner commensurate strength. This is but consistent with the
university's disciplinary rules and standards will presumption of innocence in favor of accused.92
certainly undermine the authority of the administration
of the school. This we would be most loathe to do. Alibi is not always undeserving of credit, for there are
times when accused has no other possible defense for
More importantly, it will seriously impair petitioner what could really be the truth as to his whereabouts at
university's academic freedom which has been the crucial time, and such defense may, in fact, tilt the
enshrined in the 1935, 1973 and the present 1987 scales of justice in his favor.93
Constitution.87
III. The penalty of expulsion imposed by DLSU on
Certainly, private respondents Bungubung, Reverente private respondents is disproportionate to their
and Valdes, Jr. do not deserve to claim a venerable misdeed.
institution as their own, for they may foreseeably cast
a malevolent influence on the students currently Ang parusang expulsion na ipinataw ng DLSU sa
enrolled, as well as those who come after them.88 It private respondents ay hindi angkop sa kanilang
must be borne in mind that universities are established, pagkakasala.
not merely to develop the intellect and skills of the
studentry, but to inculcate lofty values, ideals and It is true that schools have the power to instill discipline
attitudes; nay, the development, or flowering if you will, in their students as subsumed in their academic
of the total man.89 freedom and that "the establishment of rules governing
university-student relations, particularly those
As for private respondent Aguilar, however, We are pertaining to student discipline, may be regarded as
inclined to give credence to his alibi that he was at vital, not merely to the smooth and efficient operation
Camp Crame in Quezon City at the time of the incident of the institution, but to its very survival."94 This power,
in question on March 29, 1995. This claim was amply however, does not give them the untrammeled
corroborated by the certification that he submitted discretion to impose a penalty which is not
before the DLSU-CSB Joint Discipline Board, to wit: commensurate with the gravity of the misdeed. If the
concept of proportionality between the offense
CERTIFICATION committed and the sanction imposed is not followed,
an element of arbitrariness intrudes. That would give
TO WHOM THIS MAY CONCERN: rise to a due process question.95

We, the undersigned, hereby declare and affirm by way We agree with respondent CHED that under the
of this Certification that sometime on March 29, 1995, circumstances, the penalty of expulsion is grossly
at about and between 4:30 P.M. and 5:30 P.M., we disproportionate to the gravity of the acts committed by
were together with Alvin A. Aguilar, at Kiangan Hall, private respondents Bungubung, Reverente, and
inside Camp Crame, Quezon City, meeting in Valdes, Jr. Each of the two mauling incidents lasted
connection with an affair of our class known as Class only for few seconds and the victims did not suffer any
7, Batch 89 of the Philippine Constabulary discussing serious injury. Disciplinary measures especially where
on the proposed sponsorship of TAU GAMMA PHI they involve suspension, dismissal or expulsion, cut
from said Batch '89 affair. significantly into the future of a student. They attach to
him for life and become a mortgage of his future, hardly
That the meeting was terminated at about 6:30 P.M. redeemable in certain cases. Officials of colleges and
that evening and Alvin Aguilar had asked our universities must be anxious to protect it, conscious of
permission to leave and we saw him leave Camp the fact that, appropriately construed, a disciplinary
Crame, in his car with the driver. action should be treated as an educational tool rather
than a punitive measure.96
April 18, 1995, Camp Crame, Quezon City.90
Accordingly, We affirm the penalty of exclusion97 only,
The said certification was duly signed by PO3 Nicanor not expulsion,98 imposed on them by the CHED. As
R. Faustino (Anti-Organized Crime CIC, NCR), PO3 such, pursuant to Section 77(b) of the MRPS, petitioner
Alejandro D. Deluviar (ODITRM, Camp Crame, DLSU may exclude or drop the names of the said
Quezon City), PO2 Severino C. Filler (TNTSC, Camp private respondents from its rolls for being undesirable,
Crame, Quezon City), and PO3 Ireneo M. Desesto and transfer credentials immediately issued.
(Supply Center, PNPLSS). The rule is that alibi
assumes significance or strength when it is amply WHEREFORE, the petition is PARTIALLY GRANTED.
corroborated by credible and disinterested The Court of Appeals Resolutions dated July 30, 1996
witnesses.91 It is true that alibi is a weak defense and dated October 15, 1996, and Regional Trial Court
which an accused can easily fabricate to escape of Manila, Branch 36, Order dated January 7, 1997 are

23
ANNULLED AND SET ASIDE, while CHED Resolution In a Resolution dated March 1 7, 2014, the Court
181-96 dated May 14, 1996 is AFFIRMED. denied the prayer for TRO and instead, required
respondents to file their comment on the petition.3
Petitioner DLSU is ordered to issue a certificate of
completion/graduation in favor of private respondent On March 25, 2014, Filipina P. Cudia, acting for herself
Aguilar. On the other hand, it may exclude or drop the and in behalf of her son Cadet 1 CL Cudia, filed a
names of private respondents Bungubung, Reverente, motion for leave to intervene, attaching thereto the
and Valdes, Jr. from its rolls, and their transfer petition-in-intervention.4 Per Resolution dated March
credentials immediately issued. 31, 2014, the Court granted the motion and resolved to
await respondents' comment on the petition.5
SO ORDERED.
A manifestation was then filed by petitioners on April 3,
CUDIA VS PMA (2015) 2014, recommending the admission of the petition-in-
intervention and adopting it as an integral part of their
G.R. No. 211362 February 24, 2015 petition.6 On May 20, 2014, petitioner-intervenor filed
a manifestation with motion for leave to admit the Final
FIRST CLASS CADET ALDRIN JEFF P. CUDIA of the Investigation Report of the Commission on Human
Philippine Military Academy, represented by his father Rights (CHR) dated April 25, 2014.7 The Report8 was
RENATO P. CUDIA, who also acts on his own behalf, relative to CHR-CAR Case No. 2014-0029 filed by the
and BERTENI CATALUNA CAUSING, Petitioners, spouses Renato and Filipina Cudia (Spouses Cudia),
vs. for themselves and in behalf of their son, against the
THE SUPERINTENDENT OF THE PHILIPPINE PMA Honor Committee (HC) members and Major
MILITARY ACADEMY (PMA), THE HONOR Vladimir P. Gracilla (Maj. Gracilla)9 for violation of
COMMITTEE (HC) OF 2014 OF THE PMA and HC Cadet lCL Cudia's rights to due process, education,
MEMBERS, and the CADET REVIEW AND APPEALS and privacy of communication. Subsequently, on June
BOARD (CRAB), Respondents. 3, 2014, petitioners filed a motion for leave to adopt the
submission of the CHR Report.10 The manifestation
x-----------------------x was granted and the motion was noted by the Court in
its Resolution dated July 7, 2014.
FILIPINA P. CUDIA, in behalf of CADET FIRST CLASS
ALDRIN JEFF P. CUDIA, and on her own behalf, After filing three motions for extension of time,11
Petitioner-Intervenor. respondents filed their Consolidated Comment12 on
DECISION June 19, 2014. In a motion, petitioner-intervenor filed a
Reply, which was later adopted by petitioners.13
PERALTA, J.: Submitted as Annex "A" of the Reply was a copy of the
CHR Resolution dated May 22, 2014 regarding CHR-
The true test of a cadet's character as a leader rests on CAR Case No. 2014-0029.14 We noted and granted
his personal commitment to uphold what is morally and the same on August 11, 2014 and October 13, 2014.
ethically righteous at the most critical and trying times,
and at the most challenging circumstances. When a Petitioner-intervenor twice filed a manifestation with
cadet must face a dilemma between what is true and motion to submit the case for early resolution,15 which
right as against his security, well-being, pleasures and the Court noted in a Resolution dated August 11, 2014
comfort, or dignity, what is at stake is his honor and and October 3, 2014.16
those that [define] his values. A man of an honorable
character does not think twice and chooses the fore. The Facts
This is the essence of and. the Spirit of the Honor Code
- it is championing truth and righteousness even if it Cadet 1 CL Cudia was a member of Siklab Diwa Class
may mean the surrender of one's basic rights and of 2014 of the PMA, the country's premiere military
privileges.1 academy located at Fort Gregorio del Pilar in Baguio
City. He belonged to the "A" Company and was the
The Procedural Antecedents Deputy Baron of his class. As claimed by petitioners
and petitioner-intervenor (hereinafter collectively called
Six days prior to the March 16, 2014 graduation "petitioners," unless otherwise indicated), he was
ceremonies of the Philippine Military Academy (PMA), supposed to graduate with honors as the class
petitioners Renato P. Cudia, acting for himself and in salutatorian, receive the Philippine Navy Saber as the
behalf of his son, Cadet First Class Aldrin Jeff P. Cudia top Navy cadet graduate, and be commissioned as an
(Cadet JCL Cudia), and Berteni Catalufta Causing filed ensign of the Philippine Navy.
this petition for certiorari, prohibition, and mandamus
with application for extremely urgent temporary On November 14, 2013, the combined classes of the
restraining order (TRO).2 Navy and Air Force 1 CL cadets had a lesson
examination (LE) on Operations Research (OR432)
under Dr. Maria Monica C. Costales (Dr. Costales) at

24
the PMAFI Room. Per published schedule from the Several days passed, and on January 7, 2014, Cadet
Headquarters Academic Group, the 4th period class in lCL Cudia was informed that Maj. Hindang reported
OR432 was from 1 :30-3:00 p.m. (1330H-1500H), him to the HC21 for violation of the Honor Code. The
while the 5th period class in ENG412 was from 3:05- Honor Report stated:
4:05 p.m. (1505H-1605H).
Lying that is giving statement that perverts the truth in
Five days after, Professor Juanita Berong (Prof. his written appeal, stating that his 4th period class
Berong) of the 5th period class issued a Delinquency ended at l 500H that made him late in the succeeding
Report (DR) against Cadet 1 CL Cudia because he was class.22
"[/]ate for two (2) minutes in his Eng 412 class x x x.
"17 Cadets 1 CL Narciso, Arcangel, Miranda, Pontillas, Upon asking the HC Chairman, Cadet 1 CL Mike
Diaz, Otila, and Dela Cruz were also reported late for Anthony P. Mogol (Cadet 1 CL Mogol), as to what Maj.
five minutes.18 Hindang meant in his Report, Cadet lCL Cudia learned
that it was based on Maj. Hindang's conversations with
On December 4, 2013, the DRs reached the their instructors and classmates as well as his
Department of Tactical Officers. They were logged and statement in the request for reconsideration to Maj.
transmitted to the Company Tactical Officers ( CTO) for Leander. He then verbally applied for and was granted
explanation of the concerned cadets. Two days later, an extension of time to answer the charge against him
Cadet lCL Cudia received his DR. because Dr. Costales, who could shed light on the
matter, was on emergency leave.
In his Explanation of Report dated December 8, 2013,
Cadet lCL Cudia reasoned out that: "I came directly On January 13, 2014, Dr. Costales sent text messages
from OR432 Class. We were dismissed a bit late by our to Cadet lCL Cudia, conveying:
instructor Sir."19
Gud pm cdt cudia. Mam belandres gave me bkground
On December 19, 2013, Major Rommel Dennis na. She told me its a report dated november. When maj
Hindang (Maj. Hindang), the CTO of Cadet 1 CL Cudia, hindang ask me, no time referens. (04:25:11 P.M.)
meted out to him the penalty of 11 demerits and 13
touring hours. Immediately, Cadet lCL Cudia clarified All the while I thot he was refering to dismisal during
with Maj. Hindang his alleged violation. The latter told last day last december. Whc i told, i wud presume they
him that the basis of the punishment was the result of wil finish early bee its grp work. (04:29:21 P.M.)23
his conversation with Dr. Costales, who responded that
she never dismissed her class late, and the protocol to The next day, Cadets lCL Cudia and Arcangel
dismiss the class 10-15 minutes earlier than approached Dr. Costales, who reaffirmed that she and
scheduled. When he expressed his intention to appeal Maj. Hindang were not in the same time reference
and seek reconsideration of the punishment, he was · when the latter asked her.
advised to put the request in writing. Hence, that same
day, Cadet 1 CL Cudia addressed his Request for Later, Cadet 1 CL Cudia submitted his letter of
Reconsideration of Meted Punishment to Maj. explanation on the Honor Report. He averred:
Benjamin L. Leander, Senior Tactical Officer (STO),
asserting: Sir, We had an LE that day (14 November 2013) in
OR432 class. When the first bell rang (1455), I stood
I strongly believe that I am not in control of the up, reviewed my paper and submitted it to my
circumstances, our 4th period class ended 1500H and instructor, Ms. Costales. After which, I and Cadet lcl
our 5th period class, which is ENG412, started 1500H Arcangel asked for some query with regards (sic) to the
also. Immediately after 4t period class, I went to my deductions of our previous LE. Our instructor gladly
next class without any intention of being late Sir.20 answered our question. She then told me that she will
give the copy of our section grade, so I waited at the
A day after, Maj. Leander instructed Maj. Hindang to hallway outside the ACAD5 office, and then she came
give his comments on the request of Cadet 1 CL Cudia out of the room and gave me a copy of the grades.
and to indicate if there were other cadets belonging to Cadet Arcangel, Cadet Narciso and I immediately went
the same section who were also late. to our 5ti period class which is ENG412.

On December 28, 2013, Maj. Hindang submitted his With these statements, I would like to clarify the
reply to Maj. Leander pointing out that, based on his following:
investigation, the 4th period class was not dismissed
late. As a result, Maj. Leander sustained the penalty 1. How could this be lying?
imposed. Petitioners alleged that Cadet 1 CL Cudia
came to know of the denial of his request only on 2. What is wrong with the side of Maj. Hindang (why did
January 24, 2014 upon inquiry with Maj. Leander. he come up to that honor report)?

3. What are his assumptions?

25
 Presiding Officer, and Cadets 1 CL Mogol, lCL
I appeal, in the name of clarity, fairness and truth[,] that Raguindin, 2CL Gumilab, 2CL Saldua, 3CL Espejo,
my case be reopened and carefully reviewed for I did and 3CL Poncardas as members.25 Soon after, the
not violate the honor code/system, I can answer NO to team submitted its Preliminary Investigation Report
both questions (Did I intend to deceive? Did I intend to recommending that the case be formalized.
take undue advantage?) and for the following reasons:
The formal investigation against Cadet 1 CL Cu di a
1. The honor report of Maj. Hindang was already then ensued. The Presiding Officer was Cadet 1 CL
settled and finalized given the fact that no face-to-face Rhona K. Salvacion, while the nine (9) voting members
personal conversation with Ms. Costales was were Cadets lCL Jairus 0. Fantin, lCL Bryan Sonny S.
conducted to clarify what and when exactly was the Arlegui, 1 CL Kim Adrian R. Martal, 1 CL J eanelyn P.
issue at hand. Cabrido, 1 CL ShuAydan G. Ayada, 1 CL Dalton John
G. Lagura, 2CL Renato A. Carifio, Jr., 2CL Arwi C.
2. Statements of the respondents support my Martinez, and 2CL Niko Angelo C. Tarayao.26 Acting
explanation. as recorders tasked to document the entire
proceedings were 4CL Jennifer A. Cuarteron and 3CL
3. My explanation to my appeal to my DR (Request for Leoncio Nico A. de Jesus 11.27 Those who observed
reconsideration of meted punishment) further supports the trial were Cadets 1 CL Balmeo, Dag-uman,
my explanation in my delinquency report. Hasigan, Raguindin, Paulino, Arcangel, and Narciso;
Cadets 2CL Jocson and Saldua, Jr.; and Cadet 3CL
4. My understanding of the duration of the "CLASS" Umaguing.28
covers not just a lecture in a typical classroom
instruction but includes every transaction and The first formal hearing started late evening of January
communication a teacher does with her students, 20, 2014 and lasted until early morning the next day.
especially that in our case some cadets asked for Cadet lCL Cudia was informed of the charge against
queries, and I am given instruction by which (sic) were him, as to which he pleaded "Not Guilty." Among those
directly related to our CLASS. Her transaction and who testified were Cadet 1 CL Cudia, Maj. Hindang,
communication with our other classmates may have and Cadets 1 CL Arcangel and Narciso. On the second
already ended but ours extended for a little bit. night of the hearing held on January 21, 2014, Cadet 1
CL Cudia again appeared and was called to the
I agree and consider that because Cadet CUDIA is witness stand along with Cadets Brit and Barrawed. Dr.
under my instruction to wait, and the other cadets still Costales also testified under oath via phone on a
have business with me, it is reasonable enough for him loudspeaker. Deliberation among the HC voting
to say that "Our class was dismissed a bit late" (dealing members followed. After that, the ballot sheets were
with matter of seconds or a minute particularly 45 distributed. The members cast their votes through
seconds to 1 minute and 30 seconds) secret balloting and submitted their accomplished
ballot sheets together with their written justification.
And with concern to (sic) OR432 class, I can say it The result was 8-1 in favor of a guilty verdict. Cadet lCL
ended on time (1500H). Dalton John G. Lagura (Cadet lCL Lagura) was the
lone dissenter. Allegedly, upon the order ofHC
(signed) Chairman Cadet 1 CL Mogol, the Presiding Officer and
M COSTALES voting members went inside a chamber adjoining the
court room for further deliberation. After several
w/ attached certification minutes, they went out and the Presiding Officer
announced the 9-0 guilty verdict. Cadet 1 CL Cudia,
5. I was transparent and honest in explaining the 2- who already served nine (9) touring hours, was then
minute delay and did not attempt to conceal anything informed of the unanimous votes finding him guilty of
that happened or I did. violating the Honor Code. He was immediately placed
in the PMA Holding Center until the resolution of his
6. Furthermore, CPT DULA WAN PA, the Tactical appeal.
Officer of Hawk Company[,] and I had a conversation
with regards (sic) to the same matter for which he can On January 24, 2014, Cadet ICL Cudia filed a written
give important points of my case. appeal addressed to the HC Chairman, the full text of
which stated:
7. Cadet lcl DIAZ "D" Co can also stand as a witness
that I waited for Ms. Costales. 24 WRITTEN APPEAL

On January 15, 2014, the HC constituted a team to 14 NOVEMBER 2013

conduct a preliminary investigation on the reported
honor violation of Cadet 1 CL Cudia. The Foxtrot This is when I was reported for "Late for two (2) minutes
Company was designated as the investigating team in Eng412 class", my explanation on this delinquency
and was composed of Cadet 1 CL Hasigan as report when I received it, is that "Our class was

26
dismissed a (little) bit late and I came directly from 4th Sir, I strongly believe that I am not in control of the
period class ... etc". Knowing the fact that in my circumstances, our 4th period class ended 1500H and
delinquency report, it is stated that ENG412 classes our 5th period class, which is ENG412, started 1500H
started 1500H and I am late for two minutes, it is logical also. Immediately after 4th period class, I went to my
enough for I (sic) to interpret it as "I came 1502H during next class without any intention of being late Sir.
that class". This is the explanation that came into my
mind that time. (I just cannot recall the exact words I These statements are supplementary to my
used in explaining that delinquency report, but what I explanation in my delinquency report, in here, I
want to say is that I have no intention to be late). In my specified the conflict in the schedule and again, I have
statements, I convey my message as "since I was not no intention to be late. After explaining it further with
the only one left in that class, and the instructor is with these statements, my tactical officer said that since I
us, I used the term "CLASS", I used the word was reported in a written form, I should make an appeal
"DISMISSED" because I was under instruction (to wait in a written form. Thinking that he already understood
for her to give the section grade) by the instructor, Ms. what I want to say, I immediately made an appeal that
Costales. The other cadets (lCL MIRANDA, lCL day stating the words that I used in having
ARCANGEL) still have queries and business with her conversation with him.29
that made me decide to use the word "CLASS", while
the others who don't have queries and business with Attached to the written appeal was a Certification dated
her (ex: lCL NARCISO and 1 CL DIAZ) were also January 24, 2014, wherein Dr. Costales attested:
around.
1. That Cadet MIRANDA, ARCANGEL, [and]
Note: NARCISO was (sic) with Cadet CUDIA in making query
about their latest grades in OR432 and/or results of UEl
The four named cadets were also reported late. outside the ACADS office. The following facts may
explain their queries on 14 November 2013:
Reference: Para 171. 0. (Leaving the Classroom Prior
to Dismissal Time)(Sec XVII, CCAFPR s2008) a. That I held my class in the PMAFI room instead of
room 104.
It is stated in this reference that "Cadets shall not linger
in the place of instruction after the section has been b. That OR432 releases grades every Wednesday and
dismissed. EXCEPT when told or allowed to do so by cadets are informed during Thursday, either in class or
the instructor or by any competent authority for official posted grades in the bulletin board (grades released
purposes. " was [sic J based on the previous LEs: latest LE before
UE was Decision Trees).
The instruction by Ms. Costales was given to me before
the two bells rang (indicating the end of class hour, c. That UE papers were already checked but not yet
1500H). I waited for her for about 45 seconds to 1 recorded due to (sic) other cadets have not taken the
minute and 30 seconds, that made me to decide to UE. Cadets were allowed to verify scores but not to
write "a little bit late" in my explanation. Truly, the class look at the papers.
ENDED 1500H but due to official purpose (instruction
by Ms. Costales to wait) and the conflict in academic d. Last 23 January 2014, Captain Dulawan clarified if
schedule (to which I am not in control of the indeed Cadet NARCISO and ARCANGEL verified
circumstances, 4th PD class 1330H-1500H and 5th PD grades. The two cadets said that they verified
class 1500H-1 600H), and since Ms. Costales, my something with me after the OR432 class and they
other classmates, and I were there, I used the word were with Cadet CUD IA. That the statements of the
"CLASS". three (3) cadets are all the same and consistent, thus[,]
I honor that as true.
19 December 2013
2. As to the aspect of dismissing late, I could not really
I was informed that my delinquency report was account for the specific time that I dismissed the class.
awarded, 11 Demerits and 13 Touring hours. Not To this date, I [cannot] really recall an account that is
because I don't want to serve punishment, but because more than two (2) months earlier. According to my
I know I did nothing wrong, I obeyed instruction, and records, there was a lecture followed by an LE during
believing that my reason is justifiable and valid, that is (sic) on 14 November 2013. To determine the time of
why I approached our tactical officer, MAJ HINDANG my dismissal, maybe it can be verified with the other
PAF, to clarify and ask why it was awarded that day. members of class I was handling on that said date.30

In our conversation, he said that he had a phone call to Respondents contend that the HC denied the appeal
my instructor and he even added that they have a the same day, January · 24, as it found no reason to
protocol to dismiss the class, 15 minutes or 10 minutes conduct a re-trial based on the arguments and
before 1500H. I explained: evidence presented.31 Petitioners, however, claim that

27
the written appeal was not acted upon until the filing of Petitioners claim that, on February 21, 2014, Special
the petition-in-intervention.32 Order No. 1 was issued directing all PMA cadets to
ostracize Cadet 1 CL Cudia by not talking to him and
From January 25 to February 7, 2014, respondents by separating him from all activities/functions of the
allege that the Headquarters Tactics Group (HTG) cadets. It is said that any violation shall be a "Class 1"
conducted an informal review to check the findings of offense entailing 45 demerits, 90 hours touring, and 90
the HC. During the course of the investigation, Prof. hours confinement. Cadet 1 CL Cudia was not given a
Berong was said to have confirmed with the Officer-in- copy of the order and learned about it only from the
Charge of the HC that classes started as scheduled media.36 According to an alleged news report, PMA
(i.e., 3:05 p.m. or 1505H), and that Cadet lCL Spokesperson Major Agnes Lynette Flores (Maj.
Barrawed, the acting class marcher of ENG412, Flores) confirmed the HC order to ostracize Cadet 1 CL
verified before the Commandant, Assistant Cudia. Among his offenses were: breach of
Commandant, and STO that the class started not confidentiality by putting documents in the social
earlier than scheduled. media, violation of the PMA Honor Code, lack of
initiative to resign, and smearing the name of the
Meantime, on February 4, 2014, the OIC of the HC PMA.37
forwarded the Formal Investigation Report to the Staff
Judge Advocate (SJA) for review. The next day, the On February 24, 2014, Cadet 1CL Cudia requested the
SJA found the report to be legally in order. CRAB for additional time, until March 4, 2014, to file an
appeal on the ground that his intended witnesses are
On February 8, 2014, Colonel Rozzano D. Briguez in on-the-job training ( OJT).38 As additional evidence
(Col. Briguez), the Commandant of Cadets, affirmed to support his appeal, he also requested for copies of
the HC findings and recommended to Vice Admiral the Minutes of the HC proceedings, relevant
Edgar Abogado, then PMA Superintendent, the documents pertaining to the case, and video footages
separation from the PMA of Cadet lCL Cudia for and recordings of the HC hearings.
violation of the First Tenet of the Honor Code (Lying,
pursuant to Sec. VII.12.b of the CCAFPR S-2008). On The next day, Cadet 1 CL Cudia and his family
the same date, Special Orders No. 26 was issued by engaged the services of the Public Attorney's Office
the PMA Headquarters placing Cadet 1 CL Cudia on (PAO) in Baguio City.
indefinite leave of absence without pay and allowances
effective February 10, 2014 pending approval of his The CRAB conducted a review of the case based on
separation by the AFPGHQ, barring him from future the following: (a) letter of appeal of the Spouses Cudia
appointment and/or admission as cadet, and not dated February 18, 2014; (b) directive from the AFP-
permitting him to qualify for any entrance requirements GHQ to reinvestigate the case; and ( c) guidance from
to the PMA. 33 Maj. Gen. Lopez.

Two days later, Vice Admiral Abogado approved the On February 26, 2014, Brigadier General Andre M.
recommendation to dismiss Cadet 1 CL Cudia. Costales, Jr. (Brig. Gen. Costales, Jr.), the CRAB
Chairman, informed Cadet lCL Cudia that, pending
On February 13, 2014, Cadet lCL Cudia submitted a approval of the latter's request for extension, the CRAB
letter to the Office of the Commandant of Cadets would continue to review the case and submit its
requesting for reinstatement by the PMA of his status recommendations based on whatever evidence and
as a cadet.34 testimonies received, and that it could not favorably
consider his request for copies of the HC minutes,
Four days passed, Annavee P. Cudia (Annavee ), the relevant documents, and video footages and
sister of Cadet 1 CL Cudia, posted his plight in her recordings of the HC hearings since it was neither the
Face book account. The day after, the Spouses Cudia appropriate nor the authorized body to take action
gave a letter to Major General Oscar Lopez (Maj. Gen. thereon.39 Subsequently, upon verbal advice, Cadet 1
Lopez), the new PMA Superintendent, asking to CL Cudia wrote a letter to Maj. Gen. Lopez reiterating
recognize the 8-1 voting of the HC.35 Copies of which his request.40
were furnished to the AFP Chief of Staff and other
concerned military officials. Subsequently, Maj. Gen. Two days after, the Spouses Cudia filed a letter-
Lopez was directed to review Cadet lCL Cudia's case. complaint before the CHR-Cordillera Administrative
The latter, in turn, referred the matter to the Cadet Region (CAR) Office against the HC members and
Review and Appeals Board (CRAB). Maj. Gracilla for alleged violation of the human rights
of Cadet lCL Cudia, particularly his rights to due
On February 19, 2014, Cadet lCL Cudia made his process, education, and privacy of communication.41
personal appeal letter to Maj. Gen. Lopez. On even
date, the AFP Chief of Staff ordered a reinvestigation On March 4, 2014, Cadet 1 CL Cudia, through the
following the viral Facebook post of Annavee PAO, moved for additional time, until March 19, 2014,
demanding the intervention of the military leadership. to file his appeal and submit evidence. PAO also wrote
a letter to AFP Chief of Staff General Emmanuel T.

28
Bautista (Gen. Bautista) seeking for immediate National Defense (DND) Secretary Voltaire T. Gazmin.
directive to the PMA to expeditiously and favorably act The President recommended that they put in writing
on Cadet 1CL Cudia's requests.42 their appeal, requests, and other concerns. According
to respondents, the parties agreed that Cadet 1 CL
Exactly a week prior to the commencement exercises Cudia would not join the graduation but it was without
of Siklab Diwa Class, the following events transpired: prejudice to the result of the appeal, which was
elevated to the AFP Chief of Staff. The President then
On March 10, 2014, Annavee sought the assistance of tasked Gen. Bautista to handle the reinvestigation of
PAO Chief Public Attorney Persida V. Rueda- the case, with Maj. Gen. Oscar Lopez supervising the
Acosta.43 On the other hand, the CRAB submitted a group conducting the review.
report to the AFP-GHQ upholding the dismissal of
Cadet 1 CL Cudia.44 Four days after Siklab Diwa Class' graduation day,
petitioner Renato S. Cudia received a letter dated
On March 11, 2014, PAO received a letter from Maj. March 11, 2014 from the Office of the AFP Adjutant
Gen. Lopez stating the denial of Cadet 1CL Cudia's General and signed by Brig. Gen. Ronald N. Albano for
requests for extension of time to file an Appeal the AFP Chief of Staff, affirming the CRAB' s denial of
Memorandum in view of the ample time already given, Cadet 1 CL Cudia' s appeal. It held:
and to be furnished with a copy of relevant documents
because of confidentiality and presumption of After review, The Judge Advocate General, APP finds
regularity of the HC proceedings.45 Cadet 1CL Cudia, that the action of the PMA CRAB in denying the appeal
through PAO, then filed an Appeal Memorandum46 for reinvestigation is legally in order. There was enough
before the CRAB. evidence to sustain the finding of guilt and the
proprietary (sic) of the punishment imposed. Also, your
On March 12, 2014, Spouses Cudia wrote a letter to son was afforded sufficient time to file his appeal from
President Benigno Simeon C. Aquino III (Pres. the date he was informed of the final verdict on January
Aquino), who is the Commander-in-Chief of the AFP, 21, 2014, when the decision of the Honor Committee
attaching thereto the Appeal Memorandum.47 On the was read to him in person, until the time the PMA
same day, Special Orders No. 48 was issued by the CRAB conducted its review on the case. Moreover, the
PMA constituting a Fact-Finding Board/Investigation continued stay of your son at the Academy was
Body composed of the CRAB members and PMA voluntary. As such, he remained subject to the
senior officers to conduct a deliberate investigation Academy's policy regarding visitation. Further, there
pertaining to Cadet 1CL Cudia's Appeal was no violation of his right to due process considering
Memorandum.48 The focus of the inquiry was not just that the procedure undertaken by the Honor
to find out whether the appeal has merit or may be Committee and PMA CRAB was consistent with
considered but also to investigate possible involvement existing policy. Thus, the previous finding and
of other cadets and members of the command related recommendation of the Honor Committee finding your
to the incident and to establish specific violation of son, subject Cadet guilty of "Lying" and recommending
policy or regulations that had been violated by other his separation from the Academy is sustained.
cadets and members of the HC.49
In view of the foregoing, this Headquarters resolved to
On March 13, 2014, the Cudia family and the Chief deny your appeal for lack of merit.51 Thereafter, the
Public Attorney had a dialogue with Maj. Gen. Lopez. Fact-Finding Board/Investigating Body issued its Final
On March 14, 2014, the CHR-CAR came out with its Investigation Report on March 23, 2014 denying Cadet
preliminary findings, which recommended the 1 CL Cudia's appeal.52 Subsequently, on April 28,
following: 2014, the special investigation board tasked to probe
the case submitted its final report to the President.53
a. For the PMA and the Honor Committee to respect Pursuant to the administrative appeals process, the
and uphold the 8 Guilty - 1 Not guilty vote; DND issued a Memorandum dated May 23, 2014,
directing the Office of AFP Chief of Staff to submit the
b. For the PMA and the Honor Committee to officially complete records of the case for purposes of DND
pronounce Cdt Cudia as Not Guilty of the charge filed review and recommendation for disposition by the
against him before the Honor Committee; President.54

c. For the PMA to restore Cadet Cudia's rights and Meanwhile, on May 22, 2014, the CHR-CAR issued its
entitlements as a full-fledge graduating cadet and allow Resolution with respect to CHR-CAR Case No. 2014-
him to graduate on Sunday, 16 March 2014; 0029, concluding and recommending as follows:

d. For the PMA to fully cooperate with the CHR in the WHEREFORE, PREMISES CONSIDERED, the
investigation of Cudia's Case.50 Commission on Human Rights-CAR Office finds
PROBABLE CAUSE FOR HUMAN RIGHTS
On March 15, 2014, Cadet 1CL Cudia and his family VIOLATIONS against the officers and members of the
had a meeting with Pres. Aquino and Department of PMA Honor Committee and .. certain PMA officials,

29
specifically for violations of the rights of CADET 3.7 Cdt lCL KIM ADRIAN R. MARTAL, now 2nd Lt. of
ALDRIN JEFF P. CUDIA to dignity, due process, the AFP
education, privacy/privacy of communication, and good
life. 3.8 Cdt lCL JAIRUS 0. FANTIN, now 2nd Lt. of the AFP

IN VIEW OF THE FOREGOING, the CHR-CAR Office 3.9 Cdt lCL BRYAN SONNY S. ARLEGUI, now 2nd Lt.
RESOLVED to indorse to competent authorities for of the AFP
their immediate appropriate action on the following
recommendations: 3.10 Cdt lCL DALTON JOHN G. LAGURA, now 2nd Lt.
of the AFP
1. The Philippine Military Academy must set aside the
"9-Guilty, 0-Not Guilty" verdict against Cadet Aldrin Jeff 3.11 Cdt 1 CL BIANCHIHEIMER L. EDRA, now 2nd Lt.
P. Cudia, for being null and void; to uphold and respect of the AFP
the "8-Guilty, 1-Not Guilty" voting result and make an
official pronouncement of NOT GUILTY in favor of 3.12 Cdt 4CL JENNIFER A. CUARTERON (recorder)
Cadet Cudia;
3.13 Cdt 3CL LEONCIO NICO A. DE JESUS II (record)
2. The PMA, the AFP Chief of Staff, and the President
in whose hands rest the ends of justice and fate of 4. The Office of the AFP Chief of Staff and the PMA
Cadet Cudia, to: competent authorities should investigate and file
appropriate charges against Maj. VLADIMIR P.
2.1 officially proclaim Cadet Cudia a graduate and GRACILLA, for violation of the right to privacy of Cadet
alumnus of the Philippine Military Academy; Cudia and/or failure, as intelligence officer, to ensure
the protection of the right to privacy of Cudia who was
2.2 issue to Cadet Cudia the corresponding Diploma then billeted at the PMA Holding Center;
for the degree of Bachelors of Science; and
5. The Office of the AFP Chief of Staff and PMA
2.3 Issue to Cadet Cudia the corresponding official competent authorities should investigate Maj. DENNIS
transcript 'of his academic records for his BS degree, ROMMEL HINDANG for his failure and ineptness to
without conditions therein as to his status as a PMA exercise his responsibility as a competent Tactical
cadet. Officer and a good father of his cadets, in this case, to
Cadet Cudia; for failure to respect exhaustion of
3. The Public Attorneys' Office to provide legal services administrative remedies;
to Cadet Cudia in pursuing administrative, criminal and
civil suits against the officers and members of the 6. The Secretary of National Defense, the Chief of Staff
Honor Committee named hereunder, for violation of the of the Armed Forces of the Philppines, the PMA
Honor Code and System and the Procedure in Formal Superintendent, to immediately cause the
Investigation, dishonesty, violation of the secrecy of the comprehensive review of all rules of procedures,
ballot, tampering the true result of the voting, perjury, regulations, policies, including the so-called practices
intentional omission in the Minutes of substantive part in the implementation of the Honor Code; and,
of the formal trial proceedings which are prejudicial to thereafter, adopt new policies, rules of procedures and
the interest of justice and Cadet Cudia's fundamental relevant regulations which are human-rights based and
rights to dignity, non-discrimination and due process, consistent with the Constitution and other applicable
which led to the infringement of his right to education laws;
and even transgressing his right to a good life.
7. The Congress of the Philippines to consider the
3.1 Cdt lCL MIKE ANTHONY MOGUL, now 2nd Lt. of enactment of a law defining and penalizing ostracism
the AFP and discrimination, which is apparently being practiced
in the PMA, as a criminal offense in this jurisdiction;
3.2 Cdt lCL RHONA K. SALVACION, now 2nd Lt. of
the AFP 8. His Excellency The President of the Philippines to
certify as priority, the passage of an anti-ostracism
3.3 Cdt 2CL ARWI C. MARTINEZ and/or anti-discrimination law; and

3.4 Cdt 2CL RENATO A. CARINO, JR. 9. Finally, for the AFP Chief of Staff and the PMA
authorities to ensure respect and protection of the
3.5 Cdt 2CL NIKOANGELOC. TARAYAO rights of those who testified for the cause of justice and
truth as well as human rights of Cadet Cudia.
3.6 Cdt lCL JEANEL YN P. CABRIDO, now 2nd Lt. of
the AFP RESOLVED FURTHER, to monitor the actions by the
competent authorities on the foregoing CHR
recommendations.

30
 The Issues
Let copy of this resolution be served by personal
service or by substituted service to the complainants To petitioners, the issues for resolution are:
(the spouses Renato and Filipina Cudia; and Aldrin Jeff
P. Cudia), and all the respondents. Also, to the PMA I.
Superintendent, the AFP Chief of Staff, the Secretary
of National Defense, His Excellency The President of WHETHER THE PHILIPPINE MILITARY ACADEMY,
the Philippines, The Public Attorneys' Office. THE HONOR COMMITTEE AND THE CADET
REVIEW AND APPEALS BOARD COMMITTED
SO RESOLVED.55 GRAVE ABUSE OF DISCRETION IN DISMISSING
CADET FIRST CLASS ALDRIN JEFF P. CUDIA
On June 11, 2014, the Office of the President FROM THE ACADEMY IN UTTER DISREGARD OF
sustained the findings of the AFP Chief of Staff and the HIS RIGHT TO DUE PROCESS CONSIDERING
CRAB. The letter, which was addressed to the THAT:
Spouses Cudia and signed by Executive Secretary
Paquito N. Ochoa, Jr., stated in whole: A. Despite repeated requests for relevant documents
regarding his case, Cadet First Class Aldrin Jeff Cudia
This refers to your letters to the President dated 12 was deprived of his right to have access to evidence
March 2014 and 26 March 2014 appealing for a which would have proven his defense, would have
reconsideration of the decision of the Philippine Military totally belied the charge against him, and more
Academy (PMA) Honor Committee on the case of your importantly, would have shown the irregularity in the
son, Cadet 1 CL Aldrin Jeff Cudia. Honor Committee's hearing and rendition of decision

After carefully studying the records of the case of Cadet B. Cadet First Class Aldrin Jeff Cudia was vaguely
Cudia, the decision of the Chief of Staff of the Armed informed of the decisions arrived at by the Honor
Forces of the Philippines (AFP), and the Honor Code Committee, the Cadet Review and Appeals Board and
System of the AFP Cadet Corps, this Office has found the Philippine Military Academy
no substantial basis to disturb the findings of the AFP
and the PMA Cadet Review Appeals Board (CRAB). C. The Honor Committee, the Cadet Review and
There is no competent evidence to support the claim Appeals Board and the Philippine Military Academy
that the decision of the Honor Committee members have afforded Cadet First Class Aldrin Jeff Cudia
was initially at 8 "Guilty" votes and 1 "Not Guilty" vote. nothing but a sham trial
The lone affidavit of an officer, based on his purported
conversation with one Honor Committee member, D. The Honor Committee, the Cadet Review and
lacks personal knowledge on the deliberations of the Appeals Board and the Philippine Military Academy
said Committee and is hearsay at best. violated their own rules and principles as embodied in
the Honor Code
Similarly, the initial recommendations of the
Commission on Human Rights cannot be adopted as E. The Honor Committee, the Cadet Review and
basis that Cadet Cudia's due process rights were Appeals Board and the Philippine Military Academy, in
violated. Apart from being explicitly preliminary in deciding Cadet First Class Aldrin Jeff Cudia's case,
nature, such recommendations are anchored on a grossly and in bad faith, misapplied the Honor Code so
finding that there was an 8-1 vote which, as discussed as to defy the 1987 Constitution, notwithstanding the
above, is not supported by competent evidence. unquestionable fact that the former should yield to the
latter.
In the evaluation of Cadet Cudia's case, this Office has
been guided by the precept that military law is regarded II
to be in a class of its own, "applicable only to military
personnel because the military constitutes an armed WHETHER THE PHILIPPINE MILITARY ACADEMY,
organization requiring a system of discipline separate THE HONOR COMMITTEE AND THE CADET
from that of civilians" (Gonzales v. Abaya, G.R. No. REVIEW AND APPEALS BOARD COMMITTED
164007, 10 August 2005 citing Calley v. Callaway, 519 GRAVE ABUSE OF DISCRETION IN HOLDING THAT
F. 2d 184 [1975] and Orloff v. Willoughby, 345 US 83 CADET FIRST CLASS ALDRIN JEFF P. CUDIA LIED,
[1953]). Thus, this Office regarded the findings of the THEREBY VIOLATING THE HONOR CODE
AFP Chief, particularly his conclusion that there was
nothing irregular in the proceedings that ensued, as III
carrying great weight.
WHETHER THE RESULT OF THE FACT-FINDING
Accordingly, please be informed that the President has INVESTIGATION INDEPENDENTLY CONDUCTED
sustained the findings of the AFP Chief and the PMA BY THE COMMISSION ON HUMAN RIGHTS IS OF
CRAB.56 SUCH GREAT WEIGHT AND PERSUASIVE NATURE

31
THAT THIS HONORABLE COURT MAY HONOR, The PMA has regulatory authority to administratively
UPHOLD AND RESPECT57 terminate cadets despite the absence of statutory
authority.
On the other hand, in support of their prayer to dismiss
the petition, respondents presented the issues below: Violation of the Honor Code warrants the
administrative dismissal of a guilty cadet.
PROCEDURAL GROUNDS
Cadet Cudia violated the first tenet of the Honor Code
I. by providing untruthful statements in the explanation
for his tardiness.
THE MANDAMUS PETITION PRAYING THAT CADET
CUDIA BE INCLUDED IN THE LIST OF GRADUATES The higher authorities of the PMA did not blindly adopt
OF SIKLAB DIWA CLASS OF 2014 AND BE the findings of the Honor Committee.
ALLOWED TO TAKE PART IN THE
COMMENCEMENT EXERCISES HAS ALREADY The procedural safeguards in a student disciplinary
BEEN RENDERED MOOT. case were properly accorded to Cadet Cudia.

II. The subtle evolution in the voting process of the Honor

Committee, by incorporating executive
THE ISSUES RAISED IN THE PETITIONS ARE session/chambering, was adopted to further
ACTUALLY FACTUAL WHICH ARE BEYOND THE strengthen the voting procedure of the Honor
SCOPE OF A PETITION FOR CERTIORARI, Committee. Cadet Lagura voluntarily changed his vote
PROHIBITION AND MANDAMUS. without any pressure from the other voting members of
the Honor Committee.
III.
Ostracism is not a sanctioned practice of the PMA.
MANDAMUS DOES NOT LIE TO COMPEL
RESPONDENTS TO GRANT THE RELIEFS PRAYED The findings of the Commission on Human Rights are
FOR. IV. IT IS PREMATURE TO INVOKE JUDICIAL not binding on the Honorable Court, and are, at best,
REDRESS PENDING THE DECISION OF THE recommendatory.
PRESIDENT ON CADET CUDIA'S APPEAL.
Cadet Cudia was not effectively deprived of his future
V. when he was dismissed from the PMA.58

WITH UTMOST DUE RESPECT, THE HONORABLE The Ruling of the Court
COURT MUST EXERCISE CAREFUL RESTRAINT
AND REFRAIN FROM UNDULY OR PREMATURELY PROCEDURAL GROUNDS
INTERFERING WITH LEGITIMATE MILITARY
MATTERS. Propriety of a petition for mandamus

SUBSTANTIVE GROUNDS Respondents argue that the mandamus aspect of the

petition praying that Cadet 1 CL Cudia be included in
VI. the list of graduating cadets and for him to take part in
the commencement exercises was already rendered
CADET CUDIA HAS NECESSARILY AND moot and academic when the graduation ceremonies
VOLUNTARILY RELINQUISHED CERTAIN CIVIL of the PMA Siklab Diwa Class took place on March 16,
LIBERTIES BY VIRTUE OF HIS ENTRY INTO THE 2014. Also, a petition for mandamus is improper since
PMA. it does not lie to compel the performance of a
discretionary duty. Invoking Garcia v. The Faculty
VII. Admission Committee, Loyola School of Theology,59
respondents assert that a mandamus petition could not
THE PMA ENJOYS THE ACADEMIC FREEDOM be availed of to compel an academic institution to allow
WHICH AUTHORIZES IT TO IMPOSE DISCIPLINARY a student to continue studying therein because it is
MEASURES AND PUNISHMENT AS IT DEEMS FIT merely a privilege and not a right. In this case, there is
AND CONSISTENT WITH THE PECULIAR NEEDS a clear failure on petitioners' part to establish that the
OF THE ACADEMY. PMA has the, ministerial duty to include Cadet 1 CL
Cudia in the list, much less award him with academic
VIII. honors and commission him to the Philippine Navy.
Similar to the case of University of San Agustin, Inc. v.
CADET CUDIA WAS PROPERLY AFFORDED Court of Appeals,60 it is submitted that the PMA may
PROCEDURAL DUE PROCESS. rightfully exercise its discretionary power on who may
be admitted to study pursuant to its academic freedom.

32
 purpose of allowing the CRAB to conduct intelligent
In response, petitioners contend that while the plea to review of the case of Cadet Cudia;
allow Cadet 1 CL Cudia to participate in the PMA 2014
commencement exercises could no longer be had, the 5. direct the PMA's CRAB to conduct a review de nova
Court may still grant the other reliefs prayed for. They of all the records without requiring Cadet Cudia to
add that Garcia enunciated that a respondent can be submit new evidence if it was physically impossible to
ordered to act in a particular manner when there is a do so;
violation of a constitutional right, and that the certiorari
aspect of the petition must still be considered because 6. direct the PMA's CRAB to take into account the
it is within the province of the Court to determine certification signed by Dr. Costales, the new evidence
whether a branch of the government or any of its consisting of the affidavit of a military officer declaring
officials has acted without or in excess of jurisdiction or under oath that the cadet who voted "not guilty"
with grave abuse of discretion amounting to lack or revealed to this officer that this cadet was coerced into
excess thereof. changing his vote, and other new evidence if there is
any;
We agree that a petition for mandamus is improper.
7. direct the PMA's CRAB to give Cadet Cudia the right
Under Section 3, Rule 65 of the Rules of Civil to a counsel who is allowed to participate actively in the
Procedure, a petition for mandamus may be filed when proceedings as well as in the cross-examinations
any tribunal, corporation, board, officer, or person during the exercise of the right to confront witnesses
unlawfully neglects the performance of an act which against him; and
the law specifically enjoins as a duty resulting from an
office, trust, or station. It may also be filed when any 8. direct the Honor Committee in case of remand of the
tribunal, corporation, board, officer, or person case by the CRAB to allow Cadet Cudia a
unlawfully excludes another from the use and representation of a counsel.62
enjoyment of a right or office to which such other is
entitled. Similarly, petitioner-intervenor seeks for the following
reliefs:
For mandamus to lie, the act sought to be enjoined
must be a ministerial act or duty. An act is ministerial if A. xxx
the act should be performed "[under] a given state of
facts, in a prescribed manner, in obedience to the B. a Writ of Mandamus be issued commanding:
mandate of a legal authority, without regard to or the
exercise of [the tribunal or corporation's] own judgment a.) The PMA, Honor Committee, and CRAB to respect
upon the propriety or impropriety of the act done." The and uphold the 8 Guilty -1 Not Guilty vote;
tribunal, corporation, board, officer, or person must
have no choice but to perform the act specifically b.) The PMA, Honor Committee, and CRAB to officially
enjoined by law. This is opposed to a discretionary act pronounce Cadet Cudia as Not Guilty of the charge
whereby the officer has the choice to decide how or filed against him before the Honor Committee;
when to perform the duty.61
c.) The PMA to restore Cadet Cudia's rights and
In this case, petitioners pray for, among others: Also, entitlements as a full-fledged graduating cadet,
after due notice and hearing, it is prayed of the Court including his diploma and awards.63
to issue a Writ of Mandamus to:
Anent the plea to direct the PMA to include Cadet 1 CL
1. direct the PMA to include Cadet Cudia in the list of Cudia in the list of graduates of Siklab Diwa Class of
graduates of Siklab Diwa Class of 2014 of the PMA, 2014 and to allow him to take part in the
including inclusion in the yearbook; commencement exercises, the same was rendered
moot and academic when the graduation ceremonies
2. direct the PMA to allow Cadet Cudia to take part in pushed through on March 16, 2014 without including
the commencement exercises if he completed all the Cadet 1 CL Cudia in the roll of graduates.
requirements for his baccalaureate degree;
With respect to the prayer directing the PMA to restore
3. direct the PMA to award unto Cadet Cudia the Cadet 1 CL Cudia's rights and entitlements as a full-
academic honors he deserves, and the commission as fledged graduating cadet, including his diploma,
a new Philippine Navy ensign; awards, and commission as a new Philippine Navy
ensign, the same cannot be granted in a petition for
4. direct the Honor Committee to submit to the CRAB mandamus on the basis of academic freedom, which
of the PMA all its records of the proceedings taken We shall discuss in more detail below. Suffice it to say
against Cadet Cudia, including the video footage and at this point that these matters are within the ambit of
audio recordings of the deliberations and voting, for the or encompassed by the right of academic freedom;
therefore, beyond the province of the Court to

33
decide.64 The powers to confer degrees at the PMA, Cadet 1 CL Cudia's explanation constitutes lying. Even
grant awards, and commission officers in the military if the instant case involves questions of fact, petitioners
service are discretionary acts on the part of the still hold that the Court is empowered to settle mixed
President as the AFP Commander-in-Chief. Borrowing questions of fact and law. Petitioners are correct.
the words of Garcia:
There is a question of law when the issue does not call
There are standards that must be met. There are for an examination of the probative value of evidence
policies to be pursued. Discretion appears to be of the presented, the truth or falsehood of facts being
essence. In terms of Hohfeld's terminology, what a admitted and the doubt concerns the correct
student in the position of petitioner possesses is a application of law and jurisprudence on the matter. On
privilege rather than a right. She [in this case, Cadet 1 the other hand, there is a question of fact when the
CL Cudia] cannot therefore satisfy the prime and doubt or controversy arises as to the truth or falsity of
indispensable requisite of a mandamus proceeding.65 the alleged facts. When there is no dispute as to fact,
the question of whether or not the conclusion drawn
Certainly, mandamus is never issued in doubtful cases. therefrom is correct is a question of law.69 The petition
It cannot be availed against an official or government does not exclusively present factual matters for the
agency whose duty requires the exercise of discretion Court to decide. As pointed out, the all-encompassing
or judgment.66 For a writ to issue, petitioners should issue of more importance is the determination of
have a clear legal right to the thing demanded, and whether a PMA cadet has rights to due process, to
there should be an imperative duty on the part of education, and to property in the context of the Honor
respondents to perform the act sought to be Code and the Honor System, and, if in the affirmative,
mandated.67 the extent or limit thereof. Notably, even respondents
themselves raise substantive grounds that We have to
The same reasons can be said as regards the other resolve. In support of their contention that the Court
reliefs being sought by petitioners, which pertain to the must exercise careful restraint and should refrain from
HC and the CRAB proceedings. In the absence of a unduly or prematurely interfering in legitimate military
clear and unmistakable provision of a law, a matters, they argue that Cadet 1 CL Cudia has
mandamus petition does not lie to require anyone to a necessarily and voluntarily relinquished certain civil
specific course of conduct or to control or review the liberties by virtue of his entry into the PMA, and that the
exercise of discretion; it will not issue to compel an Academy enjoys academic freedom authorizing the
official to do anything which is not his duty to do or imposition of disciplinary measures and punishment as
which is his duty not to do or give to the applicant it deems fit and consistent with the peculiar needs of
anything to which he is not entitled by law.68 the PMA. These issues, aside from being purely legal
being purely legal questions, are of first impression;
The foregoing notwithstanding, the resolution of the hence, the Court must not hesitate to make a
case must proceed since, as argued by petitioners, the categorical ruling.
Court is empowered to settle via petition for certiorari
whether there is grave abuse of discretion on the part Exhaustion of administrative remedies
of respondents in dismissing Cadet 1 CL Cudia from
the PMA. Respondents assert that the Court must decline
jurisdiction over the petition pending President
Factual nature of the issues Aquino’s resolution of Cadet 1 CL Cudia' appeal. They
say that there is an obvious non-exhaustion of the full
According to respondents, the petition raises issues administrative process. While Cadet 1 CL Cudia
that actually require the Court to make findings of fact underwent the review procedures of his guilty verdict at
because it sets forth several factual disputes which the Academy level - the determination by the SJA of
include, among others: the tardiness of Cadet 1 CL whether the HC acted according to the established
Cudia in , his ENG412 class and his explanation procedures of the Honor System, the assessment by
thereto, the circumstances that transpired in the the Commandant of Cadets of the procedural and legal
investigation of his Honor Code violation, the correctness of the guilty verdict, the evaluation of the
proceedings before the HC, and the allegation that PMA Superintendent to warrant the administrative
Cadet 1 CL Lagura was forced to change his vote separation of the guilty cadet, and the appellate review
during the executive session/"chambering." proceedings before the CRAB - he still appealed to the
President, who has the utmost latitude in making
In opposition, petitioners claim that the instant decisions affecting the military. It is contended that the
controversy presents legal issues. Rather than President's power over the persons and actions of the
determining which between the two conflicting versions members of the armed forces is recognized in B/Gen.
of the parties is true, the case allegedly centers on the (Ret.) Gudani v. Lt./Gen. Senga70 and in Section 3171
application, appreciation, and interpretation of a of Commonwealth Act (CA.) No. 1 (also known as "The
person's rights to due process, to education, and to National Defense Act''). As such, the President could
property; the interpretation of the PMA Honor Code still overturn the decision of the PMA. In respondents'
and Honor System; and the conclusion on whether view, the filing of this petition while the case is pending

34
resolution of the President is an irresponsible defiance,
if not a personal affront. For them, comity dictates that 7. when to require exhaustion of administrative
courts of justice should shy away from a dispute until remedies would be unreasonable;
the system of administrative redress has been
completed. 8. when it would amount to a nullification of a claim;

From the unfolding of events, petitioners, however, 9. when the subject matter is a private land in land case
consider that President Aquino effectively denied the proceedings;
appeal of Cadet 1 CL Cudia. They claim that his family
exerted insurmountable efforts to seek reconsideration 10. when the rule does not provide a plain, speedy and
of the HC recommendation from the APP officials and adequate remedy; and
the President, but was in vain. The circumstances prior
to, during, and after the PMA 2014 graduation rites, 11. when there are circumstances indicating the
which was attended by President Aquino after he urgency of judicial intervention.76
talked to Cadet lCL Cudia's family the night before,
foreclose the possibility that the challenged findings Petitioners essentially raise the lack of due process in
would still be overturned. In any case, petitioners insist the dismissal of Cadet 1 CL Cudia from the PMA. Thus,
that the· rule on exhaustion of administrative remedies it may be a ground to give due course to the petition
is not absolute based on the Corsiga v. Defensor72 despite the non-exhaustion of administrative remedies.
and Verceles v. BLR-DOLE73 rulings. Yet more significant is the fact that during the
pendency of this case, particularly on June 11, 2014,
We rule for petitioners. the Office of the President finally issued its ruling,
which sustained the findings of the AFP Chief and the
In general, no one is entitled to judicial relief for a CRAB. Hence, the occurrence of this supervening
supposed or threatened injury until the prescribed event bars any objection to the petition based on failure
administrative remedy has been exhausted. The to exhaust administrative remedies.
rationale behind the doctrine of exhaustion of
administrative remedies is that "courts, for reasons of Court's interference within military affairs
law, comity, and convenience, should not entertain
suits unless the available administrative remedies have Respondents cite the U.S. cases of Bois v. Marsh77
first been resorted to and the proper authorities, who and Schlesinger v. Councilman78 to support their
are competent to act upon the matter complained of, contention that judicial intervention would pose
have been given the appropriate opportunity to act and substantial threat to military discipline and that there
correct their alleged errors, if any, committed in the should be a deferential review of military statutes and
administrative forum."74 In the U.S. case of Ringgold regulations since political branches have particular
v. United States,75 which was cited by respondents, it expertise and competence in assessing military needs.
was specifically held that in a typical case involving a Likewise, in Orloff v. Willoughby79 and Parker v.
decision by military authorities, the plaintiff must Levy,80 it was allegedly opined by the U.S. Supreme
exhaust his remedies within the military before Court that the military constitutes a specialized
appealing to the court, the doctrine being designed community governed by a separate discipline from that
both to preserve the balance between military and of the civilian. According to respondents, the U.S.
civilian authorities and to conserve judicial resources. courts' respect to the military recognizes that
constitutional rights may apply differently in the military
Nonetheless, there are exceptions to the rule. In this context than in civilian society as a whole. Such military
jurisdiction, a party may directly resort to judicial deference is exercised either by refusing to apply due
remedies if any of the following is present: process and equal protection doctrines in military
cases or applying them but with leniency.
1. when there is a violation of due process;
In respondents' view, although Philippine courts have
2. when the issue involved is purely a legal question; the power of judicial review in cases attended with
grave abuse of discretion amounting to lack or excess
3. when the administrative action is patently illegal of jurisdiction, policy considerations call for the widest
amounting to lack or excess of jurisdiction; latitude of deference to military affairs. Such respect is
exercised by the court where the issues to be resolved
4. when there is estoppel on the part of the entail a substantial consideration of legitimate
administrative agency concerned; governmental interest. They suppose that allowing
Cadet 1 CL Cudia's case to prosper will set an
5. when there is irreparable injury; institutionally dangerous precedent, opening a
Pandora's box of other challenges against the
6. when the respondent is a department secretary specialized system of discipline of the PMA. They state
whose acts as an alter ego of the President bear the that with the PMA's mandate to train cadets for
implied and assumed approval of the latter; permanent commission in the AFP, its disciplinary

35
rules and procedure necessarily must impose h Even without referring to U.S. cases, the position of
different standard of conduct compared with civilian petitioners is still formidable. In this jurisdiction, Section
institutions. 1 Article VIII of the 1987 Constitution expanded the
scope of judicial power by mandating that the duty of
Petitioners, on the other hand, consider that this Court the courts of justice includes not only "to settle actual
is part of the State's check-and-balance machinery, controversies involving rights which are legally
specifically mandated by Article VIII of the 1987 demandable and enforceable" but also "to determine
Constitution to ensure that no branch of the whether or not there has been a grave abuse of
government or any of its officials acts without or in discretion amounting to lack or excess of jurisdiction on
excess of jurisdiction or with grave abuse of, discretion the part of any branch or instrumentality of the
amounting to lack or excess of jurisdiction. They assert Government" even if the latter does not exercise
that judicial non-interference in military affairs is not judicial, quasi-judicial or ministerial functions.90 Grave
deemed as absolute even in the U.S. They cite abuse of discretion implies such capricious and
Schlesinger and Parker, which were invoked by whimsical exercise of judgment as is equivalent to lack
respondents, as well as Burns v. Wilson81 and of jurisdiction or where the power is exercised in an
Harmon v. Brucker,82 wherein the U.S. Supreme Court arbitrary or despotic manner by reason of passion or
reviewed the proceedings of military tribunals on personal hostility, which must be so patent and gross
account of issues posed concerning due process and as to amount to an evasion of positive duty or to a
violations of constitutional rights. Also, in Magno v. De virtual refusal to perform the duty enjoined or to act at
Villa83 decided by this Court, petitioners note that We, all in contemplation of law.91
in fact, exercised the judicial power to determine
whether the APP and the members of the court martial The proceedings of the Cadet Honor Committee can,
acted with grave abuse o.f discretion in their military for purposes of the Due Process Clause, be
investigation. considered a governmental activity. As ruled in
Andrews:
Petitioners' contentions are tenable.
The relationship between the Cadet Honor Committee
Admittedly, the Constitution entrusts the political and the separation process at the Academy has been
branches of the government, not the courts, with sufficiently formalized, and is sufficiently
superintendence and control over the military because interdependent, so as to bring that committee's
the courts generally lack the competence and expertise activities within the definition of governmental activity
necessary to evaluate military decisions and they are for the purposes of our review. While the Academy has
ill-equipped to determine the impact upon discipline long had the informal practice of referring all alleged
that any particular intrusion upon military authority violations to the Cadet Honor Committee, the
might have.84 Nevertheless, for the sake of brevity, relationship between that committee and the
We rule that the facts as well as the legal issues in the separation process has to a degree been formalized. x
U.S. cases cited by respondents are not on all fours xx
with the case of Cadet 1 CL Cudia. Instead, what
applies is the 1975 U.S. case of Andrews v. Regardless of whether the relationship be deemed
Knowlton,85 which similarly involved cadets who were formal or informal, the Honor Committee under its own
separated from the United States Military Academy procedures provides that a single "not guilty" vote by a
due to Honor Code violations. Following Wasson v. member ends the matter, while a "guilty" finding
Trowbridge86 and Hagopian v. Knowlton,87 Andrews confronts a cadet with the hard choice of either
re-affirmed the power of the district courts to review resigning or electing to go before a Board of Officers.
procedures used at the service academies in the An adverse finding there results not only in formal
separation or dismissal of cadets and midshipmen. separation from the Academy but also in a damaging
While it recognized the "constitutional permissibility of record that will follow the cadet through life.
the military to set and enforce uncommonly high Accordingly, we conclude that the Cadet Honor
standards of conduct and ethics," it said that the courts Committee, acting not unlike a grand jury, is clearly part
"have expanded at an accelerated pace the scope of of the process whereby a cadet can ultimately be
judicial access for review of military determinations." adjudged to have violated the Cadet Honor Code and
Later, in Kolesa v. Lehman,88 it was opined that it has be separated from the Academy. Therefore, the effect
been well settled that federal courts have jurisdiction of the committee's procedures and determinations on
"where there is a substantial claim that prescribed the separation process is sufficiently intertwined with
military procedures violates one's constitutional rights." the formal governmental activity which may follow as to
By 1983, the U.S. Congress eventually made major bring it properly under judicial review92
revisions to the Uniform Code of Military Justice
(UCMJ) by expressly providing, among others; for a No one is above the law, including the military. In fact,
direct review by the U.S. Supreme Court of decisions the present Constitution declares it as a matter of
by the military's highest appellate authority.89 principle that civilian authority is, at all times, supreme
over the military.93 Consistent with the republican
system of checks and balances, the Court has been

36
entrusted, expressly or by necessary implication, with proper functioning of the educational institution he
both the duty and the obligation of determining, in attends to, one that is with a greater degree than a
appropriate cases, the validity of any assailed student at a civilian public school.99 In fact, the Honor
legislative or executive action.94 Code and Honor System Handbook of the PMA
expresses that, "[as] a training environment, the Cadet
SUBSTANTIVE GROUNDS Corps is a society which has its own norms. Each
member binds himself to what is good for him, his
Cadet's relinquishment of certain civil liberties subordinates, and his peers. To be part of the Cadet
Corps requires the surrender of some basic rights and
Respondents assert that the standard of rights liberties for the good of the group."100
applicable to a cadet is not the same as that of a civilian
because the former' s rights have already been It is clear, however, from the teachings of Wasson and
recalibrated to best serve the military purpose and Hagopian, which were adopted by Andrews, that a
necessity. They claim that both Gudani and Lt. Col. cadet facing dismissal from the military academy for
Kapunan, Jr. v. Gen. De Villa95 recognized that, to a misconduct has constitutionally protected private
certain degree, individual rights of persons in the interests (life, liberty, or property); hence, disciplinary
military service may be curtailed by the rules of military proceedings conducted within the bounds of
discipline in order to ensure its effectiveness in fulfilling procedural due process is a must.101 For that reason,
the duties required to be discharged under the law. the PMA is not immune from the strictures of due
Respondents remind that, as a military student aspiring process. Where a person's good name, reputation,
to a commissioned post in the military service, Cadet 1 honor, or integrity is at stake because of what the
CL Cudia voluntarily gave up certain civil and political government is doing to him, the minimal requirements
rights which the rest of the civilian population enjoys. of the due process clause must be satisfied.102
The deliberate surrender of certain freedoms on his Likewise, the cadet faces far more severe sanctions of
part is embodied in the cadets' Honor Code Handbook. being expelled from a course of college instruction
It is noted that at the beginning of their academic life in which he or she has pursued with a view to becoming
the PMA, Cadet 1 CL Cudia, along with the rest of a career officer and of probably
Cadet Corps, took an oath and undertaking to stand by
the Honor Code and the Honor System. being forever denied that career.103

To say that a PMA cadet surrenders his fundamental The cases of Gudani and Kapunan, Jr. are inapplicable
human rights, including the right to due process, is, for as they do not specifically pertain to dismissal
petitioners, contrary to the provisions of Section 3, proceedings of a cadet in a military academy due to
Article II of the 1987 Constitution,96 Executive Order honor violation. In Gudani, the Court denied the petition
(E.O.) No. 17897 (as amended by E.O. No. 100598), that sought to annul the directive from then President
AFP Code of Ethics, Oath of Cadet Corps to the Honor Gloria Macapagal-Arroyo, which' enjoined petitioners
Code and the Honor System, military professionalism, from testifying before the Congress without her
and, in general, military culture. They maintain that the consent. We ruled that petitioners may be subjected to
HC, the CRAB, and the PMA, grossly and in bad faith military discipline for their defiance of a direct order of
misapplied the Honor Code and the Honor System in the AFP Chief of Staff. On the other hand, in Kapunan,
deciding Cadet lCL Cudia's case considering that these Jr., this Court upheld the restriction imposed on
should not be implemented at the expense of human petitioner since the conditions for his "house arrest"
rights, due process, and fair play. Further, under the (particularly, that he may not issue any press
doctrine of constitutional supremacy, they can never statements or give any press conference during the
overpower or defy the 1987 Constitution since the period of his detention) are justified by the
former should yield to the latter. Petitioners stress that requirements of military discipline. In these two cases,
the statement that "a cadet can be compelled to the constitutional rights to information, transparency in
surrender some civil rights and liberties in order for the matters of public concern, and to free speech - not to
Code and System to be implemented" simply pertains due process clause - were restricted to better serve the
to what cadets have to sacrifice in order to prove that greater military purpose. Academic freedom of the
they are men or women of integrity and honor, such as PMA
the right to entertain vices and the right to freely choose
what they want to say or do. In the context of Petitioners posit that there is no law providing that a
disciplinary investigation, it does not contemplate a guilty finding by the HC may be used by the PMA to
surrender of the right to due process but, at most, dismiss or recommend the dismissal of a cadet from
refers to the cadets' rights to privacy and to remain the PMA. They argue that Honor Code violation is not
silent. among those listed as justifications for the attrition of
cadets considering that the Honor Code and the Honor
We concur with the stand of petitioners. System do not state that a guilty cadet is automatically
terminated or dismissed from service. To them, the
Of course, a student at a military academy must be Honor Code and Honor System are "gentleman's
prepared to subordinate his private interests for the agreement" that cannot take precedence over public

37
interest - in the defense of the nation and in view of the precedence over the limited and restricted right of the
taxpayer's money spent for each cadet. Petitioners educational institution.
contend that, based on the Civil Code, all written or
verbal agreements are null and void if they violate the While both parties have valid points to consider, the
law, good morals, good customs, public policy, and arguments of respondents are more in line with the
public safety. facts of this case. We have ruled that the school-
student relationship is contractual in nature. Once
In opposition, respondents claim that the PMA may admitted, a student's enrolment is not only semestral in
impose disciplinary measures and punishment as it duration but for the entire period he or she is expected
deems fit and consistent with the peculiar needs of the to complete it.111 An institution of learning has an
Academy. Even without express provision of a law, the obligation to afford its students a fair opportunity to
PMA has regulatory authority to administratively complete the course they seek to pursue.112 Such
dismiss erring cadets since it is deemed reasonably contract is imbued with public interest because of the
written into C.A. No. 1. Moreover, although said law high priority given by the Constitution to education and
grants to the President the authority of terminating a the grant to the State of supervisory and regulatory
cadet's appointment, such power may be delegated to powers over a educational institutions.113
the PMA Superintendent, who may exercise direct
supervision and control over the cadets. The school-student relationship has also been held as
reciprocal. "[It] has consequences appurtenant to and
Respondents likewise contend that, as an academic inherent in all contracts of such kind -it gives rise to
institution, the PMA has the inherent right to bilateral or reciprocal rights and obligations. The school
promulgate reasonable norms, rules and regulations undertakes to provide students with education
that it may deem necessary for the maintenance of sufficient to enable them to pursue higher education or
school discipline, which is specifically mandated by a profession. On the other hand, the students agree to
Section 3 (2),104 Article XIV of the 1987 Constitution. abide by the academic requirements of the school and
As the premiere military educational institution of the to observe its rules and regulations."114
AFP in accordance with Section 30,105 Article III of
C.A. No. 1 and Sections 58 and 59,106 Chapter 9, Academic freedom or, to be precise, the institutional
Subtitle II, Title VIII, Book IV of E.O. No. 292 autonomy of universities and institutions of higher
("Administrative Code of 1987"), the PMA is an learning,115 has been enshrined in our Constitutions
institution that enjoys academic freedom guaranteed of 1935, 1973, and 1987.116 In Garcia, this Court
by Section 5 (2),107 Article XIV of the 1987 espoused the concurring opinion of U.S. Supreme
Constitution. In Miriam College Foundation, Inc. v. Court Justice Felix Frankfurter in Sweezy v. New
Court of Appeals,108 it was held that concomitant with Hampshire,117 which enumerated "the four essential
such freedom is the right and duty to instill and impose freedoms" of a university: To determine for itself on
discipline upon its students. Also, consistent with academic grounds (1) who may teach, (2) what may be
lsabelo, Jr. v. Perpetual Help College of Rizal, Inc.109 taught, (3) how it shall be taught, and (4) who may be
and Ateneo de Manila University v. Capulong,110 the admitted to study.118 An educational institution has
PMA has the freedom on who to admit (and, the power to adopt and enforce such rules as may be
conversely, to expel) given the high degree of deemed expedient for its government, this being
discipline and honor expected from its students who incident to the very object of incorporation, and
are to form part of the AFP. indispensable to the successful management of the
college.119 It can decide for itself its aims and
For respondents, Cadet 1 CL Cudia cannot, therefore, objectives and how best to attain them, free from
belatedly assail the Honor Code as basis of the HC' s outside coercion or interference except when there is
decision to recommend his dismissal from the PMA. an overriding public welfare which would call for some
When he enlisted for enrolment and studied in the PMA restraint.120 Indeed, "academic freedom has never
for four years, he knew or should have been fully aware been meant to be an unabridged license. It is a
of the standards of discipline imposed on all cadets and privilege that assumes a correlative duty to exercise it
the corresponding penalty for failing to abide by these responsibly. An equally telling precept is a long
standards. recognized mandate, so well expressed in Article 19 of
the Civil Code, that every 'person must, in the exercise
In their Reply, petitioners counter that, as shown in of his rights and in the performance of his duties, act
lsabelo, Jr. and Ateneo, academic freedom is not with justice, give everyone his due, and observe
absolute and cannot be exercised in blatant disregard honesty and good faith."'121
of the right to due process and the 1987 Constitution.
Although schools have the prerogative to choose what The schools' power to instill discipline in their students
to teach, how to teach, and who to teach, the same is subsumed in their academic freedom and that "the
does not go so far as to deprive a student of the right establishment of rules governing university-student
to graduate when there is clear evidence that he is relations, particularly those pertaining to student
entitled to the same since, in such a case, the right to discipline, may be regarded as vital, not merely to the
graduate becomes a vested right which takes smooth and efficient operation of the institution, but to

38
its very survival."122 As a Bohemian proverb puts it: "A upheld the university's withdrawal of a doctorate
school without discipline is like a mill without water." degree already conferred on a student who was found
Insofar as the water turns the mill, so does the school's to have committed intellectual dishonesty in her
disciplinary power assure its right to survive and dissertation. Thus:
continue operating.123 In this regard, the Court has
always recognized the right of schools to impose Art. XIV, §5 (2) of the Constitution provides that
disciplinary sanctions, which includes the power to "[a]cademic freedom shall be enjoyed in all institutions
dismiss or expel, on students who violate disciplinary of higher learning." This is nothing new. The 1935
rules.124 In Miriam College Foundation, Inc. v. Court Constitution and the 1973 Constitution likewise
of Appeals,125 this Court elucidated: provided for the academic freedom or, more precisely,
for the institutional autonomy of universities and
The right of the school to discipline its students is at institutions of higher learning. As pointed out by this
once apparent in the third freedom, i.e., "how it shall be Court in Garcia v. Faculty Admission Committee,
taught." A school certainly cannot function in an Loyola School of Theology, it is a freedom granted to
atmosphere of anarchy. "institutions of higher learning" which is thus given "a
wide sphere of authority certainly extending to the
Thus, there can be no doubt that the establishment of choice of students." If such institution of higher learning
an educational institution requires rules and can decide who can and who cannot study in it, it
regulations necessary for the maintenance of an certainly can also determine on whom it can confer the
orderly educational program and the creation of an honor and distinction of being its graduates.
educational environment conducive to learning. Such
rules and regulations are equally necessary for the Where it is shown that the conferment of an honor or
protection of the students, faculty, and property. distinction was obtained through fraud, a university has
the right to revoke or withdraw the honor or distinction
Moreover, the school has an interest in teaching the it has thus conferred. This freedom of a university does
student discipline, a necessary, if not indispensable, not terminate upon the "graduation" of a student, .as
value in any field of learning. By instilling discipline, the the Court of Appeals held. For it is precisely the
school teaches discipline. Accordingly, the right to "graduation" of such a student that is in question. It is
discipline the student likewise finds basis in the noteworthy that the investigation of private
freedom "what to teach." Incidentally, the school not respondent's case began before her graduation. If she
only has the right but the duty to develop discipline in was able to join the graduation ceremonies on April 24,
its students. The Constitution no less imposes such 1993, it was because of too many investigations
duty. conducted before the Board of Regents finally decided
she should not have been allowed to graduate.
[All educational institutions] shall inculcate patriotism
and nationalism, foster love of humanity, respect for Wide indeed is the sphere of autonomy granted to
human rights, appreciation of the role of national institutions of higher learning, for the constitutional
heroes in the historical development of the country, grant of academic freedom, to quote again from Garcia
teach the rights and duties of citizenship, strengthen v. Faculty Admission Committee, Loyola School of
ethical and spiritual values, develop moral character Theology, "is not to be construed in a niggardly manner
and personal discipline, encourage critical and creative or in a grudging fashion."
thinking, broaden scientific and technological
knowledge, and promote vocational efficiency. Under the U.P. Charter, the Board of Regents is the
highest governing body of the University of the
In Angeles vs. Sison, we also said that discipline was Philippines. It has the power to confer degrees upon
a means for the school to carry out its responsibility to the recommendation of the University Council. It
help its students "grow and develop into mature, follows that if the conferment of a degree is founded on
responsible, effective and worthy citizens of the error or fraud, the Board of Regents is also
community." empowered, subject to the observance of due process,
to withdraw what it has granted without violating a
Finally, nowhere in the above formulation is the right to student's rights. An institution of higher learning cannot
discipline more evident than in "who may be admitted be powerless if it discovers that an academic degree it
to study." If a school has the freedom to determine has conferred is not rightfully deserved. Nothing can be
whom to admit, logic dictates that it also has the right more objectionable than bestowing a university's
to determine whom to exclude or expel, as well as upon highest academic degree upon an individual who has
whom to impose lesser sanctions such as suspension obtained the same through fraud or deceit. The pursuit
and the withholding of graduation privileges.126 of academic excellence is the university's concern. It
should be empowered, as an act of self-defense, to
The power of the school to impose disciplinary take measures to protect itself from serious threats to
measures extends even after graduation for any act its integrity.
done by the student prior thereto. In University of the
Phils. Board of Regents v. Court of Appeals,127 We

39
While it is true that the students are entitled to the right
to pursue their education, the USC as an educational Respondents stress that Guzman v. National
institution is also entitled to pursue its academic University138 is more appropriate in determining the
freedom and in the process has the concomitant right minimum standards for the imposition of disciplinary
to see to it that this freedom is not jeopardized.128 sanctions in academic institutions. Similarly, with the
guideposts set in Andrews, they believe that Cadet 1
It must be borne in mind that schools are established, CL Cudia was accorded due process.
not merely to develop the intellect and skills of the
studentry, but to inculcate lofty values, ideals and On the other hand, petitioners argue that the HC, the
attitudes; nay, the development, or flowering if you will, CRAB and the PMA fell short in observing the
of the total man.129 Essentially, education must important safeguards laid down in Ang Tibay v. CIR139
ultimately be religious, i.e., one which inculcates duty and Non v. Judge Dames II,140 which set the minimum
and reverence.130 Under the rubric of "right to standards to satisfy the demands of procedural due
education," students have a concomitant duty to learn process in the imposition of disciplinary sanctions. For
under the rules laid down by the school.131 Every them, Guzman did not entirely do away with the due
citizen has a right to select a profession or, course of process requirements outlined in Ang Tibay as the
study, subject to fair, reasonable, and equitable Court merely stated that the minimum requirements in
admission and academic requirements.132 The PMA the Guzman case are more apropos.
is not different. As the primary training and educational
institution of the AFP, it certainly has the right to invoke Respondents rightly argued.
academic freedom in the enforcement of its internal
rules and regulations, which are the Honor Code and Ateneo de Manila University v. Capulong141 already
the Honor System in particular. settled the issue as it held that although both Ang Tibay
and Guzman essentially deal with the requirements of
The Honor Code is a set of basic and fundamental due process, the latter case is more apropos since it
ethical and moral principle. It is the minimum standard specifically deals with the minimum standards to be
for cadet behavior and serves as the guiding spirit satisfied in the imposition of disciplinary sanctions in
behind each cadet's action. It is the cadet's academic institutions. That Guzman is the authority on
responsibility to maintain the highest standard of the procedural rights of students in disciplinary cases
honor. Throughout a cadet's stay in the PMA, he or she was reaffirmed by the Court in the fairly recent case of
is absolutely bound thereto. It binds as well the Go v. Colegio De San Juan De Letran.142
members of the Cadet Corps from its alumni or the
member of the so-called "Long Gray Line." In Guzman, the Court held that there are minimum
standards which must be met to satisfy the demands
Likewise, the Honor Code constitutes the foundation of procedural due process, to wit:
for the cadets' character development. It defines the
desirable values they must possess to remain part of (1) the students must be informed in writing of the
the Corps; it develops the atmosphere of trust so nature and cause of any accusation against them; (2)
essential in a military organization; and it makes them they shall have the right to answer the charges against
professional military soldiers.133 As it is for character them, with the assistance of counsel, if desired; (3) they
building, it should not only be kept within the society of shall be informed of the evidence against them; ( 4)
cadets. It is best adopted by the Cadet Corps with the they shall have the right to adduce evidence in their
end view of applying it outside as an officer of the AFP own behalf; and (5) the evidence must be duly
and as a product of the PMA.134 considered by the investigating committee or official
designated by the school authorities to hear and decide
The Honor Code and System could be justified as the the case.143
primary means of achieving the cadets' character
development and as ways by which the Academy has We have been consistent in reminding that due
chosen to identify those who are deficient in process in disciplinary cases involving students does
conduct.135 Upon the Code rests the ethical standards not entail proceedings and hearings similar to those
of the Cadet Corps and it is also an institutional goal, prescribed for actions and proceedings in courts of
ensuring that graduates have strong character, justice;144 that the proceedings may be summary;145
unimpeachable integrity, and moral standards of the that cross-examination is not an essential part of the
highest order.136 To emphasize, the Academy's investigation or hearing;146 and that the required proof
disciplinary system as a whole is characterized as in a student disciplinary action, which is an
"correctional and educational in nature rather than administrative case, is neither proof beyond
being legalistic and punitive." Its purpose is to teach the reasonable doubt nor preponderance of evidence but
cadets "to be prepared to accept full responsibility for only substantial evidence or "such relevant evidence
all that they do or fail to do and to place loyalty to the as a reasonable mind might accept as adequate to
service above self-interest or loyalty to friends or support a conclusion."147
associates. "137 Procedural safeguards in a student
disciplinary case

40
What is crucial is that official action must meet Spirit by reducing the Code to a systematic list of
minimum standards of fairness to the individual, which externally observed rules. Where misinterpretations
generally encompass the right of adequate notice and and loopholes arise through legalism and its
a meaningful opportunity to be heard.148 As held in De technicalities, the objective of building the character of
La Salle University, Inc. v. Court of Appeals:149 the cadets becomes futile. While, generally, Public Law
penalizes only the faulty acts, the Honor System tries
Notice and hearing is the bulwark of administrative due to examine both the action and the intention.152
process, the right to which is among the primary rights
that must be respected even in administrative Like in other institutions of higher learning, there is
proceedings. The essence of due process is simply an aversion towards undue judicialization of an
opportunity to be heard, or as applied to administrative administrative hearing in the military academy. It has
proceedings, an opportunity to explain one's side or an been said that the mission of the military is unique in
opportunity to seek reconsideration of the action or the sense that its primary business is to fight or be
ruling complained of. So long as the party is given the ready to fight wars should the occasion arise, and that
opportunity to advocate her cause or defend her over-proceduralizing military determinations
interest in due course, it cannot be said that there was necessarily gives soldiers less time to accomplish this
denial of due process. task.153 Extensive cadet investigations and complex
due process hearing could sacrifice simplicity,
A formal trial-type hearing is not, at all times and in all practicality, and timeliness. Investigations that last for
instances, essential to due process - it is enough that several days or weeks, sessions that become
the parties are given a fair and reasonable opportunity increasingly involved with legal and procedural' points,
to explain their respective sides of the controversy and and legal motions and evidentiary objections that are
to present supporting evidence on which a fair decision irrelevant and inconsequential tend to disrupt, delay,
can be based. "To be heard" does not only mean and confuse the dismissal proceedings and make them
presentation of testimonial evidence in court - one may unmanageable. Excessive delays cannot be tolerated
also be heard through pleadings and where the since it is unfair to the accused, to his or her fellow
opportunity to be heard through pleadings is accorded, cadets, to the Academy, and, generally, to the Armed
there is no denial of due process.150 Forces. A good balance should, therefore, be struck to
achieve fairness, thoroughness, and efficiency.154
The PMA Honor Code explicitly recognizes that an Considering that the case of Cadet 1 CL Cudia is one
administrative proceeding conducted to investigate a of first impression in the sense that this Court has not
cadet's honor violation need not be clothed with the previously dealt with the particular issue of a dismissed
attributes of a judicial proceeding. It articulates that – cadet's right to due process, it is necessary for Us to
The Spirit of the Honor Code guides the Corps in refer to U.S. jurisprudence for some guidance. Notably,
identifying and assessing misconduct. While cadets our armed forces have been patterned after the U.S.
are interested in legal precedents in cases involving Army and the U.S. military code produced a salutary
Honor violations, those who hold the Spirit of the Honor effect in the military justice system of the
Code dare not look into these precedents for loopholes Philippines.155 Hence, pertinent case laws
to justify questionable acts and they are not to interpret interpreting the U.S. military code and practices have
the system to their own advantage. persuasive, if not the same, effect in this jurisdiction.

The Spirit of the Honor Code is a way for the cadets to We begin by stating that U.S. courts have uniformly
internalize Honor in a substantive way. Technical and viewed that "due process" is a flexible concept,
procedural misgivings of the legal systems may avert requiring consideration in each case of a variety of
the true essence of imparting the Spirit of the Code for circumstances and calling for such procedural
the reason that it can be used to make unlawful attempt protections as the particular situation demands.156
to get into the truth of matters especially when a cadet Hagopian opined:
can be compelled to surrender some civil rights and
liberties in order for the Code and System to be In approaching the question of what process is due
implemented. By virtue of being a cadet, a member of before governmental action adversely affecting private
the CCAFP becomes a subject of the Honor Code and interests may properly be taken, it must be recognized
System. Cadet's actions are bound by the existing that due process is not a rigid formula or simple rule of
norms that are logically applied through the Code and thumb to be applied undeviatingly to any given set of
System in order to realize the Academy's mission to facts. On the contrary, it is a flexible concept which
produce leaders of character - men of integrity and depends upon the balancing of various factors,
honor.151 including the nature of the private right or interest that
is threatened, the extent to which the proceeding is
One of the fundamental principles of the Honor System adversarial in character, the severity and
also states: consequences of any action that might be taken, the
burden that would be imposed by requiring use of all or
2. The Honor System correlates with legal procedures part of the full panoply of trial-type procedures, and the
of the state's Justice System but it does not demean its existence of other overriding interests, such as the

41
necessity for prompt action in the conduct of crucial In Andrews, the U.S. Court of Appeals held that
military operations. The full context must therefore be Wasson and Hagopian are equally controlling in cases
considered in each case.157 (Emphasis supplied) where cadets were separated from the military
academy for violation of the Honor Code. Following the
Wasson, which was cited by Hagopian, broadly two previous cases, it was ruled that in order to be
outlined the minimum standards of due process proper and immune from constitutional infirmity, a
required in the dismissal of a cadet. Thus: cadet who is sought to be dismissed or separated from
the academy must be afforded a hearing, be apprised
[W]hen the government affects the private interests of of the specific charges against him, and be given an
individuals, it may not proceed arbitrarily but must adequate opportunity to present his or her defense
observe due process of law. x x x Nevertheless, the both from the point of view of time and the use of
flexibility which is inherent in the concept of due witnesses and other evidence.159 Conspicuously,
process of law precludes the dogmatic application of these vital conditions are not too far from what We have
specific rules developed in one context to entirely already set in Guzman and the subsequent rulings in
distinct forms of government action. "For, though 'due Alcuaz v. Philippine School of Business
process of law' generally implies and includes actor, Administration160 and De La Salle University, Inc. v.
reus, judex, regular allegations, opportunity to answer, Court of Appeals.161
and a trial according to some settled course of judicial
proceedings, * * * yet, this is not universally true." x x x In this case, the investigation of Cadet 1 CL Cudia' s
Thus, to determine in any given case what procedures Honor Code violation followed the prescribed
due process requires, the court must carefully procedure and existing practices in the PMA. He was
determine and balance the nature of the private notified of the Honor Report from Maj. Hindang. He was
interest affected and of the government interest then given the opportunity to explain the report against
involved, taking account of history and the precise him. He was informed about his options and the entire
circumstances surrounding the case at hand. process that the case would undergo. The preliminary
investigation immediately followed after he replied and
While the government must always have a legitimate submitted a written explanation. Upon its completion,
concern with the subject matter before it may validly the investigating team submitted a written report
affect private interests, in particularly vital and sensitive together with its recommendation to the HC Chairman.
areas of government concern such as national security The HC thereafter reviewed the findings and
and military affairs, the private interest must yield to a recommendations. When the honor case was
greater degree to the governmental. x x x Few submitted for formal investigation, a new team was
decisions properly rest so exclusively within the assigned to conduct the hearing. During the formal
discretion of the appropriate government officials than investigation/hearing, he was informed of the charge
the selection, training, discipline and dismissal of the against him and given the right to enter his plea. He
future officers of the military and Merchant Marine. had the chance to explain his side, confront the
Instilling and maintaining discipline and morale in these witnesses against him, and present evidence in his
young men who will be required to bear weighty behalf. After a thorough discussion of the HC voting
responsibility in the face of adversity -- at times members, he was found to have violated the ' Honor
extreme -- is a matter of substantial national Code. Thereafter, the guilty verdict underwent the
importance scarcely within the competence of the review process at the Academy level - from the OIC of
judiciary. And it cannot be doubted that because of the HC, to the SJA, to the Commandant of Cadets, and
these factors historically the military has been to the PMA Superintendent. A separate investigation
permitted greater freedom to fashion its disciplinary was also conducted by the HTG. Then, upon the
procedures than the civilian authorities. directive of the AFP-GHQ to reinvestigate the case, a
review was conducted by the CRAB. Further, a Fact-
We conclude, therefore, that due process only requires Finding Board/Investigation Body composed of the
for the dismissal of a Cadet from the Merchant Marine CRAB members and the PMA senior officers was
Academy that he be given a fair hearing at which he is constituted to conduct a deliberate investigation of the
apprised of the charges against him and permitted a case. Finally, he had the opportunity to appeal to the
defense. x x x For the guidance of the parties x x x the President. Sadly for him, all had issued unfavorable
rudiments of a fair hearing in broad outline are plain. rulings.
The Cadet must be apprised of the specific charges
against him. He must be given an adequate opportunity It is well settled that by reason of their special
to present his defense both from the point of view of knowledge and expertise gained from the handling of
time and the use of witnesses and other evidence. We specific matters falling under their respective
do not suggest, however, that the Cadet must be given jurisdictions, the factual findings of administrative
this opportunity both when demerits are awarded and tribunals are ordinarily accorded respect if not finality
when dismissal is considered. The hearing may be by the Court, unless such findings are not supported by
procedurally informal and need not be adversarial.158 evidence or vitiated by fraud, imposition or collusion;
(Emphasis supplied) where the procedure which led to the findings is
irregular; when palpable errors are committed; or when

42
a grave abuse of discretion, arbitrariness, or
capriciousness is manifest.162 In the case of Cadet 1 More in point is the opinion in Wasson, which We
CL Cudia, We find no reason to deviate from the adopt. Thus:
general rule. The grounds therefor are discussed
below seriatim: The requirement of counsel as an ingredient of fairness
is a function of all of the other aspects of the hearing.
As to the right to be represented by a counsel – Where the proceeding is non-criminal in nature, where
the hearing is investigative and not adversarial and the
For petitioners, respondents must be compelled to give government does not proceed through counsel, where
Cadet 1 CL Cudia the right to be represented by a the individual concerned is mature and educated,
counsel who could actively participate in the where his knowledge of the events x x x should enable
proceedings like in the cross-examination of the him to develop the facts adequately through available
witnesses against him before the CRAB or HC, if sources, and where the other aspects of the hearing
remanded. This is because while the CRAB allowed taken as a whole are fair, due process does not require
him to be represented by a PAO lawyer, the counsel representation by counsel.167
was only made an observer without any right to
intervene and demand respect of Cadet 1 CL Cudia's To note, U.S. courts, in general, have declined to
rights.163 According to them, he was not sufficiently recognize a right to representation by counsel, as a
given the opportunity to seek a counsel and was not function of due process, in military academy
even asked if he would like to have one. He was only disciplinary proceedings.168 This rule is principally
properly represented when it was already nearing motivated by the policy of "treading lightly on the
graduation day after his family sought the assistance of military domain, with scrupulous regard for the power
the PAO. Petitioners assert that Guzman is specific in and authority of the military establishment to govern its
stating that the erring student has the right to answer own affairs within the broad confines of constitutional
the charges against him or her with the assistance of due process" and the courts' views that disciplinary
counsel, if desired. proceedings are not judicial in nature and should be
kept informal, and that literate and educated cadets
On the other hand, respondents cited Lumiqued v. should be able to defend themselves.169 In Hagopian,
Exevea164 and Nera v. The Auditor General165 in it was ruled that the importance of informality in the
asserting that the right to a counsel is not imperative in proceeding militates against a requirement that the
administrative investigations or non-criminal cadet be accorded the right to representation by
proceedings. Also, based on Cadet lCL Cudia's counsel before the Academic Board and that unlike the
academic standing, he is said to be obviously not welfare recipient who lacks the training and education
untutored to fully understand his rights and express needed to understand his rights and express himself,
himself. Moreover, the confidentiality of the HC the cadet should be capable of doing so.170 In the
proceedings worked against his right to be represented subsequent case of Wimmer v. Lehman,171 the issue
by a counsel. In any event, respondents claim that was not access to counsel but the opportunity to have
Cadet 1 CL Cudia was not precluded from seeking a counsel, instead of oneself, examine and cross-
counsel's advice in preparing his defense prior to the examine witnesses, make objections, and argue the
HC hearing. case during the hearing. Disposing of the case, the
U.S. Court of Appeals for the Fourth Circuit was not
Essentially, petitioners claim .. that Cadet lCL Cudia is persuaded by the argument that an individual of a
guaranteed the right to have his counsel not just in midshipman's presumed intelligence, selected
assisting him in the preparation for the investigative because he is expected to be able to care for himself
hearing before the HC and the CRAB but in and others, often under difficult circumstances, and
participating fully in said hearings. The Court who has full awareness of what he is facing, with
disagrees. counsel's advice, was deprived of due process by
being required to present his defense in person at an
Consistent with Lumiqued and Nera, there is nothing in investigatory hearing.
the 1987 Constitution stating that a party in a non-
litigation proceeding is entitled to be represented by In the case before Us, while the records are bereft of
counsel. The assistance of a lawyer, while desirable, is evidence that Cadet 1 CL Cudia was given the option
not indispensable. Further, in Remolona v. Civil or was able to seek legal advice prior to and/or during
Service Commission,166 the Court held that "a party in the HC hearing, it is indubitable that he was assisted
an administrative inquiry may or may not be assisted by a counsel, a PAO lawyer to be exact, when the
by counsel, irrespective of the nature of the charges CRAB reviewed and reinvestigated the case. The
and of the respondent's capacity to represent himself, requirement of due process is already satisfied since,
and no duty rests on such body to furnish the person at the very least, the counsel aided him in the drafting
being investigated with counsel." Hence, the and filing of the Appeal Memorandum and even acted
administrative body is under no duty to provide the as an observer who had no right to actively participate
person with counsel because assistance of counsel is in the proceedings (such as conducting the cross-
not an absolute requirement. examination). Moreover, not to be missed out are the

43
facts that the offense committed by Cadet 1 CL Cudia presentation of facts submitted at the hearing that
is not criminal in nature; that the hearings before the would support Cadet 1 CL Cudia's defense. The Court
HC and the CRAB were investigative and not may require that an administrative record be
adversarial; and that Cadet lCL Cudia's excellent- supplemented, but only "where there is a 'strong
academic standing puts him in the best position to look showing or bad faith or improper behavior' on the part
after his own vested interest in the Academy. of the agency,"173 both of which are not present here.
Petitioners have not specifically indicated the nature of
As to the confidentiality of records of the proceedings the concealed evidence, if any, and the reason for
– withholding it. What they did was simply supposing that
Cadet 1 CL Cudia's guilty verdict would be overturned
Petitioners allege that when Maj. Gen. Lopez denied in with the production and examination of such
his March 11, 2014 letter Cadet lCL Cudia's request for documents, footages, and recordings. As will be further
documents, footages, and recordings relevant to the shown in the discussions below, the requested
HC hearings, the vital evidence negating the regularity matters, even if denied, would not relieve Cadet 1 CL
of the HC trial and supporting his defense have been Cudia's predicament. If at all, such denial was a
surely overlooked by the CRAB in its case review. harmless procedural error since he was not seriously
Indeed, for them, the answers on whether Cadet 1 CL prejudiced thereby.
Cudia was deprived of due process and whether he
lied could easily be unearthed from the video and other As to the ostracism in the PMA –
records of the HC investigation. Respondents did not
deny their existence but they refused to present them To petitioners, the CRAB considered only biased
for the parties and the Court to peruse. In particular, testimonies and evidence because Special Order No.
they note that the Minutes of the HC dated January 21, 1 issued on February 21, 2014, which directed the
2014 and the HC Formal Investigation Report dated ostracism of Cadet 1 CL Cudia, left him without any
January 20, 2014 were considered by the CRAB but opportunity, to secure statements of his own
were not furnished to petitioners and the Court; hence, witnesses. He could not have access to or approach
there is no way to confirm the truth of the alleged the cadets who were present during the trial and who
statements therein. In their view, failure to furnish these saw the 8-1 voting result. It is argued that the Order
documents could only mean that it would be adverse if directing Cadet 1 CL Cudia's ostracism is of doubtful
produced pursuant to Section 3 (e), Rule 131 of the legal validity because the Honor Code unequivocally
Rules of Court.172 announced: "x x x But by wholeheartedly dismissing
the cruel method of ostracizing Honor Code violators,
For lack of legal basis on PMA' s claim of confidentiality PMA will not have to resort to other humiliating means
of records, petitioners contend that it is the ministerial and shall only have the option to make known among
duty of the HC to submit to the CRAB, for the conduct its alumni the names of those who have not sincerely
of intelligent review of the case, all its records of the felt remorse for violating the Honor Code."
proceedings, including video footages of the
deliberations and voting. They likewise argue that On their part, respondents assert that neither the
PMA' s refusal to release relevant documents to Cadet petition nor the petition-in-intervention attached a full
1 CL Cudia under the guise of confidentiality reveals text copy of the alleged Special Order No. 1. In any
another misapplication of the Honor Code, which case, attributing its issuance to PMA is improper and
merely provides: "A cadet who becomes part of any misplaced because of petitioners' admission that
investigation is subject to the existing regulations ostracism has been absolutely dismissed as an
pertaining to rules of confidentiality and, therefore, Academy-sanctioned activity consistent with the trend
must abide to the creed of secrecy. Nothing shall be in International Humanitarian Law that the PMA has
disclosed without proper guidance from those with included in its curriculum. Assuming that said Order
authority" (IV. The Honor System, Honor Committee, was issued, respondents contend that it purely
Cadet Observer). This provision, they say, does not originated from the cadets themselves, the sole
deprive Cadet 1 CL Cudia of his right to obtain copies purpose of which was to give a strong voice to the
and examine relevant documents pertaining to his Cadet Corps by declaring that they did not tolerate
case. Cadet 1 CL Cudia's honor violation and breach of
confindentiality of the HC proceedings.
Basically, petitioners want Us to assume that the
documents, footages, and recordings relevant to the More importantly, respondents add that it is highly
HC hearings are favorable to Cadet 1 CL Cudia's improbable and unlikely that Cadet 1 CL Cudia was
cause, and, consequently, to rule that respondents' ostracized by his fellow cadets. They manifest that as
refusal to produce and have them examined is early as January 22, 2014, he was already transferred
tantamount to the denial of his right to procedural due to the Holding Center. The practice of billeting an
process. They are mistaken. accused cadet at the Holding Center is provided for in
the Honor Code Handbook. Although within the PMA
In this case, petitioners have not particularly identified compound, the Holding Center is off-limits to cadets
any documents, witness testimony, or oral or written who do not have any business to conduct therein. The

44
cadets could not also ostracize him during mess times the cadet is not on full-duty status and shall be billeted
since Cadet 1 CL Cudia opted to take his meals at the at the HTG Holding Center.177 Similarly, in the U.S.,
Holding Center. The circumstances obtaining when the purpose of "Boarders Ward" is to quarter those
Special Order No. 1 was issued clearly foreclose the cadets who are undergoing separation actions.
possibility that he was ostracized in common areas Permitted to attend classes, the cadet is sequestered ,
accessible to other cadets. He remained in the Holding therein until final disposition of the case. In Andrews, it
Center until March 16, 2014 when he voluntarily left the was opined that the segregation of cadets in the Ward
PMA. Contrary to his claim, guests were also free to was a proper exercise of the discretionary authority of
visit him in the Holding Center. Academy officials. It relied on the traditional doctrine
that "with respect to decisions made by Army
However, petitioners swear that Cadet 1 CL Cudia authorities, 'orderly government requires us to tread
suffered from ostracism in the PMA. The practice was lightly on the military domain, with scrupulous regard
somehow recognized by respondents in their for the power and authority of the military
Consolidated Comment and by PMA Spokesperson establishment to govern its own affairs within the broad
Maj. Flores in a news report. The CHR likewise confines of constitutional due process.'" Also, in
confirmed the same in its Resolution dated May 22, Birdwell v. Schlesinger,178 the "administrative
2014. For them, it does not matter where the ostracism segregation" was held to be a reasonable exercise of
order originated from because the PMA appeared to military discipline and could not be considered an
sanction it even if it came from the cadets themselves. invasion of the rights to freedom of speech and
There was a tacit approval of an illegal act. If not, those freedom of association.
cadets responsible for ostracism would have been
charged by the PMA officials. Finally, it is claimed that Late and vague decisions –
Cadet 1 CL Cudia did not choose to take his meals at
the Holding Center as he was not allowed to leave the It is claimed that Cadet 1 CL Cudia was kept in the dark
place. Petitioners opine that placing the accused cadet as to the charge against him and the decisions arrived
in the Holding Center is inconsistent with his or her at by the HC, the CRAB, and the PMA. No written
presumed innocence and certainly gives the decision was furnished to him, and if any, the
implication of ostracism. information was unjustly belated and the justifications
for the decisions were vague. He had to constantly
We agree with respondents. Neither the petition nor the seek clarification and queries just to be apprised of
petition-inintervention attached a full text copy or even what he was confronted with.
a pertinent portion of the alleged Special Order No. 1,
which authorized the ostracism of Cadet 1 CL Cudia. Petitioners relate that upon being informed of the
Being hearsay, its existence and contents are of "guilty" verdict, Cadet 1 CL Cudia immediately inquired
doubtful veracity. Hence, a definite ruling on the matter as to the grounds therefor, but Cadet 1 CL Mogol
can never be granted in this case. answered that it is confidential since he would still
appeal the same. By March 11, 2014, Maj. Gen. Lopez
The Court cannot close its eyes though on what informed Cadet 1 CL Cudia that the CRAB already
appears to be an admission of Cadet 1 CL Mogol forwarded their recommendation for his dismissal to
during the CHR hearing that, upon consultation with the General Headquarters sometime in February-
the entire class, the baron, and the Cadet Conduct March 2014. Even then, he received no
Policy Board, they issued an ostracism order against decision/recommendation on his case, verbally or in
Cadet 1 CL Cudia.174 While not something new in a writing. The PMA commencement exercises pushed
military academy,175 ostracism's continued existence through with no written decision from the CRAB or the
in the modem times should no longer be PMA on his appeal. The letter from the Office of the
countenanced. There are those who argue that the Adjutant General of the AFP was suspiciously delayed
"silence" is a punishment resulting in the loss of private when the Cudia family received the same only on
interests, primarily that of reputation, and that such March 20, 2014. Moreover, it fell short in laying down
penalty may render illusory the possibility of vindication with specificity the factual and legal bases used by the
by the reviewing body once found guilty by the HC.176 CRAB and even by the Office of the Adjutant General.
Furthermore, in Our mind, ostracism practically denies There remains no proof that the CRAB and the PMA
the accused cadet's protected rights to present considered the evidence presented by Cadet 1 CL
witnesses or evidence in his or her behalf and to be Cudia, it being uncertain as to what evidence was
presumed innocent until finally proven otherwise in a weighed by the CRAB, whether the same is
proper proceeding. substantial, and whether the new evidence submitted
by him was ever taken into account.
As to Cadet 1 CL Cudia's stay in the Holding Center,
the Court upholds the same. The Honor Code and In refutation, respondents allege the existence of
Honor System Handbook provides that, in case a cadet PMA's· practice of orally declaring the HC finding, not
has been found guilty by the HC of violating the Honor putting it in a written document so as to protect the
Code and has opted not to resign, he or she may stay integrity of the erring cadet and guard the
and wait for the disposition of the case. In such event, confidentiality of the HC proceedings pursuant to the

45
Honor System. Further, they aver that a copy of the time it came out with its report, and the Final
report of the CRAB, dated March 10, 2014, was not Investigation Report was drafted merely as an
furnished to Cadet 1 CL Cudia because it was his afterthought when the lack of written decision was
parents who filed the appeal, hence, were the ones pointed out by petitioners so as to remedy the apparent
who were given a copy thereof. lack of due process during the CRAB investigation and
review.
Petitioners' contentions have no leg to stand on. While
there is a constitutional mandate stating that "[no] Despite the arguments, respondents assure that there
decision shall be rendered by any court without was a proper assessment of the procedural and legal
expressing therein clearly and distinctly the facts and correctness of the guilty verdict against Cadet 1 CL
the law on which it is based,"179 such provision does Cudia. They assert that the higher authorities of the
not apply in Cadet 1 CL Cudia's case. Neither Guzman PMA did not merely rely on the findings of the HC,
nor Andrews require a specific form and content of a noting that there was also a separate investigation
decision issued in disciplinary proceedings. The Honor conducted by the HTG from January 25 to February 7,
Code and Honor System Handbook also has no written 2014. Likewise, contrary to the contention of petitioners
rule on the matter. Even if the provision applies, that the CRAB continued with the review of the case
nowhere does it demand that a point-by-point despite the absence of necessary documents, the
consideration and resolution of the issues raised by the CRAB conducted its own review of the case and even
parties are necessary.180 What counts is that, albeit conducted another investigation by constituting the
furnished to him late, Cadet 1 CL Cudia was informed Fact-Finding Board/Investigating Body. For
of how it was decided, with an explanation of the factual respondents, petitioners failed to discharge the burden
and legal reasons that led to the conclusions of the of proof in showing bad faith on the part of the PMA. In
reviewing body, assuring that it went through the the absence of evidence to the contrary and
processes of legal reasoning. He was not left in the considering further that petitioners' allegations are
dark as to how it was reached and he knows exactly merely self-serving and baseless, good faith on the
the reasons why he lost, and is able to pinpoint the part of the PMA' s higher authorities is presumed and
possible errors for review. should, therefore, prevail.

As to the blind adoption of the HC findings – We agree with respondents.

Petitioners assert that, conformably with Sections 30 The Honor Committee, acting on behalf of the Cadet
and 31 of C.A. No. 1, only President Aquino as the Corps, has a limited role of investigating and
Commander-in-Chief has the power to appoint and determining whether or not the alleged offender has
remove a cadet for a valid/legal cause. The law gives actually violated the Honor Code.181 It is given the
no authority to the HC as the sole body to determine responsibility of administering the Honor Code and, in
the guilt or innocence of a cadet. It also does not case of breach, its task is entirely investigative,
empower the PMA to adopt the guilty findings of the examining in the first instance a suspected violation. As
HC as a basis for recommending the cadet's dismissal. a means of encouraging self-discipline, without ceding
In the case of Cadet 1 CL Cudia, it is claimed that the to it any authority to make final adjudications, the
PMA blindly followed the HC's finding of guilt in Academy has assigned it the function of identifying
terminating his military service. suspected violators.182 Contrary to petitioners'
assertion, the HC does not have the authority to order
Further, it is the ministerial duty of the CRAB to conduct the separation of a cadet from the Academy. The
a review de nova of all records without requiring Cadet results of its proceedings are purely recommendatory
1 CL Cudia to submit new evidence if it is physically and have no binding effect. The HC determination is
impossible for him to do so. In their minds, respondents somewhat like an indictment, an allegation, which, in
cannot claim that the CRAB and the PMA thoroughly Cadet 1 CL Cudia's case, the PMA-CRAB investigated
reviewed the HC recommendation and heard Cadet de novo.183 In the U.S., it was even opined that due
lCL Cudia's side. As clearly stated in the letter from the process safeguards do not actually apply at the Honor
Office of the AFP Adjutant General, "[in] its report dated Committee level because it is only a "charging body
March 10, 2014, PMA CRAB sustained the findings whose decisions had no effect other than to initiate de
and recommendations of the Honor Committee x x x It nova proceedings before a Board of Officers."184
also resolved the appeal filed by the subject Cadet."
However, the Final Investigation Report of the CRAB Granting, for argument's sake, that the HC is covered
was dated March 23, 2014. While such report states by the due process clause and that irregularities in its
that a report was submitted to the AFP General proceedings were in fact committed, still, We cannot
Headquarters on March 10, 2014 and that it was only rule for petitioners. It is not required that procedural due
on March 12, 2014 that it was designated as a Fact- process be afforded at every stage of developing
Finding Board/Investigating Body, it is unusual that the disciplinary action. What is required is that an adequate
CRAB would do the same things twice. This raised a hearing be held before the final act of dismissing a
valid and well-grounded suspicion that the CRAB never cadet from the military academy.185 In the case of
undertook an in-depth investigation/review the first Cadet 1 CL Cudia, the OIC of HC, the SJA, the

46
Commandant of Cadets, and the PMA Superintendent Maj. Hindang was prompted to investigate the
reviewed the HC findings. A separate investigation was circumstances surrounding Cadet 1 CL Cudia's
also conducted by the HTG. Then, upon the directive tardiness. Respondents add that bad faith cannot
of the AFP-GHQ to reinvestigate the case, a review likewise be imputed against Maj. Hindang by referring
was conducted by the CRAB. Finally, a Fact-Finding to the actions taken by Maj. Jekyll Dulawan, the CTO
Board/Investigating Body composed of the CRAB of Cadets 1 CL Narciso and Arcangel who also arrived
members and the PMA senior officers was constituted late for their next class. Unlike the other cadets, Cadet
to conduct a deliberate investigation of the case. The 1 CL Cudia did not admit his being late and effectively
Board/Body actually held hearings on March 12, 13, 14 evaded responsibility by ascribing his tardiness to Dr.
and 20, 2014. Instead of commendation, petitioners Costales.
find it "unusual" that the CRAB would do the same
things twice and suspect that it never undertook an in- As to the CHR' s finding that Cadet 1 CL Mogol was
depth investigation/review the first time it came out with likewise "in bad faith and determined to destroy [Cadet
its report. Such assertion is mere conjecture that 1 CL] Cudia, for reasons of his own" because the
deserves scant consideration. former previously reported the latter for an honor
violation in November 2013, respondents argue that
As to the dismissal proceedings as sham trial – the bias ascribed against him is groundless as there is
failure to note that Cadet 1 CL Mogol was a non-voting
According to petitioners, the proceedings before the member of the HC. Further, he cannot be faulted for
HC were a sham. The people behind Cadet ICL reporting a possible honor violation since he is the HC
Cudia's charge, investigation, and conviction were Chairman and nothing less is expected of him.
actually the ones who had the intent to deceive and Respondents emphasize that the representatives of
who took advantage of the situation. Cadet 1 CL the HC are elected from each company, while the HC
Raguindin, who was a senior HC member and was the Chairman is elected by secret ballot from the incoming
second in rank to Cadet 1 CL Cudia in the Navy cadet first class representatives. Thus, if Cadet 1 CL Cu'dia
1 CL, was part of the team which conducted the believed that there was bias against him, he should
preliminary investigation. Also, Cadet I CL Mogol, the have resorted to the procedure for the removal of HC
HC Chairman, previously charged Cadet 1 CL Cudia members provided for in the Honor Code Handbook.
with honor violation allegedly for cheating (particularly,
conniving with and tutoring his fellow cadets on a Finally, respondents declare that there is no reason or
difficult topic by giving solutions to a retake exam) but ill-motive on the part of the PMA to prevent Cadet 1 CL
the charge was dismissed for lack of merit. Even if he Cudia from graduating because the Academy does not
was a non-voting member, he was in a position of stand to gain anything from his dismissal. On the
influence and authority. Thus, it would be a futile contrary, in view of his academic standing, the
exercise for Cadet 1 CL Cudia to resort to the separation militates against PMA' s mission to produce
procedure for the removal of HC members.186 outstanding, honorable, and exceptional cadets.

Further, no sufficient prior notice of the scheduled The Court differs with petitioners.
CRAB hearing was given to Cadet I CL Cudia, his
family, or his PAO counsel. During one of her visits to Partiality, like fraudulent intent, can never be
him in the Holding Center, petitioner-intervenor was presumed. Absent some showing of actual bias,
advised to convince his son to resign and immediately petitioners' allegations do not hold water. The mere
leave the PMA. Brig. Gen. Costales, who later became imputation of ill-motive without proof is speculative at
the CRAB Head, also categorically uttered to Annavee: best. Kolesa teaches us that to sustain the challenge,
"Your brother, he lied!" The CRAB conferences were specific evidence must be presented to overcome
merely used to formalize his dismissal and the PMA
never really intended to hear his side. For petitioners, a presumption of honesty and integrity in those serving
these are manifestations of PMA's clear resolve to as adjudicators; and it must convince that, under a
dismiss him no matter what. realistic appraisal of psychological tendencies and
human weaknesses, conferring investigative and
For their part, respondents contend that the CllR's adjudicative powers on the same individual poses such
allegation that Maj. Hindang acted in obvious bad faith a risk of actual bias or prejudgment that the practice
and that he failed to discharge his duty to be a good must be forbidden if the guarantee of due process is to
father of cadets when he "paved the road to [Cadet 1 be implemented.187
CL Cudia's] sham trial by the Honor Committee" is an
unfounded accusation. They note that when Maj. Although a CTO like Maj. Hindang must decide
Hindang was given the DR of Cadet 1 CL Cudia, he whether demerits are to be awarded, he is not an
revoked the penalty awarded because of his adversary of the cadet but an educator who shares an
explanation. However, all revocations of awarded identity of interest with the cadet, whom he counsels
penalties are subject to the review of the STO. from time to time as a future leader.188 When the
Therefore, it was at the instance of Maj. Leander and occasion calls for it, cadets may be questioned as to
the established procedure followed at the PMA that the accuracy or completeness of a submitted work. A

47
particular point or issue may be clarified. In this case, "not guilty" vote after the voting members were
the question asked of Cadet 1 CL Cudia concerning his "chambered." In the sworn statement, Commander
being late in class is proper, since there is evidence Tabuada said:
indicating that a breach of regulation may have
occurred and there is reasonable cause to believe that 1. That after CDT lCL CUDIA [was] convicted for honor
he was involved in the breach of regulations.189 violation, I [cannot] remember exactly the date but
sometime in the morning of 23rd or 24th of January
For lack of actual proof of bad faith or ill-motive, the 2014, I was in my office filling up forms for the renewal
Court shall rely on the non-toleration clause of the of my passport, CDT 1CL LAGURA entered and had
Honor Code, i.e., "We do not tolerate those who violate business with my staff;
the Code." Cadets are reminded that they are charged
with a tremendous duty far more superior to their 2. When he was about to leave I called him. "Lags,
personal feeling or friendship.190 They must learn to halika muna dito," and he approached me and I let him
help others by guiding them to accept the truth and do sit down on the chair in front of my table. I told and
what is right, rather than tolerating actions against truth asked him, "Talagang nadali si Cudia ah ... ano ha ang
and justice.191 Likewise, cadets are presumed to be nangyari? Mag-Tagalog or mag-Bisaya ka." He replied,
characteristically honorable; they cannot overlook or "Talagang NOT GUILTY ang vote ko sa kanya sir", and
arbitrarily ignore the dishonorable action of their peers, I asked him, "Oh, bakit naging guilty di ha pag may
seniors, or subordinates.192 These are what Cadet 1 isang nag NOT GUILTY, abswelto na? He replied
CL Mogol exactly did, although he was later proven to "Chinamber ako sir, bale pinapa-justify kung bakit NOT
have erred in his accusation. Note that even the Honor GUILTY vote ko, at na-pressure din ako sir kaya binago
Code and Honor System Handbook recognizes that ko, sir." So, I told him, "Sayang sya, matalino at mabait
interpretation of one's honor is generally pa naman" and he replied "oo nga sir". After that
subjective.193 conversation, I let him go.194

Moreover, assuming, for the sake of argument, that It is claimed that the HC gravely abused its discretion
Cadets 1 CL' Raguindin and Mogol as well as Brig. when it committed voting manipulation since, under the
Gen. Costales have an axe to grind against Cadet 1 CL rules, it is required to have a unanimous nine (9) votes
Cudia and were bent on causing, no matter what, the finding an accused cadet guilty. There is nothing in the
latter's downfall, their nefarious conduct would still be procedure that permits the HC Chairman to order the
insignificant. This is so since the HC (both the "chambering" of a member who voted contrary to the
preliminary and formal investigation), the CRAB, and majority and subjects him or her to reconsider in order
the Fact-Finding Board/Investigating Body are collegial to reflect a unanimous vote. Neither is there an order
bodies. Hence, the claim that the proceedings/hearings from the Chief of Staff or the President sanctioning the
conducted were merely a farce because the three HC procedure or approving any change therein
personalities participated therein is tantamount to pursuant to Sections 30 and 31 of C.A. No. 1. The HC,
implying the existence of a conspiracy, distrusting the the CRAB, and the PMA violated their own rules and
competence, independence, and integrity of the other principles as embodied in the Honor Code. Being a
members who constituted the majority. Again, in the clear deviation from the established procedures, the
absence of specifics and substantial evidence, the second deliberation should be considered null and
Court cannot easily give credence to this baseless void.
insinuation.
Petitioners further contend that the requirement of
As to the HC executive session/chambering – unanimous vote involves a substantive right which
cannot be unceremoniously changed without a
Petitioners narrate that there was an irregular corresponding amendment/revision in the Honor Code
administrative hearing in the case of Cadet 1 CL Cudia and Honor System Handbook. In their view,
because two voting rounds took place. After the result "chambering" totally defeats the purpose of voting by
of the secret balloting, Cadet 1 CL Mogol ordered the secret ballot as it glaringly destroys the very essence
voting members to go to a room without the cadet and philosophy behind the provisions of the Honor
recorders. Therein, the lone dissenter, Cadet lCL System, which is to ensure that the voting member is
Lagura, was asked to explain his "not guilty" vote. free to vote what is in his or her heart and mind and
Pressured to change his vote, he was made to cast a that no one can pressure or persuade another to
new one finding Cadet 1 CL Cudia guilty. The original change his or her vote. They suggest that if one voting
ballot was discarded and replaced. There was no member acquits an accused cadet who is obviously
record of the change in vote from 8-1 to 9-0 that was guilty of the offense, the solution is to remove him or
mentioned in the HC formal report. her from the HC through the vote of non-confidence as
provided for in the Honor Code.195 Anent the above
The Affidavit of Commander Junjie B. Tabuada arguments, respondents contend that a distinction
executed on March 6, 2014 was submitted by must be made between the concepts of the Honor
petitioners since he purportedly recalled Cadet 1 CL Code and the Honor System. According to them, the
Lagura telling him that he was pressured to change his former sets the standard for a cadet's, minimum ethical

48
and moral behavior and does not change, while the talaga ang nangyari?" At first, I was hesitant to answer
latter is a set of rules for the conduct of the observance because of the confidentiality of the Honor Committee
and implementation of the· Honor Code and may proceedings. He again said: "Wag kang mag-alala,
undergo necessary adjustments as may be warranted atin, atin lang ito, alam ko naman na bawal magsabi."
by the incumbent members of the HC in order to be Then I answered: "Ako yung isang not guilty Sir. Kaya
more responsive to the moral training and character [yung] Presiding Officer nagsabi na pumunta muna
development of the cadets. The HC may provide kami sa Chamber. Nung nasa chamber kami, nagsalita
guidelines when the Honor System can be used to [yung] mga nagvote ng Guilty tapos isa-isa nagsabi
supplement regulations. This being so, the voting kung bakit ang boto nila Guilty. Nung pakinggan ko, eh
process is continuously subject to change. naliwanagan ako. Pinalitan ko yung boto ko from Not
Guilty to Guilty Sir." He replied: "Sayang si Cudia ano?"
Respondents note that, historically, a non-unanimous And I said: "Oo nga sir, [s]ayang si Cudia, mabait pa
guilty verdict automatically acquits a cadet from the naman at matalino."196
charge of Honor violation. The voting members only
write either "guilty" or "not guilty" in the voting sheets Cadet 1 CL Lagura restated the above in the Counter-
without stating their name or their justification. Affidavit executed on March 12, 2014, which he
However, this situation drew criticisms since there submitted before the CHR wherein he attested to the
were instances where a reported cadet already following:
admitted his honor violation but was acquitted due to
the lone vote of a sympathetic voting member. 3. I was chosen to be a voting member of the Honor
Committee for Honor Code violation committed by
In the case of Cadet 1 CL Cudia, the HC adopted an Cadet Cudia, for "lying". As a voting member, we are
existing practice that should the voting result in 7-2 or the one who assess or investigate the case whether
8-1 the HC would automatically sanction a jury type of the reported Cadet is Guilty for his actions or not.
discussion called "executive session" or "chambering,"
which is intended to elicit the explanation and insights 4. I was the only one who INITIALLY voted "NOT
of the voting member/s. This prevents the tyranny of GUILTY" among the nine (9) voting members of the
the minority or lone dissenter from prevailing over the Honor Committee in the case of Cdt Cudia for Lying.
manifest proof of guilt. The assailed voting practice has
been adopted and widely accepted by the PMA Siklab 5. I initially voted "NOT GUILTY" for the reason that
Diwa Class of 2014 since their first year in the after the proceedings and before the presiding Officer
Academy. The allegations of conspiracy and sham trial told the members to vote, I was confused of the case
are, therefore, negated by the fact that such practice of Cadet Cudia. I have gathered some facts from the
was in place and applied to all cases of honor investigation to make my decision but for me it is not
violations, not solely to the case of Cadet 1CL Cudia. yet enough to give my verdict of guilty to Cdt Cudia so
I decided to vote "NOT GUILTY" with a reservation in
It is emphasized by respondents that any decision to my mind that we will still be discussing our verdicts if
change vote rests solely on the personal conviction of we will arrive at 8-1 or 7-2. Thus, I can still change my
the dissenter/s, without any compulsion from the other vote if I may be enlightened with the other's
voting members. There can also be no pressuring to justifications.
change one's vote to speak of since a vote may only
be considered as final when the Presiding Officer has 6. After the votes were collected, the Presiding Officer
affixed his signature. told us that the vote is 8 for guilty and 1 for not guilty.
By way of practice and as I predicted, we were told to
To debunk Commander Tabuada's statements, go inside the anteroom for executive meeting and to
respondents raise the argument that the Fact-Finding discuss our respective justifications. I have been a
Board/Investigating Body summoned Cadet 1 CL member for two (2) years and the voting committee will
Lagura for inquiry. Aside from his oral testimony made always go for executive meeting whenever it will meet
under oath, he submitted to the Board/Body an affidavit 8-1 or 7-2 votes.
explaining that:
7. I listened to them and they listened to me, then I saw
11. Sometime on 23rd or 24th of January 2014, I went things that enlightened my confusions that time. I gave
to the Department of Naval Warfare to ask permission a thumbs-up sign and asked for another sheet of voting
if it is possible not to attend the Navy duty for the paper. I then changed my vote from "NOT GUILTY" to
reason that I will be attending our baseball game "GUILTY" and the voting members of the Honor
outside the Academy. Committee came up with the final vote of nine (9) votes
for guilty and zero (0) votes for not guilty.
12. After I was permitted not to attend my Navy Duty
and when I was about to exit out of the Office, CDR 9. Cdt Cudia was called inside the courtroom and told
JUNJIE B T ABU ADA PN, our Head Department Naval that the verdict was GUILTY of LYING. After that, all
Warfare Officer, called my attention. I approached him persons inside the courtroom went back to barracks.
and he said: "Talagang nadali si Cudia ah. Ano ba

49
10. Right after I changed to sleeping uniform, I was As to the manner of voting by the HC members, the
approached by Cdt Jocson and Cdt Cudia, inquiring Honor Code tersely provides:
and said: "Bakit ka naman nagpalit ng boto? ., I
answered: "Nasa process yan, may mali talaga sa After a thorough discussion and deliberation, the
rason mo." They also asked who were inside the presiding member of the Board will call for the
Chamber and I mentioned only Cdt Arlegui and Cdt members to vote whether the accused is GUILTY or
Mogol. That was the last time that Cdt Cudia and Cdt NOT GUILTY. A unanimous vote (9 votes) of GUILTY
Jocson talked to me. decides that a cadet is found guilty of violating the
Honor Code.198
11. Sometime on 23rd or 24th of January 2014, I went
to the Department of Naval Warfare to asked (sic) From the above-quoted provision, it readily appears
permission if it is possible not to attend the Navy duty that the HC practice of conducting "executive session"
for the reason that I will be attending our baseball game or "chambering" is not at all prohibited. The HC is given
outside the Academy. leeway on the voting procedures in' actual cases taking
into account the exigency of the times. What is
12. After I was permitted not to attend my Navy Duty important is that, in the end, there must be a
and when I was about to exit out of the Office, CDR unanimous nine votes in order to hold a cadet guilty of
JUNJIE B TABUADA PN, our Head Department Naval violating the Honor Code.
Warfare Officer, called my attention. I approached him
and he said: "Talagang nadali si Cudia ah. Ano ba Granting, for argument's sake, that the HC violated its
talaga ang nangyari?" At first, I was hesitant to answer written procedure,199 We still rule that there is nothing
because of the confidentiality of the Honor Committee inherently wrong with the practice of "chambering"
proceedings. He again said: "Wag kang mag-alala, considering that the presence of intimidation or force
atin, atin lang ito, alam ko naman na bawal magsabi. " cannot automatically be inferred therefrom. The
Then I answered: "Ako yung isang not guilty Sir. Kaya essence of secret balloting and the freedom to vote
[yung} Presiding Officer nagsabi na pumunta muna based on what is in the heart and mind of the voting
kami sa Chamher. Nung nasa chamber kami, nagsalita member is not necessarily diluted by the fact that a
[yung] mga nagvote ng Guilty tapos isa-isa nagsabi second/final voting was conducted. As explained by
kung bakit ang boto nila Guilty. Nung pakinggan ko, eh Cadet 1CL Mogol before the CRAB:
naliwanagan aka. Pinalitan ko yung boto ko from Not
Guilty to Guilty Sir. " He replied: "Sayang si Cudia 13. x x x [The] dissenting voter would have to explain
ano?" And I said: "Oo nga sir, [s]ayang si Cudia, mabait his side and insights regarding the case at hand. The
pa naman at matalino. "197 other members, on the other hand, would be given the
chance to explain their votes as well as their insights to
Still not to be outdone, petitioners argue that the very the dissenting voter. The decision to change the vote
fact that Cadet 1 CL Lagura, as the lone dissenter, was of the dissenting voter rests solely on his personal
made to explain in the presence of other HC members, conviction. Thus, if he [or she] opted not to change
who were in disagreement with him, gives a semblance his/her vote despite the discussion, his [or her] vote is
of intimidation, force, or pressure. For them, the accorded respect by the Honor Committee.200
records of the HC proceedings, which were not
presented assuming they actually exist, could have It is elementary that intimidation or force is never
been the best way to ensure that he was free to presumed. Mere allegation is definitely not
express his views, reject the opinion of the majority, evidence.1âwphi1 It must be substantiated and proved
and stick to his decision. Also, it was pointed out that because a person is presumed to be innocent of a
Cadet 1 CL Lagura failed to clearly explain in his crime or wrong and that official duty has been regularly
affidavit why he initially found Cadet 1 CL Cudia "not performed.201
guilty" and what made him change his mind. His use of
general statements like he "was confused of the case " The oral and written statements of Cadet 1 CL Lagura
and "saw things that enlightened my confusions " could should settle the issue. Before the Fact-Finding
hardly suffice to establish why he changed his vote. Board/Investigating Body and the CHR, he consistently
Finally, petitioners note the admission of ·Cadet 1 CL denied that he was pressured by the other voting
Lagura during the CHR investigation that he was the members of the HC. His representation must be
only one who was given another ballot sheet while in accepted as it is regardless of whether he has
the chamber and that he accomplished it in the satisfactorily elaborated his decision to change his
barracks which he only submitted the following day. vote. Being the one who was "chambered," he is more
However, as the CHR found, the announcement of the credible to clarify the issue. In case of doubt, We have
9-0 vote was done immediately after the HC came out to rely on the faith that Cadet 1 CL Lagura observed
from the chamber and before Cadet 1 CL Lagura the Honor Code, which clearly states that every cadet
submitted his accomplished ballot sheet. must be his or her own Final' Authority in honor; that he
or she should not let other cadets dictate on him or her
We rule for respondents. their sense of honor.202 Moreover, the Code implies
that any person can have confidence that a cadet and

50
any graduate of the PMA will be fair and just in dealing Webster's Dictionary, petitioners argue that "dismiss"
with him; that his actions, words and ways are sincere means to permit or cause to leave, while "class" refers
and true.203 to a body of students meeting regularly to study the
same subject. According to them, these two words do
As to the other alleged "irregularities" committed such not have definite and precise meanings but are generic
as not putting on record the initial/first voting and Cadet terms. Other than the words "class" and "dismiss" used
1CL Lagura's bringing of his ballot sheet to and by Cadet 1 CL Cudia, which may actually be used in
accomplishing it in the barracks, the Court shall no their generic sense, there is nothing deceiving about
longer dwell on the same for being harmless what he said. Thus, the answer he chose might be
procedural errors that do not materially affect the wrong or not correct, but it is not false or not true.
validity of the HC proceedings.
For petitioners, Cadet lCL Cudia's explanations are
Cadet 1 CL Cudia 's alleged untruthful statements evidently truthful and with no intent to deceive or
mislead. He did not manipulate any fact and was
Petitioners insist that Cadet 1 CL Cudia did not lie. truthful of his explanation. His .. statements were clear
According to them, there is no clear time reference as and unambiguous but were given a narrow-minded
to when was the actual dismissal or what was the exact interpretation. Even the Honor Code acknowledges
time of dismissal - whether it should be the dismissal that "[e]xperience demonstrates that human
inside the room or the dismissal after the section grade communication is imperfect at best, and some actions
was given by Dr. Costales -in the minds of Cadet 1 CL are often misinterpreted."
Cudia, Maj. Hindang, and the HC investigators and
voting members. They claim that during long Lastly, petitioners contend that Cadet 1 CL Cudia's
examinations, the time of dismissal was usually five transcript of records reflects not only his outstanding
minutes before the class was set to end and the academic performance but proves his good conduct
protocol of dismissing the class 15 minutes earlier was during his four-year stay in the Academy. He has
not observed. When Maj. Hindang stated in accusatory above-average grades in Conduct, with grades ranging
language that Cadet 1 CL Cudia perverted the truth by from 96 to 100 in Conduct I to XI. His propensity to lie
stating that OR432 class ended at 1500H, he did not is, therefore, far from the truth.
state what was the true time of dismissal. He did not
mention whether the truth he was relying on was 5 or On the other hand, respondents were equally adamant
15 minutes before the scheduled end of class. to contend that Cadet 1 CL Cudia was obviously
quibbling, which, in the military parlance, is tantamount
It is also averred that Cadet 1 CL Cudia's only business to lying. He fell short in telling a simple truth. He lied by
was to ask Dr. Costales a query such that his business making untruthful statements in his written explanation.
was already finished as soon as she gave an answer. Respondents want Us to consider the following:
However, a new business was initiated by Dr.
Costales, which is, Cadet 1 CL Cudia must stay and First, their OR432 class was not dismissed late. During
wait for the section grade. At that point in time, he was the formal investigation, Dr. Costales testified that a
no longer in control of the circumstances. Petitioners class is dismissed as long as the instructor is not there
claim that Dr. Costales never categorically stated that and the bell has rung. In cases of lesson examinations
Cadet lCL Cudia was lying. She recognized the (LE), cadets are dismissed from the time they have
confusion. Her text messages to him clarified his answered their respective LEs. Here, as Cadet Cudia
alleged violation. Also, the CHR noted during its stated in his Request for Reconsideration of Meted
investigation that she could not exactly recall what Punishment, "We had an LE that day (14 November
happened in her class on November 14, 2013. 2013) in OR432 class. When the first bell rang (1455),
I stood up, reviewed my paper and submitted it to my
Furthermore, petitioners reasoned out that when instructor, Ms. Costales. xxx" Clearly, at the time Cadet
respondents stated that ENG412 class started at 3:05 Cudia submitted his papers, he was already
p.m., it proves that Cadet 1 CL Cudia was obviously considered dismissed. Thus, he cannot claim that his
not late. If, as indicated in his Delinquency Report, he [OR432] class ended at 3:00 in the afternoon (1500H)
was late two (2) minutes in his 1500-1600H class in or "a bit late."
ENG 412, he must have arrived 3:02 p.m.
Respondents, however, claim that the class started at Second, Cadet Cudia was in control of the
3:05 p.m. Thus, Cadet 1 CL Cudia was not late. circumstances leading to his tardiness. After submitting
his paper, Cadet Cudia is free to leave and attend his
Relative to his explanation to the delinquency report, next class. However, he initiated a conversation with
petitioners were of the view that what appears to have Dr. Costales regarding their grades. He was not under
caused confusion in the minds of respondents is just a instruction by Dr. Costales to stay beyond the period of
matter of semantics; that the entire incident was a her class.
product of inaccuracy, not lying. It is malicious for them
to insinuate that Cadet 1 CL Cudia purposely used Furthermore, during the investigation of the Fact-
incorrect language to hide the truth. Citing Merriam Finding Board/Investigating Body, Dr. Costales

51
clarified her statements in her written explanation. She though the answer may result in punitive action under
explained that the "instruction to wait" is a response to the CCPB and CCAFPR.206
Cadet Cudia' s request and that it was not her initiated
instruction. Clearly, there was no directive from Dr. To refresh, in his Explanation of Report dated
Costales for Cadet Cudia and the other cadets to stay. December 8, 2013, Cadet 1 CL Cudia justified that: "I
On the contrary, it was them who wanted to meet with came directly from OR432 Class. We were dismissed
the instructor. Third, contrary to Cadet Cudia's a bit late by our instructor Sir." Subsequently, in his
explanation, his subsequent class, ENG412, did not Request for Reconsideration of Meted Punishment to
exactly start at 3:00 in the afternoon (1500H). In the Maj. Leander, he reasoned out as follows:
informal review conducted by the HTG to check the
findings of the HC, Professor Berong confirmed that I strongly believe that I am not in control of the
her English class started as scheduled (3:05 in the circumstances, our 4th period class ended 1500H and
afternoon, or 1505H) and not earlier. Cadet 1 CL our 5th period class, which is ENG412, started 1500H
Barrawed, the acting class marcher of ENG412 also also. Immediately after 4t period class, I went to my
testified that their class started as scheduled (3 :05 in next class without any intention of being late Sir.207
the afternoon, or 1505) and not earlier.204
In this case, the Court agrees with respondents that
Respondents were unimpressed with the excuse that Cadet 1 CL Cudia committed quibbling; hence, he lied
Cadet 1 CL Cudia had no intention to mislead or in violation of the Honor Code.
deceive but merely used wrong and unfitting words in
his explanations. For them, considering his academic Following an Honor Reference Handbook, the term
standing, it is highly improbable that he used incorrect "Quibbling" has been defined in one U.S. case as
language to justify his mistake. Respondents' follows:
arguments are tenable.
A person can easily create a false impression in the
The issue of whether Cadet 1 CL Cudia committed mind of his listener by cleverly wording what he says,
lying is an issue of fact. Unfortunately for petitioners, omitting relevant facts, or telling a partial truth. When
the Court, not being a trier of facts, cannot pass upon he knowingly does so with the intent to deceive or
factual matters as it is not duty-bound to analyze and mislead, he is quibbling. Because it is an intentional
weigh again the evidence considered in the deception, quibbling is a form of lying.208
proceedings below. Moreover, We reiterate the long
standing rule that factual findings of administrative The above definition can be applied in the instant case.
tribunals are ordinarily accorded respect if not finality Here, instead of directly and completely telling the
by the Court. In this case, as shown in the previous cause of his being late in the ENG412 class of Prof.
discussions, there is no evidence that the findings of Berong, Cadet 1 CL Cudia chose to omit relevant facts,
the investigating and reviewing bodies below are not thereby, telling a half-truth.
supported by evidence or vitiated by fraud, imposition
or collusion; that the procedure which led to the The two elements that must be presented for a cadet
findings is irregular; that palpable errors were to have committed an honor violation are:
committed; or that a grave abuse of discretion,
arbitrariness, or capriciousness is manifest. With 1. The act and/or omission, and
respect to the core issue of whether lying is present in
this case, all investigating and reviewing bodies are in 2. The intent pertinent to it.
consonance in holding that Cadet 1 CL Cudia in truth
and in fact lied. Intent does not only refer to the intent to violate the
Honor Code, but intent to commit or omit the act
For purposes of emphasis though, We shall itself.209
supplement some points.
The basic questions a cadet must always seek to
As succinctly worded, the Honor Code of the Cadet answer unequivocally are:
Corps Armed Forces of the Philippines (CCAFP)
states: "We, the Cadets, do not lie, cheat, steal, nor 1. Do I intend to deceive?
tolerate among us those who do. "
2. Do I intend to take undue advantage?
The First Tenet of the Honor-Code is "We do not lie. "
Cadets violate the Honor Code by lying if they make an If a cadet can answer NO to BOTH questions, he or
oral or written statement which is contrary to what is she is doing the honorable thing.210
true or use doubtful information with the intent to
deceive or mislead.205 It is expected that every cadet's Intent, being a state of mind, is rarely susceptible of
word is accepted without challenge on its truthfulness; direct proof, but must ordinarily be inferred from the
that it is true without qualification; and that the cadets facts, and therefore, can only be proved by unguarded
must answer directly, completely and truthfully even expressions, conduct and circumstances

52
generally.211 In this case, Cadet 1 CL Cudia's intent to his four-year stay in the PMA,215 it does not
deceive is manifested from the very act of capitalizing necessarily follow that he is innocent of the offense
on the use of the words "dismiss" and "class." The truth charged. It is enough to say that "evidence that one did
of the matter is that the ordinary usage of these two or did not do a certain thing at one time is not
terms, in the context of an educational institution, does admissible to prove that he did or did not do the same
not correspond to what Cadet 1 CL Cudia is trying to or similar thing at another time."216 While the TOR
make it appear. In that sense, the words are not may be received to prove his identity or habit as an
generic and have definite and precise meaning. exceptional PMA student, it does not show his specific
intent, plan, or scheme as cadet accused of committing
By no stretch of the imagination can Cadets 1 CL a specific Honor Code violation.
Cudia, Miranda, Arcangel, and Narciso already
constitute a "class." The Court cannot agree that such Dismissal from the PMA as unjust and cruel
term includes "every transaction and communication a punishment
teacher does with her students." Clearly, it does not
take too much intelligence to conclude that Cadet 1 CL Respondents insist that violation of the Honor Code
Cudia should have been accurate by pinpointing who warrants separation of the guilty cadet from the cadet
were with him when he was late in the next class. His corps. Under the Cadet Corps Armed Forces of the
deceptive explanation is made more obvious when Philippines Regulation (CCAFPR), a violation of the
compared with what Cadets 1 CL Archangel and Cadet Honor Code is considered Grave (Class 1)
Narciso wrote in their DR explanation, which was: "We delinquency which merits a recommendation for a
approached our instructor after our class."212 cadet's dismissal from the PMA Superintendent. The
same is likewise clear from the Honor Code and Honor
Further, it is unimportant whether the time of dismissal System Handbook. Cadet 1 CL Cudia is, therefore,
on November 14, 2013 was five or fifteen minutes presumed to know that the Honor Code does not
ahead of the scheduled end of class. Worth noting is accommodate a gradation or degree of offenses. There
that even Dr. Costales, who stood as a witness for is no difference between a little lie and a huge
Cadet 1 CL Cudia, consistently admitted before the falsehood. Respondents emphasize that the Honor
HC, the Fact-Finding Board/Investigating Body, and Code has always been considered as an absolute
the CHR that he was already dismissed when he yardstick against which cadets have measured
passed his LE paper.213 During the hearing of the themselves ever since the PMA began and that the
Board/Body, she also declared that she merely Honor Code and System seek to assure that only those
responded to his request to see the results of the UE 1 who are able to meet the high standards of integrity and
and that she had reservations on the phrases "under honor are produced by the PMA. As held in Andrews,
my instruction" and "dismissed a bit late" used in his it is constitutionally permissible for the military "to set
letter of explanation to the HC. In addition, Dr. Costales and enforce uncommonly high standards of conduct
manifested her view before the CHR that the act of and ethics. " Thus, in violating the Honor Code, Cadet
Cadet 1 CL Cudia of inquiring about his grade outside 1 CL Cudia forfeits his privilege to graduate from the
their classroom after he submitted his LE paper is not PMA.
part of the class time because the consultation, being
cadet-initiated, is voluntary.214 Assuming, for the sake On their part, petitioners concede that if it is proven that
of argument, that a new business was initiated by Dr. a cadet breached the Honor Code, the offense
Costales when Cadet 1 CL Cudia was asked to stay warrants his or her dismissal since such a policy may
and wait for the section grade, still, this does not acquit be the only means to maintain and uphold the spirit of
him. Given such situation, a responsible cadet who is integrity in the military.217 They maintain though that
fully aware of the time constraint has the last say, that in Cadet 1 CL Cudia's case there is no need to
is, to politely decline the invitation and immediately go distinguish between a "little lie" and a "huge falsehood"
to the next class. This was not done by Cadet 1 CL since he did not lie at all. Absent any intent to deceive
Cudia. Thus, it cannot be said that he already lost and to take undue advantage, the penalty imposed on
control over the circumstances. him is considered as unjust and cruel. Under the
circumstances obtaining in this case, the penalty of
It is apparent, therefore, that Cadet 1 CL Cudia dismissal is not commensurate to the fact that he is a
cunningly chose words which led to confusion in the graduating cadet with honors and what he allegedly
minds of respondents and eventually commenced the committed does not amount to an academic deficiency
HC inquiry. His case is not just a matter of semantics or an intentional and flagrant violation of the PMA non-
and a product of plain and simple inaccuracy. There is academic rules and regulations. Citing Non, petitioners
manipulation of facts and presentation of untruthful argue that the penalty imposed must be proportionate
explanation constitutive of Honor Code violation. to the offense. Further, lsabelo, Jr. is squarely
applicable to the facts of the case. Cadet 1 CL Cudia
Evidence of prior good conduct cannot clear Cadet 1 was deprived of his right to education, the only means
CL Cudia .. While his Transcript of Records (TOR) may by which he may have a secure life and future.
reflect not only his outstanding academic performance
but his excellent grade in subjects on Conduct during

53
Considering Our finding that Cadet 1 CL Cudia in truth v. Commission on Human Rights225 and a number of
and in fact lied and his acceptance that violation of the subsequent cases,226 the CHR is only a fact-finding
Honor Code warrants the ultimate penalty of dismissal body, not a court of justice or a quasi-judicial agency.
from the PMA, there is actually no more dispute to It is not empowered to adjudicate claims on the merits
resolve. Indeed, the sanction is clearly set forth and or settle actual case or controversies. The power to
Cadet 1 CL Cudia, by contract, risked this when he investigate is not the same as adjudication:
entered the Academy.218 We adopt the ruling in
Andrews219 wherein it was held that, while the penalty The most that may be conceded to the Commission in
is severe, it is nevertheless reasonable and not the way of adjudicative power is that it may investigate,
arbitrary, and, therefore, not in violation of due process. i.e., receive evidence and make findings of fact as
It quoted the disposition of the district court, thus: regards claimed human rights violations involving civil
and political rights. But fact-finding is not adjudication,
The fact that a cadet will be separated from the and cannot be likened to the judicial function of a court
Academy upon a finding that he has violated the Honor of justice, or even a quasi-judicial agency or official.
Code is known to all cadets even prior to the beginning The function of receiving evidence and ascertaining
of their careers there. The finding of a Code violation therefrom the facts of a controversy is not a judicial
by hypothesis includes a finding of scienter on the part function, properly speaking. To be considered such,
of the offender. While separation is admittedly a drastic the faculty of receiving evidence and making factual
and tragic consequence of a cadet's transgression, it is conclusions in a controversy must be accompanied by
not an unconstitutionally arbitrary one, but rather a the authority of applying the law to those factual
reasonable albeit severe method of preventing men conclusions to the end that the controversy may be
who have suffered ethical lapses from becoming decided or determined authoritatively, finally and
career officers. That a policy of admonitions or lesser definitively, subject to such appeals or modes of review
penalties for single violations might be more as may be provided by law. This function, to repeat, the
compassionate --or even more effective in achieving Commission does not have.
the intended result --is quite immaterial to the question
of whether the harsher penalty violates due xxxx
process.220
[i]t cannot try and decide cases (or hear and determine
Nature of the CHR Findings causes) as courts of justice, or even quasi-judicial
bodies do. To investigate is not to adjudicate or
Petitioners contend that the PMA turned a blind eye on adjudge. Whether in the popular or the technical sense,
the CHR's recommendations. The CHR, they note, is a these terms have well understood and quite distinct
constitutional body mandated by the 1987 Constitution meanings.
to investigate all forms of human rights violations
involving civil and political rights, and to conduct "Investigate, "commonly understood, means to
investigative monitoring of economic, social, and examine, explore, inquire or delve or probe into,
cultural rights, particularly of vulnerable sectors of research on, study. The dictionary definition of
society. Further, it was contended that the results of "investigate" is "to observe or study closely: inquire into
CHR's investigation and recommendations are so systematically: "to search or inquire into: x x x to
persuasive that this Court, on several occasions like in subject to an official probe x x x: to conduct an official
the cases of Cruz v. Sec. of Environment & Natural inquiry;" The purpose of investigation, of course, is to
Resources221 and Ang Ladlad LGBT Party v. discover, to find out, to learn, obtain information.
Commission on Elections,222 gave its findings serious Nowhere included or intimated is the notion of settling,
consideration. It is not, therefore, too late for the Court deciding or resolving a controversy involved in the facts
to hear what an independent and unbiased fact-finding inquired into by application of the law to the facts
body has to say on the case. established by the inquiry.

In opposition, respondents assert that Simon, Jr. v. The legal meaning of "investigate" is essentially the
Commission on Human Rights223 ruled that the CHR same: "(t)o follow up step by step by patient inquiry or
is merely a recommendatory body that is not observation. To trace or track; to search into; to
empowered to arrive at a conclusive determination of examine and inquire into with care and accuracy; to
any controversy. find out by careful inquisition; examination; the taking
of evidence; a legal inquiry;" "to inquire; to make an
We are in accord with respondents. investigation," "investigation" being in turn described
as "(a)n administrative function, the exercise of which
The findings of fact and the conclusions of law of the ordinarily does not require a hearing. 2 Am J2d Adm L
CHR are merely recommendatory and, therefore, not Sec. 257; xx x an inquiry, judicial or otherwise, for the
binding to this Court. The reason is that the CHR's discovery and collection of facts concerning a certain
constitutional mandate extends only to the matter or matters."
investigation of all forms of human rights violations
involving civil and political rights.224 As held in Cariño

54
"Adjudicate," commonly or popularly understood, This Petition for Review on Certiorari[1] seeks to set
means to adjudge, arbitrate, judge, decide, determine, aside the September 27, 2013 Decision[2] of the Court
resolve, rule on, settle. The dictionary defines the term of Appeals (CA) in CA-G.R. SP No. 128666 setting
as "to settle finally (the rights and duties of the parties aside the August 10, 2011 Decision[3] and October 30,
to a court case) on the merits of issues raised: xx to 2012 Decision[4] and January 22, 2013 Resolution[5]
pass judgment on: settle judicially: x x x act as judge." of the National Labor Relations Commission (NLRC) in
And "adjudge" means "to decide or rule upon as a NLRC LAC Case No. 04-001131-11 and reinstating the
judge or with judicial or quasi-judicial powers: xx to March 26, 2012 Decision[6] of the NLRC, as well as the
award or grant judicially in a case of controversy x x x." CA's January 29, 2014 Resolution[7] denying
petitioners' Motion for Reconsideration.[8]
In the legal sense, "adjudicate" means: "To settle in the
exercise of judicial authority.1âwphi1 To determine Factual Antecedents
finally. Synonymous with adjudge in its strictest sense;"
and "adjudge" means: "To pass on judicially, to decide, Respondent University of Santo Tomas (UST) is an
settle or decree, or to sentence or condemn. xx Implies educational institution operating under the authority of
a judicial determination of a fact, and the entry of a the Commission on Higher Education (CHED). The
judgment. "226 rest of the herein respondents are impleaded as
officers and administrators of the school.
All told, petitioners are not entitled to moral and
exemplary damages in accordance with Articles 19, Petitioners Raymond A. Son (Son), Raymond S.
2217, 2219 and 2229 of the Civil Code. The dismissal Antiola (Antiola), and Wilfredo E. Pollarco (Pollarco)
of Cadet 1 CL Cudia from the PMA did not effectively are full time professors of the UST Colleges of Fine
deprive him of a future. Cliche though it may sound, Arts and Design and Philosophy, and are members of
being a PMA graduate is not the "be-all and end-all" of the UST Faculty Union, with which UST at the time had
his existence. A cadet separated from the PMA may a Collective Bargaining Agreement (CBA).
still continue to pursue military or civilian career
elsewhere without suffering the stigma attached to his Son and Antiola were hired in June, 2005, while
or her dismissal. For one, as suggested by Pollarco was employed earlier, or in June, 2004. Under
respondents, DND-AFP Circular No. 13, dated July 15, their respective appointment papers, petitioners were
1991, on the enlistment and reenlistment in the APP designated as "faculty member[s] on
Regular Force, provides under Section 14 (b) thereof PROBATIONARY status," whose "accession to tenure
that priority shall be given to, among others, the ex- status is conditioned by [sic] your meeting all the
PMA or PAFFFS cadets.227 If the positions open does requirements provided under existing University rules
not appeal to his interest for being way below the rank and regulations and other applicable laws including,
he could have achieved as a PMA graduate, Cadet 1 among others, possession of the [prerequisite]
CL Cudia could still practice other equally noble graduate degree before the expiration of the
profession or calling that is best suited to his probationary period and by your satisfactory
credentials, competence, and potential. Definitely, performance of the duties and responsibilities set forth
nobody can deprive him of that choice. in the job description hereto attached."[9]

WHEREFORE, the Petition is DENIED. The dismissal The UST-UST Faculty Union CBA provided that –
of Cadet First Class Aldrin Jeff P. Cudia from the
Philippine Military Academy is hereby AFFIRMED. No ARTICLE XV
costs. TENURE

SO ORDERED. Section 1 .Tenured Faculty Member. - He is:

SON VS UST (2018) a. Teaching Faculty member, given a tenure track

appointment upon hiring who has rendered six (6)
RAYMOND A. SON, RAYMOND S. ANTIOLA, AND consecutive semesters of satisfactory service on a full-
WILFREDO E. POLLARCO, PETITIONERS, V. time basis, carrying fifteen-unit load (15) or more.
UNIVERSITY OF SANTO TOMAS, FR. ROLANDO Although a master's degree is an entry requirement, a
DELA ROSA, DR. CLARITA CARILLO, DR. CYNTHIA faculty member admitted to serve the University
LOZA, FR. EDGARDO ALAURIN, AND THE without a master's degree shall finish his master's
COLLEGE OF FINE ARTS AND DESIGN FACULTY degree in five (5) semesters. If he does not finish his
COUNCIL, RESPONDENTS. degree in five (5) semesters, he shall be separated
G.R. No. 211273 | 2018-04-18 from service at the end of the fifth semester; however,
if he is made to serve the University further, in spite of
DECISION the lack of a master's degree, he shall be deemed to
have attained tenure.[10]
DEL CASTILLO, J.:

55
The CBA provision relative to the requirement of a Design. The reason given for non-renewal of their
Master's degree in the faculty member's field of appointments is their failure to obtain the required
instruction is in line with the requirement laid down in Master's degree.
the 1992 Revised Manual of Regulations for Private
Schools issued by then Department of Education, Ruling of the Labor Arbiter
Culture, and Sports (DECS), and the CHED's
Memorandum Order No. 40-08 - or Manual of Petitioners filed a labor case against the respondents
Regulations for Private Higher Education of 2008 - for unfair labor practice, illegal dismissal, and recovery
stating that: of money claims. In their joint Position Paper and other
pleadings,[15] petitioners claimed that since they have
Section 35.Minimum Faculty Qualifications. - The already acquired tenure by default pursuant to the
minimum qualifications of a faculty in a higher tenure provision in the CBA, they could not be
education institution shall be as follows: dismissed for failure to complete their respective
Master's degrees; that the UST-UST Faculty Union
1. For undergraduate program CBA is the law between the parties, and its provisions
should be observed; that in spite of the CBA provision
a. Holder of a master's degree; to teach mainly in his on tenure, respondents illegally terminated their
major field and where applicable, a holder of employment; that they were illegally terminated for
appropriate professional license requiring at least a their refusal to send the prescribed appeal letter, which
bachelor's degree for the professional courses. is tantamount to an undue waiver and unlawful
However, in specific fields where there is dearth of surrender of their tenurial rights, and is against the law
holders of Master's degree, or a holder of a and public policy; that in terminating their employment,
professional license requiring at least a bachelor's respondents did not comply with the required "twin-
degree may be qualified to teach. Any deviation from notice rule"; that respondents are guilty of bad faith and
this requirement will be subject to regulation by the unfair labor practice on account of their violation of the
Commission. CBA; that respondents are guilty of bad faith when they
re-hired the other professors even when they did not
Petitioners did not possess the required Master's possess the required Master's degree, while they
degree, but were nonetheless hired by UST on the (petitioners) were discriminated against and terminated
condition that they fulfill the requirement within the from work just because they did not file the prescribed
prescribed period. Petitioners enrolled in the Master's appeal letter; and that they should be paid backwages
program, but were unable to finish the same. In spite and other money claims. Thus, petitioners prayed for
of their failure to obtain the required Master's degree, reinstatement with full backwages, allowances and
they continued to teach even beyond the period given other benefits; moral and exemplary damages; and
for completion thereof. attorney's fees and costs of suit.

On March 3, 2010, then CHED Chairman Emmanuel In their joint Position Paper and other pleadings[16]
Angeles issued a Memorandum[11] addressed to the respondents countered that there is no unfair labor
Presidents of public and private higher education practice committed, because the CBA provision
institutions, directing the strict implementation of the adverted to is not an economic provision; that the
minimum qualification for faculty members of implementation of Memorandum Order No. 40-08
undergraduate programs, particularly the Master's takes legal precedence over the parties' CBA; that the
degree and licensure requirements, as mandated by CBA provision granting tenure by default may no
Memorandum Order No. 40-08, "to ensure the highest longer be enforced on account of the requirement
qualification of their faculty." under Memorandum Order No. 40-08, an
administrative regulation that is equivalent to law and
Acting on the March 3, 2010 Memorandum, UST wrote has the effect of abrogating the tenure provision of the
the petitioners and other affected faculty members, CBA; that Memorandum Order No. 40-08 is a police
informing them of the university's decision to cease re- power measure for the protection and promotion of
appointment of those who failed to complete their quality education, and as such, the CBA should yield
Master's degrees, but allow a written appeal from the to the same and to the broader interests of the State;
concerned faculty members who are due for thesis that petitioners could not have acquired tenure since
defense/completion of their Master's degrees.[12] they did not possess the minimum qualification - a
Master's degree - prescribed under Memorandum
Petitioners did not make a written appeal, operating Order No. 40-08; that the CBA provision on tenure by
under the belief that they have been vested tenure default has become illegal as it is contrary to law, and
under the CBA for their continued employment despite for this reason, it may not be enforced; that said CBA
failure to obtain the required Master's degree.[13] provision, being contrary to law, cannot be the object
of estopppel, and produces no effect whatsoever and
On June 11, 2010, petitioners received need not be set aside nor declared ineffective by
termination/thank you letters[14] signed by respondent judicial action; that in not renewing petitioners'
Dr. Cynthia Loza, Dean of the College of Fine Arts and probationary appointments, respondents observed due

56
process and the provisions of the Labor Code, Decision of the Special Division and reinstated the
particularly Article 281, which provides that a Labor Arbiter's Decision. It held that the CBA
probationary employee may be terminated from work superseded the CHED Memorandum; that CHED
"when he fails to qualify as a regular employee in Memorandum Order No. 40-08 requiring a Master's
accordance with reasonable standards made known by degree of professors in the undergraduate programs is
the employer to the employee at the time of his merely directory, and did not provide that the lack of a
engagement"; that petitioners are not entitled to Master's degree was a ground to terminate the
monetary awards as they were dismissed for cause, professor's services; that CHED Memorandum Order
paid their correct salaries, and are not entitled to No. 40-08 was issued only in 2008, while the CBA was
damages and attorney's fees; and that the case against concluded in 2006 - thus, it may not be retroactively
the individual respondents should be dismissed as applied in the absence of a specific provision
well, as they were acting within their official capacities. authorizing retroactivity; and consequently, petitioners
Thus, they prayed for the dismissal of petitioners' acquired tenure.
complaint.
Respondents filed their Motion for
On March 17, 2011, Labor Arbiter Joel S. Lustria Reconsideration,[19] but in a January 22, 2013
rendered his Decision[17] in NLRC Case Nos. NCR- Resolution,[20] the NLRC denied the motion for lack of
07-09179-10, 07-09180-10, and 07-09181-10, finding merit.
for petitioners and declaring respondents guilty of
illegal dismissal and unfair labor practice, as well as Ruling of the Court of Appeals
malice and bad faith in illegally dismissing the former.
The Labor Arbiter upheld the CBA provision granting In a Petition for Certiorari[21] before the CA,
tenure by default to petitioners, and declared that respondents questioned the adverse NLRC
petitioners were not accorded due process prior to dispositions and prayed for dismissal of the labor case
dismissal. Thus, petitioners were awarded money or NLRC Case Nos. NCR-07-09179-10, 07-09180-10
claims, damages, and attorney's fees. and 07-09181-10.

Ruling of the National Labor Relations Commission On September 27, 2013, the CA rendered the assailed
Decision granting the Petition, decreeing thus:
Respondents appealed before the NLRC. On August
10, 2011, the NLRC issued its Decision dismissing the Private respondents[22] contend that they already
appeal for lack of merit and affirming the Labor Arbiter's attained tenureship by reason of their continuous
Decision. It held that the UST-UST Faculty Union CBA employment service on a probationary status to
took precedence over CHED Memorandum Order No. petitioner University, invoking the provision of the
40-08; that by said CBA provision, petitioners acquired 2006-2011 Faculty Collective Bargaining Agreement
tenure by default; that UST continued to hire faculty (CBA), particularly Article XV, Section 1 thereof, which
members without the required Master's degree in their was signed on July 18, 2008. According to them, when
field of instruction even after petitioners were the petitioner University and the UST Faculty Union of
dismissed from work; and that the only cause for which private respondents are members agreed to the
petitioners' dismissal was their refusal to submit a terms and conditions set forth in the UST Faculty CBA,
written appeal, which is not a valid ground for dismissal the former explicitly and unequivocally intended to vest
or non-renewal of their appointment. tenure to those professors without master's degrees
who served for at least six (6) semesters.
Respondents moved for reconsideration. The case
was re-opened as the handling Commissioners Private respondents' reliance on the collective
inhibited themselves from the case. bargaining agreement is not tenable. 'While every
individual has autonomy to enter into any contract, the
On March 26, 2012, the Special Division of the NLRC contractual stipulations, however, must not be contrary
issued a new Decision which set aside the earlier to law, morals, good customs, public order, or public
August 10, 2011 Decision and dismissed petitioners' policy. In a case involving the observance of a
labor case. It held that CHED Memorandum Order No. collective bargaining agreement, the Supreme Court,
40-08 took precedence over the parties' CBA; that the in Lakas ng Manggagawang Makabayan (LMM) vs.
CBA should conform to the said Memorandum, which Abiera, had the occasion to pronounce:
had the force and effect of law; and that since the CBA
provision on tenure by default did not conform to the 'It is a fundamental postulate that however broad the
CHED Memorandum, it is null and void. freedom of contracting parties may be, it does not go
so far as to countenance disrespect for or failure to
Petitioners moved to reconsider.[18] Meanwhile, the observe a legal prescription. The statute takes
case was re-assigned to the Second Division of the precedence; a stipulation in a collective bargaining
NLRC which, on October 30, 2012, promulgated a agreement must yield to it. That is to adhere to the rule
Decision granting petitioners' motion for of law.'
reconsideration. It set aside the March 26, 2012

57
The above principle was likewise reiterated in degree since their first appointment in 2004 or 2005 as
Escorpizo, et al. vs. University of Baguio, et al., from a prerequisite to tenure status. But they did not take
which We quote: advantage of such opportunities. Justice, fairness, and
due process demand that an employer should not be
"...Indeed, provisions of a CBA must be respected penalized for situations where it had little or no
since its terms and conditions constitute the law participation or control.
between the contracting parties. Those who are
entitled to its benefits can invoke its provisions. And in In addition, the petitioner University as an educational
the event that an obligation therein imposed is not institution enjoys academic freedom - a guarantee that
fulfilled, the aggrieved party has the right to go to court enjoys protection from the Constitution. Section 5(2),
for redress. xxx xxx xxx Article XIV of the 1987 Constitution guarantees all
institutions of higher learning academic freedom. This
...Nevertheless, the aforecited CBA provision must be institutional academic freedom includes the right of the
read in conjunction with statutory and administrative school or college to decide for itself, its aims and
regulations governing faculty qualifications. It is settled objectives, and how best to attain them free from
that an existing law enters into and forms part of a valid outside coercion or interference save possibly when
contract without the need for the parties expressly the overriding public welfare calls for some restraint.
making reference to it. Further, while contracting Indeed, the Constitution allows merely the State's
parties may establish such stipulations, clauses, terms regulation and supervision of educational institutions,
and conditions as they may see fit, such right to and not the deprivation of their rights.
contract is subject to limitation that the agreement must
not be contrary to law or public policy." The essential freedoms subsumed in the term
'academic freedom' encompasses the freedom to
It should be borne in mind that the operation of determine for itself on academic grounds: (1) Who may
educational institutions involves public interest. The teach, (2) What may be taught, (3) How it shall be
government has a right to ensure that only qualified taught, and (4) Who may be admitted to study.
persons, in possession of sufficient academic Undeniably, the school's prerogative to provide
knowledge and teaching skills, are allowed to teach in standards for its teachers and to determine whether or
such institutions. Government regulation in this field of not these standards have been met is in accordance
human activity is desirable for protecting, not only the with academic freedom that gives the educational
students, but the public as well from ill-prepared institution the right to choose who should teach. In
teachers, who are lacking in the required scientific or Peña v. National Labor Relations Commission, the
technical knowledge. They may be required to take an Supreme Court emphasized:
examination or to possess postgraduate degrees as
prerequisite to employment. 'It is the prerogative of the school to set high standards
of efficiency for its teachers since quality education is
In the instant case, there is no doubt that private a mandate of the Constitution. As long as the
respondents failed to meet the standards for regular standards fixed are reasonable and not arbitrary,
employment provided under Memorandum Order No. courts are not at liberty to set them aside.'
040-08 issued by CUED. The termination of their
contract was based on their failure to obtain [a] The authority to choose whom to hire is likewise
master's degree and cannot, therefore, be regarded as covered and protected by its management prerogative
illegal. In fact, the services of an employee hired on - the right of an employer to regulate all aspects of
probationary basis may be terminated when he fails to employment, such as hiring, the freedom to prescribe
qualify as a regular employee in accordance with work assignments, working methods, process to be
reasonable standards made known by the employer to followed, regulation regarding transfer of employees,
the employee at the time of his engagement. There is supervision of their work, lay-off and discipline, and
nothing that would hinder the employer from extending dismissal and recall of workers. This Court was more
a regular or permanent appointment to an employee emphatic in holding mat in protecting the rights of the
once the employer finds that the employee is qualified laborer, it cannot authorize the oppression or self-
for a regular employment even before the expiration of destruction of the employer.
the probationary period. Conversely, if the purpose
sought by the employer is neither attained nor All told, We are satisfied that private respondents'
attainable within the said period, the law does not termination from employment was valid and legal.
preclude the employer from terminating the
probationary employment on justifiable ground. Mere, WHEREFORE, the petition is GRANTED. The
no vested right to tenureship had yet accrued in private Decisions dated August 10, 2011 and October 30,
respondents' favor since they had not complied, during 2012 as well as the Resolution dated January 22, 2013
their probation, with the prerequisites necessary for the of the National Labor Relations Commission (NLRC) in
acquisition of permanent status. It must be stressed NLRC-LAC Case No. 04-001131-11 are REVERSED
that herein private respondents were given more than and SET ASIDE. Consequently, the Decision dated
ample opportunities to obtain their respective master's

58
March 26, 2012 that dismissed the complaints of herein Respondents' Arguments
private respondents is hereby REINSTATED.
In their joint Comment[26] to the Petition, respondents
SO ORDERED.[23] (Citations omitted) argue that a Master's degree in the undergraduate
program professor's field of instruction is a mandatory
Petitioners filed a Motion for Reconsideration, but the requirement that may not be the subject of agreement
CA denied the same via its January 29, 2014 between the school and the professor, citing Herrera-
Resolution. Hence, the instant Petition. Manaois v. St. Scholastica's College,[27] where the
Court held that full-time faculty status may be extended
In a February 3, 2016 Resolution,[24] the Court only to those who possess, among others, a master's
resolved to give due course to the Petition. degree in the field of instruction, and this is neither
subject to the prerogative of the school nor the
Issue agreement of the parties, and this requirement is
deemed impliedly written in the employment contracts
Petitioners claim simply that the CA erred in ruling that between private educational institutions and
they were not illegally dismissed. prospective faculty members; that the Herrera-
Manaois doctrine was reiterated in University of the
Petitioners' Arguments East v. Pepanio,[28] where it was held that government
had a right to ensure that only qualified individuals with
In their Petition and Reply[25] seeking reversal of the sufficient academic knowledge and teaching skills are
assailed CA dispositions and, in lieu thereof, the allowed to teach in educational institutions, whose
reinstatement of the August 10, 2011 and October 30, operation involves public interest; that the CBA
2012 NLRC Decisions and the January 22, 2013 NLRC provision on tenure by default has been superseded by
Resolution, petitioners insist that they were illegally CHED Memorandum Order No. 40-08, which for all
dismissed; that the CBA and its provision on tenure by intents and purposes is deemed law to which the CBA
default prevail over CHED Memorandum Order No. 40- must yield as it conflicts with the former; that the non-
08, as they constitute the law between the parties; that impairment clause of the Constitution must yield to the
since they acquired tenure by application of the CBA loftier purposes of government, as into every contract
provision, they may not be removed except for cause; is read the provisions of existing law; that the operation
that contrary to the provisions of said CHED of educational institutions involves public interest, and
Memorandum, respondents were never prohibited to this end, these institutions have the obligation to the
from maintaining faculty members without a master's public to ensure that only those individuals who
degree, as in fact they continued to hire such faculty possess the required academic knowledge, training,
even after they were separated from UST; that and qualifications may teach; that CHED Memorandum
respondents' continued hiring of non-Master's degree Order No. 40-08 is a police power measure which may
holders constitutes estoppel - respondents are impair the CBA provision on tenure by default for the
estopped from claiming that they (petitioners) are not protection of the public; that the strict implementation
qualified to teach in UST, and so should not have been of CHED Memorandum Order No. 40-08 is not subject
dismissed therefrom; that instead of treating their to compromise or leniency, contrary to what petitioners
respective cases with harshness, respondents should believe - in claiming that they should be allowed to
have instead allowed them to finish their Master's finish their master's degrees even while the
degrees, since the only requirement missing is their Memorandum is already in effect, which places UST in
thesis defense; that the true reason for their removal is a precarious position of active violation of law; that
their obstinate refusal to make the required appeal petitioners cannot claim tenure as they remained
letter in waiver of their acquired tenure, which probationary teachers even if their
manifestly indicates respondents' malice and bad faith appointments/contracts were repeatedly renewed - so
in dealing with petitioners - especially considering that long as they do not obtain their master's degrees, they
they (petitioners) were the only professors whose continue to remain probationary employees of the
appointments were not renewed out of the 70 faculty university; that petitioners were given ample
members without Master's degrees who were notified opportunity to finish their master's degrees, but they did
of the strict implementation of CHED Memorandum not do so; and that UST's decision not to renew
Order No. 40-08 and required to file a written appeal; petitioner's appointments is a valid exercise of
that respondents violated the twin-notice rule as academic freedom and management prerogative.
petitioners were not given notice and an opportunity to Thus, respondents pray for denial of the instant
be heard prior to their separation; that the right of Petition.
academic freedom does not give respondents the
unbridled right to undermine petitioners' right to Our Ruling
security of tenure; and finally, that the CHED itself did
not direct the removal of faculty members without The Court denies the Petition.
Master's degrees, but only the strict implementation of
the schools' faculty development programs. As early as in 1992, the requirement of a Master's
degree in the undergraduate program professor's field

59
of instruction has been in place, through DECS Order
92 (series of 1992, August 10, 1992) or the Revised From a strict legal viewpoint, the parties are both in
Manual of Regulations for Private Schools. Article IX, violation of the law: respondents, for maintaining
Section 44, paragraph 1 (a) thereof provides that professors without the mandated masteral degrees,
college faculty members must have a master's degree and for petitioners, agreeing to be employed despite
in their field of instruction as a minimum qualification knowledge of their lack of the necessary qualifications.
for teaching in a private educational institution and Petitioners cannot therefore insist to be employed by
acquiring regular status therein. UST since they still do not possess the required
master's degrees; the fact that UST continues to hire
DECS Order 92, Series of 1992 was promulgated by and maintain professors without the necessary
the DECS in the exercise of its mle-making power as master's degrees is not a ground for claiming illegal
provided for under Section 70 of Batas PambansaBlg. dismissal, or even reinstatement. As far as the law is
232, otherwise known as the Education Act of concerned, respondents are in violation of the CHED
1982.[29] As such, it has the force and effect of law.[30] regulations for continuing the practice of hiring
In University of the East v. Pepanio,[31] the unqualified teaching personnel; but the law cannot
requirement of a masteral degree for tertiary education come to the aid of petitioners on this sole ground. As
teachers was held to be not unreasonable but rather in between the parties herein, they are in pari delicto.
accord with the public interest.
Latin for 'in equal fault,' in pari delicto connotes that two
Thus, when the CBA was executed between the or more people are at fault or are guilty of a crime.
parties in 2006, they had no right to include therein the Neither courts of law nor equity will interpose to grant
provision relative to the acquisition of tenure by default, relief to the parties, when an illegal agreement has
because it is contrary to, and thus violative of, the 1992 been made, and both parties stand in pari delicto.
Revised Manual of Regulations for Private Schools that Under the pari delicto doctrine, the parties to a
was in effect at the time. As such, said CBA provision controversy are equally culpable or guilty, they shall
is null and void, and can have no effect as between the have no action against each other, and it shall leave
parties. "A void contract is equivalent to nothing; it the parties where it finds them. This doctrine finds
produces no civil effect; and it does not create, modify expression in the maxims "ex dolo malo nonoritur actio"
or extinguish a juridical relation."[32] Under the Civil and "in pari delicto potior est conditio defendentis."
Code,
xxxx
Art. 1409. The following contracts are inexistent and
void from the beginning: As a doctrine in civil law, the rule on pari delicto is
principally governed by Articles 1411 and 1412 of the
(1) Those whose cause, object or purpose is contrary Civil Code, which state that:
to law, morals, good customs, public order or public
policy; Article 1411. When the nullity proceeds from the
illegality of the cause or object of the contract, and the
x xxx act constitutes a criminal offense, both parties being in
pari delicto, they shall have no action against each
When CHED Memorandum Order No. 40-08 came out, other, and both shall be prosecuted.
it merely carried over the requirement of a masteral
degree for faculty members of undergraduate xxxx
programs contained in the 1992 Revised Manual of
Regulations for Private Schools. It cannot therefore be Article 1412. If the act in which the unlawful or
said that the requirement of a master's degree was forbidden cause consists does not constitute a criminal
retroactively applied in petitioners' case, because it offense, the following rules shall be observed:
was already the prevailing rule with the issuance of the
1992 Revised Manual of Regulations for Private xxxx
Schools.
1. When the fault is on the part of both contracting
Thus, going by the requirements of law, it is plain to parties, neither may recover what he has given by
see that petitioners are not qualified to teach in the virtue of the contract, or demand the performance of
undergraduate programs of UST. And while they were the other's undertaking;
given ample time and opportunity to satisfy the
requirements by obtaining their respective master's x x x x.[34] (Citations omitted)
degrees, they failed in the endeavor. Petitioners knew
this - that they cannot continue to teach for failure to The minimum requirement of a master's degree in the
secure their master's degrees - and needed no undergraduate teacher's field of instruction has been
reminding of this fact; "those who are seeking to be cemented in DECS Order 92, Series of 1992. Both
educators are presumed to know these mandated petitioners and respondents have been violating it. The
qualifications."[33] fact that government has not cracked down on

60
violators, or that it chose not to strictly implement the
provision, does not erase the violations committed by Besides, as the Court held in Escorpizo v. University of
erring educational institutions, including the parties Baguio, a school CBA must be read in conjunction with
herein; it simply means that government will not punish statutory and administrative regulations governing
these violations for the meantime. The parties cannot faculty qualifications. Such regulations form part of a
escape its concomitant effects, nonetheless. And if valid CBA without need for the parties to make express
respondents knew the overwhelming importance of the reference to it. While the contracting parties may
said provision and the public interest involved -as they establish such stipulations, clauses, terms and
now fiercely advocate to their favor - they should have conditions, as they may see fit, tine right to contract is
complied with the same as soon as it was promulgated. still subject to the limitation that the agreement must
not be contrary to law or public policy.
It cannot be said either that by agreeing to the tenure
by default provision in the CBA, respondents are The State through Batas Pambansa Bilang 232 (The
deemed to be in estoppel or have waived the Education Act of 1982) delegated the administration of
application of the requirement under CHED the education system and the supervision and
Memorandum Order No. 40-08. Such a waiver is regulation of educational institutions to the Ministry of
precisely contrary to law. Moreover, a waiver would Education, Culture and Sports (now Department of
prejudice the rights of the students and the public, who Education). Accordingly, in promulgating the Manual of
have a right to expect that UST is acting within the Regulations, DECS was exercising its power of
bounds of the law, and provides quality education by regulation over educational institutions, which includes
hiring only qualified teaching personnel. Under Article prescribing the minimum academic qualifications for
6 of the Civil Code, "[r]ights may be waived, unless the teaching personnel.
waiver is contrary to law, public order, public policy,
morals, or good customs, or prejudicial to a third In 1994 the legislature transferred the power to
person with a right recognized by law." On the other prescribe such qualifications to the Commission on
hand, there could be no acquiescence - amounting to Higher Education (CHED). CHED's charter authorized
estoppel - with respect to acts which constitute a it to set minimum standards for programs and
violation of law. "The doctrine of estoppel cannot institutions of higher learning. The Manual of
operate to give effect to an act which is otherwise null Regulations continued to apply to colleges and
and void or ultra vires."[35] "[N]o estoppel can be universities and suppletorily the Joint Order until 2010
predicated on an illegal act."[36] when CHED issued a Revised Manual of Regulations
which specifically applies only to institutions involved in
It cannot be said either that in requiring petitioners to tertiary education.
file a written appeal, respondents are guilty of bad faith
and malice for practically forcing the former to The requirement of a masteral degree for tertiary
renounce their tenure. There is no tenure to speak of education teachers is not unreasonable. The operation
in the first place. of educational institutions involves public interest. The
government has a right to ensure that only qualified
Just the same, as correctly argued by the respondents, persons, in possession of sufficient academic
the crucial issues in this case have been settled. In the knowledge and teaching skills, are allowed to teach in
case of University of the East v. Pepanio,[37] the Court such institutions. Government regulation in this field of
held that – human activity is desirable for protecting, not only the
students, but the public as well from ill-prepared
Three. Respondents argue that UE hired them in 1997 teachers, who are lacking in the required scientific or
and 2000, when what was in force was the 1994 CBA technical knowledge. They may be required to take an
between UE and the faculty union. Since that CBA did examination or to possess postgraduate degrees as
not yet require a master's degree for acquiring a prerequisite to employment.
regular status and since respondents had already
complied with the three requirements of the CBA, Respondents were each given only semester-to-
namely, (a) that they served lull-time; (b) that they semester appointments from the beginning of their
rendered three consecutive years of service; and (c) employment with UE precisely because they lacked the
that their services were satisfactory, they should be required master's degree. It was only when UE and the
regarded as having attained permanent or regular faculty union signed their 2001 CBA that the school
status. extended petitioners a conditional probationary status
subject to their obtaining a master's degree within their
But the policy requiring postgraduate degrees of probationary period. It is clear, therefore, that the
college teachers was provided in the Manual of parties intended to subject respondents' permanent
Regulations as early as 1992. Indeed, recognizing this, status appointments to the standards set by the law
the 1994 CBA provided even then that UE was to and the university.
extend only semester-to-semester appointments to
college faculty staffs, like respondents, who did not Here, UE gave respondents Bueno and Pepanio more
possess the minimum qualifications for their positions. than ample opportunities to acquire the postgraduate

61
degree required of them. But they did not take Section 93. Regular or Permanent Status. Those who
advantage of such opportunities. Justice, fairness, and have served the probationary period shall be made
due process demand that an employer should not be regular or permanent. Fulltime teachers who have
penalized for situations where it had little or no satisfactorily completed their probationary period shall
participation or control. (Citations omitted)[38] be considered regular or permanent.

In addition, the Court already held in Herrera-Manaois Considering mat petitioner ultimately sought for the
v. St. Scholastica 's College[39] that – position of a permanent full-time instructor, we must
further look into the following provisions under the 1992
Notwithstanding the existence of the SSC Faculty Manual, which set out the minimum requirements for
Manual, Manaois still cannot legally acquire a such status:
permanent status of employment. Private educational
institutions must still supplementarily refer to the Section 44. Minimum Faculty Qualifications. The
prevailing standards, qualifications, and conditions set minimum qualifications for faculty for the different
by the appropriate government agencies (presently the grades and levels of instruction duly supported by
Department of Education, the Commission on Higher appropriate credentials on file in the school shall be as
Education, and the Technical Education and Skills follows:
Development Authority). This limitation on the right of
private schools, colleges, and universities to select and xxxx
determine the employment status of their academic
personnel has been imposed by the state in view of the c. Tertiary
public interest nature of educational institutions, so as
to ensure the quality and competency of our schools (1) For undergraduate courses, other than vocational:
and educators.
(a) Holder of a master's degree, to teach largely in his
The applicable guidebook at the time petitioner was major field; or, for professional courses, holder of the
engaged as a probationary full-time instructor for the appropriate professional license required for at least a
school year 2000 to 2003 is the 1992 Manual of bachelor's degree. Any deviation from this requirement
Regulations for Private Schools (1992 Manual). It will be subject to regulation by the Department.
provides the following conditions of a probationary
employment: Section 45. Full-time and Part-time Faculty. As a
general rule, all private schools shall employ full-time
Section 89. Conditions of Employment. Every private academic personnel consistent with the levels of
school shall promote the improvement of the instruction.
economic, social and professional status of all its
personnel. Full-time academic personnel are those meeting all the
following requirements:
In recognition of their special employment status and
their special role in the advancement of knowledge, the a. Who possess at least the minimum academic
employment of teaching and non-teaching academic qualifications prescribed by the Department under this
personnel shall be governed by such rules as may from Manual for all academic personnel;
time to time be promulgated, in coordination with one
another, by the Department of Education, Culture and xxxx
Sports and the Department of Labor and Employment.
All teaching personnel who do not meet the foregoing
Conditions of employment of non-academic non- qualifications are considered part-time.
teaching school personnel, including compensation,
hours of work, security of tenure and labor relations, xxxx
shall be governed by the appropriate labor laws and
regulations. Thus, pursuant to the 1992 Manual, private educational
institutions in the tertiary level may extend 'full-time
Section 92. Probationary Period. Subject in all faculty' status only to those who possess, inter alia, a
instances to compliance with Department and school master's degree in the field of study that will be taught.
requirements, the probationary period for academic This minimum requirement is neither subject to the
personnel shall not be more than three (3) consecutive prerogative of the school nor to the agreement
years of satisfactory service for those in the elementary between the parties. For all intents and purposes, this
and secondary levels, six (6) consecutive regular qualification must be deemed impliedly written in the
semesters of satisfactory service for those in the employment contracts between private educational
tertiary level, and nine (9) consecutive trimesters of institutions and prospective faculty members. The
satisfactory service for those in the tertiary level where issue of whether probationers were informed of this
collegiate courses are offered on the trimester basis. academic requirement before they were engaged as
probationary employees is thus no longer material, as

62
those who are seeking to be educators are presumed
to know these mandated qualifications. Thus, all those
who fail to meet the criteria under the 1992 Manual
cannot legally attain the status of permanent full-time
faculty members, even if they have completed three
years of satisfactory service.

In the light of the failure of Manaois to satisfy the

academic requirements for the position, she may only
be considered as a part-time instructor pursuant to
Section 45 of the 1992 Manual. In turn, as we have
enunciated in a line of cases, a part-time member of
the academic personnel cannot acquire permanence of
employment and security of tenure under the Manual
of Regulations in relation to the Labor Code. (Citations
omitted)

WHEREFORE, the Petition is DENIED. The

September 27, 2013 Decision and January 29, 2014
Resolution of the Court of Appeals (CA) in CA-G.R. SP
No. 128666 are AFFIRMED in toto.

SO ORDERED. THE PHILIPPINE CONSTITUTION

MACARIOLA VS ASUNCION (1982)

BERNARDITA R. MACARIOLA, complainant, vs.

HONORABLE ELIAS B. ASUNCION, Judge of the
Court of First Instance of Leyte, respondent.
A.C. No. 133-J | 1982-05-31

EN BANC
DECISION

MAKASIAR, J.:

In a verified complaint dated August 6, 1968 Bernardita

R. Macariola charged respondent Judge Elias B.
Asuncion of the Court of First Instance of Leyte, now
Associate Justice of the Court of Appeals, with "acts
unbecoming a judge."

The factual setting of the case is stated in the report

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

"Civil Case No. 3010 of the Court of First Instance of

Leyte was a complaint for partition filed by Sinforosa R.
Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto
Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs,
against Bernardita R. Macariola, defendant,
concerning the properties left by the deceased
Francisco Reyes, the common father of the plaintiff and
defendant.

"In her defenses to the complaint for partition, Mrs.

Macariola alleged among other things that: a) plaintiff
Sinforosa R. Bales was not a daughter of the deceased

63
Francisco Reyes; b) the only legal heirs of the Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes
deceased were defendant Macariola, she being the and defendant Bernardita R. Macariola, in such a way
only offspring of the first marriage of Francisco Reyes that the extent of the total share of plaintiff Sinforosa R.
with Felisa Espiras, and the remaining plaintiffs who Bales in the hereditary estate shall not exceed the
were the children of the deceased by his second equivalent of two-fifth (2/5) of the total share of any or
marriage with Irene Ondes; c) the properties left by the each of the other plaintiffs and the defendant (Art. 983,
deceased were all the conjugal properties of the latter New Civil Code), each of the latter to receive equal
and his first wife, Felisa Espiras, and no properties shares from the hereditary estate, (Ramirez vs.
were acquired by the deceased during his second Bautista, 14 Phil. 528; Diancin vs. Bishop of Jaro, O.G.
marriage; d) if there was any partition to be made, [3rd Ed.] p. 33); (9) Directing the parties, within thirty
those conjugal properties should first be partitioned days after this judgment shall have become final to
into two parts, and one part is to be adjudicated solely submit to this court, for approval, a project of partition
to defendant it being the share of the latter's deceased of the hereditary estate in the proportion above
mother, Felisa Espiras, and the other half which is the indicated, and in such manner as the parties may, by
share of the deceased Francisco Reyes was to be agreement, deemed convenient and equitable to them
divided equally among his children by his two taking into consideration the location, kind, quality,
marriages. nature and value of the properties involved; (10)
Directing the plaintiff Sinforosa R. Bales and defendant
"On June 8, 1963, a decision was rendered by Bernardita R. Macariola to pay the costs of this suit, in
respondent Judge Asuncion in Civil Case 3010, the the proportion of one-third (1/3) by the first named and
dispositive portion of which reads: two-thirds (2/3) by the second named; and (11)
Dismissing all other claims of the parties [pp. 27-29 of
"'IN VIEW OF THE FOREGOING CONSIDERATIONS, Exh. C].
the Court, upon a preponderance of evidence, finds
and so holds, and hereby renders judgment (1) "The decision in civil case 3010 became final for lack
Declaring the plaintiffs Luz R. Bakunawa, Anacorita of an appeal, and on October 16, 1963, a project of
Reyes, Ruperto Reyes, Adela Reyes and Priscilla partition was submitted to Judge Asuncion which is
Reyes as the only children legitimated by the marked Exh. A. Notwithstanding the fact that the
subsequent marriage of Francisco Reyes Diaz to Irene project of partition was not signed by the parties
Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to themselves but only by the respective counsel of
have been an illegitimate child of Francisco Reyes plaintiffs and defendant, Judge Asuncion approved it in
Diaz; (3) Declaring Lots Nos. 4474, 4475, 4892, 5265, his Order dated October 23, 1963, which for
4803, 4581, 4506 and 1/4 of Lot 1145 as belonging to convenience is quoted hereunder in full:
the conjugal partnership of the spouses Francisco
Reyes Diaz and Felisa Espiras; (4) Declaring Lot No. 'The parties, through their respective counsels,
2304 and 1/4 of Lot No. 3416 as belonging to the presented to this Court for approval the following
spouses Francisco Reyes Diaz and Irene Ondez in project of partition:
common partnership; (5) Declaring that 1/2 of Lot No.
1184 as belonging exclusively to the deceased 'COMES NOW, the plaintiffs and the defendant in the
Francisco Reyes Diaz; (6) Declaring the defendant above-entitled case, to this Honorable Court
Bernardita R. Macariola, being the only legal and respectfully submit the following Project of Partition:
forced heir of her mother Felisa Espiras, as the
exclusive owner of one-half of each of Lots Nos. 4474, '1. The whole of Lots Nos. 1154, 2304 and 4506 shall
4475, 4892, 5265, 4803, 4581, 4506; and the belong exclusively to Bernardita Reyes Macariola;
remaining one-half (1/2) of each of said Lots Nos.
4474, 4475, 4892, 5265, 4803, 4581, 4506 and one- '2. A portion of Lot No. 3416 consisting of 2,373.49
half (1/2) of one-fourth (1/4) of Lot No. 1154 as square meters along the eastern part of the lot shall be
belonging to the estate of Francisco Reyes Diaz; (7) awarded likewise to Bernardita R. Macariola;
Declaring Irene Ondez to be the exclusive owner of
one-half (1/2) of Lot No. 2304 and one-half (1/2) of one- '3. Lots Nos. 4803, 4892 and 5265 shall be awarded to
fourth (1/4) of Lot No. 3416; the remaining one-half Sinforosa Reyes Bales;
(1/2) of Lot 2304 and the remaining one-half (1/2) of
one fourth (1/4) of Lot No. 3416 as belonging to the '4. A portion of Lot No. 3416 consisting of 1,834.55
estate of Francisco Reyes Diaz; (8) Directing the square meters along the western part of the lot shall
division or partition of the estate of Francisco Reyes likewise be awarded to Sinforosa Reyes-Bales;
Diaz in such a manner as to give or grant to Irene
Ondez, as surviving widow of Francisco Reyes Diaz, a '5. Lots Nos. 4474 and 4475 shall be divided equally
hereditary share of one-twelfth (1/12) of the whole among Luz Reyes Bakunawa, Anacorita Reyes,
estate of Francisco Reyes Diaz (Art. 996 in relation to Ruperto Reyes, Adela Reyes and Priscilla Reyes in
Art. 892, par 2, New Civil Code), and the remaining equal shares;
portion of the estate to be divided among the plaintiffs
Sinforosa R. Bales, Luz R. Bakunawa, Anacorita

64
'6. Lot No. 1184 and the remaining portion of Lot No. an area of 15,162.5 sq. meters. This lot, which
3416 after taking the portions awarded under item (2) according to the decision was the exclusive property of
and (4) above shall be awarded to Luz Reyes the deceased Francisco Reyes, was adjudicated in
Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela said project of partition to the plaintiffs Luz, Anacorita,
Reyes and Priscilla Reyes in equal shares, provided, Ruperto, Adela, and Priscilla all surnamed Reyes in
however that the remaining portion of Lot No. 3416 equal shares, and when the project of partition was
shall belong exclusively to Priscilla Reyes. approved by the trial court the adjudicatees caused Lot
1184 to be subdivided into five lots denominated as Lot
'WHEREFORE, it is respectfully prayed that the Project 1184-A to 1184-E inclusive (Exh. V).
of Partition indicated above which is made in
accordance with the decision of the Honorable Court "Lot 1184-D was conveyed to Enriqueta D. Anota, a
be approved. stenographer in Judge Asuncion's court (Exhs. F, F-1
and V-1), while Lot 1184-E which had an area of
'Tacloban City, October 16, 1963. 2,172.5556 sq. meters was sold on July 31, 1964 to Dr.
Arcadio Galapon (Exh. 2) who was issued transfer
(SGD) BONIFACIO RAMO certificate of title No. 2338 of the Register of Deeds of
Atty. for theDefendant the city of Tacloban (Exh. 12).
Tacloban City
"On March 6, 1965, Dr. Arcadio Galapon and his wife
'(SGD) ZOTICO A. TOLETE sold a portion of Lot 1184-E with an area of around
Atty. for the Plaintiff 1,306 sq. meters to Judge Asuncion and his wife,
Tacloban City Victoria S. Asuncion (Exh. 11), which particular portion
was declared by the latter for taxation purposes (Exh.
'While the Court thought it more desirable for all the F).
parties to have signed this Project of Partition,
nevertheless, upon assurance of both counsels of the "On August 31, 1966, spouses Asuncion and spouses
respective parties to this Court that the Project of Galapon conveyed their respective shares and interest
Partition, as above-quoted, had been made after a in Lot 1184-E to 'The Traders Manufacturing and
conference and agreement of the plaintiffs and the Fishing Industries Inc.' (Exh. 15 & 16). At the time of
defendant approving the above Project of Partition, and said sale the stockholders of the corporation were
that both lawyers had represented to the Court that Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime
they are given full authority to sign by themselves the Arigpa Tan, Judge Asuncion, and the latter's wife,
Project of Partition, the Court, therefore, finding the Victoria S. Asuncion, with Judge Asuncion as the
above-quoted project of Partition to be in accordance President and Mrs. Asuncion as the secretary (Exhs.
with law, hereby approves the same. The parties, E-4 to E-7). The Articles of Incorporation of 'The
therefore, are directed to execute such papers, Traders Manufacturing and Fishing Industries, Inc.'
documents or instrument sufficient in form and which we shall henceforth refer to as 'TRADERS' were
substance for the vesting of the rights, interests and registered with the Securities and Exchange
participations which were adjudicated to the respective Commission only on January 9, 1967 (Exh. E)" [pp.
parties, as outlined in the Project of Partition and the 378-385, rec.].
delivery of the respective properties adjudicated to
each one in view of said Project of Partition, and to Complainant Bernardita R. Macariola filed on August 9,
perform such other acts as are legal and necessary to 1968 the instant complaint dated August 6, 1968
effectuate the said Project of Partition. alleging four causes of action, to wit: [1] that
respondent Judge Asuncion violated Article 1491,
'SO ORDERED. paragraph 5, of the New Civil Code in acquiring by
purchase a portion of Lot No. 1184-E which was one of
'Given in Tacloban City, this 23rd day of October, 1963. those properties involved in Civil Case No. 3010
decided by him; [2] that he likewise violated Article 14,
'(SGD) ELIAS B. ASUNCION paragraphs 1 and 5 of the Code of Commerce, Section
Judge' 3, paragraph H, of R.A. 3019, otherwise known as the
"EXH. B. Anti-Graft and Corrupt Practices Act, Section 12, Rule
XVIII of the Civil Service Rules, and Canon 25 of the
"The above Order of October 23, 1963, was amended Canons of Judicial Ethics, by associating himself with
on November 11, 1963, only for the purpose of giving the Traders Manufacturing and Fishing Industries, Inc.,
authority to the Register of Deeds of the Province of as a stockholder and a ranking officer while he was a
Leyte to issue the corresponding transfer certificates of judge of the Court of First Instance of Leyte; [3] that
title to the respective adjudicatees in conformity with respondent was guilty of coddling an impostor and
the project of partition (see Exh. U). acted in disregard of judicial decorum by closely
fraternizing with a certain Dominador Arigpa Tan who
"One of the properties mentioned in the project of openly and publicly advertised himself as a practising
partition was Lot 1184 or rather one-half thereof with attorney when in truth and in fact his name does not

65
appear in the Rolls of Attorneys and is not a member Case No. 4234, rendered a decision, the dispositive
of the Philippine Bar; and [4] that there was a culpable portion of which reads as follows:
defiance of the law and utter disregard for ethics by
respondent Judge (pp. 1-7, rec.). "A. IN THE CASE AGAINST JUDGE ELIAS B.
ASUNCION -
Respondent Judge Asuncion filed on September 24,
1968 his answer to which a reply was filed on October "(1) declaring that only Branch IV of the Court of First
16, 1968 by herein complainant. In Our resolution of Instance of Leyte has jurisdiction to take cognizance of
October 28, 1968, We referred this case to then Justice the issue of the legality and validity of the Project of
Cecilia Muñoz Palma of the Court of Appeals, for Partition [Exhibit "B"] and the two Orders [Exhibits 'C'
investigation, report and recommendation. After and 'C-3'] approving the partition;
hearing, the said Investigating Justice submitted her
report dated May 27, 1971 recommending that "(2) dismissing the complaint against Judge Elias B.
respondent Judge should be reprimanded or warned in Asuncion;
connection with the first cause of action alleged in the
complaint, and for the second cause of action, "(3) adjudging the plaintiff, Mrs. Bernardita R.
respondent should be warned in case of a finding that Macariola to pay defendant Judge Elias B. Asuncion,
he is prohibited under the law to engage in business.
On the third and fourth causes of action, Justice Palma "(a) the sum of FOUR HUNDRED THOUSAND
recommended that respondent Judge be exonerated. PESOS [P400,000.00] for moral damages;
"(b) the sum of TWO HUNDRED THOUSAND PESOS
The records also reveal that on or about November 9 [P200,000.00] for exemplary damages;
or 11, 1968 (pp. 481, 477, rec.), complainant herein "(c) the sum of FIFTY THOUSAND PESOS
instituted an action before the Court of First Instance of [P50,000.00] for nominal damages; and
Leyte, entitled "Bernardita R. Macariola, plaintiff, "(d) the sum of TEN THOUSAND PESOS [P10,000.00]
versus Sinforosa R. Bales, et al., defendants," which for Attorney's Fees.
was docketed as Civil Case No. 4235, seeking the
annulment of the project of partition made pursuant to "B. IN THE CASE AGAINST THE DEFENDANT
the decision in Civil Case No. 3010 and the two orders MARIQUITA VILLASIN, FOR HERSELF AND FOR
issued by respondent Judge approving the same, as THE HEIRS OF THE DECEASED GERARDO
well as the partition of the estate and the subsequent VILLASIN -
conveyances with damages. It appears, however, that
some defendants were dropped from the civil case. For "(1) Dismissing the complaint against the defendants
one, the case against Dr. Arcadio Galapon was Mariquita Villasin and the heirs of the deceased
dismissed because he was no longer a real party in Gerardo Villasin;
interest when Civil Case No. 4234 was filed, having "(2) Directing the plaintiff to pay the defendants
already conveyed on March 6, 1965 a portion of lot Mariquita Villasin and the heirs of Gerardo Villasin the
1184-E to respondent Judge and on August 31, 1966 cost of the suit.
the remainder was sold to the Traders Manufacturing
and Fishing Industries, Inc. Similarly, the case against "C. IN THE CASE AGAINST THE DEFENDANT
defendant Victoria Asuncion was dismissed on the SINFOROSA R. BALES, ET AL., WHO WERE
ground that she was no longer a real party in interest PLAINTIFFS IN CIVIL CASE NO. 3010 -
at the time the aforesaid Civil Case No. 4234 was filed
as the portion of Lot 1184 acquired by her and "(1) Dismissing the complaint against defendants
respondent Judge from Dr. Arcadio Galapon was Sinforosa R. Bales, Adela R. Herrer, Priscilla R. Solis,
already sold on August 31, 1966 to the Traders Luz R. Bakunawa, Anacorita R. Eng and Ruperto O.
Manufacturing and Fishing Industries, Inc. Likewise, Reyes.
the cases against defendants Serafin P. Ramento,
Catalina Cabus, Ben Barraza Go, Jesus Perez, "D. IN THE CASE AGAINST DEFENDANT
Traders Manufacturing and Fishing Industries, Inc., BONIFACIO RAMO -
Alfredo R. Celestial and Pilar P. Celestial, Leopoldo "(1) Dismissing the complaint against Bonifacio Ramo;
Petilla and Remedios Petilla, Salvador Anota and "(2) Directing the plaintiff to pay the defendant
Enriqueta Anota and Atty. Zotico A. Tolete were Bonifacio Ramo the cost of the suit.
dismissed with the conformity of complainant herein,
plaintiff therein, and her counsel. "SO ORDERED" [pp. 531-533, rec.].

On November 2, 1970, Judge Jose D. Nepomuceno of It is further disclosed by the record that the aforesaid
the Court of First Instance of Leyte, who was directed decision was elevated to the Court of Appeals upon
and authorized on June 2, 1969 by the then Secretary perfection of the appeal on February 22, 1971.
(now Minister) of Justice and now Minister of National
Defense Juan Ponce Enrile to hear and decide Civil I

66
WE find that there is no merit in the contention of Reyes, Luz Bakunawa, Ruperto Reyes and Anacorita
complainant Bernardita R. Macariola, under her first Reyes in the project of partition, and the same was
cause of action, that respondent Judge Elias B. subdivided into five lots denominated as Lot 1184-A to
Asuncion violated Article 1491, paragraph 5, of the 1184-E. As aforestated, Lot 1184-E was sold on July
New Civil Code in acquiring by purchase a portion of 31, 1964 to Dr. Galapon for which he was issued TCT
Lot No. 1184-E which was one of those properties No. 2338 by the Register of Deeds of Tacloban City,
involved in Civil Case No. 3010. and on March 6, 1965 he sold a portion of said lot to
respondent Judge and his wife who declared the same
That Article provides: for taxation purposes only. The subsequent sale on
August 31, 1966 by spouses Asuncion and spouses
"Article 1491. The following persons cannot acquire by Galapon of their respective shares and interest in said
purchase, even at a public or judicial action, either in Lot 1184-E to the Traders Manufacturing and Fishing
person or through the mediation of another: Industries, Inc., in which respondent was the president
and his wife was the secretary, took place long after
xxx xxx xxx the finality of the decision in Civil Case No. 3010 and
of the subsequent two aforesaid orders therein
"(5) Justices, judges, prosecuting attorneys, clerks of approving the project of partition.
superior and inferior courts, and other officers and
employees connected with the administration of While it appears that complainant herein filed on or
justice, the property and rights in litigation or levied about November 9 or 11, 1968 an action before the
upon an execution before the court within whose Court of First Instance of Leyte docketed as Civil Case
jurisdiction or territory they exercise their respective No. 4234, seeking to annul the project of partition and
functions; this prohibition includes the act of acquiring the two orders approving the same, as well as the
by assignment and shall apply to lawyers, with respect partition of the estate and the subsequent
to the property and rights which may be the object of conveyances, the same, however, is of no moment.
any litigation in which they may take part by virtue of
their profession". The fact remains that respondent Judge purchased on
March 6, 1965 a portion of Lot 1184-E from Dr. Arcadio
The prohibition in the aforesaid Article applies only to Galapon; hence, after the finality of the decision which
the sale or assignment of the property which is the he rendered on June 8, 1963 in Civil Case No. 3010
subject of litigation to the persons disqualified therein. and his two questioned orders dated October 23, 1963
WE have already ruled that ". . . for the prohibition to and November 11, 1963. Therefore, the property was
operate, the sale or assignment of the property must no longer subject of litigation.
take place during the pendency of the litigation
involving the property" (The Director of Lands vs. The subsequent filing on November 9, or 11, 1968 of
Ababa, et al., 88 SCRA 513, 519 [1979]; Rosario vda. Civil Case No. 4234 can no longer alter, change or
de Laig vs. Court of Appeals, 86 SCRA 641, 646 affect the aforesaid facts - that the questioned sale to
[1978]). respondent Judge, now Court of Appeals Justice, was
effected and consummated long after the finality of the
In the case at bar, when the respondent Judge aforesaid decision or orders.
purchased on March 6, 1965 a portion of Lot 1184-E,
the decision in Civil Case No. 3010 which he rendered Consequently, the sale of a portion of Lot 1184-E to
on June 8, 1963 was already final because none of the respondent Judge having taken place over one year
parties therein filed an appeal within the reglementary after the finality of the decision in Civil Case No. 3010
period; hence, the lot in question was no longer subject as well as the two orders approving the project of
of the litigation. Moreover, at the time of the sale on partition, and not during the pendency of the litigation,
March 6, 1965, respondent's order dated October 23, there was no violation of paragraph 5, Article 1491 of
1963 and the amended order dated November 11, the New Civil Code.
1963 approving the October 16, 1963 project of
partition made pursuant to the June 8, 1963 decision, It is also argued by complainant herein that the sale on
had long become final for there was no appeal from July 31, 1964 of Lot 1184-E to Dr. Arcadio Galapon by
said orders. Priscilla Reyes, Adela Reyes and Luz R. Bakunawa
was only a mere scheme to conceal the illegal and
Furthermore, respondent Judge did not buy the lot in unethical transfer of said lot to respondent Judge as a
question on March 6, 1965 directly from the plaintiffs in consideration for the approval of the project of partition.
Civil Case No. 3010 but from Dr. Arcadio Galapon who In this connection, We agree with the findings of the
earlier purchased on July 31, 1964 Lot 1184-E from Investigating Justice thus:
three of the plaintiffs, namely, Priscilla Reyes, Adela
Reyes, and Luz R. Bakunawa after the finality of the "And so we are now confronted with this all-important
decision in Civil Case No. 3010. It may be recalled that question whether or not the acquisition by respondent
Lot 1184 or more specifically one-half thereof was of a portion of Lot 1184-E and the subsequent transfer
adjudicated in equal shares to Priscilla Reyes, Adela of the whole lot to 'TRADERS' of which respondent was

67
the President and his wife the Secretary, was intimately fourth share of the late Francisco Reyes-Diaz in Lot
related to the Order of respondent approving the 1154. In this deed of sale the vendee stated that she
project of partition, Exh. A. was the absolute owner of said one-fourth share, the
same having been adjudicated to her as her share in
"Respondent vehemently denies any interest or the estate of her father Francisco Reyes Diaz as per
participation in the transactions between the Reyeses decision of the Court of First Instance of Leyte under
and the Galapons concerning Lot 1184-E, and he case No. 3010 (Exh. 7-A). The deed of sale was duly
insists that there is no evidence whatsoever to show registered and annotated at the back of OCT 19520 on
that Dr. Galapon had acted, in the purchase of Lot December 3, 1963 (see Exh. 9-e).
1184-E, in mediation for him and his wife. (See p. 14 of
Respondent's Memorandum). "In connection with the abovementioned documents it
is to be noted that in the project of partition dated
xxx xxx xxx October 16, 1963, which was approved by respondent
on October 23, 1963, followed by an amending Order
"On this point, I agree with respondent that there is no on November 11, 1963, Lot 1154 or rather 1/4 thereof
evidence in the record showing that Dr. Arcadio was adjudicated to Mrs. Macariola. It is this 1/4 share
Galapon acted as a mere 'dummy' of respondent in in Lot 1154 which complainant sold to Dr. Decena on
acquiring Lot 1184-E from the Reyeses. Dr. Galapon October 22, 1963, several days after the preparation of
appeared to this investigator as a respectable citizen, the project of partition.
credible and sincere, and I believe him when he
testified that he bought Lot 1184-E in good faith and for "Counsel for complainant stresses the view, however,
valuable consideration from the Reyeses without any that the latter sold her one-fourth share in Lot 1154 by
intervention of, or previous understanding with Judge virtue of the decision in Civil Case 3010 and not
Asuncion" (pp. 391-394, rec.). because of the project of partition, Exh. A. Such
contention is absurd because from the decision, Exh.
On the contention of complainant herein that C, it is clear that one-half of one-fourth of Lot 1154
respondent Judge acted illegally in approving the belonged to the estate of Francisco Reyes Diaz while
project of partition although it was not signed by the the other half of said one-fourth was the share of
parties, We quote with approval the findings of the complainant's mother, Felisa Espiras; in other words,
Investigating Justice, as follows: the decision did not adjudicate the whole of the one-
fourth of Lot 1154 to the herein complainant (see Exhs.
"1. I agree with complainant that respondent should C-3 & C-4). Complainant became the owner of the
have required the signature of the parties more entire one fourth of Lot 1154 only by means of the
particularly that of Mrs. Macariola on the project of project of partition, Exh. A. Therefore, if Mrs. Macariola
partition submitted to him for approval; however, sold Lot 1154 on October 22, 1963, it was for no other
whatever error was committed by respondent in that reason than that she was well aware of the distribution
respect was done in good faith as according to Judge of the properties of her deceased father as per Exhs. A
Asuncion he was assured by Atty. Bonifacio Ramo, the and B. It is also significant at this point to state that Mrs.
counsel of record of Mrs. Macariola, that he was Macariola admitted during the cross-examination that
authorized by his client to submit said project of she went to Tacloban City in connection with the sale
partition, (See Exh. B and tsn. p. 24, January 20, 1969). of Lot 1154 to Dr. Decena (tsn. p. 92, November 28,
While it is true that such written authority if there was 1968) from which we can deduce that she could not
any, was not presented by respondent in evidence, nor have been kept ignorant of the proceedings in civil
did Atty. Ramo appear to corroborate the statement of case 3010 relative to the project of partition.
respondent, his affidavit being the only one that was
presented as respondent's Exh. 10, certain actuations "Complainant also assails the project of partition
of Mrs. Macariola lead this investigator to believe that because according to her the properties adjudicated to
she knew the contents of the project of partition, Exh. her were insignificant lots and the least valuable.
A, and that she gave her conformity thereto. I refer to Complainant, however, did not present any direct and
the following documents: positive evidence to prove the alleged gross
inequalities in the choice and distribution of the real
"1) Exh. 9 - Certified true copy of OCT No. 19520 properties when she could have easily done so by
covering Lot 1154 of the Tacloban Cadastral Survey in presenting evidence on the area, location, kind, the
which the deceased Francisco Reyes holds a '1/4 assessed and market value of said properties. Without
share' (Exh. 9-a). On this certificate of title the Order such evidence there is nothing in the record to show
dated November 11, 1963, (Exh. U) approving the that there were inequalities in the distribution of the
project of partition was duly entered and registered on properties of complainant's father" (pp. 386-389, rec.).
November 26, 1963 (Exh. 9-D);
Finally, while it is true that respondent Judge did not
"2) Exh. 7 - Certified copy of a deed of absolute sale violate paragraph 5, Article 1491 of the New Civil Code
executed by Bernardita Reyes Macariola on October in acquiring by purchase a portion of Lot 1184-E which
22, 1963, conveying to Dr. Hector Decena the one- was in litigation in his court, it was, however, improper

68
for him to have acquired the same. He should be xxx xxx xxx
reminded of Canon 3 of the Canons of Judicial Ethics
which requires that: "A judge's official conduct should "5. Those who by virtue of laws or special provisions
be free from the appearance of impropriety, and his may not engage in commerce in a determinate
personal behavior, not only upon the bench and in the territory."
performance of judicial duties, but also in his everyday
life, should be beyond reproach." And as aptly It is Our considered view that although the aforestated
observed by the Investigating Justice: ". . . it was provision is incorporated in the Code of Commerce
unwise and indiscreet on the part of respondent to which is part of the commercial laws of the Philippines,
have purchased or acquired a portion of a piece of it, however, partakes of the nature of a political law as
property that was or had been in litigation in his court it regulates the relationship between the government
and caused it to be transferred to a corporation of and certain public officers and employees, like justices
which he and his wife were ranking officers at the time and judges.
of such transfer. One who occupies an exalted position
in the judiciary has the duty and responsibility of Political Law has been defined as that branch of public
maintaining the faith and trust of the citizenry in the law which deals with the organization and operation of
courts of justice, so that not only must he be truly the governmental organs of the State and define the
honest and just, but his actuations must be such as not relations of the state with the inhabitants of its territory
give cause for doubt and mistrust in the uprightness of (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may
his administration of justice. In this particular case of be recalled that political law embraces constitutional
respondent, he cannot deny that the transactions over law, law of public corporations, administrative law
Lot 1184-E are damaging and render his actuations including the law on public officers and elections.
open to suspicion and distrust. Even if respondent Specifically, Article 14 of the Code of Commerce
honestly believed that Lot 1184-E was no longer in partakes more of the nature of an administrative law
litigation in his court and that he was purchasing it from because it regulates the conduct of certain public
a third person and not from the parties to the litigation, officers and employees with respect to engaging in
he should nonetheless have refrained from buying it for business; hence, political in essence.
himself and transferring it to a corporation in which he
and his wife were financially involved, to avoid possible It is significant to note that the present Code of
suspicion that his acquisition was related in one way or Commerce is the Spanish Code of Commerce of 1885,
another to his official actuations in civil case 3010. The with some modifications made by the "Comision de
conduct of respondent gave cause for the litigants in Codificacion de las Provincias de Ultramar," which was
civil case 3010, the lawyers practising in his court, and extended to the Philippines by the Royal Decree of
the public in general to doubt the honesty and fairness August 6, 1888, and took effect as law in this
of his actuations and the integrity of our courts of jurisdiction on December 1, 1888.
justice" (pp. 395-396, rec.).
Upon the transfer of sovereignty from Spain to the
II United States and later on from the United States to the
With respect to the second cause of action, the Republic of the Philippines, Article 14 of this Code of
complainant alleged that respondent Judge violated Commerce must be deemed to have been abrogated
paragraphs 1 and 5, Article 14 of the Code of because where there is change of sovereignty, the
Commerce when he associated himself with the political laws of the former sovereign, whether
Traders Manufacturing and Fishing Industries, Inc. as compatible or not with those of the new sovereign, are
a stockholder and a ranking officer, said corporation automatically abrogated, unless they are expressly re-
having been organized to engage in business. Said enacted by affirmative act of the new sovereign.
Article provides that:
Thus, We held in Roa vs. Collector of Customs (23 Phil.
"Article 14 - The following cannot engage in commerce, 315, 330, 311 [1912]) that:
either in person or by proxy, nor can they hold any
office or have any direct, administrative, or financial "'By well-settled public law, upon the cession of
intervention in commercial or industrial companies territory by one nation to another, either following a
within the limits of the districts, provinces, or towns in conquest or otherwise, . . . those laws which are
which they discharge their duties: political in their nature and pertain to the prerogatives
of the former government immediately cease upon the
"1. Justices of the Supreme Court, judges and officials transfer of sovereignty.' (Opinion, Atty. Gen., July 10,
of the department of public prosecution in active 1899).
service. This provision shall not be applicable to
mayors, municipal judges, and municipal prosecuting "While municipal laws of the newly acquired territory
attorneys nor to those who by chance are temporarily not in conflict with the laws of the new sovereign
discharging the functions of judge or prosecuting continue in force without the express assent or
attorney. affirmative act of the conqueror, the political laws do
not. (Halleck's Int. Law, chap. 34, par. 14). However,

69
such political laws of the prior sovereignty as are not in at bar, the business of the corporation in which
conflict with the constitution or institutions of the new respondent participated has obviously no relation or
sovereign, may be continued in force if the conqueror connection with his judicial office. The business of said
shall so declare by affirmative act of the commander- corporation is not that kind where respondent
in-chief during the war, or by Congress in time of intervenes or takes part in his capacity as Judge of the
peace. (Ely's Administrator vs. United States, 171 U.S. Court of First Instance. As was held in one case
220, 43 L. Ed. 142). In the case of American and Ocean involving the application of Article 216 of the Revised
Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511, Penal Code which has a similar prohibition on public
542, 7 L. Ed. 242), Chief Justice Marshall said: officers against directly or indirectly becoming
interested in any contract or business in which it is his
'On such transfer (by cession) of territory, it has never official duty to intervene, "(I)t is not enough to be a
been held that the relations of the inhabitants with each public official to be subject to this crime: it is necessary
other undergo any change. Their relations with their that by reason of his office, he has to intervene in said
former sovereign are dissolved, and new relations are contracts or transactions; and, hence, the official who
created between them and the government which has intervenes in contracts or transactions which have no
acquired their territory. The same act which transfers relation to his office cannot commit this crime" (People
their country, transfers the allegiance of those who vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by
remain in it; and the law which may be denominated Justice Ramon C. Aquino; Revised Penal Code, p.
political, is necessarily changed, although that which 1174, Vol. II [1976]).
regulates the intercourse and general conduct of
individuals, remains in force, until altered by the newly- It does not appear also from the records that the
created power of the State.'" aforesaid corporation gained any undue advantage in
its business operations by reason of respondent's
Likewise, in People vs. Perfecto (43 Phil. 887, 897 financial involvement in it, or that the corporation
[1922]), this Court stated that: "It is a general principle benefited in one way or another in any case filed by or
of the public law that on acquisition of territory the against it in court. It is undisputed that there was no
previous political relations of the ceded region are case filed in the different branches of the Court of First
totally abrogated." Instance of Leyte in which the corporation was either
party plaintiff or defendant except Civil Case No. 4234
There appears no enabling or affirmative act that entitled "Bernardita R. Macariola, plaintiff, versus
continued the effectivity of the aforestated provision of Sinforosa O. Bales, et al.," wherein the complainant
the Code of Commerce after the change of sovereignty herein sought to recover Lot 1184-E from the aforesaid
from Spain to the United States and then to the corporation. It must be noted, however, that Civil Case
Republic of the Philippines. Consequently, Article 14 of No. 4234 was filed only on November 9 or 11, 1968
the Code of Commerce has no legal and binding effect and decided on November 2, 1970 by CFI Judge Jose
and cannot apply to the respondent, then Judge of the D. Nepomuceno when respondent Judge was no
Court of First Instance, now Associate Justice of the longer connected with the corporation, having
Court of Appeals. disposed of his interest therein on January 31, 1967.

It is also argued by complainant herein that respondent Furthermore, respondent is not liable under the same
Judge violated paragraph H, Section 3 of Republic Act paragraph because there is no provision in both the
No. 3019, otherwise known as the Anti-Graft and 1935 and 1973 Constitutions of the Philippines, nor is
Corrupt Practices Act, which provides that: there an existing law expressly prohibiting members of
the Judiciary from engaging or having interest in any
"Sec. 3. Corrupt practices of public officers. - In lawful business.
addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute It may be pointed out that Republic Act No. 296, as
corrupt practices of any public officer and are hereby amended, also known as the Judiciary Act of 1948,
declared to be unlawful: does not contain any prohibition to that effect. As a
xxx xxx xxx matter of fact, under Section 77 of said law, municipal
judges may engage in teaching or other vocation not
"(h) Directly or indirectly having financial or pecuniary involving the practice of law after office hours but with
interest in any business, contract or transaction in the permission of the district judge concerned.
connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the Likewise, Article 14 of the Code of Commerce which
Constitution or by any law from having any interest." prohibits judges from engaging in commerce is, as
heretofore stated, deemed abrogated automatically
Respondent Judge cannot be held liable under the upon the transfer of sovereignty from Spain to America,
aforestated paragraph because there is no showing because it is political in nature.
that respondent participated or intervened in his official
capacity in the business or transactions of the Traders Moreover, the prohibition in paragraph 5, Article 1491
Manufacturing and Fishing Industries, Inc. In the case of the New Civil Code against the purchase by judges

70
of a property in litigation before the court within whose
jurisdiction they perform their duties, cannot apply to It is true that under Section 33 of the Civil Service Act
respondent Judge because the sale of the lot in of 1959: "The Commissioner may, for . . . violation of
question to him took place after the finality of his the existing Civil Service Law and rules or of
decision in Civil Case No. 3010 as well as his two reasonable office regulations, or in the interest of the
orders approving the project of partition; hence, the service, remove any subordinate officer or employee
property was no longer subject of litigation. from the service, demote him in rank, suspend him for
not more than one year without pay or fine him in an
In addition, although Section 12, Rule XVIII of the Civil amount not exceeding six months' salary." Thus, a
Service Rules made pursuant to the Civil Service Act violation of Section 12 of Rule XVIII is a ground for
of 1959 prohibits an officer or employee in the civil disciplinary action against civil service officers and
service from engaging in any private business, employees.
vocation, or profession or be connected with any
commercial, credit, agricultural or industrial However, judges cannot be considered as subordinate
undertaking without a written permission from the head civil service officers or employees subject to the
of department, the same, however, may not fall within disciplinary authority of the Commissioner of Civil
the purview of paragraph h, Section 3 of the Anti-Graft Service; for, certainly, the Commissioner is not the
and Corrupt Practices Act because the last portion of head of the Judicial Department to which they belong.
said paragraph speaks of a prohibition by the The Revised Administrative Code (Section 89) and the
Constitution or law on any public officer from having Civil Service Law itself state that the Chief Justice is
any interest in any business and not by a mere the department head of the Supreme Court (Sec. 20,
administrative rule or regulation. Thus, a violation of R.A. No. 2260) [1959]); and under the 1973
the aforesaid rule by any officer or employee in the civil Constitution, the Judiciary is the only other or second
service, that is, engaging in private business without a branch of the government (Sec. 1, Art. X, 1973
written permission from the Department Head may not Constitution). Besides, a violation of Section 12, Rule
constitute graft and corrupt practice as defined by law. XVIII cannot be considered as a ground for disciplinary
action against judges because to recognize the same
On the contention of complainant that respondent as applicable to them, would be adding another ground
Judge violated Section 12, Rule XVIII of the Civil for the discipline of judges and, as aforestated, Section
Service Rules, We hold that the Civil Service Act of 67 of the Judiciary Act recognizes only two grounds for
1959 (R.A. No. 2260) and the Civil Service Rules their removal, namely, serious misconduct and
promulgated thereunder, particularly Section 12 of inefficiency.
Rule XVIII, do not apply to the members of the
Judiciary. Under said Section 12: "No officer or Moreover, under Section 16(i) of the Civil Service Act
employee shall engage directly in any private business, of 1959, it is the Commissioner of Civil Service who has
vocation, or profession or be connected with any original and exclusive jurisdiction "(T)o decide, within
commercial, credit, agricultural or industrial one hundred twenty days, after submission to it, all
undertaking without a written permission from the Head administrative cases against permanent officers and
of Department . . ." employees in the competitive service, and, except as
provided by law, to have final authority to pass upon
It must be emphasized at the outset that respondent, their removal, separation, and suspension and upon all
being a member of the Judiciary, is covered by matters relating to the conduct, discipline, and
Republic Act No. 296, as amended, otherwise known efficiency of such officers and employees; and
as the Judiciary Act of 1948 and by Section 7, Article prescribe standards, guidelines and regulations
X, 1973 Constitution. governing the administration of discipline" (emphasis
supplied). There is no question that a judge belong to
Under Section 67 of said law, the power to remove or the non-competitive or unclassified service of the
dismiss judges was then vested in the President of the government as a Presidential appointee and is
Philippines, not in the Commissioner of Civil Service, therefore not covered by the aforesaid provision. WE
and only on two grounds, namely, serious misconduct have already ruled that ". . . in interpreting Section 16(i)
and inefficiency, and upon the recommendation of the of Republic Act No. 2260, we emphasized that only
Supreme Court, which alone is authorized, upon its permanent officers and employees who belong to the
own motion, or upon information of the Secretary (now classified service come under the exclusive jurisdiction
Minister) of Justice to conduct the corresponding of the Commissioner of Civil Service" (Villaluz vs.
investigation. Clearly, the aforesaid section defines the Zaldivar, 15 SCRA 710, 713 [1965l, Ang-Angco vs.
grounds and prescribes the special procedure for the Castillo, 9 SCRA 619 [1963]).
discipline of judges.
Although the actuation of respondent Judge in
And under Sections 5, 6 and 7, Article X of the 1973 engaging in private business by joining the Traders
Constitution, only the Supreme Court can discipline Manufacturing and Fishing Industries, Inc. as a
judges of inferior courts as well as other personnel of stockholder and a ranking officer, is not violative of the
the Judiciary. provisions of Article 14 of the Code of Commerce and

71
Section 3(h) of the Anti-Graft and Corrupt Practices Act The "respondent denies knowing that Dominador
as well as Section 12, Rule XVIII of the Civil Service Arigpa Tan was an 'impostor' and claims that all the
Rules promulgated pursuant to the Civil Service Act of time he believed that the latter was a bona fide member
1959, the impropriety of the same is clearly of the bar. I see no reason for disbelieving this
unquestionable because Canon 25 of the Canons of assertion of respondent. It has been shown by
Judicial Ethics expressly declares that: complainant that Dominador Arigpa Tan represented
himself publicly as an attorney-at-law to the extent of
"A judge should abstain from making personal putting up a signboard with his name and the words
investments in enterprises which are apt to be involved 'Attorney-at-Law' (Exh. I and I-1) to indicate his office,
in litigation in his court; and, after his accession to the and it was but natural for respondent and any person
bench, he should not retain such investments for that matter to have accepted that statement on its
previously made, longer than a period sufficient to face value.
enable him to dispose of them without serious loss. It
is desirable that he should, so far as reasonably "Now with respect to the allegation of complainant that
possible, refrain from all relations which would normally respondent is guilty of fraternizing with Dominador
tend to arouse the suspicion that such relations warp Arigpa Tan to the extent of permitting his wife to be a
or bias his judgment, or prevent his impartial attitude of godmother of Mr. Tan's child at baptism (Exh. M & M-
mind in the administration of his judicial duties. . . ." 1), that fact even if true did not render respondent guilty
of violating any canon of judicial ethics as long as his
WE are not, however, unmindful of the fact that friendly relations with Dominador A. Tan and family did
respondent Judge and his wife had withdrawn on not influence his official actuations as a judge where
January 31, 1967 from the aforesaid corporation and said persons were concerned. There is no tangible
sold their respective shares to third parties, and it convincing proof that herein respondent gave any
appears also that the aforesaid corporation did not in undue privileges in his court to Dominador Arigpa Tan
anyway benefit in any case filed by or against it in court or that the latter benefitted in his practice of law from
as there was no case filed in the different branches of his personal relations with respondent, or that he used
the Court of First Instance of Leyte from the time of the his influence, if he had any, on the Judges of the other
drafting of the Articles of Incorporation of the branches of the Court to favor said Dominador Tan.
corporation on March 12, 1966, up to its incorporation
on January 9, 1967, and the eventual withdrawal of "Of course it is highly desirable for a member of the
respondent on January 31, 1967 from said corporation. judiciary to refrain as much as possible from
Such disposal or sale by respondent and his wife of maintaining close friendly relations with practising
their shares in the corporation only 22 days after the in attorneys and litigants in his court so as to avoid
corporation of the corporation, indicates that suspicion 'that his social or business relations or
respondent realized that early that their interest in the friendship constitute an element in determining his
corporation contravenes the aforesaid Canon 25. judicial course" (par. 30, Canons of Judicial Ethics), but
Respondent Judge and his wife therefore deserve the if a Judge does have social relations, that in itself would
commendation for their immediate withdrawal from the not constitute a ground for disciplinary action unless it
firm after its incorporation and before it became be clearly shown that his social relations beclouded his
involved in any court litigation. official actuations with bias and partiality in favor of his
friends" (pp. 403-405, rec.).
III
With respect to the third and fourth causes of action, In conclusion, while respondent Judge Asuncion, now
complainant alleged that respondent was guilty of Associate Justice of the Court of Appeals, did not
coddling an impostor and acted in disregard of judicial violate any law in acquiring by purchase a parcel of
decorum, and that there was culpable defiance of the land which was in litigation in his court and in engaging
law and utter disregard for ethics. WE agree, however, in business by joining a private corporation during his
with the recommendation of the Investigating Justice incumbency as judge of the Court of First Instance of
that respondent Judge be exonerated because the Leyte, he should be reminded to be more discreet in
aforesaid causes of action are groundless, and WE his private and business activities, because his
quote the pertinent portion of her report which reads as conduct as a member of the Judiciary must not only be
follows: characterized with propriety but must always be above
suspicion.
"The basis for complainant's third cause of action is the
claim that respondent associated and closely WHEREFORE, THE RESPONDENT ASSOCIATE
fraternized with Dominador Arigpa Tan who openly and JUSTICE OF THE COURT OF APPEALS IS HEREBY
publicly advertised himself as a practising attorney REMINDED TO BE MORE DISCREET IN HIS
(see Exhs. I, I-1 and J) when in truth and in fact said PRIVATE AND BUSINESS ACTIVITIES.
Dominador Arigpa Tan does not appear in the Roll of
Attorneys and is not a member of the Philippine Bar as SO ORDERED.
certified to in Exh. K.
GENUINO VS DE LIMA (2018)

72
 denying her application for an Allow-Departure Order
EFRAIM C. GENUINO, ERWIN F. GENUINO AND (ADO).
SHERYL G. SEE, PETITIONERS, VS. HON. LEILA M.
DE LIMA, IN HER CAPACITY AS SECRETARY OF Similarly, in G.R. No. 197930, petitioners Efraim C.
JUSTICE, AND RICARDO V. PARAS III, IN HIS Genuino (Efraim), Erwin F. Genuino (Erwin) and Sheryl
CAPACITY AS CHIEF STATE COUNSEL, CRISTINO Genuino-See (Genuinos) pray for the nullification of the
L. NAGUIAT, JR. AND THE BUREAU OF Hold-Departure Order[5] (HDO) No. 2011-64 dated
IMMIGRATION, RESPONDENTS. July 22, 2011 issued against them.

[G.R. No. 199034] Antecedent Facts

MA. GLORIA MACAPAGAL-ARROYO, PETITIONER, On March 19, 1998, then DOJ Secretary Silvestre H.
VS. HON. LEILA M. DE LIMA, AS SECRETARY OF Bello III issued DOJ Circular No. 17, prescribing rules
THE DEPARTMENT OF JUSTICE AND RICARDO A. and regulations governing the issuance of HDOs. The
DAVID, JR., AS COMMISSIONER OF THE BUREAU said issuance was intended to restrain the
OF IMMIGRATION, RESPONDENTS. indiscriminate issuance of HDOs which impinge on the
people's right to travel.
[G.R. No. 199046]
On April 23, 2007, former DOJ Secretary Raul M.
JOSE MIGUEL T. ARROYO, PETITIONER, VS. HON. Gonzalez issued DOJ Circular No. 18, prescribing
LEILA M. DE LIMA, AS SECRETARY OF THE rules and regulations governing the issuance and
DEPARTMENT OF JUSTICE AND RICARDO V. implementation of watchlist orders. In particular, it
PARAS III, AS CHIEF STATE COUNSEL, provides for the power of the DOJ Secretary to issue a
DEPARTMENT OF JUSTICE AND RICARDO A. Watchlist Order (WLO) against persons with criminal
DAVID, JR., IN HIS CAPACITY AS COMMISSIONER, cases pending preliminary investigation or petition for
BUREAU OF IMMIGRATION, RESPONDENTS. review before the DOJ. Further, it states that the DOJ
G.R. No. 197930 | 2018-04-17 Secretary may issue an ADO to a person subject of a
WLO who intends to leave the country for some
DECISION exceptional reasons.[6] Even with the promulgation of
DOJ Circular No. 18, however, DOJ Circular No. 17
REYES, JR., J: remained the governing rule on the issuance of HDOs
by the DOJ.
These consolidated Petitions for Certiorari and
Prohibition with Prayer for the Issuance of Temporary On May 25, 2010, then Acting DOJ Secretary Alberto
Restraining Orders (TRO) and/or Writs of Preliminary C. Agra issued the assailed DOJ Circular No. 41,
Injunction Under Rule 65 of the Rules of Court assail consolidating DOJ Circular Nos. 17 and 18, which will
the constitutionality of Department of Justice (DOJ) govern the issuance and implementation of HDOs,
Circular No. 41, series of 2010, otherwise known as the WLOs, and ADOs. Section 10 of DOJ Circular No. 41
"Consolidated Rules and Regulations Governing expressly repealed all rules and regulations contained
Issuance and Implementation of Hold Departure in DOJ Circular Nos. 17 and 18, as well as all
Orders, Watchlist Orders and Allow Departure Orders" instructions, issuances or orders or parts thereof which
on the ground that it infringes on the constitutional right are inconsistent with its provisions.
to travel.
After the expiration of GMA's term as President of the
Also, in G.R. Nos. 199034 and 199046, the petitioners Republic of the Philippines and her subsequent
therein seek to annul and set aside the following orders election as Pampanga representative, criminal
issued by the former DOJ Secretary Leila De Lima (De complaints were filed against her before the DOJ,
Lima), pursuant to DOJ Circular No. 41, thus: particularly:

1. Watchlist Order No. ASM-11-237 dated August 9, (a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay
2011;[1] vs. Gloria Macapagal-Arroyo, et al., for plunder;[7]

2. Amended Watchlist Order No. 2011-422 dated (b) XVI-INV-11D-00170, entitled Francisco I. Chavez
September 6, 2011;[2] and vs. Gloria Macapagal-Arroyo, et al., for plunder,
malversation and/or illegal use of OWWA funds, graft
3. Watchlist Order No. 2011-573 dated October 27, and corruption, violation of the Omnibus Election Code
2011.[3] (OEC), violation of the Code of Conduct and Ethical
Standards for Public Officials, and qualified theft;[8]
In a Supplemental Petition, petitioner Gloria and
Macapagal-Arroyo (GMA) further seeks the
invalidation of the Order[4]dated November 8, 2011, (c) XVI-INV-11F-00238, entitled Francisco I. Chavez
vs. Gloria Macapagal-Arroyo, et al., for plunder,

73
malversation, and/or illegal use of public funds, graft
and corruption, violation of the OEC, violation of the 1. Second Endorsement dated September 16, 2011 of
Code of Conduct and Ethical Standards for Public Speaker Feliciano Belmonte, Jr. to the Secretary of
Officials and qualified theft.[9] Foreign Affairs, of her Travel Authority;

In view of the foregoing criminal complaints, De Lima 2. First Endorsement dated October 19, 2011[20] of
issued DOJ WLO No. 2011-422 dated August 9, 2011 Artemio A. Adasa, OIC Secretary General of the House
against GMA pursuant to her authority under DOJ of Representatives, to the Secretary of Foreign Affairs,
Circular No. 41. She also ordered for the inclusion of amending her Travel Authority to include travel to
GMA's name in the Bureau of Immigration (BI) Singapore, Spain and Italy;
watchlist.[10] Thereafter, the BI issued WLO No. ASM-
11-237,[11] implementing De Lima's order. 3. Affidavit dated October 21, 2011,[21] stating the
purpose of travel to Singapore, Germany and Austria;
On September 6, 2011, De Lima issued DOJ Amended
WLO No. 2011-422 against GMA to reflect her full 4. Medical Abstract dated October 22, 2011,[22] signed
name "Ma. Gloria M. Macapagal-Arroyo" in the BI by Dr. Roberto Mirasol (Dr. Mirasol);
Watchlist.[12] WLO No. 2011-422, as amended, is
valid for a period of 60 days, or until November 5, 2011, 5. Medical Abstract dated October 24, 2011,[23] signed
unless sooner terminated or otherwise extended. This by Dr. Mario Ver;
was lifted in due course by De Lima, in an Order dated
November 14, 2011, following the expiration of its 6. Itinerary submitted by the Law Firm of Diaz, Del
validity.[13] Rosario and Associates, detailing the schedule of
consultations with doctors in Singapore.
Meanwhile, on October 20, 2011, two criminal
complaints for Electoral Sabotage and Violation of the To determine whether GMA's condition necessitates
OEC were filed against GMA and her husband, Jose medical attention abroad, the Medical Abstract
Miguel Arroyo (Miguel Arroyo), among others, with the prepared by Dr. Mirasol was referred to then Secretary
DOJ-Commission on Elections (DOJ-COMELEC) Joint of the Department of Health, Dr. Enrique Ona (Dr. Ona)
Investigation Committee on 2004 and 2007 Election for his expert opinion as the chief government
Fraud,[14] specifically: physician. On October 28, 2011, Dr. Ona,
accompanied by then Chairperson of the Civil Service
(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ- Commission, Francisco Duque, visited GMA at her
COMELEC Fact Finding Team vs. Gloria Macapagal- residence in La Vista Subdivision, Quezon City. Also
Arroyo et al., (for the Province of Maguindanao), for present at the time of the visit were GMA's attending
electoral sabotage/violation of the OEC and doctors who explained her medical condition and the
COMELEC Rules and Regulations;[15] and surgical operations conducted on her. After the visit,
Dr. Ona noted that "Mrs. Arroyo is recuperating
(b) DOJ-COMELEC Case No. 002-2011, entitled reasonably well after having undergone a series of
Aquilino Pimentel III vs. Gloria Macapagal-Arroyo, et three major operations."[24]
al., for electoral sabotage.[16]
On November 8, 2011, before the resolution of her
Following the filing of criminal complaints, De Lima application for ADO, GMA filed the present Petition for
issued DOJ WLO No. 2011-573 against GMA and Certiorariand Prohibition under Rule 65 of the Rules of
Miguel Arroyo on October 27, 2011, with a validity Court with Prayer for the Issuance of a TRO and/or Writ
period of 60 days, or until December 26, 2011, unless of Preliminary Injunction, docketed as G.R. No.
sooner terminated or otherwise extended.[17] 199034, to annul and set aside DOJ Circular No. 41
and WLOs issued against her for allegedly being
In three separate letters dated October 20, 2011, unconstitutional.[25]
October 21, 2011, and October 24, 2011, GMA
requested for the issuance of an ADO, pursuant to A few hours thereafter, Miguel Arroyo filed a separate
Section 7 of DOJ Circular No. 41, so that she may be Petition for Certiorari, and Prohibition under the same
able to seek medical attention from medical specialists rule, with Prayer for the Issuance of a TRO and/or a
abroad for her hypoparathyroidism and metabolic bone Writ of Preliminary Injunction, likewise assailing the
mineral disorder. She mentioned six different countries constitutionality of DOJ Circular No. 41 and WLO No.
where she intends to undergo consultations and 2011-573. His petition was docketed as G.R. No.
treatments: United States of America, Germany, 199046.[26]
Singapore, Italy, Spain and Austria.[18] She likewise
undertook to return to the Philippines, once her Also, on November 8, 2011, De Lima issued an
treatment abroad is completed, and participate in the Order,[27] denying GMA's application for an ADO,
proceedings before the DOJ.[19] In support of her based on the following grounds:
application for ADO, she submitted the following
documents, viz.:

74
First, there appears to be discrepancy on the medical aside the Order dated November 8, 2011, denying her
condition of the applicant as stated in her affidavit, on application for ADO. On the following day, GMA filed
the other hand, and the medical abstract of the her Comment/Opposition[32] to the respondents' Very
physicians as well as her physician's statements to Urgent Manifestation and Motion dated November 9,
Secretary Ona during the latter's October 28, 2011 visit 2011, in G.R. No. 199034.
to the Applicant, on the other.
On November 15, 2011, the Court issued a
xxxx Resolution,[33] ordering the consolidation of G.R. Nos.
199034 and 199046, and requiring the respondents to
Second, based on the medical condition of Secretary file their comment thereto not later than November 18,
Ona, there appears to be no urgent and immediate 2011. The Court likewise resolved to issue a TRO in
medical emergency situation for Applicant to seek the consolidated petitions, enjoining the respondents
medical treatment abroad, x x x. from enforcing or implementing DOJ Circular No. 41
and WLO Nos. ASM-11-237 dated August 9, 2011,
xxxx 2011-422 dated September 6, 2011, and 2011-573
dated October 27, 2011, subject to the following
Third, Applicant lists several countries as her conditions, to wit:
destination, some of which were not for purposes of
medical consultation, but for attending conferences, x (i) The petitioners shall post a cash bond of Two Million
x x. Pesos (P2,000,000.00) payable to this Court within five
(5) days from notice hereof. Failure to post the bond
xxxx within the aforesaid period will result in the automatic
lifting of the temporary restraining order;
Fourth, while the Applicant's undertaking is to return to
the Philippines upon the completion of her medical (ii) The petitioners shall appoint a legal representative
treatment, this means that her return will always common to both of them who will receive subpoena,
depend on said treatment, which, based on her orders and other legal processes on their behalf during
presentation of her condition, could last indefinitely, x x their absence. The petitioners shall submit the name of
x. the legal representative, also within five (5) days from
notice hereof; and
xxxx
(iii) If there is a Philippine embassy or consulate in the
Fifth, x x x x. Applicant has chosen for her destination place where they will be traveling, the petitioners shall
five (5) countries, namely, Singapore, Germany, inform said embassy or consulate by personal
Austria, Spain and Italy, with which the Philippines has appearance or by phone of their whereabouts at all
no existing extradition treaty, x x x. times;[34]

xxxx On the very day of the issuance of the TRO, the

petitioners tendered their compliance[35] with the
IN VIEW OF THE FOREGOING, the application for an conditions set forth in the Resolution dated November
Allow Departure Order (ADO) of Congresswoman MA. 15, 2011 of the Court and submitted the following: (1)
GLORIA M. MACAPAGAL-ARROYO is hereby a copy of Official Receipt No. 0030227-SC-EP,
DENIED for lack of merit. showing the payment of the required cash bond of Two
Million Pesos (P2,000,000.00);[36] (2) certification
SO ORDERED.[28] from the Fiscal and Management and Budget Office of
the Supreme Court, showing that the cash bond is
On November 9, 2011, De Lima, together with her co- already on file with the office;[37] (3) special powers of
respondents, Ricardo V. Paras, III, Chief State Counsel attorney executed by the petitioners, appointing their
of the DOJ and Ricardo A. David, Jr., who was then BI respective lawyers as their legal representatives;[38]
Commissioner, (respondents) filed a Very Urgent and (4) an undertaking to report to the nearest consular
Manifestation and Motion[29] in G.R. Nos. 199034 and office in the countries where they will travel.[39]
199046, praying (1) that they be given a reasonable
time to comment on the petitions and the applications At around 8:00 p.m. on the same day, the petitioners
for a TRO and/or writ of preliminary injunction before proceeded to the Ninoy Aquino International Airport
any action on the same is undertaken by the Court; (2) (NAIA), with an aide-de-camp and a private nurse, to
that the applications for TRO and/or writ of preliminary take their flights to Singapore. However, the BI officials
injunction be denied for lack of merit, and; (3) that the at NAIA refused to process their travel documents
petitions be set for oral arguments after the filing of which ultimately resulted to them not being able to join
comments thereto.[30] their flights.[40]

On November 13, 2011, GMA filed a Supplemental On November 17, 2011, GMA, through counsel, filed
Petition[31] which included a prayer to annul and set an Urgent Motion[41] for Respondents to Cease and

75
Desist from Preventing Petitioner GMA from Leaving Manifestation with Motion to Lift TRO.[50] They argue
the Country. She strongly emphasized that the TRO that the filing of the information for electoral sabotage
issued by the Court was immediately executory and against GMA is a supervening event which warrants
that openly defying the same is tantamount to gross the lifting of the TRO issued by this Court. They
disobedience and resistance to a lawful order of the asseverate that the filing of the case vests the trial court
Court.[42] Not long after, Miguel Arroyo followed the jurisdiction to rule on the disposition of the case.
through with an Urgent Manifestation,[43] adopting and The issue therefore on the validity of the assailed
repleading all the allegations in GMA's motion. WLOs should properly be raised and threshed out
before the RTC of Pasay City where the criminal case
On November 16, 2011, the respondents filed a against GMA is pending, to the exclusion of all other
Consolidated Urgent Motion for Reconsideration courts.[51]
and/or to Lift TRO,[44] praying that the Court
reconsider and set aside the TRO issued in the Also, on November 18, 2011, the COMELEC issued a
consolidated petitions until they are duly heard on the Resolution, dismissing the complaint for violation of
merits. In support thereof, they argue that the OEC and electoral sabotage against Miguel Arroyo,
requisites for the issuance of a TRO and writ of among others, which stood as the basis for the
preliminary injunction were not established by the issuance of WLO No. 2011-573. Conformably, the DOJ
petitioners. To begin with, the petitioners failed to issued an Order dated November 21, 2011,[52] lifting
present a clear and mistakable right which needs to be WLO No. 2011-573 against Miguel Arroyo and ordering
protected by the issuance of a TRO. While the for the removal of his name in the BI watchlist.
petitioners anchor their right in esse on the right to
travel under Section 6, Article III of the 1987 Thereafter, the oral arguments on the consolidated
Constitution, the said right is not absolute. One of the petitions proceeded as scheduled on November 22,
limitations on the right to travel is DOJ Circular No. 41, 2011, despite requests from the petitioners' counsels
which was issued pursuant to the rule-making powers for an earlier date. Upon the conclusion of the oral
of the DOJ in order to keep individuals under arguments on December 1, 2011, the parties were
preliminary investigation within the jurisdiction of the required to submit their respective memoranda.[53]
Philippine criminal justice system. With the
presumptive constitutionality of DOJ Circular No. 41, Meanwhile, in G.R. No. 197930, HDO No. 2011-64
the petitioners cannot claim that they have a clear and dated July 22, 2011[54] was issued against Genuinos,
unmistakable right to leave the country as they are the among others, after criminal complaints for
very subject of the mentioned issuance.[45]Moreover, Malversation, as defined under Article 217 of the
the issuance of a TRO will effectively render any Revised Penal Code (RPC), and Violation of Sections
judgment on the consolidated petitions moot and 3(e), (g), (h) and (i) of R.A. No. 3019 were filed against
academic. No amount of judgment can recompense them by the Philippine Amusement and Gaming
the irreparable injury that the state is bound to suffer if Corporation (PAGCOR), through its Director, Eugene
the petitioners are permitted to leave the Philippine Manalastas, with the DOJ on June 14, 2011, for the
jurisdiction.[46] supposed diversion of funds for the film "Baler." This
was followed by the filing of another complaint for
On November 18, 2011, the Court issued a Plunder under R.A. No. 7080, Malversation under
Resolution,[47] requiring De Lima to show cause why Article 217 of the RPC and Violation of Section 3 of
she should not be disciplinarily dealt with or held in R.A. No. 3019, against the same petitioners, as well as
contempt of court for failure to comply with the TRO. members and incorporators of BIDA Production, Inc.
She was likewise ordered to immediately comply with Wildformat, Inc. and Pencil First, Inc., for allegedly
the TRO by allowing the petitioners to leave the siphoning off PAGCOR funds into the coffers of BIDA
country. At the same time, the Court denied the entities. Another complaint was thereafter filed against
Consolidated Urgent Motion for Reconsideration Efraim and Erwin was filed before the Office of the
and/or to Lift TRO dated November 16, 2011 filed by Ombudsman for violation of R.A. No. 3019 for allegedly
the Office of the Solicitor General.[48] releasing PAGCOR funds intended for the Philippine
Sports Commission directly to the Philippine Amateur
On even date, the COMELEC, upon the Swimming Association, Inc.[55] In a Letter[56] dated
recommendation of the Joint DOJ-COMELEC July 29, 2011 addressed to Chief State Counsel
Preliminary Investigation Committee, filed an Ricardo Paras, the Genuinos, through counsel,
information for the crime of electoral sabotage under requested that the HDO against them be lifted. This
Section 43(b) of Republic Act (R.A.) No. 9369 against plea was however denied in a Letter[57] dated August
GMA, among others, before the Regional Trial Court 1, 2011 which prompted the institution of the present
(RTC) of Pasay City, which was docketed as R-PSY- petition by the Genuinos. In a Resolution[58] dated
11-04432-CR[49] and raffled to Branch 112. A warrant April 21, 2015, the Court consolidated the said petition
of arrest for GMA was forthwith issued. with G.R. Nos. 199034 and 199046.

Following the formal filing of an Information in court

against GMA, the respondents filed an Urgent

76
The Court, after going through the respective the question of constitutionality must be raised at the
memoranda of the parties and their pleadings, sums up earliest opportunity; and (4) the issue of
the issues for consideration as follows: constitutionality must be the very lis mota of the
case.[63]
I
Except for the first requisite, there is no question with
WHETHER THE COURT MAY EXERCISE ITS respect to the existence of the three (3) other
POWER OF JUDICIAL REVIEW; requisites. Petitioners have the locus standi to initiate
the petition as they claimed to have been unlawfully
II subjected to restraint on their right to travel owing to
the issuance of WLOs against them by authority of DOJ
WHETHER THE DOJ HAS THE AUTHORITY TO Circular No. 41. Also, they have contested the
ISSUE DOJ CIRCULAR NO. 41; and constitutionality of the questioned issuances at the
most opportune time.
III
The respondents, however, claim that the instant
WHETHER THERE IS GROUND TO HOLD THE petitions have become moot and academic since there
FORMER DOJ SECRETARY GUILTY OF is no longer any actual case or controversy to resolve
CONTEMPT OF COURT. following the subsequent filing of an information for
election sabotage against GMA on November 18, 2011
Ruling of the Court and the lifting of WLO No. 2011-573 against Miguel
Arroyo and the deletion of his name from the BI
The Court may exercise its power of judicial review watchlist after the dismissal of the complaint for
despite the filing of information for electoral sabotage electoral sabotage against him.
against GMA. It is the respondents' contention that the
present petitions should be dismissed for lack of a To be clear, "an actual case or controversy involves a
justiciable controversy. They argue that the instant conflict of legal right, an opposite legal claims
petitions had been rendered moot and academic by (1) susceptible of judicial resolution. It is definite and
the expiration of the WLO No. 422 dated August 9, concrete, touching the legal relations of parties having
2011, as amended by the Order dated September 6, adverse legal interest; a real and substantial
2011;[59] (2) the filing of an information for electoral controversy admitting of specific relief."[64] When the
sabotage against GMA,[60] and; (3) the lifting of the issues have been resolved or when the circumstances
WLO No. 2011-573 dated November 14, 2011 against from which the legal controversy arose no longer exist,
Miguel Arroyo and the subsequent deletion of his name the case is rendered moot and academic. "A moot and
from the BI watchlist after the COMELEC en banc academic case is one that ceases to present a
dismissed the case for electoral sabotage against justiciable controversy by virtue of supervening events,
him.[61] so that a declaration thereon would be of no practical
use or value."[65]
The power of judicial review is articulated in Section 1,
Article VIII of the 1987 Constitution which reads: The Court believes that the supervening events
following the filing of the instant petitions, while may
Section 1. The judicial power shall be vested in one have seemed to moot the instant petitions, will not
Supreme Court and in such lower courts as may be preclude it from ruling on the constitutional issues
established by law. raised by the petitioners. The Court, after assessing
the necessity and the invaluable gain that the members
Judicial power includes the duty of the courts of justice of the bar, as well as the public may realize from the
to settle actual controversies involving rights which are academic discussion of the constitutional issues raised
legally demandable and enforceable, and to determine in the petition, resolves to put to rest the lingering
whether or not there has been a grave abuse of constitutional questions that abound the assailed
discretion amounting to lack or excess of jurisdiction on issuance. This is not a novel occurrence as the Court,
the part of any branch or instrumentality of the in a number of occasions, took up cases up to its
Government.[62] conclusion notwithstanding claim of mootness.

Like almost all powers conferred by the Constitution, In Evelio Javier vs. The Commission on Elections,[66]
the power of judicial review is subject to limitations, to the Court so emphatically stated, thus:
wit: (1) there must be an actual case or controversy
calling for the exercise of judicial power; (2) the person The Supreme Court is not only the highest arbiter of
challenging the act must have the standing to question legal questions but also the conscience of the
the validity of the subject act or issuance; otherwise government. The citizen comes to us in quest of law
stated, he must have a personal and substantial but we must also give him justice. The two are not
interest in the case such that he has sustained, or will always the same. There are times when we cannot
sustain, direct injury as a result of its enforcement; (3) grant the latter because the issue has been settled and

77
decision is no longer possible according to the law. But members of the bench and the bar, that this Court
there are also times when although the dispute has takes up the instant petitions and resolves the question
disappeared, as in this case, it nevertheless cries out on the constitutionality of DOJ Circular No. 41.
to be resolved. Justice demands that we act then, not
only for the vindication of the outraged right, though The Constitution is inviolable and supreme of all laws
gone, but also for the guidance of and as a restraint
upon the future.[67] We begin by emphasizing that the Constitution is the
fundamental, paramount and supreme law of the
In Prof. David vs. Pres. Macapagal-Arroyo,[68] the nation; it is deemed written in every statute and
Court proceeded in ruling on the constitutionality of contract.[70] If a law or an administrative rule violates
Presidential Proclamation (PP) No. 1017 in which GMA any norm of the Constitution, that issuance is null and
declared a state of national emergency, and General void and has no effect.
Order No. 5 (G.O. No. 5), which ordered the members
of the Armed Forces of the Philippines and the The Constitution is a testament to the living democracy
Philippine National Police to carry all necessary actions in this jurisdiction. It contains the compendium of the
to suppress acts of terrorism and lawless violence, guaranteed rights of individuals, as well as the powers
notwithstanding the issuance of PP 1021 lifting both granted to and restrictions imposed on government
issuances. The Court articulated, thus: officials and instrumentalities. It is that lone unifying
code, an inviolable authority that demands utmost
The Court holds that President Arroyo's issuance of PP respect and obedience.
1021 did not render the present petitions moot and
academic. During the eight (8) days that PP 1017 was The more precious gifts of democracy that the
operative, the police officers, according to petitioners, Constitution affords us are enumerated in the Bill of
committed illegal acts in implementing it. Are PP 1017 Rights contained in Article III. In particular, Section 1
and G.O. No. 5 constitutional or valid? Do they justify thereof provides:
these alleged illegal acts? These are the vital issues
that must be resolved in the present petitions. It must Section 1. No person shall be deprived of life, liberty,
be stressed that unconstitutional act is not a law, it or property without due process of law, nor shall any
confers no rights, it imposes no duties, it affords no person be denied the equal protection of the laws.
protection; it is in legal contemplation, inoperative.
The guaranty of liberty does not, however, imply
The "moot and academic" principle is not a magical unbridled license for an individual to do whatever he
formula that can automatically dissuade the courts in pleases, for each is given an equal right to enjoy his
resolving a case. Courts will decide cases, otherwise liberties, with no one superior over another. Hence, the
moot and academic, if: first, there is a grave violation enjoyment of one's liberties must not infringe on
of the Constitution; second, the exceptional character anyone else's equal entitlement.
of the situation and the paramount public interest is
involved; third, when constitutional issue raised Surely, the Bill of Rights operates as a protective cloak
requires formulation of controlling principles to guide under which the individual may assert his liberties.
the bench, the bar, and the public; and fourth, the case Nonetheless, "the Bill of Rights itself does not purport
is capable of repetition yet evading review.[69] to be an absolute guaranty of individual rights and
(Citations omitted and emphasis supplied) liberties. Even liberty itself, the greatest of all rights, is
not unrestricted license to act according to one's will. It
In the instant case, there are exceptional is subject to the far more overriding demands and
circumstances that warrant the Court's exercise of its requirements of the greater number."[71]
power of judicial review. The petitioners impute the
respondents of violating their constitutional right to It is therefore reasonable that in order to achieve
travel through the enforcement of DOJ Circular No. 41. communal peace and public welfare, calculated
They claim that the issuance unnecessarily places a limitations in the exercise of individual freedoms are
restraint on the right to travel even in the absence of necessary. Thus, in many significant provisions, the
the grounds provided in the Constitution. Constitution itself has provided for exceptions and
restrictions to balance the free exercise of rights with
There is also no question that the instant petitions the equally important ends of promoting common good,
involved a matter of public interest as the petitioners public order and public safety.
are not alone in this predicament and there can be
several more in the future who may be similarly The state's exercise of police power is also well-
situated. It is not far fetched that a similar challenge to recognized in this jurisdiction as an acceptable
the constitutionality of DOJ Circular No. 41 will recur limitation to the exercise of individual rights. In
considering the thousands of names listed in the watch Philippine Association of Service Exporters, Inc. vs.
list of the DOJ, who may brave to question the Drilon,[72] it was defined as the inherent and plenary
supposed illegality of the issuance. Thus, it is in the power in the State which enables it to prohibit all things
interest of the public, as well as for the education of the hurtful to the comfort, safety, and welfare of society. It

78
is rooted in the conception that men in organizing the S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the
state and imposing upon its government limitations to phraseology in the 1987 Constitution was a reaction to
safeguard constitutional rights did not intend thereby to the ban on international travel imposed under the
enable an individual citizen or a group of citizens to previous regime when there was a Travel Processing
obstruct unreasonably the enactment of such salutary Center, which issued certificates of eligibility to travel
measures calculated to ensure communal peace, upon application of an interested party.[79] (Emphasis
safety, good order, and welfare.[73] ours)

Still, it must be underscored that in a constitutional Clearly, under the provision, there are only three
government like ours, liberty is the rule and restraint considerations that may permit a restriction on the right
the exception.[74] Thus, restrictions in the exercise of to travel: national security, public safety or public
fundamental liberties are heavily guarded against so health. As a further requirement, there must be an
that they may not unreasonably interfere with the free explicit provision of statutory law or the Rules of
exercise of constitutional guarantees. Court[80] providing for the impairment. The
requirement for a legislative enactment was purposely
The right to travel and its limitations added to prevent inordinate restraints on the person's
right to travel by administrative officials who may be
The right to travel is part of the "liberty" of which a tempted to wield authority under the guise of national
citizen cannot be deprived without due process of security, public safety or public health. This is in
law.[75] It is part and parcel of the guarantee of keeping with the principle that ours is a government of
freedom of movement that the Constitution affords its laws and not of men and also with the canon that
citizen. Pertinently, Section 6, Article III of the provisions of law limiting the enjoyment of liberty
Constitution provides: should be construed against the government and in
favor of the individual.[81]
Section 6. The liberty of abode and of changing the
same within the limits prescribed by law shall not be The necessity of a law before a curtailment in the
impaired except upon lawful order of the court. Neither freedom of movement may be permitted is apparent in
shall the right to travel be impaired except in the the deliberations of the members of the Constitutional
interest of national security, public safety or public Commission. In particular, Fr. Joaquin Bernas, in his
health, as maybe provided by law. sponsorship speech, stated thus:

Liberty under the foregoing clause includes the right to On Section 5, in the explanation on page 6 of the
choose one's residence, to leave it whenever he annotated provisions, it says that the phrase "and
pleases and to travel wherever he wills.[76] Thus, in changing the same" is taken from the 1935 version;
Zacarias Villavicencio vs. Justo Lucban,[77] the Court that is, changing the abode. The addition of the phrase
held illegal the action of the Mayor of Manila in WITHIN THE LIMITS PRESCRIBED BY LAW ensures
expelling women who were known prostitutes and that, whether the rights be impaired on order of a court
sending them to Davao in order to eradicate vices and or without the order of a court, the impairment must be
immoral activities proliferated by the said subjects. It in accordance with the prescriptions of law; that is, it is
was held that regardless of the mayor's laudable not left to the discretion of any public officer.[82]
intentions, no person may compel another to change
his residence without being expressly authorized by It is well to remember that under the 1973 Constitution,
law or regulation. the right to travel is compounded with the liberty of
abode in Section 5 thereof, which reads:
It is apparent, however, that the right to travel is not
absolute. There are constitutional, statutory and Section 5, 1973 Constitution: The liberty of abode and
inherent limitations regulating the right to travel. of travel shall not, be impaired except upon lawful order
Section 6 itself provides that the right to travel may be of the court, or when necessary in the interest of
impaired only in the interest of national security, public national security, public safety, or public health.
safety or public health, as may be provided by law. In (Emphasis ours)
Silverio vs. Court of Appeals,[78] the Court elucidated,
thus: The provision, however, proved inadequate to afford
protection to ordinary citizens who were subjected to
Article III, Section 6 of the 1987 Constitution should be "hamletting" under the Marcos regime.[83] Realizing
interpreted to mean that while the liberty of travel may the loophole in the provision, the members of the
be impaired even without Court Order, the appropriate Constitutional Commission agreed that a safeguard
executive officers or administrative authorities are not must be incorporated in the provision in order to avoid
armed with arbitrary discretion to impose limitations. this unwanted consequence. Thus, the Commission
They can impose limits only on the basis of "national meticulously framed the subject provision in such a
security, public safety, or public health" and "as may be manner that the right cannot be subjected to the whims
provided by law," a limitive phrase which did not appear of any administrative officer. In addressing the
in the 1973 text (The Constitution, Bernas, Joaquin G., loophole, they found that requiring the authority of a

79
law most viable in preventing unnecessary intrusion in MR. RODRIGO. But another right is involved here and
the freedom of movement, viz.: that is to travel.

MR. NOLLEDO. x x x x SUSPENSION OF SESSION

My next question is with respect to Section 5, lines 8 to FR. BERNAS. Mr. Presiding Officer, may I request a
12 of page 2. It says here that the liberty of abode shall suspension so that we can separate the liberty of
not be impaired except upon lawful order of the court abode and or changing the same from the right to
or - underscoring the word "or" - when necessary in the travel, because they may necessitate different
interest of national security, public safety or public provisions.
health. So, in the first part, there is the word "court"; in
the second part, it seems that the question rises as to THE PRESIDING OFFICER (Mr. Bengzon). The
who determines whether it is in the interest of national session is suspended.
security, public safety, or public health. May it be
determined merely by administrative authorities? xxxx

FR. BERNAS. The understanding we have of this is RESUMPTION OF SESSION

that, yes, it may be determined by administrative
authorities provided that they act, according to line 9, xxxx
within the limits prescribed by law. For instance when
this thing came up; what was in mind were passport THE PRESIDING OFFICER (Mr. Bengzon).
officers. If they want to deny a passport on the first Commissioner Bernas is recognized
instance, do they have to go to court? The position is,
they may deny a passport provided that the denial is The session is resumed.
based on the limits prescribed by law. The phrase
"within the limits prescribed by law" is something which FR. BERNAS. The proposal is amended to read:
is added here. That did not exist in the old
provision.[84] The liberty of abode and of changing the same within
the limits prescribed by law, shall not be impaired
During the discussions, however, the Commission except upon lawful order of the court. NEITHER
realized the necessity of separating the concept of SHALL THE RIGHT TO TRAVEL BE IMPAIRED
liberty of abode and the right to travel in order to avoid EXCEPT IN THE INTEREST OF NATIONAL
untoward results. Ultimately, distinct safeguards were SECURITY, PUBLIC SAFETY, OR PUBLIC HEALTH
laid down which will protect the liberty of abode and the AS MAYBE PROVIDED BY LAW.
right to travel separately, viz.:
THE PRESIDING OFFICER (Mr. Bengzon). The
MR. TADEO. Mr. Presiding Officer, anterior Committee has accepted the amendment, as
amendment on Section 5, page 2, line 11. amended. Is there any objection? (Silence) The Chair
Iminumungkahi kong alisin iyong mga salitang hears none; the amendment, as amended, is
nagmumula sa "or" upang maiwasan natin ang walang approved.[85]
pakundangang paglabag sa liberty of abode sa ngalan
ng national security at pagsasagawa ng "hamletting" It is clear from the foregoing that the liberty of abode
ng kung sinu-sino na lamang. Kapag inalis ito, may only be impaired by a lawful order of the court and,
maisasagawa lamang ang "hamletting" upon lawful on the one hand, the right to travel may only be
order of the court. x x x. impaired by a law that concerns national security,
public safety or public health. Therefore, when the
xxxx exigencies of times call for a limitation on the right to
travel, the Congress must respond to the need by
MR. RODRIGO. Aside from that, this includes the right explicitly providing for the restriction in a law. This is in
to travel? deference to the primacy of the right to travel, being a
constitutionally-protected right and not simply a
FR. BERNAS. Yes. statutory right, that it can only be curtailed by a
legislative enactment.
MR. RODRIGO. And there are cases when passports
may not be granted or passports already granted may Thus, in Philippine Association of Service Exporters,
be cancelled. If the amendment is approved, then Inc. vs. Hon. Franklin M. Drilon,[86] the Court upheld
passports may not be cancelled unless it is ordered by the validity of the Department Order No. 1, Series of
the court. Is that the intention? x x x x 1988, issued by the Department of Labor and
Employment, which temporarily suspended the
FR. BERNAS. Yes deployment of domestic and household workers
abroad. The measure was taken in response to
escalating number of female workers abroad who were

80
subjected to exploitative working conditions, with some of the free exercise of the right, absent any explicit
even reported physical and personal abuse. The Court provision of law to the contrary.
held that Department Order No. 1 is a valid
implementation of the Labor Code, particularly, the The issuance of DOJ Circular No. 41 has no legal basis
policy to "afford protection to labor." Public safety
considerations justified the restraint on the right to Guided by the foregoing disquisition, the Court is in
travel. quandary of identifying the authority from which the
DOJ believed its power to restrain the right to travel
Further, in Leave Division, Office of the Administrative emanates. To begin with, there is no law particularly
Services (OAS) - Office of the Court Administrator providing for the authority of the secretary of justice to
(OCA) vs. Wilma Salvacion P. Heusdens,[87] the Court curtail the exercise of the right to travel, in the interest
enumerated the statutes which specifically provide for of national security, public safety or public health. As it
the impairment of the right to travel, viz.: is, the only ground of the former DOJ Secretary in
restraining the petitioners, at that time, was the
Some of these statutory limitations [to the right to pendency of the preliminary investigation of the Joint
travel] are the following: DOJ-COMELEC Preliminary Investigation Committee
on the complaint for electoral sabotage against
1] The Human Security Act of 2010 or [R.A.] No. 9372. them.[89]
The law restricts the right to travel of an individual
charged with the crime of terrorism even though such To be clear, DOJ Circular No. 41 is not a law. It is not
person is out on bail. a legislative enactment which underwent the scrutiny
and concurrence of lawmakers, and submitted to the
2] The Philippine Passport Act of 1996 or R.A. No. President for approval. It is a mere administrative
8239. Pursuant to said law, the Secretary of Foreign issuance apparently designed to carry out the
Affairs or his authorized consular officer may refuse the provisions of an enabling law which the former DOJ
issuance of, restrict the use of, or withdraw, a passport Secretary believed to be Executive Order (E.O.) No.
of a Filipino citizen. 292, otherwise known as the "Administrative Code of
1987." She opined that DOJ Circular No. 41 was validly
3] The "Anti-Trafficking in Persons Act of 2003" or R.A. issued pursuant to the agency's rule-making powers
No. 9208. Pursuant to the provisions thereof, the [BI], provided in Sections 1 and 3, Book IV, Title III, Chapter
in order to manage migration and curb trafficking in 1 of E.O. No. 292 and Section 50, Chapter 11, Book IV
persons, issued Memorandum Order Radir No. 2011- of the mentioned Code.
011, allowing its Travel Control and Enforcement Unit
to "offload passengers with fraudulent travel Indeed, administrative agencies possess quasi-
documents, doubtful purpose of travel, including legislative or rule-making powers, among others. It is
possible victims of human trafficking" from our ports. the "power to make rules and regulations which results
in delegated legislation that is within the confines of the
4] The Migrant Workers and Overseas Filipinos Act of granting statute and the doctrine of non-delegability
1995 or R. A. No. 8042, as amended by R.A. No. and separability of powers."[90] In the exercise of this
10022. In enforcement of said law, the Philippine power, the rules and regulations that administrative
Overseas Employment Administration (POEA) may agencies promulgate should be within the scope of the
refuse to issue deployment permit to a specific country statutory authority granted by the legislature to the
that effectively prevents our migrant workers to enter administrative agency. It is required that the regulation
such country. be germane to the objects and purposes of the law, and
be not in contradiction to, but in conformity with, the
5] The Act on Violence against Women and Children or standards prescribed by law. They must conform to
R.A. No. 9262. The law restricts movement of an and be consistent with the provisions of the enabling
individual against whom the protection order is statute in order for such rule or regulation to be
intended. valid.[91]

6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. It is, however, important to stress that before there can
Pursuant thereto, the Inter-Country Adoption Board even be a valid administrative issuance, there must
may issue rules restrictive of an adoptee's right to first be a showing that the delegation of legislative
travel "to protect the Filipino child from abuse, power is itself valid. It is valid only if there is a law that
exploitation, trafficking and/or sale or any other (a) is complete in itself, setting forth therein the policy
practice in connection with adoption which is harmful, to be executed, carried out, or implemented by the
detrimental, or prejudicial to the child."[88] delegate; and (b) fixes a standard the limits of which
are sufficiently determinate and determinable to which
In any case, when there is a dilemma between an the delegate must conform in the performance of his
individual claiming the exercise of a constitutional right functions.[92]
vis-a-vis the state's assertion of authority to restrict the
same, any doubt must, at all times, be resolved in favor

81
A painstaking examination of the provisions being A plain reading of the foregoing provisions shows that
relied upon by the former DOJ Secretary will disclose they are mere general provisions designed to lay down
that they do not particularly vest the DOJ the authority the purposes of the enactment and the broad
to issue DOJ Circular No. 41 which effectively restricts enumeration of the powers and functions of the DOJ.
the right to travel through the issuance of WLOs and In no way can they be interpreted as a grant of power
HDOs. Sections 1 and 3, Book IV, Title III, Chapter 1 to curtail a fundamental right as the language of the
of E.O. No. 292 reads: provision itself does not lend to that stretched
construction. To be specific, Section 1 is simply a
Section 1. Declaration of Policy. - It is the declared declaration of policy, the essence of the law, which
policy of the State to provide the government with a provides for the statement of the guiding principle, the
principal law agency which shall be both its legal purpose and the necessity for the enactment. The
counsel and prosecution arm; administer the criminal declaration of policy is most useful in statutory
justice system in accordance with the accepted construction as an aid in the interpretation of the
processes thereof consisting in the investigation of the meaning of the substantive provisions of the law. It is
crimes, prosecution of offenders and administration of preliminary to the substantive portions of the law and
the correctional system; implement the laws on the certainly not the part in which the more significant and
admission and stay of aliens, citizenship, land titling particular mandates are contained. The suggestion of
system, and settlement of land problems involving the former DOJ Secretary that the basis of the issuance
small landowners and member of indigenous cultural of DOJ Circular No. 41 is contained in the declaration
minorities; and provide free legal services to indigent of policy of E.O. No. 292 not only defeats logic but also
members of the society. the basic style of drafting a decent piece of legislation
because it supposes that the authors of the law
xxxx included the operative and substantive provisions in
the declaration of policy when its objective is merely to
Section 3. Powers and Functions. - to accomplish its introduce and highlight the purpose of the law.
mandate, the Department shall have the following
powers and functions: Succinctly, "a declaration of policy contained in a
statute is, like a preamble, not a part of the substantive
(1) portions of the act. Such provisions are available for
Act as principal law agency of the government and as clarification of ambiguous substantive portions of the
legal counsel and representative thereof, whenever so act, but may not be used to create ambiguity in other
required; substantive provisions."[93]

In the same way, Section 3 does not authorize the DOJ

(2) to issue WLOs and HDOs to restrict the constitutional
Investigate the commission of crimes, prosecute right to travel. There is even no mention of the
offenders and administer the probation and correction exigencies stated in the Constitution that will justify the
system; impairment. The provision simply grants the DOJ the
power to investigate the commission of crimes and
prosecute offenders, which are basically the functions
of the agency. However, it does not carry with it the
xxxx power to indiscriminately devise all means it deems
proper in performing its functions without regard to
constitutionally-protected rights. The curtailment of a
(6) fundamental right, which is what DOJ Circular No. 41
Provide immigration and naturalization regulatory does, cannot be read into the mentioned provision of
services and implement the laws governing citizenship the law. Any impairment or restriction in the exercise of
and the admission and stay of aliens; a constitutional right must be clear, categorical and
unambiguous. For the rule is that:

(7) Constitutional and statutory provisions control with

Provide legal services to the national government and respect to what rules and regulations may be
its functionaries, including government-owned and promulgated by an administrative body, as well as with
controlled respect to what fields are subject to regulation by it. It
corporations and their subsidiaries; may not make rules and regulations which are
inconsistent with the provisions of the Constitution or a
statute, particularly the statute it is administering or
(8) which created it, or which are in derogation of, or
Such other functions as may be provided by law. defeat, the purpose of a statute.[94]
(Emphasis supplied)
The DOJ cannot also rely on Section 50, Chapter 11,
Book IV of E.O. No. 292, which simply provides for the

82
types of issuances that administrative agencies, in for their violation, except when expressly authorized by
general, may issue. It does not speak of any authority law;
or power but rather a mere clarification on the nature
of the issuances that may be issued by a secretary or
head of agency. The innocuous provision reads as xxxx
follows:

Section 50. General Classification of Issuances. - The (9)

administrative issuances of Secretaries and heads of Perform such other functions as may be provided by
bureaus, offices and agencies shall be in the form of law. (Emphasis Ours)
circulars or orders.
It is indisputable that the secretaries of government
(1) Circulars shall refer to issuance prescribing agencies have the power to promulgate rules and
policies, rules and regulations, and procedures regulations that will aid in the performance of their
promulgated pursuant to law, applicable to individuals functions. This is adjunct to the power of administrative
and organizations outside the Government and agencies to execute laws and does not require the
designed to supplement provisions of the law or to authority of a law. This is, however, different from the
provide means for carrying them out, including delegated legislative power to promulgate rules of
information relating thereto; and government agencies.

(2) Orders shall refer to issuances directed to particular The considered opinion of Mr. Justice Carpio in
offices, officials, or employees, concerning specific Abakada Guro Party List (formerly AASJS) et al. vs.
matters including assignments, detail and transfer of Hon. Purisima et al.,[95] is illuminating:
personnel, for observance or compliance by all
concerned. (Emphasis Ours) The inherent power of the Executive to adopt rules and
regulations to execute or implement the law is different
In the same manner, Section 7, Chapter 2, Title III, from the delegated legislative power to prescribe rules.
Book IV of E.O. 292 cited in the memorandum of the The inherent power of the Executive to adopt rules to
former DOJ Secretary cannot justify the restriction on execute the law does not require any legislative
the right to travel in DOJ Circular No. 41. The standards for its exercise while the delegated
memorandum particularly made reference to legislative power requires sufficient legislative
Subsections 3, 4 and 9 which state: standards for its exercise.

Section 7. Powers and Functions of the Secretary. - xxxx

The Secretary shall:
Whether the rule-making power by the Executive is a
(1) delegated legislative power or an inherent Executive
Advise the President in issuing executive orders, power depends on the nature of the rule-making power
regulations, proclamations and other issuances, the involved. If the rule-making power is inherently a
promulgation of which is expressly vested by law in the legislative power, such as the power to fix tariff rates,
President relative to matters under the jurisdiction of the rule-making power of the Executive is a delegated
the Department; legislative power. In such event, the delegated power
can be exercised only if sufficient standards are
prescribed in the law delegating the power.
(2)
Establish the policies and standards for the operation If the rules are issued by the President in
of the Department pursuant to the approved programs implementation or execution of self-executory
of governments; constitutional powers vested in the President, the rule-
making power of the President is not a delegated
legislative power, x x x. The rule is that the President
(3) can execute the law without any delegation of power
Promulgate rules and regulations necessary to carry from the legislature. Otherwise, the President becomes
out department objectives, policies, functions, plans, a mere figure-head and not the sole Executive of the
programs and projects; Government.[96]

The questioned circular does not come under the

(4) inherent power of the executive department to adopt
Promulgate administrative issuances necessary for the rules and regulations as clearly the issuance of HDO
efficient administration of the offices under the and WLO is not the DOJ's business. As such, it is a
Secretary and for proper execution of the laws relative compulsory requirement that there be an existing law,
thereto. These issuances shall not prescribe penalties complete and sufficient in itself, conferring the
expressed authority to the concerned agency to

83
promulgate rules. On its own, the DOJ cannot make zealousness in pursuing its mandate is laudable but
rules, its authority being confined to execution of laws. more admirable when tempered by fairness and
This is the import of the terms "when expressly justice. It must constantly be reminded that in the
provided by law" or "as may be provided by law" stated hierarchy of rights, the Bill of Rights takes precedence
in Sections 7(4) and 7(9), Chapter 2, Title III, Book IV over the right of the State to prosecute, and when
of E.O. 292. The DOJ is confined to filling in the gaps weighed against each other, the scales of justice tilt
and the necessary details in carrying into effect the law towards the former.[102] Thus, in Allado vs.
as enacted.[97] Without a clear mandate of an existing Diokno,[103] the Court declared, viz.:
law, an administrative issuance is ultra vires.
The sovereign power has the inherent right to protect
Consistent with the foregoing, there must be an itself and its people from vicious acts which endanger
enabling law from which DOJ Circular No. 41 must the proper administration of justice; hence, the State
derive its life. Unfortunately, all of the supposed has every right to prosecute and punish violators of the
statutory authorities relied upon by the DOJ did not law. This is essential for its self-preservation, nay, its
pass the completeness test and sufficient standard very existence. But this does not confer a license for
test. The DOJ miserably failed to establish the pointless assaults on its citizens. The right of the State
existence of the enabling law that will justify the to prosecute is not a carte blanche for government
issuance of the questioned circular. agents to defy and disregard the rights of its citizens
under the Constitution.[104]
That DOJ Circular No. 41 was intended to aid the
department in realizing its mandate only begs the The DOJ stresses the necessity of the restraint
question. The purpose, no matter how commendable, imposed in DOJ Circular No. 41 in that to allow the
will not obliterate the lack of authority of the DOJ to petitioners, who are under preliminary investigation, to
issue the said issuance. Surely, the DOJ must have the exercise an untrammelled right to travel, especially
best intentions in promulgating DOJ Circular No. 41, when the risk of flight is distinctly high will surely
but the end will not justify the means. To sacrifice impede the efficient and effective operation of the
individual liberties because of a perceived good is justice system. The absence of the petitioners, it
disastrous to democracy. In Association of Small asseverates, would mean that the farthest criminal
Landowners in the Philippines, Inc. vs. Secretary of proceeding they could go would be the filing of the
Agrarian Reform,[98] the Court emphasized: criminal information since they cannot be arraigned in
absentia.[105]
One of the basic principles of the democratic system is
that where the rights of the individual are concerned, The predicament of the DOJ is understandable yet
the end does not justify the means. It is not enough that untenable for relying on grounds other what is
there be a valid objective; it is also necessary that the permitted within the confines of its own power and the
means employed to pursue it be in keeping with the nature of preliminary investigation itself. The Court, in
Constitution. Mere expediency will not excuse Paderanga vs. Drilon,[106] made a clarification on the
constitutional shortcuts. There is no question that not nature of a preliminary investigation, thus:
even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions, A preliminary investigation is x x x an inquiry or
will excuse the bypassing of an individual's rights. It is proceeding for the purpose of determining whether
no exaggeration to say that a person invoking a right there is sufficient ground to engender a well founded
guaranteed under Article III of the Constitution is a belief that a crime cognizable by the Regional Trial
majority of one even as against the rest of the nation Court has been committed and that the respondent is
who would deny him that right.[99] probably guilty thereof, and should be held for trial. x x
x A preliminary investigation is not the occasion for the
The DOJ would however insist that the resulting full and exhaustive display of the parties' evidence; it is
infringement of liberty is merely incidental, together for the presentation of such evidence only as may
with the consequent inconvenience, hardship or loss to engender a well grounded belief that an offense has
the person being subjected to the restriction and that been committed and that the accused is probably guilty
the ultimate objective is to preserve the investigative thereof.[107]
powers of the DOJ and public order.[100] It posits that
the issuance ensures the presence within the country It bears emphasizing that the conduct of a preliminary
of the respondents during the preliminary investigation is an implement of due process which
investigation.[101] Be that as it may, no objective will essentially benefits the accused as it accords an
ever suffice to legitimize desecration of a fundamental opportunity for the presentation of his side with regard
right. To relegate the intrusion as negligible in view of to the accusation.[108]The accused may, however, opt
the supposed gains is to undermine the inviolable to waive his presence in the preliminary investigation.
nature of the protection that the Constitution affords. In any case, whether the accused responds to a
subpoena, the investigating prosecutor shall resolve
Indeed, the DOJ has the power to investigate the the complaint within 10 days after the filing of the same.
commission of crimes and prosecute offenders. Its

84
The point is that in the conduct of a preliminary effectivity. The petitioners never raised any issue as to
investigation, the presence of the accused is not the constitutionality of Section 2 of the PCGG Rules
necessary for the prosecutor to discharge his and Regulations but only questioned the agency's non-
investigatory duties. If the accused chooses to waive observance of the rules particularly on the lifting of
his presence or fails to submit countervailing evidence, HDOs. This is strikingly different from the instant case
that is his own lookout. Ultimately, he shall be bound where the main issue is the constitutionality of the
by the determination of the prosecutor on the presence authority of the DOJ Secretary to issue HDOs under
of probable cause and he cannot claim denial of due DOJ Circular No. 41.
process.
Similarly, the pronouncement is New York does not
The DOJ therefore cannot justify the restraint in the lend support to the respondents' case. In the said case,
liberty of movement imposed by DOJ Circular No. 41 the respondent therein questioned the constitutionality
on the ground that it is necessary to ensure presence of a Florida statute entitled "Uniform Law to Secure the
and attendance in the preliminary investigation of the Attendance of Witnesses from Within or Without a
complaints. There is also no authority of law granting it State in Criminal Proceedings," under which authority
the power to compel the attendance of the subjects of a judge of the Court of General Sessions, New York
a preliminary investigation, pursuant to its investigatory County requested the Circuit Court of Dade County,
powers under E.O. No. 292. Its investigatory power is Florida, where he was at that time, that he be given into
simply inquisitorial and, unfortunately, not broad the custody of New York authorities and be transported
enough to embrace the imposition of restraint on the to New York to testify in a grand jury proceeding. The
liberty of movement. US Supreme Court upheld the constitutionality of the
law, ruling that every citizen, when properly
That there is a risk of flight does not authorize the DOJ summoned, has the obligation to give testimony and
to take the situation upon itself and draft an the same will not amount to violation of the freedom to
administrative issuance to keep the individual within travel but, at most, a mere temporary interference. The
the Philippine jurisdiction so that he may not be able to clear deviation of the instant case from New York is that
evade criminal prosecution and consequent liability. It in the latter case there is a law specifically enacted to
is an arrogation of power it does not have; it is a require the attendance of the respondent to court
usurpation of function that properly belongs to the proceedings to give his testimony, whenever it is
legislature. needed. Also, after the respondent fulfils his obligation
to give testimony, he is absolutely free to return in the
Without a law to justify its action, the issuance of DOJ state where he was found or to his state of residence,
Circular No. 41 is an unauthorized act of the DOJ of at the expense of the requesting state. In contrast, DOJ
empowering itself under the pretext of dire exigency or Circular No. 41 does not have an enabling law where it
urgent necessity. This action runs afoul the separation could have derived its authority to interfere with the
of powers between the three branches of the exercise of the right to travel. Further, the respondent
government and cannot be upheld. Even the Supreme is subjected to continuing restraint in his right to travel
Court, in the exercise of its power to promulgate rules as he is not allowed to go until he is given, if he will
is limited in that the same shall not diminish, increase, ever be given, an ADO by the secretary of justice.
or modify substantive rights.[109] This should have
cautioned the DOJ, which is only one of the many The DOJ cannot issue DOJ Circular No. 41 under the
agencies of the executive branch, to be more guise of police power
scrutinizing in its actions especially when they affect
substantive rights, like the right to travel. The DOJ's reliance on the police power of the state
cannot also be countenanced. Police power pertains to
The DOJ attempts to persuade this Court by citing the "state authority to enact legislation that may
cases wherein the restrictions on the right to travel interfere with personal liberty or property in order to
were found reasonable, i.e. New York v. O'Neill,[110] promote the general welfare."[112] "It may be said to
Kwong vs. Presidential Commission on Good be that inherent and plenary power in the State which
Government[111] and PASEI. enables it to prohibit all things hurtful to the comfort,
safety, and welfare of society."[113] Verily, the exercise
It should be clear at this point that the DOJ cannot rely of this power is primarily lodged with the legislature but
on PASEI to support its position for the reasons stated may be wielded by the President and administrative
earlier in this disquisition. In the same manner, Kant boards, as well as the lawmaking bodies on all
Kwong is not an appropriate authority since the Court municipal levels, including the barangay, by virtue of a
never ruled on the constitutionality of the authority of valid delegation of power.[114]
the PCGG to issue HDOs in the said case. On the
contrary, there was an implied recognition of the It bears noting, however, that police power may only be
validity of the PCGG's Rules and Regulations as the validly exercised if (a) the interests of the public
petitioners therein even referred to its provisions to generally, as distinguished from those of a particular
challenge the PCGG's refusal to lift the HDOs issued class, require the interference of the State, and (b) the
against them despite the lapse of the period of its means employed are reasonably necessary to the

85
attainment of the object sought to be accomplished and
not unduly oppressive upon individuals.[115] Apparently, the DOJ's predicament which led to the
issuance of DOJ Circular No. 41 was the supposed
On its own, the DOJ cannot wield police power since inadequacy of the issuances of this Court pertaining to
the authority pertains to Congress. Even if it claims to HDOs, the more pertinent of which is SC Circular No.
be exercising the same as the alter ego of the 39-97.[119] It is the DOJ's impression that with the
President, it must first establish the presence of a silence of the circular with regard to the issuance of
definite legislative enactment evidencing the HDOs in cases falling within the jurisdiction of the MTC
delegation of power from its principal. This, the DOJ and those still pending investigation, it can take the
failed to do. There is likewise no showing that the initiative in filling in the deficiency. It is doubtful,
curtailment of the right to travel imposed by DOJ however, that the DOJ Secretary may undertake such
Circular No. 41 was reasonably necessary in order for action since the issuance of HDOs is an exercise of this
it to perform its investigatory duties. Court's inherent power "to preserve and to maintain the
effectiveness of its jurisdiction over the case and the
In any case, the exercise of police power, to be valid, person of the accused."[120] It is an exercise of judicial
must be reasonable and not repugnant to the power which belongs to the Court alone, and which the
Constitution.[116]It must never be utilized to espouse DOJ, even as the principal law agency of the
actions that violate the Constitution. Any act, however government, does not have the authority to wield.
noble its intentions, is void if it violates the
Constitution.[117] In the clear language of the Moreover, the silence of the circular on the matters
Constitution, it is only in the interest of national security, which are being addressed by DOJ Circular No. 41 is
public safety and public health that the right to travel not without good reasons. Circular No. 39-97 was
may be impaired. None one of the mentioned specifically issued to avoid indiscriminate issuance of
circumstances was invoked by the DOJ as its premise HDOs resulting to the inconvenience of the parties
for the promulgation of DOJ Circular No. 41. affected as the same could amount to an infringement
on the right and liberty of an individual to travel.
DOJ Circular No. 41 transcends constitutional Contrary to the understanding of the DOJ, the Court
limitations intentionally held that the issuance of HDOs shall
pertain only to criminal cases within the exclusive
Apart from lack of legal basis, DOJ Circular No. 41 also jurisdiction of the RTC, to the exclusion of criminal
suffers from other serious infirmities that render it cases falling within the jurisdiction of the MTC and all
invalid. The apparent vagueness of the circular as to other cases. The intention was made clear with the use
the distinction between a HDO and WLO is violative of of the term "only." The reason lies in seeking
the due process clause. An act that is vague "violates equilibrium between the state's interest over the
due process for failure to accord persons, especially prosecution of the case considering the gravity of the
the parties targeted by it, fair notice of the conduct to offense involved and the individual's exercise of his
avoid and leaves law enforcers unbridled discretion in right to travel. Thus, the circular permits the intrusion
carrying out its provisions and becomes an arbitrary on the right to travel only when the criminal case filed
flexing of the Government muscle."[118] Here, the against the individual is within the exclusive jurisdiction
distinction is significant as it will inform the respondents of the RTC, or those that pertains to more serious
of the grounds, effects and the measures they may crimes or offenses that are punishable with
take to contest the issuance against them. Verily, there imprisonment of more than six years. The exclusion of
must be a standard by which a HDO or WLO may be criminal cases within the jurisdiction of the MTC is
issued, particularly against those whose cases are still justified by the fact that they pertain to less serious
under preliminary investigation, since at that stage offenses which is not commensurate with the
there is yet no criminal information against them which curtailment of a fundamental right. Much less is the
could have warranted the restraint. reason to impose restraint on the right to travel of
respondents of criminal cases still pending
Further, a reading of the introductory provisions of DOJ investigation since at that stage no information has yet
Circular No. 41 shows that it emanates from the DOJ's been filed in court against them. It is for these reasons
assumption of powers that is not actually conferred to that Circular No. 39-97 mandated that FIDO may only
it. In one of the whereas clauses of the issuance, it was be issued in criminal cases filed with the RTC and
stated, thus: withheld the same power from the MTC.

WHEREAS, while several Supreme Court circulars, Remarkably, in DOJ Circular No. 41, the DOJ
issued through the Office of the Court Administrator, Secretary went overboard by assuming powers which
clearly state that "[HDO] shall be issued only in criminal have been withheld from the lower courts in Circular
cases within the exclusive jurisdiction of the [RTCs]," No. 39-97. In the questioned circular, the DOJ
said circulars are, however, silent with respect to cases Secretary may issue HDO against the accused in
falling within the jurisdiction of courts below the RTC as criminal cases within the jurisdiction of the MTC[121]
well as those pending determination by government and against defendants, respondents and witnesses in
prosecution offices; labor or administrative cases,[122] no matter how

86
unwilling they may be. He may also issue WLO against innocuous appendage. It secures the individual the
accused in criminal cases pending before the absolute and free exercise of his right to travel at all
RTC,[123] therefore making himself in equal footing times unless the more paramount considerations of
with the RTC, which is authorized by law to issue HDO national security, public safety and public health call for
in the same instance. The DOJ Secretary may likewise a temporary interference, but always under the
issue WLO against respondents in criminal cases authority of a law.
pending preliminary investigation, petition for review or
motion for reconsideration before the DOJ.[124] More The subject WLOs and the restraint on the right to
striking is the authority of the DOJ Secretary to issue a travel.
HDO or WLO motu proprio, even in the absence of the
grounds stated in the issuance if he deems necessary In the subject WLOs, the illegal restraint on the right to
in the interest of national security, public safety or travel was subtly incorporated in the wordings thereof.
public health.[125] For better illustration, the said WLOs are hereby
reproduced as follows:
It bears noting as well that the effect of the HDO and
WLO in DOJ Circular No. 41 is too obtrusive as it WLO No. ASM-11-237[127]
remains effective even after the lapse of its validity (Watchlist)
period as long as the DOJ Secretary does not approve
the lifting or cancellation of the same. Thus, the In re: GLORIA M. MACAPAGAL-ARROYO
respondent continually suffers the restraint in his x ------------------------------------- x
mobility as he awaits a favorable indorsement of the ORDER
government agency that requested for the issuance of
the HDO or WLO and the affirmation of the DOJ On 09 August 2011, Hon. Leila M. Dc Lima, Secretary
Secretary even as the HDO or WLO against him had of the Department of Justice issued an order docketed
become functus officio with its expiration. as Watchlist Order No. 2011-422 directing the Bureau
of Immigration to include the name GLORIA M.
It did not also escape the attention of the Court that the MACAPAGAL-ARROYO in the Bureau's Watchlist.
DOJ Secretary has authorized himself to permit a
person subject of HDO or WLO to travel through the It appears that GLORIA M. MACAPAGAL-ARROYO is
issuance of an ADO upon showing of "exceptional the subject of an investigation by the Department of
reasons" to grant the same. The grant, however, is Justice in connection with the following cases:
entirely dependent on the sole discretion of the DOJ
Secretary based on his assessment of the grounds Docket No.
stated in the application. Title of the Case
Offense/s Charged
The constitutional violations of DOJ Circular No. 41 are XVI-INV-10H-00251
too gross to brush aside particularly its assumption that Danilo A. Lihaylihay vs. Gloria Macapagal-Arroyo
the DOJ Secretary's determination of the necessity of Plunder
the issuance of HDO or WLO can take the place of a XVIX-INV-11D-00170
law that authorizes the restraint in the right to travel Francisco I. Chavez vs. Gloria Macapagl-Arroyo
only in the interest of national security, public safety or Plunder, Malversation and/or Illegal use of OWWA
public health. The DOJ Secretary has recognized Funds, Graft and Corruption, Violation of The Omnibus
himself as the sole authority in the issuance and Election Code, Violation of the Code of Ethical
cancellation of HDO or WLO and in the determination Standards for Public Officials, and Qualified Theft
of the sufficiency of the grounds for an ADO. The XVI-INV-11F-00238
consequence is that the exercise of the right to travel Francisco I. Chavez vs. Gloria Macapagl-Arroyo
of persons subject of preliminary investigation or Jocelyn "Joc-Joc" Bolante, Ibarra Poliquit et al.
criminal cases in court is indiscriminately subjected to Plunder, Malversation and/or Illegal use of Public
the discretion of the DOJ Secretary. Funds, Graft and Corruption, Violation of The Omnibus
Election Code, Violation of the Code of Ethical
This is precisely the situation that the 1987 Constitution Standards for Public Officials, and Qualified Theft
seeks to avoid—for an executive officer to impose
restriction or exercise discretion that unreasonably Based on the foregoing and pursuant to Department of
impair an individual's right to travel- thus, the addition Justice Circular No. 41 (Consolidated Rules and
of the phrase, "as maybe provided by law" in Section Regulations Governing the Issuance and
6, Article III thereof. In Silverio, the Court underscored Implementation of Hold Departure Orders, Watchlist
that this phraseology in the 1987 Constitution was a Orders, and Allow Departure Orders) dated 25 May
reaction to the ban on international travel imposed 2010, we order the inclusion of the name GLORIA M.
under the previous regime when there was a Travel MACAPAGAL-ARROYO in the Watchlist.
Processing Center, which issued certificates of
eligibility to travel upon application of an interested This watchlist shall be valid for sixty (60) days unless
party.[126] The qualifying phrase is not a mere sooner revoked or extended.

87
The Airport Operation Division and Immigration __________________________________
Regulation Division Chiefs shall implement this Order.
Watchlist Order (WLO)
Notify the Computer Section. No. 2011-573[129]

SO ORDERED. IN RE: Issuance of WLO against BENJAMIN ABALOS.

SR. et al.
09 August 2011 (Emphasis ours) ORDER
__________________________________
Pursuant to Section 2(c) of Department Circular No. 41
Watchlist Order No. 2011-422[128] dated May 25, 2010 (Consolidated Rules and
Regulations Governing the Issuance and
In re: Issuance of Watchlist Implementation of Hold Departure Orders, Watchlist
Order against MA. GLORIA M. MACAPAGAL- Orders, and Allow Departure Orders), after careful
ARROYO evaluation, finds the Application for the Issuance of
AMENDED ORDER WLO against the following meritorious;

Whereas, Ma. Gloria M. Macapagal-Arroyo is the xxxx

subject of an investigation by this Department in
connection with the following cases: 12. MA. GLORIA M.MACAPAGAL-ARROYO
Address: Room MB-2, House of Representatives
Docket No. Quezon City
Title of the Case
Offense/s Charged xxxx
XVI-INV-10H-00251
Danilo A. Lihaylihay versus Gloria Macapagal-Arroyo Ground for WLO Issuance:
Plunder
XVIX-INV-11D-00170 Pendency of the case, entitled "DOJ-COMELEC Fact
Francisco I, Chavez versus Gloria Macapagal-Arroyo Finding Committee v. Benjamin Abalos Sr., el al." for
Plunder, Malversation and/or Illegal Use of OWWA Electoral Sabotage/Omnibus Election Code docketed
Funds, Graft and Corruption, Violation of the Omnibus as DOJ-COMELEC Case No. 001-2011
Election Code, Violation of the Code of Ethical
Standards for Public Officials, and Qualified Theft 1. MA. GLORIA M. MACAPAGAL-ARROYO
XVI-INV-11F-00238 Address: Room MB-2, House of Representatives
Francisco I. Chavez versus Gloria Macapagal-Arroyo Quezon City
Jocelyn "Joc-Joc" Bolante, Ibarra Poliquit et al.
Plunder, Malversation and/or Illegal Use of Public 2. JOSE MIGUEL TUASON ARROYO
Funds, Graft and Corruption, Violation of the Omnibus Address: L.T.A. Bldg. 118 Perea St. Makati City
Election Code, Violation of the Code of Ethical
Standards for Public Officials, and Qualified Theft xxxx

Pursuant to Section 2(c) of Department Circular (D.C.) Ground for WLO Issuance:
No. 41 dated May 25, 2010 (Consolidated Rules and
Regulations Governing the Issuance and Pendency of the case, entitled "Aquilino Pimentel III v.
Implementation of Hold Departure Orders, Watchlist Gloria Macapagal-Arroyo, et Al." for Electoral
Orders, and Allow Departure Orders), the undersigned Sabotage docketed as DOJ-COMELEC Case No. 002-
hereby motu proprio issues a Watchlist Order against 2011.
Ma. Gloria M. Macapagal-Arroyo.
Accordingly, the Commissioner of Immigration, Manila,
Accordingly, the Commissioner of Immigration, Manila, is hereby-ordered to INCLUDE in the Bureau of
is hereby ordered to INCLUDE in the Bureau of Immigration's Watchlist, the names of the above-
Immigration's Watchlist the name of Ma. Gloria M. named persons.
Macapagal-Arroyo.
This Order is valid for a period of sixty (60) days from
Pursuant to Section 4 of D.C. No. 41, this Order is valid the date of its issuance unless sooner terminated or
for a period of sixty (60) days from issuance unless otherwise extended.
sooner terminated or extended.
SO ORDERED.
SO ORDERED.
On the other hand, HDO No. 2011-64 issued against
City of Manila, September 6, 2011. (Emphasis ours) the petitioners in G. R. No. 197930 pertinently states:

88
 Malversation, Violation of the Anti-Graft and Corrupt
Hold Departure Order (HDO) Practices Act, Plunder
No. 2011-64[130] Details of the Case:
Pending before the National Prosecution Service,
In re: Issuance of HDO against EFRAIM C. GENUINO, Department of Justice
ET AL.
(I.S. No. XVI-INV-11G-00248)
x ------------------------------------- x

ORDER Name:
ERWIN F. GENUINO
After a careful evaluation of the application, including Nationality:
the documents attached thereto, for the issuance of Filipino
Hold Departure Order (HDO) against the above-named Last known address:
persons filed pursuant to this Department's Circular No. 5 J.P. Rizal Extension, COMEMBO, Makati City
(D.C.) No. 41 (Consolidated Rules and Regulations Ground for HDO Issuance:
Governing the Issuance and Implementation of Hold Malversation, Violation of the Anti-Graft and Corrupt
Departure Orders, Watchlist Orders, and Allow Practices Act, Plunder
Departure Orders) dated May 25, 2010, we find the Details of the Case:
application meritorious. Pending before the National Prosecution Service,
Department of Justice (NTS Docket No. XV-INV-11F-
Accordingly, the Commissioner of Immigration, Manila, 00229
is hereby ordered to INCLUDE in the Bureau of
Immigration's Watchlist the names of EFRAIM C. Pending before the National Prosecution Service,
GENUINO, SHERYLL F. GENUINO-SEE, ERWIN F. Department of Justice
GENUINO, RAFAEL "BUTCH" A. FRANCISCO,
EDWARD "DODIE" F. KING, RENE C. FIGUEROA, (I.S. No. XVI-INV-11G-00248)
ATTY, CARLOS R. BAUTISTA, JR., EMILIO "BOYET" xxxx
B. MARCELO, RODOLFO SORIANO, JR., AND
JOHNNY G. TAN.
Pursuant to Section 1 of D.C. No. 41, this Order is valid
Name: for a period of five (5) years unless sooner terminated.
EFRAIM C. GENUINO
Nationality: SO ORDERED. (Emphasis ours)
Filipino
Last known address: On its face, the language of the foregoing issuances
No. 42 Lapu Lapu Street, Magallanes Village, Makati does not contain an explicit restraint on the right to
City travel. The issuances seemed to be a mere directive
Ground for HDO Issuance: from to the BI officials to include the named individuals
Malversation, Violation of the Anti-Graft and Corrupt in the watchlist of the agency. Noticeably, however, all
Practices Act, Plunder of the WLOs contained a common reference to DOJ
Details of the Case: Circular No. 41, where the authority to issue the same
Pending before the National Prosecution Service, apparently emanates, and from which the restriction on
Department of Justice (NPS Docket No. XV-INV-11F- the right to travel can be traced. Section 5 thereof
00229 provides, thus:

Pending before the Office of the Ombudsman Section 5. HDO/WLO Lifting or Cancellation - In the
lifting or cancellation of the HDO/WLO issued pursuant
(Case No. CPL-C-11-1297) to this Circular, the following shall apply:

Pending before the National Prosecution Service, (a)

Department of Justice
The HDO may be lifted or cancelled under any of the
(I.S. No. XVI-INV-11G-00248) following grounds:
Name:
SHERYLL F. GENUINO-SEE
Nationality:
Filipino
Last known address: 1.
No. 32-a Paseo Parkview, Makati City When the validity period of the HDO as provided for in
Ground for HDO Issuance: the preceding section has already expired;

89
2.
When the accused subject of the HDO has been Section 7. Allow Departure Order (ADO) - Any person
allowed to leave the country during the pendency of the subject of HDO/WLO issued pursuant to this Circular
case, or has been acquitted of the charge, or the case who intends, for some exceptional reasons, to leave
in which the warrant/order of arrest was issued has the country may, upon application under oath with the
been dismissed or the warrant/order of arrest has been Secretary of Justice, be issued an ADO.
recalled;
The ADO may be issued upon submission of the
3. following requirements:
When the civil or labor case or case before an
administrative agency of the government wherein the (a) Affidavit stating clearly the purpose, inclusive period
presence of the alien subject of the HDO/WLO has of the date of travel, and containing an undertaking to
been dismissed by the court or by appropriate immediately report to the DOJ upon return; and
government agency, or the alien has been discharged
as a witness therein, or the alien has been allowed to (b) Authority to travel or travel clearance from the court
leave the country; or appropriate government office where the case upon
which the issued HDO/WLO was based is pending, or
from the investigating prosecutor in charge of the
subject case.

By requiring an ADO before the subject of a HDO or

WLO is allowed to leave the country, the only plausible
(b) conclusion that can be made is that its mere issuance
operates as a restraint on the right to travel. To make
The WLO may be lifted or cancelled under any of the it even more difficult, the individual will need to cite an
following grounds: exceptional reason to justify the granting of an ADO.

The WLO also does not bear a significant distinction

from a HDO, thereby giving the impression that they
are one and the same or, at the very least,
1. complementary such that whatever is not covered in
When the validity period of the WLO as provided for in Section 1,[131] which pertains to the issuance of HDO,
the preceding section has already expired; can conveniently fall under Section 2,[132] which calls
for the issuance of WLO. In any case, there is an
2. identical provision in DOJ Circular No. 41 which
When the accused subject of the WLO has been authorizes the Secretary of Justice to issue a HDO or
allowed by the court to leave the country during the WLO against anyone, motu proprio, in the interest of
pendency of the case, or has been acquitted of the national security, public safety or public health. With
charge; and this all-encompassing provision, there is nothing that
can prevent the Secretary of Justice to prevent anyone
3. from leaving the country under the guise of national
When the preliminary investigation is terminated, or security, public safety or public health.
when the petition for review, or motion for
reconsideration has been denied and/or dismissed. The exceptions to the right to travel are limited to those
stated in Section 6, Article III of the Constitution

The DOJ argues that Section 6, Article III of the

xxxx Constitution is not an exclusive enumeration of the
instances wherein the right to travel may be validly
That the subject of a HDO or WLO suffers restriction in impaired.[133] It cites that this Court has its own
the right to travel is implied in the fact that under administrative issuances restricting travel of its
Sections 5(a) (2) and 5(b) (2), the concerned individual employees and that even lower courts may issue HDO
had to seek permission to leave the country from the even on grounds/outside of what is stated in the
court during the pendency of the case against him. Constitution.[134]
Further, in 5 (b) (3), he may not leave unless the
preliminary investigation of the case in which he is The argument fails to persuade.
involved has been terminated.
It bears reiterating that the power to issue HDO is
In the same manner, it is apparent in Section 7 of the inherent to the courts. The courts may issue a HDO
same circular that the subject of a HDO or WLO cannot against an accused in a criminal case so that he may
leave the country unless he obtains an ADO. The said be dealt with in accordance with law.[135] It does not
section reads as follows: require legislative conferment or constitutional

90
recognition; it co-exists with the grant of judicial power.
In Defensor-Santiago vs. Vasquez,[136] the Court OCA Circular No. 49-2003 is therefore not a restriction,
declared, thus: but more properly, a regulation of the employee's leave
for purpose of foreign travel which is necessary for the
Courts possess certain inherent powers which may be orderly administration ofjustice. To "restrict" is to
said to be implied from a general grant of jurisdiction, restrain or prohibit a person from doing something; to
in addition to those expressly conferred on them. "regulate" is to govern or direct according to rule.[140]
These inherent powers are such powers as are This regulation comes as a necessary consequence of
necessary for the ordinary and efficient exercise of the individual's employment in the judiciary, as part and
jurisdiction; or essential to the existence, dignity and parcel of his contract in joining the institution. For, if the
functions of the court, as well as to the due members of the judiciary are at liberty to go on leave
administration of justice; or are directly appropriate, any time, the dispensation ofjustice will be seriously
convenient and suitable to the execution of their hampered. Short of key personnel, the courts cannot
granted powers; and include the power to maintain the properly function in the midst of the intricacies in the
court's jurisdiction and render it effective in behalf of administration of justice. At any rate, the concerned
the litigants.[137] employee is not prevented from pursuing his travel
plans without complying with OCA Circular No. 49-
The inherent powers of the courts are essential in 2003 but he must be ready to suffer the consequences
upholding its integrity and largely beneficial in keeping of his non-compliance.
the people's faith in the institution by ensuring that it
has the power and the means to enforce its jurisdiction. The same ratiocination can be said of the regulations
of the Civil Service Commission with respect to the
As regards the power of the courts to regulate foreign requirement for leave application of employees in the
travels, the Court, in Leave Division, explained: government service seeking to travel abroad. The
Omnibus Rules Implementing Book V of E.O. No. 292
With respect to the power of the Court, Section 5 (6), states the leave privileges and availment guidelines for
Article VIII of the 1987 Constitution provides that the all government employees, except those who are
Supreme Court shall have administrative supervision covered by special laws. The filing of application for
over all courts and the personnel thereof. This leave is required for purposes of orderly personnel
provision empowers the Court to oversee all matters administration. In pursuing foreign travel plans, a
relating to the effective supervision and management government employee must secure an approved leave
of all courts and personnel under it. Recognizing this of absence from the head of his agency before leaving
mandate, Memorandum Circular No. 26 of the Office of for abroad.
the President, dated July 31, 1986, considers the
Supreme Court exempt and with authority to To be particular, E.O. No. 6 dated March 12, 1986, as
promulgate its own rules and regulations on foreign amended by Memorandum Order (MO) No. 26 dated
travels. Thus, the Court came out with OCA Circular July 31, 1986, provided the procedure in the disposition
No. 49-2003 (B). of requests of government officials and employees for
authority to travel abroad. The provisions of this
Where a person joins the Judiciary or the government issuance were later clarified in the Memorandum
in general, he or she swears to faithfully adhere to, and Circular No. 18 issued on October 27, 1992.
abide with, the law and the corresponding office rules Thereafter, on September 1, 2005, E.O. No. 459 was
and regulations. These rules and regulations, to which issued, streamlining the procedure in the disposition of
one submits himself or herself, have been issued to requests of government officials and employees for
guide the government officers and employees in the authority to travel abroad. Section 2 thereof states:
efficient performance of their obligations. When one
becomes a public servant, he or she assumes certain Section 2. Subject to Section 5 hereof, all other
duties with their concomitant responsibilities and gives government officials and employees seeking authority
up some rights like the absolute right to travel so that to travel abroad shall henceforth seek approval from
public service would not be prejudiced.[138] their respective heads of agencies, regardless of the
length of their travel and the number of delegates
It is therefore by virtue of its administrative supervision concerned. For the purpose of this paragraph, heads
over all courts and personnel that this Court came out of agencies refer to the Department Secretaries or their
with OCA Circular No. 49-2003, which provided for the equivalents. (Emphasis ours)
guidelines that must be observed by employees of the
judiciary seeking to travel abroad. Specifically, they are The regulation of the foreign travels of government
required to secure a leave of absence for the purpose employees was deemed necessary "to promote
of foreign travel from this Court through the Chief efficiency and economy in the government
Justice and the Chairmen of the Divisions, or from the service."[141] The objective was clearly administrative
Office of the Court Administrator, as the case maybe. efficiency so that government employees will continue
This is "to ensure management of court dockets and to to render public services unless they are given
avoid disruption in the administration of justice."[139] approval to take a leave of absence in which case they

91
can freely exercise their right to travel. It should never the legislature to address this problem in the form of a
be interpreted as an exception to the right to travel legislation that will identify permissible intrusions in the
since the government employee during his approved right to travel. Unless this is done, the government will
leave of absence can travel wherever he wants, locally continuously be confronted with questions on the
or abroad. This is no different from the leave legality of their actions to the detriment of the
application requirements for employees in private implementation of government processes and
companies. realization of its objectives.

The point is that the DOJ may not justify its imposition In the meantime, the DOJ may remedy its quandary by
of restriction on the right to travel of the subjects of DOJ exercising more vigilance and efficiency in the
Circular No. 41 by resorting to an analogy. Contrary to performance of its duties. This can be accomplished by
its claim, it does not have inherent power to issue HDO, expediency in the assessment of complaints filed
unlike the courts, or to restrict the right to travel in before its office and in the prompt filing of information
anyway. It is limited to the powers expressly granted to in court should there be an affirmative finding of
it by law and may not extend the same on its own probable cause so that it may legally request for the
accord or by any skewed interpretation of its authority. issuance of HDO and hold the accused for trial. Clearly,
the solution lies not in resorting to constitutional
The key is legislative enactment shortcuts but in an efficient and effective performance
of its prosecutorial duties.
The Court recognizes the predicament which
compelled the DOJ to issue the questioned circular but The Court understands the dilemma of the government
the solution does not lie in taking constitutional on the effect of the declaration of unconstitutionality of
shortcuts. Remember that the Constitution "is the DOJ Circular No. 41, considering the real possibility
fundamental and paramount law of the nation to which that it may be utilized by suspected criminals,
all other laws must conform and in accordance with especially the affluent ones, to take the opportunity to
which all private rights are determined and all public immediately leave the country. While this is a legitimate
authority administered."[142] Any law or issuance, concern, it bears stressing that the government is not
therefore, must not contradict the language of the completely powerless or incapable of preventing their
fundamental law of the land; otherwise, it shall be departure or having them answer charges that may be
struck down for being unconstitutional. subsequently filed against them. In his Separate
Concurring Opinion, Mr. Justice Carpio, pointed out
Consistent with the foregoing, the DOJ may not that Republic Act No. (R.A.) 8239, otherwise known as
promulgate rules that have a negative impact on the Philippine Passport Act of 1996, explicitly grants
constitutionally-protected rights without the authority of the Secretary of Foreign Affairs or any of the authorized
a valid law. Even with the predicament of preventing consular officers the authority to issue verify, restrict,
the proliferation of crimes and evasion of criminal cancel or refuse the issuance of a passport to a citizen
responsibility, it may not overstep constitutional under the circumstances mentioned in Section 4[144]
boundaries and skirt the prescribed legal processes. thereof. Mr. Justice Tijam, on the other hand,
mentioned Memorandum Circular No. 036, which was
That the subjects of DOJ Circular No. 41 are individuals issued pursuant to R.A. No. 9208 or the Anti-Trafficking
who may have committed a wrong against the state in Persons Act of 2003, as amended by R.A. No. 10364
does not warrant the intrusion in the enjoyment of their or the Expanded Anti-Trafficking in Persons Acts of
basic rights. They are nonetheless innocent individuals 2012, which authorizes the BI to hold the departure of
and suspicions on their guilt do not confer them lesser suspected traffickers or trafficked individuals. He also
privileges to enjoy. As emphatically pronounced in noted that the Commissioner of BI has the authority to
Secretary of National Defense vs. Manalo, et al.,[143] issue a HDO against a foreigner subject of deportation
the constitution is an overarching sky that covers all in proceedings in order to ensure his appearance therein.
its protection. It affords protection to citizens without Similarly, the proposal of Mr. Justice Velasco for the
distinction. Even the most despicable person deserves adoption of new set of rules which will allow the
the same respect in the enjoyment of his rights as the issuance of a precautionary warrant of arrest offers a
upright and abiding. promising solution to this quandary. This, the Court can
do in recognition of the fact that laws and rules of
Let it also be emphasized that this Court fully realizes procedure should evolve as the present circumstances
the dilemma of the DOJ. The resolution of the issues in require.
the instant petitions was partly aimed at encouraging
the legislature to do its part and enact the necessary Contempt charge against respondent De Lima
law so that the DOJ may be able to pursue its
prosecutorial duties without trampling on It is well to remember that on November 18, 2011, a
constitutionally-protected rights. Without a valid Resolution[145] was issued requiring De Lima to show
legislation, the DOJ's actions will perpetually be met cause why she should not be disciplinarily dealt or be
with legal hurdles to the detriment of the due held in contempt for failure to comply with the TRO
administration of justice. The challenge therefore is for issued by this Court.

92
 each House of Congress with one (1) vote each is
In view, however, of the complexity of the facts and sanctioned by the Constitution.
corresponding full discussion that it rightfully deserves,
the Court finds it more fitting to address the same in a On July 17, 2012, the Court handed down the assailed
separate proceeding. It is in the interest of fairness that subject decision, disposing the same in the following
there be a complete and exhaustive discussion on the manner:
matter since it entails the imposition of penalty that
bears upon the fitness of the respondent as a member WHEREFORE, the petition is GRANTED. The current
of the legal profession. The Court, therefore, finds it numerical composition of the Judicial and Bar Council
proper to deliberate and resolve the charge of is declared UNCONSTITUTIONAL. The Judicial and
contempt against De Lima in a separate proceeding Bar Council is hereby enjoined to reconstitute itself so
that could accommodate a full opportunity for her to that only one (1) member of Congress will sit as a
present her case and provide a better occasion for the representative in its proceedings, in accordance with
Court to deliberate on her alleged disobedience to a Section 8(1), Article VIII of the 1987 Constitution.
lawful order.
This disposition is immediately executory.
WHEREFORE, in view of the foregoing disquisition,
Department of Justice Circular No. 41 is hereby SO ORDERED.
declared UNCONSTITUTIONAL. All issuances which
were released pursuant thereto are hereby declared On July 31, 2012, following respondents’ motion for
NULL and VOID. reconsideration and with due regard to Senate
Resolution Nos. 111,3 112,4 113,5 and 114,6the Court
The Clerk of Court is hereby DIRECTED to set the subject motion for oral arguments on August 2,
REDOCKET the Resolution of the Court dated 2012.7 On August 3, 2012, the Court discussed the
November 28, 2011, which required respondent Leila merits of the arguments and agreed, in the meantime,
De Lima to show cause why she should not be cited in to suspend the effects of the second paragraph of the
contempt, as a separate petition. dispositive portion of the July 17, 2012 Decision which
decreed that it was immediately executory. The
SO ORDERED. decretal portion of the August 3, 2012 Resolution8
reads:
CHAVEZ VS JBC (2013)
WHEREFORE, the parties are hereby directed to
FRANCISCO I. CHAVEZ, Petitioner, submit their respective MEMORANDA within ten (10)
vs. days from notice. Until further orders, the Court hereby
JUDICIALAND BAR COUNCIL, SEN. FRANCIS SUSPENDS the effect of the second paragraph of the
JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS, dispositive portion of the Court’s July 17, 2012
JR., Respondents. Decision, which reads: “This disposition is immediately
G.R. NO. 202242 | 2013-04-16 executory.”9

ENBANC Pursuant to the same resolution, petitioner and

respondents filed their respective memoranda.10
RESOLUTION
Brief Statement of the Antecedents
MENDOZA, J.:
In this disposition, it bears reiterating that from the birth
This resolves the motion for Reconsideration 1 filed by of the Philippine Republic, the exercise of appointing
the Office of the Solicitor General (OSG) on behalf of members of the Judiciary has always been the
the respondents, Senator Francis Joseph G. Escudero exclusive prerogative of the executive and legislative
and Congressman Niel C. Tupas, Jr. (respondents), branches of the government. Like their progenitor of
duly opposed2 by the petitioner, former Solicitor American origins, both the Malolos Constitution11 and
General Francisco I. Chavez (petitioner). the 1935 Constitution12 vested the power to appoint
the members of the Judiciary in the President, subject
By way of recapitulation, the present action stemmed to confirmation by the Commission on Appointments. It
from the unexpected departure of former Chief Justice was during these times that the country became
Renato C. Corona on May 29, 2012, and the witness to the deplorable practice of aspirants seeking
nomination of petitioner, as his potential successor. In confirmation of their appointment in the Judiciary to
his initiatory pleading, petitioner asked the Court to ingratiate themselves with the members of the
determine 1] whether the first paragraph of Section 8, legislative body.13
Article VIII of the 1987 Constitution allows more than
one (1) member of Congress to sit in the JBC; and 2] if Then, under the 1973 Constitution,14 with the fusion of
the practice of having two (2) representatives from the executive and legislative powers in one body, the
appointment of judges and justices ceased to be

93
subject of scrutiny by another body. The power
became exclusive and absolute to the Executive, While the Court may find some sense in the reasoning
subject only to the condition that the appointees must in amplification of the third and fourth grounds listed by
have all the qualifications and none of the respondents, still, it finds itself unable to reverse the
disqualifications. assailed decision on the principal issues covered by
the first and second grounds for lack of merit.
Prompted by the clamor to rid the process of Significantly, the conclusion arrived at, with respect to
appointments to the Judiciary of the evils of political the first and second grounds, carries greater bearing in
pressure and partisan activities,15 the members of the the final resolution of this case.
Constitutional Commission saw it wise to create a
separate, competent and independent body to As these two issues are interrelated, the Court shall
recommend nominees to the President. Thus, it discuss them jointly.
conceived of a body, representative of all the
stakeholders in the judicial appointment process, and Ruling of the Court
called it the Judicial and Bar Council (JBC). The
Framers carefully worded Section 8, Article VIII of the The Constitution evinces the direct action of the Filipino
1987 Constitution in this wise: people by which the fundamental powers of
government are established, limited and defined and
Section 8. (1) A Judicial and Bar Council is hereby by which those powers are distributed among the
created under the supervision of the Supreme Court several departments for their safe and useful exercise
composed of the Chief Justice as ex officio Chairman, for the benefit of the body politic.19 The Framers
the Secretary of Justice, and a representative of the reposed their wisdom and vision on one suprema lex
Congress as ex officio Members, a representative of to be the ultimate expression of the principles and the
the Integrated Bar, a professor of law, a retired Member framework upon which government and society were
of the Supreme Court, and a representative of the to operate. Thus, in the interpretation of the
private sector. constitutional provisions, the Court firmly relies on the
basic postulate that the Framers mean what they say.
From the moment of the creation of the JBC, Congress The language used in the Constitution must be taken
designated one (1) representative to sit in the JBC to to have been deliberately chosen for a definite
act as one of the ex-officio members.16 Pursuant to the purpose. Every word employed in the Constitution
constitutional provision that Congress is entitled to one must be interpreted to exude its deliberate intent which
(1) representative, each House sent a representative must be maintained inviolate against disobedience and
to the JBC, not defiance. What the Constitution clearly says, according
together, but alternately or by rotation. to its text, compels acceptance and bars modification
even by the branch tasked to interpret it.
In 1994, the seven-member composition of the JBC
was substantially altered. An eighth member was For this reason, the Court cannot accede to the
added to the JBC as the two (2) representatives from argument of plain oversight in order to justify
Congress began sitting simultaneously in the JBC, with constitutional construction. As stated in the July 17,
each having one-half (1/2) of a vote.17 2012 Decision, in opting to use the singular letter “a” to
describe “representative of Congress,” the Filipino
In 2001, the JBC En Banc decided to allow the people through the Framers intended that Congress be
representatives from the Senate and the House of entitled to only one (1) seat in the JBC. Had the
Representatives one full vote each.18 It has been the intention been otherwise, the Constitution could have,
situation since then. in no uncertain terms, so provided, as can be read in
its other provisions.
Grounds relied upon by Respondents
A reading of the 1987 Constitution would reveal that
Through the subject motion, respondents pray that the several provisions were indeed adjusted as to be in
Court reconsider its decision and dismiss the petition tune with the shift to bicameralism. One example is
on the following grounds: 1] that allowing only one Section 4, Article VII, which provides that a tie in the
representative from Congress in the JBC would lead to presidential election shall be broken “by a majority of
absurdity considering its bicameral nature; 2] that the all the Members of both Houses of the Congress,
failure of the Framers to make the proper adjustment voting separately.”20 Another is Section 8 thereof
when there was a shift from unilateralism to which requires the nominee to replace the Vice-
bicameralism was a plain oversight; 3] that two President to be confirmed “by a majority of all the
representatives from Congress would not subvert the Members of both Houses of the Congress, voting
intention of the Framers to insulate the JBC from separately.”21 Similarly, under Section 18, the
political partisanship; and 4] that the rationale of the proclamation of martial law or the suspension of the
Court in declaring a seven-member composition would privilege of the writ of habeas corpus may be revoked
provide a solution should there be a stalemate is not or continued by the Congress, voting separately, by a
exactly correct. vote of at least a majority of all its Members.”22 In all

94
these provisions, the bicameral nature of Congress
was recognized and, clearly, the corresponding I humbly reiterate my position that there should be only
adjustments were made as to how a matter would be one representative of Congress in the JBC in
handled and voted upon by its two Houses. accordance with Article VIII, Section 8 (1) of the 1987
Constitution x x x.
Thus, to say that the Framers simply failed to adjust
Section 8, Article VIII, by sheer inadvertence, to their The aforesaid provision is clear and unambiguous and
decision to shift to a bicameral form of the legislature, does not need any further interpretation. Perhaps, it is
is not persuasive enough. Respondents cannot just apt to mention that the oft-repeated doctrine that
lean on plain oversight to justify a conclusion favorable “construction and interpretation come only after it has
to them. It is very clear that the Framers were not keen been demonstrated that application is impossible or
on adjusting the provision on congressional inadequate without them.”
representation in the JBC because it was not in the
exercise of its primary function – to legislate. JBC was Further, to allow Congress to have two representatives
created to support the executive power to appoint, and in the Council, with one vote each, is to negate the
Congress, as one whole body, was merely assigned a principle of equality among the three branches of
contributory non-legislative function. government which is enshrined in the Constitution.

The underlying reason for such a limited participation In view of the foregoing, I vote for the proposition that
can easily be discerned. Congress has two (2) Houses. the Council should adopt the rule of single
The need to recognize the existence and the role of representation of Congress in the JBC in order to
each House is essential considering that the respect and give the right meaning to the above-quoted
Constitution employs precise language in laying down provision of the Constitution. (Emphases and
the functions which particular House plays, regardless underscoring supplied)
of whether the two Houses consummate an official act
by voting jointly or separately. Whether in the exercise On March 14, 2007, then Associate Justice Leonardo
of its legislative23 or its non-legislative functions such A. Quisumbing, also a JBC Consultant, submitted to
as inter alia, the power of appropriation,24 the the Chief Justice and ex-officio JBC Chairman his
declaration of an existence of a state of war,25 opinion,29 which reads:
canvassing of electoral returns for the President and
Vice-President,26 and impeachment,27 the dichotomy 8. Two things can be gleaned from the excerpts and
of each House must be acknowledged and recognized citations above: the creation of the JBC is intended to
considering the interplay between these two Houses. curtail the influence of politics in Congress in the
In all these instances, each House is constitutionally appointment of judges, and the understanding is that
granted with powers and functions peculiar to its nature seven (7) persons will compose the JBC. As such, the
and with keen consideration to 1) its relationship with interpretation of two votes for Congress runs counter to
the other chamber; and 2) in consonance with the the intendment of the framers. Such interpretation
principle of checks and balances, as to the other actually gives Congress more influence in the
branches of government. appointment of judges. Also, two votes for Congress
would increase the number of JBC members to eight,
In checkered contrast, there is essentially no which could lead to voting deadlock by reason of even-
interaction between the two Houses in their numbered membership, and a clear violation of 7
participation in the JBC. No mechanism is required enumerated members in the Constitution. (Emphases
between the Senate and the House of Representatives and underscoring supplied)
in the screening and nomination of judicial officers.
Rather, in the creation of the JBC, the Framers arrived In an undated position paper,30 then Secretary of
at a unique system by adding to the four (4) regular Justice Agnes VST Devanadera opined:
members, three (3) representatives from the major
branches of government - the Chief Justice as ex- As can be gleaned from the above constitutional
officio Chairman (representing the Judicial provision, the JBC is composed of seven (7)
Department), the Secretary of Justice (representing the representatives coming from different sectors. From
Executive Department), and a representative of the the enumeration it is patent that each category of
Congress (representing the Legislative Department). members pertained to a single individual only. Thus,
The total is seven (7), not eight. In so providing, the while we do not lose sight of the bicameral nature of
Framers simply gave recognition to the Legislature, not our legislative department, it is beyond dispute that Art.
because it was in the interest of a certain constituency, VIII, Section 8 (1) of the 1987 Constitution is explicit
but in reverence to it as a major branch of government. and specific that “Congress” shall have only “xxx a
representative.” Thus, two (2) representatives from
On this score, a Member of Congress, Hon. Simeon A. Congress would increase the number of JBC members
Datumanong, from the Second District of to eight (8), a number beyond what the Constitution
Maguindanao, submitted his well-considered has contemplated. (Emphases and underscoring
position28 to then Chief Justice Reynato S. Puno: supplied)

95
 From this score stems the conclusion that the lone
In this regard, the scholarly dissection on the matter by representative of Congress is entitled to one full vote.
retired Justice Consuelo Ynares-Santiago, a former This pronouncement effectively disallows the scheme
JBC consultant, is worth reiterating.31Thus: of splitting the said vote into half (1/2), between two
representatives of Congress. Not only can this
A perusal of the records of the Constitutional unsanctioned practice cause disorder in the voting
Commission reveals that the composition of the JBC process, it is clearly against the essence of what the
reflects the Commission’s desire “to have in the Constitution authorized. After all, basic and reasonable
Council a representation for the major elements of the is the rule that what cannot be legally done directly
community.” xxx The ex-officio members of the Council cannot be done indirectly. To permit or tolerate the
consist of representatives from the three main splitting of one vote into two or more is clearly a
branches of government while the regular members constitutional circumvention that cannot be
are composed of various stakeholders in the judiciary. countenanced by the Court. Succinctly put, when the
The unmistakeable tenor of Article VIII, Section 8(1) Constitution envisioned one member of Congress
was to treat each ex-officio member as representing sitting in the JBC, it is sensible to presume that this
one co-equal branch of government. xxx Thus, the JBC representation carries with him one full vote.
was designed to have seven voting members with the
three ex-officio members having equal say in the It is also an error for respondents to argue that the
choice of judicial nominees. President, in effect, has more influence over the JBC
simply because all of the regular members of the JBC
xxx are his appointees. The principle of checks and
balances is still safeguarded because the appointment
No parallelism can be drawn between the of all the regular members of the JBC is subject to a
representative of Congress in the JBC and the exercise stringent process of confirmation by the Commission
by Congress of its legislative powers under Article VI on Appointments, which is composed of members of
and constituent powers under Article XVII of the Congress.
Constitution. Congress, in relation to the executive and
judicial branches of government, is constitutionally Respondents’ contention that the current irregular
treated as another co-equal branch in the matter of its composition of the JBC should be accepted, simply
representative in the JBC. On the other hand, the because it was only questioned for the first time
exercise of legislative and constituent powers requires through the present action, deserves scant
the Senate and the House of Representatives to consideration. Well-settled is the rule that acts done in
coordinate and act as distinct bodies in furtherance of violation of the Constitution no matter how frequent,
Congress’ role under our constitutional scheme. While usual or notorious cannot develop or gain acceptance
the latter justifies and, in fact, necessitates the under the doctrine of estoppel or laches, because once
separateness of the two Houses of Congress as they an act is considered as an infringement of the
relate inter se, no such dichotomy need be made when Constitution it is void from the very beginning and
Congress interacts with the other two co-equal cannot be the source of any power or authority.
branches of government.
It would not be amiss to point out, however, that as a
It is more in keeping with the co-equal nature of the general rule, an unconstitutional act is not a law; it
three governmental branches to assign the same confers no rights; it imposes no duties; it affords no
weight to considerations that any of its representatives protection; it creates no office; it is inoperative as if it
may have regarding aspiring nominees to the judiciary. has not been passed at all. This rule, however, is not
The representatives of the Senate and the House of absolute. Under the doctrine of operative facts, actions
Representatives act as such for one branch and should previous to the declaration of unconstitutionality are
not have any more quantitative influence as the other legally recognized. They are not nullified. This is
branches in the exercise of prerogatives evenly essential in the interest of fair play. To reiterate the
bestowed upon the three. Sound reason and principle doctrine enunciated in Planters Products, Inc. v.
of equality among the three branches support this Fertiphil Corporation:32
conclusion. [Emphases and underscoring supplied]
The doctrine of operative fact, as an exception to the
The argument that a senator cannot represent a general rule, only applies as a matter of equity and fair
member of the House of Representatives in the JBC play. It nullifies the effects of an unconstitutional law by
and vice-versa is, thus, misplaced. In the JBC, any recognizing that the existence of a statute prior to a
member of Congress, whether from the Senate or the determination of unconstitutionality is an operative fact
House of Representatives, is constitutionally and may have consequences which cannot always be
empowered to represent the entire Congress. It may ignored. The past cannot always be erased by a new
be a constricted constitutional authority, but it is not an judicial declaration. The doctrine is applicable when a
absurdity. declaration of unconstitutionality will impose an undue
burden on those who have relied on the invalid law.
Thus, it was applied to a criminal case when a

96
declaration of unconstitutionality would put the The suspension of the effects of the second paragraph
accused in double jeopardy or would put in limbo the of the dispositive portion of the July 17, 2012 Decision
acts done by a municipality in reliance upon a law of the Court, which reads, "This disposition is
creating it.33 immediately executory," is hereby LIFTED.

Under the circumstances, the Court finds the exception SO ORDERED.

applicable in this case and holds that notwithstanding PEREZ VS PEOPLE (2008)
its finding of unconstitutionality in the current
composition of the JBC, all its prior official actions are ZENON R. PEREZ, Petitioner, versus PEOPLE OF
nonetheless valid. THE PHILIPPINES and SANDIGANBAYAN,
Respondents.
Considering that the Court is duty bound to protect the G.R. No. 164763 | 2008-02-12
Constitution which was ratified by the direct action of
the Filipino people, it cannot correct what respondents DECISION
perceive as a mistake in its mandate. Neither can the
Court, in the exercise of its power to interpret the spirit
of the Constitution, read into the law something that is REYES, R.T., J.:
contrary to its express provisions and justify the same
as correcting a perceived inadvertence. To do so would PETITIONER Zenon R. Perez seeks a review[1] of his
otherwise sanction the Court action of making conviction by the Sandiganbayan[2] for malversation of
amendment to the Constitution through a judicial public funds[3] under Article 217 of the Revised Penal
pronouncement. Code.

In other words, the Court cannot supply the legislative This is not a big case but its implications are wide-
omission. According to the rule of casus omissus “a ranging and the issues We resolve include the rights to
case omitted is to be held as intentionally omitted.”34 speedy trial and speedy disposition of a criminal case,
“The principle proceeds from a reasonable certainty the balancing test, due process, and cruel and unusual
that a particular person, object or thing has been punishment.
omitted from a legislative enumeration.”35 Pursuant to
this, “the Court cannot under its power of interpretation The Facts
supply the omission even though the omission may
have resulted from inadvertence or because the case On December 28, 1988, an audit team headed by
in question was not foreseen or contemplated.”36 “The Auditor I Arlene R. Mandin, Provincial Auditor's Office,
Court cannot supply what it thinks the legislature would Bohol,[4] conducted a cash examination on the
have supplied had its attention been called to the account of petitioner, who was then the acting
omission, as that would be judicial legislation.”37 municipal treasurer of Tubigon, Bohol.

Stated differently, the Court has no power to add Petitioner was absent on the first scheduled audit at his
another member by judicial construction. office on December 28, 1988. A radio message was
sent to Loon, the town where he resided, to apprise him
The call for judicial activism fails to stir the sensibilities of the on-going audit. The following day, the audit team
of the Court tasked to guard the Constitution against counted the cash contained in the safe of petitioner in
usurpation. The Court remains steadfast in confining its his presence. In the course of the audit, the amount of
powers in the sphere granted by the Constitution itself. P21,331.79 was found in the safe of petitioner.
Judicial activism should never be allowed to become
judicial exuberance. 311 In cases like this, no amount The audit team embodied their findings in the Report
of practical logic or convenience can convince the of Cash Examination,[5] which also contained an
Court to perform either an excision or an insertion that inventory of cash items. Based on the said audit,
will change the manifest intent of the Framers. To petitioner was supposed to have on hand the total
broaden the scope of congressional representation in amount of P94,116.36, instead of the P21,331.79,
the JBC is tantamount to the inclusion of a subject incurring a shortage of P72,784.57.[6]
matter which was not included in the provision as
enacted. True to its constitutional mandate, the Court The report also contained the Cash Production
cannot craft and tailor constitutional provisions in order Notice[7] dated January 4, 1989, where petitioner was
to accommodate all of situations no matter how ideal informed and required to produce the amount of
or reasonable the proposed solution may sound. To the P72,784.57, and the cash count sheet signed and
exercise of this intrusion, the Court declines. acknowledged by petitioner indicating the correctness
of the amount of P21,331.79 found in his safe and
WHEREFORE, the Motion for Reconsideration filed by counted in his presence. A separate demand letter[8]
respondents is hereby DENIED. dated January 4, 1989 requiring the production of the
missing funds was sent and received by petitioner on
January 5, 1989.

97
 public funds collected and received by him, with grave
When asked by the auditing team as to the location of abuse of confidence did then and there willfully,
the missing funds, petitioner verbally explained that unlawfully and feloniously misappropriate, misapply,
part of the money was used to pay for the loan of his embezzle and take away from the said funds the total
late brother, another portion was spent for the food of amount of SEVENTY-TWO THOUSAND SEVEN
his family, and the rest for his medicine.[9] HUNDRED EIGHTY-FOUR PESOS and 57/100
(P72,784.57), which said fund was appropriated and
As a result of the audit, Arlene R. Mandin prepared a converted by the said accused to his own personal use
memorandum[10] dated January 13, 1989 addressed and benefit to the damage and prejudice of the
to the Provincial Auditor of Bohol recommending the government in the aforementioned amount.
filing of the appropriate criminal case against petitioner.
CONTRARY TO LAW.[13] (Underscoring supplied)
On January 16, 1989, petitioner remitted to the Office
of the Provincial Treasurer of Bohol the amounts of On March 1, 1990, petitioner, duly assisted by counsel
P10,000.00 and P15,000.00, respectively. On de parte, entered a plea of "not guilty."[14]
February 14, 1989, petitioner again remitted to the
Provincial Treasurer an additional amount of Pre-trial was initially set on June 4-5, 1990 but
P35,000.00, followed by remittances made on petitioner's counsel moved for postponement. The
February 16, 1989 in the amounts of P2,000.00 and Sandiganbayan, however, proceeded to hear the case
P2,784.00. on June 5, 1990, as previously scheduled, due to the
presence of prosecution witness Arlene R. Mandin,
An administrative case was filed against petitioner on who came all the way from Bohol.
February 13, 1989. He filed an Answer[11] dated
February 22, 1989 reiterating his earlier verbal On said date, the Sandiganbayan dispensed with pre-
admission before the audit team. trial and allowed the prosecution to present its witness.
Arlene R. Mandin testified as narrated above.
On April 17, 1989, petitioner again remitted the amount
of P8,000.00 to the Provincial Treasurer of Bohol. The defense presented evidence through petitioner
Petitioner had then fully restituted his shortage in the Zenon R. Perez himself. He denied the contents of his
amount of P72,784.57. The full restitution of the first Answer[15] to the administrative case filed against
missing money was confirmed and shown by the him by the audit team. He claimed it was prepared
following receipts:[12] without the assistance of counsel and that at the time
of its preparation and submission, he was not in peak
Official Receipt No. Date Issued and Received Amount mental and physical condition, having been stricken
with diabetes mellitus.[16]
8266659 January 16, 1989 P10,000.00
He then revoked his Answer dated February 22, 1989
8266660 January 16, 1989 P15,000.00 and filed his second Answer dated March 2, 1989.[17]
In the latter, he vehemently denied that he incurred a
8266662 February 14, 1989 P35,000.00 cash shortage P72,784.57.

8266667 February 16, 1989 P 2,000.00 According to petitioner, the alleged shortage was in the
possession and custody of his accountable personnel
8266668 February 16, 1989 P 2,784.00 at the time of the audit examination. Several amounts
totalling P64,784.00 were remitted to him on separate
8266675 April 17, 1989 P 8,000.00 dates by his accountable officer, starting January 16,
1989 to February 16, 1989. The same were turned over
TOTAL - P72,784.57 by him to the Office of the Provincial Treasurer, leaving
an unremitted sum of P8,000.00 as of February 16,
Later, petitioner was charged before the 1989.[18] He remitted the P8,000.00 on April 17, 1989
Sandiganbayan with malversation of public funds, to the Provincial Treasurer of Bohol, fully restoring the
defined and penalized by Article 217 of the Revised cash shortage.
Penal Code in an Information that read:
Petitioner further testified that on July 30, 1989, he
That on or about the period covering from December submitted his Position Paper[19] before the Office of
28, 1988 to January 5, 1989, and for sometime prior the Ombudsman, Cebu City and maintained that the
thereto, in the Municipality of Tubigon, Province of alleged cash shortage was only due to oversight.
Bohol, Philippines and within the jurisdiction of this Petitioner argued that the government did not suffer
Honorable Court, the above-named accused Zenon R. any damage or prejudice since the alleged cash
Perez, a public officer being then Acting Municipal shortage was actually deposited with the Office of the
Treasury of the said Municipality, by reason of the Provincial Treasurer as evidenced by official
duties of his official position was accountable for the receipts.[20]

98
 permitting any other person to take such public funds
Petitioner completed his testimony on September 20, or property, and (4) being otherwise guilty of the
1990. He rested his case on October 20, 1990.[21] misappropriation or malversation of such funds or
property.[28]
Sandiganbayan Disposition
There are four elements that must concur in order that
On September 24, 2003, the Sandiganbayan rendered one may be found guilty of the crime. They are:
a judgment of conviction with a fallo reading:
(a) That the offender be a public officer;
WHEREFORE, judgment is hereby rendered finding
the accused ZENON R. PEREZ, GUILTY beyond (b) That he had the custody or control of funds or
reasonable doubt of the crime of Malversation of Public property by reason of the duties of his office;
Funds as defined in and penalized by Article 217 of the
Revised Penal Code and, there being one mitigating (c) That those funds or property involved were public
circumstance without any aggravating circumstance to funds or property for which he is accountable; and
offset the same, is hereby sentenced to suffer an
indeterminate penalty of from TEN (10) YEARS and (d) That he has appropriated, took or misappropriated
ONE (1) DAY of prision mayor as the minimum to or consented or, through abandonment or negligence,
FOURTEEN (14) YEARS and EIGHT (8) MONTHS of permitted another person to take them.[29]
reclusion temporal as the maximum and to suffer
perpetual special disqualification. The accused Zenon Evidently, the first three elements are present in the
R. Perez is likewise ordered to pay a FINE equal to the case at bar. At the time of the commission of the crime
total amount of the funds malversed, which is Seventy- charged, petitioner was a public officer, being then the
Two Thousand Seven Hundred Eighty-Four Pesos and acting municipal treasurer of Tubigon, Bohol. By
Fifty-Seven Centavos (P72, 784.57). reason of his public office, he was accountable for the
public funds under his custody or control.
SO ORDERED.[22] (Emphasis in the original)
The question then is whether or not petitioner has
On January 13, 2004, petitioner filed a motion for appropriated, took or misappropriated, or consented or
reconsideration[23] which the prosecution opposed on through abandonment or negligence, permitted
January 28, 2004.[24] Petitioner replied[25] to the another person to take such funds.
opposition. On August 6, 2004, petitioner's motion was
denied with finality. We rule in the affirmative.

On September 23, 2004, petitioner resorted to the In malversation, all that is necessary to prove is that
instant appeal[26] raising the following issues, to wit: the defendant received in his possession public funds;
that he could not account for them and did not have
I. THE HON. SANDIGANBAYAN BY UNDULY AND them in his possession; and that he could not give a
UNREASONABLY DELAYING THE DECISION OF reasonable excuse for its disappearance. An
THE CASE FOR OVER THIRTEEN (13) YEARS accountable public officer may be convicted of
VIOLATED THE PETITIONER'S RIGHT TO SPEEDY malversation even if there is no direct evidence of
DISPOSITION OF HIS CASE AND DUE PROCESS. misappropriation and the only evidence is shortage in
his accounts which he has not been able to explain
II. THE LAW RELIED UPON IN CONVICTING THE satisfactorily.[30]
PETITIONER AND THE SENTENCE IMPOSED IS
CRUEL AND THEREFORE VIOLATES SECTION 19 Verily, an accountable public officer may be found
OF ARTICLE III (BILL OF RIGHTS) OF THE guilty of malversation even if there is no direct evidence
CONSTITUTION.[27] (Underscoring supplied) of malversation because the law establishes a
presumption that mere failure of an accountable officer
Our Ruling to produce public funds which have come into his
hands on demand by an officer duly authorized to
Before addressing petitioner's twin assignment of examine his accounts is prima facie case of
errors, We first tackle the propriety of petitioner's conversion.[31]
conviction for malversation of public funds.
Because of the prima facie presumption in Article 217,
I. Petitioner was correctly convicted of malversation. the burden of evidence is shifted to the accused to
adequately explain the location of the funds or property
Malversation is defined and penalized under Article under his custody or control in order to rebut the
217 of the Revised Penal Code. The acts punished as presumption that he has appropriated or
malversation are: (1) appropriating public funds or misappropriated for himself the missing funds. Failing
property, (2) taking or misappropriating the same, (3) to do so, the accused may be convicted under the said
consenting, or through abandonment or negligence, provision.

99
 (a) That respondent paid the amount of about
However, the presumption is merely prima facie and a P30,000.00 to the Philippine National Bank, Tagbilaran
rebuttable one. The accountable officer may overcome Branch as interests of the commercial loan of his late
the presumption by proof to the contrary. If he adduces brother Carino R. Perez using respondent's house and
evidence showing that, in fact, he has not put said lot as collateral thereof. If the interests would not be
funds or property to personal use, then that paid, the loan would be foreclosed to respondent's
presumption is at end and the prima facie case is great prejudice and disadvantage considering that he
destroyed.[32] and his family are residing in said house used as
collateral;
In the case at bar, petitioner was not able to present
any credible evidence to rebut the presumption that he (b) That respondent spent the amount of P10,000.00 in
malversed the missing funds in his custody or control. connection with the treatment of his toxic goiter;
What is extant in the records is that the prosecution,
through witness Arlene R. Mandin, was able to prove (c) That the rest of the amount amounting to about
that petitioner malversed the funds under his custody P32,000.00 was spent by him for his family's foods,
and control. As testified by Mandin: clothings (sic), and education of his children because
his monthly salary is not enough for the needs of his
Atty. Caballero: family.[34]

Q: Was Mr. Zenon Perez actually and physically By the explicit admission of petitioner, coupled with the
present during the time of your cash examination? testimony of Arlene R. Mandin, the fourth element of
the crime of malversation was duly established. His
Witness: conviction thus stands in terra firma.

A. Yes, Sir. True it is that petitioner filed another Answer on March

2, 1989 with the Office of the Provincial Treasurer of
Q: From December 28, to January 5, 1989? Bohol, substantially changing the contents of his earlier
answer of February 22, 1989. His second Answer
A: He was present on December 28, 1988 and January averred:
4 and 5, 1989, Sir.
3. That the truth of the matter is that the alleged total
Q: Did he not make any verbal explanation as the cash shortage of P72,784.57 were still in the
reason why he was short of about P72,000.00, after possession and custody of his accountable personnel
you conducted the cash count on January 5, 1989? at the time of the examination held by the auditor of the
Commission on Audit;
A: Yes, Sir, he did.
4. That out of the alleged cash shortage of P72,784.57,
Q: What did he tell you? almost all of said amount were already remitted to him
by his accountable personnel after January 5, 1989,
A: He told us that he used some of the money to pay and only the remaining amount of P8,000.00 remains
for the loan of his brother and the other portion was to be remitted to him by his accountable personnel.[35]
spent for food of his family; and the rest for his
medicine.[33] (Emphasis supplied) The sudden turnaround of petitioner fails to convince
Us. To Our mind, petitioner only changed his story to
Petitioner gave himself away with his first Answer filed exonerate himself, after realizing that his first Answer
at the Office of the Provincial Treasurer of Bohol in the put him in a hole, so to speak.
administrative case filed against him.
It is contended that petitioner's first Answer of February
In that Answer, petitioner narrated how he disposed of 22, 1989 should not have been given probative weight
the missing funds under his custody and control, to wit: because it was executed without the assistance of
(1) about P30,000.00 was used to pay the commercial counsel.[36]
loan of his late brother; (2) he spent P10,000.00 for the
treatment of his toxic goiter; and (3) about P32,000.00 There is no law, jurisprudence or rule which mandates
was spent for food and clothing of his family, and the that an employee should be assisted by counsel in an
education of his children. He there stated: administrative case. On the contrary, jurisprudence is
in unison in saying that assistance of counsel is not
1. That the circumstances surrounding the cash indispensable in administrative proceedings.
shortage in the total amount of P72,784.57 during the
examination of the respondent's cash accounts by the Walang batas, hurisprudensiya, o tuntunin na
Commission on Audit on December 28-29, 1988 and nagsasabi na ang isang kawani ay dapat may tulong
January 4-5, 1989 are as follows, to wit: ng abogado sa isang kasong administratibo. Sa
katunayan, ang hurisprudensiya ay iisa ang sinasabi

100
na ang pagtulong ng isang abogado ay hindi Extrajudicial statements are as a rule, admissible as
kailangang-kailangan sa kasong administratibo. against their respective declarants, pursuant to the rule
that the act, declaration or omission of a party as to a
The right to counsel, which cannot be waived unless relevant fact may be given against him. This is based
the waiver is in writing and in the presence of counsel, upon the presumption that no man would declare
is a right afforded a suspect or accused during anything against himself, unless such declarations
custodial investigation. It is not an absolute right and were true. A man's act, conduct and declarations
may be invoked or rejected in a criminal proceeding wherever made, provided they be voluntary, are
and, with more reason, in an administrative inquiry.[37] admissible against him, for the reason that it is fair to
presume that they correspond with the truth and it is
Ang karapatang magkaroon ng abogado, na hindi his fault if they are not.
maaaring talikdan malibang ang waiver ay nakasulat at
sa harap ng abogado, ay karapatang ibinibigay sa There is also no merit in the contention that petitioner's
suspek o nasasakdal sa isang custodial investigation. sickness affected the preparation of his first Answer.
Ito ay hindi lubos na karapatan at maaring hingin o He presented no convincing evidence that his disease
tanggihan sa isang prosesong kriminal, at lalo na sa at the time he formulated that answer diminished his
isang administratibong pagsisiyasat. capacity to formulate a true, clear and coherent
response to any query. In fact, its contents merely
While investigations conducted by an administrative reiterated his verbal explanation to the auditing team
body may at times be akin to a criminal proceeding, the on January 5, 1989 on how he disposed of the missing
fact remains that under existing laws, a party in an funds.
administrative inquiry may or may not be assisted by
counsel, irrespective of the nature of the charges and II. There is no violation of the rights to a speedy
of respondent's capacity to represent himself, and no disposition of the case and to due process of law.
duty rests on such body to furnish the person being
investigated with counsel.[38] We now discuss the right to a speedy trial and
disposition, the balancing test, due process, and cruel
Thus, the right to counsel is not imperative in and unusual punishment.
administrative investigations because such inquiries
are conducted merely to determine whether there are Petitioner asserts that his right to due process of law
facts that merit disciplinary measures against erring and to speedy disposition of his case was violated
public officers and employees, with the purpose of because the decision of the Sandiganbayan was
maintaining the dignity of government service.[39] handed down after the lapse of more than twelve
years. The years that he had to wait for the outcome of
Kung gayon, ang karapatang magkaroon ng abogado his case were allegedly spent in limbo, pain and
ay hindi sapilitan sa isang administratibong agony.[42]
imbestigasyon sapagkat ito ay ginagawa lamang
upang malaman kung may sapat na batayan na We are not persuaded.
patawan ng disiplina ang nagkasalang opisyal o
empleyado, para mapanatili ang dignidad ng Due process of law as applied to judicial proceedings
paglilingkod sa pamahalaan. has been interpreted to mean "a law which hears
before it condemns, which proceeds on inquiry, and
There is nothing in the Constitution that says that a renders judgment only after trial."[43] Petitioner cannot
party in a non-litigation proceeding is entitled to be complain that his right to due process has been
represented by counsel and that, without such violated. He was given all the chances in the world to
representation, he shall not be bound by such present his case, and the Sandiganbayan rendered its
proceedings. The assistance of lawyers, while decision only after considering all the pieces of
desirable, is not indispensable. The legal profession evidence presented before it.
was not engrafted in the due process clause such that
without the participation of its members, the safeguard Petitioner's claim of violation of his right to a speedy
is deemed ignored or violated. The ordinary citizen is disposition of his case must also fail.
not that helpless that he cannot validly act at all except
only with a lawyer at his side.[40] The 1987 Constitution[44] guarantees the right of an
accused to speedy trial. Both the 1973 Constitution in
More than that, petitioner's first Answer may be taken Section 16 of Article IV and the 1987 Constitution in
against him, as he executed it in the course of the Section 16 of Article III, Bill of Rights, are also explicit
administrative proceedings below. This is pursuant to in granting to the accused the right to speedy
Rule 130, Section 26 of the Rules of Court which disposition of his case.[45]
provides that the "act, declaration or omission of a
party as to a relevant fact may be given against him." In Barker v. Wingo,[46] the United States Supreme
In People v. Lising,[41] the Court held: Court was confronted for the first time with two "rigid
approaches" on speedy trial as "ways of eliminating

101
some of the uncertainty which courts experience appropriate delay. We have already discussed the third
protecting the right."[47] factor, the defendant's responsibility to assert his right.
Whether and how a defendant asserts his right is
The first approach is the "fixed-time period" which closely related to the other factors we have mentioned.
holds the view that "the Constitution requires a criminal The strength of his efforts will be affected by the length
defendant to be offered a trial within a specified time of the delay, to some extent by the reason for the delay,
period."[48] The second approach is the "demand- and most particularly by the personal prejudice, which
waiver rule" which provides that "a defendant waives is not always readily identifiable, that he experiences.
any consideration of his right to speedy trial for any The more serious the deprivation, the more likely a
period prior to which he has not demanded trial. Under defendant is to complain. The defendant's assertion of
this rigid approach, a prior demand is a necessary his speedy trial right, then, is entitled to strong
condition to the consideration of the speedy trial evidentiary weight in determining whether the
right."[49] defendant is being deprived of the right. We emphasize
that failure to assert the right will make it difficult for a
The fixed-time period was rejected because there is defendant to prove that he was denied a speedy trial.
"no constitutional basis for holding that the speedy trial
can be quantified into a specific number of days or A fourth factor is prejudice to the defendant. Prejudice,
months."[50] The demand-waiver rule was likewise of course, should be assessed in the light of the
rejected because aside from the fact that it is interests of defendants which the speedy trial right was
"inconsistent with this Court's pronouncements on designed to protect. This Court has identified three
waiver of constitutional rights,"[51] "it is insensitive to a such interests: (i) to prevent oppressive pretrial
right which we have deemed fundamental."[52] incarceration; (ii) to minimize anxiety and concern of
the accused; and (iii) to limit the possibility that the
The Court went on to adopt a middle ground: the defense will be impaired. Of these, the most serious is
"balancing test," in which "the conduct of both the the last, because the inability of a defendant
prosecution and defendant are weighed."[53] Mr. adequately to prepare his case skews the fairness of
Justice Powell, ponente, explained the concept, thus: the entire system. If witnesses die or disappear during
a delay, the prejudice is obvious. There is also
A balancing test necessarily compels courts to prejudice if defense witnesses are unable to recall
approach speedy trial cases on an ad hoc basis. We accurately events of the distant past. Loss of memory,
can do little more than identify some of the factors however, is not always reflected in the record because
which courts should assess in determining whether a what has been forgotten can rarely be shown.[54]
particular defendant has been deprived of his right. (Emphasis supplied)
Though some might express them in different ways, we
identify four such factors: Length of delay, the reason Philippine jurisprudence has, on several occasions,
for the delay, the defendant's assertion of his right, and adopted the balancing test.
prejudice to the defendant.
In 1991, in Gonzales v. Sandiganbayan,[55] this Court
The length of the delay is to some extent a triggering ruled:
mechanism. Until there is some delay which is
presumptively prejudicial, there is no necessity for It must be here emphasized that the right to a speedy
inquiry into the other factors that go into the balance. disposition of a case, like the right to speedy trial, is
Nevertheless, because of the imprecision of the right to deemed violated only when the proceeding is attended
speedy trial, the length of delay that will provoke such by vexatious, capricious, and oppressive delays; or
an inquiry is necessarily dependent upon the peculiar when unjustified postponements of the trial are asked
circumstances of the case. To take but one example, for and secured, or when without cause or justifiable
the delay that can be tolerated for an ordinary street motive a long period of time is allowed to elapse
crime is considerably less than for a serious, complex without the party having his case tried. Equally
conspiracy charge. applicable is the balancing test used to determine
whether a defendant has been denied his right to a
Closely related to length of delay is the reason the speedy trial, or a speedy disposition of a case for that
government assigns to justify the delay. Here, too, matter, in which the conduct of both the prosecution
different weights should be assigned to different and the defendant are weighed, and such factors as
reasons. A deliberate attempt to delay the trial in order length of the delay, reason for the delay, the
to hamper the defense should be weighted heavily defendant's assertion or non-assertion of his right, and
against the government. A more neutral reason such prejudice to the defendant resulting from the delay, are
as negligence or overcrowded courts should be considered. (Underscoring supplied)
weighted less heavily but nevertheless should be
considered since the ultimate responsibility for such Subsequently, in Dela Peña v. Sandiganbayan,[56] this
circumstances must rest with the government rather Court again enumerated the factors that should be
than with the defendant. Finally, a valid reason, such considered and balanced, namely: (1) length of delay;
as a missing witness, should serve to justify (2) reasons for the delay; (3) assertion or failure to

102
assert such right by the accused; and (4) prejudice violation of petitioner's right to speedy trial and
caused by the delay.[57] disposition of his case inasmuch as he failed
seasonably to assert his rights:
Once more, in Mendoza-Ong v. Sandiganbayan,[58]
this Court reiterated that the right to speedy disposition In the present case, there is no question that petitioner
of cases, like the right to speedy trial, is violated only raised the violation against his own right to speedy
when the proceedings are attended by vexatious, disposition only when the respondent trial judge reset
capricious and oppressive delays.[59] In the the case for rehearing. It is fair to assume that he would
determination of whether said right has been violated, have just continued to sleep on his right - a situation
particular regard must be taken of the facts and amounting to laches - had the respondent judge not
circumstances peculiar to each case.[60] The conduct taken the initiative of determining the non-completion
of both the prosecution and defendant, the length of the of the records and of ordering the remedy precisely so
delay, the reasons for such delay, the assertion or he could dispose of the case. The matter could have
failure to assert such right by accused, and the taken a different dimension if during all those ten years
prejudice caused by the delay are the factors to between 1979 when accused filed his memorandum
consider and balance.[61] and 1989 when the case was re-raffled, the accused
showed signs of asserting his right which was granted
Moreover, the determination of whether the delays are him in 1987 when the new Constitution took effect, or
of said nature is relative and cannot be based on a at least made some overt act (like a motion for early
mere mathematical reckoning of time.[62] disposition or a motion to compel the stenographer to
transcribe stenographic notes) that he was not waiving
Measured by the foregoing yardstick, We rule that it. As it is, his silence would have to be interpreted as a
petitioner was not deprived of his right to a speedy waiver of such right.
disposition of his case.
While this Court recognizes the right to speedy
More important than the absence of serious prejudice, disposition quite distinctly from the right to a speedy
petitioner himself did not want a speedy disposition of trial, and although this Court has always zealously
his case.[63] Petitioner was duly represented by espoused protection from oppressive and vexatious
counsel de parte in all stages of the proceedings before delays not attributable to the party involved, at the
the Sandiganbayan. From the moment his case was same time, we hold that a party's individual rights
deemed submitted for decision up to the time he was should not work against and preclude the people's
found guilty by the Sandiganbayan, however, petitioner equally important right to public justice. In the instant
has not filed a single motion or manifestation which case, three people died as a result of the crash of the
could be construed even remotely as an indication that airplane that the accused was flying. It appears to us
he wanted his case to be dispatched without delay. that the delay in the disposition of the case prejudiced
not just the accused but the people as well. Since the
Petitioner has clearly slept on his right. The matter accused has completely failed to assert his right
could have taken a different dimension if during all seasonably and inasmuch as the respondent judge
those twelve years, petitioner had shown signs of was not in a position to dispose of the case on the
asserting his right to a speedy disposition of his case merits due to the absence of factual basis, we hold it
or at least made some overt acts, like filing a motion for proper and equitable to give the parties fair opportunity
early resolution, to show that he was not waiving that to obtain (and the court to dispense) substantial justice
right.[64] in the premises.

Currit tempus contra decides et sui juris contempores: III. The law relied upon in convicting petitioner is not
Time runs against the slothful and those who neglect cruel and unusual. It does not violate Section 19,
their rights. Ang panahon ay hindi panig sa mga tamad Article III of the Bill of Rights.
at pabaya sa kanilang karapatan. Vigilantis sed non
dormientibus jura in re subveniunt. The law aids the What constitutes cruel and unusual punishment has
vigilant and not those who slumber in their rights. Ang not been exactly defined.[66] The Eighth Amendment
batas ay tumutulong sa mga mapagbantay at hindi sa of the United States Constitution,[67] the source of
mga humihimbing sa kanilang karapatan. Section 19, Article III of the Bill of Rights[68] of our own
Constitution, has yet to be put to the test to finally
Pending his conviction by the Sandiganbayan, determine what constitutes cruel and inhuman
petitioner may have truly lived in suspicion and anxiety punishment.[69]
for over twelve years. However, any prejudice that may
have been caused to him in all those years was only Cases that have been decided described, rather than
minimal. The supposed gravity of agony experienced defined, what is meant by cruel and unusual
by petitioner is more imagined than real. punishment. This is explained by the pronouncement
of the United States Supreme Court that "[t]he clause
This case is analogous to Guerrero v. Court of of the Constitution, in the opinion of the learned
Appeals.[65] There, the Court ruled that there was no commentators, may be therefore progressive, and is

103
not fastened to the obsolete, but may acquire meaning First. What is punished by the crime of malversation is
as public opinion becomes enlightened by a humane the act of a public officer who, by reason of the duties
justice."[70] of his office, is accountable for public funds or property,
shall appropriate the same, or shall take and
In Wilkerson v. Utah,[71] Mr. Justice Clifford of the misappropriate or shall consent, or through
United States Supreme Court opined that "[d]ifficulty abandonment or negligence shall permit any other
would attend the effort to define with exactness the person to take such public funds or property, wholly or
extent of the constitutional provision which provides partially, or shall otherwise be guilty of the
that cruel and unusual punishments shall not be misappropriation or malversation of such funds or
inflicted; but it is safe to affirm that punishments of property.[81]
torture, x x x and all others in the same line of
unnecessary cruelty, are forbidden by that amendment Payment or reimbursement is not a defense for
to the constitution."[72] exoneration in malversation; it may only be considered
as a mitigating circumstance. This is because damage
In In Re: Kemmler,[73] Mr. Chief Justice Fuller of that is not an element of malversation.
same Court stated that "[p]unishments are cruel when
they involve torture or a lingering death; but the Second. There is strong presumption of
punishment of death is not cruel within the meaning of constitutionality accorded to statutes.
that word as used in the constitution. It implies x x x
something more inhuman and barbarous, something It is established doctrine that a statute should be
more than the mere extinguishment of life."[74] construed whenever possible in harmony with, rather
than in violation of, the Constitution.[82] The
Again, in Weems v. U.S.,[75] Mr. Justice McKenna presumption is that the legislature intended to enact a
held for the Court that cadena temporal and its valid, sensible and just law and one which operates no
accessory penalties "has no fellow in American further than may be necessary to effectuate the
legislation. Let us remember that it has come to us from specific purpose of the law.[83] It is presumed that the
a government of a different form and genus from ours. legislature has acted within its constitutional powers.
It is cruel in its excess of imprisonment and that which So, it is the generally accepted rule that every statute,
accompanies and follows imprisonment. It is unusual or regularly accepted act, is, or will be, or should be,
in character. Its punishments come under the presumed to be valid and constitutional.[84]
condemnation of the Bill of Rights, both on account of
their degree and kind. And they would have those bad He who attacks the constitutionality of a law has the
attributes even if they were found in a Federal onus probandi to show why such law is repugnant to
enactment, and not taken from an alien source." the Constitution. Failing to overcome its presumption of
constitutionality, a claim that a law is cruel, unusual, or
In Echegaray v. Executive Secretary,[76] this Court in inhuman, like the stance of petitioner, must fail.
a per curiam Decision held that Republic Act No.
8177,[77] even if it does not provide in particular the IV. On the penalty
details involved in the execution by lethal injection, is
not cruel, degrading or inhuman, and is thus The Sandiganbayan sentenced petitioner to an
constitutional. Any infliction of pain in lethal injection is indeterminate sentence of ten (10) years and one (1)
merely incidental in carrying out the execution of the day of prision mayor, as minimum, to fourteen (14)
death penalty and does not fall within the constitutional years and eight (8) months of reclusion temporal, as
proscription against cruel, degrading or inhuman maximum. In imposing the penalty, it found that
punishment.[78] petitioner was entitled to the mitigating circumstance of
payment which is akin to voluntary surrender.
The Court adopted the American view that what is cruel
and unusual is not fastened to the obsolete but may Article 217 penalizes malversation in the following
acquire meaning as public opinion becomes tenor:
enlightened by humane justice and must draw its
meaning from the evolving standards of decency that Article 217. Malversation of public funds or property. -
mark the progress of a maturing society.[79] Presumption of malversation. - Any public officer who,
by reason of the duties of his office, is accountable for
In his last ditch effort to exculpate himself, petitioner public funds or property, shall appropriate the same, or
argues that the penalty meted for the crime of shall take and misappropriate or shall consent, or
malversation of public funds "that ha[ve] been through abandonment or negligence shall permit any
replenished, remitted and/or returned" to the other person to take such public funds or property,
government is cruel and therefore unconstitutional, "as wholly or partially, or shall otherwise be guilty of the
government has not suffered any damage."[80] misappropriation or malversation of such funds or
property.
The argument is specious on two grounds.
xxxx

104
 three (3) months from receipt of demand of COA on
4. The penalty of reclusion temporal in its medium and January 5, 1999. Evidently, there was no intention to
maximum periods, if the amount involved is more than commit so grave a wrong.
12,000 but is less than 22,000 pesos. If the amount
exceeds the latter, the penalty shall be reclusion Of course, the end does not justify the means. To
temporal in its maximum period to reclusion perpetua. condone what petitioner has done because of the
nobility of his purpose or financial emergencies will
In all cases, persons guilty of malversation shall also become a potent excuse for malefactors and open the
suffer the penalty of perpetual special disqualification floodgates for more corruption in the government, even
and a fine equal to the amount of the funds malversed from "small fry" like him.
or equal to the total value of the property embezzled.
The bottom line is a guilty person deserves the penalty
The failure of a public officer to have duly forthcoming given the attendant circumstances and commensurate
any public funds or property with which he is with the gravity of the offense committed. Thus, a
chargeable upon demand by any duly authorized reduction in the imposable penalty by one degree is in
officer, shall be prima facie evidence that he has put order. Article 64 of the Revised Penal Code is explicit:
such missing funds or property to personal uses.
(Underscoring supplied) Art. 64. Rules for the application of penalties which
contain three periods. - In cases in which the penalties
The amount malversed totalled P72,784.57. The prescribed by law contains three periods, whether it be
prescribed penalty is reclusion temporal in its a single divisible penalty or composed of three
maximum period to reclusion perpetua, which has a difference penalties, each one of which forms a period
range of seventeen (17) years, four (4) months and one in accordance with the provisions of Articles 76 and 77,
(1) day to forty (40) years. the courts shall observe for the application of the
penalty, the following rules, according to whether there
However, the commission of the crime was attended are no mitigating or aggravating circumstances:
by the mitigating circumstance akin to voluntary
surrender. As correctly observed by the xxxx
Sandiganbayan, petitioner restituted the full amount
even before the prosecution could present its 5. When there are two or more mitigating
evidence. That is borne by the records. circumstances and no aggravating circumstances are
present, the court shall impose the penalty next lower
It bears stressing that the full restitution of the amount to that prescribed by law, in the period that it may deem
malversed will not in any way exonerate an accused, applicable, according to the number and nature of such
as payment is not one of the elements of extinction of circumstances. (Underscoring supplied)
criminal liability. Under the law, the refund of the sum
misappropriated, even before the commencement of Considering that there are two mitigating
the criminal prosecution, does not exempt the guilty circumstances, the prescribed penalty is reduced to
person from liability for the crime.[85] At most, then, prision mayor in its maximum period to reclusion
payment of the amount malversed will only serve as a temporal in its medium period, to be imposed in any of
mitigating circumstance[86] akin to voluntary its periods. The new penalty has a range of ten (10)
surrender, as provided for in paragraph 7 of Article years and one (1) day to seventeen (17) years and four
13[87] in relation to paragraph 10[88] of the same (4) months. Applying the Indeterminate Sentence
Article of the Revised Penal Code. Law,[91] the maximum term could be ten (10) years
and one (1) day of prision mayor maximum, while the
But the Court also holds that aside from voluntary minimum term is again one degree lower[92] and could
surrender, petitioner is entitled to the mitigating be four (4) years, two (2) months and one (1) day of
circumstance of no intention to commit so grave a prision correccional maximum.
wrong,[89] again in relation to paragraph 10 of Article
13.[90] In the 1910 case of U.S. v. Reyes,[93] the trial judge
entered a judgment of conviction against the accused
The records bear out that petitioner misappropriated and meted to him the penalty of "three years'
the missing funds under his custody and control imprisonment, to pay a fine of P1,500.00, and in case
because he was impelled by the genuine love for his of insolvency to suffer subsidiary imprisonment at the
brother and his family. Per his admission, petitioner rate of one day for every P2.50 that he failed to pay,
used part of the funds to pay off a debt owed by his which subsidiary imprisonment, however, should not
brother. Another portion of the misappropriated funds exceed one third of the principal penalty" and to be
went to his medications for his debilitating diabetes. "perpetually disqualified for public office and to pay the
costs." This was well within the imposable penalty then
Further, as shown earlier, petitioner restituted all but under Section 1 of Act No. 1740,[94] which is
Eight Thousand Pesos (P8,000.00) of the funds in less "imprisonment for not less than two months nor more
than one month and a half and said small balance in than ten years and, in the discretion of the court, by a

105
fine of not more than the amount of such funds and the
value of such property." An original action for Prohibition instituted by
petitioners seeking to enjoin respondents from
On appeal to the Supreme Court, the accused's replacing them from their respective positions as
conviction was affirmed but his sentence was modified Barangay Captain and Barangay Councilmen of
and reduced to six months. The court, per Mr. Justice Barangay Dolores, Municipality of Taytay, Province of
Torres, reasoned thus: Rizal.

For the foregoing reasons the several unfounded As required by the Court, respondents submitted their
errors assigned to the judgment appealed from have Comment on the Petition, and petitioner's their Reply
been fully refuted, since in conclusion it is fully shown to respondents' Comment.
that the accused unlawfully disposed of a portion of the
municipal funds, putting the same to his own use, and In the Barangay elections held on May 17, 1982,
to that of other persons in violation of Act. No. 1740, petitioner Alfredo M. De Leon was elected Barangay
and consequently he has incurred the penalty therein Captain and the other petitioners Angel S. Salamat,
established as principal of the crime of Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la
misappropriation; and even though in imposing it, it is Rosa and Jose M. Resurreccion, as Barangay
not necessary to adhere to the rules of the Penal Code, Councilmen of Barangay Dolores, Taytay, Rizal under
the court in using its discretional powers as authorized Batas Pambansa Blg. 222, otherwise known as the
by law, believes that the circumstances present in the Barangay Election Act of 1982.
commission of crimes should be taken into
consideration, and in the present case the amount On February 9, 1987, petitioner Alfredo M. de Leon
misappropriated was refunded at the time the funds received a Memorandum antedated December 1, 1986
were counted.[95] (Underscoring supplied) but signed by respondent OIC Governor Benjamin
Esguerra on February 8, 1987 designating respondent
We opt to exercise an analogous discretion. Florentino G. Magno as Barangay Captain of Barangay
Dolores, Taytay, Rizal. The designation made by the
WHEREFORE, the Decision of the Sandiganbayan OIC Governor was "by authority of the Minister of Local
dated September 24, 2003 is AFFIRMED with the Government."
MODIFICATION that petitioner is hereby sentenced to
suffer the indeterminate penalty of four (4) years, two Also on February 8, 1987, respondent OIC Governor
(2) months and one (1) day of prision correccional, as signed a Memorandum, antedated December 1, 1986
minimum term, to ten (10) years and one (1) day of designating respondents Remigio M. Tigas, Ricardo Z.
prision mayor, as maximum term, with perpetual Lacanienta, Teodoro V. Medina, Roberto S. Paz and
special disqualification. He is likewise ORDERED to Teresita L. Tolentino as members of the Barangay
pay a fine of P72,784.57, the amount equal to the funds Council of the same Barangay and Municipality.
malversed.
That the Memoranda had been antedated is evidenced
Costs against petitioner. by the Affidavit of respondent OIC Governor, the
pertinent portions of which read:
SO ORDERED.
"xxx xxx xxx
DE LEON VS ESGUERRA (1987)
"That I am the OIC Governor of Rizal having been
appointed as such on March 20, 1986;
ALFREDO M. DE LEON, ANGEL S. SALAMAT,
MARIO C. STA. ANA, JOSE C. TOLENTINO, "That as being OIC Governor of the Province of Rizal,
ROGELIO J. DE LA ROSA and JOSE M. and in the performance of my duties thereof, I among
RESURRECCION, petitioners, vs. HON. BENJAMIN others, have signed as I did sign the unnumbered
B. ESGUERRA, in his capacity as OIC Governor of the memorandum ordering the replacement of all the
Province of Rizal, HON. ROMEO C. DE LEON, in his barangay officials of all the barangay(s) in the
capacity as OIC Mayor of the Municipality of Taytay, Municipality of Taytay, Rizal;
Rizal, FLORENTINO G. MAGNO, REMIGIO M.
TIGAS, RICARDO Z. LACANIENTA, TEODORO V. "That the above cited memorandum dated December
MEDINA, ROSENDO S. PAZ, and TERESITA L. 1, 1986 was signed by me personally on February 8,
TOLENTINO, respondents. 1987;
G.R. No. 78059 | 1987-08-31
"That said memorandum was further deciminated (sic)
DECISION to all concerned the following day, February 9, 1987.

FURTHER AFFIANT SAYETH NONE.

MELENCIO-HERRERA, J.:

106
"Pasig, Metro Manila, March 23, 1987." Provisional Constitution must be deemed to have been
overtaken by Section 27, Article XVIII of the 1987
Before us now, petitioners pray that the subject Constitution reading:
Memoranda of February 8, 1987 be declared null and
void and that respondents be prohibited from taking "Sec 27. This Constitution shall take effect immediately
over their positions of Barangay Captain and Barangay upon its ratification by a majority of the votes cast in a
Councilmen, respectively. Petitioners maintain that plebiscite held for the purpose and shall supersede all
pursuant to Section 3 of the Barangay Election Act of previous Constitutions."
1982 (8P Blg. 222), their terms of office "shall be six (6)
years which shall commence on June 7, 1982 and shall The 1987 Constitution was ratified in a plebiscite on
continue until their successors shall have elected and February 2, 1987. By that date, therefore, the
shall have qualified," or up to June 7, 1988. It is also Provisional Constitution must be deemed to have been
their position that with the ratification of the 1987 superseded. Having become inoperative, respondent
Constitution, respondent OIC Governor no longer has OIC Governor could no longer rely on Section 2, Article
the authority to replace them and to designate their III, thereof to designate respondents to the elective
successors. positions occupied by petitioners.

On the other hand, respondents rely on Section 2, Petitioners must now be held to have acquired security
Article III of the Provisional Constitution, promulgated of tenure specially considering that the Barangay
on March 25, 1986, which provided: Election Act of 1982 declares it "a policy of the State to
guarantee and promote the autonomy of the barangays
"SECTION 2. All elective and appointive officials and to ensure their fullest development as self-reliant
employees under the 1973 Constitution shall continue communities." 2 Similarly, the 1987 Constitution
in office until otherwise provided by proclamation or ensures the autonomy of local governments and of
executive order or upon the designation or political subdivisions of which the barangays form a
appointment and qualification of their successors, if part, 3 and limits the President's power to "general
such appointment is made within a period of one year supervision" over local governments. 4 Relevantly,
from February 25, 1986." Section 8, Article X of the same 1987 Constutution
further provides in part:
By reason of the foregoing provision, respondents
contend that the terms of office of elective and "Sec. 8. The term of office of elective local officials,
appointive officials were abolished and that petitioners except barangay officials, which shall be determined by
continued in office by virtue of the aforequoted law, shall be three years . . . "
provision and not because their term of six years had
not yet expired; and that the provision in the Barangay Until the term of office of barangay officials has been
Election Act fixing the term of office of Barangay determined by law, therefore, the term of office of six
officials to six (6) years must be deemed to have been (6) years provided for in the Barangay Election Act of
repealed for being inconsistent with the aforequoted 1982 5 should still govern.
provision of the Provisional Constitution.
Contrary to the stand of respondents, we find nothing
Examining the said provision, there should be no inconsistent between the term of six (6) years for
question that petitioners, as elective officials under the elective Barangay officials and the 1987 Constitution,
1973 Constitution, may continue in office but should and the same should, therefore, be considered as still
vacate their positions upon the occurrence of any of the operative, pursuant to Section 3, Article XVIII of the
events mentioned. 1 1987 Constitution, reading:

Since the promulgation of the Provisional Constitution, "Sec. 3. All existing laws, decrees, executive orders,
there has been no proclamation or executive order proclamations, letters of instructions, and other
terminating the term of elective Barangay officials. executive issuances not inconsistent, with this
Thus, the issue for resolution is whether or not the Constitution shall remain operative until amended,
designation of respondents to replace petitioners was repealed or revoked."
validly made during the one-year period which ended
on February 25, 1987. WHEREFORE, (1) The Memoranda issued by
respondent OIC Governor on February 8, 1987
Considering the candid Affidavit of respondent OIC designating respondents as the Barangay Captain and
Governor, we hold that February 8, 1987, should be Barangay Councilmen, respectively, of Barangay
considered as the effective date of replacement and Dolores, Taytay, Rizal, are both declared to be of no
not December 1, 1986 to which it was antedated, in legal force and effect; and (2) the Writ of Prohibition is
keeping with the dictates of justice. granted enjoining respondents perpetually from
proceeding with the ouster/take-over of petitioners'
But while February 8, 1987 is ostensibly still within the positions subject of this Petition. Without costs.
one year deadline, the aforequoted provision in the

107
SO ORDERED.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64
TANADA VS TUVERA (1985) & 65.

LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196,
and MOVEMENT OF ATTORNEYS FOR 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538,
BROTHERHOOD, INTEGRITY AND NATIONALISM, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-
INC. [MABINI], petitioners, 1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695,
vs. 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744,
HON. JUAN C. TUVERA, in his capacity as Executive 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795,
Assistant to the President, HON. JOAQUIN VENUS, in 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816,
his capacity as Deputy Executive Assistant to the 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840,
President , MELQUIADES P. DE LA CRUZ, in his 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866,
capacity as Director, Malacañang Records Office, and 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923,
FLORENDO S. PABLO, in his capacity as Director, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028,
Bureau of Printing, respondents. 2030-2044, 2046-2145, 2147-2161, 2163-2244.
G.R. No. L-63915 | 1985-04-24
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454,
DECISION 457-471, 474-492, 494-507, 509-510, 522, 524-528,
531-532, 536, 538, 543-544, 549, 551-553, 560, 563,
ESCOLIN, J.: 567-568, 570, 574, 593, 594, 598-604, 609, 611-647,
649-677, 679-703, 705-707, 712-786, 788-852, 854-
857.
Invoking the people's right to be informed on matters of
public concern, a right recognized in Section 6, Article f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-
IV of the 1973 Philippine Constitution, 1 as well as the 27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122,
principle that laws to be valid and enforceable must be 123.
published in the Official Gazette or otherwise
effectively promulgated, petitioners seek a writ of g] Administrative Orders Nos.: 347, 348, 352-354, 360-
mandamus to compel respondent public officials to 378, 380-433, 436-439.
publish, and or cause the publication in the Official
Gazette of various presidential decrees, letters of The respondents, through the Solicitor General, would
instructions, general orders, proclamations, executive have this case dismissed outright on the ground that
orders, letter of implementation and administrative petitioners have no legal personality or standing to
orders. bring the instant petition. The view is submitted that in
the absence of any showing that petitioners are
Specifically, the publication of the following presidential personally and directly affected or prejudiced by the
issuances is sought: alleged non-publication of the presidential issuances in
question 2 said petitioners are without the requisite
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, legal personality to institute this mandamus
103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303, proceeding, they are not being "aggrieved parties"
312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, within the meaning of Section 3, Rule 65 of the Rules
404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, of Court, which we quote:
504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658,
661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, "SEC. 3. Petition for Mandamus. - When any tribunal,
961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, corporation, board or person unlawfully neglects the
1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, performance of an act which the law specifically
1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, enjoins as a duty resulting from an office, trust, or
1842-1847. station, or unlawfully excludes another from the use
and enjoyment of a right or office to which such other
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, is entitled, and there is no other plain, speedy and
116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187, adequate remedy in the ordinary course of law, the
188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215- person aggrieved thereby may file a verified petition in
224, 226-228, 231-239, 241-245, 248-251, 253-261, the proper court alleging the facts with certainty and
263-269, 271-273, 275-283, 285-289, 291, 293, 297- praying that judgment be rendered commanding the
299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, defendant, immediately or at some other specified
357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, time, to do the act required to be done to protect the
438-440, 444-445, 473, 486, 488, 498, 501, 399, 527, rights of the petitioner, and to pay the damages
561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, sustained by the petitioner by reason of the wrongful
615, 641, 642, 665, 702, 712-713, 726, 837-839, 878- acts of the defendant."
879, 881, 882, 939-940, 964, 997, 1149-1178, 1180-
1278.

108
Upon the other hand, petitioners maintain that since sought to be enforced by petitioners herein is a public
the subject of the petition concerns a public right and right recognized by no less than the fundamental law
its object is to compel the performance of a public duty, of the land. If petitioners were not allowed to institute
they need not show any specific interest for their this proceeding, it would indeed be difficult to conceive
petition to be given due course. of any other person to initiate the same, considering
that the Solicitor General, the government officer
generally empowered to represent the people, has
The issue posed is not one of first impression. As early entered his appearance for respondents in this case.
as the 1910 case of Severino vs. Governor General, 3
this Court held that while the general rule is that "a writ Respondents further contend that publication in the
of mandamus would be granted to a private individual Official Gazette is not a sine qua non requirement for
only in those cases where he has some private or the effectivity of laws where the laws themselves
particular interest to be subserved, or some particular provide for their own effectivity dates. It is thus
right to be protected, independent of that which he submitted that since the presidential issuances in
holds with the public at large," and "it is for the public question contain special provisions as to the date they
officers exclusively to apply for the writ when public are to take effect, publication in the Official Gazette is
rights are to be subserved [Mithchell vs. Boardmen, 79 not indispensable for their effectivity. The point
M.e., 469]," nevertheless, "when the question is one of stressed is anchored on Article 2 of the Civil Code:
public right and the object of the mandamus is to
procure the enforcement of a public duty, the people "Art. 2. Laws shall take effect after fifteen days
are regarded as the real party in interest and the relator following the completion of their publication in the
at whose instigation the proceedings are instituted Official Gazette, unless it is otherwise provided, . . ."
need not show that he has any legal or special interest
in the result, it being sufficient to show that he is a The interpretation given by respondent is in accord with
citizen and as such interested in the execution of the this Court's construction of said article. In a long line of
laws [High, Extraordinary Legal Remedies, 3rd ed., decisions, 4 this Court has ruled that publication in the
sec. 431]." Official Gazette is necessary in those cases where the
legislation itself does not provide for its effectivity date
Thus, in said case, this Court recognized the relator - for then the date of publication is material for
Lope Severino, a private individual, as a proper party determining its date of effectivity, which is the fifteenth
to the mandamus proceedings brought to compel the day following its publication - but not when the law itself
Governor General to call a special election for the provides for the date when it goes into effect.
position of municipal president in the town of Silay,
Negros Occidental. Speaking for this Court, Mr. Justice Respondents' argument, however, is logically correct
Grant T. Trent said: only insofar as it equates the effectivity of laws with the
fact of publication. Considered in the light of other
"We are therefore of the opinion that the weight of statutes applicable to the issue at hand, the conclusion
authority supports the proposition that the relator is a is easily reached that said Article 2 does not preclude
proper party to proceedings of this character when a the requirement of publication in the Official Gazette,
public right is sought to be enforced. If the general rule even if the law itself provides for the date of its
in America were otherwise, we think that it would not effectivity. Thus, Section 1 of Commonwealth Act 638
be applicable to the case at bar for the reason 'that it is provides as follows:
always dangerous to apply a general rule to a particular
case without keeping in mind the reason for the rule, "Section 1. There shall be published in the Official
because, if under the particular circumstances the Gazette [1] all important legislative acts and resolutions
reason for the rule does not exist, the rule itself is not of a public nature of the Congress of the Philippines;
applicable and reliance upon the rule may well lead to [2] all executive and administrative orders and
error.' proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of
"No reason exists in the case at bar for applying the the Supreme Court and the Court of Appeals as may
general rule insisted upon by counsel for the be deemed by said courts of sufficient importance to
respondent. The circumstances which surround this be so published; [4] such documents or classes of
case are different from those in the United States, documents as may be required so to be published by
inasmuch as if the relator is not a proper party to these law; and [5] such documents or classes of documents
proceedings no other person could be, as we have as the President of the Philippines shall determine from
seen that it is not the duty of the law officer of the time to time to have general applicability and legal
Government to appear and represent the people in effect, or which he may authorize so to be published. .
cases of this character." . ."

The reasons given by the Court in recognizing a private The clear object of the above quoted provision is to
citizen's legal personality in the aforementioned case give the general public adequate notice of the various
apply squarely to the present petition. Clearly, the right laws which are to regulate their actions and conduct as

109
citizens. Without such notice and publication, there the requirement of due process and the Rule of Law
would be no basis for the application of the maxim demand that the Official Gazette as the official
"ignorantia legis non excusat." It would be the height of government repository promulgate and publish the
injustice to punish or otherwise burden a citizen for the texts of all such decrees, orders and instructions so
transgression of a law of which he had no notice that the people may know where to obtain their official
whatsoever, not even a constructive one. and specific contents."

Perhaps at no time since the establishment of the The Court therefore declares that presidential
Philippine Republic has the publication of laws taken issuances of general application, which have not been
so vital significance that at this time when the people published, shall have no force and effect. Some
have bestowed upon the President a power heretofore members of the Court, quite apprehensive about the
enjoyed solely by the legislature. While the people are possible unsettling effect this decision might have on
kept abreast by the mass media of the debates and acts done in reliance of the validity of those presidential
deliberations in the Batasan Pambansa - and for the decrees which were published only during the
diligent ones, ready access to the legislative records - pendency of this petition, have put the question as to
no such publicity accompanies the law-making process whether the Court's declaration of invalidity apply to
of the President. Thus, without publication, the people P.D.s which had been enforced or implemented prior
have no means of knowing what presidential decrees to their publication. The answer is all too familiar. In
have actually been promulgated, much less a definite similar situations in the past this Court had taken the
way of informing themselves of the specific contents pragmatic and realistic course set forth in Chicot
and texts of such decrees. As the Supreme Court of County Drainage District vs. Baxter Bank 8 to wit:
Spain ruled: "Bajo la denominacion genrica de leyes,
se comprenden tambin los reglamentos, Reales "The courts below have proceeded on the theory that
decretos, Instrucciones, Circulares y Reales ordines the Act of Congress, having been found to be
dictadas de conformidad con las mismas por el unconstitutional, was not a law; that it was inoperative,
Gobierno en uso de su potestad." 5 conferring no rights and imposing no duties, and hence
affording no basis for the challenged decree. Norton v.
The very first clause of Section 1 of Commonwealth Act Shelby County, 118 U.S. 425, 442; Chicago, I. & L. Ry.
638 reads: "There shall be published in the Official Co. v. Hackett, 228 U.S. 559, 566. It is quite clear,
Gazette . . ." The word "shall" used therein imposes however, that such broad statements as to the effect of
upon respondent officials an imperative duty. That duty a determination of unconstitutionality must be taken
must be enforced if the Constitutional right of the with qualifications. The actual existence of a statute,
people to be informed on matters of public concern is prior to such a determination, is an operative fact and
to be given substance and reality. The law itself makes may have consequences which cannot justly be
a list of what should be published in the official Gazette. ignored. The past cannot always be erased by a new
Such listing, to our mind, leaves respondents with no judicial declaration. The effect of the subsequent ruling
discretion whatsoever as to what must be included or as to invalidity may have to be considered in various
excluded from such publication. aspects - with respect to particular conduct, private and
official. Questions of rights claimed to have become
The publication of all presidential issuances "of a public vested, of status, of prior determinations deemed to
nature" or "of general applicability" is mandated by law. have finality and acted upon accordingly, of public
Obviously, presidential decrees that provide for fines, policy in the light of the nature both of the statute and
forfeitures or penalties for their violation or otherwise of its previous application, demand examination. These
impose a burden on the people, such as tax and questions are among the most difficult of those which
revenue measures, fall within this category. Other have engaged the attention of courts, state and federal,
presidential issuances which apply only to particular and it is manifest from numerous decisions that an all-
persons or class of persons such as administrative and inclusive statement of a principle of absolute
executive orders need not be published on the retroactive invalidity cannot be justified."
assumption that they have been circularized to all
concerned. 6 Consistently with the above principle, this Court in
Rutter vs. Esteban 9 sustained the right of a party
It is needless to add that the publication of presidential under the Moratorium Law, albeit said right had
issuances "of a public nature" or "of general accrued in his favor before said law was declared
applicability" is a requirement of due process. It is a unconstitutional by this Court.
rule of law that before a person may be bound by law,
he must first be officially and specifically informed of its
contents. As Justice Claudio Teehankee said in Peralta Similarly, the implementation/enforcement of
vs. COMELEC 7: presidential decrees prior to their publication in the
Official Gazette is "an operative fact which may have
consequences which cannot be justly ignored. The
"In a time of proliferating decrees, orders and letters of past cannot always be erased by a new judicial
instructions which all form part of the law of the land, declaration . . . that an all-inclusive statement of a

110
principle of absolute retroactive invalidity cannot be affirmed the necessity for the publication of some of
justified." these decrees, declaring in the dispositive portion as
follows:
From the report submitted to the Court by the Clerk of
Court, it appears that of the presidential decrees "WHEREFORE, the Court hereby orders respondents
sought by petitioners to be published in the Official to publish to the Official Gazette all unpublished
Gazette, only Presidential Decrees Nos. 1019 to 1030, presidential issuances which are of general
inclusive, 1278, and 1937 to 1939, inclusive, have not application, and unless so published, they shall have
been so published. 10 Neither the subject matters nor no binding force and effect."
the texts of these PDs can be ascertained since no
copies thereof are available. But whatever their subject The petitioners are now before us again, this time to
matter may be, it is undisputed that none of these move for reconsideration/clarification of that decision.
unpublished PDs has ever been implemented or 1 Specifically, they ask the following questions:
enforced by the government. In Pesigan vs. Angeles,
11 the Court, through Justice Ramon Aquino, ruled that 1. What is meant by "law of public nature" or "general
"publication is necessary to apprise the public of the applicability"?
contents of [penal] regulations and make the said
penalties binding on the persons affected thereby." The 2. Must a distinction be made between laws of general
cogency of this holding is apparently recognized by applicability and laws which are not?
respondent officials considering the manifestation in
their comment that "the government, as a matter of 3. What is meant by "publication"?
policy, refrains from prosecuting violations of criminal
laws until the same shall have been published in the 4. Where is the publication to be made?
Official Gazette or in some other publication, even
though some criminal laws provide that they shall take 5. When is the publication to be made?
effect immediately."
Resolving their own doubts, the petitioners suggest
WHEREFORE, the Court hereby orders respondents that there should be no distinction between laws of
to publish in the Official Gazette all unpublished general applicability and those which are not; that
presidential issuances which are of general publication means complete publication; and that the
application, and unless so published, they shall have publication must be made forthwith in the Official
no binding force and effect. Gazette. 2

In the Comment 3 required of the then Solicitor

SO ORDERED. General, he claimed first that the motion was a request
for an advisory opinion and should therefore be
TANADA VS TUVERA (1986) dismissed, and, on the merits, that the clause "unless
it is otherwise provided" in Article 2 of the Civil Code
LORENZO M. TANADA, ABRAHAM F. SARMIENTO, meant that the publication required therein was not
and MOVEMENT OF ATTORNEYS FOR always imperative; that publication, when necessary,
BROTHERHOOD, INTEGRITY AND NATIONALISM, did not have to be made in the Official Gazette; and
INC. (MABINI), petitioners, vs. HON. JUAN C. that in any case the subject decision was concurred in
TUVERA. in his capacity as Executive Assistant to the only by three justices and consequently not binding.
President, HON. JOAQUIN VENUS, in his capacity as This elicited a Reply 4 refuting these arguments. Came
Deputy Executive Assistant to the President, next the February Revolution and the Court required
MELQUIADES P. DE LA CRUZ, ETC., ET AL., the new Solicitor General to file a Rejoinder in view of
respondents. the supervening events, under Rule 3, Section 18, of
G.R. No. L-63915 | 1986-12-29 the Rules of Court. Responding, he submitted that
issuances intended only for the interval administration
RESOLUTION of a government agency or for particular persons did
not have to be published; that publication when
CRUZ, J: necessary must be in full and in the Official Gazette;
and that, however, the decision under reconsideration
Due process was invoked by the petitioners in was not binding because it was not supported by eight
demanding the disclosure or a number of presidential members of this Court. 5
decrees which they claimed had not been published as
required by law. The government argued that while The subject of contention is Article 2 of the Civil Code
publication was necessary as a rule, it was not so when providing as follows:
it was "otherwise provided," as when the decrees
themselves declared that they were to become "ART. 2. Laws shall take effect after fifteen days
effective immediately upon their approval. In the following the completion of their publication in the
decision of this case on April 24, 1985, the Court

111
Official Gazette, unless it is otherwise provided. This does not apply directly to all the people. The subject of
Code shall take effect one year after such publication." such law is a matter of public interest which any
member of the body politic may question in the political
After a careful study of this provision and of the forums or, if he is a proper party, even in the courts of
arguments of the parties, both on the original petition justice. In fact, a law without any bearing on the public
and on the instant motion, we have come to the would be invalid as an intrusion of privacy or as class
conclusion, and so hold, that the clause "unless it is legislation or as an ultra vires act of the legislature. To
otherwise provided" refers to the date of effectivity and be valid, the law must invariably affect the public
not to the requirement of publication itself, which interest even if it might be directly applicable only to
cannot in any event be omitted. This clause does not one individual, or some of the people only, and not to
mean that the legislature may make the law effective the public as a whole.
immediately upon approval, or on any other date,
without its previous publication. We hold therefore that all statutes, including those of
local application and private laws, shall be published
Publication is indispensable in every case, but the as a condition for their effectivity, which shall begin
legislature may in its discretion provide that the usual fifteen days after publication unless a different
fifteen-day period shall be shortened or extended. An effectivity date is fixed by the legislature.
example, as pointed out by the present Chief Justice in
his separate concurrence in the original decision, 6 is Covered by this rule are presidential decrees and
the Civil Code which did not become effective after executive orders promulgated by the President in the
fifteen days from its publication in the Official Gazette exercise of legislative powers whenever the same are
but "one year after such publication." The general rule validly delegated by the legislature or, at present,
did not apply because it was "otherwise provided." directly conferred by the Constitution. Administrative
rules and regulations must also be published if their
It is not correct to say that under the disputed clause purpose is to enforce or implement existing law
publication may be dispensed with altogether. The pursuant also to a valid delegation.
reason is that such omission would offend due process
insofar as it would deny the public knowledge of the Interpretative regulations and those merely internal in
laws that are supposed to govern it. Surely, if the nature, that is, regulating only the personnel of the
legislature could validly provide that a law shall administrative agency and not the public, need not be
become effective immediately upon its approval published. Neither is publication required of the so-
notwithstanding the lack of publication (or after an called letters of instructions issued by administrative
unreasonably short period after publication), it is not superiors concerning the rules or guidelines to be
unlikely that persons not aware of it would be followed by their subordinates in the performance of
prejudiced as a result; and they would be so not their duties.
because of a failure to comply with it but simply
because they did not know of its existence. Accordingly, even the charter of a city must be
Significantly, this is not true only of penal laws as is published notwithstanding that it applies to only a
commonly supposed. One can think of many non-penal portion of the national territory and directly affects only
measures, like a law on prescription, which must also the inhabitants of that place. All presidential decrees
be communicated to the persons they may affect must be published, including even, say, those naming
before they can begin to operate. a public place after a favored individual or exempting
him from certain prohibitions or requirements. The
We note at this point the conclusive presumption that circulars issued by the Monetary Board must be
every person knows the law, which of course published if they are meant not merely to interpret but
presupposes that the law has been published if the to "fill in the details" of the Central Bank Act which that
presumption is to have any legal justification at all. It is body is supposed to enforce.
no less important to remember that Section 6 of the Bill
of Rights recognizes "the right of the people to However, no publication is required of the instructions
information on matters of public concern," and this issued by, say, the Minister of Social Welfare on the
certainly applies to, among others, and indeed case studies to be made in petitions for adoption or the
especially, the legislative enactments of the rules laid down by the head of a government agency
government. on the assignments or workload of his personnel or the
wearing of office uniforms. Parenthetically, municipal
The term "laws" should refer to all laws and not only to ordinances are not covered by this rule but by the Local
those of general application, for strictly speaking all Government Code.
laws relate to the people in general albeit there are
some that do not apply to them directly. An example is We agree that the publication must be in full or it is no
a law granting citizenship to a particular individual, like publication at all since its purpose is to inform the public
a relative of President Marcos who was decreed instant of the contents of the laws. As correctly pointed out by
naturalization. It surely cannot be said that such a law the petitioners, the mere mention of the number of the
does not affect the public although it unquestionably presidential decree, the title of such decree, its

112
whereabouts (e.g., "with Secretary Tuvera"), the Finally, the claim of the former Solicitor General that
supposed date of effectivity, and in a mere supplement the instant motion is a request for an advisory opinion
of the Official Gazette cannot satisfy the publication is untenable, to say the least, and deserves no further
requirement. This is not even substantial compliance. comment.
This was the manner, incidentally, in which the General
Appropriations Act for FY 1975, a presidential decree The days of the secret laws and the unpublished
undeniably of general applicability and interest, was decrees are over. This is once again an open society,
"published" by the Marcos administration. 7 The with all the acts of the government subject to public
evident purpose was to withhold rather than disclose scrutiny and available always to public cognizance.
information on this vital law. This has to be so if our country is to remain democratic,
with sovereignty residing in the people and all
Coming now to the original decision, it is true that only government authority emanating from them.
four justices were categorically for publication in the
Official Gazette 8 and that six others felt that Although they have delegated the power of legislation,
publication could be made elsewhere as long as the they retain the authority to review the work of their
people were sufficiently informed. 9 One reserved his delegates and to ratify or reject it according to their
vote 10 and another merely acknowledged the need for lights, through their freedom of expression and their
due publication without indicating where it should be right of suffrage. This they cannot do if the acts of the
made, 11 It is therefore necessary for the present legislature are concealed.
membership of this Court to arrive at a clear consensus
on this matter and to lay down a binding decision Laws must come out in the open in the clear light of the
supported by the necessary vote. sun instead of skulking in the shadows with their dark,
deep secrets. Mysterious pronouncements and
There is much to be said of the view that the publication rumored rules cannot be recognized as binding unless
need not be made in the Official Gazette, considering their existence and contents are confirmed by a valid
its erratic releases and limited readership. publication intended to make full disclosure and give
Undoubtedly, newspapers of general circulation could proper notice to the people. The furtive law is like a
better perform the function of communicating the laws scabbarded saber that cannot feint, parry or cut unless
to the people as such periodicals are more easily the naked blade is drawn.
available, have a wider readership, and come out
regularly. The trouble, though, is that this kind of WHEREFORE, it is hereby declared that all laws as
publication is not the one required or authorized by above defined shall immediately upon their approval,
existing law. As far as we know, no amendment has or as soon thereafter as possible, be published in full
been made of Article 2 of the Civil Code. The Solicitor in the Official Gazette, to become effective only after
General has not pointed to such a law, and we have no fifteen days from their publication, or on another date
information that it exists. If it does, it obviously has not specified by the legislature, in accordance with Article
yet been published. 2 of the Civil Code.

At any rate, this Court is not called upon to rule upon SO ORDERED.
the wisdom of a law or to repeal or modify it if we find
it impractical. That is not our function. That function GONZALES VS COMELEC (1967)
belongs to the legislature. Our task is merely to
interpret and apply the law as conceived and approved RAMON A. GONZALES, petitioner,
by the political departments of the government in vs.
accordance with the prescribed procedure. COMMISSION ON ELECTIONS, DIRECTOR OF
Consequently, we have no choice but to pronounce PRINTING and AUDITOR GENERAL, respondents.
that under Article 2 of the Civil Code, the publication of
laws must be made in the Official Gazette, and not PHILIPPINE CONSTITUTION ASSOCIATION
elsewhere, as a requirement for their effectivity after (PHILCONSA), petitioner,
fifteen days from such publication or after a different vs.
period provided by the legislature. COMMISSION ON ELECTIONS, respondent.
G.R. No. L-28196 and G.R. No. L-28224 | 1967-11-09
We also hold that the publication must be made
forthwith, or at least as soon as possible, to give effect EN BANC
to the law pursuant to the said Article 2. There is that
possibility, of course, although not suggested by the CONCEPCION, C.J.:
parties that a law could be rendered unenforceable by
a mere refusal of the executive, for whatever reason, G. R. No. L-28196 is an original action for prohibition,
to cause its publication as required. This is a matter, with preliminary injunction.
however, that we do not need to examine at this time.
Petitioner therein prays for judgment:

113
1) Restraining: (a) the Commission on Elections from which was expected to decide it any time, and whose
enforcing Republic Act No. 4913, or from performing decision would, in all probability, be appealed to this
any act that will result in the holding of the plebiscite for Court — had been submitted thereto for final
the ratification of the constitutional amendments determination, for a joint decision on the identical
proposed in Joint Resolutions Nos. 1 and 3 of the two issues raised in both cases. In fact, on October 31,
Houses of Congress of the Philippines, approved on 1967, the PHILCONSA filed with this Court the petition
March 16, 1967; (b) the Director of Printing from in G. R. No. L-28224, for review by certiorari of the
printing ballots, pursuant to said Act and Resolutions; resolution of the Commission on Elections2 dismissing
and (c) the Auditor General from passing in audit any the petition therein. The two (2) cases were deemed
disbursement from the appropriation of funds made in submitted for decision on November 8, 1967, upon the
said Republic Act No. 4913; and filing of the answer of respondent, the memorandum of
the petitioner and the reply memorandum of
2) declaring said Act unconstitutional and void. respondent in L-28224.

The main facts are not disputed. On March 16, 1967, Ramon A. Gonzales, the petitioner in L-28196, is
the Senate and the House of Representatives passed admittedly a Filipino citizen, a taxpayer, and a voter.
the following resolutions: He claims to have instituted case L-28196 as a class
unit, for and in behalf of all citizens, taxpayers, and
1. R. B. H. (Resolution of Both Houses) No. 1, voters similarly situated. Although respondents and the
proposing that Section 5, Article VI, of the Constitution Solicitor General have filed an answer denying the
of the Philippines, be amended so as to increase the truth of this allegation, upon the ground that they have
membership of the House of Representatives from a no knowledge or information to form a belief as to the
maximum of 120, as provided in the present truth thereof, such denial would appear to be a
Constitution, to a maximum of 180, to be apportioned perfunctory one. In fact, at the hearing of case L-
among the several provinces as nearly as may be 28196, the Solicitor General expressed himself in favor
according to the number of their respective inhabitants, of a judicial determination of the merits of the issued
although each province shall have, at least, one (1) raised in said case.
member;
The PHILCONSA, petitioner in L-28224, is admittedly
2. R. B. H. No. 2, calling a convention to propose a corporation duly organized and existing under the
amendments to said Constitution, the convention to be laws of the Philippines, and a civic, non-profit and non-
composed of two (2) elective delegates from each partisan organization the objective of which is to uphold
representative district, to be "elected in the general the rule of law in the Philippines and to defend its
elections to be held on the second Tuesday of Constitution against erosions or onslaughts from
November, 1971;" and whatever source. Despite his aforementioned
statement in L-28196, in his answer in L-28224 the
3. R. B. H. No. 3, proposing that Section 16, Article VI, Solicitor General maintains that this Court has no
of the same Constitution, be amended so as to jurisdiction over the subject-matter of L-28224, upon
authorize Senators and members of the House of the ground that the same is "merely political" as held in
Representatives to become delegates to the Mabanag vs. Lopez Vito.3 Senator Arturo M. Tolentino,
aforementioned constitutional convention, without who appeared before the Commission on Elections
forfeiting their respective seats in Congress. and filed an opposition to the PHILCONSA petition
therein, was allowed to appear before this Court and
Subsequently, Congress passed a bill, which, upon objected to said petition upon the ground: a) that the
approval by the President, on June 17, 1967, became Court has no jurisdiction either to grant the relief sought
Republic Act No. 4913, providing that the amendments in the petition, or to pass upon the legality of the
to the Constitution proposed in the aforementioned composition of the House of Representatives; b) that
Resolutions No. 1 and 3 be submitted, for approval by the petition, if granted, would, in effect, render in
the people, at the general elections which shall be held operational the legislative department; and c) that "the
on November 14, 1967. failure of Congress to enact a valid reapportionment
law . . . does not have the legal effect of rendering
The petition in L-28196 was filed on October 21, 1967. illegal the House of Representatives elected thereafter,
At the hearing thereof, on October 28, 1967, the nor of rendering its acts null and void."
Solicitor General appeared on behalf of respondents.
Moreover, Atty. Juan T. David and counsel for the JURISDICTION
Philippine Constitution Association — hereinafter
referred to as the PHILCONSA — were allowed to As early as Angara vs. Electoral Commission,4 this
argue as amici curiae. Said counsel for the Court — speaking through one of the leading members
PHILCONSA, Dr. Salvador Araneta, likewise prayed of the Constitutional Convention and a respected
that the decision in this case be deferred until after a professor of Constitutional Law, Dr. Jose P. Laurel —
substantially identical case brought by said declared that "the judicial department is the only
organization before the Commission on Elections,1 constitutional organ which can be called upon to

114
determine the proper allocation of powers between the brush aside and set the same at naught, contrary to the
several departments and among the integral or basic tenet that ours is a government of laws, not of
constituent units thereof." It is true that in Mabanag vs. men, and to the rigid nature of our Constitution. Such
Lopez Vito,5 this Court characterizing the issue rigidity is stressed by the fact that, the Constitution
submitted thereto as a political one, declined to pass expressly confers upon the Supreme Court,14 the
upon the question whether or not a given number of power to declare a treaty unconstitutional,15 despite
votes cast in Congress in favor of a proposed the eminently political character of treaty-making
amendment to the Constitution — which was being power.
submitted to the people for ratification — satisfied the
three-fourths vote requirement of the fundamental law. In short, the issue whether or not a Resolution of
The force of this precedent has been weakened, Congress — acting as a constituent assembly —
however, by Suanes vs. Chief Accountant of the violates the Constitution essentially justiciable, not
Senate,6 Avelino vs. Cuenco,7 Tañada vs. Cuenco,8 political, and, hence, subject to judicial review, and, to
and Macias vs. Commission on Elections.9 In the first, the extent that this view may be inconsistent with the
we held that the officers and employees of the Senate stand taken in Mabanag vs. Lopez Vito,16 the latter
Electoral Tribunal are under its supervision and control, should be deemed modified accordingly. The Members
not of that of the Senate President, as claimed by the of the Court are unanimous on this point.
latter; in the second, this Court proceeded to determine
the number of Senators necessary for a quorum in the THE MERITS
Senate; in the third, we nullified the election, by
Senators belonging to the party having the largest Section 1 of Article XV of the Constitution, as amended,
number of votes in said chamber, purporting to act on reads:
behalf of the party having the second largest number
of votes therein, of two (2) Senators belonging to the The Congress in joint session assembled by a vote of
first party, as members, for the second party, of the, three-fourths of all the Members of the Senate and of
Senate Electoral Tribunal; and in the fourth, we the House of Representatives voting separately, may
declared unconstitutional an act of Congress propose amendments to this Constitution or call a
purporting to apportion the representative districts for convention for that purpose. Such amendments shall
the House of Representatives, upon the ground that be valid as part of this Constitution when approved by
the apportionment had not been made as may be a majority of the votes cast at an election at which the
possible according to the number of inhabitants of each amendments are submitted to the people for their
province. Thus we rejected the theory, advanced in ratification.
these four (4) cases, that the issues therein raised were
political questions the determination of which is beyond Pursuant to this provision, amendments to the
judicial review. Constitution may be proposed, either by Congress, or
by a convention called by Congress for that purpose.
Indeed, the power to amend the Constitution or to In either case, the vote of "three-fourths of all the
propose amendments thereto is not included in the members of the Senate and of the House of
general grant of legislative powers to Congress.10 It is Representatives voting separately" is necessary. And,
part of the inherent powers of the people — as the "such amendments shall be valid as part of" the
repository of sovereignty in a republican state, such as "Constitution when approved by a majority of the votes
ours11 — to make, and, hence, to amend their own cast at an election at which the amendments are
Fundamental Law. Congress may propose submitted to the people for their ratification."
amendments to the Constitution merely because the
same explicitly grants such power.12 Hence, when In the cases at bar, it is conceded that the R. B. H. Nos.
exercising the same, it is said that Senators and 1 and 3 have been approved by a vote of three-fourths
Members of the House of Representatives act, not as of all the members of the Senate and of the House of
members of Congress, but as component elements of Representatives voting separately. This,
a constituent assembly. When acting as such, the notwithstanding, it is urged that said resolutions are
members of Congress derive their authority from the null and void because:
Constitution, unlike the people, when performing the
same function,13 for their authority does not emanate 1. The Members of Congress, which approved the
from the Constitution — they are the very source of all proposed amendments, as well as the resolution
powers of government, including the Constitution itself calling a convention to propose amendments, are, at
. best, de facto Congressmen;

Since, when proposing, as a constituent assembly, 2. Congress may adopt either one of two alternatives
amendments to the Constitution, the members of propose — amendments or call a convention therefore
Congress derive their authority from the Fundamental but may not avail of both — that is to say, propose
Law, it follows, necessarily, that they do not have the amendment and call a convention — at the same time;
final say on whether or not their acts are within or
beyond constitutional limits. Otherwise, they could

115
3. The election, in which proposals for amendment to Congress" and that, in consequence thereof, the
the Constitution shall be submitted for ratification, must Members of its House of Representatives are de facto
be a special election, not a general election, in which officers. The major premise of this process of
officers of the national and local governments — such reasoning is that the constitutional provision on
as the elections scheduled to be held on November 14, "apportionment within three years after the return of
1967 — will be chosen; and every enumeration, and not otherwise," is mandatory.
The fact that Congress is under legal obligation to
4. The spirit of the Constitution demands that the make said apportionment does not justify, however, the
election, in which proposals for amendment shall be conclusion that failure to comply with such obligation
submitted to the people for ratification, must be held rendered Congress illegal or unconstitutional, or that its
under such conditions — which, allegedly, do not exist Members have become de facto officers.
— as to give the people a reasonable opportunity to
have a fair grasp of the nature and implications of said It is conceded that, since the adoption of the
amendments. Constitution in 1935, Congress has not made a valid
apportionment as required in said fundamental law.
Legality of Congress and Legal Status of the The effect of this omission has been envisioned in the
Congressmen Constitution, pursuant to which:

The first objection is based upon Section 5, Article VI, . . . Until such apportionment shall have been made,
of the Constitution, which provides: the House of Representatives shall have the same
number of Members as that fixed by law for the
The House of Representatives shall be composed of National Assembly, who shall be elected by the
not more than one hundred and twenty Members who qualified electors from the present Assembly districts. .
shall be apportioned among the several provinces as ...
nearly as may be according to the number of their
respective inhabitants, but each province shall have at The provision does not support the view that, upon the
least one Member. The Congress shall by law make an expiration of the period to make the apportionment, a
apportionment within three years after the return of Congress which fails to make it is dissolved or
every enumeration, and not otherwise. Until such becomes illegal. On the contrary, it implies necessarily
apportionment shall have been made, the House of that Congress shall continue to function with the
Representatives shall have the same number of representative districts existing at the time of the
Members as that fixed by law for the National expiration of said period.
Assembly, who shall be elected by the qualified
electors from the present Assembly districts. Each It is argued that the above-quoted provision refers only
representative district shall comprise, as far as to the elections held in 1935. This theory assumes that
practicable, contiguous and compact territory. an apportionment had to be made necessarily before
the first elections to be held after the inauguration of
It is urged that the last enumeration or census took the Commonwealth of the Philippines, or in 1938.19
place in 1960; that, no apportionment having been The assumption, is, however, unwarranted, for there
made within three (3) years thereafter, the Congress of had been no enumeration in 1935, and nobody could
the Philippines and/or the election of its Members foretell when it would be made. Those who drafted and
became illegal; that Congress and its Members, adopted the Constitution in 1935 could be certain,
likewise, became a de facto Congress and/or de facto therefore, that the three-year period, after the earliest
congressmen, respectively; and that, consequently, possible enumeration, would expire after the elections
the disputed Resolutions, proposing amendments to in 1938.
the Constitution, as well as Republic Act No. 4913, are
null and void. What is more, considering that several provisions of
the Constitution, particularly those on the legislative
It is not true, however, that Congress has not made an department, were amended in 1940, by establishing a
apportionment within three years after the enumeration bicameral Congress, those who drafted and adopted
or census made in 1960. It did actually pass a bill, said amendment, incorporating therein the provision of
which became Republic Act No. 3040, 17 purporting to the original Constitution regarding the apportionment of
make said apportionment. This Act was, however, the districts for representatives, must have known that
declared unconstitutional, upon the ground that the the three-year period therefor would expire after the
apportionment therein undertaken had not been made elections scheduled to be held and actually held in
according to the number of inhabitants of the different 1941.
provinces of the Philippines.18
Thus, the events contemporaneous with the framing
Moreover, we are unable to agree with the theory that, and ratification of the original Constitution in 1935 and
in view of the failure of Congress to make a valid of the amendment thereof in 1940 strongly indicate that
apportionment within the period stated in the the provision concerning said apportionment and the
Constitution, Congress became an "unconstitutional effect of the failure to make it were expected to be

116
applied to conditions obtaining after the elections in Article IX of the Constitution. In short, the loss of office
1935 and 1938, and even after subsequent elections. or the extinction of title thereto is not automatic.

Then again, since the report of the Director of the Even if we assumed, however, that the present
Census on the last enumeration was submitted to the Members of Congress are merely de facto officers, it
President on November 30, 1960, it follows that the would not follow that the contested resolutions and
three-year period to make the apportionment did not Republic Act No. 4913 are null and void. In fact, the
expire until 1963, or after the Presidential elections in main reasons for the existence of the de facto doctrine
1961. There can be no question, therefore, that the is that public interest demands that acts of persons
Senate and the House of Representatives organized or holding, under color of title, an office created by a valid
constituted on December 30, 1961, were de jure statute be, likewise, deemed valid insofar as the public
bodies, and that the Members thereof were de jure — as distinguished from the officer in question — is
officers. Pursuant to the theory of petitioners herein, concerned.21 Indeed, otherwise, those dealing with
upon expiration of said period of three years, or late in officers and employees of the Government would be
1963, Congress became illegal and its Members, or at entitled to demand from them satisfactory proof of their
least, those of the House of Representatives, became title to the positions they hold, before dealing with
illegal holder of their respective offices, and were de them, or before recognizing their authority or obeying
facto officers. their commands, even if they should act within the
limits of the authority vested in their respective offices,
Petitioners do not allege that the expiration of said positions or employments.22 One can imagine this
three-year period without a reapportionment, had the great inconvenience, hardships and evils that would
effect of abrogating or repealing the legal provision result in the absence of the de facto doctrine.
creating Congress, or, at least, the House of
Representatives, and are not aware of any rule or As a consequence, the title of a de facto officer cannot
principle of law that would warrant such conclusion. be assailed collaterally.23 It may not be contested
Neither do they allege that the term of office of the except directly, by quo warranto proceedings. Neither
members of said House automatically expired or that may the validity of his acts be questioned upon the
they ipso facto forfeited their seats in Congress, upon ground that he is merely a de facto officer.24 And the
the lapse of said period for reapportionment. In fact, reasons are obvious: (1) it would be an indirect inquiry
neither our political law, nor our law on public officers, into the title to the office; and (2) the acts of a de facto
in particular, supports the view that failure to discharge officer, if within the competence of his office, are valid,
a mandatory duty, whatever it may be, would insofar as the public is concerned.
automatically result in the forfeiture of an office, in the
absence of a statute to this effect. It is argued that the foregoing rules do not apply to the
cases at bar because the acts therein involved have
Similarly, it would seem obvious that the provision of not been completed and petitioners herein are not third
our Election Law relative to the election of Members of parties. This pretense is untenable. It is inconsistent
Congress in 1965 were not repealed in consequence with Tayko vs. Capistrano.25 In that case, one of the
of the failure of said body to make an apportionment parties to a suit being heard before Judge Capistrano
within three (3) years after the census of 1960. objected to his continuing to hear the case, for the
Inasmuch as the general elections in 1965 were reason that, meanwhile, he had reached the age of
presumably held in conformity with said Election Law, retirement. This Court held that the objection could not
and the legal provisions creating Congress — with a be entertained, because the Judge was at least, a de
House of Representatives composed of members facto Judge, whose title can not be assailed
elected by qualified voters of representative districts as collaterally. It should be noted that Tayko was not a
they existed at the time of said elections — remained third party insofar as the Judge was concerned. Tayko
in force, we can not see how said Members of the was one of the parties in the aforementioned suit.
House of Representatives can be regarded as de facto Moreover, Judge Capistrano had not, as yet, finished
officers owing to the failure of their predecessors in hearing the case, much less rendered decision therein.
office to make a reapportionment within the period No rights had vested in favor of the parties, in
aforementioned. consequence of the acts of said Judge. Yet, Tayko's
objection was overruled. Needless to say, insofar as
Upon the other hand, the Constitution authorizes the Congress is concerned, its acts, as regards the
impeachment of the President, the Vice-President, the Resolutions herein contested and Republic Act No.
Justices of the Supreme Court and the Auditor General 4913, are complete. Congress has nothing else to do
for, inter alia, culpable violation of the Constitution,20 in connection therewith.
the enforcement of which is, not only their mandatory
duty, but also, their main function. This provision The Court is, also, unanimous in holding that the
indicates that, despite the violation of such mandatory objection under consideration is untenable.
duty, the title to their respective offices remains
unimpaired, until dismissal or ouster pursuant to a Available Alternatives to Congress
judgment of conviction rendered in accordance with

117
Atty. Juan T. David, as amicus curiae, maintains that Article XV of the Constitution provides:
Congress may either propose amendments to the
Constitution or call a convention for that purpose, but it . . . The Congress in joint session assembled, by a vote
can not do both, at the same time. This theory is based of three-fourths of all the Members of the Senate and
upon the fact that the two (2) alternatives are of the House of Representatives voting separately,
connected in the Constitution by the disjunctive "or." may propose amendments to this Constitution or call a
Such basis is, however, a weak one, in the absence of contention for that purpose. Such amendments shall
other circumstances — and none has brought to our be valid as part of this Constitution when approved by
attention — supporting the conclusion drawn by the a majority of the votes cast at an election at which the
amicus curiae. In fact, the term "or" has, oftentimes, amendments are submitted to the people for their
been held to mean "and," or vice-versa, when the spirit ratification.
or context of the law warrants it.26
There is in this provision nothing to indicate that the
It is, also, noteworthy that R. B. H. Nos. 1 and 3 "election" therein referred to is a "special," not a
propose amendments to the constitutional provision on general, election. The circumstance that three previous
Congress, to be submitted to the people for ratification amendments to the Constitution had been submitted to
on November 14, 1967, whereas R. B. H. No. 2 calls the people for ratification in special elections merely
for a convention in 1971, to consider proposals for shows that Congress deemed it best to do so under the
amendment to the Constitution, in general. In other circumstances then obtaining. It does not negate its
words, the subject-matter of R. B. H. No. 2 is different authority to submit proposed amendments for
from that of R B. H. Nos. 1 and 3. Moreover, the ratification in general elections.
amendments proposed under R. B. H. Nos. 1 and 3,
will be submitted for ratification several years before It would be better, from the viewpoint of a thorough
those that may be proposed by the constitutional discussion of the proposed amendments, that the
convention called in R. B. H. No. 2. Again, although the same be submitted to the people's approval
three (3) resolutions were passed on the same date, independently of the election of public officials. And
they were taken up and put to a vote separately, or one there is no denying the fact that an adequate appraisal
after the other. In other words, they were not passed at of the merits and demerits proposed amendments is
the same time. likely to be overshadowed by the great attention
usually commanded by the choice of personalities
In any event, we do not find, either in the Constitution, involved in general elections, particularly when
or in the history thereof anything that would negate the provincial and municipal officials are to be chosen. But,
authority of different Congresses to approve the then, these considerations are addressed to the
contested Resolutions, or of the same Congress to wisdom of holding a plebiscite simultaneously with the
pass the same in, different sessions or different days election of public officer. They do not deny the authority
of the same congressional session. And, neither has of Congress to choose either alternative, as implied in
any plausible reason been advanced to justify the the term "election" used, without qualification, in the
denial of authority to adopt said resolutions on the abovequoted provision of the Constitution. Such
same day. authority becomes even more patent when we
consider: (1) that the term "election," normally refers to
Counsel ask: Since Congress has decided to call a the choice or selection of candidates to public office by
constitutional convention to propose amendments, popular vote; and (2) that the word used in Article V of
why not let the whole thing be submitted to said the Constitution, concerning the grant of suffrage to
convention, instead of, likewise, proposing some women is, not "election," but "plebiscite."
specific amendments, to be submitted for ratification
before said convention is held? The force of this Petitioners maintain that the term "election," as used in
argument must be conceded. but the same impugns Section 1 of Art. XV of the Constitution, should be
the wisdom of the action taken by Congress, not its construed as meaning a special election. Some
authority to take it. One seeming purpose thereof to members of the Court even feel that said term
permit Members of Congress to run for election as ("election") refers to a "plebiscite," without any
delegates to the constitutional convention and "election," general or special, of public officers. They
participate in the proceedings therein, without forfeiting opine that constitutional amendments are, in general,
their seats in Congress. Whether or not this should be if not always, of such important, if not transcendental
done is a political question, not subject to review by the and vital nature as to demand that the attention of the
courts of justice. people be focused exclusively on the subject-matter
thereof, so that their votes thereon may reflect no more
On this question there is no disagreement among the than their intelligent, impartial and considered view on
members of the Court. the merits of the proposed amendments, unimpaired,
or, at least, undiluted by extraneous, if not insidious
May Constitutional Amendments Be Submitted for factors, let alone the partisan political considerations
Ratification in a General Election? that are likely to affect the selection of elective officials.

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This, certainly, is a situation to be hoped for. It is a goal constitutional requirement that proposals for
the attainment of which should be promoted. The ideal amendment be "submitted to the people for their
conditions are, however, one thing. The question ratification," and that said measures are manifestly
whether the Constitution forbids the submission of insufficient, from a constitutional viewpoint, to inform
proposals for amendment to the people except under the people of the amendment sought to be made.
such conditions, is another thing. Much as the writer
and those who concur in this opinion admire the These were substantially the same means availed of to
contrary view, they find themselves unable to inform the people of the subject submitted to them for
subscribe thereto without, in effect, reading into the ratification, from the original Constitution down to the
Constitution what they believe is not written thereon Parity Amendment. Thus, referring to the original
and can not fairly be deduced from the letter thereof, Constitution, Section 1 of Act No. 4200, provides:
since the spirit of the law should not be a matter of
sheer speculation. Said Constitution, with the Ordinance appended
thereto, shall be published in the Official Gazette, in
The majority view — although the votes in favor thereof English and in Spanish, for three consecutive issues at
are insufficient to declare Republic Act No. 4913 least fifteen days prior to said election, and a printed
unconstitutional — as ably set forth in the opinion copy of said Constitution, with the Ordinance
penned by Mr. Justice Sanchez, is, however, appended thereto, shall be posted in a conspicuous
otherwise. place in each municipal and provincial government
office building and in each polling place not later than
Would the Submission now of the Contested the twenty-second day of April, nineteen hundred and
Amendments to the People Violate the Spirit of the thirty-five, and shall remain posted therein continually
Constitution? until after the termination of the election. At least ten
copies of the Constitution with the Ordinance
It should be noted that the contested Resolutions were appended thereto, in English and in Spanish, shall be
approved on March 16, 1967, so that, by November 14, kept at each polling place available for examination by
1967, our citizenry shall have had practically eight (8) the qualified electors during election day. Whenever
months to be informed on the amendments in question. practicable, copies in the principal local dialects as may
Then again, Section 2 of Republic Act No. 4913 be determined by the Secretary of the Interior shall also
provides: be kept in each polling place.

(1) that "the amendments shall be published in three The provision concerning woman's suffrage is Section
consecutive issues of the Official Gazette, at least 1 of Commonwealth Act No. 34, reading:
twenty days prior to the election;"
Said Article V of the Constitution shall be published in
(2) that "a printed copy of the proposed amendments the Official Gazette, in English and in Spanish, for three
shall be posted in a conspicuous place in every consecutive issues at least fifteen days prior to said
municipality, city and provincial office building and in election, and the said Article V shall be posted in a
every polling place not later than October 14, 1967," conspicuous place in each municipal and provincial
and that said copy "shall remain posted therein until office building and in each polling place not later than
after the election;" the twenty-second day of April, nineteen and thirty-
seven, and shall remain posted therein continually until
(3) that "at least five copies of said amendment shall after the termination of the plebiscite. At least ten
be kept in each polling place, to be made available for copies of said Article V of the Constitution, in English
examination by the qualified electors during election and in Spanish, shall be kept at each polling place
day;" available for examination by the qualified electors
during the plebiscite. Whenever practicable, copies in
(4) that "when practicable, copies in the principal native the principal native languages, as may be determined
languages, as may be determined by the Commission by the Secretary of the Interior, shall also be kept in
on Elections, shall be kept in each polling place;" each polling place.

(5) that "the Commission on Elections shall make Similarly, Section 2, Commonwealth Act No. 517,
available copies of said amendments in English, referring to the 1940 amendments, is of the following
Spanish and, whenever practicable, in the principal tenor:
native languages, for free distributing:" and
The said amendments shall be published in English
(6) that the contested Resolutions "shall be printed in and Spanish in three consecutive issues of the Official
full" on the back of the ballots which shall be used on Gazette at least twenty days prior to the election. A
November 14, 1967. printed copy thereof shall be posted in a conspicuous
place in every municipal, city, and provincial
We are not prepared to say that the foregoing government office building and in every polling place
measures are palpably inadequate to comply with the not later than May eighteen, nineteen hundred and

119
forty, and shall remain posted therein until after the the increase of the maximum number of seats in the
election. At least ten copies of said amendments shall House of Representatives, from 120 to 180, and —
be kept in each polling place to be made available for under R. B. H. No. 3 — the authority given to the
examination by the qualified electors during election members of Congress to run for delegates to the
day. When practicable, copies in the principal native Constitutional Convention and, if elected thereto, to
languages, as may be determined by the Secretary of discharge the duties of such delegates, without
the Interior, shall also be kept therein. forfeiting their seats in Congress. We — who constitute
the minority — believe that Republic Act No. 4913
As regards the Parity Amendment, Section 2 of satisfies such requirement and that said Act is,
Republic Act No. 73 is to the effect that: accordingly, constitutional.

The said amendment shall be published in English and A considerable portion of the people may not know how
Spanish in three consecutive issues of the Official over 160 of the proposed maximum of representative
Gazette at least twenty days prior to the election. A districts are actually apportioned by R. B. H. No. 1
printed copy thereof shall be posted in a conspicuous among the provinces in the Philippines. It is not
place in every municipal, city, and provincial improbable, however, that they are not interested in the
government office building and in every polling place details of the apportionment, or that a careful reading
not later than February eleven, nineteen hundred and thereof may tend in their simple minds, to impair a clear
forty-seven, and shall remain posted therein until after vision thereof. Upon the other hand, those who are
the election. At least, ten copies of the said amendment more sophisticated, may enlighten themselves
shall be kept in each polling place to be made available sufficiently by reading the copies of the proposed
for examination by the qualified electors during election amendments posted in public places, the copies kept
day. When practicable, copies in the principal native in the polling places and the text of contested
languages, as may be determined by the Commission resolutions, as printed in full on the back of the ballots
on Elections, shall also be kept in each polling place. they will use.

The main difference between the present situation and It is, likewise, conceivable that as many people, if not
that obtaining in connection with the former proposals more, may fail to realize or envisage the effect of R. B.
does not arise from the law enacted therefor. The H. No. 3 upon the work of the Constitutional
difference springs from the circumstance that the major Convention or upon the future of our Republic. But,
political parties had taken sides on previous then, nobody can foretell such effect with certainty.
amendments to the Constitution — except, perhaps, From our viewpoint, the provisions of Article XV of the
the woman's suffrage — and, consequently, debated Constitution are satisfied so long as the electorate
thereon at some length before the plebiscite took knows that R. B. H. No. 3 permits Congressmen to
place. Upon the other hand, said political parties have retain their seats as legislators, even if they should run
not seemingly made an issue on the amendments now for and assume the functions of delegates to the
being contested and have, accordingly, refrained from Convention.
discussing the same in the current political campaign.
Such debates or polemics as may have taken place — We are impressed by the factors considered by our
on a rather limited scale — on the latest proposals for distinguished and esteemed brethren, who opine
amendment, have been due principally to the initiative otherwise, but, we feel that such factors affect the
of a few civic organizations and some militant members wisdom of Republic Act No. 4913 and that of R. B. H.
of our citizenry who have voiced their opinion thereon. Nos. 1 and 3, not the authority of Congress to approve
A legislation cannot, however, be nullified by reason of the same.
the failure of certain sectors of the community to
discuss it sufficiently. Its constitutionality or The system of checks and balances underlying the
unconstitutionality depends upon no other factors than judicial power to strike down acts of the Executive or of
those existing at the time of the enactment thereof, Congress transcending the confines set forth in the
unaffected by the acts or omissions of law enforcing fundamental laws is not in derogation of the principle
agencies, particularly those that take place of separation of powers, pursuant to which each
subsequently to the passage or approval of the law. department is supreme within its own sphere. The
determination of the conditions under which the
Referring particularly to the contested proposals for proposed amendments shall be submitted to the
amendment, the sufficiency or insufficiency, from a people is concededly a matter which falls within the
constitutional angle, of the submission thereof for legislative sphere. We do not believe it has been
ratification to the people on November 14, 1967, satisfactorily shown that Congress has exceeded the
depends — in the view of those who concur in this limits thereof in enacting Republic Act No. 4913.
opinion, and who, insofar as this phase of the case, Presumably, it could have done something better to
constitute the minority — upon whether the provisions enlighten the people on the subject-matter thereof. But,
of Republic Act No. 4913 are such as to fairly apprise then, no law is perfect. No product of human endeavor
the people of the gist, the main idea or the substance is beyond improvement. Otherwise, no legislation
of said proposals, which is — under R. B. H. No. 1 — would be constitutional and valid. Six (6) Members of

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this Court believe, however, said Act and R. B. H. Nos. 1. Fixing the time and dates for signature gathering all
1 and 3 violate the spirit of the Constitution. over the country;

Inasmuch as there are less than eight (8) votes in favor 2. Causing the necessary publications of said Order
of declaring Republic Act 4913 and R. B. H. Nos. 1 and and the attached "Petition for Initiative on the 1987
3 unconstitutional and invalid, the petitions in these two Constitution, in newspapers of general and local
(2) cases must be, as they are hereby, dismiss and the circulation;
writs therein prayed for denied, without special
pronouncement as to costs. It is so ordered. 3. Instructing Municipal Election Registrars in all
Regions of the Philippines, to assist Petitioners and
SANTIAGO VS COMELEC (1997) volunteers, in establishing signing stations at the time
and on the dates designated for the purpose.
MIRIAM DEFENSOR SANTIAGO, ALEXANDER
PADILLA, and MARIA ISABEL ONGPIN, petitioners, Delfin alleged in his petition that he is a founding
vs. COMMISSION ON ELECTIONS, JESUS DELFIN, member of the Movement for People's Initiative, 6 a
ALBERTO PEDROSA & CARMEN PEDROSA, in their group of citizens desirous to avail of the system
capacities as founding members of the People's intended to institutionalize people power; that he and
Initiative for Reforms, Modernization and Action the members of the Movement and other volunteers
(PIRMA), respondents. / SENATOR RAUL S. ROCO, intend to exercise the power to directly propose
DEMOKRASYA-IPAGTANGGOL ANG amendments to the Constitution granted under Section
KONSTITUSYON (DIK), MOVEMENT OF 2, Article XVII of the Constitution; that the exercise of
ATTORNEYS FOR BROTHERHOOD INTEGRITY that power shall be conducted in proceedings under
AND NATIONALISM, INC. (MABINI), INTEGRATED the control and supervision of the COMELEC; that, as
BAR OF THE PHILIPPINES (IBP), and LABAN NG required in COMELEC Resolution No. 2300, signature
DEMOKRATIKONG PILIPINO (LABAN), petitioners- stations shall be established all over the country, with
intervenors. the assistance of municipal election registrars, who
G.R. No. 127325 | 1997-03-19 shall verify the signatures affixed by individual
signatories; that before the Movement and other
DECISION volunteers can gather signatures, it is necessary that
the time and dates to be designated for the purpose be
DAVIDE, JR., J: first fixed in an order to be issued by the COMELEC;
and that to adequately inform the people of the
The heart of this controversy brought to us by way of a electoral process involved, it is likewise necessary that
petition for prohibition under Rule 65 of the Rules of the said order, as well as the Petition on which the
Court is the right of the people to directly propose signatures shall be affixed, be published in
amendments to the Constitution through the system of newspapers of general and local circulation, under the
initiative under Section 2 of Article XVII of the 1987 control and supervision of the COMELEC.
Constitution. Undoubtedly, this demands special
attention, as this system of initiative was unknown to The Delfin Petition further alleged that the provisions
the people of this country, except perhaps to a few sought to be amended are Sections 4 and 7 of Article
scholars before the drafting of the 1987 Constitution. VI, 7 Section 4 of Article VII, 8 and Section 8 of Article
The 1986 Constitutional Commission itself, through the X 9 of the Constitution. Attached to the petition is a
original proponent 1 and the main sponsor 2 of the copy of a "Petition for Initiative on the 1987
proposed Article on Amendments or Revision of the Constitution" 10 embodying the proposed
Constitution, characterized this system as "innovative". amendments which consist in the deletion from the
3 Indeed it is, for both under the 1935 and 1973 aforecited sections of the provisions concerning term
Constitutions, only two methods of proposing limits, and with the following proposition:
amendments to, or revision of, the Constitution were
recognized, viz., (1) by Congress upon a vote of three- DO YOU APPROVE OF LIFTING THE TERM LIMITS
fourths of all its members and (2) by a constitutional OF ALL ELECTIVE GOVERNMENT OFFICIALS,
convention. 4 For this and the other reasons hereafter AMENDING FOR THE PURPOSE SECTIONS 4 AND
discussed, we resolved to give due course to this 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND
petition. SECTION 8 OF ARTICLE X OF THE 1987
PHILIPPINE CONSTITUTION?
On 6 December 1996, private respondent Atty. Jesus
S. Delfin filed with public respondent Commission on According to Delfin, the said Petition for Initiative will
Elections (hereafter, COMELEC) a "Petition to Amend first be submitted to the people, and after it is signed
the Constitution, to Lift Term Limits of Elective Officials, by at least twelve per cent of the total number of
by People's Initiative" (hereafter, Delfin Petition) 5 registered voters in the country it will be formally filed
wherein Delfin asked the COMELEC for an order with the COMELEC.

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Upon the filing of the Delfin Petition, which was (3) Republic Act No. 6735 provides for the effectivity of
forthwith given the number UND 96-037 (INITIATIVE), the law after publication in print media. This indicates
the COMELEC, through its Chairman, issued an Order that the Act covers only laws and not constitutional
11 (a) directing Delfin "to cause the publication of the amendments because the latter take effect only upon
petition, together with the attached Petition for Initiative ratification and not after publication.
on the 1987 Constitution (including the proposal,
proposed constitutional amendment, and the signature (4) COMELEC Resolution No. 2300, adopted on 16
form), and the notice of hearing in three (3) daily January 1991 to govern "the conduct of initiative on the
newspapers of general circulation at his own expense" Constitution and initiative and referendum on national
not later than 9 December 1996; and (b) setting the and local laws, is ultra vires insofar as initiative on
case for hearing on 12 December 1996 at 10:00 a.m. amendments to the Constitution is concerned, since
the COMELEC has no power to provide rules and
At the hearing of the Delfin Petition on 12 December regulations for the exercise of the right of initiative to
1996, the following appeared: Delfin and Atty. Pete Q. amend the Constitution. Only Congress is authorized
Quadra; representatives of the People's Initiative for by the Constitution to pass the implementing law.
Reforms, Modernization and Action (PIRMA);
intervenor-oppositor Senator Raul S. Roco, together (5) The people's initiative is limited to amendments to
with his two other lawyers and representatives of, or the Constitution, not to revision thereof. Extending or
counsel for, the Integrated Bar of the Philippines (IBP), lifting of term limits constitutes a revision and is,
Demokrasya-Ipagtanggol ang Konstitusyon (DIK), therefore, outside the power of the people's initiative.
Public Interest Law Center, and Laban ng
Demokratikong Pilipino (LABAN). 12 Senator Roco, on (6) Finally, Congress has not yet appropriated funds for
that same day, filed a Motion to Dismiss the Delfin people's initiative; neither the COMELEC nor any other
Petition on the ground that it is not the initiatory petition government department, agency, or office has
properly cognizable by the COMELEC. realigned funds for the purpose.

After hearing their arguments, the COMELEC directed To justify their recourse to us via the special civil action
Delfin and the oppositors to file their "memoranda for prohibition, the petitioners allege that in the event
and/or oppositions/memoranda" within five days. 13 the COMELEC grants the Delfin Petition, the people's
initiative spearheaded by PIRMA would entail
On 18 December 1996, the petitioners herein - Senator expenses to the national treasury for general re-
Miriam Defensor Santiago, Alexander Padilla, and registration of voters amounting to at least P180
Maria Isabel Ongpin - filed this special civil action for million, not to mention the millions of additional pesos
prohibition raising the following arguments: in expenses which would be incurred in the conduct of
the initiative itself. Hence, the transcendental
(1) The constitutional provision on people's initiative to importance to the public and the nation of the issues
amend the Constitution can only be implemented by raised demands that this petition for prohibition be
law to be passed by Congress. No such law has been settled promptly and definitely, brushing aside
passed; in fact, Senate Bill No. 1290 entitled An Act technicalities of procedure and calling for the
Prescribing and Regulating Constitutional admission of a taxpayer's and legislator's suit. 14
Amendments by People's Initiative, which petitioner Besides, there is no other plain, speedy, and adequate
Senator Santiago filed on 24 November 1995, is still remedy in the ordinary course of law.
pending before the Senate Committee on
Constitutional Amendments. On 19 December 1996, this Court (a) required the
respondents to comment on the petition within a non-
(2) It is true that R.A. No. 6735 provides for three extendible period of ten days from notice; and (b)
systems of initiative, namely, initiative on the issued a temporary restraining order, effective
Constitution, on statutes, and on local legislation. immediately and continuing until further orders,
However, it failed to provide any subtitle initiative on enjoining public respondent COMELEC from
the Constitution, unlike in the other modes of initiative, proceeding with the Delfin Petition, and private
which are specifically provided for in Subtitle II and respondents Alberto and Carmen Pedrosa from
Subtitle III. This deliberate omission indicates that the conducting a signature drive for people's initiative to
matter of people's initiative to amend the Constitution amend the Constitution.
was left to some future law. Former Senator Arturo
Tolentino stressed this deficiency in the law in his On 2 January 1997, private respondents, through Atty.
privilege speech delivered before the Senate in 1994: Quadra, filed their Comment 15 on the petition. They
"There is not a single word in that law which can be argue therein that:
considered as implementing [the provision on
constitutional initiative]. Such implementing provisions 1. IT IS NOT TRUE THAT IT WOULD ENTAIL
have been obviously left to a separate law." EXPENSES TO THE NATIONAL TREASURY FOR
GENERAL REGISTRATION OF VOTERS
AMOUNTING TO AT LEAST PESOS: ONE

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HUNDRED EIGHTY MILLION (P180,000,000.00)" IF ALTERATION OF ONE OR A FEW SPECIFIC
THE COMELEC GRANTS THE PETITION FILED BY PROVISIONS OF THE CONSTITUTION. REVISION
RESPONDENT DELFIN BEFORE THE COMELEC." CONTEMPLATES A RE-EXAMINATION OF THE
ENTIRE DOCUMENT TO DETERMINE HOW AND TO
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-
THE NATIONAL GOVERNMENT IF THE COMELEC 413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY
GRANTS THE PETITION OF RESPONDENT DELFIN. JOAQUIN G. BERNAS, SJ.).
ALL EXPENSES IN THE SIGNATURE GATHERING
ARE ALL FOR THE ACCOUNT OF RESPONDENT Also on 2 January 1997, private respondent Delfin filed
DELFIN AND HIS VOLUNTEERS PER THEIR in his own behalf a Comment 16 which starts off with
PROGRAM OF ACTIVITIES AND EXPENDITURES an assertion that the instant petition is a "knee-jerk
SUBMITTED TO THE COMELEC. THE ESTIMATED reaction to a draft 'Petition for Initiative on the 1987
COST OF THE DAILY PER DIEM OF THE Constitution' . . . which is not formally filed yet." What
SUPERVISING SCHOOL TEACHERS IN THE he filed on 6 December 1996 was an "Initiatory
SIGNATURE GATHERING TO BE DEPOSITED and Pleading" or "Initiatory Petition," which was legally
TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS necessary to start the signature campaign to amend
P2,571,200.00; the Constitution or to put the movement to gather
signatures under COMELEC power and function. On
3. THE PENDING PETITION BEFORE THE the substantive allegations of the petitioners, Delfin
COMELEC IS ONLY ON THE SIGNATURE maintain as follows:
GATHERING WHICH BY LAW COMELEC IS DUTY
BOUND "TO SUPERVISE CLOSELY" PURSUANT TO (1) Contrary to the claim of the petitioners, there is a
ITS "INITIATORY JURISDICTION" UPHELD BY THE law, R.A. No. 6735, which governs the conduct of
HONORABLE COURT IN ITS RECENT SEPTEMBER initiative to amend the Constitution. The absence
26, 1996 DECISION IN THE CASE OF SUBIC BAY therein of a subtitle for such initiative is not fatal, since
METROPOLITAN AUTHORITY VS . COMELEC, ET . subtitles are not requirements for the validity or
AL. G.R. NO. 125416; sufficiency of laws.

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, (2) Section 9(b) of R.A. No. 6735 specifically provides
1989 IS THE ENABLING LAW IMPLEMENTING THE that the proposition in an initiative to amend the
POWER OF PEOPLE INITIATIVE TO PROPOSE Constitution approved by the majority of the votes cast
AMENDMENTS TO THE CONSTITUTION. SENATOR in the plebiscite shall become effective as of the day of
DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS the plebiscite.
A DUPLICATION OF WHAT ARE ALREADY
PROVIDED FOR IN REP. ACT NO. 6735; (3) The claim that COMELEC Resolution No. 2300 is
ultra vires is contradicted by (a) Section 2, Article IX-C
5. COMELEC RESOLUTION NO. 2300 of the Constitution, which grants the COMELEC the
PROMULGATED ON JANUARY 16, 1991 power to enforce and administer all laws and
PURSUANT TO REP. ACT 6735 WAS UPHELD BY regulations relative to the conduct of an election,
THE HONORABLE COURT IN THE RECENT plebiscite, initiative, referendum, and recall; and (b)
SEPTEMBER 26, 1996 DECISION IN THE CASE OF Section 20 of R.A. 6735, which empowers the
SUBIC BAY, METROPOLITAN AUTHORITY VS. COMELEC to promulgate such rules and regulations
COMELEC, ET AL. G.R. NO. 125416 WHERE THE as may be necessary to carry out the purposes of the
HONORABLE COURT SAID: "THE COMMISSION ON Act.
ELECTIONS CAN DO NO LESS BY SEASONABLY
AND JUDICIOUSLY PROMULGATING GUIDELINES (4) The proposed initiative does not involve a revision
AND RULES FOR BOTH NATIONAL AND LOCAL of, but mere amendment to, the Constitution because
USE, IN IMPLEMENTING OF THESE LAWS." it seeks to alter only a few specific provisions of the
Constitution, or more specifically, only those which lay
6. EVEN SENATOR DEFENSOR-SANTIAGO'S term limits. It does not seek to reexamine or overhaul
SENATE BILL NO. 1290 CONTAINS A PROVISION the entire document.
DELEGATING TO THE COMELEC THE POWER TO
"PROMULGATE SUCH RULES AND REGULATIONS As to the public expenditures for registration of voters,
AS MAY BE NECESSARY TO CARRY OUT THE Delfin considers petitioners' estimate of P180 million as
PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, unreliable, for only the COMELEC can give the exact
ENCLOSED AS ANNEX E, PETITION); figure. Besides, if there will be a plebiscite it will be
simultaneous with the 1997 Barangay Elections. In any
7. THE LIFTING OF THE LIMITATION ON THE TERM event, fund requirements for initiative will be a priority
OF OFFICE OF ELECTIVE OFFICIALS PROVIDED government expense because it will be for the exercise
UNDER THE 1987 CONSTITUTION IS NOT A of the sovereign power of the people.
"REVISION" OF THE CONSTITUTION. IT IS ONLY
AN AMENDMENT. "AMENDMENT ENVISAGES AN

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In the Comment 17 for the public respondent because, in the words of Fr. Joaquin Bernas, SJ., 18 it
COMELEC, filed also on 2 January 1997, the Office of would involve a change from a political philosophy that
the Solicitor General contends that: rejects unlimited tenure to one that accepts unlimited
tenure; and although the change might appear to be an
(1) R.A. No. 6735 deals with, inter alia, people's isolated one, it can affect other provisions, such as, on
initiative to amend the Constitution. Its Section 2 on synchronization of elections and on the State policy of
Statement of Policy explicitly affirms, recognizes, and guaranteeing equal access to opportunities for public
guarantees that power; and its Section 3, which service and prohibiting political dynasties. 19 A revision
enumerates the three systems of initiative, includes cannot be done by initiative which, by express
initiative on the Constitution and defines the same as provision of Section 2 of Article XVII of the Constitution,
the power to propose amendments to the Constitution. is limited to amendments.
Likewise, its Section 5 repeatedly mentions initiative on
the Constitution. (2) The prohibition against reelection of the President
and the limits provided for all other national and local
(2) A separate subtitle on initiative on the Constitution elective officials are based on the philosophy of
is not necessary in R.A. No. 6735 because, being governance, "to open up the political arena to as many
national in scope, that system of initiative is deemed as there are Filipinos qualified to handle the demands
included in the subtitle on National Initiative and of leadership, to break the concentration of political and
Referendum; and Senator Tolentino simply overlooked economic powers in the hands of a few, and to promote
pertinent provisions of the law when he claimed that effective proper empowerment for participation in
nothing therein was provided for initiative on the policy and decision-making for the common good";
Constitution. hence, to remove the term limits is to negate and nullify
the noble vision of the 1987 Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a
material proof that R.A. No. 6735 does not deal with (3) The Delfin proposal runs counter to the purpose of
initiative on the Constitution. initiative particularly in a conflict-of-interest situation.
Initiative is intended as a fallback position that may be
(4) Extension of term limits of elected officials availed of by the people only if they are dissatisfied with
constitutes a mere amendment to the Constitution, not the performance of their elective officials, but not as a
a revision thereof. premium for good performance. 20

(5) COMELEC Resolution No. 2300 was validly issued (4) R.A. No 6735 is deficient and inadequate in itself to
under Section 20 of R.A. No. 6735 and under the be called the enabling law that implements the people's
Omnibus Election Code. The rule-making power of the initiative on amendments to the Constitution. It fails to
COMELEC to implement the provisions of R.A. No. state (a) the proper parties who may file the petition,
6735 was in fact upheld by this Court in Subic Bay (b) the appropriate agency before whom the petition is
Metropolitan Authority vs. COMELEC. to be filed, (c) the contents of the petition, (d) the
publication of the same, (e) the ways and means of
On 14 January 1997, this Court (a) confirmed nunc pro gathering the signatures of the voters nationwide and
tunc the temporary restraining order; (b) noted the 3% per legislative district, (f) the proper parties who
aforementioned Comments and the Motion to Lift may oppose or question the veracity of the signatures,
Temporary Restraining Order filed by private (g) the role of the COMELEC in the verification of the
respondents through Atty. Quadra, as well as the signatures and the sufficiency of the petition, (h) the
latter's Manifestation stating that he is the counsel for appeal from any decision of the COMELEC, (i) the
private respondents Alberto and Carmen Pedrosa only holding of a plebiscite, and (g) the appropriation of
and the Comment he filed was for the Pedrosas; and funds for such people's initiative. Accordingly, there
(c) granted the Motion for Intervention filed on 6 being no enabling law, the COMELEC has no
January 1997 by Senator Raul Roco and allowed him jurisdiction to hear Delfin's petition.
to file his Petition in Intervention not later than 20
January 1997; and (d) set the case for hearing on 23 (5) The deficiency of R.A. No. 6735 cannot be rectified
January 1997 at 9:30 a.m. or remedied by COMELEC Resolution No. 2300, since
the COMELEC is without authority to legislate the
On 17 January 1997, the Demokrasya-Ipagtanggol ang procedure for a people's initiative under Section 2 of
Konstitusyon (DIK) and the Movement of Attorneys for Article XVII of the Constitution. That function
Brotherhood Integrity and Nationalism, Inc. (MABINI), exclusively pertains to Congress. Section 20 of R.A.
filed a Motion for Intervention. Attached to the motion No. 6735 does not constitute a legal basis for the
was their Petition in Intervention, which was later Resolution, as the former does not set a sufficient
replaced by an Amended Petition in Intervention standard for a valid delegation of power.
wherein they contend that:
On 20 January 1997, Senator Raul Roco filed his
(1) The Delfin proposal does not involve a mere Petition in Intervention. 21 He avers that R.A. No. 6735
amendment to, but a revision of, the Constitution is the enabling law that implements the people's right

124
to initiate constitutional amendments. This law is a At the hearing of the case on 23 January 1997, the
consolidation of Senate Bill No. 17 and House Bill No. parties argued on the following pivotal issues, which
21505; he co-authored the House Bill and even the Court formulated in light of the allegations and
delivered a sponsorship speech thereon. He likewise arguments raised in the pleadings so far filed:
submits that the COMELEC was empowered under
Section 20 of that law to promulgate COMELEC 1. Whether R.A. No. 6735, entitled An Act Providing for
Resolution No. 2300. Nevertheless, he contends that a System of Initiative and Referendum and
the respondent Commission is without jurisdiction to Appropriating Funds Therefor, was intended to include
take cognizance of the Delfin Petition and to order its or cover initiative on amendments to the Constitution;
publication because the said petition is not the initiatory and if so, whether the Act, as worded, adequately
pleading contemplated under the Constitution, covers such initiative.
Republic Act No. 6735, and COMELEC Resolution No.
2300. What vests jurisdiction upon the COMELEC in 2. Whether that portion of COMELEC Resolution No.
an initiative on the Constitution is the filing of a petition 2300 (In re: Rules and Regulations Governing the
for initiative which is signed by the required number of Conduct of Initiative on the Constitution, and Initiative
registered voters. He also submits that the proponents and Referendum on National and Local Laws)
of a constitutional amendment cannot avail of the regarding the conduct of initiative on amendments to
authority and resources of the COMELEC to assist the Constitution is valid, considering the absence in the
them in securing the required number of signatures, as law of specific provisions on the conduct of such
the COMELEC's role in an initiative on the Constitution initiative.
is limited to the determination of the sufficiency of the
initiative petition and the call and supervision of a 3. Whether the lifting of term limits of elective national
plebiscite, if warranted. and local officials, as proposed in the draft "Petition for
Initiative on the 1987 Constitution," would constitute a
On 20 January 1997, LABAN filed a Motion for Leave revision of, or an amendment to, the Constitution.
to Intervene.
4. Whether the COMELEC can take cognizance of, or
The following day, the IBP filed a Motion for has jurisdiction over, a petition solely intended to obtain
Intervention to which it attached a Petition in an order (a) fixing the time and dates for signature
Intervention raising the following arguments: gathering; (b) instructing municipal election officers to
assist Delfin's movement and volunteers in
(1) Congress has failed to enact an enabling law establishing signature stations; and (c) directing or
mandated under Section 2, Article XVII of the 1987 causing the publication of, inter alia, the unsigned
Constitution. proposed Petition for Initiative on the 1987
Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute
for the required implementing law on the initiative to 5. Whether it is proper for the Supreme Court to take
amend the Constitution. cognizance of the petition when there is a pending
case before the COMELEC.
(3) The Petition for Initiative suffers from a fatal defect
in that it does not have the required number of After hearing them on the issues, we required the
signatures. parties to submit simultaneously their respective
memoranda within twenty days and requested
(4) The petition seeks, in effect a revision of the intervenor Senator Roco to submit copies of the
Constitution, which can be proposed only by Congress deliberations on House Bill No. 21505.
or a constitutional convention. 22
On 27 January 1997, LABAN filed its Petition in
On 21 January 1997, we promulgated a Resolution (a) Intervention wherein it adopts the allegations and
granting the Motions for Intervention filed by the DIK arguments in the main Petition. It further submits that
and MABINI and by the IBP, as well as the Motion for the COMELEC should have dismissed the Delfin
Leave to Intervene filed by LABAN; (b) admitting the Petition for failure to state a sufficient cause of action
Amended Petition in Intervention of DIK and MABINI, and that the Commission's failure or refusal to do so
and the Petitions in Intervention of Senator Roco and constituted grave abuse of discretion amounting to lack
of the IBP; (c) requiring the respondents to file within a of jurisdiction.
nonextendible period of five days their Consolidated
Comments on the aforesaid Petitions in Intervention; On 28 January 1997, Senator Roco submitted copies
and (d) requiring LABAN to file its Petition in of portions of both the Journal and the Record of the
Intervention within a nonextendible period of three House of Representatives relating to the deliberations
days from notice, and the respondents to comment of House Bill No. 21505, as well as the transcripts of
thereon within a nonextendible period of five days from stenographic notes on the proceedings of the
receipt of the said Petition in Intervention. Bicameral Conference Committee, Committee on

125
Suffrage and Electoral Reforms, of 6 June 1989 on December 1996, it practically gave due course to the
House Bill No. 21505 and Senate Bill No. 17. Delfin Petition by ordering Delfin to cause the
publication of the petition, together with the attached
Private respondents Alberto and Carmen Pedrosa filed Petition for Initiative, the signature form, and the notice
their Consolidated Comments on the Petitions in of hearing; and by setting the case for hearing. The
Intervention of Senator Roco, DIK and MABINI, and COMELEC's failure to act on Roco's motion to dismiss
IBP. 23 The parties thereafter filed, in due time, their and its insistence to hold on to the petition rendered
separate memoranda. 24 ripe and viable the instant petition under Section 2 of
Rule 65 of the Rules of Court, which provides:
As we stated in the beginning, we resolved to give due
course to this special civil action. SEC. 2. Petition for prohibition. - Where the
proceedings of any tribunal, corporation, board, or
For a more logical discussion of the formulated issues, person, whether exercising functions judicial or
we shall first take up the fifth issue which appears to ministerial, are without or in excess of its or his
pose a prejudicial procedural question. jurisdiction, or with grave abuse of discretion, and there
is no appeal or any other plain, speedy and adequate
I remedy in the ordinary course of law, a person
THE INSTANT PETITION IS VIABLE DESPITE THE aggrieved thereby may file a verified petition in the
PENDENCY IN THE COMELEC OF THE DELFIN proper court alleging the facts with certainty and
PETITION. praying that judgment be rendered commanding the
defendant to desist from further proceedings in the
Except for the petitioners and intervenor Roco, the action or matter specified therein.
parties paid no serious attention to the fifth issue, i.e.,
whether it is proper for this Court to take cognizance of It must also be noted that intervenor Roco claims that
this special civil action when there is a pending case the COMELEC has no jurisdiction over the Delfin
before the COMELEC. The petitioners provide an Petition because the said petition is not supported by
affirmative answer. Thus: the required minimum number of signatures of
registered voters. LABAN also asserts that the
28. The Comelec has no jurisdiction to take cognizance COMELEC gravely abused its discretion in refusing to
of the petition filed by private respondent Delfin. This dismiss the Delfin Petition, which does not contain the
being so, it becomes imperative to stop the Comelec required number of signatures. In light of these claims,
from proceeding any further, and under the Rules of the instant case may likewise be treated as a special
Court, Rule 65, Section 2, a petition for prohibition is civil action for certiorari under Section I of Rule 65 of
the proper remedy. the Rules of Court.

29. The writ of prohibition is an extraordinary judicial In any event, as correctly pointed out by intervenor
writ issuing out of a court of superior jurisdiction and Roco in his Memorandum, this Court may brush aside
directed to an inferior court, for the purpose of technicalities of procedure in cases of transcendental
preventing the inferior tribunal from usurping a importance. As we stated in Kilosbayan, Inc. v.
jurisdiction with which it is not legally vested. (People Guingona, Jr.; 28
v. Vera, supra., p. 84). In this case the writ is an urgent
necessity, in view of the highly divisive and adverse A party's standing before this Court is a procedural
environmental consequences on the body politic of the technicality which it may, in the exercise of its
questioned Comelec order. The consequent climate of discretion, set aside in view of the importance of issues
legal confusion and political instability begs for judicial raised. In the landmark Emergency Powers Cases, this
statesmanship. Court brushed aside this technicality because the
transcendental importance to the public of these cases
30. In the final analysis, when the system of demands that they be settled promptly and definitely,
constitutional law is threatened by the political brushing aside, if we must, technicalities of procedure.
ambitions of man, only the Supreme Court can save a
nation in peril and uphold the paramount majesty of the II
Constitution. 25
R.A. NO. 6735 INTENDED TO INCLUDE THE
It must be recalled that intervenor Roco filed with the SYSTEM OF INITIATIVE ON AMENDMENTS TO THE
COMELEC a motion to dismiss the Delfin Petition on CONSTITUTION, BUT IS, UNFORTUNATELY,
the ground that the COMELEC has no jurisdiction or INADEQUATE TO COVER THAT SYSTEM.
authority to entertain the petition. 26 The COMELEC
made no ruling thereon evidently because after having Section 2 of Article XVII of the Constitution provides:
heard the arguments of Delfin and the oppositors at the
hearing on 12 December 1996, it required them to SEC. 2. Amendments to this Constitution may likewise
submit within five days their memoranda or be directly proposed by the people through initiative
oppositions/memoranda. 27 Earlier, or specifically on 6 upon a petition of at least twelve per centum of the total

126
number of registered voters, of which every legislative With the permission of the Members, may I quote
district must be represented by at least three per Section 2:
centum of the registered voters therein. No
amendment under this section shall be authorized "The people may, after five years from the date of the
within five years following the ratification of this last plebiscite held, directly propose amendments to
Constitution nor oftener than once every five years this Constitution thru initiative upon petition of at least
thereafter. ten percent of the registered voters."

The Congress shall provide for the implementation of This completes the blanks appearing in the original
the exercise of this right. Committee Report No. 7. 32

This provision is not self-executory. In his book, 29 The interpellations on Section 2 showed that the details
Joaquin Bernas, a member of the 1986 Constitutional for carrying out Section 2 are left to the legislature.
Commission, stated: Thus:

Without implementing legislation Section 2 cannot FR. BERNAS. Madam President, just two simple,
operate. Thus, although this mode of amending the clarificatory questions.
Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is First, on Section 1 on the matter of initiative upon
dependent on congressional action. petition of at least 10 percent, there are no details in
the provision on how to carry this out. Do we
Bluntly stated, the right of the people to directly understand therefore that we are leaving this matter to
propose amendments to the Constitution through the the legislature?
system of initiative would remain entombed in the cold
niche of the Constitution until Congress provides for its MR. SUAREZ. That is right, Madam President.
implementation. Stated otherwise, while the
Constitution has recognized or granted that right, the FR. BERNAS. And do we also understand, therefore,
people cannot exercise it if Congress, for whatever that for as long as the legislature does not pass the
reason, does not provide for its implementation. necessary implementing law on this, this will not
operate?
This system of initiative was originally included in
Section 1 of the draft Article on Amendment or Revision MR. SUAREZ. That matter was also taken up during
proposed by the Committee on Amendments and the committee hearing, especially with respect to the
Transitory Provisions of the 1986 Constitutional budget appropriations which would have to be
Commission in its Committee Report No. 7 (Proposed legislated so that the plebiscite could be called. We
Resolution No. 332). 30 That section reads as follows: deemed it best that this matter be left to the legislature.
The Gentleman is right. In any event, as envisioned, no
SECTION 1. Any amendment to, or revision of, this amendment through the power of initiative can be
Constitution may be proposed: called until after five years from the date of the
ratification of this Constitution. Therefore, the first
(a) by the National Assembly upon a vote of three- amendment that could be proposed through the
fourths of all its members; or exercise of this initiative power would be after five
years. It is reasonably expected that within that five-
(b) by a constitutional convention; or year period, the National Assembly can come up with
the appropriate rules governing the exercise of this
(c) directly by the people themselves thru initiative as power.
provided for in Article _____ Section _____ of the
Constitution. 31 FR. BERNAS. Since the matter is left to the legislature
- the details on how this is to be carried out - is it
After several interpellations, but before the period of possible that, in effect, what will be presented to the
amendments, the Committee submitted a new people for ratification is the work of the legislature
formulation of the concept of initiative which it rather than of the people? Does this provision exclude
denominated as Section 2; thus: that possibility?

MR. SUAREZ. Thank you, Madam President. May we MR. SUAREZ. No, it does not exclude that possibility
respectfully call attention of the Members of the because even the legislature itself as a body could
Commission that pursuant to the mandate given to us propose that amendment, maybe individually or
last night, we submitted this afternoon a complete collectively, if it fails to muster the three-fourths vote in
Committee Report No. 7 which embodies the proposed order to constitute itself as a constituent assembly and
provision governing the matter of initiative. This is now submit that proposal to the people for ratification
covered by Section 2 of the complete committee report. through the process of an initiative.

127
xxx xxx xxx Section 1 of the proposed Article on Amendment or
Revision. 34
MS. AQUINO. Do I understand from the sponsor that
the intention in the proposal is to vest constituent xxx xxx xxx
power in the people to amend the Constitution?
MS. AQUINO. In which case, I am seriously bothered
MR. SUAREZ. That is absolutely correct, Madam by providing this process of initiative as a separate
President. section in the Article on Amendment. Would the
sponsor be amenable to accepting an amendment in
MS. AQUINO. I fully concur with the underlying precept terms of realigning Section 2 as another subparagraph
of the proposal in terms of institutionalizing popular (c) of Section 1, instead of setting it up as another
participation in the drafting of the Constitution or in the separate section as if it were a self-executing
amendment thereof, but I would have a lot of difficulties provision?
in terms of accepting the draft of Section 2, as written.
Would the sponsor agree with me that in the hierarchy MR. SUAREZ. We would be amenable except that, as
of legal mandate, constituent power has primacy over we clarified a while ago, this process of initiative is
all other legal mandates? limited to the matter of amendment and should not
expand into a revision which contemplates a total
MR. SUAREZ. The Commissioner is right, Madam overhaul of the Constitution. That was the sense that
President. was conveyed by the Committee.

MS. AQUINO. And would the sponsor agree with me MS. AQUINO. In other words, the Committee was
that in the hierarchy of legal values, the Constitution is attempting to distinguish the coverage of modes (a)
source of all legal mandates and that therefore we and (b) in Section 1 to include the process of revision;
require a great deal of circumspection in the drafting whereas the process of initiation to amend, which is
and in the amendments of the Constitution? given to the public, would only apply to amendments?

MR. SUAREZ. That proposition is nondebatable. MR. SUAREZ. That is right. Those were the terms
envisioned in the Committee. 35
MS. AQUINO. Such that in order to underscore the
primacy of constituent power we have a separate Amendments to the proposed Section 2 were
article in the Constitution that would specifically cover thereafter introduced by then Commissioner Hilario G.
the process and the modes of amending the Davide, Jr., which the Committee accepted. Thus:
Constitution?
MR. DAVIDE. Thank you Madam President. I propose
MR. SUAREZ. That is right, Madam President. to substitute the entire Section 2 with the following:

MS. AQUINO. Therefore, is the sponsor inclined, as xxx xxx xxx

the provisions are drafted now, to again concede to the
legislature the process or the requirement of MR. DAVIDE. Madam President, I have modified the
determining the mechanics of amending the proposed amendment after taking into account the
Constitution by people's initiative? modifications submitted by the sponsor himself and the
honorable Commissioners Guingona, Monsod, Rama,
MR. SUAREZ. The matter of implementing this could Ople, de los Reyes and Romulo. The modified
very well be placed in the hands of the National amendment in substitution of the proposed Section 2
Assembly, not unless we can incorporate into this will now read as follows:
provision the mechanics that would adequately cover
all the conceivable situations. 33 "SECTION 2. - AMENDMENTS TO THIS
CONSTITUTION MAY LIKEWISE BE DIRECTLY
It was made clear during the interpellations that the PROPOSED BY THE PEOPLE THROUGH
aforementioned Section 2 is limited to proposals to INITIATIVE UPON A PETITION OF AT LEAST
AMEND - not to REVISE - the Constitution; thus: TWELVE PERCENT OF THE TOTAL NUMBER OF
REGISTERED VOTERS, OF WHICH EVERY
MR. SUAREZ. . . . This proposal was suggested on the LEGISLATIVE DISTRICT MUST BE REPRESENTED
theory that this matter of initiative, which came about BY AT LEAST THREE PERCENT OF THE
because of the extraordinary developments this year, REGISTERED VOTERS THEREOF. NO
has to be separated from the traditional modes of AMENDMENT UNDER THIS SECTION SHALL BE
amending the Constitution as embodied in Section 1. AUTHORIZED WITHIN FIVE YEARS FOLLOWING
The committee members felt that this system of THE RATIFICATION OF THIS CONSTITUTION NOR
initiative should not extend to the revision of the entire OFTENER THAN ONCE EVERY FIVE YEARS
Constitution, so we removed it from the operation of THEREAFTER.

128
THE NATIONAL ASSEMBLY SHALL BY LAW insofar as initiative is concerned, it can only relate to
PROVIDE FOR THE IMPLEMENTATION OF THE "amendments" not "revision." 38
EXERCISE OF THIS RIGHT.
Commissioner Davide further emphasized that the
MR. SUAREZ. Madam President, considering that the process of proposing amendments through initiative
proposed amendment is reflective of the sense must be more rigorous and difficult than the initiative
contained in Section 2 of our completed Committee on legislation. Thus:
Report No. 7, we accept the proposed amendment. 36
MR. DAVIDE. A distinction has to be made that under
The interpellations which ensued on the proposed this proposal, what is involved is an amendment to the
modified amendment to Section 2 clearly showed that Constitution. To amend a Constitution would ordinarily
it was a legislative act which must implement the require a proposal by the National Assembly by a vote
exercise of the right. Thus: of three-fourths; and to call a constitutional convention
would require a higher number. Moreover, just to
MR. ROMULO. Under Commissioner Davide's submit the issue of calling a constitutional convention,
amendment, is it possible for the legislature to set forth a majority of the National Assembly is required, the
certain procedures to carry out the initiative . . .? import being that the process of amendment must be
made more rigorous and difficult than probably
MR. DAVIDE. It can. initiating an ordinary legislation or putting an end to a
law proposed by the National Assembly by way of a
xxx xxx xxx referendum. I cannot agree to reducing the
requirement approved by the Committee on the
MR. ROMULO. But the Commissioner's amendment Legislative because it would require another voting by
does not prevent the legislature from asking another the Committee, and the voting as precisely based on a
body to set the proposition in proper form. requirement of 10 percent. Perhaps, I might present
such a proposal, by way of an amendment, when the
MR. DAVIDE. The Commissioner is correct. In other Commission shall take up the Article on the Legislative
words, the implementation of this particular right would or on the National Assembly on plenary sessions. 39
be subject to legislation, provided the legislature
cannot determine anymore the percentage of the The Davide modified amendments to Section 2 were
requirement. subjected to amendments, and the final version, which
the Commission approved by a vote of 31 in favor and
MR. ROMULO. But the procedures, including the 3 against, reads as follows:
determination of the proper form for submission to the
people, may be subject to legislation. MR. DAVIDE. Thank you Madam President. Section 2,
as amended, reads as follows: "AMENDMENT TO
MR. DAVIDE. As long as it will not destroy the THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY
substantive right to initiate. In other words, none of the PROPOSED BY THE PEOPLE THROUGH
procedures to be proposed by the legislative body must INITIATIVE UPON A PETITION OF AT LEAST
diminish or impair the right conceded here. TWELVE PERCENT OF THE TOTAL NUMBER OF
REGISTERED VOTERS, OF WHICH EVERY
MR. ROMULO. In that provision of the Constitution can LEGISLATIVE DISTRICT MUST BE REPRESENTED
the procedures which I have discussed be legislated? BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO
MR. DAVIDE. Yes. 37 AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING
Commissioner Davide also reaffirmed that his modified THE RATIFICATION OF THIS CONSTITUTION NOR
amendment strictly confines initiative to OFTENER THAN ONCE EVERY FIVE YEARS
AMENDMENTS to - NOT REVISION of - the THEREAFTER.
Constitution. Thus:
THE NATIONAL ASSEMBLY SHALL BY LAW
MR. DAVIDE. With pleasure, Madam President. PROVIDE FOR THE IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT. 40
MR. MAAMBONG. My first question: Commissioner
Davide's proposed amendment on line 1 refers to The entire proposed Article on Amendments or
"amendment." Does it not cover the word "revision" as Revisions was approved on second reading on 9 July
defined by Commissioner Padilla when he made the 1986. 41 Thereafter, upon his motion for
distinction between the words "amendments" and reconsideration, Commissioner Gascon was allowed to
"revision"? introduce an amendment to Section 2 which,
nevertheless, was withdrawn. In view thereof, the
MR. DAVIDE. No, it does not, because "amendments" Article was again approved on Second and Third
and "revision" should be covered by Section 1. So Readings on 1 August 1986. 42

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 But is R.A. No. 6735 a full compliance with the power
However, the Committee on Style recommended that and duty of Congress to "provide for the
the approved Section 2 be amended by changing implementation of the exercise of the right?"
"percent" to "per centum" and "thereof" to "therein" and
deleting the phrase "by law" in the second paragraph A careful scrutiny of the Act yields a negative answer.
so that said paragraph reads: The Congress 43 shall
provide for the implementation of the exercise of this First. Contrary to the assertion of public respondent
right. 44 This amendment was approved and is the text COMELEC, Section 2 of the Act does not suggest an
of the present second paragraph of Section 2. initiative on amendments to the Constitution. The said
section reads:
The conclusion then is inevitable that, indeed, the
system of initiative on the Constitution under Section 2 SECTION 2. Statement and Policy. - The power of the
of Article XVII of the Constitution is not self-executory. people under a system of initiative and referendum to
directly propose, enact, approve or reject, in whole or
Has Congress "provided" for the implementation of the in part, the Constitution, laws, ordinances, or
exercise of this right? Those who answer the question resolutions passed by any legislative body upon
in the affirmative, like the private respondents and compliance with the requirements of this Act is hereby
intervenor Senator Roco, point to us R.A. No. 6735. affirmed, recognized and guaranteed. (Emphasis
supplied).
There is, of course, no other better way for Congress
to implement the exercise of the right than through the The inclusion of the word "Constitution" therein was a
passage of a statute or legislative act. This is the delayed afterthought. That word is neither germane nor
essence or rationale of the last minute amendment by relevant to said section, which exclusively relates to
the Constitutional Commission to substitute the last initiative and referendum on national laws and local
paragraph of Section 2 of Article XVII then reading: laws, ordinances, and resolutions. That section is silent
as to amendments on the Constitution. As pointed out
The Congress 45 shall by law provide for the earlier, initiative on the Constitution is confined only to
implementation of the exercise of this right. proposals to AMEND. The people are not accorded the
power to "directly propose, enact, approve, or reject, in
with whole or in part, the Constitution" through the system
of initiative. They can only do so with respect to "laws,
The Congress shall provide for the implementation of ordinances, or resolutions."
the exercise of this right.
The foregoing conclusion is further buttressed by the
This substitute amendment was an investiture on fact that this section was lifted from Section 1 of Senate
Congress of a power to provide for the rules Bill No. 17, which solely referred to a statement of
implementing the exercise of the right. The "rules" policy on local initiative and referendum and
means "the details on how [the right] is to be carried appropriately used the phrases "propose and enact,"
out." 46 "approve or reject" and "in whole or in part." 52

We agree that R.A. No. 6735 was, as its history Second. It is true that Section 3 (Definition of Terms) of
reveals, intended to cover initiative to propose the Act defines initiative on amendments to the
amendments to the Constitution. The Act is a Constitution and mentions it as one of the three
consolidation of House Bill No. 21505 and Senate Bill systems of initiative, and that Section 5 (Requirements)
No. 17. The former was prepared by the Committee on restates the constitutional requirements as to the
Suffrage and Electoral Reforms of the House of percentage of the registered voters who must submit
Representatives on the basis of two House Bills the proposal. But unlike in the case of the other
referred to it, viz., (a) House Bill No. 497, 47 which dealt systems of initiative, the Act does not provide for the
with the initiative and referendum mentioned in contents of a petition for initiative on the Constitution.
Sections 1 and 32 of Article VI of the Constitution; and Section 5, paragraph (c) requires, among other things,
(b) House Bill No. 988, 48 which dealt with the subject statement of the proposed law sought to be enacted,
matter of House Bill No. 497, as well as with initiative approved or rejected, amended or repealed, as the
and referendum under Section 3 of Article XVII of the case may be. It does not include, as among the
Constitution. Senate Bill No. 17 49 solely dealt with contents of the petition, the provisions of the
initiative and referendum concerning ordinances or Constitution sought to be amended, in the case of
resolutions of local government units. The Bicameral initiative on the Constitution. Said paragraph (c) reads
Conference Committee consolidated Senate Bill No. in full as follows:
17 and House Bill No. 21505 into a draft bill, which was
subsequently approved on 8 June 1989 by the Senate (c) The petition shall state the following:
50 and by the House of Representatives. 51 This
approved bill is now R.A. No. 6735.

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c.1 contents or text of the proposed law sought to be a.2 Initiative on Statutes which refers to a petition
enacted, approved or rejected, amended or repealed, proposing to enact a national legislation; and
as the case may be; a.3 Initiative on local legislation which refers to a
c.2 the proposition; petition proposing to enact a regional, provincial, city,
c.3 the reason or reasons therefor; municipal, or barangay law, resolution or ordinance.
c.4 that it is not one of the exceptions provided therein; (Emphasis supplied).
c.5 signatures of the petitioners or registered voters;
and Hence, to complete the classification under subtitles
c.6 an abstract or summary proposition is not more there should have been a subtitle on initiative on
than one hundred (100) words which shall be legibly amendments to the Constitution. 53
written or printed at the top of every page of the
petition. (Emphasis supplied). A further examination of the Act even reveals that the
subtitling is not accurate. Provisions not germane to
The use of the clause "proposed laws sought to be the subtitle on National Initiative and Referendum are
enacted, approved or rejected, amended or repealed" placed therein, like (1) paragraphs (b) and (c) of
only strengthens the conclusion that Section 2, quoted Section 9, which reads:
earlier, excludes initiative on amendments to the
Constitution. (b) The proposition in an initiative on the Constitution
approved by the majority of the votes cast in the
Third. While the Act provides subtitles for National plebiscite shall become effective as to the day of the
Initiative and Referendum (Subtitle II) and for Local plebiscite.
Initiative and Referendum (Subtitle III), no subtitle is
provided for initiative on the Constitution. This (c) A national or local initiative proposition approved by
conspicuous silence as to the latter simply means that majority of the votes cast in an election called for the
the main thrust of the Act is initiative and referendum purpose shall become effective fifteen (15) days after
on national and local laws. If Congress intended R.A. certification and proclamation of the Commission.
No. 6735 to fully provide for the implementation of the (Emphasis supplied).
initiative on amendments to the Constitution, it could
have provided for a subtitle therefor, considering that (2) that portion of Section 11 (Indirect Initiative)
in the order of things, the primacy of interest, or referring to indirect initiative with the legislative bodies
hierarchy of values, the right of the people to directly of local governments; thus:
propose amendments to the Constitution is far more
important than the initiative on national and local laws. SEC. 11. Indirect Initiative. - Any duly accredited
people's organization, as defined by law, may file a
We cannot accept the argument that the initiative on petition for indirect initiative with the House of
amendments to the Constitution is subsumed under Representatives, and other legislative bodies. . .
the subtitle on National Initiative and Referendum
because it is national in scope. Our reading of Subtitle and (3) Section 12 on Appeal, since it applies to
II (National Initiative and Referendum) and Subtitle III decisions of the COMELEC on the findings of
(Local Initiative and Referendum) leaves no room for sufficiency or insufficiency of the petition for initiative or
doubt that the classification is not based on the scope referendum, which could be petitions for both national
of the initiative involved, but on its nature and and local initiative and referendum.
character. It is "national initiative," if what is proposed
to be adopted or enacted is a national law, or a law Upon the other hand, Section 18 on "Authority of
which only Congress can pass. It is "local initiative" if Courts" under subtitle III on Local Initiative and
what is proposed to be adopted or enacted is a law, Referendum is misplaced, 54 since the provision
ordinance, or resolution which only the legislative therein applies to both national and local initiative and
bodies of the governments of the autonomous regions, referendum. It reads:
provinces, cities, municipalities, and barangays can
pass. This classification of initiative into national and SEC. 18. Authority of Courts. - Nothing in this Act shall
local is actually based on Section 3 of the Act, which prevent or preclude the proper courts from declaring
we quote for emphasis and clearer understanding: null and void any proposition approved pursuant to this
Act for violation of the Constitution or want of capacity
SEC. 3. Definition of Terms - of the local legislative body to enact the said measure.

xxx xxx xxx Curiously, too, while R.A. No. 6735 exerted utmost
diligence and care in providing for the details in the
There are three (3) systems of initiative, namely: implementation of initiative and referendum on national
and local legislation thereby giving them special
a.1 Initiative on the Constitution which refers to a attention, it failed, rather intentionally, to do so on the
petition proposing amendments to the Constitution; system of initiative on amendments to the Constitution.

131
Anent the initiative on national legislation, the Act The foregoing brings us to the conclusion that R.A. No.
provides for the following: 6735 is incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on
(a) The required percentage of registered voters to sign amendments to the Constitution is concerned. Its
the petition and the contents of the petition; lacunae on this substantive matter are fatal and cannot
(b) The conduct and date of the initiative; be cured by "empowering" the COMELEC "to
(c) The submission to the electorate of the proposition promulgate such rules and regulations as may be
and the required number of votes for its approval; necessary to carry out the purposes of [the] Act. 58
(d) The certification by the COMELEC of the approval
of the proposition; The rule is that what has been delegated, cannot be
(e) The publication of the approved proposition in the delegated or as expressed in a Latin maxim: potestas
Official Gazette or in a newspaper of general delegata non delegari potest. 59 The recognized
circulation in the Philippines; and exceptions to the rule are as follows:
(f) The effects of the approval or rejection of the
proposition. 55 (1) Delegation of tariff powers to the President under
Section 28(2) of Article VI of the Constitution;
As regards local initiative, the Act provides for the (2) Delegation of emergency powers to the President
following: under Section 23(2) of Article VI of the Constitution;
(3) Delegation to the people at large;
(a) The preliminary requirement as to the number of (4) Delegation to local governments; and
signatures of registered voters for the petition; (5) Delegation to administrative bodies. 60
(b) The submission of the petition to the local legislative
body concerned; Empowering the COMELEC, an administrative body
(c) The effect of the legislative body's failure to exercising quasi-judicial functions, to promulgate rules
favorably act thereon, and the invocation of the power and regulations is a form of delegation of legislative
of initiative as a consequence thereof; authority under no. 5 above. However, in every case of
(d) The formulation of the proposition; permissible delegation, there must be a showing that
(e) The period within which to gather the signatures; the delegation itself is valid. It is valid only if the law (a)
(f) The persons before whom the petition shall be is complete in itself, setting forth therein the policy to
signed; be executed, carried out, or implemented by the
(g) The issuance of a certification by the COMELEC delegate; and (b) fixes a standard - the limits of which
through its official in the local government unit are sufficiently determinate and determinable - to
concerned as to whether the required number of which the delegate must conform in the performance of
signatures have been obtained; his functions. 61 A sufficient standard is one which
(h) The setting of a date by the COMELEC for the defines legislative policy, marks its limits, maps out its
submission of the proposition to the registered voters boundaries and specifies the public agency to apply it.
for their approval, which must be within the period It indicates the circumstances under which the
specified therein; legislative command is to be effected. 62
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition; Insofar as initiative to propose amendments to the
(k) The limitations on local initiative; and Constitution is concerned, R.A. No. 6735 miserably
(l) The limitations upon local legislative bodies. 56 failed to satisfy both requirements in subordinate
legislation. The delegation of the power to the
Upon the other hand, as to initiative on amendments to COMELEC is then invalid.
the Constitution, R.A. No. 6735, in all of its twenty-three
sections, merely (a) mentions, the word "Constitution" III
in Section 2; (b) defines "initiative on the Constitution"
and includes it in the enumeration of the three systems COMELEC RESOLUTION NO. 2300, INSOFAR AS IT
of initiative in Section 3; (c) speaks of "plebiscite" as PRESCRIBES RULES AND REGULATIONS ON THE
the process by which the proposition in an initiative on CONDUCT OF INITIATIVE ON AMENDMENTS TO
the Constitution may be approved or rejected by the THE CONSTITUTION, IS VOID.
people; (d) reiterates the constitutional requirements
as to the number of voters who should sign the petition; It logically follows that the COMELEC cannot validly
and (e) provides for the date of effectivity of the promulgate rules and regulations to implement the
approved proposition. exercise of the right of the people to directly propose
amendments to the Constitution through the system of
There was, therefore, an obvious downgrading of the initiative. It does not have that power under R.A. No.
more important or the paramount system of initiative. 6735. Reliance on the COMELEC's power under
R.A. No. 6735 thus delivered a humiliating blow to the Section 2(1) of Article IX-C of the Constitution is
system of initiative on amendments to the Constitution misplaced, for the laws and regulations referred to
by merely paying it a reluctant lip service. 57 therein are those promulgated by the COMELEC under
(a) Section 3 of Article IX-C of the Constitution, or (b) a

132
law where subordinate legislation is authorized and oppositions. In so dignifying it, the COMELEC acted
which satisfies the "completeness" and the "sufficient without jurisdiction or with grave abuse of discretion
standard" tests. and merely wasted its time, energy, and resources.

IV The foregoing considered, further discussion on the

issue of whether the proposal to lift the term limits of
COMELEC ACTED WITHOUT JURISDICTION OR elective national and local officials is an amendment to,
WITH GRAVE ABUSE OF DISCRETION IN and not a revision of, the Constitution is rendered
ENTERTAINING THE DELFIN PETITION. unnecessary, if not academic.

Even if it be conceded ex gratia that R.A. No. 6735 is a CONCLUSION

full compliance with the power of Congress to
implement the right to initiate constitutional This petition must then be granted, and the COMELEC
amendments, or that it has validly vested upon the should be permanently enjoined from entertaining or
COMELEC the power of subordinate legislation and taking cognizance of any petition for initiative on
that COMELEC Resolution No. 2300 is valid, the amendments to the Constitution until a sufficient law
COMELEC acted without jurisdiction or with grave shall have been validly enacted to provide for the
abuse of discretion in entertaining the Delfin Petition. implementation of the system.

Under Section 2 of Article XVII of the Constitution and We feel, however, that the system of initiative to
Section 5(b)of R.A. No. 6735, a petition for initiative on propose amendments to the Constitution should no
the Constitution must be signed by at least 12% of the longer be kept in the cold; it should be given flesh and
total number of registered voters of which every blood, energy and strength. Congress should not tarry
legislative district is represented by at least 3% of the any longer in complying with the constitutional
registered voters therein. The Delfin Petition does not mandate to provide for the implementation of the right
contain signatures of the required number of voters. of the people under that system.
Delfin himself admits that he has not yet gathered
signatures and that the purpose of his petition is WHEREFORE, judgment is hereby rendered
primarily to obtain assistance in his drive to gather
signatures. Without the required signatures, the a) GRANTING the instant petition;
petition cannot be deemed validly initiated.
b) DECLARING R. A. No. 6735 inadequate to cover the
The COMELEC acquires jurisdiction over a petition for system of initiative on amendments to the Constitution,
initiative only after its filing. The petition then is the and to have failed to provide sufficient standard for
initiatory pleading. Nothing before its filing is subordinate legislation;
cognizable by the COMELEC, sitting en banc. The only
participation of the COMELEC or its personnel before c) DECLARING void those parts of Resolution No.
the filing of such petition are (1) to prescribe the form 2300 of the Commission on Elections prescribing rules
of the petition; 63 (2) to issue through its Election and regulations on the conduct of initiative or
Records and Statistics Office a certificate on the total amendments to the Constitution; and
number of registered voters in each legislative district;
64 (3) to assist, through its election registrars, in the d) ORDERING the Commission on Elections to
establishment of signature stations; 65 and (4) to forthwith DISMISS the DELFIN petition (UND-96-037).
verify, through its election registrars, the signatures on
the basis of the registry list of voters, voters' affidavits, The Temporary Restraining Order issued on 18
and voters' identification cards used in the immediately December 1996 is made permanent as against the
preceding election. 66 Commission on Elections, but is LIFTED as against
private respondents.
Since the Delfin Petition is not the initiatory petition
under R.A. No. 6735 and COMELEC Resolution No. Resolution on the matter of contempt is hereby
2300, it cannot be entertained or given cognizance of reserved.
by the COMELEC. The respondent Commission must
have known that the petition does not fall under any of SO ORDERED.
the actions or proceedings under the COMELEC Rules
of Procedure or under Resolution No. 2300, for which LAMBINO VS COMELEC (2006)
reason it did not assign to the petition a docket number.
Hence, the said petition was merely entered as UND, RAUL L. LAMBINO and ERICO B. AUMENTADO,
meaning, undocketed. That petition was nothing more TOGETHER WITH 6,327,952 REGISTERED
than a mere scrap of paper, which should not have VOTERS, Petitioners
been dignified by the Order of 6 December 1996, the vs.
hearing on 12 December 1996, and the order directing THE COMMISSION ON ELECTIONS, Respondent.
Delfin and the oppositors to file their memoranda or

133
ALTERNATIVE LAW GROUPS, INC., Intervenor. JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA.
TANYA KARINA A. LAT, ANTONIO L. SALVADOR,
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. and RANDALL TABAYOYONG, Intervenors.
AZURIN, MANUEL L. QUEZON III, BENJAMIN T.
TOLOSA, JR., SUSAN V. OPLE and CARLOS P. INTEGRATED BAR OF THE PHILIPPINES, CEBU
MEDINA, JR., Intervenors. CITY AND CEBU PROVINCE CHAPTERS,
Intervenors.
ATTY. PETE QUIRINO QUADRA, Intervenor.
SENATE MINORITY LEADER AQUILINO Q.
BAYAN represented by its Chairperson Dr. Carolina PIMENTEL, JR. and SENATORS SERGIO R.
Pagaduan-Araullo, BAYAN MUNA represented by its OSMENA III, JAMBY MADRIGAL, JINGGOY
Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO ESTRADA, ALFREDO S. LIM and PANFILO LACSON,
UNO represented by its Secretary General Joel Intervenors.
Maglunsod, HEAD represented by its Secretary
General Dr. Gene Alzona Nisperos, ECUMENICAL JOSEPH EJERCITO ESTRADA and PWERSA NG
BISHOPS FORUM represented by Fr. Dionito Cabillas, MASANG PILIPINO, Intervenors.
MIGRANTE represented by its Chairperson MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN,
Concepcion Bragas-Regalado, GABRIELA JR., and RENE A.V. SAGUISAG, Petitioners,
represented by its Secretary General Emerenciana de G.R. No. 174153 | 2006-10-25
Jesus, GABRIELA WOMEN'S PARTY represented by
Sec. Gen. Cristina Palabay, ANAKBAYAN represented Tagged under keywords View Summary
by Chairperson Eleanor de Guzman, LEAGUE OF
FILIPINO STUDENTS represented by Chair Vencer Discussions citing this case or law are available.
Crisostomo Palabay, JOJO PINEDA of the League of Revision of the Constitution
Concerned Professionals and Businessmen, DR. Political Law; Constitutional Law; Amendments and
DARBY SANTIAGO of the Solidarity of Health Against Revisions
Charter Change, DR. REGINALD PAMUGAS of Health DECISION
Action for Human Rights, Intervenors.
DECISION
LORETA ANN P. ROSALES, MARIO JOYO AGUJA,
and ANA THERESA HONTIVEROS-BARAQUEL, CARPIO, J.:
Intervenors.

LUWALHATI RIACASA ANTONINO, Intervenor.

ARTURO M. DE CASTRO, Intervenor.

The Case
TRADE UNION CONGRESS OF THE PHILIPPINES,
Intervenor. These are consolidated petitions on the Resolution
dated 31 August 2006 of the Commission on Elections
LUWALHATI RICASA ANTONINO, Intervenor. ("COMELEC") denying due course to an initiative
petition to amend the 1987 Constitution.
PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), CONRADO F. ESTRELLA, TOMAS C.
TOLEDO, MARIANO M. TAJON, FROILAN M.
BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO GAT Antecedent Facts
INCIONG, Intervenors.

RONALD L. ADAMAT, ROLANDO MANUEL RIVERA,

and RUELO BAYA, Intervenors.
On 15 February 2006, petitioners in G.R. No. 174153,
PHILIPPINE TRANSPORT AND GENERAL namely Raul L. Lambino and Erico B. Aumentado
WORKERS ORGANIZATION (PTGWO) and MR. ("Lambino Group"), with other groups[1] and
VICTORINO F. BALAIS, Intervenors. individuals, commenced gathering signatures for an
initiative petition to change the 1987 Constitution. On
SENATE OF THE PHILIPPINES, represented by its 25 August 2006, the Lambino Group filed a petition
President, MANUEL VILLAR, JR., Intervenor. with the COMELEC to hold a plebiscite that will ratify
their initiative petition under Section 5(b) and (c)[2] and
SULONG BAYAN MOVEMENT FOUNDATION, INC., Section 7[3] of Republic Act No. 6735 or the Initiative
Intervenor. and Referendum Act ("RA 6735").

134
 In G.R. No. 174299, petitioners ("Binay Group") pray
that the Court require respondent COMELEC
The Lambino Group alleged that their petition had the Commissioners to show cause why they should not be
support of 6,327,952 individuals constituting at least cited in contempt for the COMELEC's verification of
twelve per centum (12%) of all registered voters, with signatures and for "entertaining" the Lambino Group's
each legislative district represented by at least three petition despite the permanent injunction in Santiago.
per centum (3%) of its registered voters. The Lambino The Court treated the Binay Group's petition as an
Group also claimed that COMELEC election registrars opposition-in-intervention.
had verified the signatures of the 6.3 million individuals.
In his Comment to the Lambino Group's petition, the
The Lambino Group's initiative petition changes the Solicitor General joined causes with the petitioners,
1987 Constitution by modifying Sections 1-7 of Article urging the Court to grant the petition despite the
VI (Legislative Department)[4] and Sections 1-4 of Santiago ruling. The Solicitor General proposed that
Article VII (Executive Department)[5] and by adding the Court treat RA 6735 and its implementing rules "as
Article XVIII entitled "Transitory Provisions."[6] These temporary devises to implement the system of
proposed changes will shift the present Bicameral- initiative."
Presidential system to a Unicameral-Parliamentary
form of government. The Lambino Group prayed that Various groups and individuals sought intervention,
after due publication of their petition, the COMELEC filing pleadings supporting or opposing the Lambino
should submit the following proposition in a plebiscite Group's petition. The supporting intervenors[10]
for the voters' ratification: uniformly hold the view that the COMELEC committed
grave abuse of discretion in relying on Santiago. On
DO YOU APPROVE THE AMENDMENT OF the other hand, the opposing intervenors[11] hold the
ARTICLES VI AND VII OF THE 1987 contrary view and maintain that Santiago is a binding
CONSTITUTION, CHANGING THE FORM OF precedent. The opposing intervenors also challenged
GOVERNEMNT FROM THE PRESENT BICAMERAL- (1) the Lambino Group's standing to file the petition; (2)
PRESIDENTIAL TO A UNICAMERAL- the validity of the signature gathering and verification
PARLIAMENTARY SYSTEM, AND PROVIDING process; (3) the Lambino Group's compliance with the
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR minimum requirement for the percentage of voters
THE ORDERLY SHIFT FROM ONE SYSTEM TO THE supporting an initiative petition under Section 2, Article
OTHER? XVII of the 1987 Constitution;[12] (4) the nature of the
proposed changes as revisions and not mere
On 30 August 2006, the Lambino Group filed an amendments as provided under Section 2, Article XVII
Amended Petition with the COMELEC indicating of the 1987 Constitution; and (5) the Lambino Group's
modifications in the proposed Article XVIII (Transitory compliance with the requirement in Section 10(a) of RA
Provisions) of their initiative.[7] 6735 limiting initiative petitions to only one subject.

The Ruling of the COMELEC The Court heard the parties and intervenors in oral
arguments on 26 September 2006. After receiving the
On 31 August 2006, the COMELEC issued its parties' memoranda, the Court considered the case
Resolution denying due course to the Lambino Group's submitted for resolution.
petition for lack of an enabling law governing initiative
petitions to amend the Constitution. The COMELEC
invoked this Court's ruling in Santiago v. Commission The Issues
on Elections[8] declaring RA 6735 inadequate to
implement the initiative clause on proposals to amend The petitions raise the following issues:
the Constitution.[9]
1. Whether the Lambino Group's initiative petition
In G.R. No. 174153, the Lambino Group prays for the complies with Section 2, Article XVII of the Constitution
issuance of the writs of certiorari and mandamus to set on amendments to the Constitution through a people's
aside the COMELEC Resolution of 31 August 2006 initiative;
and to compel the COMELEC to give due course to
their initiative petition. The Lambino Group contends
that the COMELEC committed grave abuse of
discretion in denying due course to their petition since
Santiago is not a binding precedent. Alternatively, the
Lambino Group claims that Santiago binds only the 2. Whether this Court should revisit its ruling in
parties to that case, and their petition deserves Santiago declaring RA 6735 "incomplete, inadequate
cognizance as an expression of the "will of the or wanting in essential terms and conditions" to
sovereign people." plement the initiative clause on proposals to amend the
Constitution; and

135
 MR. RODRIGO: No, because before they sign there is
already a draft shown to them and they are asked
whether or not they want to propose this constitutional
3. Whether the COMELEC committed grave abuse of amendment.
discretion in denying due course to the Lambino
Group's petition. MR. SUAREZ: As it is envisioned, any Filipino can
prepare that proposal and pass it around for
signature.[13] (Emphasis supplied)
The Ruling of the Court
Clearly, the framers of the Constitution intended that
There is no merit to the petition. the "draft of the proposed constitutional amendment"
should be "ready and shown" to the people "before"
they sign such proposal. The framers plainly stated that
"before they sign there is already a draft shown to
The Lambino Group miserably failed to comply with the them." The framers also "envisioned" that the people
basic requirements of the Constitution for conducting a should sign on the proposal itself because the
people's initiative. Thus, there is even no need to revisit proponents must "prepare that proposal and pass it
Santiago, as the present petition warrants dismissal around for signature."
based alone on the Lambino Group's glaring failure to
comply with the basic requirements of the Constitution. The essence of amendments "directly proposed by the
For following the Court's ruling in Santiago, no grave people through initiative upon a petition" is that the
abuse of discretion is attributable to the Commision on entire proposal on its face is a petition by the people.
Elections. This means two essential elements must be present.
First, the people must author and thus sign the entire
1. The Initiative Petition Does Not Comply with Section proposal. No agent or representative can sign on their
2, Article XVII of the Constitution on Direct Proposal by behalf. Second, as an initiative upon a petition, the
the People proposal must be embodied in a petition.

Section 2, Article XVII of the Constitution is the These essential elements are present only if the full
governing constitutional provision that allows a text of the proposed amendments is first shown to the
people's initiative to propose amendments to the people who express their assent by signing such
Constitution. This section states: complete proposal in a petition. Thus, an amendment
is "directly proposed by the people through initiative
Sec. 2. Amendments to this Constitution may likewise upon a petition" only if the people sign on a petition that
be directly proposed by the people through initiative contains the full text of the proposed amendments.
upon a petition of at least twelve per centum of the total
number of registered voters of which every legislative The full text of the proposed amendments may be
district must be represented by at least three per either written on the face of the petition, or attached to
centum of the registered voters therein. x x x x it. If so attached, the petition must state the fact of such
(Emphasis supplied) attachment. This is an assurance that every one of the
several millions of signatories to the petition had seen
The deliberations of the Constitutional Commission the full text of the proposed amendments before
vividly explain the meaning of an amendment "directly signing. Otherwise, it is physically impossible, given
proposed by the people through initiative upon a the time constraint, to prove that every one of the
petition," thus: millions of signatories had seen the full text of the
proposed amendments before signing.
MR. RODRIGO: Let us look at the mechanics. Let us
say some voters want to propose a constitutional The framers of the Constitution directly borrowed[14]
amendment. Is the draft of the proposed constitutional the concept of people's initiative from the United States
amendment ready to be shown to the people when where various State constitutions incorporate an
they are asked to sign? initiative clause. In almost all States[15] which allow
initiative petitions, the unbending requirement is that
MR. SUAREZ: That can be reasonably assumed, the people must first see the full text of the proposed
Madam President. amendments before they sign to signify their assent,
and that the people must sign on an initiative petition
MR. RODRIGO: What does the sponsor mean? The that contains the full text of the proposed
draft is ready and shown to them before they sign. amendments.[16]
Now, who prepares the draft?
The rationale for this requirement has been repeatedly
MR. SUAREZ: The people themselves, Madam explained in several decisions of various courts. Thus,
President. in Capezzuto v. State Ballot Commission, the Supreme

136
Court of Massachusetts, affirmed by the First Circuit The proponents of the initiative secure the signatures
Court of Appeals, declared: from the people. The proponents secure the signatures
in their private capacity and not as public officials. The
[A] signature requirement would be meaningless if the proponents are not disinterested parties who can
person supplying the signature has not first seen what impartially explain the advantages and disadvantages
it is that he or she is signing. Further, and more of the proposed amendments to the people. The
importantly, loose interpretation of the subscription proponents present favorably their proposal to the
requirement can pose a significant potential for fraud. people and do not present the arguments against their
A person permitted to describe orally the contents of proposal. The proponents, or their supporters, often
an initiative petition to a potential signer, without the pay those who gather the signatures.
signer having actually examined the petition, could
easily mislead the signer by, for example, omitting, Thus, there is no presumption that the proponents
downplaying, or even flatly misrepresenting, portions of observed the constitutional requirements in gathering
the petition that might not be to the signer's liking. This the signatures. The proponents bear the burden of
danger seems particularly acute when, in this case, the proving that they complied with the constitutional
person giving the description is the drafter of the requirements in gathering the signatures - that the
petition, who obviously has a vested interest in seeing petition contained, or incorporated by attachment, the
that it gets the requisite signatures to qualify for the full text of the proposed amendments.
ballot.[17] (Boldfacing and underscoring supplied)
The Lambino Group did not attach to their present
Likewise, in Kerr v. Bradbury,[18] the Court of Appeals petition with this Court a copy of the paper that the
of Oregon explained: people signed as their initiative petition. The Lambino
Group submitted to this Court a copy of a signature
The purposes of "full text" provisions that apply to sheet[20] after the oral arguments of 26 September
amendments by initiative commonly are described in 2006 when they filed their Memorandum on 11 October
similar terms. xxx (The purpose of the full text 2006. The signature sheet with this Court during the
requirement is to provide sufficient information so that oral arguments was the signature sheet attached[21] to
registered voters can intelligently evaluate whether to the opposition in intervention filed on 7 September
sign the initiative petition."; xxx (publication of full text 2006 by intervenor Atty. Pete Quirino-Quadra.
of amended constitutional provision required because
it is "essential for the elector to have xxx the section The signature sheet attached to Atty. Quadra's
which is proposed to be added to or subtracted from. If opposition and the signature sheet attached to the
he is to vote intelligently, he must have this knowledge. Lambino Group's Memorandum are the same. We
Otherwise in many instances he would be required to reproduce below the signature sheet in full:
vote in the dark.") (Emphasis supplied)
Province:

Moreover, "an initiative signer must be informed at the City/Municipality:

time of signing of the nature and effect of that which is
proposed" and failure to do so is "deceptive and No. of
misleading" which renders the initiative void.[19]
Verified

Signatures:

Section 2, Article XVII of the Constitution does not

expressly state that the petition must set forth the full Legislative District:
text of the proposed amendments. However, the
deliberations of the framers of our Constitution clearly Barangay:
show that the framers intended to adopt the relevant
American jurisprudence on people's initiative. In
particular, the deliberations of the Constitutional
Commission explicitly reveal that the framers intended
that the people must first see the full text of the PROPOSITION: "DO YOU APPROVE OF THE
proposed amendments before they sign, and that the AMENDMENT OF ARTICLES VI AND VII OF THE
people must sign on a petition containing such full text. 1987 CONSTITUTION, CHANGING THE FORM OF
Indeed, Section 5(b) of Republic Act No. 6735, the GOVERNMENT FROM THE PRESENT BICAMERAL-
Initiative and Referendum Act that the Lambino Group PRESIDENTIAL TO A UNICAMERAL-
invokes as valid, requires that the people must sign the PARLIAMENTARY SYSTEM OF GOVERNMENT, IN
"petition x x x as signatories." ORDER TO ACHIEVE GREATER EFFICIENCY,
SIMPLICITY AND ECONOMY IN GOVERNMENT;

137
AND PROVIDING AN ARTICLE XVIII AS The Lambino Group failed to attach a copy of ULAP
TRANSITORY PROVISIONS FOR THE ORDERLY Resolution No. 2006-02 to the present petition.
SHIFT FROM ONE SYSTEM TO ANOTHER?" However, the "Official Website of the Union of Local
Authorities of the Philippines"[22] has posted the full
text of Resolution No. 2006-02, which provides:

I hereby APPROVE the proposed amendment to the RESOLUTION NO. 2006-02

1987 Constitution. My signature herein which shall
form part of the petition for initiative to amend the RESOLUTION SUPPORTING THE PROPOSALS OF
Constitution signifies my support for the filing thereof. THE PEOPLE'S CONSULTATIVE COMMISSION ON
CHARTER CHANGE THROUGH PEOPLE'S
There is not a single word, phrase, or sentence of text INITIATIVE AND REFERENDUM AS A MODE OF
of the Lambino Group's proposed changes in the AMENDING THE 1987 CONSTITUITION
signature sheet. Neither does the signature sheet state
that the text of the proposed changes is attached to it. WHEREAS, there is a need for the Union of Local
Petitioner Atty. Raul Lambino admitted this during the Authorities of the Philippines (ULAP) to adopt a
oral arguments before this Court on 26 September common stand on the approach to support the
2006. proposals of the People's Consultative Commission on
Charter Change;
The signature sheet merely asks a question whether
the people approve a shift from the Bicameral- WHEREAS, ULAP maintains its unqualified support to
Presidential to the Unicameral-Parliamentary system the agenda of Her Excellency President Gloria
of government. The signature sheet does not show to Macapagal-Arroyo for constitutional reforms as
the people the draft of the proposed changes before embodied in the ULAP Joint Declaration for
they are asked to sign the signature sheet. Clearly, the Constitutional Reforms signed by the members of the
signature sheet is not the "petition" that the framers of ULAP and the majority coalition of the House of
the Constitution envisioned when they formulated the Representatives in Manila Hotel sometime in October
initiative clause in Section 2, Article XVII of the 2005;
Constitution.
WHEREAS, the People's Consultative Commission on
Petitioner Atty. Lambino, however, explained that Charter Change created by Her Excellency to
during the signature-gathering from February to August recommend amendments to the 1987 Constitution has
2006, the Lambino Group circulated, together with the submitted its final report sometime in December 2005;
signature sheets, printed copies of the Lambino
Group's draft petition which they later filed on 25 WHEREAS, the ULAP is mindful of the current political
August 2006 with the COMELEC. When asked if his developments in Congress which militates against the
group also circulated the draft of their amended petition use of the expeditious form of amending the 1987
filed on 30 August 2006 with the COMELEC, Atty. Constitution;
Lambino initially replied that they circulated both.
However, Atty. Lambino changed his answer and WHEREAS, subject to the ratification of its institutional
stated that what his group circulated was the draft of members and the failure of Congress to amend the
the 30 August 2006 amended petition, not the draft of Constitution as a constituent assembly, ULAP has
the 25 August 2006 petition. unanimously agreed to pursue the constitutional reform
agenda through People's Initiative and Referendum
The Lambino Group would have this Court believe that without prejudice to other pragmatic means to pursue
they prepared the draft of the 30 August 2006 the same;
amended petition almost seven months earlier in
February 2006 when they started gathering signatures. WHEREFORE, BE IT RESOLVED AS IT IS HEREBY
Petitioner Erico B. Aumentado's RESOLVED, THAT ALL THE MEMBER-LEAGUES OF
"Verification/Certification" of the 25 August 2006 THE UNION OF LOCAL AUTHORITIES OF THE
petition, as well as of the 30 August 2006 amended PHILIPPINES (ULAP) SUPPORT THE PORPOSALS
petition, filed with the COMELEC, states as follows: (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH
I have caused the preparation of the foregoing PEOPLE'S INITIATIVE AND REFERENDUM AS A
[Amended] Petition in my personal capacity as a MODE OF AMENDING THE 1987 CONSTITUTION;
registered voter, for and on behalf of the Union of Local
Authorities of the Philippines, as shown by ULAP DONE, during the ULAP National Executive Board
Resolution No. 2006-02 hereto attached, and as special meeting held on 14 January 2006 at the
representative of the mass of signatories hereto. Century Park Hotel, Manila.[23] (Underscoring
(Emphasis supplied) supplied)

138
 of the draft petition together with the signature sheets.
ULAP Resolution No. 2006-02 does not authorize Likewise, the Lambino Group did not allege in their
petitioner Aumentado to prepare the 25 August 2006 present petition before this Court that they circulated
petition, or the 30 August 2006 amended petition, filed printed copies of the draft petition together with the
with the COMELEC. ULAP Resolution No. 2006-02 signature sheets. The signature sheets do not also
"support(s) the porposals (sic) of the Consulatative contain any indication that the draft petition is attached
(sic) Commission on Charter Change through people's to, or circulated with, the signature sheets.
initiative and referendum as a mode of amending the
1987 Constitution." The proposals of the Consultative
Commission[24] are vastly different from the proposed It is only in their Consolidated Reply to the Opposition-
changes of the Lambino Group in the 25 August 2006 in-Interventions that the Lambino Group first claimed
petition or 30 August 2006 amended petition filed with that they circulated the "petition for initiative filed with
the COMELEC. the COMELEC," thus:

For example, the proposed revisions of the

Consultative Commission affect all provisions of the
existing Constitution, from the Preamble to the [T]here is persuasive authority to the effect that"
Transitory Provisions. The proposed revisions have (w)here there is not (sic) fraud, a signer who did not
profound impact on the Judiciary and the National read the measure attached to a referendum petition
Patrimony provisions of the existing Constitution, cannot question his signature on the ground that he did
provisions that the Lambino Group's proposed not understand the nature of the act." [82 C.JS. S128h.
changes do not touch. The Lambino Group's proposed Mo. Stare v. Sullivan, 224, S.W. 327, 238 Mo. 546.]
changes purport to affect only Articles VI and VII of the Thus, the registered voters who signed the signature
existing Constitution, including the introduction of new sheets circulated together with the petition for initiative
Transitory Provisions. field with the COMELEC below, are predumed to have
understood the proposition contained in the petition.
The ULAP adopted Resolution No. 2006-02 on 14 (Emphasis supplied)
January 2006 or more than six months before the filing
of the 25 August 2006 petition or the 30 August 2006
amended petition with the COMELEC. However, ULAP The Lambino Group's statement that they circulated to
Resolution No. 2006-02 does not establish that ULAP the people "the petition for initiative filed with the
or the Lambino Group caused the circulation of the COMELEC" appears an afterthought, made after the
draft petition, together with the signature sheets, six intervenors Integrated Bar of the Philippines (Cebu City
months before the filing with the COMELEC. On the Chapter and Cebu Province Chapters) and Atty.
contrary, ULAP Resolution No. 2006-02 casts grave Quadra had pointed out that the signature sheets did
doubt on the Lambino Group's claim that they not contain the text of the proposed changes. In their
circulated the draft petition together with the signature Consolidated Reply, the Lambino Group alleged that
sheets. ULAP Resolution No. 2006-02 does not refer they circulated "the petition for initiative" but failed to
at all to the draft petition or to the Lambino Group's mention the amended petition. This contradicts what
proposed changes. Atty. Lambino finally stated during the oral arguments
that what they circulated was the draft of the amended
In their Manifestation explaining their amended petition petition of 30 August 2006.
before the COMELEC, the Lambino Group declared:

After the Petition was filed, Petitioners belatedly

realized that the proposed amendments alleged in the The Lambino Group cites as authority Corpus Juris
Petition, more specifically, paragraph 3 of Section 4 Secundum, stating that "a signer who did not read the
and paragraph 2 of Section 5 of the Transitory measure attached to a referendum petition cannot
Provisions were inaccurately stated and failed to question his signature on the ground that he did not
correctly reflect their proposed amendments. understand the nature of the act." The Lambino Group
quotes an authority that cites a proposed change
The Lambino Group did not allege that they were attached to the petition signed by the people. Even the
amending the petition because the amended petition authority the Lambino Group quotes requires that the
was what they had shown to the people during the proposed change must be attached to the petition. The
February to August 2006 signature-gathering. Instead, same authority the Lambino Group quotes requires the
the Lambino Group alleged that the petition of 25 people to sign on the petition itself.
August 2006 "inaccurately stated and failed to correctly
reflect their proposed amendments." Indeed, it is basic in American jurisprudence that the
proposed amendment must be incorporated with, or
The Lambino Group never alleged in the 25 August attached to, the initiative petition signed by the people.
2006 petition or the 30 August 2006 amended petition In the present initiative, the Lambino Group's proposed
with the COMELEC that they circulated printed copies changes were not incorporated with, or attached to, the

139
signature sheets. The Lambino Group's citation of In any event, the Lambino Group's signature sheets do
Corpus Juris Secundum pulls the rug from under their not contain the full text of the proposed changes, either
feet. on the face of the signature sheets, or as attachment
with an indication in the signature sheet of such
It is extremely doubtful that the Lambino Group attachment. Petitioner Atty. Lambino admitted this
prepared, printed, circulated, from February to August during the oral arguments, and this admission binds
2006 during the signature-gathering period, the draft of the Lambino Group. This fact is also obvious from a
the petition or amended petition they filed later with the mere reading of the signature sheet. This omission is
COMELEC. The Lambino Group are less than candid fatal. The failure to so include the text of the proposed
with this Court in their belated claim that they printed changes in the signature sheets renders the initiative
and circulated, together with the signature sheets, the void for non-compliance with the constitutional
petition or amended petition. Nevertheless, even requirement that the amendment must be "directly
assuming the Lambino Group circulated the amended proposed by the people through initiative upon a
petition during the signature-gathering period, the petition." The signature sheet is not the "petition"
Lambino Group admitted circulating only very limited envisioned in the initiative clause of the Constitution.
copies of the petition.

During the oral arguments, Atty. Lambino expressly For sure, the great majority of the 6.3 million people
admitted that they printed only 100,000 copies of the who signed the signature sheets did not see the full text
draft petition they filed more than six months later with of the proposed changes before signing. They could
the COMELEC. Atty. Lambino added that he also not have known the nature and effect of the proposed
asked other supporters to print additional copies of the changes, among which are:
draft petition but he could not state with certainty how
many additional copies the other supporters printed.
Atty. Lambino could only assure this Court of the
printing of 100,000 copies because he himself caused 1. The term limits on members of the legislature will be
the printing of these 100,000 copies. lifted and thus members of Parliament can be re-
elected indefinitely;[26]
Likewise, in the Lambino Group's Memorandum filed
on 11 October 2006, the Lambino Group expressly 2. The interim Parliament can continue to function
admit that "petitioner Lambino initiated the printing and indefinitely until its members, who are almost all the
reproduction of 100,000 copies of the petition for present members of Congress, decide to call for new
initiative x x x."[25] This admission binds the Lambino parliamentary elections. Thus, the members of the
Group and establishes beyond any doubt that the interim Parliament will determine the expiration of their
Lambino Group failed to show the full text of the own term of office; [27]
proposed changes to the great majority of the people
who signed the signature sheets. 3. Within 45 days from the ratification of the proposed
changes, the interim Parliament shall convene to
Thus, of the 6.3 million signatories, only 100,000 propose further amendments or revisions to the
signatories could have received with certainty one copy Constitution.[28]
each of the petition, assuming a 100 percent
distribution with no wastage. If Atty. Lambino and These three specific amendments are not stated or
company attached one copy of the petition to each even indicated in the Lambino Group's signature
signature sheet, only 100,000 signature sheets could sheets. The people who signed the signature sheets
have circulated with the petition. Each signature sheet had no idea that they were proposing these
contains space for ten signatures. Assuming ten amendments. These three proposed changes are
people signed each of these 100,000 signature sheets highly controversial. The people could not have
with the attached petition, the maximum number of inferred or divined these proposed changes merely
people who saw the petition before they signed the from a reading or rereading of the contents of the
signature sheets would not exceed 1,000,000. signature sheets.

With only 100,000 printed copies of the petition, it During the oral arguments, petitioner Atty. Lambino
would be physically impossible for all or a great stated that he and his group assured the people during
majority of the 6.3 million signatories to have seen the the signature-gathering that the elections for the
petition before they signed the signature sheets. The regular Parliament would be held during the 2007 local
inescapable conclusion is that the Lambino Group elections if the proposed changes were ratified before
failed to show to the 6.3 million signatories the full text the 2007 local elections. However, the text of the
of the proposed changes. If ever, not more than one proposed changes belies this.
million signatories saw the petition before they signed
the signature sheets. The proposed Section 5(2), Article XVIII on Transitory
Provisions, as found in the amended petition, states:

140
 Section 4(4). Within forty-five days from ratification of
Section 5(2). The interim Parliament shall provide for these amendments, the interim Parliament shall
the election of the members of Parliament, which shall convene to propose amendments to, or revisions of,
be synchronized and held simultaneously with the this Constitution consistent with the principles of local
election of all local government local government autonomy, decentralization and a strong bureaucracy.
officials. xxxx (Emphasis supplied) (Emphasis supplied)

During the oral arguments, Atty. Lambino stated that

this provision is a "surplusage" and the Court and the
people should simply ignore it. Far from being a
surplusage, this provision invalidates the Lambino
Group's initiative.
Section 5(2) does not state that the elections for the
regular Parliament will be held simultaneously with the Section 4(4) is a subject matter totally unrelated to the
2007 local elections. This section merely requires that shift from the Bicameral-Presidential to the
the elections for the regular Parliament shall be held Unicameral-Parliamentary system. American
simultaneously with the local elections without jurisprudence on initiatives outlaws this as logrolling -
specifying the year. when the initiative petition incorporates an unrelated
subject matter in the same petition. This puts the
Petitioner Atty. Lambino, who claims to be the principal people in a dilemma since they can answer only either
drafter of the proposed changes, could have easily yes or no to the entire proposition, forcing them to sign
written the word "next" before the phrase "election of a petition that effectively contains two propositions, one
all local government officials." This would have insured of which they may find unacceptable.
that the elections for the regular Parliament would be
held in the next local elections following the ratification Under American jurisprudence, the effect of logrolling
of the proposed changes. However, the absence of the is to nullify the entire proposition and not only the
word "next" allows the interim Parliament to schedule unrelated subject matter. Thus, in Fine v.
the elections for the regular Parliament simultaneously Firestone,[29] the Supreme Court of Florida declared:
with any future local elections.
Combining multiple propositions into one proposal
Thus, the members of the interim Parliament will constitutes "logrolling," which, if our judicial
decide the expiration of their own term of office. This responsibility is to mean anything, we cannot permit.
allows incumbent members of the House of The very broadness of the proposed amendment
Representatives to hold office beyond their current amounts to logrolling because the electorate cannot
three-year term of office, and possibly even beyond the know what it is voting on - the amendment's
five-year term of office of regular members of the proponents' simplistic explanation reveals only the tip
Parliament. Certainly, this is contrary to the of the iceberg. x x x x The ballot must give the
representations of Atty. Lambino and his group to the electorate fair notice of the proposed amendment
6.3 million people who signed the signature sheets. being voted on. x x x x The ballot language in the
Atty. Lambino and his group deceived the 6.3 million instant case fails to do that. The very broadness of the
signatories, and even the entire nation. proposal makes it impossible to state what it will affect
and effect and violates the requirement that proposed
This lucidly shows the absolute need for the people to amendments embrace only one subject. (Emphasis
sign an initiative petition that contains the full text of the supplied)
proposed amendments to avoid fraud or
misrepresentation. In the present initiative, the 6.3 Logrolling confuses and even deceives the people. In
million signatories had to rely on the verbal Yute Air Alaska v. McAlpine,[30] the Supreme Court of
representations of Atty. Lambino and his group Alaska warned against "inadvertence, stealth and
because the signature sheets did not contain the full fraud" in logrolling:
text of the proposed changes. The result is a grand
deception on the 6.3 million signatories who were led Whenever a bill becomes law through the initiative
to believe that the proposed changes would require the process, all of the problems that the single-subject rule
holding in 2007 of elections for the regular Parliament was enacted to prevent are exacerbated. There is a
simultaneously with the local elections. greater danger of logrolling, or the deliberate
intermingling of issues to increase the likelihood of an
The Lambino Group's initiative springs another initiative's passage, and there is a greater opportunity
surprise on the people who signed the signature for "inadvertence, stealth and fraud" in the enactment-
sheets. The proposed changes mandate the interim by-initiative process. The drafters of an initiative
Parliament to make further amendments or revisions to operate independently of any structured or supervised
the Constitution. The proposed Section 4(4), Article process. They often emphasize particular provisions of
XVIII on Transitory Provisions, provides: their proposition, while remaining silent on other (more

141
complex or less appealing) provisions, when present members of the House will remain members of
communicating to the public. x x x Indeed, initiative the interim Parliament after 30 June 2010.
promoters typically use simplistic advertising to present
their initiative to potential petition-signers and eventual
voters. Many voters will never read the full text of the
initiative before the election. More importantly, there is The term of the incumbent President ends on 30 June
no process for amending or splitting the several 2010. Thereafter, the Prime Minister exercises all the
provisions in an initiative proposal. These difficulties powers of the President. If the interim Parliament does
clearly distinguish the initiative from the legislative not schedule elections for the regular Parliament by 30
process. (Emphasis supplied) June 2010, the Prime Minister will come only from the
present members of the House of Representatives to
the exclusion of the present Senators.
Thus, the present initiative appears merely a
preliminary step for further amendments or revisions to The signature sheets do not explain this discrimination
be undertaken by the interim Parliament as a against the Senators. The 6.3 million people who
constituent assembly. The people who signed the signed the signature sheets could not have known that
signature sheets could not have known that their their signatures would be used to discriminate against
signatures would be used to propose an amendment the Senators. They could not have known that their
mandating the interim Parliament to propose further signatures would be used to limit, after 30 June 2010,
amendments or revisions to the Constitution. the interim Parliament's choice of Prime Minister only
to members of the existing House of Representatives.
Apparently, the Lambino Group inserted the proposed
Section 4(4) to compel the interim Parliament to amend An initiative that gathers signatures from the people
or revise again the Constitution within 45 days from without first showing to the people the full text of the
ratification of the proposed changes, or before the May proposed amendments is most likely a deception, and
2007 elections. In the absence of the proposed Section can operate as a gigantic fraud on the people. That is
4(4), the interim Parliament has the discretion whether why the Constitution requires that an initiative must be
to amend or revise again the Constitution. With the "directly proposed by the people x x x in a petition" -
proposed Section 4(4), the initiative proponents want meaning that the people must sign on a petition that
the interim Parliament mandated to immediately contains the full text of the proposed amendments. On
amend or revise again the Constitution. so vital an issue as amending the nation's fundamental
law, the writing of the text of the proposed amendments
However, the signature sheets do not explain the cannot be hidden from the people under a general or
reason for this rush in amending or revising again so special power of attorney to unnamed, faceless, and
soon the Constitution. The signature sheets do not also unelected individuals.
explain what specific amendments or revisions the
initiative proponents want the interim Parliament to The Constitution entrusts to the people the power to
make, and why there is a need for such further directly propose amendments to the Constitution. This
amendments or revisions. The people are again left in Court trusts the wisdom of the people even if the
the dark to fathom the nature and effect of the members of this Court do not personally know the
proposed changes. Certainly, such an initiative is not people who sign the petition. However, this trust
"directly proposed by the people" because the people emanates from a fundamental assumption: the full text
do not even know the nature and effect of the proposed of the proposed amendment is first shown to the
changes. people before they sign the petition, not after they have
signed the petition.
There is another intriguing provision inserted in the
Lambino Group's amended petition of 30 August 2006. In short, the Lambino Group's initiative is void and
The proposed Section 4(3) of the Transitory Provisions unconstitutional because it dismally fails to comply with
states: the requirement of Section 2, Article XVII of the
Constitution that the initiative must be "directly
Section 4(3). Senators whose term of office ends in proposed by the people through initiative upon a
2010 shall be members of Parliament until noon of the petition."
thirtieth day of June 2010.
2. The Initiative Violates Section 2, Article XVII of the
After 30 June 2010, not one of the present Senators Constitution Disallowing Revision through Initiatives
will remain as member of Parliament if the interim
Parliament does not schedule elections for the regular
Parliament by 30 June 2010. However, there is no A people's initiative to change the Constitution applies
counterpart provision for the present members of the only to an amendment of the Constitution and not to its
House of Representatives even if their term of office revision. In contrast, Congress or a constitutional
will all end on 30 June 2007, three years earlier than convention can propose both amendments and
that of half of the present Senators. Thus, all the

142
revisions to the Constitution. Article XVII of the initiative should be limited to amendments to the
Constitution provides: Constitution and should not extend to the revision of
the entire Constitution, so we removed it from the
operation of Section 1 of the proposed Article on
Amendment or Revision. x x x x

xxxx
ARTICLE XVII
AMENDMENTS OR REVISIONS MS. AQUINO: [I] am seriously bothered by providing
this process of initiative as a separate section in the
Sec. 1. any amendment to, or revision of, this Article on Amendment. Would the sponsor be
Constitution may be proposed by: amenable to accepting an amendment in terms of
realigning Section 2 as another subparagraph (c) of
(1) The Congress, upon a vote of three-fourths of all its Section 1, instead of setting it up as another separate
Members, or section as if it were a self-executing provision?

(2) A constitutional convention. MR. SUAREZ: We would be amenable except that, as

we clarified a while ago, this process of initiative is
Sec. 2. Amendments to this Constitution may likewise limited to the matter of amendment and should not
be directly proposed by the people through initiative expand into a revision which contemplates a total
xxx. (Emphasis supplied) overhaul of the Constitution. That was the sense that
was conveyed by the Committee.
Article XVII of the Constitution speaks of three modes
of amending the Constitution. The first mode is through MS. AQUINO: In other words, the Committee was
Congress upon three-fourths vote of all its Members. attempting to distinguish the coverage of modes (a)
The second mode is through a constitutional and (b) in Section 1 to include the process of revision;
convention. The third mode is through a people's whereas, the process of initiation to amend, which is
initiative. given to the public, would only apply to amendments?

Section 1 of Article XVII, referring to the first and MR. SUAREZ: That is right. Those were the terms
second modes, applies to "[A]ny amendment to, or envisioned in the Committee.
revision of, this Constitution." In contrast, Section 2 of
Article XVII, referring to the third mode, applies only to MS. AQUINO: I thank the sponsor; and thank you,
"[A]mendments to this Constitution." This distinction Madam President.
was intentional as shown by the following deliberations
of the Constitutional Commission: xxxx

MR. MAAMBONG: My first question: Commissioner

Davide's proposed amendment on line 1 refers to
MR. SUAREZ: Thank you, Madam President. "amendments." Does it not cover the word "revision" as
defined by Commissioner Padilla when he made the
May we respectfully call the attention of the Members distinction between the words "amendments" and
of the Commission that pursuant to the mandate given "revision"?
to us last night, we submitted this afternoon a complete
Committee Report No. 7 which embodies the proposed MR. DAVIDE: No, it does not, because "amendments"
provision governing the matter of initiative. This is now and "revision" should be covered by Section 1. So
covered by Section 2 of the complete committee report. insofar as initiative is concerned, it can only relate to
With the permission of the Members, may I quote "amendments" not "revision."
Section 2:
MR. MAAMBONG: Thank you.[31] (Emphasis
The people may, after five years from the date of the supplied)
last plebiscite held, directly propose amendments to
this Constitution thru initiative upon petition of at least
ten percent of the registered voters.

This completes the blanks appearing in the original

Committee Report No. 7. This proposal was suggested There can be no mistake about it. The framers of the
on the theory that this matter of initiative, which came Constitution intended, and wrote, a clear distinction
about because of the extraordinary developments this between "amendment" and "revision" of the
year, has to be separated from the traditional modes of Constitution. The framers intended, and wrote, that
amending the Constitution as embodied in Section 1. only Congress or a constitutional convention may
The committee members felt that this system of propose revisions to the Constitution. The framers

143
intended, and wrote, that a people's initiative may
propose only amendments to the Constitution. Where
the intent and language of the Constitution clearly
withhold from the people the power to propose Whether it be a revision or a new constitution, it is not
revisions to the Constitution, the people cannot such a measure as can be submitted to the people
propose revisions even as they are empowered to through the initiative. If a revision, it is subject to the
propose amendments. requirements of Article XVII, Section 2(1); if a new
constitution, it can only be proposed at a convention
This has been the consistent ruling of state supreme called in the manner provided in Article XVII, Section
courts in the United States. Thus, in McFadden v. 1. x x x x
Jordan,[32] the Supreme Court of California ruled:

The initiative power reserved by the people by

amendment to the Constitution x x x applies only to the Similarly, in this jurisdiction there can be no dispute that
proposing and the adopting or rejecting of 'laws and a people's initiative can only propose amendments to
amendments to the Constitution' and does not purport the Constitution since the Constitution itself limits
to extend to a constitutional revision. x x x x It is thus initiatives to amendments. There can be no deviation
clear that a revision of the Constitution may be from the constitutionally prescribed modes of revising
accomplished only through ratification by the people of the Constitution. A popular clamor, even one backed
a revised constitution proposed by a convention called by 6.3 million signatures, cannot justify a deviation from
for that purpose as outlined hereinabove. the specific modes prescribed in the Constitution itself.
Consequently if the scope of the proposed initiative
measure (hereinafter termed 'the measure') now As the Supreme Court of Oklahoma ruled in In re
before us is so broad that if such measure became law Initiative Petition No. 364:[34]
a substantial revision of our present state Constitution
would be effected, then the measure may not properly
be submitted to the electorate until and unless it is first It is a fundamental principle that a constitution can only
agreed upon by a constitutional convention, and the be revised or amended in the manner prescribed by the
writ sought by petitioner should issue. x x x x instrument itself, and that any attempt to revise a
(Emphasis supplied) constitution in a manner other than the one provided in
the instrument is almost invariably treated as extra-
Likewise, the Supreme Court of Oregon ruled in constitutional and revolutionary. x x x x “While it is
Holmes v. Appling:[33] universally conceded that the people are sovereign
and that they have power to adopt a constitution and to
It is well established that when a constitution specifies change their own work at will, they must, in doing so,
the manner in which it may be amended or revised, it act in an orderly manner and according to the settled
can be altered by those who favor amendments, principles of constitutional law. And where the people,
revision, or other change only through the use of one in adopting a constitution, have prescribed the method
of the specified means. The constitution itself by which the people may alter or amend it, an attempt
recognizes that there is a difference between an to change the fundamental law in violation of the self-
amendment and a revision; and it is obvious from an imposed restrictions, is unconstitutional.” x x x x
examination of the measure here in question that it is (Emphasis supplied)
not an amendment as that term is generally understood
and as it is used in Article IV, Section 1. The document
appears to be based in large part on the revision of the
constitution drafted by the 'Commission for This Court, whose members are sworn to defend and
Constitutional Revision' authorized by the 1961 protect the Constitution, cannot shirk from its solemn
Legislative Assembly, x x x and submitted to the 1963 oath and duty to insure compliance with the clear
Legislative Assembly. It failed to receive in the command of the Constitution ? that a people's initiative
Assembly the two-third's majority vote of both houses may only amend, never revise, the Constitution.
required by Article XVII, Section 2, and hence failed of
adoption, x x x. The question is, does the Lambino Group's initiative
constitute an amendment or revision of the
Constitution? If the Lambino Group's initiative
While differing from that document in material respects, constitutes a revision, then the present petition should
the measure sponsored by the plaintiffs is, be dismissed for being outside the scope of Section 2,
nevertheless, a thorough overhauling of the present Article XVII of the Constitution.
constitution xxx.
Courts have long recognized the distinction between
an amendment and a revision of a constitution. One of
the earliest cases that recognized the distinction
To call it an amendment is a misnomer. described the fundamental difference in this manner:

144
 presidential to parliamentary, and from a bicameral to
[T]he very term "constitution" implies an instrument of a unicameral legislature.
a permanent and abiding nature, and the provisions
contained therein for its revision indicate the will of the A change in the structure of government is a revision
people that the underlying principles upon which it of the Constitution, as when the three great co-equal
rests, as well as the substantial entirety of the branches of government in the present Constitution are
instrument, shall be of a like permanent and abiding reduced into two. This alters the separation of powers
nature. On the other hand, the significance of the term in the Constitution. A shift from the present Bicameral-
"amendment" implies such an addition or change Presidential system to a Unicameral-Parliamentary
within the lines of the original instrument as will effect system is a revision of the Constitution. Merging the
an improvement, or better carry out the purpose for legislative and executive branches is a radical change
which it was framed.[35] (Emphasis supplied) in the structure of government.

Revision broadly implies a change that alters a basic

principle in the constitution, like altering the principle of The abolition alone of the Office of the President as the
separation of powers or the system of checks-and- locus of Executive Power alters the separation of
balances. There is also revision if the change alters the powers and thus constitutes a revision of the
substantial entirety of the constitution, as when the Constitution. Likewise, the abolition alone of one
change affects substantial provisions of the chamber of Congress alters the system of checks-and-
constitution. On the other hand, amendment broadly balances within the legislature and constitutes a
refers to a change that adds, reduces, or deletes revision of the Constitution.
without altering the basic principle involved. Revision
generally affects several provisions of the constitution,
while amendment generally affects only the specific
provision being amended. By any legal test and under any jurisdiction, a shift from
a Bicameral-Presidential to a Unicameral-
In California where the initiative clause allows Parliamentary system, involving the abolition of the
amendments but not revisions to the constitution just Office of the President and the abolition of one
like in our Constitution, courts have developed a two- chamber of Congress, is beyond doubt a revision, not
part test: the quantitative test and the qualitative test. a mere amendment. On the face alone of the Lambino
The quantitative test asks whether the proposed Group's proposed changes, it is readily apparent that
change is "so extensive in its provisions as to change the changes will radically alter the framework of
directly the 'substantial entirety' of the constitution by government as set forth in the Constitution. Father
the deletion or alteration of numerous existing Joaquin Bernas, S.J., a leading member of the
provisions."[36] The court examines only the number Constitutional Commission, writes:
of provisions affected and does not consider the
degree of the change. An amendment envisages an alteration of one or a few
specific and separable provisions. The guiding original
The qualitative test inquires into the qualitative effects intention of an amendment is to improve specific parts
of the proposed change in the constitution. The main or to add new provisions deemed necessary to meet
inquiry is whether the change will "accomplish such far new conditions or to suppress specific portions that
reaching changes in the nature of our basic may have become obsolete or that are judged to be
governmental plan as to amount to a revision."[37] dangerous. In revision, however, the guiding original
Whether there is an alteration in the structure of intention and plan contemplates a re-examination of
government is a proper subject of inquiry. Thus, "a the entire document, or of provisions of the document
change in the nature of [the] basic governmental plan" which have over-all implications for the entire
includes "change in its fundamental framework or the document, to determine how and to what extent they
fundamental powers of its Branches."[38] A change in should be altered. Thus, for instance a switch from the
the nature of the basic governmental plan also includes presidential system to a parliamentary system would
changes that "jeopardize the traditional form of be a revision because of its over-all impact on the
government and the system of check and entire constitutional structure. So would a switch from
balances."[39] a bicameral system to a unicameral system be
because of its effect on other important provisions of
Under both the quantitative and qualitative tests, the the Constitution.[41] (Emphasis supplied)
Lambino Group's initiative is a revision and not merely
an amendment. Quantitatively, the Lambino Group's
proposed changes overhaul two articles - Article VI on In Adams v. Gunter,[42] an initiative petition proposed
the Legislature and Article VII on the Executive - the amendment of the Florida State constitution to shift
affecting a total of 105 provisions in the entire from a bicameral to a unicameral legislature. The issue
Constitution.[40] Qualitatively, the proposed changes turned on whether the initiative "was defective and
alter substantially the basic plan of government, from unauthorized where [the] proposed amendment would
x x x affect several other provisions of [the]

145
Constitution." The Supreme Court of Florida, striking no less than 105 provisions of the Constitution would
down the initiative as outside the scope of the initiative be affected based on the count of Associate Justice
clause, ruled as follows: Romeo J. Callejo, Sr.[44] There is no doubt that the
Lambino Group's present initiative seeks far more
radical changes in the structure of government than the
initiative in Adams.

The proposal here to amend Section 1 of Article III of The Lambino Group theorizes that the difference
the 1968 Constitution to provide for a Unicameral between "amendment" and "revision" is only one of
Legislature affects not only many other provisions of procedure, not of substance. The Lambino Group
the Constitution but provides for a change in the form posits that when a deliberative body drafts and
of the legislative branch of government, which has proposes changes to the Constitution, substantive
been in existence in the United States Congress and in changes are called "revisions" because members of
all of the states of the nation, except one, since the the deliberative body work full-time on the changes.
earliest days. It would be difficult to visualize a more However, the same substantive changes, when
revolutionary change. The concept of a House and a proposed through an initiative, are called
Senate is basic in the American form of government. It "amendments" because the changes are made by
would not only radically change the whole pattern of ordinary people who do not make an "occupation,
government in this state and tear apart the whole fabric profession, or vocation" out of such endeavor.
of the Constitution, but would even affect the physical
facilities necessary to carry on government. Thus, the Lambino Group makes the following
exposition of their theory in their Memorandum:
xxxx
99. With this distinction in mind, we note that the
We conclude with the observation that if such proposed constitutional provisions expressly provide for both
amendment were adopted by the people at the General "amendment" and "revision" when it speaks of
Election and if the Legislature at its next session should legislators and constitutional delegates, while the same
fail to submit further amendments to revise and clarify provisions expressly provide only for "amendment"
the numerous inconsistencies and conflicts which when it speaks of the people. It would seem that the
would result, or if after submission of appropriate apparent distinction is based on the actual experience
amendments the people should refuse to adopt them, of the people, that on one hand the common people in
simple chaos would prevail in the government of this general are not expected to work full-time on the matter
State. The same result would obtain from an of correcting the constitution because that is not their
amendment, for instance, of Section 1 of Article V, to occupation, profession or vocation; while on the other
provide for only a Supreme Court and Circuit Courts- hand, the legislators and constitutional convention
and there could be other examples too numerous to delegates are expected to work full-time on the same
detail. These examples point unerringly to the answer. matter because that is their occupation, profession or
vocation. Thus, the difference between the words
The purpose of the long and arduous work of the "revision" and "amendment" pertain only to the process
hundreds of men and women and many sessions of the or procedure of coming up with the corrections, for
Legislature in bringing about the Constitution of 1968 purposes of interpreting the constitutional provisions.
was to eliminate inconsistencies and conflicts and to
give the State a workable, accordant, homogenous and 100. Stated otherwise, the difference between
up-to-date document. All of this could disappear very "amendment" and "revision" cannot reasonably be in
quickly if we were to hold that it could be amended in the substance or extent of the correction. x x x x
the manner proposed in the initiative petition here.[43] (Underlining in the original; boldfacing supplied)
(Emphasis supplied)
The Lambino Group in effect argues that if Congress
or a constitutional convention had drafted the same
proposed changes that the Lambino Group wrote in the
The rationale of the Adams decision applies with present initiative, the changes would constitute a
greater force to the present petition. The Lambino revision of the Constitution. Thus, the Lambino Group
Group's initiative not only seeks a shift from a concedes that the proposed changes in the present
bicameral to a unicameral legislature, it also seeks to initiative constitute a revision if Congress or a
merge the executive and legislative departments. The constitutional convention had drafted the changes.
initiative in Adams did not even touch the executive However, since the Lambino Group as private
department. individuals drafted the proposed changes, the changes
are merely amendments to the Constitution. The
In Adams, the Supreme Court of Florida enumerated Lambino Group trivializes the serious matter of
18 sections of the Florida Constitution that would be changing the fundamental law of the land.
affected by the shift from a bicameral to a unicameral
legislature. In the Lambino Group's present initiative,

146
The express intent of the framers and the plain similar sanction for its use as a means of revising the
language of the Constitution contradict the Lambino constitution." x x x x
Group's theory. Where the intent of the framers and the
language of the Constitution are clear and plainly It then reviewed Article XVII, section 2, relating to
stated, courts do not deviate from such categorical revisions, and said: "It is the only section of the
intent and language.[45] Any theory espousing a constitution which provides the means for
construction contrary to such intent and language constitutional revision and it excludes the idea that an
deserves scant consideration. More so, if such theory individual, through the initiative, may place such a
wreaks havoc by creating inconsistencies in the form measure before the electorate." x x x x
of government established in the Constitution. Such a
theory, devoid of any jurisprudential mooring and Accordingly, we reject Mabon's argument that Article
inviting inconsistencies in the Constitution, only XVII, section 2, does not apply to constitutional
exposes the flimsiness of the Lambino Group's revisions proposed by initiative. (Emphasis supplied)
position. Any theory advocating that a proposed
change involving a radical structural change in Similarly, this Court must reject the Lambino Group's
government does not constitute a revision justly theory which negates the express intent of the framers
deserves rejection. and the plain language of the Constitution.

The Lambino Group simply recycles a theory that We can visualize amendments and revisions as a
initiative proponents in American jurisdictions have spectrum, at one end green for amendments and at the
attempted to advance without any success. In Lowe v. other end red for revisions. Towards the middle of the
Keisling,[46] the Supreme Court of Oregon rejected spectrum, colors fuse and difficulties arise in
this theory, thus: determining whether there is an amendment or
revision. The present initiative is indisputably located at
Mabon argues that Article XVII, section 2, does not the far end of the red spectrum where revision begins.
apply to changes to the constitution proposed by The present initiative seeks a radical overhaul of the
initiative. His theory is that Article XVII, section 2 existing separation of powers among the three co-
merely provides a procedure by which the legislature equal departments of government, requiring far-
can propose a revision of the constitution, but it does reaching amendments in several sections and articles
not affect proposed revisions initiated by the people. of the Constitution.

Plaintiffs argue that the proposed ballot measure Where the proposed change applies only to a specific
constitutes a wholesale change to the constitution that provision of the Constitution without affecting any other
cannot be enacted through the initiative process. They section or article, the change may generally be
assert that the distinction between amendment and considered an amendment and not a revision. For
revision is determined by reviewing the scope and example, a change reducing the voting age from 18
subject matter of the proposed enactment, and that years to 15 years[47] is an amendment and not a
revisions are not limited to "a formal overhauling of the revision. Similarly, a change reducing Filipino
constitution." They argue that this ballot measure ownership of mass media companies from 100 percent
proposes far reaching changes outside the lines of the to 60 percent is an amendment and not a revision.[48]
original instrument, including profound impacts on Also, a change requiring a college degree as an
existing fundamental rights and radical restructuring of additional qualification for election to the Presidency is
the government's relationship with a defined group of an amendment and not a revision.[49]
citizens. Plaintiffs assert that, because the proposed
ballot measure "will refashion the most basic principles The changes in these examples do not entail any
of Oregon constitutional law," the trial court correctly modification of sections or articles of the Constitution
held that it violated Article XVII, section 2, and cannot other than the specific provision being amended.
appear on the ballot without the prior approval of the These changes do not also affect the structure of
legislature. government or the system of checks-and-balances
among or within the three branches. These three
We first address Mabon's argument that Article XVII, examples are located at the far green end of the
section 2(1), does not prohibit revisions instituted by spectrum, opposite the far red end where the revision
initiative. In Holmes v. Appling, x x x, the Supreme sought by the present petition is located.
Court concluded that a revision of the constitution may
not be accomplished by initiative, because of the However, there can be no fixed rule on whether a
provisions of Article XVII, section 2. After reviewing change is an amendment or a revision. A change in a
Article XVII, section1, relating to proposed single word of one sentence of the Constitution may be
amendments, the court said: a revision and not an amendment. For example, the
substitution of the word "republican" with "monarchic"
"From the foregoing it appears that Article IV, Section or "theocratic" in Section 1, Article II[50] of the
1, authorizes the use of the initiative as a means of Constitution radically overhauls the entire structure of
amending the Oregon Constitution, but it contains no government and the fundamental ideological basis of

147
the Constitution. Thus, each specific change will have Constitution and a provision in the proposed changes.
to be examined case-by-case, depending on how it The inconsistency is between a provision in Article VI
affects other provisions, as well as how it affects the of the 1987 Constitution and the "Parliamentary system
structure of government, the carefully crafted system of of government," and the inconsistency shall be
checks-and-balances, and the underlying ideological resolved in favor of a "unicameral parliamentary form
basis of the existing Constitution. of government."

Since a revision of a constitution affects basic Now, what "unicameral parliamentary form of
principles, or several provisions of a constitution, a government" do the Lambino Group's proposed
deliberative body with recorded proceedings is best changes refer to ? the Bangladeshi, Singaporean,
suited to undertake a revision. A revision requires Israeli, or New Zealand models, which are among the
harmonizing not only several provisions, but also the few countries with unicameral parliaments? The
altered principles with those that remain unaltered. proposed changes could not possibly refer to the
Thus, constitutions normally authorize deliberative traditional and well-known parliamentary forms of
bodies like constituent assemblies or constitutional government ? the British, French, Spanish, German,
conventions to undertake revisions. On the other hand, Italian, Canadian, Australian, or Malaysian models,
constitutions allow people's initiatives, which do not which have all bicameral parliaments. Did the people
have fixed and identifiable deliberative bodies or who signed the signature sheets realize that they were
recorded proceedings, to undertake only amendments adopting the Bangladeshi, Singaporean, Israeli, or
and not revisions. New Zealand parliamentary form of government?

In the present initiative, the Lambino Group's proposed This drives home the point that the people's initiative is
Section 2 of the Transitory Provisions states: not meant for revisions of the Constitution but only for
amendments. A shift from the present Bicameral-
Section 2. Upon the expiration of the term of the Presidential to a Unicameral-Parliamentary system
incumbent President and Vice President, with the requires harmonizing several provisions in many
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI articles of the Constitution. Revision of the Constitution
of the 1987 Constitution which shall hereby be through a people's initiative will only result in gross
amended and Sections 18 and 24 which shall be absurdities in the Constitution.
deleted, all other Sections of Article VI are hereby
retained and renumbered sequentially as Section 2, ad In sum, there is no doubt whatsoever that the Lambino
seriatim up to 26, unless they are inconsistent with the Group's initiative is a revision and not an amendment.
Parliamentary system of government, in which case, Thus, the present initiative is void and unconstitutional
they shall be amended to conform with a unicameral because it violates Section 2, Article XVII of the
parliamentary form of government; x x x x (Emphasis Constitution limiting the scope of a people's initiative to
supplied) "[A]mendments to this Constitution."

The basic rule in statutory construction is that if a later 3. A Revisit of Santiago v. COMELEC is Not Necessary
law is irreconcilably inconsistent with a prior law, the
later law prevails. This rule also applies to construction The present petition warrants dismissal for failure to
of constitutions. However, the Lambino Group's draft of comply with the basic requirements of Section 2, Article
Section 2 of the Transitory Provisions turns on its head XVII of the Constitution on the conduct and scope of a
this rule of construction by stating that in case of such people's initiative to amend the Constitution. There is
irreconcilable inconsistency, the earlier provision "shall no need to revisit this Court's ruling in Santiago
be amended to conform with a unicameral declaring RA 6735 "incomplete, inadequate or wanting
parliamentary form of government." The effect is to in essential terms and conditions" to cover the system
freeze the two irreconcilable provisions until the earlier of initiative to amend the Constitution. An affirmation or
one "shall be amended," which requires a future reversal of Santiago will not change the outcome of the
separate constitutional amendment. present petition. Thus, this Court must decline to revisit
Santiago which effectively ruled that RA 6735 does not
Realizing the absurdity of the need for such an comply with the requirements of the Constitution to
amendment, petitioner Atty. Lambino readily conceded implement the initiative clause on amendments to the
during the oral arguments that the requirement of a Constitution.
future amendment is a "surplusage." In short, Atty.
Lambino wants to reinstate the rule of statutory This Court must avoid revisiting a ruling involving the
construction so that the later provision automatically constitutionality of a statute if the case before the Court
prevails in case of irreconcilable inconsistency. can be resolved on some other grounds. Such
However, it is not as simple as that. avoidance is a logical consequence of the well-settled
doctrine that courts will not pass upon the
The irreconcilable inconsistency envisioned in the constitutionality of a statute if the case can be resolved
proposed Section 2 of the Transitory Provisions is not on some other grounds.[51]
between a provision in Article VI of the 1987

148
Nevertheless, even assuming that RA 6735 is valid to Court in G.R. No. 127325, promulgated on March 19,
implement the constitutional provision on initiatives to 1997, and its Resolution of June 10, 1997.
amend the Constitution, this will not change the result
here because the present petition violates Section 2, 5. Conclusion
Article XVII of the Constitution. To be a valid initiative,
the present initiative must first comply with Section 2, The Constitution, as the fundamental law of the land,
Article XVII of the Constitution even before complying deserves the utmost respect and obedience of all the
with RA 6735. citizens of this nation. No one can trivialize the
Constitution by cavalierly amending or revising it in
Even then, the present initiative violates Section 5(b) of blatant violation of the clearly specified modes of
RA 6735 which requires that the "petition for an amendment and revision laid down in the Constitution
initiative on the 1987 Constitution must have at least itself.
twelve per centum (12%) of the total number of
registered voters as signatories." Section 5(b) of RA To allow such change in the fundamental law is to set
6735 requires that the people must sign the "petition x adrift the Constitution in unchartered waters, to be
x x as signatories." tossed and turned by every dominant political group of
the day. If this Court allows today a cavalier change in
The 6.3 million signatories did not sign the petition of the Constitution outside the constitutionally prescribed
25 August 2006 or the amended petition of 30 August modes, tomorrow the new dominant political group that
2006 filed with the COMELEC. Only Atty. Lambino, comes will demand its own set of changes in the same
Atty. Demosthenes B. Donato, and Atty. Alberto C. cavalier and unconstitutional fashion. A revolving-door
Agra signed the petition and amended petition as constitution does not augur well for the rule of law in
counsels for "Raul L. Lambino and Erico B. this country.
Aumentado, Petitioners." In the COMELEC, the
Lambino Group, claiming to act "together with" the 6.3 An overwhelming majority - 16,622,111 voters
million signatories, merely attached the signature comprising 76.3 percent of the total votes cast[53] -
sheets to the petition and amended petition. Thus, the approved our Constitution in a national plebiscite held
petition and amended petition filed with the COMELEC on 11 February 1987. That approval is the
did not even comply with the basic requirement of RA unmistakable voice of the people, the full expression of
6735 that the Lambino Group claims as valid. the people's sovereign will. That approval included the
prescribed modes for amending or revising the
The Lambino Group's logrolling initiative also violates Constitution.
Section 10(a) of RA 6735 stating, "No petition
embracing more than one (1) subject shall be No amount of signatures, not even the 6,327,952
submitted to the electorate; x x x." The proposed million signatures gathered by the Lambino Group, can
Section 4(4) of the Transitory Provisions, mandating change our Constitution contrary to the specific modes
the interim Parliament to propose further amendments that the people, in their sovereign capacity, prescribed
or revisions to the Constitution, is a subject matter when they ratified the Constitution. The alternative is
totally unrelated to the shift in the form of government. an extra-constitutional change, which means
Since the present initiative embraces more than one subverting the people's sovereign will and discarding
subject matter, RA 6735 prohibits submission of the the Constitution. This is one act the Court cannot and
initiative petition to the electorate. Thus, even if RA should never do. As the ultimate guardian of the
6735 is valid, the Lambino Group's initiative will still fail. Constitution, this Court is sworn to perform its solemn
duty to defend and protect the Constitution, which
4. The COMELEC Did Not Commit Grave Abuse of embodies the real sovereign will of the people.
Discretion in Dismissing the Lambino Group's Initiative
Incantations of "people's voice," "people's sovereign
In dismissing the Lambino Group's initiative petition, will," or "let the people decide" cannot override the
the COMELEC en banc merely followed this Court's specific modes of changing the Constitution as
ruling in Santiago and People's Initiative for Reform, prescribed in the Constitution itself. Otherwise, the
Modernization and Action (PIRMA) v. COMELEC.[52] Constitution ? the people's fundamental covenant that
For following this Court's ruling, no grave abuse of provides enduring stability to our society ? becomes
discretion is attributable to the COMELEC. On this easily susceptible to manipulative changes by political
ground alone, the present petition warrants outright groups gathering signatures through false promises.
dismissal. Thus, this Court should reiterate its Then, the Constitution ceases to be the bedrock of the
unanimous ruling in PIRMA: nation's stability.

The Court ruled, first, by a unanimous vote, that no The Lambino Group claims that their initiative is the
grave abuse of discretion could be attributed to the "people's voice." However, the Lambino Group
public respondent COMELEC in dismissing the petition unabashedly states in ULAP Resolution No. 2006-02,
filed by PIRMA therein, it appearing that it only in the verification of their petition with the COMELEC,
complied with the dispositions in the Decisions of this that "ULAP maintains its unqualified support to the

149
agenda of Her Excellency President Gloria Macapagal- Commission of Elections (COMELEC). The assailed
Arroyo for constitutional reforms." The Lambino Group resolution declared that the power of initiative could not
thus admits that their "people's" initiative is an be invoked by the petitioner, Engr. Oscar A. Marmeto
"unqualified support to the agenda" of the incumbent (Marmeto), for the passage of a proposed ordinance in
President to change the Constitution. This forewarns Muntinlupa City, citing the lack of budgetary
the Court to be wary of incantations of "people's voice" appropriation for the conduct of the initiative process.3
or "sovereign will" in the present initiative.
THE FACTS
This Court cannot betray its primordial duty to defend
and protect the Constitution. The Constitution, which On January 21, 2013, Marmeto filed in behalf of the
embodies the people's sovereign will, is the bible of this Muntinlupa People Power 4 (MPP) a proposed
Court. This Court exists to defend and protect the ordinance with the Sangguniang Panlungsod of
Constitution. To allow this constitutionally infirm Muntinlupa.5 The proposal sought the creation of a
initiative, propelled by deceptively gathered signatures, sectoral council and the appropriation of the amount of
to alter basic principles in the Constitution is to allow a P200 million for the livelihood programs and projects
desecration of the Constitution. To allow such that would benefit the people of Muntinlupa City.
alteration and desecration is to lose this Court's raison
d'etre. For failure of the Sanggunian Panlungsod to act on
the proposition within 30 days from its filing, Manneto
WHERFORE, we DISMISS the petition in G.R. No. filed a petition for initiative with the same body to invoke
174153. the power of initiative under the Republic Act (RA) No.
7160, otherwise known as the Local Government Code
SO ORDERED. of 1991 (LGC).

MARMETO VS COMELEC (2017) The secretary of Sanggunian Panlungsod of

Muntinlupa wrote a letter dated June 11, 2013 to the
ENGR. OSCAR A. MARMETO, Petitioner, COMELEC stating that the proposal could not be acted
vs. upon by the Sanggunian because the City's budget
COMMISSION ON ELECTIONS (COMELEC), for FY 2013 had already been enacted. Thus, the
Promulgated: Respondent. secretary claimed that a new appropriation ordinance
was needed to provide funds for the conduct of the
Present: initiative.
SERENO, C.J.,
CARPIO,* On July 31, 2013, the COMELEC issued Resolution
VELASCO, JR., No. 13-0904 setting aside Marmeto's initiative petition
LEONARDO-DE CASTRO, because the propositions therein were beyond the
PERALTA, powers of the Sanggunian Panglunsod to enact and
BERSAMIN, were not in accordance with the provisions of existing
DEL CASTILLO, laws and rules.6
PERLAS-BERNABE,
LEONEN, Marmeto sought reconsideration7 of COMELEC's
JARDELEZA,* Resolution No. 13-0904 by contending that the sectoral
CAGUIOA, council sought to be created would not constitute as a
MARTIRES, legislative body separate from the Sanggunian
TIJAM, Panlungsod. He clarified that the sectoral council
REYES, and would merely act as the people's representative, which
GESMUNDO, JJ. would facilitate the exercise of the people's power of
G.R. No. 213953 | 2017-09-26 initiative and referendum.

Republic of the Philippines However, the COMJJLEC did not find Marmeto's
Supreme Court motion for reconsideration meritorious and issued
Manila Resolution No. 13-1039 dated September 17, 2013,8
affirming its earlier ruling dismissing the initiative
EN BANC petition. It ruled that the issues Marmeto raised in his
motion were mere reiterations of his petition which it
DECISION had already addressed. Nonetheless, it noted that
Marmeto might opt to re-file his initiative petition, since
DEL CASTILLO, J.: the then newly-elected members of the Sangguniang
Panlungsod of Muntinlupa might be more sympathetic
Before the Court is a Petition for certiorari and to Marmeto's propositions.
mandamus1 seeking to annul the Resolution No. 14-
0509 dated July 22, 20142 of the respondent

150
Accordingly, on December 2, 2013, Manneto filed a the propositions therein were beyond the legal powers
second proposed ordinance with the Sangguniang of the Sangguniang Panlungsod to enact. 15 Section
Panlungsod of Muntinlupa. Again, no favorable action 124(b) of the LGC provides that the "[i]nitiative shall
was done by the Sanggunian within 30 days from the extend only to subjects or matters which are within the
filing of the proposal, prompting Manneto file a second legal powers of the Sanggunian to enact." According
initiative petition with the Office of the City Election to the COMELEC, Manneto's second initiative petition
Officer on February 10, 2014.9 proposed the creation of a council composed of 12
sectoral representatives. This sectoral council will act
On April 1, 2014, Manneto filed a Supplemental as a legislative body that will directly propose, enact,
Petition to comply with the requirements of COMELEC approve, or reject any ordinance through the power of
Resolution No. 2300, 10 which provided the Rules and initiative and referendum. 16
Regulations Governing the Conduct of Initiative on the
Constitution, and Initiative and Referendum on The COMELEC refers to Section 458 of the LGC which
National and Local Laws. enumerates the powers and duties of the Sangguniang
Panlungsod, noting that nothing in the provision grants
The Assailed COMELEC Resolution the Sanggunian the power to create a separate local
legislative body. Moreover, Section 457 of the LGC
On July 22, 2014, the COMELEC issued the assailed allows only three sectoral representatives to become
Resolution No. 14- 050911 which effectively dismissed members of the Sangguniang Panlungsod. These
Manneto's second initiative petition for lack of sectoral representatives are to be elected by the
budgetary allocation. The pertinent portion of the residents of the city as members of the Sanggunian
assailed resolution reads as follows: and cannot be appointed through an initiative election.

Considering the absence of any provision in the THE COURT'S RULING

Commission's FY 2014 budget for the expenses for
local initiative or any other election activity x x x the The Court dismisses the Petition.
Commission RESOLVED, as it hereby RESOLVES, to
adopt the foregoing recommendation x x x that the The COMELEC is mandated to enforce
power of local initiative cannot be invoked by Engr. and administer the laws on local
Oscar A. Marmeto x x x for the passage of an initiative and referendum
ordinance for the appropriation of funds for livelihood
projects for the residents of Muntinlupa City since the Initiative has been described as an instrument of direct
setting up of signature stations, verification of democracy whereby the citizens directly propose and
signatures, the certification of the number of registered legislate laws. 17 As it is the citizens themselves who
voters, and all other acts to be done in exercise thereof legislate the laws, direct legislation through initiative
will entail expenses on the part of the Commission. 12 (along with referendum) is considered as an exercise
(Emphasis supplied) of original legislative power, 18 as opposed to that of
derivative legislative power which has been delegated
Disagreeing with Resolution No. 14-0509, Manne to by the sovereign people to legislative bodies such as
filed the present certiorari and mandamus petition the Congress. 19
contending that the COMELEC acted with grave abuse
of discretion amounting to lack or excess of jurisdiction Section 1 of Article VI of the Constitution recognizes
when it ' dismissed his second initiative petition. the distinction between original and derivative
legislative power by declaring that "legislative power
THE PARTIES ARGUMENTS shall be vested in the Congress x x x except to the
extent reserved to the people by the provision on
Manneto assails the COMELEC's Resolution No. 14- initiative and referendum." The italicized clause
0509, contending that the denial of an initiative petition pertains to the original power of legislation which the
due to lack of appropriated funds constitutes a gross sovereign people have reserved for their exercise in
neglect abandonment of the COMELEC's duties under matters they consider fit. Considering that derivative
the Constitution.13 legislative power is merely delegated by the sovereign
people to its elected representatives, it is deemed
Manneto believes that the COMELEC has a ministerial subordinate to the original power of the people.20
duty to conduct the initiative proceedings under
pertinent laws upon compliance with the legal The Constitution further mandated the Congress to
requirements for the exercise of the right. He asserts "provide for a system of initiative and referendum, x x
that the COMELEC evaded its mandated duty by citing x whereby the people can directly propose and enact
unavailability of funds as ground to frustrate the laws or approve or reject any act or law or part thereof
conduct of local initiative. 14 by the Congress or local legislative body xx x."21 In
compliance, the Congress enacted RA No. 6735 on
The COMELEC, on the other hand, claims that the August 4, 1989 which provided for a system of initiative
denial of Manneto's initiative petition was proper, since and referendum on national and local laws. To

151
implement RA No. 6735, the COMELEC promulgated New Appropriations, by Programs/ Activities/Projects,
Resolution No. 2300 on January 16, 1991, which by Operating Units
provided the rules and regulations governing the Current Operating Expenditures
conduct of initiative on the Constitution, 22 and
initiative and referendum on national and local laws.
Since the LGC codified all laws pertaining to local Personnel
governments,23 the provisions on local initiative and Services
referendum found in RA No. 6735 were reiterated, with Maintenance
slight modifications, in Sections 120 to 127 of the LGC; and Other
all other provisions in RA No. 6735 not inconsistent Operating
within the Sections 120 and 127 of the LGC remained Expenses
valid and in effect. Capital
Outlays
RA No. 6735 and the LGC are thus the pertinent laws Totals
on local initiative and referendum which the COMELEC
is mandated to enforce and administer under Article IX- PROGRAMS
C, Section 2(1) of the Constitution. Naturally, the 100000000
conduct of initiative and referendum (as with any General Administration and Support
election exercise) will entail expenses on the part of the
government. The budget for the conduct of the
exercise of political rights, specifically those on
suffrage and electoral rights, is given to the
COMELEC, whose approved annual appropriations 100010000
are automatically and regularly released.24 General management and supervision
P454,457.000
The COMELEC cannot defeat the P276,749,000
exercise of the people's original
legislative power for lack of budgetary P731206,000
allocation for its conduct National Capital Region (NCR)
P454,457.000
In Goh v. Hon. Bayron,25 the Court has definitely ruled P276,749,000
the question of whether the COMELEC may prevent
the conduct of a recall election for lack of specific P731206,000
budgetary allocation therefor. In as much as the issue Central Office
resolved in Goh is similar to the present one before the P454,457.000
Court, a brief summary thereof is necessary. P276,749,000

In 2014, Alroben Goh commenced the proceedings for P731206,000

the conduct of recall elections against Puerto Sub-total
Princessa City Mayor Lucilo Bayron. Although the General Administration and Support
COMELEC found Goh's petition sufficient in form and P454,457.000
substance, it resolved to suspend the recall election P276,749,000
because there was no appropriation provided for the
conduct of recall elections in the FY 2014 General P731206,000
Appropriations Act (GAA). As there was no line item in 30000000
the GAA for recall elections, there could likewise be no Operations
augmentation according to the COMELEC. 1,483,087,000
174,188,000
Contrary to the COMELEC's assertions, the Court
ruled that the FY 2014 GAA "actually expressly 1,657,275.000
provides for a line item appropriation for the conduct 30000000
and supervision of recall elections."26 Under the MFO 1: REGULATION OF ELECTIONS
Program category of the COMELEC's 2014 budget,27 1,437,272,000
the following amounts were provided: 172,058,000

XXXII. COMMISSION ON ELECTIONS 1,609,330,000

For general and administration support, and 30000000
operations, including locally-funded projects, as Conduct of voter's education and information
indicated hereunder campaign thru print/radio/television and social media
...................................................................................... 10,141,000
......................................P2,735,321,000 1,363,000

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11,504,000 10,379,000
National Capital Region (NCR) 120,644,000
10,141,000
1,363,000 131,023,000
301010005
11,504,000 Conduct and supervision of elections, referenda, recall
Central Office votes and plebiscites
10,141,000 1,360,975,000
1,363,000 40,261000

11,504,000 1,401,501,000
301010002 National Capital Region (NCR)
Preparation of maps oftenitorial units of voting centers, 67,917,000
the establislunent of new voting centers, and the 6,439.000
transfer, merger or abolition of existing ones
21,662,000 74,356,000
2,161,000 Central Office
67,917,000
23,823,000 6,439.000
National Capital Region (NCR)
21,662,000 74,356,000
2,161,000

23,823,000 Notably, for its Major Final Output (MFO) 1 on the

Regulation of Elections, the COMELEC was provided
Central Office with a total of P1,401,501,000 for the "Conduct and
21,662,000 supervision of elections, referenda, recall votes and
2,161,000 plebiscites," which amount was subdivided among the
15 administrative regions in the country.
23,823,000
301010003 The Court added that "[w]hen the COMELEC receives
Development of software system and procedures a budgetary appropriation for its 'Current Operating
6,432,000 Expenditures,' such appropriation includes
5,674,000 expenditures to carry out its constitutional functions x x
x"28 The Court considered the appropriation of P1.4
12,106,000 billion as specific enough to fund elections, which
National Capital Region (NCR) includes both regular and special elections, including
6,432,000 recall elections.
5,674,000
Further, the allocation of a specific budget for the
12,106,000 conduct of elections constituted as "a line item which
Central Office can be augmented from the COMELEC's savings to
6,432,000 fund the conduct of recall elections in 2014."29 Thus,
5,674,000 the Court concluded that –

12,106,000 [c]onsidering that there is an existing line item

301010004 appropriation for the conduct of recall elections in the
Monitoring the implemenmtion on the conduct of 2014 GAA, we see no reason why the COMELEC is
election and other political exercises and development unable to perform its constitutional mandate to 'enforce
of measures to improve the registration and election and administer all laws and regulations relative to the
systems including the dissemination of election results conduct of x x x recall.' Should the funds appropriated
of previous elections in the 2014 GAA be deemed insufficient, then the
10,379,000 COMELEC Chairman may exercise his authority to
120,644,000 augment such line item appropriation from the
COMELEC's existing savings, as this augmentation is
131,023,000 expressly authorized in the 2014 GAA.30
National Capital Region (NCR)
10,379,000 There is no reason not to extend the Goh ruling to the
120,644,000 present case. In fact, Marmeto's second initiative
petition was also filed in 2014; in dismissing Manneto'
131,023,000 s petition for lack of funds, the COMELEC was referring
Central Office to its budget under the FY 2014 GAA.

153
 present certiorari and mandamus petition. He points
Although Goh involved the conduct of recall elections, out that Resolution No. 14-0509 dismissed his second
the P1.4 billion appropriation under the FY 2014 GAA initiative petition solely for lack of specific budgetary
was for the "conduct and supervision of elections, allocation. There was no mention in the assailed
referenda, recall votes and plebiscites."31 The term resolution that the propositions in his second initiative
"election" is comprehensive enough to include other petition were not within the powers of the Sanggunian
kinds of electoral exercises, including initiative to enact. This ground was instead cited by the
elections. As earlier mentioned, the COMELEC's COMELEC in its Resolution Nos. 13-0904 and 13-1039
constitutional mandate is to enforce and administer all which dismissed Marmeto's first initiative petition.
laws relative to the conduct of an election, plebiscite, Hence, he opines that the propriety of the propositions
initiative, referendum, and recall. The Constitution contained in his second initiative petition, not being
further states that the "[f]unds certified by the covered by the assailed COMELEC resolution, cannot
[COMELEC] as necessary to defray the expenses for be reviewed in the present petition.
holding regular and special elections, plebiscites,
initiatives, referenda, and recalls, shall be provided in In several cases, this Court considered issues which
the regular or special appropriations and, once were not raised by either party when these issues are
approved shall be released automatically."32 Thus, the necessary for the complete resolution of the cases. 35
budgetary allocation for the "regulation of elections" If the Court can review unassigned errors which are
identified as the COMELEC's MFO 1 should necessary to arrive at a just resolution of the case, with
necessarily also cover expenses for the conduct of all the more reason can it review a matter raised as a
initiative elections. defense by a party to uphold the validity of a resolution
assailed in the case.
The Court also notes that, aside from the P1.4 billion
appropriation for the "conduct and supervision of Section 124(b) of the LGC provides that "[i]nitiatives
elections, referenda, recall votes and plebiscites," the shall extend only to subjects or matters which are
COMELEC was also given P1.6 billion in the FY 2014 within the legal powers of the Sanggunian to enact."
GAA for the "management and supervision of elections Section 127 of the LGC gives the courts authority to
and other electoral exercises."33 declare "null and void any proposition approved
pursuant to this Chapter36 for violation of the
Thus, as in Goh, the COMELEC was provided with Constitution or want of capacity of the Sanggunian
budgetary allocation for the conduct of initiative concerned to enact the said measure."37
elections. The COMELEC, therefore, committed grave
abuse of discretion in dismissing Manneto's second Significantly, the power of the courts to nullify
initiative petition on the ground that there were no propositions for being ultra vires extends only to those
funds allocated for the purpose. already approved, i.e. those which have been
approved by a majority of the votes cast in the initiative
The COMELEC has the power to election called for the purpose. In other words, the
review whether the propositions in an courts can review the terms only of an approved
initiative petition are within the power ordinance. It will be premature for the courts to review
of the concerned Sanggunian to enact the propositions contained in an initiative petition that
has yet to be voted for by the people because at that
The resolution of the present case, however, does not point, there is no actual controversy that the courts may
end in applying the Court's ruling in Goh to the present adjudicate. This begs the question of which tribunal
case. In its Comment and Memorandum, the can review the sufficiency of an initiative petition?
COMELEC defends the dismissal of Manneto's second
initiative petition on the ground that the propositions Inasmuch as the COMELEC also has quasi-judicial
raised therein were matters that were not within the and administrative functions, it is the COMELEC which
powers of the Sangguiang Panlungsod to enact. This has the power to determine whether the propositions in
petition purportedly proposed the creation of another an initiative petition are within the powers of a
legislative body separate from the Sanggunian concerned Sanggunian to enact. In Subic Bay
composed of 12 appointive sectoral representatives. Metropolitan Authority v. Commission on Elections,38
Not only does the LGC denies to the Sanggunian the the Court ruled that –
power to create a separate legislative body, but it also
limits the number of sectoral representatives in the while regular courts may take jurisdiction over
Sanggunian itself to only three elected members.34 'approved propositions' per said Sec. 18 of R.A. 6735,
For these reasons, the COMELEC argues that the the Comelec in the exercise of its quasi-judicial and
dismissal of Marmeto's second initiative petition was administrative powers may adjudicate and pass upon
proper. such proposals insofar as their form and language are
concerned x x x and it may be added, even as to
Marmeto counters that the arguments the COMELEC content, where the proposals or parts thereof are
now raises were not the grounds which the COMELEC patently and clearly outside the 'capacity of the local
cited in Resolution No. 14-0509 that is assailed in the legislative body to enact.' x x x (Emphasis supplied)

154
 accomplishment report to the local government unit
The COMELEC's power to review the substance of the (LGU). It shall also observe transparency and
propositions is also implied in Section 12 of RA No. accountability in fund management. 44
6735, which gives this Court appellate power to review
the COMELEC's "findings of the sufficiency or These propositions, however, are either sufficiently
insufficiency of the petition for initiative or referendum covered by or violative of the LGC for reasons
x x x." explained below.

Marmeto's propositions in his initiative (A) The creation of a separate local legislative body is
petition are beyond the powers of the ultra vires
Sanggunian Panlungsod ng
Muntinlupa to enact Under the LGC, local legislative power within the city is
to be exercised by the Sanggunianpanlungsod, 45
Accordingly, a review of the propositions put forth by which shall be comprised of elected district and
Marmeto in his second initiative petition becomes sectoral representatives.46 The sectoral
imperative. representatives, moreover be limited to three
members, coming from enumerated/identified
Unfortunately, the records do not contain a copy of the sectors.47
proposed ordinance itself. Nevertheless, Marmeto's
pleadings and the annexes thereto (particularly the Significantly, nothing in the LGC allows the creation of
Supplemental Petition39 ) refer to the significant another local legislative body that will enact, approve,
propositions put forth in his second initiative petition. or reject local laws either through the regular legislative
process or through initiative or referendum. Even
The Court also notes that the propositions in Marmeto's Marmeto's claim that the sectoral council will not
second petition are closely related to those in his first legislate but will merely "facilitate" the people's
petition, which are mentioned in the COMELEC exercise of the power of initiative and referendum is
Resolution Nos. 13-0904 and 13-1039. As Marmeto rendered unnecessary by the task the COMELEC must
never denied that the propositions in his second assume under the LGC. Section 122(c) of the LGC
initiative petition are completely different from those in provides that the COMELEC (or its designated
his first petition,40 it is not implausible to presume that representative) shall extend assistance in the
the propositions contained in both petitions are more or formulation of the proposition.
less the same. Since the COMELEC had already ruled
on the propriety of these propositions in its Resolution (B) The sectoral council/MPP's proposed function
No. 13-0904 and to avoid a remand of the case that will overlaps with the Local Development Council
prolong these proceedings, the Court will proceed to
rule on the issue of whether Manneto's propositions are The law recognizes the right of the people to organize
within the power of the Sanggunian to enact and thus themselves and encourages the formation of non-
be valid subjects of an initiative petition. governmental, community-based, or sectoral
organizations that aim to promote the nation's
Manneto's initiative petitions propose the following: welfare.48 Even the LGC promotes relations between
the LGUs and people's and non-governmental
(1) The creation of a sectoral council composed of 12 organizations (PO/NGOs), and provides various ways
members from various sectors who will serve as the by which they can be active partners in pursuing local
people's representatives for the implementation and autonomy.49
management of livelihood programs and projects;41
The LGC, moreover, requires the establishment in
(2) The sectoral council will also stand as the people's each LGU of a local development council, whose
representatives that will directly propose, enact, membership includes representatives of POs/NGOs
approve, or reject ordinances through initiative or operating within the LGU. 50 These local development
referendum; 42 councils are primarily tasked with developing a
"comprehensive multi-sectoral development plan"51 in
(3) An appropriation of P200 million to be allocated for their respective LGUs. City development councils are
livelihood projects of the people and other purposes. specifically tasked to exercise the following functions:
The net income from the projects will then be used for
the delivery of basic services and facility for Muntinlupa (1) Formulate long-term, medium-term, and annual
residents; 43 socio-economic development plans and policies.

(4) The MPP will create the implementing guidelines (2) x x x;

and procedure for the utilization of the appropriated
funds, and conduct programs and project feasibility (3) Appraise and prioritize socio-economic
studies. It shall comply with the prescribed accounting development programs and projects;
and auditing rules of, and submit monthly

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(4) x x x; who may be held administratively and criminally liable
for the imprudent use thereof.
(5) Coordinate, monitor, and evaluate the
implementation of development programs and CONCLUSION
projects; and
Initiative and referendum are the means by which the
(6) Perform such other functions as may be provided sovereign people exercise their legislative power, and
by law or competent authority. 52 the valid exercise thereof should not be easily defeated
by claiming lack of specific budgetary appropriation for
Given these functions of the city development council, their conduct. The Court reiterates its ruling in Goh that
there is a clear overlap with those proposed by the grant of a line item in the FY 2014 GAA for the
Marmeto to be performed by the sectoral council conduct and supervision of elections constitutes as
and/or MPP. sufficient authority for the COMELEC to use the
amount for elections and other political exercises,
(C) The LGC requires local government funds and including initiative and recall, and to augment this
monies to be spent solely for public purposes, and amount from the COMELEC's existing savings.
provides transparency and accountability measures to
ensure this end Nonetheless, as the Court ruled in Subic Bay
Metropolitan Authority, the COMELEC is likewise given
The overlap in functions, by itself, does not suffice to the power to review the sufficiency of initiative
turn down Marmeto's proposal to create a sectoral petitions, particularly the issue of whether the
council or any similar organization. What the Court propositions set forth therein are within the power of
finds disturbing in Marmeto's initiative petitions is the the concerned Sanggunian to enact. In as much as a
authority of the proposed sectoral council to utilize, Sanggunian does not have the power to create a
manage, and administer public funds as it sees fit. separate local legislative body and that other
propositions in Marmeto's initiative petition clearly
The fundamental principles in local fiscal contravene the existing laws, the COMELEC did not
administration provided in the LGC state that no money commit grave abuse of discretion amounting to lack or
shall be paid out of the local treasury except in excess of jurisdiction in dismissing the petition and
pursuance of an appropriations ordinance or law,53 cannot be ordered to conduct and supervise the
and that local government funds and monies shall be procedure for the conduct of initiative elections.
spent solely for public purposes. 54
WHEREFORE, the Petition for certiorari and
Marmeto's petition proposes the appropriation of P200 mandamus is DISMISSED. The Resolution No. 14-
million for the livelihood programs and projects of 0509 of the Commission on Elections dated
Muntinlupa residents. Significantly, the utilization of July22,2014 is AFFIRMED.
this amount is subject to the guidelines to be later
implemented by Marmeto's MPP. That these SO ORDERED.
guidelines will be drafted and implemented subsequent
to the initiative elections denies the Muntinlupa TOLENTINO VS COMELEC (1971)
residents of the opportunity to assess and scrutinize
the utilization of local funds, and gives Marmeto and ARTURO M. TOLENTINO, petitioner, vs.
his organization an almost complete discretion in COMMISSION ON ELECTIONS, and THE CHIEF
determining the allocation and disbursement of the ACCOUNTANT, THE AUDITOR, and THE
funds. It is no justification that the funds will be used for DISBURSING OFFICER OF THE 1971
public purposes on the claim these will be applied to CONSTITUTIONAL CONVENTION, respondents,
programs and projects that will eventually redound to RAUL S. MANGLAPUS, JESUS G. BARRERA,
the benefit of the public. PABLO S. TRILLANA III, VICTOR DE LA SE
G.R. No. L-34150 | 1971-10-16
Our laws have put in place measures to ensure
transparency and accountability in dealing with public DECISION
funds, 55 since "[p]ublic funds are the property of the
people and must be used prudently at all times with a
view to prevent dissipation and waste."56 These BARREDO, J:
measures may be subverted or rendered inapplicable
when the management and utilization of the funds is Petition for prohibition principally to restrain the
turned over to private persons or entities. Although respondent Commission on Elections "from
comprised of Muntinlupa residents and voters, undertaking to hold a plebiscite on November 8, 1971,"
Marmeto's MPP remains a private organization and its at which the proposed constitutional amendment
members cannot be considered as public officers who "reducing the voting age" in Section 1 of Article V of the
are burdened with responsibility for public funds and Constitution of the Philippines to eighteen years "shall
be submitted" for ratification by the people pursuant to

156
Organic Resolution No. 1 of the Constitutional Constitution, namely, Resolutions 2 and 4 of the joint
Convention of 1971, and the subsequent implementing sessions of Congress held on March 16, 1967 and
resolutions, by declaring said resolutions to be without June 17, 1969, respectively. The delegates to the said
the force and effect of law in so far as they direct the Constitution were all elected under and by virtue of said
holding of such plebiscite and by also declaring the resolutions and the implementing legislation thereof,
acts of the respondent Commission (COMELEC) Republic Act 6132. The pertinent portions of
performed and to be done by it in obedience to the Resolution No. 2 read as follows:
aforesaid Convention resolutions to be null and void,
for being violative of the Constitution of the Philippines. "SECTION 1. There is hereby called a convention to
propose amendments to the Constitution of the
As a preliminary step, since the petition named as Philippines, to be composed of two elective Delegates
respondent only the COMELEC, the Court required from each representative district who shall have the
that copies thereof be served on the Solicitor General same qualifications as those required of Members of
and the Constitutional Convention, through its the House of Representatives.
President, for such action as they may deem proper to
take. In due time, respondent COMELEC filed its xxx xxx xxx
answer joining issues with petitioner. To further put
things in proper order, and considering that the fiscal "SECTION 7. The amendments proposed by the
officers of the Convention are indispensable parties in Convention shall be valid and considered part of the
a proceeding of this nature, since the acts sought to be Constitution when approved by a majority of the votes
enjoined involve the expenditure of funds appropriated cast in an election at which they are submitted to the
by law for the Convention, the Court also ordered that people for their ratification pursuant to Article XV of the
the Disbursing Officer, Chief Accountant and Auditor of Constitution."
the Convention be made respondents. After the
petition was so amended, the first appeared thru Resolution No. 4 merely modified the number of
Senator Emmanuel Pelaez and the last two thru delegates to represent the different cities and
Delegate Ramon Gonzales. All said respondents, thru provinces fixed originally in Resolution No. 2.
counsel, resist petitioner's action.
After the election of the delegates held on November
For reasons of orderliness and to avoid unnecessary 10, 1970, the Convention held its inaugural session on
duplication of arguments and even possible confusion, June 1, 1971.
and considering that with the principal parties being
duly represented by able counsel, their interests would Its preliminary labors of election of officers,
be adequately protected already, the Court had to limit organization of committees and other preparatory
the number of intervenors from the ranks of the works over, as its first formal proposal to amend the
delegates to the Convention who, more or less, have Constitution, its session which began on September
legal interest in the success of the respondents, and 27, 1971, or more accurately, at about 3:30 in the
so, only Delegates Raul S. Manglapus, Jesus G. morning of September 28, 1971, the Convention
Barrera, Pablo S. Trillana III, Victor de la Serna, approved Organic Resolution No. 1 reading thus:
Marcelo B. Fernan, Jose Y. Feria, Leonardo Siguion
Reyna, Victor Ortega and Juan B. Borra, all "CC ORGANIC RESOLUTION NO. 1
distinguished lawyers in their own right, have been
allowed to intervene jointly. The Court feels that with "A RESOLUTION AMENDING SECTION ONE OF
such an array of brilliant and dedicated counsel, all ARTICLE V OF THE CONSTITUTION OF THE
interests involved should be duly and amply PHILIPPINES SO AS TO LOWER THE VOTING AGE
represented and protected. At any rate, TO 18.
notwithstanding that their corresponding motions for
leave to intervene or to appear as amicus curiae 1 have "BE IT RESOLVED as it is hereby resolved by the 1971
been denied, the pleadings filed by the other delegates Constitutional Convention:
and some private parties, the latter in representation of
their minor children allegedly to be affected by the "Section 1. Section One of Article V of the Constitution
result of this case are with the records and the Court of the Philippines is amended to as follows:
acknowledges that they have not been without value
as materials in the extensive study that has been "Section 1. Suffrage may be exercised by (male)
undertaken in this case. citizens of the Philippines not otherwise disqualified by
law, who are (twenty-one) EIGHTEEN years or over
The background facts are beyond dispute. The and are able to read and write, and who shall have
Constitutional Convention of 1971 came into being by resided in the Philippines for one year and in the
virtue of two resolutions of the Congress of the municipality wherein they propose to vote for at least
Philippines approved in its capacity as a constituent six months preceding the election.'
assembly convened for the purpose of calling a
convention to propose amendments to the

157
"Section 2. This amendment shall be valid as part of " Said official ballots and election forms will be
the Constitution of the Philippines when approved by a delivered to the Commission in time so that they could
majority of the votes cast in a plebiscite to coincide with be distributed at the same time that the Commission
the local elections in November 1971. will distribute its official and sample ballots to be used
in the elections on November 8, 1971."
"Section 3. This partial amendment, which refers only
to the age qualification for the exercise of suffrage shall What happened afterwards may best be stated by
be without prejudice to other amendments that will be quoting from intervenors' statement of the genesis of
proposed in the future by the 1971 Constitutional the above proposal:
Convention on other portions of the amended Section
or on other portions of the entire Constitution. "The President of the Convention also issued an order
forming an Ad Hoc Committee to implement the
"Section 4. The Convention hereby authorizes the use Resolution.
of the sum of P75,000.00 from its savings or from its
unexpended funds for the expense of the advanced "This Committee issued implementing guidelines
plebiscite; provided, however that should there be no which were approved by the President who then
savings or unexpended sums, the Delegates waive transmitted them to the Commission on Elections.
P250.00 each or the equivalent of 2-1/2 days per
diem.'" "The Committee on Plebiscite and Ratification filed a
report on the progress of the implementation of the
By a letter dated September 28, 1971, President plebiscite in the afternoon of October 7, 1971,
Diosdado Macapagal, called upon respondent enclosing copies of the order, resolution and letters of
Comelec "to help the Convention implement (the transmittal above referred to (Copy of the report is
above) resolution." The said letter reads: hereto attached as Annex 8-Memorandum)

"September 28, 1971 "RECESS RESOLUTION

"The Commission on Elections
Manila "In its plenary session in the evening of October 7,
Thru the Chairman 1971, the Convention approved a resolution authored
by Delegate Antonio Olmedo of Davao Oriental, calling
Gentlemen: for a recess of the Convention from November 1, 1971
to November 9, 1971 to permit the delegates to
Last night the Constitutional Convention passed campaign for the ratification of Organic Resolution No.
Resolution No. 1 quoted as follows: 1. (Copies of the resolution and the transcript of debate
thereon are hereto attached as Annexes 9 and 9-A
xxx xxx xxx Memorandum, respectively).

(see above) "RESOLUTION CONFIRMING IMPLEMENTATION

Pursuant to the provision of Section 14, Republic Act "On October 12, 1971, the Convention passed
No. 6132 otherwise known as the Constitutional Resolution No. 24 submitted by Delegate Jose Ozamiz
Convention Act of 1971, may we call upon you to help confirming the authority of the President of the
the Convention implement this resolution: Convention to implement Organic Resolution No. 1,
including the creation of the Ad Hoc Committee
Sincerely, ratifying all acts performed in connection with said
implementation."
(Sgd.) DIOSDADO P. MACAPAGAL
DIOSDADO P. MACAPAGAL Upon these facts, the main thrust of the petition is that
President" Organic Resolution No. 1 and the other implementing
resolutions thereof subsequently approved by the
On September 30, 1971, COMELEC "RESOLVED to Convention have no force and effect as laws in so far
inform the Constitutional Convention that it will hold the as they provide for the holding of a plebiscite co
plebiscite on condition that: incident with the elections of eight senators and all city,
provincial and municipal Officials to be held on
"(a) The Constitutional Convention will undertake the November 8, 1971, hence all of Comelec's acts in
printing of separate official ballots, election returns and obedience thereof and tending to carry out the holding
tally sheets for the use of said plebiscite at its expense; of the plebiscite directed by said resolutions are null
and void, on the ground that the calling and holding of
"(b) The Constitutional Convention will adopt its own such a plebiscite is, by the Constitution, a power
security measures for the printing and shipment of said lodged exclusively in Congress, as a legislative body,
ballots and election forms; and and may not be exercised by the Convention, and that,
under Section 1, Article XV of the Constitution, the

158
proposed amendment in question cannot be presented
to the people for ratification separately from each and "It is true that in Mabanag v. Lopez Vito (supra), this
all of the other amendments to be drafted and Court characterizing the issue submitted thereto as a
proposed by the Convention. On the other hand, political one, declined to pass upon the question
respondents and intervenors posit that the power to whether or not a given number of votes cast in
provide for, fix the date and lay down the details of the Congress in favor of a proposed amendment to the
plebiscite for the ratification of any amendment the Constitution which was being submitted to the people
Convention may deem proper to propose is within the for ratification satisfied the three-fourths vote
authority of the Convention as a necessary requirement of the fundamental law. The force of this
consequence and part of its power to propose precedent has been weakened, however, by Suanes v.
amendments and that this power includes that of Chief Accountant of the Senate (81 Phil: 818), Avelino
submitting such amendments either individually or v. Cuenco, (L-2851, March 4 & 14, 1943), Tañada v.
jointly at such time and manner as the Convention may Cuenco, (L-10520, Feb. 28, 1957) and Macias v.
direct in its discretion. The Court's delicate task now is Commission on Elections, (L-18684, Sept. 14, 1961).
to decide which of these two poses is really in accord In the first we held that the officers and employees of
with the letter and spirit of the Constitution. the Senate Electoral Tribunal are under its supervision
and control, not of that of the Senate President, as
As a preliminary and prejudicial matter, the intervenors claimed by the latter; in the second, this Court
raise the question of jurisdiction. They contend that the proceeded to determine the number of Senators
issue before Us is a political question and that the necessary for quorum in the Senate; in the third, we
Convention being a legislative body of the highest nullified the election, by Senators belonging to the
order is sovereign, and as such, its acts impugned by party having the largest number of votes in said
petitioner are beyond the control of the Congress and chamber, purporting to act, on behalf of the party
the courts. In this connection, it is to be noted that none having the second largest number of votes therein of
of the respondent has joined intervenors in this two (2) Senators belonging to the first party, as
posture. In fact, respondents Chief Accountant and members, for the second party, of the Senate Electoral
Auditor of the Convention, expressly concede the Tribunal; and in the fourth, we declared
jurisdiction of this Court in their answer acknowledging unconstitutional an act of Congress purporting to
that the issue herein is a justiciable one. apportion the representatives districts for the House of
Representatives, upon the ground that the
Strangely, intervenors cite in support of this contention apportionment had not been made as may be possible
portions of the decision of this Court in the case of according to the number of inhabitants of each
Gonzales v. Comelec, 21 SCRA 774, wherein the province. Thus we rejected the theory, advanced in
members of the Court, despite their being divided in these four (4) cases that the issues therein raised were
their opinions as to the other matters therein involved, political questions the determination of which is beyond
were precisely unanimous in upholding its jurisdiction. judicial review.
Obviously, distinguished counsel have either failed to
grasp the full impact of the portions of Our decision "Indeed, the power to amend the Constitution or to
they have quoted or would misapply them by taking propose amendments thereto is not included in the
them out of context. general grant of legislative powers to Congress
(Section 1. Art. VI, Constitution of the Philippines). It is
There should be no more doubt as to the position of part of the inherent powers of the people as the
this Court regarding its jurisdiction vis-a-vis the repository sovereignty in a republican state, such as
constitutionality of the acts of the Congress, acting as ours (Section 1, Art, II, Constitution of the Philippines)
a constituent assembly, and, for that matter, those of a to make, and, hence, to amend their own Fundamental
constitutional convention called for the purpose of Law. Congress may propose amendments to the
proposing amendments to the Constitution, which Constitution merely because the same explicitly grants
concededly is at par with the former. A simple reading such power. (Section 1, Art. XV, Constitution of the
of Our ruling in that very case of Gonzales relied upon Philippines) Hence, when exercising the same it is said
by intervenors should dispel any lingering misgivings that Senators and members of the House of
as regards that point. Succinctly but comprehensively, Representatives act, not as members of Congress, but
Chief Justice Concepcion held for the Court thus: as component elements of a constituent assembly.
When acting as such, the members of Congress derive
"As early as Angara vs. Electoral Commission (63 Phil. their authority from the Constitution, unlike the people,
139, 157), this Court speaking through one of the when performing the same function, (Of amending the
leading members of the Constitutional Convention and Constitution) for their authority does not emanate from
a respected professor of Constitutional Law, Dr. Jose the Constitution they are the very source of all powers
P. Laurel declared that 'the judicial department is the of government including the Constitution itself.
only constitutional organ which can be called upon to
determine the proper allocation of powers between the "Since, when proposing, as a constituent assembly,
several departments and among the integral or amendments to the Constitution, the members of
constituent units thereof.' Congress derive their authority from the Fundamental

159
Law, it follows, necessarily, that they do not have the amendments are submitted to the people for their
final say on whether or not their acts are within or ratification."
beyond constitutional limits. Otherwise. they could
brush aside and set the same at naught, contrary to the True it is that once convened, this Convention became
basic tenet that ours is a government of laws, not of endowed with extraordinary powers generally beyond
men, and to the rigid nature of our Constitution. Such the control of any department of the existing
rigidity is stressed by the fact that, the Constitution government, but the compass of such powers can be
expressly confers upon the Supreme Court, (And, co-extensive only with the purpose for which the
inferentially, to lower courts.) the power to declare a convention was called and as it may propose cannot
treaty unconstitutional. (Sec. 2 (1), Art. VIII of the have any effect as part of the Constitution until the
Constitution), despite the eminently political character same are duly ratified by the people, it necessarily
of treaty-making power. follows that the acts of convention, its officers and
members are not immune from attack on constitutional
"In short, the issue whether or not a Resolution of grounds. The present Constitution is in full force and
Congress acting as a constituent assembly violates the effect in its entirety and in everyone of its parts, the
Constitution is essentially justiciable not political, and, existence of the Convention notwithstanding, and
hence, subject to judicial review, and, to the extent that operates even within the walls of that assembly. While
this view may be inconsistent with the stand taken in it is indubitable that in its internal operation and the
Mabanag v. Lopez Vito, (supra) the latter should be performance of its task to propose amendments to the
deemed modified accordingly. Constitution it is not subject to any degree of restraint
or control by any other authority than itself, it is equally
The Members of the Court are unanimous on this beyond cavil that neither the Convention nor any of its
point." officers or members can rightfully deprive any person
of life, liberty or property without due process of law,
No one can rightly claim that within the domain of its deny to anyone in this country the equal protection of
legitimate authority, the Convention is not supreme. the laws or the freedom of speech and of the press in
Nowhere in his petition and in his oral argument and disregard of the Bill of Rights of the existing
memoranda does petitioner point otherwise. Actually, Constitution. Nor, for that matter, can such Convention
what respondents and intervenors are seemingly validly pass any resolution providing for the taking of
reluctant to admit is that the Constitutional Convention private property without just compensation or for the
of 1971, as any other convention of the same nature, imposition or exacting of any tax, import or
owes its existence and derives all its authority and assessment, or declare war or call the Congress to a
power from the existing Constitution of the Philippines. special session, suspend the privilege of the writ of
This Convention has not been called by the people habeas corpus, pardon a convict or render judgment in
directly as in the case of a revolutionary convention a controversy between private individuals or between
which drafts the first Constitution of an entirely new such individuals and the state, in violation of the
government born of either a war of liberation from a distribution of powers in the Constitution.
mother country or of a revolution against an existing
government or of a bloodless seizure of power a la It being manifest that there are powers which the
coup d'etat. As to such kind of conventions, it is Convention may not and cannot validly assert, much
absolutely true that the convention is completely less exercise, in the light of the existing Constitution,
without restrain and omnipotent all wise, and it is as to the simple question arises, should an act of the
such conventions that the remarks of Delegate Manuel Convention be assailed by a citizen as being among
Roxas of the Constitutional Convention of 1934 quoted those not granted to or inherent in it, according to the
by Senator Pelaez refer. No amount of rationalization existing Constitution, who can decide whether such a
can belie the fact that the current convention came into contention is correct or not? It is of the very essence of
being only because it was called by a resolution of a the rule of law that somehow somewhere the power
joint session of Congress acting as a constituent and duty to resolve such a grave constitutional
assembly by authority of Section 1, Article XV of the question must be lodged on some authority, or we
present Constitution which provides: would have to confess that the integrated system of
government established by our founding fathers
"ARTICLE XV AMENDMENTS contains a wide vacuum no intelligent man could
ignore, which is naturally unworthy of their learning,
"SECTION 1. The Congress in joint session experience and craftmanship in constitution-making.
assembled, by a vote of three-fourths of all the
Members of the Senate and of the House of We need not go far in search for the answer to the
Representatives voting separately. may propose query We have posed. The very decision of Chief
amendments to this Constitution or call a convention Justice Concepcion in Gonzales, so much invoked by
for the purpose. Such amendments shall be valid as intervenors, reiterates and reenforces the irrefutable
part of this Constitution when approved by a majority logic and wealth of principle in the opinion written for a
of the votes cast at an election at which the unanimous Court by Justice Laurel in Angara vs.
Electoral Commission, 63 Phil., 134, reading:

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 the power of judicial review under the Constitution.
". . . (I)n the main, the Constitution has blocked out with Even then, this power of judicial review is limited to
deft strokes and in bold lines, allotment of power to the actual cases and controversies to be exercised after
executive, the legislative and the judicial departments full opportunity of argument by the parties, and limited
of the government. The overlapping and interlacing of further to the constitutional question raised or the very
functions and duties between the several departments, lis mota presented. Any attempt at abstraction could
however, sometimes makes it hard to say where the only lead to dialectics and barren legal questions and
one leaves off and the other begins. In times of social to strike conclusions unrelated to actualities. Narrowed
disquietude or political excitement, the great landmark as its functions is in this manner the judiciary does not
of the Constitution are apt to be forgotten or marred, if pass upon questions of wisdom, justice or expediency
not entirely obliterated. In cases of conflict, the judicial of legislation. More than that, courts accord the
department is the only constitutional organ which can presumption of constitutionality to legislative
be called upon to determine the proper allocation of enactments, not only because the legislature is
powers between the several departments and among presumed to abide by the Constitution but also
the integral or constituent units thereof. because the judiciary in the determination of actual
cases and controversies must reflect the wisdom and
"As any human production our Constitution is of course justice of the people as expressed through their
lacking perfection and perfectibility, but as much as it representatives in the executive and legislative
was within the power of our people, acting through their departments of the government.
delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has "But much as we might postulate on the internal checks
established a republican government intended to of power provided in our Constitution, it ought not the
operate and function as a harmonious whole, under a less to be remembered that. in the language of James
system of check and balances and subject to specific Madison, the system itself is not 'the chief palladium of
limitations and restrictions provided in the said constitutional liberty.. the people who are authors of
instrument. The Constitution sets forth in no uncertain this blessing must also be its guardians.. their eyes
language the restrictions and limitations upon must be ever ready to mark, their voices to pronounce.
governmental powers and agencies. If these . . aggression on the authority of their Constitution.' In
restrictions and limitations are transcended it would be the last and ultimate analysis then, must the success
inconceivable if the Constitution had not provided for a of our government in the unfolding years to come be
mechanism by which to direct the course of tested in the crucible of Filipino minds and hearts than
government along constitutional channels, for then the in consultation rooms and court chambers.
distribution of powers would be mere verbiage, the bill
of rights mere expressions of sentiment and the "In the case at bar, the National Assembly has by
principles of good government mere political resolution (No. 8) of December 3, 1935, confirmed the
apothegms. Certainly the limitations and restrictions election of the herein petitioner to the said body. On the
embodied in our Constitution are real as they should other hand. the Electoral Commission has by
be in any living Constitution. In the United States where resolution adopted on December 9, 1935, fixed said
no express constitutional grant is found in their date as the last day for the filing of protests against the
constitution, the possession of this moderating power election, returns and qualifications of members of the
of the courts, not to speak of its historical origin and National Assembly; notwithstanding the Previous
development there. has been set at rest by popular confirmations made by the National Assembly as
acquiescence for a period of more than one and half aforesaid. If, as contended by the petitioner, the
centuries. In our case, this moderating power is resolution of the National Assembly has the effect of
granted, if not expressly, by clear implication from cutting off the power of the Electoral Commission to
section 2 of Article VIII of our Constitution. entertain protests against the election, returns and
qualifications of members of the National Assembly,
"The Constitution is a definition of the powers or submitted after December 3, 1935 then the resolution
government. Who is to determine the nature, scope of the Electoral Commission of December 9, 1935, is
and extent of such powers? The Constitution itself has mere surplusage and had no effect. But, if, as
provided for the instrumentality of the judiciary as the contended by the respondents, the Electoral
rational way. And when the judiciary mediates to Commission has the sole power of regulating its
allocate constitutional boundaries, it does not assert proceedings to the exclusion of the National Assembly,
any superiority over the other departments; it does not then the resolution of December 9, 1935, by which the
in reality nullify or invalidate an act of the legislature, Electoral Commission fixed said date as the last day
but only asserts the solemn and sacred obligation for filing protests against the election, returns and
assigned to it by the Constitution to determine qualifications of members of the National Assembly,
conflicting claims of authority under the Constitution should be upheld.
and to establish for the parties in an actual controversy
the rights which that instrument secures and "Here is then presented an actual controversy involving
guarantees to them. This is in truth all that is involved as it does a conflict of a grave constitutional nature
in what is termed 'judicial supremacy' which properly is between the National Assembly on the one hand and

161
the Electoral Commission on the other. From the very character, scope and extent of the constitutional grant
nature of the republican government established in our to the Electoral Commission as 'the sole judge of all
country in the light of American experience and of our contests relating to the election, returns and
own, upon the judicial department is thrown the solemn qualifications of the members of the National
and inescapable obligation of interpreting the Assembly."
Constitution and defining constitutional boundaries.
The Electoral Commission as we shall have occasion As the Chief Justice has made it clear in Gonzales, like
to refer hereafter, is a constitutional organ, created for Justice Laurel did in Angara, these postulates just
a specific purpose, namely, to determine all contests quoted do not apply only to conflicts of authority
relating to the election, returns and qualifications of the between the three existing regular departments of the
members of the National Assembly. Although the government but to all such conflicts between and
Electoral Commission may not be interfered with, when among these departments, or, between any of them,
and while acting within the limits of its authority, it does on the one hand, and any other constitutionally created
not follow that it is beyond the reach of the independent body, like the electoral tribunals in
constitutional mechanism adopted by the People and Congress, the Comelec and the constituent
that it is not subject to constitutional restriction. The assemblies constituted by the House of Congress, on
Electoral Commission is not a separate department of the other. We see no reason of logic or principle
the government, and even if it were, conflicting claims whatsoever, and none has been convincingly shown to
of authority under the fundamental law between Us by any of the respondents and intervenors, why the
departmental powers and agencies of the government same ruling should not apply to the present
are necessarily determined by the judiciary in Convention, even if it is an assembly of delegates
justiciable and appropriate cases. Discarding the elected directly by the people, since at best, as already
English type and other European types of constitutional demonstrated, it has been convened by authority of
government, the framers of our Constitution adopted and under the terms of the present Constitution.
the American type where the written constitution is
interpreted and given effect by the judicial department. Accordingly, We are left with no alternative but to
In some countries which have declined to follow the uphold the jurisdiction of the Court over the present
American example, provisions have been inserted in case. It goes without saying that We do this not
their constitutions prohibiting the courts from exercising because the Court is superior to the Convention or that
the power to interpret the fundamental law. This is the Convention is subject to the control of the Court,
taken as a recognition of what otherwise would be the but simply because both the Convention and the Court
rule that in the absence of direct prohibition, courts are are subject to the Constitution and the rule of law, and
bound to assume what is logically their function. For "upon principle, reason and authority," per Justice
instance, the Constitution of Poland of 1921 expressly Laurel, supra, it is within the power, as it is the solemn
provides that courts shall have no power to examine duty of the Court, under the existing Constitution to
the validity of statutes (art. 81, Chap. IV). The former resolve the issues in which petitioner, respondents and
Austrian Constitution contained a similar declaration. In intervenors have joined in this case.
countries whose constitution are silent in this respect,
courts have assumed this power. This is true in II
Norway, Greece, Australia and South Africa. Whereas,
in Czechoslovakia (arts. 2 and 3, Preliminary Law to The issue of jurisdiction thus resolved, We come to the
Constitutional Charter of the Czechoslovak, Republic, crux of the petition. Is it within the powers of the
February 29, 1920) and Spain (arts. 121-123, Title IX, Constitutional Convention of 1971 to order, on its own
Constitution of the Republic of 1931) especial fiat. the holding of a plebiscite for the ratification of the
constitutional courts are established to pass upon the proposed amendment reducing to eighteen years the
validity of ordinary laws. In our case, the nature of the age for the exercise of suffrage under Section 1 of
present controversy shows the necessity of a final Article V of the Constitution proposed in the
constitutional arbiter to determine the conflict of Convention's Organic Resolution No. 1 in the manner
authority between two agencies created by the and form provided for in said resolution and the
Constitution. Were we to decline to take cognizance of subsequent implementing acts and resolution of the
the controversy, who will determine the conflict? And if Convention?
the conflict were left undecided and undetermined,
would not a void be thus created in our constitutional At the threnold, the environmental circumstances of
system which may in the long run prove destructive of this case demand the most accurate and unequivocal
the entire framework? To ask these questions is to statement of the real issue which the Court is called
answer them. Natura vacuum abhorret, so must we upon to resolve. Petitioner has very clearly stated that
avoid exhaustion in our constitutional system. Upon he is not against the constitutional extension of the
principle, reason, and authority, we are clearly of the right of suffrage to the eighteen-year-olds, as a matter
opinion that upon the admitted facts of the present of fact, he has advocated or sponsored in Congress
case, this court has jurisdiction over the Electoral such a proposal, and that, in truth, the herein petition is
Commission and the subject matter of the present not intended by him to prevent that the proposed
controversy for the purpose of determining the amendment here involved be submitted to the people

162
for ratification, his only purpose in filing the petition general, like the rest of the people, do not want
being to comply with his sworn duty to prevent, confusion and disorder, anarchy and violence; what
whenever he can, any violation of the Constitution of they really want are law and order, peace and
the Philippines even if it is committed in the course of orderliness, even in the pursuit of what they strongly
or in connection with the most laudable undertaking. and urgently feel must be done to change the present
Indeed, as the Court sees it, the specific question order of things in this Republic of ours. It would be
raised in this case is limited solely and only to the point tragic and contrary to the plain compulsion of these
of whether or not it is within the power of the perspectives, if the Court were to allow itself in deciding
Convention to call for a plebiscite for the ratification by this case to be carried astray by considerations other
the people of the constitutional amendment proposed than the imperatives of the rule of law and of the
in the abovequoted Organic Resolution No. 1, in the applicable provisions of the Constitution. Needless to
manner and form provided in said resolution as well as say, in a larger measure than when it binds other
in the subsequent implementing actions and resolution departments of the government or any other official or
of the Convention and its officers, at this juncture of its entity, the Constitution imposes upon the Court the
proceedings, when, as it is a matter of common sacred duty to give meaning and vigor to the
knowledge and judicial notice, it is not set to adjourn Constitution, by interpreting and construing its
sine die, and is, in fact, still in the preliminary stages of provisions in appropriate cases with the proper parties
considering other reforms or amendments affecting and by striking down any act violative thereof. Here, as
other parts of the existing Constitution; and, indeed, in all other cases, We are resolved to discharge that
Organic Resolution No. 1 itself expressly provides that duty.
the amendment therein proposed "shall be without
prejudice to other amendments that will be proposed in During these times when most anyone feels very
the future by the 1971 Constitutional Convention on strongly the urgent need for constitutional reforms, to
other portions of the amended section or on other the point of being convinced that meaningful change is
portions of the entire Constitution." In other words, the only alternative to a violent revolution, this Court
nothing that the Court may say or do in this case should would be the last to put any obstruction or impediment
be understood as reflecting, in any degree or means, to the work of the Constitutional Convention. If there
the individual or collective stand of the members of the are respectable sectors opining that it has not been
Court on the fundamental issue of whether or not the called to supplant the existing Constitution in its
eighteen-year-olds should be allowed to vote, simply entirety, since its enabling provision, Article XV, from
because that issue is not before Us now. There should which the Convention itself draws life expressly speaks
be no doubt in the mind of anyone that, once the Court only of amendments which shall form part of it, which
finds it constitutionally permissible, it will not hesitate to opinion is not without persuasive force both in principle
do its part so that the said proposed amendment may and in logic, the seemingly prevailing view is that only
be presented to the people for their approval or the collective judgment of its members as to what is
rejection. warranted by the present condition of things, as they
see it, can limit the extent of the constitutional
Withal, the Court rests securely in the conviction that innovations the Convention may propose, hence the
the fire and enthusiasm of the youth have not blinded complete substitution of the existing constitution is not
them to the absolute necessity, under the fundamental beyond the ambit of the Convention's authority.
principles of democracy to which the Filipino people is Desirable as it may be to resolve this grave divergence
committed, of adhering always to the rule of law. of views, the Court does not consider this case to be
Surely, their idealism, sincerity and purity of purpose properly the one in which it should discharge its
cannot permit any other line of conduct or approach in constitutional duty in such premises. The issues raised
respect of the problem before Us. The Constitutional by petitioner, even those among them in which
Convention of 1971 itself was born, in a great measure, respondents and intervenors have joined in an
because of the pressure brought to bear upon the apparent wish to have them squarely passed upon by
Congress of the Philippines by various elements of the the Court do not necessarily impose upon Us the
people, the youth in particular, in their incessant search imperative obligation to express Our views thereon.
for a peaceful and orderly means of bringing about The Court considers it to be of the utmost importance
meaningful changes in the structure and bases of the that the Convention should be untrammelled and
existing social and governmental institutions, including unrestrained in the performance of its constitutionally
the provisions of the fundamental law related to the assigned mission in the manner and form it may
well-being and economic security of the conceive best, and so the Court may step in to clear up
underprivileged classes of our people as well as those doubts as to the boundaries set down by the
concerning the preservation and protection of our Constitution only when and to the specific extent only
natural resources and the national patrimony, as an that it would be necessary to do so to avoid a
alternative to violent and chaotic ways of achieving constitutional crisis or a clearly demonstrable violation
such lofty ideals. In brief, leaving aside the excesses of of the existing Charter. Withal, it is a very familiar
enthusiasm which at times have justifiably or principle of constitutional law that constitutional
unjustifiably marred the demonstrations in the streets, questions are to be resolved by the Supreme Court
plazas and campuses, the youth of the Philippines, in only when there is no alternative but to do it, and this

163
rule is founded precisely on the principle of respect that as powerful and omnipotent as their original
the Court must accord to the acts of the other counterparts.
coordinate departments of the government, and
certainly, the Constitutional Convention stands almost Nothing of what is here said is to be understood as
in a unique footing in that regard. curtailing in any degree the number and nature and the
scope and extent of the amendments the Convention
In our discussion of the issue of jurisdiction, We have may deem proper to propose. Nor does the Court
already made it clear that the Convention came into propose to pass on the issue extensively and brilliantly
being by a call of a joint session of Congress pursuant discussed by the parties as to whether or not the power
to Section 1 of Article XV of the Constitution, already or duty to call a plebiscite for the ratification of the
quoted earlier in this opinion. We reiterate also that as amendments to be proposed by the Convention is
to matters not related to its internal operation and the exclusively legislative and as such may be exercised
performance of its assigned mission to propose only by the Congress or whether the said power can be
amendments to the Constitution, the Convention and exercised concurrently by the Convention with the
its officers and members are all subject to all the Congress. In the view the Court takes of ;the present
provisions of the existing Constitution. Now We hold case, it does not perceive absolute necessity to resolve
that even as to its latter task of proposing amendments that question, grave and important as it may be Truth
to the Constitution, it is subject to the provisions of to tell, the lack of unanimity or even of a consensus
Section 1 of Article XV. This must be so, because it is among the members of the Court in respect to this
plain to Us that the framers of the Constitution took issue creates the need for more study and deliberation,
care that the process of amending the same should not and as time is of the essence in this case, for obvious
be undertaken with the same ease and facility in reasons, November 8, 1971, the date set by the
changing an ordinary legislation. Constitution making Convention for the plebiscite it is calling, being nigh,
is the most valued power, second to none, of the We will refrain from making any pronouncement or
people in a constitutional democracy such as the one expressing Our views on this question until a more
our founding fathers have chosen for this nation, and appropriate case comes to Us. After all, the basis of
which we of the succeeding generations generally this decision is as important and decisive as any can
cherish. And because the Constitution affects the lives, be.
fortunes, future and every other conceivable aspect of
the lives of all the people within the country and those The ultimate question, therefore, boils down to this: Is
subject to its sovereignty, every degree of care is taken there any limitation or condition in Section 1 of Article
in preparing and drafting it. A constitution worthy of the XV of the Constitution which is violated by the act of
people for which it is intended must not be prepared in the Convention of calling for a plebiscite on the sole
haste without adequate deliberation and study. It is amendment contained in Organic Resolution No. 1?
obvious that correspondingly, any amendment of the The Court holds that there is, and it is the condition and
Constitution is of no less importance than the whole limitation that all the amendments to be proposed by
Constitution itself, and perforce must be conceived and the same Convention must be submitted to the people
prepared with as much care and deliberation. From the in a single "election" or plebiscite. It being indisputable
very nature of things, the drafters of an original that the amendment now proposed to be submitted to
constitution, as already observed earlier, operate a plebiscite is only the first amendment the Convention
without any limitations, restraints or inhibitions save will propose We hold that the plebiscite being called for
those that they may impose upon themselves. This is the purpose of submitting the same for ratification of
not necessarily true of subsequent conventions called the people on November 8, 1971 is not authorized by
to amend the original constitution. Generally, the Section 1 of Article XV of the Constitution, hence all
framers of the latter see to it that their handiwork is not acts of the Convention and the respondent Comelec in
lightly treated and as easily mutilated or changed, not that direction are null and void.
only for reasons purely personal but more importantly,
because written constitutions are supposed to be We have arrived at this conclusion for the following
designed so as to last for some time, if not for ages, or reasons:
for, at least, as long as they can be adopted to the
needs and exigencies of the people, hence, they must 1. The language of the constitutional provision
be insulated against precipitate and hasty actions aforequoted is sufficiently clear. It says distinctly that
motivated by more or less passing political moods or either Congress sitting as a constituent assembly or a
fancies. Thus, as a rule, the original constitutions carry convention called for the purpose "may propose
with them limitations and conditions, more or less amendments to this Constitution, "thus placing no limit
stringent, made so by the people themselves, in regard as to the number of amendments that Congress or the
to the process of their amendment. And when such Convention may propose. The same provision also as
limitations or conditions are so incorporated in the definitely provides that "such amendments shall be
original constitution, it does not lie in the delegates of valid as part of this Constitution when approved by a
any subsequent convention to claim that they may majority of the votes cast at an election at which the
ignore and disregard such conditions because they are amendments are submitted to the people for their
ratification," thus leaving no room for doubt as to how

164
many "elections" or plebiscites may be held to ratify of the constitution the Convention will be minded to
any amendment or amendments proposed by the approve. To be more specific, we do not have any
same constituent assembly of Congress or convention, means of foreseeing whether the right to vote would be
and the provision unequivocably says "an election" of any significant value at all. Who can say whether or
which means only one. not later on the Convention may decide to provide for
varying types of voters for each level of the political
(2) Very little reflection is needed for anyone to realize units it may divide the country into. The root of the
the wisdom and appropriateness of this provision. As difficulty in other words, lies in that the Convention is
already stated, amending the Constitution is as serious precisely on the verge of introducing substantial
and important an undertaking as constitution making changes, if not radical ones, in almost every part and
itself. Indeed, any amendment of the Constitution is as aspect of the existing social and political order
important as the whole of it, if only because the enshrined in the present Constitution. How can a voter
Constitution has to be an integrated and harmonious in the proposed plebiscite intelligently determine the
instrument, if it is to be viable as the framework of the effect of the reduction of the voting age upon the
government it establishes, on the one hand, and different institutions which the Convention may
adequately formidable and reliable as the succinct but establish and of which presently he is not given any
comprehensive articulation of the rights, liberties, idea?
ideology, social ideals, and national and nationalistic
policies and aspirations of the people, on the other. It We are certain no one can deny that in order that a
is inconceivable how a constitution worthy of any plebiscite for the ratification of an amendment to the
country or people can have any part which is out of Constitution may be validly held, it must provide the
tune with its other parts. voter not only sufficient time but ample basis for an
intelligent appraisal of the nature of the amendment per
A constitution is the work of the people thru its drafters se as well as its relation to the other parts of the
assembled by them for the purpose. Once the original Constitution with which it has to form a harmonious
constitution is approved, the part that the people play whole. In the context of the present state of things,
in its amendment becomes harder, for when a whole where the Convention has hardly started considering
constitution is submitted to them, more or less they can the merits of hundreds, if not thousands, of proposals
assume its harmony as an integrated whole, and they to amend the existing Constitution, to present to the
can either accept or reject it in its entirety. At the very people any single proposal or a few of them cannot
least, they can examine it before casting their vote and comply with this requirement. We are of the opinion
determine for themselves from a study of the whole that the present Constitution does not contemplate in
document the merits and demerits of all or any of its Section 1 of Article XV a plebiscite or "election" wherein
parts and of the document as a whole. And so also, the people are in the dark as to frame of reference they
when an amendment is submitted to them that is to can base their judgment on. We reject the
form part of the existing constitution, in like fashion they rationalization that the present Constitution is a
can study with deliberation the proposed amendment possible frame of reference, for the simple reason that
in relation to the whole existing constitution and or any intervenors themselves are stating that the sole
of its parts and thereby arrive at an intelligent judgment purpose of the proposed amendment is to enable the
as to its acceptability. eighteen year olds to take part in the election for the
ratification of the Constitution to be drafted by the
This cannot happen in the case of the amendment in Convention. In brief, under the proposed plebiscite,
question. Prescinding already from the fact that under there can be, in the language of Justice Sanchez,
Section 3 of the questioned resolution, it is evident that speaking for the six members of the Court in Gonzales,
no fixed frame of reference is provided the voter, as to supra, "no proper submission"
what finally will be concomitant qualifications that will
be required by the final draft of the constitution to be III
formulated by the Convention of a voter to be able to
enjoy the right of suffrage, there are other The Court has no desire at all to hamper and hamstring
considerations which make it impossible to vote the noble work of the Constitutional Convention. Much
intelligently on the proposed amendment, although it less does the Court want to pass judgment on the
may already be observed that under Section 3, if a merits of the proposal to allow these eighteen years old
voter would favor the reduction of the voting age to to vote. But like the Convention, the Court has its own
eighteen under conditions he feels are needed under duties to the people under the Constitution which is to
the circumstances, and he does not see those decide in appropriate oases with appropriate parties
conditions in the ballot nor is there any possible whether or not the mandates of the fundamental law
indication whether they will ever be or not, because are being complied with. In the best light God has given
Congress has reserved those for future action, what Us, we are of the conviction that in providing for the
kind of judgment can he render on the proposal? questioned plebiscite before it has finished, and
separately from, the whole draft of the constitution it
But the situation actually before Us is even worse. No has been called to formulate, the Convention's Organic
one knows what changes in the fundamental principles Resolution No. 1 and all subsequent acts of the

165
Convention implementing the same violate the "On March 16, 1967, Congress of the Philippines
condition in Section 1, Article XV that there should only passed Resolution No. 2, which was amended by
be one "election" or plebiscite for the ratification of all Resolution No. 4 of said body, adopted on June 17,
the amendments the Convention may propose. We are 1969, calling a convention to propose amendments to
not denying any right of the people to vote on the the Constitution of the Philippines. Said Resolution No.
proposed amendment; We are only holding that under 2, as amended, was implemented by Republic Act No.
Section 1, Article XV of the Constitution, the same 6132, approved on August 24, 1970, pursuant to the
should be submitted to them not separately from but provisions of which the election of delegates to said
together with all the other amendments to be proposed Convention was held on November 10, 1970, and the,
by this present Convention. 1971 Constitutional Convention began to perform its
functions on June 1, 1971. While the Convention was
IN VIEW OF ALL THE FOREGOING, the petition in session on September 21, 1972, the President
herein is granted. Organic Resolution No. 1 of the issued Proclamation No. 1081 placing the entire
Constitutional Convention of 1971 and the Philippines under Martial Law. On November 29, 1972,
implementing acts and resolutions of the Convention, the Convention approved its Proposed Constitution of
insofar as they provide for the holding of a plebiscite on the Republic of the Philippines. The next day,
November 8, 1971, as well as the resolution of the November 30, 1972, the President of the Philippines
respondent Comelec complying therewith (RR issued Presidential Decree No. 73, 'submitting to the
Resolution No. 695) are hereby declared null and void. Filipino people for ratification or rejection the
The respondents Comelec, Disbursing Officer, Chief Constitution of the Republic of the Philippines
Accountant and Auditor of the Constitutional proposed by the 1971 Constitutional Convention, and
Convention are hereby enjoined from taking any action appropriating funds therefor,' as well as setting the
in compliance with the said organic resolution. In view plebiscite for said ratification or rejection of the
of the peculiar circumstances of this case, the Court Proposed Constitution on January 15, 1973.
declares this decision immediately executory. No
costs. "Soon after, or on December 7, 1972, Charito Planas
filed, with this Court, Case G.R. No. L-35925, against
the Commission on Elections, the Treasurer of the
Philippines and the Auditor General, to enjoin said
'respondents or their agents from implementing
Presidential Decree No. 73, in any manner, until further
JAVELLANA VS EXECUTIVE SECRETARY (1972) orders of the Court,' upon the grounds, inter alia that
said Presidential Decree 'has no force and effect as law
JOSUE JAVELLANA, petitioner, vs. THE EXECUTIVE because the calling . . . of such plebiscite, the setting
SECRETARY, THE SECRETARY OF NATIONAL of guidelines for the conduct of the same, the
DEFENSE, THE SECRETARY OF JUSTICE and THE prescription of the ballots to be used and the question
SECRETARY OF FINANCE, respondents. / VIDAL to be answered by the voters, and the appropriation of
TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, public funds for the purpose, are, by the Constitution,
MANUEL CRUDO, ANTONIO U. MIRANDA, EMILIO lodged exclusively in Congress . . .,' and 'there is no
DE proper submission to the people of said Proposed
G.R. No. L-36142 / No. L-36164 / No. L-36165 / No. L- Constitution set for January 15, 1973, there being no
36236 / No. L-36283 | 1973-03-31 freedom of speech, press and assembly, and there
being sufficient time to inform the people of the
Tagged under keywords View Summary contents thereof.'

EN BANC "Substantially identical actions were filed, on

December 8, 1972, by Pablo C. Sanidad against the
RESOLUTION Commission on Elections (Case G.R. No. L-35929); on
December 11, 1972, by Gerardo Roxas, et al., against
CONCEPCION, J: the Commission on Elections, Director of Printing, the
National Treasurer and the Auditor General (Case G.R.
The above entitled five (5) cases are a sequel of cases L-35940), by Eddie B. Monteclaro against the
G.R. Nos. L-35925, L-35929, L-35940, L-35941, L- Commission on Elections and the Treasurer of the
35942, L-35948, L-35953, L-35961, L-35965 and L- Philippines (Case G.R. No L-35941), and by Sedfrey
35979, decided on January 22, 1973, to which We will A. Ordoñez, et al. against the National Treasurer and
hereafter refer collectively plebiscite cases. the Commission on Elections (Case G.R. No. L-
35942); on December 12, 1972, by Vidal Tan, et al.,
Background of the Plebiscite Cases against the Commission on Elections, the Treasurer of
the Philippines, the Auditor General and the Director of
The factual setting thereof is set forth in the decision Printing (Case G.R. No. L-35948), and by Jose W.
rendered, from which We quote: Diokno and Benigno S. Aquino against the
Commission on Elections (Case G R No. L-35953); on

166
December 14, 1972, by Jacinto Jimenez against the - the Court deemed it more imperative to defer its final
Commission on Elections, the Auditor General, the action on these cases.
Treasurer of the Philippines and the Director of the
Bureau of Printing (Case G.R. No. L-35961), and by "In the afternoon of January 12, 1973, the petitioners in
Raul M. Gonzales against the Commission on Case G.R. No. L-35948 filed an 'urgent motion,'
Elections, the Budget Commissioner, the National praying that said case be decided 'as soon as possible,
Treasurer and the Auditor General (Case G.R. No. L- preferably not later than January 15, 1973.' It was
35965), and on December 16, 1972, by Ernesto C. alleged in said motion, inter alia.
Hidalgo against the Commission on Elections, the
Secretary of Education, the National Treasurer and the '6. That the President subsequently announced the
Auditor General (Case G.R. No. L-35979). issuance of Presidential Decree No. 86 organizing the
so-called Citizens Assemblies, to be consulted on
"In all these cases, except the last (G.R. No. L-35979), certain public questions [Bulletin Today, January 1,
the respondents were required to file their answers 'not 1973];
later than 12:00 (o'clock) noon of Saturday, December
16, 1972.' Said cases were, also, set for hearing and '7. That thereafter it was later announced that "the
partly heard on Monday, December 18, 1972, at 9:30 Assemblies will be asked if they favor or oppose
a.m. The hearing was continued on December 19,
1972. By agreement of the parties, the aforementioned "[1] The New Society;
last case G.R. No. L-35979 was, also, heard, jointly
with the others, on December 19, 1972. At the "[2] Reforms instituted under Martial Law;
conclusion of the hearing, on that date, the parties in
all of the aforementioned cases were given a short "[3] The holding of a plebiscite on proposed new
period of time within which 'to submit their notes on the Constitution and when (the tentative new dates given
points they desire to stress.' Said notes were filed on following postponement of the plebiscite from the
different dates, between December 21, 1972, and original date of January 15 are February 19 and March
January 4, 1973. 5);

"Meanwhile, or on December 17, 1972, the President "[4] The opening of the regular session on January 22
had issued an order temporarily suspending the effects in accordance with the existing Constitution despite
of Proclamation No. 1081, for the purpose of free and Martial Law." [Bulletin Today, January 3, 1973.]
open debate on the Proposed Constitution. On
December 23, the President announced the '8. That it was later reported that the following are to be
postponement of the plebiscite for ratification or the forms of the questions to be asked to the Citizens
rejection of the Proposed Constitution. No formal Assemblies:
action to this effect was taken until January 7, 1973,
when General Order No. 20 was issued, directing 'that "[1] Do you approve of the New Society?
the plebiscite scheduled to be held on January 15,
1973 be postponed until further notice.' Said General "[2] Do you approve of the reform measures under
Order No. 20, moreover, 'suspended in the meantime' martial law?
the 'order of December 17, 1972, temporarily
suspending the effects of Proclamation No. 1081 for "[3] Do you think that Congress should meet again in
purposes of free and open debate on the proposed regular session?
Constitution.'
"[4] How soon would you like the plebiscite on the new
"In view of these events relative to the postponement Constitution to be held?" [Bulletin Today, January 5,
of the aforementioned plebiscite, the Court deemed it 1973].
fit to refrain, for the time being, from deciding the
aforementioned cases, for neither the date nor the '9. That the voting by the so-called Citizens Assemblies
conditions under which said plebiscite would be held was announced to take place during the period from
were known or announced officially. Then, again, January 10 to January 15, 1973;
Congress was, pursuant to the 1935 Constitution,
scheduled to meet in regular session on January 22, '10. That on January 10, 1973, it was reported that one
1973, and since the main objection to Presidential more question would be added to the four (4) questions
Decree No. 73 was that the President does not have previously announced, and that the forms of the
the legislative authority to call a plebiscite and questions would be as follows:
appropriate funds therefor, which Congress
unquestionably could do, particularly in view of the "[1] Do you like the New Society?
formal postponement of the plebiscite by the President
- reportedly after consultation with, among others, the "[2] Do you like the reforms under martial law?
leaders of Congress and the Commission on Elections
"[3] Do you like Congress again to hold sessions?

167
 We are sick and tired of too frequent elections. We are
"[4] Do you like the plebiscite to be held later? fed up with politics, of so many debates and so much
expenses.
"[5] Do you like the way President Marcos is running
the affairs of the government?" [Bulletin Today, QUESTION No. 5
January 10, 1973; additional question italics.] Probably a period of at least seven (7) years
moratorium on elections will be enough for stability to
'11. That on January 11, 1973, it was reported that six be established in the country, for reforms to take root
(6) more questions would be submitted to the so called and normalcy to return.
Assemblies:
QUESTION No. 6
"[1] Do you approve of the citizens assemblies as the We want President Marcos to continue with Martial
base of popular government to decide issues of Law. We want him to exercise his powers with more
national interests? authority. We want him to be strong and firm so that he
can accomplish all his reform programs and establish
"[2] Do you approve of the New Constitution? normalcy in the country. If all other measures fail, we
want President Marcos to declare a revolutionary
"[3] Do you want a plebiscite to be called to ratify the government along the lines of the new Constitution
new Constitution? without the ad interim Assembly."

"[4] Do you want the elections to be held in November, 'Attention is respectfully invited to the comments on
1973 in accordance with the provisions of the 1935 "Question No. 3," which reads:
Constitution?

"[5] If the elections would not be held, when do you "QUESTION No. 3
want the next elections to be called?
The vote of the Citizens Assemblies should be
"[6] Do you want martial law to continue?" considered the plebiscite on the New Constitution.

'12. That according to reports, the returns with respect If the Citizens Assemblies approve of the New
to the six (6) additional questions quoted above will be Constitution, then the new Constitution should be
on a form similar or identical to Annex "A" hereof; deemed ratified."

'13. That attached to page 1 of Annex "A" is another This, we are afraid, and therefore allege, is pregnant
page which we marked as Annex "A-1", and which with ominous possibilities.
reads: -
'14. That, in the meantime, speaking on television and
"COMMENTS ON over the radio, on January 7, 1973, the President
announced that the limited freedom of debate on the
proposed Constitution was being withdrawn and that
the proclamation of martial law and the orders and
decrees issued thereunder would thenceforth strictly
QUESTION No. 1 be enforced [Daily Express, January 8, 1973];
In order to broaden the base of citizen participation in
government. '15. That petitioners have reason to fear, and therefore
state, that the question added in the last list of
QUESTION No. 2 questions to be asked to the Citizens Assemblies,
But we do not want the Ad Interim Assembly to be namely:
convoked. Or if it is to be convened at all, it should not
be done so until after at least seven (7) years from the "Do you approve of the New Constitution?"
approval of the New Constitution by the Citizens
Assemblies. in relation to the question following it:

QUESTION No. 3 "Do you still want a plebiscite to becalled to ratify the
The vote of the Citizens Assemblies should already be new Constitution?"
considered the plebiscite on the Constitution.
would be an attempt to by-pass and short-circuit this
If the Citizens Assemblies approve of the Constitution, Honorable Court before which the question of the
then the new Constitution should be deemed ratified. validity of the plebiscite on the proposed Constitution is
now pending;
QUESTION No. 4

168
'16 . That petitioners have reason to fear, and therefore from collecting, certifying, and announcing and
allege, that if an affirmative answer to the two questions reporting to the President or other officials concerned,
just referred to will be reported then this Honorable the so-called Citizens' Assemblies referendum results
Court and the entire nation will be confronted with a fait allegedly obtained when they were supposed to have
accompli which has been attained in a highly met during the period comprised between January 10
unconstitutional and undemocratic manner; and January 15, 1973, on the two questions quoted in
paragraph 1 of this Supplemental Urgent Motion.'
'17. That the fait accompli would consist in the
supposed expression of the people approving the "In support of this prayer, it was alleged
proposed Constitution;
'3. That petitioners are now before this Honorable
'18. That, if such event would happen, then the case Court in order to ask further that this Honorable Court
before this Honorable Court could, to all intents and issue a restraining order enjoining herein respondents,
purposes, become moot because, petitioners fear, and particularly respondent Commission on Elections as
they therefore allege, that on the basis of such well as the Department of Local Governments and its
supposed expression of the will of the people through head, Secretary Jose Roño; the Department of
the Citizens Assemblies, it would be announced that Agrarian Reforms and its head, Secretary Conrado
the proposed Constitution, with all its defects, both Estrella; the National Ratification Coordinating
congenital and otherwise, has been ratified; Committee and its Chairman, Guillermo de Vega; and
their deputies, subordinates and/or substitutes, from
'19. That, in such a situation, the Philippines will be collecting certifying, announcing and reporting to the
facing a real crisis and there is likelihood of confusion President the supposed Citizens' Assemblies
if not chaos, because then, the people and their referendum results allegedly obtained when they were
officials will not know which Constitution is in force. supposed to have met during the period between
January 10 and January 15, 1973, particularly on the
'20. That the crisis mentioned above can only be two questions quoted in paragraph 1 of this
avoided if this Honorable Court will immediately decide Supplemental Urgent Motion;
and announce its decision on the present petition;
'4. That the proceedings of the so-called Citizens'
'21. That with the withdrawal by the President of the Assemblies are illegal, null and void particularly insofar
limited freedom of discussion on the proposed as such proceedings are being made the basis of a
Constitution which was given to the people pursuant to supposed consensus for the ratification of the
See. 3 of Presidential Decree No. 73, the opposition of proposed Constitution because:
respondents to petitioners' prayer that the proposed
plebiscite be prohibited has now collapsed and that a [a] The elections contemplated in the Constitution,
free plebiscite can no longer be held.' Article XV, at which the proposed constitutional
amendments are to be submitted for ratification, are
"At about the same time, a similar prayer was made in elections at which only qualified and duly registered
a 'manifestation' filed by the petitioners in L-35949, voters are permitted to vote, whereas, the so called
'Gerardo Roxas, et al, v. Commission on Elections, et Citizens' Assemblies were participated in by persons
al.,' and L-35942, 'Sedfrey Ordoñez, et al. v. The 15 years of age and older, regardless of qualifications
National Treasurer, et al.' or lack thereof, as prescribed in the Election Code;

"The next day, January 13, 1973, which was a [b] Elections or plebiscites for the ratification of
Saturday, the Court issued a resolution requiring the constitutional amendments contemplated in Article XV
respondents in said three (3) cases to comment on said of the Constitution have provisions for the secrecy of
'urgent motion' and 'manifestation,' 'not later that choice and of vote, which is one of the safeguards of
Tuesday noon, January 16, 1973.' Prior thereto, or on freedom of action, but votes in the Citizens' Assemblies
January 15, 1973, shortly before noon, the petitioners were open and were cast by raising hands;
in said Case G.R. No. L-35948 filed a 'supplemental
motion for issuance of restraining order and inclusion [c] The Election Code makes ample provisions for free,
of additional respondents,' praying orderly and honest elections, and such provisions are
a minimum requirement for elections or plebiscites for
'. . . that a restraining order be issued enjoining and the ratification of constitutional amendments, but there
restraining respondent Commission on Elections, as were no similar provisions to guide and regulate
well as the Department of Local Governments and its proceedings of the so called Citizens' Assemblies;
head, Secretary Jose Roño; the Department of
Agrarian Reforms and its head, Secretary Conrado [d] It is seriously to be doubted that, for lack of material
Estrella; the National Ratification Coordinating time, more than a handful of the so called Citizens'
Committee and its Chairman, Guillermo de Vega; their Assemblies have been actually formed, because the
deputies, subordinates and substitutes, and all other mechanics of their organization were still being
officials and persons who may be assigned such task,

169
discussed a day or so before the day they were Court by reason of this petition, considering,
supposed to begin functioning furthermore, that the Commission on Elections has
under our laws the power, among others, of:
'Provincial governors and city and municipal mayors
had been meeting with barrio captains and community "(a) Direct and immediate supervision and control over
leaders since last Monday [January 8, 1973] to thresh national, provincial, city, municipal and municipal
out the mechanics in the formation of the Citizens' district officials required by law to perform duties
Assemblies and the topics for discussion.' [Bulletin relative to the conduct of elections on matters
Today, January 10, 1973]. pertaining to the enforcement of the provisions of this
Code . . ." [Election Code of 1971, Sec. 3].
'It should be recalled that the Citizens' Assemblies
were ordered formed only at the beginning of the year '6. That unless the petition at bar is decided
[Daily Express, January 1, 1973], and considering the immediately and the Commission on Elections,
lack of experience of the local organizers of said together with the officials and government agencies
assemblies, as well as the absence of sufficient mentioned in paragraph 3 of this Supplemental Urgent
guidelines for organization, it is too much to believe Motion are restrained or enjoined from collecting,
that such assemblies could be organized at such a certifying, reporting or announcing to the President the
short notice. results of the alleged voting of the so-called Citizens'
Assemblies, irreparable damage will be caused to the
'5. That for lack of material time, the appropriate Republic of the Philippines, the Filipino people, the
amended petition to include the additional officials and cause of freedom and democracy, and the petitioners
government agencies mentioned in paragraph 3 of this herein because:
Supplemental Urgent Motion could not be completed
because, as noted in the Urgent Motion of January 12, [a] After the result of the supposed voting on the
1973, the submission of the proposed Constitution to questions mentioned in paragraph 1 hereof shall have
the Citizens' Assemblies was not made known to the been announced, a conflict will arise between those
public until January 11, 1973. But be that as it may, the who maintain that the 1935 Constitution is still in force,
said additional officials and agencies may be properly on the one hand, and those who will maintain that it has
included in the petition at bar because: been superseded by the proposed Constitution, on the
other, thereby creating confusion, if not chaos;
[a] The herein petitioners have prayed in their petition
for the annulment not only of Presidential Decree No. [b] Even the jurisdiction of this Court will be subject to
73, but also of "any similar decree, proclamation, order serious attack because the advocates of the theory that
or instruction." the proposed Constitution has been ratified by reason
of the announcement of the results of the proceedings
so that Presidential Decree No. 86, insofar at least as of the so-called Citizens' Assemblies will argue that,
it attempts to submit the proposed Constitution to a General Order No. 3, which shall also be deemed
plebiscite by the so-called Citizens' Assemblies, is ratified pursuant to the Transitory Provisions of the
properly in issue in this case, and those who enforce, proposed Constitution, has placed Presidential Decree
implement, or carry out the said Presidential Decree Nos. 73 and 86 beyond the reach and jurisdiction of
No. 86, and the instructions incidental thereto clearly this Honorable Court.'
fall within the scope of this petition;
"On the same date January 15, 1973 the Court passed
[b] In their petition, petitioners sought the issuance of a a resolution requiring the respondents in said case
writ of preliminary injunction restraining not only the G.R. No. L-35948 to file 'file an answer to the said
respondents named in the petition but also their motion not later than 4 P.M., Tuesday, January 16,
"agents" from implementing not only Presidential 1973,' and setting the motion for hearing 'on January
Decree No. 73, but also "any other similar decree, 17, 1973, at 9:30 a.m.' While the case was being heard,
order, instruction, or proclamation in relation to the on the date last mentioned, at noontime, the Secretary
holding of a plebiscite on January 15, 1973 for the of Justice called on the writer of this opinion and said
purpose of submitting to the Filipino people for their that, upon instructions of the President, he (the
ratification or rejection the 1972 Draft or proposed Secretary of Justice) was delivering to him (the writer)
Constitution approved by the Constitutional a copy of Proclamation No. 1102, which had just been
Convention on November 30, 1972"; and finally, signed by the President. Thereupon, the writer
returned to the Session Hall and announced to the
[c] Petitioners prayed for such other relief which may Court, the parties in G.R. No. L-35948 inasmuch as the
be just and equitable. [p. 39, Petition]. hearing in connection therewith was still going on and
the public there present that the President had,
'Therefore, viewing the case from all angles, the according to information conveyed by the Secretary of
officials and government agencies mentioned in Justice, signed said Proclamation No. 1102, earlier that
paragraph 3 of this Supplemental Urgent Motion, can morning. Thereupon, the writer read Proclamation No.
lawfully he reached by the processes of this Honorable 1102 which is of the following tenor:

170
 proclaim that the Constitution proposed by the
'BY THE PRESIDENT OF THE PHILIPPINES nineteen hundred and seventy-one (1971)
'PROCLAMATION NO. 1102 Constitutional Convention has been ratified by an
overwhelming majority of all of the votes cast by the
'ANNOUNCING THE RATIFICATION BY THE members of all the Barangays (Citizens Assemblies)
FILIPINO PEOPLE OF THE CONSTITUTION throughout the Philippines, and has thereby come into
PROPOSED BY THE 1971 CONSTITUTIONAL effect.
CONVENTION.
'IN WITNESS WHEREOF, I have hereunto set my
'WHEREAS, the Constitution proposed by the nineteen hand and caused the seal of the Republic of the
hundred seventy-one Constitutional Convention is Philippines to be affixed.
subject to ratification by the Filipino people;
'Done in the City of Manila, this 17th day of January, in
'WHEREAS, Citizens Assemblies were created in the year of Our Lord, nineteen hundred and seventy-
barrios, in municipalities and in districts/wards in three.
chartered cities pursuant to Presidential Decree No.
86, dated December 31, 1972, composed of all (Sgd.) FERDINAND E. MARCOS
persons who are residents of the barrio, district or ward 'President of the Philippines
for at least six months, fifteen years of age or over, 'By the President:
citizens of the Philippines and who are registered in the
list of Citizen Assembly members kept by the barrio, 'ALEJANDRO MELCHOR
district or ward secretary; 'Executive Secretary'

'WHEREAS, the said Citizens Assemblies were

established precisely to broaden the base of citizen "Such is the background of the cases submitted for Our
participation in the democratic process and to afford determination. After admitting some of the allegations
ample opportunity for the citizenry to express their made in the petition in L-35948 and denying the other
views on important national issues; allegations thereof, respondents therein alleged in their
answer thereto, by way of affirmative defenses: 1) that
'WHEREAS, responding to the clamor of the people the 'questions raised' in said petition 'are political in
and pursuant to Presidential Decree No. 86-A, dated character'; 2) that 'the Constitutional Convention acted
January 5, 1973, the following questions were posed freely and had plenary authority to propose not only
before the Citizens Assemblies or Barangays: Do you amendments but a Constitution which would
approve of the New Constitution? Do you still want a supersede the present Constitution' as that 'the
plebiscite to be called to ratify the new Constitution? President's call for a plebiscite and the appropriation of
funds for this purpose are valid'; 4) that 'there is not an
'WHEREAS, fourteen million nine hundred seventy-six improper submission' and there can be a plebiscite
thousand five hundred sixty-one (14,976,561) under Martial Law'; and 5) that the 'argument that the
members of all the Barangays (Citizens Assemblies) Proposed Constitution is vague and incomplete, makes
voted for the adoption of the proposed Constitution, as an unconstitutional delegation of power, includes a
against seven hundred forty-three thousand eight referendum on the proclamation of Martial Law and
hundred sixty-nine (743,869) who voted for its purports to exercise judicial power' is 'not relevant and
rejection; while on the question as to whether or not the . . . without merit.' Identical defenses were set up in the
people would still like a plebiscite to be called to ratify other cases under consideration.
the new Constitution, fourteen million two hundred
ninety-eight thousand eight hundred fourteen "Immediately after the hearing held on January 17,
(14,298,814) answered that there was no need for a 1973, or since the afternoon of that date, the Members
plebiscite and that the vote of the Barangays (Citizens of the Court have been deliberating on the
Assemblies) should be considered as a vote in a aforementioned cases and, after extensive discussions
plebiscite; on the merits thereof, have deemed it best that each
Member write his own views thereon and that
'WHEREAS, since the referendum results show that thereafter the Chief Justice should state the result or
more than ninety-five (95) per cent of the members of the votes thus cast on the points in issue. Hence, the
the Barangays (Citizens Assemblies) are in favor of the individual views of my brethren in the Court are set
new Constitution, the Katipunan ng Mga Barangay has forth in the opinions attached hereto, except that,
strongly recommended that the new Constitution instead of writing their separate opinions, some
should already be deemed ratified by the Filipino Members have preferred to merely concur in the
people; opinion of one of our colleagues."

'NOW, THEREFORE, I, FERDINAND E. MARCOS, Then the writer of said decision expressed his own
President of the Philippines, by virtue of the powers in opinion on the issues involved therein, after which he
me vested by the Constitution, do hereby certify and

171
recapitulated the views of the Members of the Court, recognizable and should be recognized as legitimately
as follows: in force.'

"1. There is unanimity on the justiciable nature of the "c. Justice Zaldivar maintains unqualifiedly that the
issue on the legality of Presidential Decree No. 73. Proposed Constitution has not been ratified in
accordance with Article XV of the 1935 Constitution,
"2. On the validity of the decree itself, Justices and that, accordingly, it has no force and effect
Makalintal, Castro, Fernando, Teehankee, Esguerra whatsoever.
and myself, or six (6) Members of the Court, are of the
opinion that the issue has become moot and academic, "d. Justice Antonio feels 'that the Court is not
whereas Justices Barredo, Makasiar and Antonio competent to act' on the issue whether the Proposed
voted to uphold the validity of said Decree. Constitution has been ratified by the people or not, 'in
the absence of any judicially discoverable and
"3. On the authority of the 1971 Constitutional manageable standards,' since the issue 'poses a
Convention to pass the proposed Constitution or to question of fact.'
incorporate therein the provisions contested by the
petitioners in L-35948, Justices Makalintal, Castro, "7. On the question whether or not these cases should
Teehankee and Esguerra opine that the issue has be dismissed, Justices Makalintal, Castro, Barredo,
become moot and academic. Justices Fernando, Makasiar, Antonio and Esguerra voted in the
Barredo, Makasiar, Antonio and myself have voted to affirmative, for the reasons set forth in their respective
uphold the authority of the Convention. opinions. Justices Fernando, Teehankee, and the
writer similarly voted, except as regards Case No. L-
"4. Justice Fernando, likewise, expressed the view that 35948 as to which they voted to grant to the petitioners
the 1971 Constitutional Convention had authority to therein a reasonable period of time within which to file
continue in the performance of its functions despite the appropriate pleadings should they wish to contest the
proclamation of Martial Law. In effect, Justices legality of Presidential Proclamation No. 1102. Justice
Barredo, Makasiar and Antonio hold the same view. Zaldivar favors the granting of said period to the
petitioners in said Case No. L-35948 for the
"5. On the question whether the proclamation of Martial aforementioned purpose, but he believes, in effect, that
Law affected the proper submission of the proposed the Court should go farther and decide on the merits
Constitution to a plebiscite, insofar as the freedom everyone of the cases under consideration."
essential therefor is concerned Justice Fernando is of
the opinion that there is a repugnance between the Accordingly, the Court acting in conformity with the
election contemplated under Art. XV of the 1935 position taken by six (6) of its members, 1 with three
Constitution and the existence of Martial Law, and (3) members dissenting, 2 with respect to G.R. No. L-
would, therefore, grant the petitions were they not moot 35948, only, and another member 3 dissenting, as
and academic. Justices Barredo, Antonio and regards all of the cases dismissed the same, without
Esguerra are of the opinion that issue involves special pronouncement as to costs.
questions of fact which cannot be predetermined, and
that Martial Law per se does not necessarily preclude The Present Cases
the factual possibility of adequate freedom for the
purposes contemplated. Prior thereto, or on January 20, 1973, Josue Javellana
filed Case G.R. No. L-36142 against the Executive
"6. On Presidential Proclamation No. 1102, the Secretary and the Secretaries of National Defense,
following views were expressed: Justice and Finance, to restrain said respondents "and
their subordinates or agents, from implementing any of
"a. Justices Makalintal, Castro, Fernando, Teehankee, the provisions of the proposed Constitution not found
Makasiar, Esguerra and myself are of the opinion that in the present Constitution' referring to that of 1935.
the question of validity of said Proclamation has not The petition therein, filed by Josue Javellana, as a
been properly raised before the Court, which, "Filipino citizen, and a qualified and registered voter"
accordingly, should not pass upon such question. and as "a class suit, for himself, and in behalf of all
citizens and voters similarly situated," was amended on
"b. Justice Barredo holds that the issue on the or about January 24, 1973. After reciting in substance
constitutionality of Proclamation No. 1102 has been the facts set forth in the decision in the plebiscite cases,
submitted to and should be determined by the Court, Javellana alleged that the President had announced
and that the purported ratification of the Proposed "the immediate implementation of the New
Constitution . . . based on the referendum among Constitution, thru his Cabinet, respondents including,"
Citizens' Assemblies falls short of being in strict and that the latter "are acting without, or in excess of
conformity with the requirements of Article XV of the jurisdiction in implementing the said proposed
1935 Constitution,' but that such unfortunate drawback Constitution" upon the ground: "that the President, as
notwithstanding, 'considering all other related relevant Commander-in-Chief of the Armed Forces of the
circumstances, . . . the new Constitution is legally Philippines, is without authority to create the Citizens

172
Assemblies"; that the same "are without power to the Senate, but unlawfully refrained and continue to
approve the proposed Constitution . . ."; "that the refrain from doing so"; that the petitioners "are ready
President is without power to proclaim the ratification and willing to perform their duties as duly elected
by the Filipino people of the proposed Constitution"; members of the Senate of the Philippines," but
and "that the election held to ratify the proposed respondents Secretary of National Defense, Executive
Constitution was not a free election, hence null and Secretary and Chief of Staff, "through their agents and
void." representatives, are preventing petitioners from
performing their duties as duly elected Senators of the
Similar actions were filed, on January 23, 1973, by Philippines"; that "the Senate premises in the
Vidal Tan, J. Antonio Araneta, Alejandro Roces, Congress of the Philippines Building . . . are occupied
Manuel Crudo, Antonio U. Miranda, Emilio de Peralta by and are under the physical control of the elements
and Lorenzo M. Tañada against the Executive of military organizations under the direction of said
Secretary, the Secretaries of Finance Justice, Land respondents"; that, as per "official reports, the
Reform, and National Defense, the Auditor General, Department of General Services . . . is now the civilian
Budget Commissioner, the Chairman of the agent in custody of the premises of the Legislative
Presidential Commission on Reorganization, the Building"; that respondents "have unlawfully excluded
Treasurer of the Philippines, the Commission on and prevented, and continue to so exclude and
Elections and the Commissioner of Civil Service 4 ; on prevent" the petitioners from the performance of their
February 3, 1973, by Eddie Monteclaro, personally and sworn duties, invoking the alleged approval of the 1972
as President of the National Press Club of the (1973) Constitution of the Philippines by action of the
Philippines, against the Executive Secretary, the so-called Citizens' Assemblies on January 10, 1973 to
Secretary of Public Information, the Auditor General, January 15, 197 ', as stated in and by virtue of
Budget Commissioner and the National Treasurer 5 ; Proclamation No. 1102 signed and issued by the
and on February 12, 1973, by Napoleon V. Dilag, President of the Philippines"; that "the alleged creation
Alfredo Salapantan, Jr., Leonardo Asodisen, Jr. and of the Citizens' Assemblies as instrumentalities for the
Raul M. Gonzales, 6 against the Executive Secretary, ratification of the Constitution of the Republic of the
the Secretary of National Defense, the Budget Philippines" is inherently illegal and palpably
Commissioner and the Auditor General. unconstitutional; that respondents Senate President
and Senate President Pro Tempore "have unlawfully
Likewise, on January 23, 1973, Gerardo Roxas, refrained and continue to refrain from and/or unlawfully
Ambrosio Padilla, Jovito R. Salonga, Salvador H. neglected and continue to neglect the performance of
Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, their duties and functions as such officers under the law
the first as "duly elected Senator and Minority Floor and the Rules of the Senate" quoted in the petition; that
Leader of the Senate," and the others as "duly elected because of events supervening the institution of the
members" thereof, filed Case G.R. No. L-36165, plebiscite cases, to which reference has been made in
against the Executive Secretary, the Secretary of the preceding pages" the Supreme Court dismissed
National Defense, the Chief of Staff of the Armed said cases on January 22, 1973, by a majority vote,
Forces of the Philippines, the Secretary of General upon the ground that the petitions therein had become
Services, the President and the President Pro moot and academic; that the alleged ratification of the
Tempore of the Senate. In their petition as amended 1972 (1973) Constitution "is illegal, unconstitutional
on January 26, 1973 petitioners Gerardo Roxas, et al. and void and . . . can not have superseded and revoked
allege, inter alia, that the term of office of three (3) of the 1935 Constitution," for the reasons specified in the
the aforementioned petitioners 8 would expire en petition as amended; that, by acting as they did, the
December 31, 1975, and that of the others 9 on respondents and their "agents, representatives and
December 31, 1977; that pursuant to our 1935 subordinates . . . have excluded the petitioners from an
Constitution, "which is still in force," Congress of the office to which" they "are lawfully entitled"; that
Philippines "must convene for its 8th Session on "respondents Gil J. Puyat and Jose Roy have
Monday, January 22, 1973, at 10:00 A.M., which is the unlawfully refrained from convening the Senate for its
regular customary hour of its opening session"; that "on 8th session, assuming general jurisdiction over the
said day, from 10:00 A.M. up to the afternoon," said Session Hall and the premises of the Senate and . . .
petitioner "along with their other colleagues, were continue such inaction up to this time and . . . a writ of
unlawfully prevent from using the Senate Session Hall, mandamus is warranted in order to compel them to
the same having be closed by the authorities in comply with the duties and functions specifically
physical possession and control of the Legislative enjoined by law"; and that "against the above
Building'; that "(a)t about 5:00 to 6:00 P.M. of the said mentioned unlawful acts of the respondents, the
day, the premises of the entire Legislative Building petitioners have no appeal nor other speedy and
were ordered cleared by the same authorities, and no adequate remedy in the ordinary course of law except
one was allowed to enter and have access to said by invoking the equitable remedies of mandamus and
premises"; that "(r)espondent Senate President Gil J. prohibition with the provisional remedy of preliminary
Puyat and, in his absence, respondent President Pro mandatory injunction."
Tempore Jose Roy were asked by petitioning Senators
to perform their duties under the law and the Rules of

173
Premised upon the foregoing allegations, said Proclamation No. 1102, "further proceedings in this
petitioners prayed that, "pending hearing on the merits, case may only be an academic exercise in futility."
a writ of preliminary mandatory injunction be issued
ordering the respondents Executive Secretary, the On February 5, 1973, the Court issued a resolution
Secretary of National Defense, the Chief of Staff of the requiring respondents in L 36236 to comment on the
Armed Forces of the Philippines, and the . . . Secretary petition therein not later than Saturday, February 10,
of General Services, as well as all their agents, 1973, and setting the case for hearing on February 12,
representatives and subordinates to vacate the 1973, at 9:30 a.m. By resolution dated February 7,
premises of the Senate of the Philippines and to deliver 1973, this Court resolved to consider the comments of
physical possession of the same to the President of the the respondents in cases G.R. Nos. L-36142, L-36161,
Senate or his authorized representative"; and that L-36165, as motions to dismiss the petitions therein,
"after hearing, judgment be rendered declaring null and and to set said cases for hearing on the same date and
void Proclamation No. 1102 . . . and any order, decree, time as L-36236. On that date, the parties in G.R. No.
or proclamation having the same import and objective, L-36283 10 agreed that the same be, likewise, heard,
issuing the writs of prohibition and mandamus, as as it was, in fact, heard jointly with the aforementioned
prayed for against the above-mentioned respondents, cases G.R. Nos. L-36142, L-36164, L-36165 and L
and making the writ of injunction permanent; and that 36236. The hearing, which began on February 12,
a writ of mandamus be issued against the respondents shortly after 9:30 a.m., was continued not only that after
Gil J. Puyat and Jose Roy directing them to comply with but, also, on February 13, 14, 15 and 16, morning and
their duties and functions as President and President afternoon, after which the parties were granted up to
Pro Tempore, respectively, of the Senate of the February 24, 1973, noon, within which to submit their
Philippines, as provided by law and the Rules of the notes arguments and additional arguments, as well as
Senate." the documents required of them or whose presentation
was reserved by them. The same resolution granted
Required to comment on the above-mentioned the parties until March 1, 1973, to reply to the notes
petitions and/or amended petitions, respondents filed, filed by their respective opponents. Counsel for the
with the leave of Court first had and obtained, a petitioners in G.R. Nos. L-36164 and L-36165 filed their
consolidated comment on said petitions and/or aforementioned notes on February 24, 1973, on which
amended petitions, a consolidated comment on said date the Solicitor General sought an extension of time
petitions and/or amended petitions, alleging that the up to March 3, 1973, within which to file his notes,
same ought to have been dismissed outright; which was granted, with the understanding that said
controverting petitioners' allegations concerning the notes shall include his reply to the notes already filed
alleged lack or impairment of the freedom of the 1971 by the petitioners in G.R. Nos. L-36164 and L-36165.
Constitutional Convention to approve the proposed Counsel for the petitioners, likewise, moved and were
Constitution, its alleged lack of authority to incorporate granted an extension of time, to expire on March 10,
certain contested provisions thereof, the alleged lack of 1973, within which to file, as they did, their notes in
authority of the President to create and establish reply to those submitted by the Solicitor General on
Citizens' Assemblies "for the purpose of submitting to March 3, 1973. On March 21, 1973, petitioners in l-
them the matter of ratification of the new Constitution," 36165 filed a "Manifestation and Supplemental
the alleged "improper or inadequate submission of the Rejoinder," whereas the Office of the Solicitor General
proposed constitution," the "procedure for ratification submitted in all these cases a "Rejoinder to Petitioners'
adopted . . . through the Citizens Assemblies"; and Replies."
maintaining that: 1) "(t)he Court is without jurisdiction
to act on these petitions"; 2) the questions raised After deliberating on these cases, the members of the
therein are "political in character and therefore non- Court agreed that each would write his own opinion
justiciable"; 3) "there was substantial compliance with and serve a copy thereof on his colleagues, and this
Article XV of the 1935 Constitution"; 4) "(t)he they did. Subsequently, the Court discussed said
Constitution was properly submitted to the people in a opinions and votes were cast thereon. Such individual
free, orderly and honest election"; 5) "Proclamation No. opinions are appended hereto.
1102, certifying the results of the election, is conclusive
upon the courts"; and 6) "(t)he amending process Accordingly, the writer will first express his personal
outlined in Article XV of the 1935 Constitution is not opinion on the issues before the Court. After the
exclusive of other modes of amendment." exposition of his aforesaid opinion, the writer will make,
concurrently with his colleagues in the Court, a resume
Respondents Puyat and Roy, in said Case G.R. No. L- of summary of the votes cast by them in these cases.
36165, filed their separate comment therein, alleging
that "(t)he subject matter" of said case "is a highly Writer's Personal Opinion
political question which, under the circumstances, this
. . . Court would not be in a position to act upon I
judicially," and that, in view of the opinions expressed
by three members of this Court in its decision in the Alleged academic futility of further proceedings in G.R.
plebiscite cases, in effect upholding the validity of No. L-36165.

174
 unconstitutional without the concurrence of two thirds
This defense or theory, set up by counsel for of all the members of the Court."
respondents Gil J. Puyat and Jose Roy in G.R. No. L-
36165, and, also, by the Solicitor General, is Pursuant to this section, the concurrence of two thirds
predicated upon the fact that, in Our decision in the of all the Members of the Supreme Court is required
plebiscite cases, Mr. Justice Barredo expressed the only to declare a "treaty or law" unconstitutional.
view that the 1935 Constitution had "pro tanto passed Construing said provision, in a resolution dated
into history" and "been legitimately supplanted by the September 16, 1949, then Chief Justice Moran, voicing
Constitution now in force by virtue of Proclamation No. the unanimous view of the Members of this Court,
1102 . . . "; that Mr. Justice Antonio did not feel "that postulated:
this Court is competent to act" in said cases "in the
absence of any judicially discoverable and ". . . There is nothing either in the Constitution or in the
manageable standards" and because "the access to Judiciary Act requiring the vote of eight Justices to
relevant information is insufficient to assure the correct nullify a rule or regulation or an executive order issued
determination of the issue," apart from the by the President. It is very significant that in the
circumstance that "the new constitution has been previous drafts of section 10, Article VIII of the
promulgate and great interests have already arisen Constitution, 'execution order' and 'regulation' were
under it" and that the political organ of the Government included among those that required for their
has recognized its provisions; whereas, Mr. Justice nullification the vote of two-thirds of all the members of
Esguerra had postulated that "(w)ithout any competent the Court. But 'executive order' and 'regulation' were
evidence . . . about the circumstances attending the later deleted from the final draft (Aruego, The Framing
holding" of the referendum or plebiscite" thru the of the Philippine Constitution, Vol. I, pp. 495, 496), and
Citizens' Assemblies, he "cannot say that it was not thus a mere majority of six members of this Court is
lawfully held" and that, accordingly, he assumed "that enough to nullify them." 11
what the proclamation (No. 1102) says on its face is
true and until overcome by satisfactory evidence" he The distinction is not without reasonable foundation.
could not "subscribe to the claim that such plebiscite The two thirds vote (eight [8] votes) requirement,
was not held accordingly"; and that he accepted "as a indeed, was made to apply only to treaty and law,
fait accompli that the Constitution adopted (by the 1971 because, in these cases, the participation of the two
Constitutional Convention) on November 30, 1972, has other departments of the government - the Executive
been duly ratified." and the Legislative - is present, which circumstance is
absent in the case of rules, regulations and executive
Counsel for respondents Gil J. Puyat and Jose Roy orders. Indeed, a law(statute) passed by Congress is
goes on to say that, under these circumstances, "it subject to the approval or veto of the President, whose
seems remote or improbable that the necessary eight disapproval cannot be overridden except by the vote of
(8) votes under the 1935 Constitution, and much less two-thirds (2/3) of all members of each House of
the ten (10) votes required by the 1972 (1973) Congress. 12 A treaty is entered into by the President
Constitution, can be obtained for the relief sought in the with the concurrence of the Senate, 13 which is not
Amended Petition" in G.R. No. L-36165. required in the case of rules, regulations or executive
orders which are exclusive acts of the President.
I am unable to share this view. To begin with, Mr. Hence, to nullify the same, a lesser number of votes is
Justice Barredo announced publicly, in open court, necessary in the Supreme Court than that required to
during the hearing of these cases, that he was and is invalidate a law or treaty.
willing to be convinced that his aforementioned opinion
in the plebiscite cases should be reconsidered and Although the foregoing refers to rules, regulations and
changed. In effect, he thus declared that he had an executive orders issued by the President, the dictum
open mind in connection with the cases at bar, and that applies with equal force to executive proclamations,
in deciding the same he would not necessarily adhere like said Proclamation No. 1102, inasmuch as the
to said opinion if the petitioners herein succeeded in authority to issue the same is governed by section 63
convincing him that their view should be sustained. of the Revised Administrative Code, which provides:

Secondly, counsel for the aforesaid respondents had "Administrative acts and commands of the (Governor-
apparently assumed that, under the 1935 Constitution, General) President of the Philippines touching the
eigth (8) votes are necessary to declare invalid the organization or mode of operation of the Government
contested Proclamation No. 1102. I do not believe that or rearranging or readjusting any of the districts,
this assumption is borne out by any provision of said divisions, parts, or ports of the (Philippine Islands)
Constitution. Section 10 of Article VIII thereof reads: Philippines and all acts and commands governing the
general performance of duties by public employees or
"All cases involving the constitutionality of a treaty or disposing of issues of general concern shall be made
law shall be heard and decided by the Supreme Court effective in executive orders.
in banc, and no treaty or law may be declared

175
"Executive orders fixing the dates when specific laws,
resolutions, or orders are to have or cease to (have) At the outset, it is obvious to me that We are not being
effect and any information concerning matters of public asked to "declare" the new Constitution invalid. What
moment determined by law, resolution, or executive petitioners dispute is the theory that it has been validly
orders, may be promulgated in an executive ratified by the people, especially that they have done
proclamation, with all the force of an executive order." so in accordance with Article XV of the 1935
14 Constitution. The petitioners maintain that the
conclusion by the Chief Executive in the dispositive
In fact, while executive orders embody administrative portion of Proclamation No. 1102 is not borne out by
acts or commands of the President, executive the whereases preceding the same, as the predicates
proclamations are mainly informative and declaratory from which said conclusion was drawn; that the
in character, and so does counsel for respondents Gil plebiscite or "election" required in said Article XV has
J. Puyat and Jose Roy maintain in G.R. No. L-36165. not been held; that the Chief Executive has not
15 As consequence, an executive proclamation has no authority, under the 1935 Constitution, to dispense with
more than "the force of an executive order," so that, for said election or plebiscite; that the proceedings before
the Supreme Court to declare such proclamation the Citizens' Assemblies did not constitution and may
unconstitutional, under the 1935 Constitution, the not be considered as such plebiscite; that the facts of
same number of votes needed to invalidate an record abundantly show that the aforementioned
executive order, rule of regulation namely, six (6) votes Assemblies could not have been held throughout the
would suffice. Philippines from January 10 to January 15, 1973; and
that, in any event, the proceedings in said Assemblies
As regards the applicability of the provisions of the are null and void as an alleged ratification of the new
proposed new Constitution, approved by the 1971 Constitution proposed by the 1971 Constitutional
Constitutional Convention, in the determination of the Convention, not only because of the circumstances
question whether or not it is now in force, it is obvious under which said Assemblies had been created and
that such question depends upon whether or not the held, but, also, because persons disqualified to vote
said new Constitution has been ratified in accordance under Article V of the Constitution were allowed to
with the requirements of the 1935 Constitution, upon participate therein, because the provisions of our
the authority of which said Constitutional Convention Election Code were not observed in said Assemblies,
was called and approved the proposed Constitution. It because the same were not held under the supervision
is well settled that the matter of ratification of an of the Commission on Elections, in violations of section
amendment to the Constitution should be settled by 2 of Article X of the 1935 Constitution, and because the
applying the provisions of the Constitution in force at existence of Martial Law and General Order No. 20,
the time of the alleged ratification, or the old withdrawing or suspending the limited freedom to
Constitution. 16 discuss the merits and demerits of said proposed
Constitution, impaired the people's freedom in voting
II thereon, particularly, a viva voce, as it was done in
many instances, as well as their ability to have a
Does the issue on the validity of Proclamation No. 1102 reasonable knowledge of the contents of the document
partake of the nature of a political, and, hence, non- on which they were allegedly called upon to express
justiciable question? their views.

The Solicitor General maintains in his comment the Referring now more specifically to the issue on whether
affirmative view and this is his main defense. In support the new Constitution proposed by the 1971
thereof, he alleges that "petitioners would have this Constitutional Convention has been ratified in
Court declare as invalid the New Constitution of the accordance with the provisions of Article XV of the
Republic" from which he claims "this Court now derives 1935 Constitution is a political question or not, I do not
its authority"; that "nearly 15 million of our body politic hesitate to state that the answer must be in the
from the age of 15 years have mandated this negative. Indeed, such is the position taken by this
Constitution to be the New Constitution and the Court, 17 in an endless line of decisions, too long to
prospect of unsettling acts done in reliance on it leave any room for possible doubt that said issue is
caution against interposition of the power of judicial inherently and essentially justiciable. Such, also, has
review"; that "In the case of the New Constitution, the been the consistent position of the courts of the United
government has been recognized in accordance with States of America, whose decisions have a persuasive
the New Constitution"; that "the country's foreign effect in this jurisdiction, our constitutional system in
relations are now being conducted in accordance with the 1935 Constitution being patterned after that of the
the new charter"; that "foreign governments have taken United States. Besides, no plausible reason has, to my
note of it"; that the "plebiscite cases" are "not mind, been advanced to warrant a departure from said
precedents for holding questions regarding proposal position, consistently with the form of government
and ratification justiciable"; and that "to abstain from established under said Constitution.
judgment on the ultimate issue of constitutionality is not
to abdicate duty."

176
Thus, in the aforementioned plebiscite cases, 18 We such acts, measures or decisions are within the area
rejected the theory of the respondents therein that the allocated thereto by the Constitution. 25
question whether Presidential Decree No. 73 calling a
plebiscite to be held on January 15, 1973, for the This principle of separation of powers under the
ratification or rejection of the proposed new Presidential system goes hand in hand with the system
Constitution, was valid or not, was not a proper subject of checks and balances, under which each department
of judicial inquiry because, they claimed, it partook of a is vested by the Fundamental Law with some powers
political nature; and We unanimously declared that the to forestall, restrain or arrest a possible or actual
issue was a justiciable one. With identical unanimity, misuse or abuse of powers by the other departments.
We overruled the respondents' contention in the 1971 Hence, the appointing power of the Executive, his
habeas corpus cases, 19 questioning Our authority to pardoning power, his veto power, his authority to call
determine the constitutional sufficiency of the factual the Legislature or Congress to special sessions and
bases of the Presidential proclamation suspending the even to prescribe or limit the object or objects of
privileges of the writ of habeas corpus on August 21, legislation that may be taken up in such sessions, etc.
1971, despite the opposite view taken by this Court in Conversely, Congress or an agency or arm thereof
Barcelona v. Baker 20 and Montenegro v. Castañeda, such as the Commission on Appointments; may
21 insofar as it adhered to the former case, which view approve or disapprove some appointments made by
We, accordingly abandoned and refused to apply. For the President, It, also, has the power of appropriation,
the same reason, We did not apply and expressly to "define, prescribe, and apportion the jurisdiction of
modified, in Gonzales v. Commission on Elections, 22 the various courts," as well as that of impeachment.
the political-question theory adopted in Mabanag v. Upon the other hand, under the judicial power vested
Lopez Vito. 23 Hence, respondents herein urge Us to by the Constitution, the "Supreme Court and . . . such
reconsider the action thus taken by the Court and to inferior courts as may be established by law," may
revert to and follow the views expressed in Barcelon v. settle or decide with finality, not only justiciable
Baker and Mabanag v. Lopez Vito. 24 controversies between private individuals or entities,
but, also, disputes or conflicts between a private
The reasons adduced in support thereof are, however, individual or entity, on the one hand, and an officer or
substantially the same as those given in support of the branch of the government, on the other, or between
political-question theory advanced in said habeas two (2) officers or branches of service, when the latter
corpus and plebiscite cases, which were carefully officer or branch is charged with acting without
considered by this Court and found by it to be legally jurisdiction or in excess thereof or in violation of law.
unsound and constitutionally untenable. As a And so, when a power vested in said officer or branch
consequence, Our decision in the aforementioned of the government is absolute or unqualified, the acts
habeas corpus cases partakes of the nature and effect in the exercise of such power are said to be political in
of a stare decisis, which gained added weight by its nature, and, consequently, non-justiciable beyond
virtual reiteration in the plebiscite cases. judicial review. Otherwise, courts of justice would be
arrogating upon themselves a power conferred by the
The reason why the issue under consideration and Constitution upon another branch of the service to the
other issues of similar character are justiciable, not exclusion of the others. Hence, in Tañada v. Cuenco,
political, is plain and simple. One of the principal bases 26 this Court quoted with approval from In re
of the non-justiciability of so-called political questions McConaughy, 27 the following:
is the principle of separation of powers characteristic of
the Presidential system of government the functions of "'At the threshold of the case we are met with the
which are classified or divided, by reason of their assertion that the questions involved are political, and
nature, into three (3) categories, namely: 1) those not judicial. If this is correct, the court has no
involving the making of laws, which are allocated to the jurisdiction as the certificate of the state canvassing
legislative department; 2) those concerned mainly with board would then be final, regardless of the actual vote
the enforcement of such laws and of judicial decisions upon the amendment. The question thus raised is a
applying and/or interpreting the same, which belong to fundamental one; but it has been so often decided
the executive department; and 3) those dealing with contrary to the view contended for by the Attorney
the settlement of disputes, controversies or conflicts General that it would seem to be finally settled.
involving rights, duties or prerogatives that are legally
demandable and enforceable, which are apportioned xxx xxx xxx
to courts of justice. Within its own sphere but only
within such sphere each department is supreme and "'. . . What is generally meant, when it is said that a
independent of the others, and each is devoid of question is political, and not judicial, is that it is a matter
authority, not only to encroach upon the powers or field which is to be exercised by the people in their primary
of action assigned to any of the other departments, but, political capacity, or that it has been specifically
also, to inquire into or pass upon the advisability or delegated to some other department or particular
wisdom of the acts performed, measures taken or officer of the government, with discretionary power to
decisions made by the other departments provided that act. See State vs. Cunningham, 81 Wis. 497, N.W. 724,
15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32 Pac. 470,

177
948, 19 L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 balances, one of its basic predicates. As a
C.C.A. 516, 30 L.R.A. 90; Fletcher vs. Tuttle, 151 Ill. 41 consequence, We have neither the authority nor the
37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus discretion to decline passing upon said issue, but are
the Legislature may in its discretion determine whether under the ineluctable obligation made particularly more
it will pass a law or submit a proposed constitutional exacting and peremptory by our oath, as members of
amendment to the people. The courts have no judicial the highest Court of the land, to support and defend the
control over such matters, not merely because they Constitution to settle it. This explains why, in Miller v.
involve political questions, but because they are Johnson, 28 it was held that courts have a "duty, rather
matters which the people have by the Constitution than a power", to determine whether another branch of
delegated to the Legislature. The Governor may the government has "kept within constitutional limits."
exercise the powers delegated to him, free from judicial Not satisfied with this postulate, the court went farther
control, so long as he observes the laws and acts within and stressed that, if the Constitution provides how it
the limits of the power conferred. His discretionary acts may be amended as it is in our 1935 Constitution "then,
cannot be controllable, not primarily because they are unless the manner is followed, the judiciary as the
of a political nature, but because the Constitution and interpreter of that constitution, will declare the
laws have placed the particular matter under his amendment invalid." 29 In fact, this very Court
control. But every officer under a constitutional speaking through Justice Laurel, an outstanding
government must act according to law and subject to authority on Philippine Constitutional Law, as well as
its restrictions, and every departure therefrom or one of the highly respected and foremost leaders of the
disregard thereof must subject him to that restraining Convention that drafted the 1935 Constitution
and controlling power of the people, acting through the declared, as early as July 15, 1936, that "(i)n times of
agency of the judiciary; for it must be remembered that social disquietude or political excitement, the great
the people act through courts, as well as through the landmarks of the Constitution are apt to be forgotten or
executive or the Legislature. One department is just as marred, if not entirely obliterated. In cases of conflict,
representative as the other, and the judiciary is the the judicial department is the only constitutional organ
department which is charged with the special duty of which can be called upon to determine the proper
determining the limitations which the law places upon allocation of powers between the several departments"
all official action. The recognition of this principle, of the government. 30
unknown except in Great Britain and America, is
necessary, to "the end that the government may be one The Solicitor General has invoked Luther v. Borden 31
of laws and not of men" words which Webster said in support of his stand that the issue under
were the greatest contained in any written consideration is non-justiciable in nature. Neither the
constitutional document.' factual background of that case nor the action taken
therein by the Federal Supreme Court has any
and, in an attempt to describe the nature of a political similarity with or bearing on the cases under
question in terms, it was hoped, understandable to the consideration.
laymen, We added that ". . . the term 'political question'
connotes, in legal parlance, what it means in ordinary Luther v. Borden was an action for trespass filed by
parlance, namely, a question of policy" in matters Luther with the Circuit Court of the United States
concerning the government of a State, as a body against Borden and others for having forcibly entered
politic. "In other words, in the language of Corpus Juris into Luther's house, in Rhode Island, sometime in
Secundum (supra), it refers to 'those questions which, 1842. The defendants who were in the military service
under the Constitution, are to be decided by the people of said former colony of England, alleged in their
in their sovereign capacity, or in regard to which full defense that they had acted in obedience to the
discretionary authority has been delegated to the commands of a superior officer, because Luther and
Legislature or executive branch of the government.' It others were engaged in a conspiracy to overthrow the
is concerned with issues dependent upon the wisdom, government by force and the state had been placed by
not legality, of a particular measure." competent authority under Martial Law. Such authority
was the charter government of Rhode Island at the time
Accordingly, when the grant of power is qualified, of the Declaration of Independence, for unlike other
conditional or subject to limitations, the issue on states which adopted a new Constitution upon
whether or not the prescribed qualifications or secession from England Rhode Island retained its form
conditions have been met, or the limitations respected, of government under a British Charter, making only
it justiciable or non-political, the crux of the problem such alterations, by acts of the Legislature, as were
being one of legality or validity of the contested act, not necessary to adapt it to its subsequent condition as an
its wisdom. Otherwise, said qualifications, conditions or independent state. It was under this form of
limitations particularly those prescribed or imposed by government when Rhode Island joined other American
the Constitution would be set at naught. What is more, states in the Declaration of Independence and, by
the judicial inquiry into such issue and the settlement subsequently ratifying the Constitution of the United
thereof are the main functions of courts of justice under States, became a member of the Union. In 1843, it
the Presidential form of government adopted in our adopted a new Constitution.
1935 Constitution, and the system of checks and

178
Prior thereto, however, many citizens had become
dissatisfied with the charter government. Memorials Having offered to introduce evidence to prove that the
addressed by them to the Legislature having failed to constitution of the rebels had been ratified by the
bring about the desired effect, meetings were held and majority of the people, which the Circuit Court rejected,
associations formed by those who belonged to this apart from rendering judgment for the defendants, the
segment of the population which eventually resulted in plaintiff took the case for review to the Federal
a convention called for the drafting of a new Supreme Court which affirmed the action of the Circuit
Constitution to be submitted to the people for their Court, stating:
adoption or rejection. The convention was not
authorized by any law of the existing government. The "It is worthy of remark, however, when we are referring
delegates to such convention framed a new to the authority of State decisions, that the trial of
Constitution which was submitted to the people. Upon Thomas W. Dorr took place after the constitution of
the return of the votes cast by them, the convention 1843 when into operation. The judges who decided
declared that said Constitution had been adopted and that the case held their authority under that
ratified by a majority of the people and became the constitution; and it is admitted on all hands that it was
paramount law and Constitution of Rhode Island. adopted by the people of the State, and is the lawful
and established government. It is the decision,
The charter government, which was supported by a therefore, of a State court, whose judicial authority to
large number of citizens of the state, contested, decide upon the constitution and laws of Rhode Island
however, the validity of said proceedings. This is not questioned by either party to this controversy,
notwithstanding, one Thomas W. Dorr, who had been although the government under which it acted was
elected governor under the new Constitution of the framed and adopted under the sanction and laws of the
rebels, prepared to assert authority by force of arms, charter government.
and many citizens assembled to support him.
Thereupon, the charter government passed an Act "The point, then, raised here has been already decided
declaring the state under Martial Law and adopted by the courts of Rhode Island. The question relates,
measures to repel the threatened attack and subdue altogether, to the constitution and laws of that State;
the rebels. This was the state of affairs when the and the well settled rule in this court is, that the courts
defendants, who were in the military service of the of the United States adopt and follow the decisions of
charter government and were to arrest Luther, for the State courts in questions which concern merely the
engaging in the support of the rebel government which constitution and laws of the State.
was never able to exercise any authority in the state
broke into his house. "Upon what ground could the Circuit Court of United
States which tried this case have departed from this
Meanwhile, the charter government had taken rule, and disregarded and overruled the decisions of
measures to call its own convention to revise the the courts of Rhode Island? Undoubtedly the courts of
existing form of government. Eventually, a new the United States have certain powers under the
constitution was drafted by a convention held under the Constitution and laws of the United States which do not
authority of the charter government, and thereafter was government has been lawfully established, which the
adopted and ratified by the people. "(T)he times and courts of State disown and repudiate, is not one of
places at which the votes were to be persons who were them. Upon such a question the courts of the United
to be given, the receive and return them qualifications States are bound to follow the decisions of the State
of the voters having all been previously authorized and tribunals, and must therefore regard the charter
provided for by law passed by the charter government," government as the lawful and established government
the latter formally surrendered all of its power to the during the time of this contest." 32
new government, established under its authority, in
May 1843, which had been in operation uninterruptedly It is thus apparent that the context within which the
since then. case of Luther v. Borden was decided is basically and
fundamentally different from that of the cases at bar.
About a year before, or in May 1842, Dorr, at the head To begin with, the case did not involve a federal
of a military force, had made an unsuccessful attempt question, but one purely municipal in nature. Hence,
to take possession of the state arsenal in Providence, the Federal Supreme Court was "bound to follow the
but he was repulsed, and, after an "assemblage of decisions of the State tribunals" of Rhode Island
some hundreds of armed men under his command at upholding the constitution adopted under the authority
Chepatchet in the June following which dispersed upon of the charter government. Whatever else was said in
approach of the troops of the old government, no that case constitutes, therefore, an obiter dictum.
further effort was made to establish" his government. ". Besides, no decision analogous to that rendered by the
. . until the Constitution of 1843" adopted under the State Court of Rhode Island exists in the cases at bar.
auspices of the charter government "went into Secondly, the states of the Union have a measure of
operation, the charter government continued to asset internal sovereignty upon which the Federal
its authority and exercise its powers and to enforce Government may not encroach, whereas ours is a
obedience throughout the state . . ." unitary form of government, under which our local

179
governments derive their authority from the national committed, is itself a delicate exercise in constitutional
government. Again, unlike our 1935 Constitution, the interpretation, and is a responsibility of this Court as
charter or organic law of Rhode Island contained no ultimate interpreter of the Constitution . . ."
provision on the manner, procedure or conditions for its
amendment. Similarly, in Powell v. McCormack, 35 the same Court,
speaking through then Chief Justice Warren, reversed
Then, too, the case of Luther v. Borden hinged more a decision of the Court of Appeals of New York
on the question of recognition of government, than on affirming that of a Federal District Court, dismissing
recognition of constitution, and there is a fundamental Powell's action for a declaratory judgment declaring
difference between these two (2) types of recognition, thereunder that he whose qualifications were
the first being generally conceded to be a political uncontested had been unlawfully excluded from the
question, whereas the nature of the latter depends 90th Congress of the U.S. Said dismissal was
upon a number of factors, one of them being whether predicated upon the ground, inter alia, that the issue
the new Constitution in force at the time of the was political, but the Federal Supreme Court held that
purported ratification of the former, which is essentially it was clearly a justiciable one.
a justiciable question. There was, in Luther v. Borden,
a conflict between two (2) rival governments, The Supreme Court of Minnessota undertook a careful
antagonistic to each other, which is absent in the review of American jurisprudence on the matter. Owing
present cases. Here, the Government established to the lucidity of its appraisal thereof, We append the
under the 1935 Constitution is the very same same to this opinion as Annex A thereof.
government whose Executive Department has urged
the adoption of the new or revised Constitution After an exhaustive analysis of the cases on this
proposed by the 1971 Constitutional Convention and subject, the Court concluded:
now alleges that it has been ratified by the people.
"The authorities are thus practically uniform in holding
In short, the views expressed by the Federal Supreme that whether a constitutional amendment has been
Court in Luther v. Borden, decided in 1849, on matters properly adopted according to the requirements of an
other than those referring to its power to review existing Constitution is a judicial question. There can
decisions of a state court concerning the constitution be little doubt that the consensus of judicial opinion is
and government of that state, not the Federal to the effect that it is the absolute duty of the judiciary
Constitution or Government, are manifestly neither to determine whether the Constitution has been
controlling, nor even persuasive in the present cases, amended in the manner required by the Constitution,
having as the Federal Supreme Court admitted no unless a special tribunal has been created to determine
authority whatsoever to pass upon such matters or to the question; and even then many of the courts hold
review decisions of said state court thereon. In fact, that the tribunal cannot be permitted to illegally amend
referring to that case, the Supreme Court of Minnesota the organic law . . . " 36
had the following to say:
In the light of the foregoing, and considering that Art.
"Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always XV of our 1935 Constitution prescribes the method or
cited by those who assert that the courts have no procedure for its amendment, it is clear to my mind that
power to determine questions of a political character. It the question whether or not the revised Constitution
is interesting historically, but it has not the slightest drafted by the 1971 Constitutional Convention has
application to the case at bar. When carefully analyzed, been ratified in accordance with said Art. XV is a
it appears that it merely determines that the federal justiciable one and non-political in nature, and that it is
courts will accept as final and controlling a decision of not only subject to judicial inquiry, but, also, that it is
the highest court of a state upon a question of the the Court's bounden duty to decide such question.
construction of the Constitution of the state . . ." 33
The Supreme Court of the United States has
Baker v. Carr, 34 cited by respondents, involved an meaningfully postulated that "the courts cannot reject
action to annul a Tennessee statute apportioning the as 'no law suit'" -because it allegedly involves a political
seats in the General Assembly among the counties of question "a bona fide controversy as to whether some
the State, upon the theory that the legislation violated action denominated 'political' exceeds constitutional
the equal protection clause. A district court dismissed authority.'" 37
the case upon the ground, among others, that the issue
was a political one, but, after a painstaking review of III
the jurisprudence on the matter, the Federal Supreme
Court reversed the appealed decision and held that Has the proposed new or revised Constitution been
said issue was justiciable and non-political, inasmuch ratified conformably to said Art. XV of the 1935
as: ". . . (d)eciding whether a matter has in any Constitution?
measure been committed by the Constitution to
another branch of government, or whether the action of Petitioners in L-36142 maintain the negative view,
that branch exceeds whatever authority has been upon the ground: 1) that the President "is without

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authority to create the Citizens' Assemblies" through
which, respondents maintain, the proposed new 1. What is the procedure prescribed by the 1935
Constitution has been ratified; 2) that said Assemblies Constitution for its amendment?
"are without power to approve the proposed
Constitution"; 3) that the President "is without power to Under section 1 of Art. XV of said Constitution, three
proclaim the ratification by the Filipino people of the (3) steps are essential, namely:
proposed Constitution"; and 4),that "the election held
(in the Citizens' Assemblies) to ratify the proposed 1. That the amendments to the Constitution be
Constitution was not a free election, hence null and proposed either by Congress or by a convention called
void." for that purpose, "by a vote of three-fourths of all the
Members of the Senate and the House of
Apart from substantially reiterating these grounds Representatives voting separately," but "in joint
support of said negative view, the petitioners in L- session assembled";
36164 contend: 1) that the President "has no power to
call a plebiscite for the ratification or rejection" of the 2. That such amendments be "submitted to the people
proposed Constitution or "to appropriate funds for the for their ratification" at an "election"; and
holding of said plebiscite"; 2) that the proposed new or
revised Constitution "is vague and incomplete," as well 3. That such amendments be "approved by a majority
as "contains provisions which are beyond the powers of the votes cast" in said election.
of the 1971 Convention to enact," thereby rendering it
"unfit for . . . submission to the people;" 3) that "(t)he Compliance with the first requirement is virtually
period of time between November 30, 1972 when the conceded, although the petitioners in L-36164 question
1972 draft was approved and January 11-15, 1973," the authority of the 1971 Constitutional Convention to
when the Citizens' Assemblies supposedly ratified said incorporate certain provisions into the draft of the new
draft, "was too short, worse still, there was practically or revised Constitution The main issue in these five (5)
no time for the Citizens' Assemblies to discuss the cases hinges, therefore, on whether or not the last two
merits of the Constitution which the majority of them (2) requirements have been complied with.
have not read and which they never knew would be
submitted to them for ratification until they were asked 2. Has the contested draft of the new or revised
the question - 'do you approve of the New Constitution been "submitted to the people for their
Constitution?' during the said days of the voting"; and ratification" conformably to Art. XV of the Constitution?
that "(t)here was altogether no freedom of discussion
and no opportunity to concentrate on the matter In this connection, other provisions of the 1935
submitted to them when the 1972 draft was supposedly Constitution concerning "elections" must, also, be
submitted to the Citizens' Assemblies for ratification." taken into account, namely, section 1 of Art. V and Art.
X of said Constitution. The former reads:
Petitioner in L-36236 added, as arguments in support
of the negative view, that: 1) "(w)ith a government- "Section 1. Suffrage may be exercised by male citizens
controlled press, there can never be a fair and proper of the Philippines not otherwise disqualified by law,
submission of the proposed Constitution to the people"; who are twenty-one years of age or over and are able
and 2) Proclamation No. 1102 is null and void to read and write, and who shall have resided in the
"(i)nasmuch as the ratification process" prescribed "in Philippines for one year and in the municipality wherein
the 1935 Constitution was not followed." they propose to vote for at least six months preceding
the election. The National Assembly shall extend the
Besides adopting substantially some of the grounds right of suffrage to women, if in a plebiscite which shall
relied upon by the petitioners in the above mentioned be held for that purpose within two years after the
cases, the petitioners in L-36283 argue that "(t)he adoption of this Constitution, not less than three
creation of the Citizens' Assemblies as the vehicle for hundred thousand women possessing the necessary
the ratification of the Constitution was a deception qualifications shall vote affirmatively on the question."
upon the people since the President announced the
postponement of the January 15, 1973 plebiscite to Sections 1 and 2 of Art. X of the Constitution ordain in
either February 19 or March 5, 1973." 38 part:

The reasons adduced by the petitioners in L-36165 in "Section 1. There shall be an independent Commission
favor of the negative view have already been set forth on Elections composed of a Chairman and two other
earlier in this opinion. Hence, it is unnecessary to Members to be appointed by the President with the
reproduce them here. So it is, with respect to the consent of the Commission on Appointments, who
positions taken in L-36165 by counsel for therein shall hold office for a term of nine years and may not
respondents Gil J. Puyat and Jose Roy although more be reappointed . . .
will be said later about them and by the Solicitor
General, on behalf of the other respondents in that "xxx xxx xxx
case and the respondents in the other cases.

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"Sec. 2. The Commission on Elections shall have be exercised only by male citizens of the Philippines."
exclusive charge of the enforcement and 2) "That it should be limited to those who could read
administration of all laws relative to the conduct of and write." 3) "That the duty to vote should be made
elections and shall exercise all other functions which obligatory." It appears that the first recommendation
may be conferred upon it by law. It shall decide, save was discussed extensively in the Convention, and that,
those involving the right to vote, all administrative by way of compromise, it was eventually agreed to
questions, affecting elections, including the include, in section 1 of Art. V of the Constitution, the
determination of the number and location of polling second sentence thereof imposing upon the National
places, and the appointment of election inspectors and Assembly, established by the original Constitution
of other election officials. All law enforcement agencies instead of the bicameral Congress subsequently
and instrumentalities of the Government, when so created by amendment of said Constitution the duty to
required by the Commission, shall act as its deputies "extend the right of suffrage to women, if in a plebiscite
for the purpose of insuring free, orderly, and honest to be held for that purpose within two years after the
elections. The decisions, orders, and rulings the adoption of this Constitution, not less than three
Commission shall be subject to review by the Supreme hundred thousand women possessing the necessary
Court. qualifications shall vote affirmatively on the question."
41
"xxx xxx xxx" 39
The third recommendation on "compulsory" voting
a. Who may vote in a plebiscite under Art. V of the was, also, debated upon rather extensively, after which
Constitution? it was rejected by the Convention. 42 This accounts, in
my opinion, for the permissive language used in the
Petitioners maintain that section 1 of Art. V of the first sentence of said Art. V. Despite some debates on
Constitution is a limitation upon the exercise of the right the age qualification amendments having been
of suffrage. They claim that no other persons than proposed to reduce the same to 18 or 20, which were
"citizen of the Philippines not otherwise disqualified by rejected, and the residence qualification, as well as the
law, who are twenty-one years of age or over and are disqualifications to the exercise of the right of suffrage
able to read and write, and who shall have resided in - the second recommendation limiting the right of
the Philippines for one year and in the municipality suffrage who could "read and write" was in the
wherein they propose to vote for at least six months language of Dr. Jose M. Aruego, one of the Delegates
preceding the election," may exercise the right of to said Convention "readily approved in the Convention
suffrage in the Philippines. Upon the other hand, the without any dissenting vote," although there was some
Solicitor General contends that said provision merely debate on whether the Fundamental Law should
guarantees the right of suffrage to persons possessing specify the language or dialect that the voter could read
the aforementioned qualifications and none of the and write, which was decided in the negative. 43
disqualifications, prescribed by law, and that said right
may be vested by competent authorities in persons What is relevant to the issue before Us is the fact that
lacking some or all of the aforementioned the constitutional provision under consideration was
qualifications, and possessing some of the aforesaid meant to be and is a grant or conferment of a right to
disqualifications. In support of this view, he invokes the persons possessing the qualifications and none of the
permissive nature of the language "(s)uffrage may be disqualifications therein mentioned, which in turn,
exercised" used in section 1 of Art. V of the constitute a limitation of or restriction to said right, and
Constitution, and the provisions of the Revised Barrio cannot, accordingly, be dispensed with, except by
Charter, Republic Act No. 3590, particularly sections 4 constitutional amendment. Obviously, every such
and 6 thereof, providing that citizens of the Philippines constitutional grant or conferment of a right is
"eighteen years of age or over," who are registered in necessarily a negation of the authority of Congress or
the list of barrio assembly members, shall be members of any other branch of the Government to deny said
thereof and may participate as such in the plebiscites right to the subject of the grant and, in this sense only,
prescribed in said Act. may the same partake of the nature of a guarantee.
But, this does not imply not even remotely, that the
I cannot accept the Solicitor General's theory. Art. V of Fundamental Law allows Congress or anybody else to
the Constitution declares who may exercise the right of vest in those lacking the qualifications and having the
suffrage, so that those lacking the qualifications therein disqualifications mentioned in the Constitution the right
prescribed may not exercise such right. This view is of suffrage.
borne out by the records of the Constitutional
Convention that drafted the 1935 Constitution. Indeed, At this juncture, it is noteworthy that the committee on
section 1 of Art. V of the 1935 Constitution was largely suffrage responsible for the adoption of section 1 of Art.
based on the report of the committee on suffrage of the V of the Constitution was "strongly influenced by the
Convention that drafted said Constitution, which report election laws then in force in the Philippines." Our first
was, in turn, "strongly influenced by the election laws Election Law was Act 1582, passed on January 9,
then in force in the Philippines . . ." 40 Said committee 1907, which was partly amended by Acts 1669, 1709,
had recommended: 1) "That the right of suffrage should 1726 and 1768, and incorporated into the

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Administrative Code of 1916 Act 2657 as chapter 20 must be citizens "of the Philippines, twenty-one years
thereof, and then in the Administrative Code of 1971 of age or over, able to read and write," and residents of
Act 2711 as chapter 18 thereof, which, in turn, was the barrio "during the six months immediately
amended by Act 3387, approved on December 3, preceding the election, duly registered in the list of
1927. Sections 431 and 432 of said Code of 1917, voters" and "not otherwise disqualified . . ." just like the
prescribing, respectively, the qualifications for and provisions of the present and past election codes of the
disqualifications from voting, are quoted below. 44 In Philippines and Art. V of the 1935 Constitution "may
all of these legislative acts, the provisions concerning vote in the plebiscite."
the qualifications of voters partook of the nature of a
grant or recognition of the right of suffrage, and. hence, I believe, however, that the apparent conflict should be
of a denial thereof to those who lacked the requisite resolved in favor of the 21-year-old members of the
qualifications and possessed any of the statutory assembly, not only because this interpretation is in
disqualifications. In short, the history of section 1, Art. accord with Art. V of the Constitution, but, also,
V of the Constitution, shows beyond doubt that the because provisions of a Constitution particularly of a
same conferred not guaranteed the authority to written and rigid one, like ours are generally accorded
exercise the right of suffrage to persons having the a mandatory status unless the intention to the contrary
qualifications prescribed therein and none of the is manifest, which is not so as regards said Art. V for
disqualifications to be specified in ordinary laws and, otherwise they would not have been considered
by necessary implication, denied such right to those sufficiently important to be included in the Fundamental
lacking any of said qualifications or having any of the Law of the land. 48 Besides, it would be illogical, if not
aforementioned disqualifications. absurd, to believe that Republic Act No. 3590 requires,
for the most important measures for which it demands
This view is further bolstered by the fact that the 1971 in addition to the favorable action of the barrio council
Constitutional Convention sought the submission to a the approval of the barrio assembly through a
plebiscite of a "partial amendment" to said section 1 of plebiscite, lesser qualifications than those prescribed
Art. V of the 1935 Constitution, by reducing the voting in dealing with ordinary measures for which such
age from twenty-one (21) years to eighteen (18) years, plebiscite need not be held.
which, however, did not materialize on account of the
decision of this Court in Tolentino v. Commission on It is similarly inconceivable that those who drafted the
Elections, 45 granting the writs of prohibition and 1935 Constitution intended section 1 of Art. V thereof
injunction therein applied for, upon the ground that, to apply only to elections of public officers, not to
under the Constitution, all of the amendments adopted plebiscites for the ratification of amendments to the
by the Convention should be submitted in "an election" Fundamental Law or a revision thereof, or of an entirely
or a single election, not separately or in several or new Constitution, and to permit the legislature to
distinct elections, and that the proposed amendment require lesser qualifications for such ratification,
sought to be submitted to a plebiscite was not even a notwithstanding the fact that the subject thereof is
complete but a "partial amendment" of said section 1, much more important if not fundamental, such as the
which could be amended further, after its ratification basic changes introduced in the draft of the revised
had the same taken place, so that the aforementioned Constitution adopted by the 1971 Constitutional
partial amendment was, for legal purposes, no more Convention, which are intended to be in force
than a provisional or temporary amendment. Said permanently, or, at least, for many decades, and to
partial amendment was predicated upon the generally affect the way of life of the nation and, accordingly
accepted contemporary construction that, under the demands greater experience and maturity on the part
1935 Constitution, persons below twenty-one (21) of the electorate than that required for the election of
years of age could not exercise the right of suffrage, public officers, 49 whose average term ranges from 2
without a previous amendment of the Constitution. to 6 years.

Upon the other hand, the question, whether 18-year- It is admitted that persons 15 years of age or over, but
old members of barrio assemblies may vote in barrio below 21 years, regardless of whether or not they
as plebiscites is, to say the least, a debatable one. possessed the other qualifications laid down in both the
Indeed, there seems to be a conflict between the last Constitution and the present Election Code, 50 and of
paragraph of said section 6 of Rep. Act No. 3590, 46 whether or not they are disqualified under the
pursuant to which the "majority vote of all the barrio provisions of said Constitution and Code, 51 or those
assembly members" (which include all barrio residents of Republic Act No. 3590, 52 have participated and
18 years of age or over, duly registered in the list of voted in the Citizens' Assemblies that have allegedly
barrio assembly members) is necessary for the ratified the new or revised Constitution drafted by the
approval, in an assembly plebiscite, of "any budgetary, 1971 Constitutional Convention.
supplemental appropriations or special tax
ordinances," whereas, according to the paragraph In fact, according to the latest official data, the total
preceding the penultimate one of said section, 47 "(a)ll number of registered voters 21 years of age or over in
duly registered barrio assembly members qualified to the entire Philippines, available in January 1973, was
vote" who, pursuant to section 10 of the same Act, less than 12 million. Yet, Proclamation No. 1102 states

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that 14,976,561 "members of all the Barangays
(Citizens Assemblies) voted for the adoption of the ". . . In simple words, we would define a 'vote cast' as
proposed Constitution, as against . . . 743,869 who the exercise on a ballot of the choice of the voter on the
voted for its rejection," whereas, on the question measure proposed." 58
whether or not the people still wanted a plebiscite to be
called to ratify the new Constitution, ". . . 14,298,814 In short, said Art. XV envisages with the term "votes
answered that there was no need for a plebiscite and cast" choices made on ballots not orally or by raising
that the vote of the Barangays (Citizens Assemblies) hands by the persons taking part in plebiscites. This is
should be considered as a vote in a plebiscite." In other but natural and logical, for, since the early years of the
words, it is conceded that the number of people who American regime, we had adopted the Australian Ballot
allegedly voted at the Citizens' Assemblies for System, with its major characteristics, namely, uniform
exceeded the number of registered voters under the official ballots prepared and furnished by the
Election Code in force in January 1973. Government and secrecy in the voting, with the
advantage of keeping records that permit judicial
It is thus clear that the proceedings held in such inquiry, when necessary, into the accuracy of the
Citizens' Assemblies and We have more to say on this election returns. And the 1935 Constitution has been
point in subsequent pages were fundamentally so consistently interpreted in all plebiscites for the
irregular, in that persons lacking the qualifications ratification or rejection of proposed amendments
prescribed in section 1 of Art. V of the Constitution were thereto, from 1935 to 1967. Hence, the viva voce voting
allowed to vote in said Assemblies. And, since there is in the Citizens' Assemblies was and is null and void ab
no means by which the invalid votes of those less than initio.
21 years of age can be separated or segregated from
those of the qualified voters, the proceedings in the b. How should the plebiscite be held? (COMELEC
Citizens' Assemblies must be considered null and void. supervision indispensable; essential requisites)
53
Just as essential as compliance with said Art. V of the
It has been held that "(t)he power to reject an entire poll 1935 Constitution is that of Art. X thereof, particularly
. . . should be exercised . . . in a case where it is its sections 1 and 2. Indeed, section 1 provides that
impossible to ascertain with reasonable certainty the "(t)here shall be an independent Commission on
true vote," as where "it is impossible to separate the Elections . . ." The point to be stressed here is the term
legal votes from the illegal or spurious . . ." 54 "independent." Indeed, why was the term used?

In Usman v. Commission on Elections, et al., 55 We In the absence of said constitutional provision as to the
held: independence of the Commission, would it have been
dependent upon either Congress or the Judiciary? The
"Several circumstances, defying exact description and answer must be in the negative, because the functions
dependent mainly on the factual milieu of the particular of the Commission "enforcement and administration" of
controversy, have the effect of destroying the integrity election laws are neither legislative nor judicial in
and authenticity of disputed election returns and of nature, and, hence, beyond the field allocated to either
avoiding their prima facie value and character. If Congress or courts of justice. Said functions are by
satisfactorily proven, although in a summary their nature essentially executive, for which reason, the
proceeding, such circumstances as alleged by the Commission would be under the "control" of the
affected or interested parties, stamp the election President, pursuant to section 10, paragraph (1) of Art.
returns with the indelible mark of falsity and irregularity, VII of the Constitution, if Art. X thereof did not explicitly
and, consequently, of unreliability, and justify their declare that it (the Commission) is an "independent"
exclusion from the canvass." body. In other words, in amending the original 1935
Constitution, by inserting therein said Art. X, on the
Then, too, the 1935 Constitution requires "a majority of Commission on Elections, the purpose was to make
the votes cast" for a proposed amendment to the said Commission independent principally of the Chief
Fundamental Law to be "valid" as part thereof, and the Executive.
term "votes cast" has a well-settled meaning.
And the reason therefor is, also, obvious. Prior to the
"The term 'votes cast' . . . was held in Smith v. Renville creation of the Commission on Elections as a
County Commissioners, 65 N.W. 956, 64 Minn. 16, to constitutional organ, election laws in the Philippines
have been used as an equivalent of 'ballots cast.'" 56 were enforced by the then Department of the Interior,
through its Executive Bureau, one of the offices under
"The word 'cast' is defined as 'to deposit formally or the supervision and control of said Department. The
officially.'" 57 same like other departments of the Executive Branch
of the Government was, in turn, under the control of the
"It seems to us that a vote is cast when a ballot is Chief Executive, before the adoption of the 1935
deposited indicating a 'choice.' . . . The word 'cast' Constitution, and had been until the abolition of said
means 'deposit (a ballot) formally or officially . . .' Department, sometime ago under the control of the

184
President of the Philippines, since the effectivity of said purpose of insuring free, orderly, and honest elections."
Fundamental Law. Under the provisions thereof, the Not satisfied with this, it declares, in effect, that "(t)he
Executive could so use his power of control over the decisions, orders, and rulings of the Commission" shall
Department of the Interior and its Executive Bureau as not be subject to review, except by the Supreme Court.
to place the minority party at such a great, if not
decisive, disadvantage, as to deprive it, in effect, of the In accordance with the letter and spirit of said Art. X of
opportunity to defeat the political party in power, and, the Constitution, Rep. Act No. 6388, otherwise known
hence, to enable the same to perpetuate itself therein. as Election Code of 1971, implements the
To forestall this possibility, the original 1935 constitutional powers of the Commission on Elections
Constitution was amended by the establishment of the and grants additional powers thereto, some of which
Commission on Elections as a constitutional body are enumerated in sections 5 and 6 of said Act, quoted
independent primarily of the President of the below. 64 Moreover, said Act contains, inter alia,
Philippines. detailed provisions regulating contributions and other
(corrupt) practices; the establishment of election
The independence of the Commission was sought to precincts; the designation and arrangement of polling
be strengthened by the long term of office of its places, including voting booths, to protect the secrecy
members nine (9) years, except those first appointed of the ballot; the formation of lists of voters, the
59 the longest under the Constitution, second only to identification and registration of voters, the
that of the Auditor General 60 ; by providing that they proceedings therefor, as well as for the inclusion in, or
may not be removed from office except by exclusion or cancellation from said list and the
impeachment, placing them, in this respect, on the publication thereof; the establishment of municipal,
same plane as the President, the Vice-President, the provincial and national files of registered voters; the
Justices of the Supreme Court and the Auditor composition and appointment of boards of election
General; that they may not be reappointed; that their inspectors; the particulars of the official ballots to be
salaries "shall be neither increased nor diminished used and the precautions to be taken to insure the
during their term of office"; that the decisions of the authenticity thereof; the procedure for the casting of
Commission "shall be subject to review by the votes; the counting of votes by boards of inspectors;
Supreme Court" only 61 ; that "(n)o pardon, parole, or the rules for the appreciation of ballots and the
suspension of sentence for the violation of any election preparation and disposition of election returns; the
law may be granted without the favorable constitution and operation of municipal, provincial and
recommendation of the Commission" 62 ; and that its national boards of canvassers; the representation of
chairman and members "shall not, during their political parties and/or their candidates in each election
continuance in office, engage in the practice of any precinct; the proclamation of the results, including, in
profession, or intervene, directly or indirectly, in the the case of election of public officers, election contests;
management or control of any private enterprise which and the jurisdiction of courts of justice in cases of
in anyway may be affected by the functions of their violations of the provisions of said Election Code and
office; nor shall they, directly or indirectly, be financially penalties for such violations.
interested in any contract with the Government or any
subdivision or instrumentality thereof." 63 Thus, the Few laws may be found with such a meticulous and
framers of the amendment to the original Constitution elaborate set of provisions aimed at "insuring free,
of 1935 endeavored to do everything possible to orderly, and honest elections," as envisaged in section
protect and insure the independence of each member 2 of Art. X of the Constitution. Yet, none of the
of the Commission. foregoing constitutional and statutory provisions was
followed by the so-called Barangays or Citizens'
With respect to the functions thereof as a body, section Assemblies. And no reasons have been given, or even
2 of said Art. X ordains that "(t)he Commission on sought to be given therefor. In many, if not most,
Elections shall have exclusive charge of the instances, the elections were held a viva voce, thus
enforcement and administration of all laws relative to depriving the electorate of the right to vote secretly one
the conduct of elections," apart from such other of the most fundamental and critical features of our
"functions which may be conferred upon it by law." It election laws from time immemorial particularly at a
further provides that the Commission "shall decide, time when the same was of utmost importance, owing
save those involving the right to vote, all administrative to the existence of Martial Law.
questions, affecting elections, including the
determination of the number and location of polling In Glenn v. Gnau, 65 involving the casting of many
places, and the appointment of election inspectors and votes, openly, without complying with the requirements
of other election officials." And, to forestall possible of the law pertinent thereto, it was held that the
conflicts or frictions between the Commission, on the "election officers" involved "cannot be too strongly
one hand, and the other offices or agencies of the condemned" therefor and that if they 'could legally
executive department, on the other, said section 2 dispense with such requirement xxx they could with
postulates that "(a)ll law enforcement agencies and equal propriety dispense with all of them, including the
instrumentalities of the Government, when so required one that the vote shall be by secret ballot, or even by
by the Commission, shall act as its deputies for the ballot at all . . ."

185
 not and cannot exclude the exercise of the
Moreover, upon the formal presentation to the constitutional supervisory power of the Commission on
Executive of the proposed Constitution drafted by the elections or its participation in the proceedings in said
1971 Constitutional Convention, or on December 1, Assemblies, if the same had been intended to
1972, Presidential Decree No. 73 (on the validity of constitute the "election" or plebiscite required in Art. V
which was contested in the plebiscite cases, as well as of the 1935 Constitution. The provision of Presidential
in the 1972 habeas corpus case 66 We need not, in the Decree No. 86-A directing the immediate submission
cases at bar, express any opinion) was issued, calling of the result thereof to the Department of Local
a plebiscite, to be held on January 15, 1973, at which Governments and Community Development is not
the proposed Constitution would be submitted to the necessarily inconsistent with, and must be subordinate
people for ratification or rejection; directing the to the constitutional power of the Commission on
publication of said proposed Constitution; and Elections to exercise its "exclusive" authority over the
declaring, inter alia, that "(t)he provisions of the "enforcement and administration of all laws relative to
Election Code of 1971, insofar as they are not in" "shall the conduct of elections," if the proceedings in the
apply to the conduct of the plebiscite." Indeed, section Assemblies would partake of the nature of an "election"
2 of said Election Code of 1971 provides that "(a)ll or plebiscite for the ratification or rejection of the
elections of public officers except barrio officials and proposed Constitution.
plebiscites shall be conducted in the manner provided
by this Code." General Order No. 20, dated January 7, We are told that Presidential Decree No. 86 was further
1973, postponing, until further notice, "the plebiscite amended by Presidential Decree No. 86-B, dated
scheduled to be held on January 15, 1973," said January 7, 1973, ordering "that important national
nothing about the procedure to be followed in the issues shall from time to time be referred to the
plebiscite to take place at such notice, and no other Barangays (Citizens Assemblies) for resolution in
order or decree has been brought to Our attention, accordance with Presidential Decree No. 86-A dated
expressly or impliedly repealing the provisions of January 5, 1973 and that the initial referendum shall
Presidential Decree No. 73, insofar as said procedure include the matter of ratification of the Constitution
is concerned. proposed by the 1971 Constitutional Convention" and
that "(t)he Secretary of the Department of Local
Upon the other hand, said General Order No. 20 Governments and Community Development shall
expressly suspended "the provisions of Section 3 of insure the implementation of this order." As in the case
Presidential Decree No. 73 insofar as they allow free of Presidential Decrees Nos. 86 and 86-A, the
public discussion of the proposed Constitution . . . foregoing directives do not necessarily exclude the
temporarily suspending the effects of Proclamation No. exercise of the powers vested by the 1935 Constitution
1081 for the purposes of free and open debate on the in the Commission on Elections, even if the Executive
proposed Constitution . . ." This specific mention of the had the authority to repeal Art. X of our Fundamental
portions of the decrees or orders or instructions Law which he does not possess. Copy of Presidential
suspended by General Order No. 20 necessarily Decree No. 86-B is appended hereto as Annex B
implies that all other portions of said decrees, orders or hereof.
instructions and, hence, the provisions of Presidential
Decree No. 73 outlining the procedure to be followed The point is that, such of the Barrio Assemblies as were
in the plebiscite for the ratification or rejection of the held took place without the intervention of the
proposed Constitution remained in force, assuming Commission on Elections, and without complying with
that said Decree is valid. the provisions of the Election Code of 1971 or even of
those of Presidential Decree No. 73. What is more,
It is claimed that by virtue of Presidential Decree No. they were held under the supervision of the very
86-A the text of which is quoted below 67 the Executive officers and agencies of the Executive Department
declared, inter alia, that the collective views expressed sought to be excluded therefrom by Art. X of the 1935
in the Citizens' Assemblies "shall be considered in the Constitution. Worse still, said officers and agencies of
formulation of national policies or programs and, the Executive Department, who had been publicly
wherever practicable, shall be translated into concrete urged and ostensibly promised to work for the
and specific decision"; that such Citizens' Assemblies ratification of the proposed revised Constitution would
"shall consider vital national issues . . . like the holding be favored thereby, owing to the practically indefinite
of the plebiscite on the new Constitution . . . and others extension of their respective terms of office in
in the future, which shall serve as guide or basis for consequence of section 9 of the Transitory Provisions,
action or decision by the national government"; and found in Art. XVII of the proposed Constitution, without
that the Citizens' Assemblies "shall conduct between any elections therefor. And the procedure therein
January 10 and 15, 1973, a referendum on important mostly followed is such that there is no reasonable
national issues, including those specified in paragraph means of checking the accuracy of the returns filed by
2 hereof, and submit the results thereof to the the officers who conducted said plebiscites. This is
Department of Local Governments and Community another patent violation of Art. X of the Constitution
Development immediately thereafter, . . ." As in which can hardly be sanctioned. And, since the
Presidential Decree No. 86, this Decree No. 86-A does provisions of this article form part of the fundamental

186
scheme set forth in the 1935 Constitution, as amended, limitations which the law places upon all official action.
to insure the "free, orderly, and honest" expression of . . ."
the people's will, the aforementioned violation thereof
renders null and void the contested proceedings or Accordingly, the issue boils down to whether or not the
alleged plebiscite in the Citizens' Assemblies, insofar Executive acted within the limits of his authority when
as the same are claimed to have ratified the revised he certified in Proclamation No. 1102 "that the
Constitution proposed by the 1971 Constitutional Constitution proposed by the nineteen hundred and
Convention. ". . . (a)ll the authorities agree that the seventy-one (1971) Constitutional Convention has
legal definition of an election, as well as that which is been ratified by an overwhelming majority of all of the
usually and ordinarily understood by the term, is a votes cast by the members of all the Barangays
choosing or a selection by those having a right to (Citizens Assemblies) throughout the Philippines, and
participate (in the selection) of those who shall fill the has thereby come into effect."
offices, or of the adoption or rejection of any public
measures affecting the territory involved. 15 Cyc. 279; In this connection, it is not claimed that the Chief
Lewis v. Boynton, 25 Colo. 486, 55 Pac. 732; Saunders Executive had personal knowledge of the data he
v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 certified in said proclamation. Moreover, Art. X of the
Iowa 216, 47 N.W. 1091, 11 L.R.A. 354; State v. Hirsh, 1935 Constitution was precisely inserted to place
125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's beyond the Executive the power to supervise or even
Law Dictionary." 68 exercise any authority whatsoever over "all laws
relative to the conduct of elections," and, hence,
IV whether the elections are for the choice or selection of
public officers or for the ratification or rejection of any
Has the proposed Constitution aforementioned been proposed amendment, or revision of the Fundamental
approved by a majority of the people in Law, since the proceedings for the latter are, also,
the Citizen's Assemblies allegedly held throughout the referred to in said Art. XV as "elections."
Philippines?
The Solicitor General stated, in his argument before
Respondents maintain the affirmative, relying upon this Court, that he had been informed that there was in
Proclamation No. 1102, the validity of which is each municipality a municipal association of presidents
precisely being contested by petitioners herein. of the citizens' assemblies for each barrio of the
Respondents claim that said proclamation is municipality; that the president of each such municipal
"conclusive" upon this Court, or is, at least, entitled to association formed part of a provincial or city
full faith and credence, as an enrolled bill; that the association of presidents of such municipal
proposed Constitution has been, in fact, ratified, associations; that the president of each one of these
approved or adopted by the "overwhelming" majority of provincial or city associations in turn formed part of a
the people; that Art. XV of the 1935 Constitution has National Association or Federation of Presidents of
thus been "substantially" complied with; and that the such Provincial or City Associations; and that one
Court should refrain from passing upon the validity of Francisco Cruz from Pasig, Rizal, as President of said
Proclamation No. 1102, not only because such National Association or Federation, reported to the
question is political in nature, but, also, because should President of the Philippines, in the morning of January
the Court invalidate the proclamation, the former 17, 1973, the total result of the voting in the citizens'
would, in effect, veto the action of the people in whom assemblies all over the country from January 10 to
sovereignty resides and from whom its powers are January 15, 1973. The Solicitor General further
derived. intimated that the said municipal associations had
reported the results of the citizens' assemblies in their
The major flaw in this process of rationalization is that respective municipalities to the corresponding
it assumes, as a fact, the very premise on which it is Provincial Association, which, in turn, transmitted the
predicated, and which, moreover, is contested by the results of the voting in the province to the Department
petitioners. As the Supreme Court of Minnessota has of Local Governments and Community Development,
aptly put it which tabulated the results of the voting in the citizens'
assemblies throughout the Philippines and then turned
". . . every officer under a constitutional government them over to Mr. Francisco Cruz, as President or acting
must act according to law and subject to its restrictions, President of the National Association or Federation,
and every departure therefrom or disregard thereof whereupon Mr. Cruz, acting in a ceremonial capacity,
must subject him to the restraining and controlling reported said results (tabulated by the Department of
power of the people, acting through the agency of the Local Governments and Community Development) to
judiciary; for it must be remembered that the people act the Chief Executive, who, accordingly, issued
through courts, as well as through the executive or the Proclamation No. 1102.
Legislature. One department is just as representative
as the other, and the judiciary is the department which The record shows, however, that Mr. Cruz was not
is charged with the special duty of determining the even a member of any barrio council since 1972, 80
that he could not possibly have been a member on

187
January 17, 1973, of a municipal association of property tax.' Dissatisfaction with the results of this
presidents of barrio or ward citizens' assemblies, much method and the development of more scientific and
less of a Provincial, City or National Association or satisfactory methods of raising venue induced the
Federation of Presidents of any such provincial or city Legislature to submit to the people an amendment to
associations. the Constitution which provided merely that taxes shall
be uniform upon the same class of subjects. This
Secondly, at the conclusion of the hearing of these proposed amendment was submitted at the general
cases on February 16, 1973, and in the resolution of election held in November, 1906, and in due time it was
this Court of the same date, the Solicitor General was certified by the state canvassing board and proclaimed
asked to submit, together with his notes on his oral by the Governor as having been legally adopted.
argument, a true copy of the aforementioned report of Acting upon the assumption that the amendment had
Mr. Cruz to the President and of the "(p)roclamation, become a part of the Constitution, the Legislature
decree, instruction, order, regulation or circular, if any, enacted statutes providing for a State Tax Commission
creating or directing or authorizing the creation, and a mortgage registry tax, and the latter statute,
establishment or organization" of said municipal, upon the same theory, was held constitutional" by said
provincial and national associations, but neither a copy Court. "The district court found that the amendment
of said alleged report to the President, nor a copy of had not in fact been adopted, and on this appeal" the
any said "(p)roclamation, decree, instruction, order, Supreme Court was "required to determine the
regulation or circular," has been submitted to this correctness of that conclusion."
Court. In the absence of said report, "(p)roclamation,
decree, instruction," etc., Proclamation No. 1102 is Referring to the effect of the certification of the State
devoid of any factual and legal foundation. Hence, the Board of Canvassers created by the Legislature and of
conclusion is set forth in the dispositive portion of said the proclamation made by the Governor based
Proclamation No. 1102, to the effect that the proposed thereon, the Court held: "It will be noted that this board
new or revised Constitution had been ratified by the does no more than tabulate the reports received from
majority of the votes cast by the people, cannot the various county boards and add up and certify the
possibly have any legal effect or value. results. State v. Mason, 45 Wash. 234, 88 Pac. 126, 9
L.R.A. (U.S.) 1221. It is settled law that the decisions
The theory that said proclamation is "conclusive" upon of election officers, and canvassing boards are not
the Court is clearly untenable. If it were, acts of the conclusive and that the final decision must rest with the
Executive and those of Congress could not possibly be courts, unless the law declares that the decisions of the
annulled or invalidated by courts of justice. Yet, such is board shall be final" and there is no such law in the
not the case. In fact, even a resolution of Congress cases at bar. ". . . The correctness of the conclusion of
declaring that a given person has been elected the state board rests upon the correctness of the
President or Vice-President of the Philippines as returns made by the county boards and it is
provided in the Constitution 69 is not conclusive upon inconceivable that it was intended that this statement
the courts. It is no more than prima facie evidence of of result should be final and conclusive regardless of
what is attested to by said resolution. 70 If assailed the actual facts. The proclamation of the Governor
directly in appropriate proceedings, such as an election adds nothing in the way of conclusiveness to the legal
protest, if and when authorized by law, as it is in the effect of the action of the canvassing board. Its purpose
Philippines, the Court may receive evidence and is to formally notify the people of the state of the result
declare, in accordance therewith, who was duly elected of the voting as found by the canvassing board. James
to the office involved. 71 If prior to the creation of the on Const. Conv. (4th Ed.) sec. 523."
Presidential Electoral Tribunal, no such protest could
be filed, it was not because the resolution of Congress In Bott v. Wartz, 73 the Court reviewed the statement
declaring those had been elected President or Vice- of results of the election made by the canvassing
President was conclusive upon courts of justice, but board, in order that the true results could be judicially
because there was no law permitting the filing of such determined. And so did the court in Rice v. Palmer. 74
protest and declaring what court or body would hear
and decide the same. So, too, a declaration to the In as much as Art. X of the 1935 Constitution places
effect that a given amendment to the Constitution or under the "exclusive" charge of the Commission on
revised or new Constitution has been ratified by a Elections, "the enforcement and administration of all
majority of the votes cast therefor, may be duly laws relative to the conduct of elections,"
assailed in court and be the object of judicial inquiry, in independently of the Executive, and there is not even
direct proceedings therefor such as the cases at bar a certification by the Commission in support of the
and the issue raised therein may and should be alleged results of the citizens' assemblies relied upon
decided in accordance with the evidence presented. in Proclamation No. 1102 apart from the fact that on
January 17, 1973 neither the alleged president of the
The case of In re McConaughy 72 is squarely in point. Federation of Provincial or City Barangays nor the
"As the Constitution stood from the organization of the Department of Local Governments had certified to the
state" of Minnesota "all taxes were required to be President of the alleged result of the citizen's
raised under the system known as the 'general assemblies all over the Philippines it follows

188
necessarily that, from a constitutional and legal postponement of the plebiscite for the ratification or
viewpoint, Proclamation No. 1102 is not even prima rejection of the Proposed Constitution. No formal
facie evidence of the alleged ratification of the action to this effect was taken until January 7, 1973,
proposed Constitution. when General Order No. 20 was issued, directing 'that
the plebiscite scheduled to be held on January 15,
Referring particularly to the cases before Us, it will be 1973, he postponed until further notice.' Said General
noted that, as pointed out in the discussion of the Order No. 20, moreover, 'suspended in the meantime'
preceding topic, the new or revised Constitution the 'order of December 17, 1972, temporarily
proposed by the 1971 Constitutional Convention was suspending the effects of Proclamation No. 1081 for
not ratified in accordance with the provisions of the purposes of free and open debate on the proposed
1935 Constitution. In fact, it has not even been ratified Constitution.'
in accordance with said proposed Constitution, the
minimum age requirement therein for the exercise of "In view of these events relative to the postponement
the right of suffrage being eighteen (18) years, apart of the aforementioned plebiscite, the Court deemed it
from the fact that Art. VI of the proposed Constitution fit to refrain, for the time being, from deciding the
requires "secret" voting, which was not observed in aforementioned cases, for neither the date nor the
many, if not most, Citizens' Assemblies. Besides, both conditions under which said plebiscite would be held
the 1935 Constitution and the proposed Constitution were known or announced officially. Then again,
require a "majority of the votes cast" in an election or Congress was, pursuant to the 1935 Constitution,
plebiscite called for the ratification of an amendment or scheduled to meet in regular session on January 22,
revision of the first Constitution or the effectivity of the 1973,and since the main objection to Presidential
proposed Constitution, and the phrase "votes cast" has Decree No. 73 was that the President does not have
been construed to mean "votes made in writing," not the legislative authority to call a plebiscite and
orally, as it was in many Citizens' Assemblies. 75 appropriate funds therefor, which Congress
unquestionably could do, particularly in view of the
Even counsel for Gil J. Puyat and Jose Roy, as formal postponement of the plebiscite by the President
respondents in L-36165, asserts openly that Art. XV of reportedly after consultation with, among others, the
the Constitution has not been complied with, and since leaders of Congress and the Commission on Elections
the alleged substantial compliance with the the Court deemed it more imperative to defer its final
requirements thereof partakes of the nature of a action on these cases."
defense set up by the other respondents in these
cases, the burden of proving such defense which, if And, apparently, the parties in said cases entertained
true, should be within their peculiar knowledge is the same belief, for, on December 23, 1972 four (4)
clearly on such respondents. Accordingly, if despite the days after the last hearing of said cases 76 the
extensive notes and documents submitted by the President announced the postponement of the
parties herein, the members of the Court do not know plebiscite scheduled by Presidential Decree No. 73 to
or are not prepared to say whether or not the majority be held on January 15, 1973, after consultation with the
of the people or of those who took part in the Citizens' Commission on Elections and the leaders of Congress,
Assemblies have assented to the proposed owing to doubts on the sufficiency of the time available
Constitution, the logical step would be to give due to translate the proposed Constitution into some local
course to these cases, require the respondents to file dialects and to comply with some pre-electoral
their answers, and the plaintiffs their reply, and, requirements, as well as to afford the people a
thereafter, to receive the pertinent evidence and then reasonable opportunity to be posted on the contents
proceed to the determination of the issues raised and implications of said transcendental document. On
thereby. Otherwise, we would be placing upon the January 7, 1973, General Order No. 20 was issued
petitioners the burden of disproving a defense set up formally, postponing said plebiscite "until further
by the respondents, who have not so far established notice." How can said postponement be reconciled with
the truth of such defense. the theory that the proceedings in the Citizens'
Assemblies scheduled to be held from January 10, to
Even more important, and decisive, than the foregoing January 15, 1973, were "plebiscites," in effect,
is the circumstance that there is ample reason to accelerated, according to the theory of the Solicitor
believe that many, if not most, of the people did not General, for the ratification of the proposed
know that the Citizens' Assemblies were, at the time Constitution? If said Assemblies were meant to be the
they were held, plebiscites for the ratification or plebiscites or elections envisaged in Art. XV of the
rejection of the proposed Constitution. Hence, in Our Constitution, what, then, was the "plebiscite"
decision in the plebiscite cases, We said, inter alia: postponed by General Order No. 20? Under these
circumstances, it was only reasonable for the people
"Meanwhile, or on December 17, 1972, the President who attended such assemblies to believe that the
had issued an order temporarily suspending the effects same were not an "election" or plebiscite for the
of Proclamation No. 1081, for the purpose of free and ratification or adoption of said proposed Constitution.
open debate on the Proposed Constitution. On
December 23, the President announced the

189
And, this belief is further bolstered up by the questions Constitution. In short, the insertion of said two (2)
propounded in the Citizens' Assemblies, namely: questions apart from the other questions adverted to
above indicates strongly that the proceedings therein
"[1] Do you like the New Society? did not partake of the nature of a plebiscite or election
for the ratification or rejection of the proposed
"[2] Do you like the reforms under martial law? Constitution.

"[3] Do you like Congress again to hold sessions? Indeed, I can not, in good conscience, declare that the
proposed Constitution has been approved or adopted
"[4] Do you like the plebiscite to be held later? by the people in the citizens' assemblies all over the
Philippines, when it is, to my mind, a matter of judicial
"[5] Do you like the way President Marcos is running knowledge that there have been no such citizens'
the affairs of the government? [Bulletin Today, January assemblies in many parts of Manila and suburbs, not
10, 1973; additional question italics.] to say, also, in other parts of the Philippines. In a letter
of Governor Efren B. Pascual of Bataan, dated January
"[6] Do you approve of the citizens assemblies as the 15, 1973, to the Chief Executive, the former reported:
base of popular government to decide issues of
national interests? ". . . This report includes a resume (sic) of the activities
we undertook in effecting the referendum on the eleven
"[7] Do you approve of the new Constitution? questions you wanted our people consulted on and the
Summary of Results thereof for each municipality and
"[8] Do you want a plebiscite to be called to ratify the for the whole province.
new Constitution?
"xxx xxx xxx
"[9] Do you want the elections to be held in November,
1973 in accordance with the provisions of the 1935 ". . . Our initial plans and preparations, however, dealt
Constitution? only on the original five questions. Consequently, when
we received an instruction on January 10 to change the
"[10] If the elections would not be held, when do you questions, we urgently suspended all scheduled
want the next elections to be called? Citizens' Assembly meetings on that day and called all
Mayors, Chiefs of Offices and other government
"[11] Do you want martial law to continue?" [Bulletin officials to another conference to discuss with them the
Today, January 11, 1973] new set of guidelines and materials to be used.

To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and "On January 11, . . . another instruction from the top
11 are not proper in a plebiscite for the ratification of a was received to include the original five questions
proposed Constitution or of a proposed amendment among those to be discussed and asked in the
thereto. Secondly, neither is the language of question Citizens' Assembly meetings. With this latest order, we
No. 7 "Do you approve of the new Constitution?" One again had to make modifications in our instructions to
approves "of" the act of another, which does not need all those managing and supervising the holding of the
such approval for the effectivity of said act, which the Citizens' Assembly meetings throughout the province .
first person, however, finds to be good, wise or . . Aside from the coordinators we had from the Office
satisfactory. The approval of the majority of the votes of the Governor, the splendid cooperation and support
cast in a plebiscite is, however, essential for an extended by almost all government officials and
amendment to the Constitution to be valid as part employees in the province, particularly of the
thereof. Department of Education, PC and PACD personnel,
provided us with enough hands to trouble shoot and
Thirdly, if the proceedings in the Citizens' Assemblies implement sudden changes in the instructions anytime
constituted a plebiscite, question No. 8 would have and anywhere needed . . .
been unnecessary and improper, regardless of
whether question No. 7 were answered affirmatively or ". . . As to our people, in general, their enthusiastic
negatively. If the majority of the answers to question participation showed their preference and readiness to
No. 7 were in the affirmative, the Constitution would accept this new method of government to people
have become effective and no other plebiscite could be consultation in shaping up government policies."
held thereafter in connection therewith, even if the
majority of the answers to question No. 8 were, also, in Thus, as late as January 10, 1973, the Bataan officials
the affirmative. If the majority of the answers to had to suspend "all scheduled Citizens' Assembly
question No. 7 were in the negative, neither may meetings . . ." and call all available officials ". . . to
another plebiscite be held, even if the majority of the discuss with them the new set of guidelines and
answers to question No. 8 were in the affirmative. In materials to be used . . ." Then, "on January 11 . . .
either case, not more than one plebiscite could be held another instruction from the top was received to include
for the ratification or rejection of the proposed the original five questions among those to be

190
discussed and asked in the Citizens' Assembly 1973, under the Constitution drafted by the 1971
meetings. With this latest order, we again had to make Constitutional Convention; that the political department
modifications in our instructions to all those managing of the Government has recognized said revised
and supervising the holding of the Citizens' Assembly Constitution; that our foreign relations are being
meetings throughout the province . . . As to our people, conducted under such new or revised Constitution; that
in general, their enthusiastic participation showed their the Legislative Department has recognized the same,
preference and readiness to accept the new method of and that the people, in general, have, by their acts or
government to people consultation in shaping up omissions, indicated their conformity thereto.
government policies."
As regards the so called political organs of the
This communication manifestly shows: 1) that, as late Government, I gather that respondents refer mainly to
as January 11, 1973, the Bataan officials had still to the offices under the Executive Department. In a
discuss not put into operation means and ways to carry sense, the latter performs some functions which, from
out the changing instructions from the top on how to a constitutional viewpoint, are political in nature, such
organize the citizens' assemblies, what to do therein as in recognizing a new state or government, in
and even what questions or topics to propound or accepting diplomatic representatives accredited to our
touch in said assemblies; 2) that the assemblies would Government, and even in devising administrative
involve no more than consultations or dialogues means and ways to better carry into effect Acts of
between people and government not decisions to be Congress which define the goals or objectives thereof,
made by the people; and 3) that said consultations but are either imprecise or silent on the particular
were aimed only at "shaping up government policies" measures to be resorted to in order to achieve the said
and, hence, could not, and did not, partake of the goals or delegate the power to do so, expressly or
nature of a plebiscite for the ratification or rejection of impliedly, to the Executive. This, notwithstanding, the
a proposed amendment of a new or revised political organ of a government that purports to be
Constitution for the latter does not entail the republican is essentially the Congress or Legislative
formulation of a policy of the Government, but the Department. Whatever may be the functions allocated
making of a decision by the people on the new way of to the Executive Department specially under a written,
life, as a nation, they wish to have, once the proposed rigid Constitution, with a republican system of
Constitution shall have been ratified. Government like ours the role of that Department is
inherently, basically and fundamentally executive in
If this was the situation in Bataan one of the provinces nature to "take care that the laws be faithfully
nearest to Manila as late as January 11, 1973, one can executed," in the language of our 1935 Constitution. 79
easily imagine the predicament of the local officials and
people in the remote barrios in northern and southern Consequently, I am not prepared to concede that the
Luzon, in the Bicol region, in the Visayan Islands and acts of the officers and offices of the Executive
Mindanao. In fact, several members of the Court, Department, in line with Proclamation No. 1102,
including those of their immediate families and their connote a recognition thereof or an acquiescence
household, although duly registered voters in the area thereto. Whether they recognized the proposed
of Greater Manila, were not even notified that citizens' Constitution or acquiesce thereto or not is something
assemblies would be held in the places where their that cannot legally, much less necessarily or even
respective residences were located. In the Prohibition normally, be deduced from their acts in accordance
and Amendment case, 77 attention was called to the therewith, because they are bound to obey and act in
"duty cast upon the court of taking judicial cognizance conformity with the orders of the President, under
of anything affecting the existence and validity of any whose "control" they are, pursuant to the 1935
law or portion of the Constitution . . ." In line with its Constitution. They have absolutely no other choice,
own pronouncement in another case, the Federal specially in view of Proclamation No. 1081 placing the
Supreme Court of the United States stressed, in Baker Philippines under Martial Law. Besides, by virtue of the
v. Carr, 78 that "a court is not at liberty to shut its eyes very decrees, orders and instructions issued by the
to an obvious mistake, when the validity of the law President thereafter, he had assumed all powers of
depends upon the truth of what is declared." Government although some question his authority to
do so and, consequently, there is hardly anything he
In the light of the foregoing, I cannot see how the has done since the issuance of Proclamation No. 1102,
question under consideration can be answered or on January 17, 1973 declaring that the Constitution
resolved otherwise than in the negative. proposed by the 1971 Constitutional Convention has
been ratified by the overwhelming majority of the
V people that he could not do under the authority he
claimed to have under Martial Law, since September
Have the people acquiesced in the proposed 21, 1972, except the power of supervision over inferior
Constitution? courts and its personnel, which said proposed
Constitution would place under the Supreme Court,
It is urged that the present Government of the and which the President has not ostensibly exercised,
Philippines is now and has been run, since January 17, except as to some minor routine matters, which the

191
Department of Justice has continued to handle, this acquiescence was present. Worse still, there is martial
Court having preferred to maintain the status quo in law, the strict enforcement of which was announced
connection therewith pending final determination of shortly before the alleged citizens' assemblies. To top
these cases, in which the effectivity of the it all, in the Taylor case, the effectivity of the contested
aforementioned Constitution is disputed. amendment was not contested judicially until about
one (1) year after the amendment had been put into
Then, again, a given department of the Government operation in all branches of the Government, and
cannot generally be said to have "recognized" its own complied with by the people who participated in the
acts. Recognition normally connotes the elections held pursuant to the provisions of the new
acknowledgment by a party of the acts of another. Constitution. In the cases under consideration, the
Accordingly, when a subordinate officer or office of the legality of Presidential Decree No. 73 calling a
Government complies with the commands of a superior plebiscite to be held on January 15, 1973, was
officer or office, under whose supervision and control impugned as early as December 7, 1972, or five (5)
he or it is, the former merely obeys the latter. Strictly weeks before the scheduled plebiscite, whereas the
speaking, and from a legal and constitutional validity of Proclamation No. 1102 declaring on January
viewpoint, there is no act of recognition involved 17, 1973, that the proposed Constitution had been
therein. Indeed, the lower officer or office, if he or it ratified despite General Order No. 20, issued on
acted otherwise, would just be guilty of insubordination. January 7, 1972, formally and officially suspending the
plebiscite until further notice was impugned as early as
Thus, for instance, the case of Taylor v. January 20, 1973, when L-36142 was filed, or three (3)
Commonwealth 80 cited by respondents herein in days after the issuance of Proclamation No. 1102.
support of the theory of the people's acquiescence
involved a constitution ordained in 1902 and It is further alleged that a majority of the members of
"proclaimed by a convention duly called by a direct vote our House of Representatives and Senate have
of the people of the state to revise and amend the acquiesced in the new or revised Constitution, by filing
Constitution of 1869. The result of the work of that written statements opting to serve in the Ad Interim
Convention has been recognized, accepted and acted Assembly established in the Transitory Provisions of
upon as the only valid Constitution of the State" by said Constitution. Individual acts of recognition by
members of our legislature, as well as of other
1. The "Governor of the State in swearing fidelity to it collegiate bodies under the government, are invalid as
and proclaiming it, as directed thereby"; acts of said legislature or bodies, unless its members
have performed said acts in session duly assembled,
2. The "Legislature in its formal official act adopting a or unless the law provides otherwise, and there is no
joint resolution, July 15, 1902, recognizing the such law in the Philippines. This is a well-established
Constitution ordained by the Convention . . ."; principle of Administrative Law and of the Law of Public
Officers, and no plausible reason has been adduced to
3. The "individual oaths of its members to support it, warrant departure therefrom. 81
and by its having been engaged for nearly a year, in
legislating under it and putting its provisions into Indeed, if the members of Congress were generally
operation . . ."; agreeable to the proposed Constitution, why did it
become necessary to padlock its premises to prevent
4. The "judiciary in taking the oath prescribed thereby its meeting in session on January 22, 1973, and
to support it and by enforcing its provisions . . . "; and thereafter as provided in the 1935 Constitution? It is
true that, theoretically, the members of Congress, if
5. The "people in their primary capacity by peacefully bent on discharging their functions under said
accepting it and acquiescing in it, by registering as Constitution, could have met in any other place, the
voters under it to the extent of thousands throughout building in which they perform their duties being
the State, and by voting, under its provisions, at a immaterial to the legality of their official acts. The force
general election for their representatives in the of this argument is, however, offset or dissipated by the
Congress of the United States." fact that, on or about December 27, 1972, immediately
after a conference between the Executive, on the one
Note that the New Constitution of Virginia, drafted by a hand, and members of Congress, on the other, some
convention whose members were elected directly by of whom expressed the wish to meet in session on
the people, was not submitted to the people for January 22, 1973, as provided in the 1935 Constitution,
ratification or rejection thereof. But, it was recognized, a Daily Express columnist (Primitivo Mijares) attributed
not by the convention itself, but by other sectors of the to Presidential Assistant Guillermo de Vega a
Government, namely, the Governor; the Legislature statement to the effect that "'certain members of the
not merely by individual acts of its members, but by Senate appear to be missing the point in issue' when
formal joint resolution of its two (2) chambers; by the they reportedly insisted on taking up first the question
judiciary; and by the people, in the various ways of convening Congress." The Daily Express of that
specified above. What is more, there was no martial date, 82 likewise, headlined, on its front page, a
law. In the present cases, none of the foregoing acts of "Senatorial Plot Against 'Martial Law Government'

192
Disclosed." Then, in its issue of December 29, 1972, roughly, this: If the enrolled bill is entitled to full faith
the same paper imputed to the Executive an appeal "to and credence and, to this extent, it is conclusive upon
diverse groups involved in a conspiracy to undermine" the President and the judicial branch of the
his powers "under martial law to desist from provoking Government, why should Proclamation No. 1102 merit
a constitutional crisis . . . which may result in the less consideration than in enrolled bill?
exercise by me of authority I have not exercised."
Before answering this question, I would like to ask the
No matter how good the intention behind these following: If, instead of being certified by the
statements may have been, the idea implied therein aforementioned officers of Congress, the so-called
was too clear and ominous for any member of enrolled bill were certified by, say, the President of the
Congress who thought of organizing, holding or taking Association of Sugar Planters and/or Millers of the
part in a session of Congress, not to get the impression Philippines, and the measure in question were a
that he could hardly do so without inviting or risking the proposed legislation concerning Sugar Plantations and
application of Martial Law to him. Under these Mills sponsored by said Association, which even
conditions, I do not feel justified in holding that the prepared the draft of said legislation, as well as lobbied
failure of the members of Congress to meet since actually for its approval, for which reason the officers of
January 22, 1973, was due to their recognition, the Association, particularly, its aforementioned
acquiescence in or conformity with the provisions of the president whose honesty and integrity are
aforementioned Constitution, or its alleged ratification. unquestionable were present at the deliberations in
Congress when the same approved the proposed
For the same reasons, especially because of legislation, would the enrolled bill rule apply thereto?
Proclamation No. 1081, placing the entire Philippines Surely, the answer would have to be in the negative.
under Martial Law, neither am I prepared to declare Why? Simply, because said Association President has
that the people's inaction as regards Proclamation No. absolutely no official authority to perform in connection
1102, and their compliance with a number of therewith, and, hence, his certification is, legally, as
Presidential orders, decrees and/or instructions some good as non-existent.
or many of which have admittedly had salutary effects
issued subsequently thereto amounts, constitutes or Similarly, a certification, if any, of the Secretary of the
attests to a ratification, adoption or approval of said Department of Local Governments and Community
Proclamation No. 1102. In the words of the Chief Development about the tabulated results of the voting
Executive, "martial law connotes power of the gun, in the Citizens' Assemblies allegedly held all over the
meant coercion by the military, and compulsion and Philippines and the records do not show that any such
intimidation." 83 The failure to use the gun against certification, either to the President of the Philippines
those who comply with the orders of the party wielding or to the President of the Federation or National
the weapon does not detract from the intimidation that Association of presidents of Provincial Associations of
Martial Law necessarily connotes. It may reflect the presidents of municipal associations of presidents of
good, reasonable and wholesome attitude of the barrio or ward assemblies of citizens would not, legally
person who has the gun, either pointed at others, and constitutionally, be worth the paper on which it is
without pulling the trigger, or merely kept in its holster, written. Why? Because said Department Secretary is
but not without warning that he may or would use it if not the officer designated by law to superintend
he deemed it necessary. Still, the intimidation is there, plebiscites or elections held for the ratification or
and inaction or obedience of the people, under these rejection of a proposed amendment or revision of the
conditions, is not necessarily an act of conformity or Constitution and, hence, to tabulate the results thereof.
acquiescence. This is specially so when we consider Worse still, it is the officer or department which,
that the masses are, by and large, unfamiliar with the according to Article X of the 1935 Constitution, should
parliamentary system, the new form of government not and must not be allowed to participate in said
introduced in the proposed Constitution, with the plebiscite if plebiscite there was.
particularity that it is not even identical to that existing
in England and other parts of the world, and that even After citing approvingly its ruling in United States v.
experienced lawyers and social scientists find it difficult Sandoval, 84 the Highest Court of the United States
to grasp the full implications of some provisions declared that courts "will not stand impotent before an
incorporated therein. obvious instance of a manifestly unauthorized exercise
of power." 85
As regards the applicability to these cases of the
"enrolled bill" rule, it is well to remember that the same I cannot honestly say, therefore, that the people have
refers to a document certified to the President or his impliedly or expressly indicated their conformity to the
action under the Constitution by the Senate President proposed Constitution.
and the Speaker of the House of Representatives, and
attested to by the Secretary of the Senate and the VI
Secretary of the House of Representatives, concerning
legislative measures approved by the two Houses of Are the Parties entitled to any relief?
Congress. The argument of the Solicitor General is,

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Before attempting to answer this question, a few words support of their respective contentions, or as required
must be said about the procedure followed in these five by the Court. The arguments, oral and written,
(5) cases. In this connection, it should be noted that the submitted have been so extensive and exhaustive, and
Court has not as yet decided whether or not to give due the documents filed in support thereof so numerous
course to the petitions herein or to require the and bulky, that, for all intents and purposes, the
respondents to answer thereto. Instead, it has required situation is as if disregarding forms the petitions had
the respondents to comment on the respective been given due course and the cases had been
petitions with three (3) members of the Court voting to submitted for decision.
dismiss them outright and then considered the
comments thus submitted by the respondents as Accordingly, the majority of the members of the Court
motions to dismiss, as well as set the same for hearing. believe that they should express their views on the
This was due to the transcendental nature of the main aforementioned issues as if the same were being
issue raised, the necessity of deciding the same with decided on the merits, and they have done so in their
utmost dispatch, and the main defense set up by individual opinions attached hereto. Hence, the resume
respondents herein, namely, the alleged political of the votes east and the tenor of the resolution, in the
nature of said issue, placing the same, according to last pages hereof, despite the fact that technically the
respondents, beyond the ambit of judicial inquiry and Court has not, as yet, formally given due course to the
determination. If this defense was sustained, the cases petitions herein.
could readily be dismissed; but, owing to the
importance of the questions involved, a reasoned And, now, here are my views on the reliefs sought by
resolution was demanded by public interest. At the the parties.
same time, respondents had cautioned against a
judicial inquiry into the merits of the issues posed on In L-36165, it is clear that we should not issue the writ
account of the magnitude of the evil consequences, it of mandamus prayed for against Gil J. Puyat and Jose
was claimed, which would result from a decision Roy, as President and President Pro Tempore
thereon, if adverse to the Government. respectively of the Senate, it being settled in our
jurisdiction, based upon the theory of separation of
As a matter of fact, some of those issues had been powers, that the judiciary will not issue such writ to the
raised in the plebiscite cases, which were dismissed as head of a co-equal department, like the
moot and academic, owing to the issuance of aforementioned officers of the Senate.
Proclamation No. 1102 subsequently to the filing of
said cases, although before the rendition of judgment In all other respects and with regard to the other
therein. Still one of the members of the Court (Justice respondents in said case, as well as in eases L-36142,
Zaldivar) was of the opinion that the aforementioned L-36164, L-36236 and L-36283, my vote is that the
issues should be settled in said cases, and he, petitions therein should be given due course, there
accordingly, filed an opinion passing upon the merits being more than prima facie showing that the proposed
thereof. On the other hand, three (3) members of the Constitution has not been ratified in accordance with
Court Justices Barredo, Antonio and Esguerra filed Article XV of the 1935 Constitution, either strictly, or
separate opinions favorable to the respondents in the substantially, or has been acquiesced in by the people
plebiscite cases, Justice Barredo holding "that the or a majority thereof; that said proposed Constitution is
1935 Constitution has pro tanto passed into history and not in force and effect; and that the 1935 Constitution
has been legitimately supplanted by the Constitution in is still the Fundamental Law of the Land, without
force by virtue of Proclamation 1102." 86 When the prejudice to the submission of said proposed
petitions at bar were filed, the same three (3) members Constitution to the people at a plebiscite for its
of the Court, consequently, voted for the dismissal of ratification or rejection in accordance with Articles V, X
said petitions. The majority of the members of the Court and XV of the 1935 Constitution and the provisions of
did not share, however, either view, believing that the the Revised Election Code in force at the time of such
main question that arose before the rendition of said plebiscite.
judgment had not been sufficiently discussed and
argued as the nature and importance thereof Perhaps others would feel that my position in these
demanded. cases overlooks what they might consider to be the
demands of "judicial statesmanship," whatever may be
The parties in the cases at bar were accordingly given the meaning of such phrase. I am aware of this
every possible opportunity to do so and to elucidate on possibility, if not probability; but "judicial
and discuss said question. Thus, apart from hearing statesmanship," though consistent with Rule of Law,
the parties in oral argument for five (5) consecutive cannot prevail over the latter. Among consistent ends
days morning and afternoon, or a total of exactly 26 or consistent values, there always is a hierarchy, a rule
hours and 31 minutes their respective counsel filed of priority.
extensive notes on their oral arguments, as well as on
such additional arguments as they wished to submit, We must realize that the New Society has many
and reply notes or memoranda, in addition to rejoinders achievements which would have been very difficult, if
thereto, aside from a sizeable number of documents in not impossible, to accomplish under the old

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dispensation. But, in and for the judiciary, Justice Barredo qualified his vote, stating that
statesmanship should not prevail over the Rule of Law. "inasmuch as it is claimed that there has been approval
Indeed, the primacy of the law or of the Rule of Law by the people, the Court may inquire into the question
and faithful adherence thereto are basic, fundamental of whether or not there has actually been such an
and essential parts of statesmanship itself. approval, and, in the affirmative, the Court should keep
its hands-off out of respect to the people's will, but, in
Resume of the Votes Cast and the Court's Resolution the negative, the Court may determine from both
factual and legal angles whether or not Article XV of
As earlier stated, after the submittal by the members of the 1935 Constitution has been complied with."
the Court of their individual opinions and/or Justices Makasiar, Antonio and Esguerra, or three (3)
concurrences as appended hereto, the writer will now members of the Court hold that the issue is political and
make, with the concurrence of his colleagues, a "beyond the ambit of judicial inquiry."
resume or summary of the votes cast by each of them.
2. On the second question of validity of the ratification,
It should be stated that by virtue of the various Justices Makalintal, Zaldivar, Castro, Fernando,
approaches and views expressed during the Teehankee and myself, or six (6) members of the Court
deliberations, it was agreed to synthesize the basic also hold that the Constitution proposed by the 1971
issues at bar in broad general terms in five questions Constitutional Convention was not validly ratified in
for purposes of taking the votes. It was further agreed accordance with Article XV, section 1 of the 1935
of course that each member of the Court would Constitution, which provides only one way for
expound in his individual opinion and/or concurrence ratification, i.e., "in an election or plebiscite held in
his own approach to the stated issues and deal with accordance with law and participated in only by
them and state (or not) his opinion thereon singly or qualified and duly registered voters." 87
jointly and with such priority, qualifications and
modifications as he may deem proper, as well as Justice Barredo qualified his vote, stating that "(A)s to
discuss thereon other related issues which he may whether or not the 1973 Constitution has been validly
consider vital and relevant to the cases at bar. ratified pursuant to Article XV, I still maintain that in the
light of traditional concepts regarding the meaning and
The five questions thus agreed upon as reflecting the intent of said Article, the referendum in the Citizens'
basic issues herein involved are the following: Assemblies, specially in the manner the votes therein
were cast, reported and canvassed, falls short of the
1. Is the issue of the validity of Proclamation No. 1102 requirements thereof. In view, however, of the fact that
a justiciable, or political and therefore non-justiciable, I have no means of refusing to recognize as a judge
question? that factually there was voting and that the majority of
the votes were for considering as approved the 1973
2. Has the Constitution proposed by the 1971 Constitution without the necessity of the usual form of
Constitutional Convention been ratified validly (with plebiscite followed in past ratifications, I am
substantial, if not strict, compliance) conformably to the constrained to hold that, in the political sense, if not in
applicable constitutional and statutory provisions? the orthodox legal sense, the people may be deemed
to have cast their favorable votes in the belief that in
3. Has the aforementioned proposed Constitution been doing so they did the part required of them by Article
acquiesced in (with or without valid ratification) by the XV, hence, it may be said that in its political aspect,
people? which is what counts most, after all, said Article has
been substantially complied with, and, in effect, the
4. Are petitioners entitled to relief? and 1973 Constitution has been constitutionally ratified."

5. Is the aforementioned proposed Constitution in Justices Makasiar, Antonio and Esguerra, or three (3)
force? members of the Court hold that under their view there
has been in effect substantial compliance with the
The results of the voting, premised on the individual constitutional requirements for valid ratification.
views expressed by the members of the Court in their
respective opinions and/or concurrences, are as 3. On the third question of acquiescence by the Filipino
follows: people in the aforementioned proposed Constitution,
no majority vote has been reached by the Court.
1. On the first issue involving the political-question
doctrine, Justices Makalintal, Zaldivar, Castro, Four (4) of its members, namely, Justices Barredo,
Fernando, Teehankee and myself, or six (6) members Makasiar, Antonio and Esguerra hold that "the people
of the Court, hold that the issue of the validity of have already accepted the 1973 Constitution." 88
Proclamation No. 1102 presents a justiciable and non-
political question. Justices Makalintal and Castro did Two (2) members of the Court, namely, Justice
not vote squarely on this question, but, only Zaldivar and myself hold that there can be no free
inferentially, in their discussion of the second question. expression, and there has even been no expression,

195
by the people qualified to vote all over the Philippines,
of their acceptance or repudiation of the proposed ACCORDINGLY, by virtue of the majority of six (6)
Constitution under Martial Law. Justice Fernando votes of Justices Makalintal, Castro, Barredo,
states that "(I)f it is conceded that the doctrine stated in Makasiar, Antonio and Esguerra with the four (4)
some American decisions to the effect that dissenting votes of the Chief Justice and Justices
independently of the validity of the ratification, a new Zaldivar, Fernando and Teehankee, all the
Constitution once accepted or acquiesced in by the aforementioned cases are hereby dismissed. This
people must be accorded recognition by the Court, I being the vote of the majority, there is no further judicial
am not at this stage prepared to state that such obstacle to the new Constitution being considered in
doctrine calls for application in view of the shortness of force and effect.
time that has elapsed and the difficulty of ascertaining
what is the mind of the people in the absence of the It is so ordered.
freedom of debate that is a concomitant feature of
martial law." Makalintal, Castro, Barredo, Makasiar, Antonio and
Esguerra, JJ., concur. Concepcion, C.J., dissents.
Three (3) members of the Court express their lack of
knowledge and/or competence to rule on the question. Zaldivar, J., dissents in line with the personal opinion
Justices Makalintal and Castro are joined by Justice of the Chief Justice, and also dissents in a separate
Teehankee in their statement that "Under a regime of opinion.
martial law, with the free expression of opinions
through the usual media vehicles restricted, (they) Fernando, J., dissents in conformity with the personal
have no means of knowing, to the point of judicial views of the Chief Justice, except as to such portions
certainty, whether the people have accepted the thereof on which he expresses his own thoughts as set
Constitution." 89 forth in his dissenting opinion.

4. On the fourth question of relief, six (6) members of Teehankee, J., dissents in conformity with the Chief
the Court, namely, Justices Makalintal, Castro, Justice's personal opinion and files a separate dissent.
Barredo, Makasiar, Antonio and Esguerra voted to
DISMISS the petition. Justices Makalintal and Castro ANNEX A PERTINENT PORTIONS OF THE
so voted on the strength of their view that "(T)he MINNESSOTA SUPREME COURT DECISION ON
effectivity of the said Constitution, in the final analysis, THE CASE IN RE McCONAUGHY
is the basic and ultimate question posed by these
cases to resolve which considerations other than "(a) An examination of the decisions shows that the
judicial, and therefore beyond the competence of this courts have almost uniformly exercised the authority to
Court, 90 are relevant and unavoidable." 91 determine the validity of the proposal, submission, or
ratification of constitutional amendments. It has been
Four (4) members of the Court, namely, Justices judicially determined whether a proposed amendment
Zaldivar, Fernando, Teehankee and myself voted to received the constitutional majority of votes (Dayton v.
deny respondents' motion to dismiss and to give due St. Paul, 22 Minn. 400; Rice v. Palmer, 78 Ark. 432, 96
course to the petitions. S.W. 396; Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744,
881, 45 L.R.A. 251; State v. Foraker, 46 Ohio St. 677,
5. On the fifth question of whether the new Constitution 23 N.E. 491; 6 L.R.A. 422; Tecumseh National Bank v.
of 1973 is in force: Saunders, 51 Neb. 801, 71 N.W. 779; Green v. State
Board, 5 Idaho, 130, 47 Pac. 259, 95 Am. St. Rep. 169;
Four (4) members of the Court, namely, Justices In re Denny, 156 Ind. 104, 59 N.E. 359, 51 L.R.A. 722;
Barredo, Makasiar, Antonio and Esguerra hold that it is Knight v. Shelton [C.C.] 134 Fed. 423); whether a
in force by virtue of the people's acceptance thereof; proposed amendment is a single amendment, within
the constitutional requirement that every amendment
Four (4) members of the Court, namely, Justices must be separately submitted (State v. Powell, 77
Makalintal, Castro, Fernando and Teehankee cast no Miss. 543, 27 South. 927; Gabbert v. Chicago, etc., R.
vote thereon on the premise stated in their votes on the Co., 171 Mo. 84, 70 S.W. 891; State v. Timme, 54 Wis.
third question that they could not state with judicial 318,11 N.W. 785; In re Denny, 156 Ind. 104, 59 N.E.
certainty whether the people have accepted or not 359, 51 L.R.A. 722; Lobaugh v. Cook, 127 Iowa,
accepted the Constitution; and 181,102 N.W. 1121; People v. Sours, 31 Colo. 369, 74
Pac. 167,102 Am. St. Rep. 34; State v. Board, 34 Mont.
Two (2) members of the Court, namely, Justice 426, 87 Pac. 450; State v. Winnett [Neb.] 110 N.W.
Zaldivar and myself voted that the Constitution 1113, 10 L.R.A. [N.S.] 149); whether the failure to enter
proposed by the 1971 Constitutional Convention is not the resolution of submission upon the legislative
in force; journals invalidates the amendment (Koehler v. Hill, 60
Iowa, 543, 14 N.W. 738,15 N.W. 609; Oakland Paving
with the result that there are not enough votes to Co. v. Hilton, 69 Cal. 479,11 Pac. 3; West v. State, 50
declare that the new Constitution is not in force. Fla. 154, 39 South. 412; Durfee v. Harper, 22 Mont.

196
354, 56 Pac. 582; State v. Tufly, 19 Nev. 391, 12 Pac. been said,' says the court,' that certain acts are to be
835, 3 Am. St. Rep. 895); whether the description of done, certain requisitions are to be observed, before a
the amendment and the form of the ballot are sufficient change can be effected; but to what purpose are these
(Rugsell v. Croy, 164 Mo. 69, 63 S.W. 849; State v. acts required, or these requisitions enjoined, if the
Winnett [ Neb.] 110 N.W. 1113, 10 L.R.A. [N.S.] 149; Legislature or any other department of the government
Murphy Chair Co. v. Attorney General [Mich.] 112 N.W. can dispense with them. To do so would be to violate
127); whether the method of submission is sufficient the instrument which they are sworn to support; and
(Lovett v. Ferguson, 10 S.D. 44, 71 N.W. 765; Russell every principle of public law and sound constitutional
v. Croy, 164 Mo. 69, 63 S.W. 849); whether the policy requires the court to pronounce against every
publication of the amendment or of a notice relative to amendment which is shown not to have been made in
it is sufficient (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, accordance with the rules prescribed by the
50 L.R.A. 568; Russell v. Croy, 164 Mo. 69, 63 S.W. fundamental law.'
849); whether the submission may be as well by
resolution as by a legislative act approved by the "In State v. Swift, 69 Ind. 505, it was said that: 'The
executive (Com. v. Griest, 196 Pa. 396, 46 Atl. 505, 50 people of a state may form an original Constitution, or
L.R.A. 568; Warfield v. Vandiver, 101 Md. 78, 60 Atl. abrogate an old one and form a new one, at any time,
538; Edward v. Lesueur, 132 Mo. 410, 33 S.W. 1130, without any political restriction, except the Constitution
31 L.R.A. 815; Hays v. Hays, 5 Idaho, 154, 47 Pac. of the United States; but if they undertake to add an
732; State v. Dahl, 6 N.D. 81, 68 N.W. 418, 34 L.R.A. amendment, by the authority of legislation to a
97); at what election the amendment must be Constitution already in existence, they can do it only by
submitted (People v. Curry, 130 Cal. 82, 62 Pac. 516). the method pointed out by the Constitution to which the
amendment is added. The power to amend a
"In Rich v. Board of Canvassers, 100 Mich. 458, 59 Constitution by legislative action does not confer the
N.W. 183, the court said: 'It is contended that the power to break it, any more than it confers the power
determination of the question whether an amendment to legislate on any other subject contrary to its
to the Constitution has been carried involves the prohibitions.' So, in State v. Timme, 54 Wis. 318, 11
exercise of political, and not judicial, power. If this be N.W. 785, it was held that no amendments can be
so, it follows that the promulgation of any purported made to the Constitution of the state without a
amendment by the executive or any executive compliance with the provisions thereof, both in the
department is final, and that the action cannot be passage of such amendment by the Legislature and
questioned by the judiciary; but, with reference to the the manner of submitting it to the people. The courts
conditions precedent to submitting a proposed have not all agreed as to the strictness of compliance
amendment to a vote of the people, it has been which should be required.
repeatedly held, by courts of the highest respectability,
that it is within the power of the judiciary to inquire into "In the Prohibition and Amendment Case, 24 Kan. 100,
the question, even in a collateral proceeding. . . . It is the court determined judicially whether an amendment
to be noted that under section 1 of article 20 of the to the Constitution had been legally adopted. After
Constitution of the state no amendment can become a approving the statement quoted from Collier v.
part of the Constitution until ratified by a vote of the Frierson, supra, that 'we entertain no doubt that, to
people. One prerequisite is equally as essential as the change the Constitution in any other mode than by a
other. The amendment must first receive the requisite convention, every requisite which is demanded by the
majority in the Legislature, and afterwards be adopted instrument itself must be observed, and the omission
by the requisite vote . . . It is the fact of a majority vote of any one is fatal to the amendment,' the court held
which makes the amendment a part of the that, 'as substance of right is grander and more potent
Constitution.' than methods of form,' there had been substantial
compliance with the constitutional requirement that a
"In considering the cases it is necessary to note proposed amendment to the Constitution must be
whether in the particular case the court was called entered at length on the legislative journal. It appears
upon to determine between rival governments, or that the joint resolution making a submission simply
whether the Legislature, or some board or official, had provided that a proposition should be submitted to the
legally performed the duty imposed by the Constitution electors at the general election of 1880. It did not
or statutes. In re State v. McBride, 4 Mo. 303, 29 Am. declare that the machinery of the general election law
Dec. 636, it was held that the General Assembly, under should control, or that any particular officers or board
the power granted by the Constitution, could change would receive, count, or canvass the votes cast. But
the Constitution only in the manner prescribed by it, the existing election machinery was adequate, and the
and that it was the duty of the court to determine votes were received, counted, and canvassed, and the
whether all prerequisites had been complied with. In result declared as fully as though it had been in terms
Collier v. Frierson, 24 Ala. 100, it was held that a so ordered. These methods had been followed in the
Constitution can be changed only by the people in adoption of previous amendments, and it was held that,
convention or in a mode described by the Constitution conceding the irregularity of the proceedings of the
itself, and that if the latter mode is adopted every Legislature and the doubtful scope of the provisions for
requisite of the Constitution must be observed. 'It has the election, yet in view of the very uncertainty of such

197
provisions, the past legislative history of similar to that method; and it is the duty of the courts in a
propositions, the universal prior acquiescence in the proper case, when an amendment does not relate to
same forms of procedure, and the popular and their own power or functions, to inquire whether, in the
unchallenged acceptance of the legal pendency before adoption of the amendment, the provisions of the
the people of the question of the amendment for existing Constitution have been observed, and, if not,
decision, and in view of the duty cast upon the court of to declare the amendment invalid and of no force. This
taking judicial knowledge of anything affecting the case was followed in State v. Brookhart, 113 Iowa, 250,
existence and validity of any law or portion of the 84 N.W. 1064.
Constitution, it must be adjudged that the proposed
amendment became part of the Constitution. The effect "In University v. McIver, 72 N.C. ?6, the question
was to hold that a provision of the Constitution whether a proposed amendment to the Constitution
requiring the proposed amendment to be entered in full had been legally adopted was treated as a judicial
on the journals was directory, and not mandatory. This question. By the Constitution a proposed amendment
liberal view was approved in State v. Winnett (Neb.) was required to be approved by two Legislatures
110 N.W. 1113, 10 L.R.A. (N.S.) 149, and People v. before its submission to the people. In this instance a
Sours, 31 Colo. 369, 74 Pac. 167, 102 Am. St. Rep. 34. bill was passed which contained 17 amendments. The
But it has not been universally accepted. next Legislature rejected 9 and adopted 8 of these
amendments, and submitted them to the people. The
"In Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. majority of the people voted for their adoption; but it
3, the court, in commenting upon the Kansas case was contended that the Constitution contemplated and
said: 'The reasoning by which the learned court required that the same bill and the same amendments,
reached the conclusion it did is not based on any sound without change, should be approved by both
legal principles, but contrary to them. Neither the Legislatures, and that it did not follow that, because the
argument nor the conclusion can command our assent second Legislature adopted separately 8 out of the 17
or approval. The argument is illogical, and based on amendments adopted by the first Legislature, it would
premises which are without any sound foundation, and have adopted the 17, or any of them, if they had been
rests merely on assumption.' See, also, the well- voted upon by the second in the form adopted by the
considered case of Kadderly v. Portland, 44 Or. 118, first body. The substance of the contention was that
74 Pac. 710, 75 Pac. 222. All these cases concede the there had not been a concurrence of the two
jurisdiction of the court to determine whether, in Legislatures on the same amendments, according to
submitting a proposed amendment to the people, the the letter and spirit of the Constitution. The court held
Legislature legally observed the constitutional that the power of the Legislature in submitting
provisions as to the manner of procedure. In Livermore amendments could not be distinguished from the
v. Waite, 102 Cal. 113, 36 Pac. 424, 25 L.R.A. 312, the powers of the convention, and that, as the people had
court, at the instance of a citizen and a taxpayer, spoken and ratified the amendments, they became a
restrained the Secretary of State from taking steps to part of the Constitution.
submit to the people a proposed amendment to the
Constitution agreed to by the Legislature on the ground "In Westinghausen v. People, 44 Mich. 265, 6 N.W.
that the Legislature had not acted in conformity with the 641, it was held that prior to 1876 a proposed
Constitution and that the proposed amendment was of amendment to the Constitution could not be submitted
such a character that it could not properly become a to the people at any other than a general election; but,
part of the Constitution. The Supreme Court of as the amendment under consideration had been
Colorado, in People v Sours, supra, refused to exercise submitted after the Constitution had been changed, it
this authority. had been legally submitted and adopted.

"The entire question received elaborate consideration "In State v. Powell, 77 Miss. 543, 27 South. 927, the
in Koehler v. Hill, 60 Iowa, 543, 14 N.W. 738, 15 N.W. question whether an amendment to the Constitution
609. The amendment, which concededly had been had been legally submitted and adopted by the people
adopted by the people, had not, before its submission, was held to be judicial, and not political, in its nature.
been entered in full upon the legislative journals, as The amendment under consideration changed the
required by the Constitution, and it was held that this Constitution by providing for an elective, instead of an
was a material variance in both form and substance appointive, judiciary. It was contended that the
from the constitutional requirements, and that the amendments had been improperly submitted, and not
amendment did not, therefore, become a part of the adopted by a majority of the qualified voters voting at
Constitution. As to the claim that the question was the election, as required by the Constitution. The law
political, and not judicial, it was said that, while it is not did not direct how the result of the election should be
competent for courts to inquire into the validity of the determined. The Legislature by joint resolution recited
Constitution and the form of government under which that the election had been duly held throughout the
they themselves exist, and from which they derive their state, and, as it appeared from the returns made to the
powers, yet, where the existing Constitution prescribes Secretary of State, that 21,169 votes were cast in favor
a method for its own amendment, an amendment of, and 8,643 votes against, the amendment, it
thereto, to be valid, must be adopted in strict conformity resolved 'that said amendment be, and hereby is,

198
inserted into the Constitution of the state of Mississippi This board was to determine and declare which of the
as a part of the Constitution.' In fact, the amendment proposed amendments had been adopted and to
was not submitted in the manner prescribed by the deliver a statement of the results to the Secretary of
Constitution, and it did not receive a majority of all the State, and 'any proposed amendment, which by said
qualified voters voting at the election. It was argued certificate and determination of the board of
that the rules prescribed by the Constitution 'are all for canvassers shall appear to have received in its favor
the guidance of the Legislature, and from the very the majority of all the votes cast in the state for and
nature of the thing the Legislature must be the against said proposed amendment, shall from the time
exclusive judge of all questions to be measured or of filing such certificate be and become an amendment
determined by these rules. Whether the question be to and a part of the Constitution of the state; and it shall
political, and certainly a legislative one, or judicial, to be the duty of the Governor of the state forthwith, after
be determined by the courts, this section of rules, not such a determination, to issue a proclamation declaring
only of procedure, but of final judgment as well, which of the said proposed amendments have been
confides to the separate magistracy of the legislative adopted by the people.' This board was required to file
department full power to hear, consider, and adjudge a statement of the result of the election, and the
that question. The Legislature puts the question to the Governor to issue his proclamation declaring that the
qualified electors. The qualified electors answer back amendment had been adopted and become a part of
to the Legislature. "If it shall appear" to the Legislature the Constitution. At the instance of a taxpayer the
that its question has been answered in the affirmative, Supreme Court allowed a writ of certiorari to remove
the amendment is inserted and made a part of the into the court for review the statement of the results of
Constitution. The Governor and the courts have no the election made by the canvassing board, in order
authority to speak at any stage of the proceedings that it might be judicially determined whether on the
between the sovereign and the Legislature, and when facts shown in that statement the board had legally
the matter is thus concluded it is closed, and the determined that the proposed amendment had been
judiciary is as powerless to interfere as the executive.' adopted. The Supreme Court decided that the
But it was held that the question whether the concurrence of the board of state canvassers and the
proposition submitted to the voters constituted one, or executive department of the government in their
more than one, amendment, whether the submission respective official functions placed the subject-matter
was according to the requirements of the Constitution, beyond the cognizance of the judicial department of the
and whether the proposition was in fact adopted, were state. The Court of Appeals, after a full review of the
all judicial, and not political, questions. 'We do not,' said authorities, reversed this decision, and held that the
Chief Justice Whitfield, 'seek a jurisdiction not imposed questions were of a judicial nature, and properly
upon us by the Constitution. We could not, if we would, determinable by the court on their merits. Mr. Justice
escape the exercise of that jurisdiction which the Dixon, after stating the facts, said: 'It thus becomes
Constitution has imposed upon us. In the particular manifest that there was present in the Supreme Court,
instance in which we are now acting, our duty to know and is now pending in this court, every element tending
what the Constitution of the state is, and in accordance to maintain jurisdiction over the subject-matter, unless
with our oaths to support and maintain it in its integrity, it be true, as insisted, that the judicial department of the
imposed on us a most difficult and embarrassing duty, government has not the right to consider whether the
one which we have not sought, but one which, like all legislative department and its agencies have observed
others, must be discharged.' constitutional injunctions in attempting to amend the
Constitution, and to annul their acts in case that they
"In Bott v. Wurtz, 63 N.J. Law, 289, 43 Atl. 744, 881, 46 have not done so. That such a proposition is not true
L.R.A. 251, it was held that it was the duty of the judicial seems to be indicated by the whole history of
department of the government to determine whether jurisprudence in this country.' The court, after
the legislative department or its officers had observed considering the case on the merits, held that the proper
the constitutional injunctions in attempting to amend conclusion had been drawn therefrom, and that the
the Constitution, and to annul their acts if they had not amendment in question was legally submitted and
done so. The case is an interesting and well- adopted.
considered one. The Constitution provided the manner
in which proposed amendments should be submitted "The recent case of Rice v. Palmer, 78 Ark. 432, 96
to the people, but did not provide a method for S.W. 396, presented the identical question which we
canvassing the votes. The Legislature, having agreed have under consideration. In reference to the
to certain proposed amendments, passed an act for contention that the Constitution intended to delegate to
submitting the same to the people. This statute the Speaker of the House of Representatives the
provided for the transmission to the Secretary of State power to determine whether an amendment had been
of certificates showing the result of the voting adopted, and that the question was political, and not
throughout the state, and made it the duty of the judicial, the court observed: 'The argument has often
Governor at the designated time to summon four or been made in similar cases to the courts, and it is found
more Senators, who, with the Governor, should in many dissenting opinions; but, with probably a few
constitute a board of state canvassers to canvass and exceptions, it is not found in any prevailing opinion.'
estimate the votes for and against each amendment.

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"In State v. Tooker, 15 Mont. 8, 37 Pac. 840, 25 L.R.A. The Secretary of the Department of Local Government
560, it was held that the constitutional requirement of and Community Development shall insure the
publication of a proposed constitutional provision for implementation of this Order.
three months prior to the election at which it is to be
submitted to the people is mandatory and that Done in the City of Manila, this 7th day of January in
noncompliance therewith renders the adoption of an the year of Our Lord, nineteen hundred and seventy-
amendment of no effect." three.

ANNEX B (SGD.) FERDINAND E. MARCOS

MALACANANG By the President:
MANILA (SGD.) ALEJANDRO MELCHOR
BY THE PRESIDENT OF THE PHILIPPINES Executive Secretary
PRESIDENTIAL DECREE NO. 86-B ____________________________
MAKALINTAL and CASTRO, JJ.:
Defining Further the Role of Barangays (Citizens
Assemblies) The preliminary question before this Court was
whether or not the petitioners had made out a sufficient
WHEREAS, since their creation pursuant to prima facie case in their petitions to justify their being
Presidential Decree No. 86 dated December 31, 1972, given due course. Considering on the one hand the
the Barangays (Citizens Assemblies) have petitioned urgency of the matter and on the other hand its
the Office of the President to submit to them for transcendental importance, which suggested the need
resolution important national issues; for hearing the side of the respondents before that
preliminary question was resolved, We required them
to submit their comments on the petitions. After the
comments were filed We considered them as motions
to dismiss so that they could be orally argued. As it
turned out, the hearing lasted five days, morning and
afternoon, and could not have been more exhaustive if
WHEREAS, one of the questions persistently the petitions had been given due course from the
mentioned refers to the ratification of the Constitution beginning.
proposed by the 1971 Constitutional Convention;
The major thrust of the petitions is that the act of the
Citizens Assemblies as certified and proclaimed by the
President on January 17, 1973 (Proclamation No 1102)
was not an act of ratification, let alone a valid one, of
the proposed Constitution, because it was not in
accordance with the existing Constitution (of 1935) and
the Election Code of 1971. Other grounds are relied
upon by the petitioners in support of their basic
WHEREAS, on the basis of the said petitions, it is proposition, but to our mind they are merely
evident that the people believe that the submission of subordinate and peripheral.
the proposed Constitution to the Citizens Assemblies
or Barangays should be taken as a plebiscite in itself in Article XV, Section 1, of the 1935 Constitution provides
view of the fact that freedom of debate has always that amendments (proposed either by Congress in joint
been limited to the leadership in political, economic and session or by a Convention called by it for the purpose)
social fields, and that it is now necessary to bring this "shall be valid as part of this Constitution when
down to the level of the people themselves through the approved by a majority of the votes cast at an election
Barangays or Citizens Assemblies; at which the amendments are submitted to the people
for their ratification." At the time that Constitution was
NOW, THEREFORE, I, FERDINAND E. MARCOS, approved by the Constitutional Convention on
President of the Philippines, by virtue of the powers in February 8, 1935, and ratified in a plebiscite held on
me vested by the Constitution, do hereby order that the following May 14, the word "election" had already a
important national issues shall from time to time be definite meaning in our law and jurisprudence. It was
referred to the Barangays (Citizens Assemblies) for not a vague and amorphous concept, but a procedure
resolution in accordance with Presidential Decree No. prescribed by statute for ascertaining the people's
86-A dated January 5, 1973 and that the initial choices among candidates for public offices, or their
referendum shall include the matter of ratification of the will on important matters submitted to them, pursuant
Constitution proposed by the 1971 Constitutional to law, for approval. It was in this sense that the word
Convention. was used by the framers in Article XV (also in Articles
VI and VII), and in accordance with such procedure
that plebiscites were held to ratify the very same
Constitution in 1935 as well as the subsequent

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amendments thereto, thus: in 1939 (Ordinance
appended to the Constitution); 1940 (establishment of
a bicameral legislature; eligibility of the President and
the Vice President for re election: creation of the
Commission of Elections); 1947 (Parity Amendment);
and 1967 (increase in membership of the House of "Sec. 16. This Constitution shall take effect
Representatives and eligibility of members of immediately upon its ratification by a majority of the
Congress to run for the Constitutional Convention votes cast in a plebiscite called for the purpose and,
without forfeiture of their offices). except as herein provided, shall supersede the
Constitution of nineteen hundred and thirty-five and all
The Election Code of 1971, in its Section 2, states that amendments thereto."
"all elections of public officers except barrio officials
and plebiscites shall be conducted in the manner The same procedure is prescribed in Article XVI,
provided by this Code." This is a statutory requirement Section 2, for the ratification of any future amendment
designed, as were the other election laws previously in to or revision of the said Constitution.
force, to carry out the constitutional mandate relative to
the exercise of the right of suffrage, and with specific
reference to the term "plebiscites," the provision of
Article XV regarding ratification of constitutional
amendments.
(3) After the draft Constitution was approved by the
The manner of conducting elections and plebiscites Constitutional Convention on November 30, 1972 the
provided by the Code is spelled out in other sections said body adopted Resolution No. 5843, proposing "to
thereof. Section 99 requires that qualified voters be President Ferdinand E. Marcos that a decree be issued
registered in a permanent list, the qualifications being calling a plebiscite for the ratification of the proposed
those set forth in Article V, Section 1, of the 1935 New Constitution on such appropriate date as he shall
Constitution on the basis of age (21), literacy and determine and providing for the necessary funds
residence. These qualifications are reiterated in therefor." Pursuant to said Resolution the President
Section 101 of the Election Code. Section 102 issued Decree No. 73 on the same day, calling a
enumerates the classes of persons disqualified to vote. plebiscite to be held on January 15, 1973, at which the
Succeeding sections prescribe the election proposed Constitution "shall be submitted to the people
paraphernalia to be used, the procedure for registering for ratification or rejection." The Decree had eighteen
voters, the records of registration and the custody (18) sections in all, prescribing in detail the different
thereof, the description and printing of official ballots, steps to be taken to carry out the process of ratification,
the actual casting of votes and their subsequent such as: (a) publication of the proposed Constitution in
counting by the boards of inspectors, the rules for English and Pilipino; (b) freedom of information and
appreciation of ballots, and then the canvass and discussion; (c) registration of voters: (d) appointment of
proclamation of the results. boards of election inspectors and designation of
watchers in each precinct; (e) printing of official ballots;
With specific reference to the ratification of the 1972 (f) manner of voting to insure freedom and secrecy
draft Constitution, several additional circumstances thereof; (g) canvass of plebiscite returns; and (h) in
should be considered: general, compliance with the provisions of the Election
Code of 1971, with the Commission on Elections
(1) This draft was prepared and approved by a exercising its constitutional and statutory powers of
Convention which had been convened pursuant to supervision of the entire process.
Resolution No. 2 passed by Congress on March 16,
1967, which provides:

There can hardly be any doubt that in everybody's view

"Sec. 7. The amendments proposed by the Convention - from the framers of the 1935 Constitution through all
shall be valid and considered part of the Constitution the Congresses since then to the 1971 Constitutional
when approved by a majority of the votes cast in an Convention - amendments to the Constitution should
election at which they are submitted to the people for be ratified in only one way, that is, in an election or
their ratification pursuant to Article XV of the plebiscite held in accordance with law and participated
Constitution." in only by qualified and duly registered voters. Indeed,
so concerned was this Court with the importance and
indispensability of complying with the mandate of the
(1935) Constitution in this respect that in the recent
(2) Article XVII, Section 16, of the draft itself states: case of Tolentino vs. Commission on Elections, No. L-
34150, October 16, 1971 (41 SCRA 702), a resolution

201
of the (1971) Constitutional Convention submitting a draft Constitution, and that he was considering two new
proposed amendment for ratification to a plebiscite to dates for the purpose February 19 or March 5; that he
be held in November 1971 was declared null and void. had ordered that the registration of voters (pursuant to
The amendment sought to reduce the voting age from Decree No. 73) be extended to accommodate new
twenty-one to eighteen years and was approved by the voters; and that copies of the new Constitution would
Convention for submission to a plebiscite ahead of and be distributed in eight dialects to the people. (Bulletin
separately from other amendments still being or to be Today, December 24, 1972.)
considered by it, so as to enable the youth to be thus
enfranchised to participate in the plebiscite for the On January 10, 1973 it was reported that one more
ratification of such other amendments later. This Court question would be added to the original four which
held that such separate submission was violative of were to be submitted to the Citizens Assemblies. The
Article XV, Section 1, of the Constitution, which question concerning the plebiscite was reworded as
contemplated that "all the amendments to be proposed follows: "Do yon like the plebiscite to be held later?"
by the same Convention must be submitted to the The implication, it may likewise be noted, was that the
people in a single 'election' or plebiscite." * Thus a Assemblies should express their views as to when the
grammatical construction based on a singular, instead plebiscite should be held, not as to whether or not it
of plural, rendition of the word "election" was should be held at all.
considered a sufficient ground to rule out the plebiscite
which had been called to ratify a proposed amendment The next day, January 11, it was reported that six
in accordance with the procedure and under all the additional questions would be submitted, namely:
safeguards provided in the Election Law.
"(1) Do you approve of the citizens assemblies as the
In the cases now before Us what is at issue is not base of popular government to decide issues of
merely the ratification of just one amendment, as in national interest?
Tolentino vs. COMELEC, but the ratification of an
entire charter setting up a new form of government; and "(2) Do you approve of the new Constitution?
the issue has arisen not because of a disputed
construction of one word or one provision in the 1935 "(3) Do you want a plebiscite to be called to ratify the
Constitution but because no election or plebiscite in new Constitution?
accordance with that Constitution and with the Election
Code of 1971 was held for the purpose of such "(4) Do you want the elections to be held in November,
ratification. 1973 in accordance with the provisions of the 1935
Constitution?
The Citizens Assemblies which purportedly ratified the
draft Constitution were created by Presidential Decree "(5) If the elections would not be held, when do you
No. 86 dated December 31, 1972, "to broaden the base want the next elections to be called?
of citizen participation in the democratic process and to
afford ample opportunities for the citizenry to express "(6) Do you want martial law to continue?"
their views on important national issues." The
Assemblies "shall consist of all persons who are Appended to the six additional questions above quoted
residents of the barrio, district or ward for at least six were the suggested answers, thus:
months, fifteen years of age or over, citizens of the
Philippines and who are registered in the lists of Citizen "COMMENTS ON
Assembly members kept by the barrio, district or ward
secretary." By Presidential Decree No. 86-A, dated QUESTION No. 1
January 5, 1973, the Assemblies were convened for a
referendum between January 10 and 15, to "consider In order to broaden the base of citizens' participation in
vital national issues now confronting the country, like government.
the holding of the plebiscite on the new Constitution,
the continuation of martial rule, the convening of QUESTION No. 2
Congress on January 22, 1973, and the holding of
elections in November 1973." But we do not want the Ad Interim Assembly to be
convoked. Or if it is to be convened at all, it should not
On January 5, 1973 the newspapers came out with a be done so until after at least seven (7) years from the
list of four questions to be submitted to the Citizens approval of the New Constitution by the Citizens
Assemblies, the fourth one being as follows: "How Assemblies.
soon would you like the plebiscite on the new
Constitution to be held?" It should be noted in this QUESTION No. 3
connection that the President had previously
announced that he had ordered the postponement of If the Citizens Assemblies approve of the New
the plebiscite which he had called for January 15, 1973 Constitution, then the new Constitution should be
(Presidential Decree No. 73) for the ratification of the deemed ratified.

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 therefore observed. No set of rules for counting the
The vote of the Citizens Assemblies should already be votes or of tabulating them and reporting the figures
considered the plebiscite on the New Constitution. was prescribed or followed. The Commission on
Elections, which is the constitutional body charged with
QUESTION No. 4 the enforcement and administration of all laws relative
to the conduct of elections, took no part at all, either by
We are sick and tired of too frequent elections. We are way of supervision or in the assessment of the results.
fed up with politics, of so many debates and so much
expenses. It has been suggested that since according to
Proclamation No. 1102 the overwhelming majority of all
QUESTION No. 5 the members of the Citizens Assemblies had voted for
the adoption of the proposed Constitution there was a
Probably a period of at least seven (7) years substantial compliance with Article XV, Section 1, of
moratorium on elections will be enough for stability to the 1935 Constitution and with the Election Code of
be established in the country, for reforms to take root 1971. The suggestion misses the point entirely. It is of
and normalcy to return. the essence of a valid exercise of the right of suffrage
that not only must a majority or plurality of the voters
QUESTION No. 6 carry the day but that the same must be duly
ascertained in accordance with the procedure
We want President Marcos to continue with Martial prescribed by law. In other words the very existence of
Law. We want him to exercise his powers with more such majority or plurality depends upon the manner of
authority. We want him to he strong and firm so that he its ascertainment, and to conclude that it exists even if
can accomplish all his reform program and establish it has not been ascertained according to law is simply
normalcy in the country. If all other measures fail, we to beg the issue, or to assume the very fact to be
want President Marcos to declare a revolutionary established. Otherwise no election or plebiscite could
government along the lines of the new Constitution be questioned for non-compliance with the provisions
without the ad interim Assembly." of the Election Law as long as it is certified that a
majority of the citizens had voted favorably or
So it was that on January 11, 1973, the second day of adversely on whatever it was that was submitted to
the purported referendum, the suggestion was them to vote upon.
broached, for the first time, that the plebiscite should
be done away with and a favorable vote by the However, a finding that the ratification of the draft
Assemblies deemed equivalent to ratification. This was Constitution by the Citizens Assemblies, as certified by
done, not in the questionnaire itself, but in the the President in Proclamation No. 1102, was not in
suggested answer to question No. 3. Strangely, accordance with the constitutional and statutory
however, it was not similarly suggested that an procedure laid down for the purpose does not quite
unfavorable vote be considered as rejection. resolve the questions raised in these cases. Such a
finding, in our opinion, is on a matter which is
There should be no serious dispute as to the fact that essentially justiciable, that is, within the power of this
the manner in which the voting was conducted in the Court to inquire into. It imports nothing more than a
Citizens' Assemblies, assuming that such voting was simple reading and application of the pertinent
held, was not within the intendment of Article XV, provisions of the 1935 Constitution, of the Election
Section 1, of the 1935 Constitution nor in accordance Code and of other related laws and official acts. No
with the Election Code of 1971. The referendum can by question of wisdom or of policy is involved. But from
no means be considered as the plebiscite this finding it does not necessarily follow that this Court
contemplated in Section 2 of said Code and in Article may justifiably declare that the Constitution has not
XVII, Section 16, of the draft Constitution itself, or as become. effective, and for that reason give due course
the election intended by Congress when it passed to these petitions or grant the writs herein prayed for.
Resolution No. 2 on March 16, 1967 calling a The effectivity of the said Constitution, in the final
Convention for the revision of the 1935 Constitution. analysis, is the basic and ultimate question posed by
The Citizens Assemblies were not limited to qualified, these cases, to resolve which considerations other
let alone registered, voters, but included all citizens than judicial, and therefore beyond the competence of
from the age of fifteen, and regardless of whether or this Court, are relevant and unavoidable.
not they were illiterates, feeble-minded, or ex-convicts
* these being the classes of persons expressly Several theories have been advanced respectively by
disqualified from voting by Section 102 of the Election the parties. The petitioners lay stress on the invalidity
Code. In short, the constitutional and statutory of the ratification process adopted by the Citizens
qualifications were not considered in the determination Assemblies and on that premise would have this Court
of who should participate. No official ballots were used grant the reliefs they seek. The respondents
in the voting; it was done mostly by acclamation or represented by the Solicitor General, whose theory
open show of hands. Secrecy, which is one of the may be taken as the official position of the
essential features of the election process, was not Government, challenge the jurisdiction of this Court on

203
the ground that the questions raised in the petitions are the powers of government - executive, legislative, and
political and therefore non-justiciable, and that in any judicial; and thereafter proceeded to exercise such
case popular acquiescence in the new Constitution and powers by a series of Orders and Decrees which
the prospect of unsettling acts done in reliance thereon amounted to legislative enactments not justified under
should caution against interposition of the power of martial law and, in some instances, trenched upon the
judicial review. Respondents Gil J. Puyat and Jose Roy domain of the judiciary, by removing from its
(in L 36165) in their respective capacities as President jurisdiction certain classes of cases, such as "those
and President Pro Tempore of the Senate of the involving the validity, legality, or constitutionality of
Philippines, and through their counsel, Senator Arturo Proclamation No. 1081, or of any decree, order or act
Tolentino, likewise invoke the political question issued, promulgated or performed by me or by my duly
doctrine, but on a ground not concurred in by the designated representative pursuant thereto." (General
Solicitor General, namely, that "the approval of the Order No. 3 as amended by General Order No. 3-A,
1973 Constitution by the people was made under a dated September 24, 1972.) The ratification by the
revolutionary government, in the course of a successful Citizens Assemblies, it is averred, was the culminating
political revolution, which was converted by act of the act of the revolution, which thereupon converted the
people to the present de jure government under the government into a de jure one under the 1973
1973 Constitution." Constitution.

Heretofore, constitutional disputes which have come If indeed it be accepted that the Citizens Assemblies
before this Court for adjudication proceeded on the had ratified the 1973 Constitution and that such
assumption, conceded by all, that the Constitution was ratification as well as the establishment of the
in full force and effect, with the power and authority of government there under formed part of a revolution,
the entire Government behind it; and the task of this albeit peaceful, then the issue of whether or not that
Court was simply to determine whether or not the Constitution has become effective and, as a necessary
particular act or statute that was being challenged corollary, whether or not the government legitimately
contravened some rule or mandate of that Constitution. functions under it instead of under the 1935
The process employed was one of interpretation and Constitution, is political and therefore non- judicial in
synthesis. In the cases at bar there is no such nature. Under such a postulate what the people did in
assumption: the Constitution (1935) has been the Citizens Assemblies should be taken as an
derogated and its continued existence as well as the exercise of the ultimate sovereign power. If they had
validity of the act of derogation is the issue. The legal risen up in arms and by force deposed the then existing
problem posed by the situation is aggravated by the government and set up a new government in its place,
fact that the political arms of the Government the there could not be the least doubt that their act would
Executive Departments and the two Houses of be political and not subject to judicial review but only to
Congress have accepted the new Constitution as the judgment of the same body politic act, in the context
effective: the former by organizing themselves and just set forth, is based on realities. If a new government
discharging their functions under it, and the latter by gains authority and dominance through force, it can be
convening on January 22, 1973 or at any time effectively challenged only by a stronger force; no
thereafter, as ordained by the 1935 Constitution, and judicial dictum can prevail against it. We do not see that
in the case of a majority of the members by expressing the situation would be any different, as far as the
their option to serve in the Interim National Assembly doctrine of judicial review is concerned, if no force had
in accordance with Article XVII, Section 2, of the 1973 been resorted to and the people, in defiance of the
Constitution. * existing Constitution not peacefully because of the
absence of any appreciable opposition, ordained a new
The theory advanced by Senator Tolentino, as counsel Constitution and succeeded in having the government
for respondents Puyat and Roy, may be taken up and operate under it. Against such a reality there can be no
restated at some length if only because it would adequate judicial relief; and so courts forbear to take
constitute, if sustained, the most convenient ground for cognizance of the question but leave it to be decided
the invocation of the political-question doctrine. In through political means.
support of his theory, Senator Tolentino contends that
after President Marcos declared martial law on The logic of the political-question doctrine is illustrated
September 21, 1972 (Proclamation No. 1081) he in a statement of the U.S. Supreme Court in a case
established a revolutionary government when he relied upon, curiously enough, by the Solicitor General,
issued General Order No. 1 the next day, wherein he who disagrees with the revolutionary government
proclaimed "that I shall govern the nation and direct the theory of Senator Tolentino. The case involved the
operation of the entire government, including all its issue of which of two opposing governments struggling
agencies and instrumentalities, in my capacity, and for supremacy in the State of Rhode Island was the
shall exercise all the powers and prerogatives lawful one. The issue had previously come up in
appurtenant and incident to my position as such several other cases before the courts of the State,
Commander-in-Chief of all the Armed Forces of the which uniformly held that the inquiry belonged to the
Philippines." By this order, it is pointed out, the political power and not to the judicial. Commenting on
Commander-in-Chief of the Armed Forces assumed all the ruling thus arrived at, the U.S. Supreme Court said:

204
"And if a State court should enter upon the inquiry The circumstances above enumerated lead us to the
proposed in this case, and should come to the conclusion that the Citizens Assemblies could not have
conclusion that the government under which it acted understood the referendum to be for the ratification of
had been put aside and displaced by an opposing the Constitution, but only for the expression of their
government, it would cease to be a court, and views on a consultative basis. Indeed, if the expression
incapable of pronouncing a judicial decision upon the of those views had been intended as an act of
question it undertook to try. If it decides at all as a court, ratification (or of rejection as a logical corollary) there
it necessarily affirms the existence and authority of the would have been no need for the Katipunan ng mga
government under which it is exercising judicial power." Barangay to recommend that the Constitution should
In other words, since the court would have no choice already be deemed ratified, for recommendation
but to decide in one way alone in order to be able to imports recognition of some higher authority in whom
decide at all, the question could not be considered the final decision rests.
proper for judicial determination.
But then the President, pursuant to such
It should be noted that the above statement from recommendation, did proclaim that the Constitution
Luther vs. Borden would be applicable in the cases at had been ratified and had come into effect. The more
bar only on the premise that the ratification of the relevant consideration, therefore, as far as we can see,
Constitution was a revolutionary act and that the should be as to what the President had in mind in
government now functioning under it is the product of convening the Citizens Assemblies, submitting the
such revolution. However, we are not prepared to Constitution to them and proclaiming that the favorable
agree that the premise is justified. expression of their views was an act of ratification. In
this respect subjective factors, which defy judicial
In the first place, with specific reference to the analysis and adjudication, are necessarily involved.
questioned ratification, several significant
circumstances may be noted. (1) The Citizens In positing the problem within an identifiable frame of
Assemblies were created, according to Presidential reference we find no need to consider whether or not
Decree No. 86, "to broaden the base of citizen the regime established by President Marcos since he
participation in the democratic process and to afford declared martial law and under which the new
ample opportunities for the citizenry to express their Constitution was submitted to the Citizens Assemblies
views on important national issues." (2) The President was a revolutionary one. The pivotal question is rather
announced, according to the Daily Express of January whether or not the effectivity of the said Constitution by
2, 1973, that "the referendum will be in the nature of a virtue of Presidential Proclamation No. 1102, upon the
loose consultation with the people." (3) The question, recommendation of the Katipunan ng mga Barangay,
as submitted to them on the particular point at issue was intended to be definite and irrevocable, regardless
here, was "Do you approve of the Constitution?" (4) of non-compliance with the pertinent constitutional and
President Marcos, in proclaiming that the Constitution statutory provisions prescribing the procedure for
had been ratified, stated as follows: "(S)ince the ratification. We must confess that after considering all
referendum results show that more than ninety-five the available evidence and all the relevant
(95) per cent of the members of the Barangays circumstances we have found no reasonably reliable
(Citizens Assemblies) are in favor of the new answer to the question.
Constitution, the Katipunan ng mga Barangay has
strongly recommended that the new Constitution On one hand we read, for instance, the following public
should already be deemed ratified by the Filipino statements of the President:
people." (5) There was not enough time for the Citizens Speaking about the proclamation of martial law, he
Assemblies to really familiarize themselves with the said:
Constitution, much less with the many other subjects
that were submitted to them. In fact the plebiscite "I reiterate what I have said in the past: there is no
planned for January 15, 1973 under Presidential turning back for our people.
Decree No. 73 had been postponed to an indefinite
date, the reasons for the postponement being, as "We have committed ourselves to this revolution. We
attributed to the President in the newspapers, that have pledged to it our future, our fortunes, our lives,
"there was little time to campaign for or against our destiny. We have burned our bridges behind us.
ratification" (Daily Express, Dec. 22, 1972); that he Let no man misunderstand the strength of our
would base his decision (as to the date of the resolution." (A Report to the National, Jan. 7, 1913.)
plebiscite) on the compliance by the Commission (on
Elections) on the publication requirement of the new On the occasion of the signing of Proclamation No.
Charter and on the position taken by national leaders" 1102 on January 17, 1973, President said the
(Daily Express, Dec. 23, 1972); and that "the following, among other things:
postponement would give us more time to debate on
the merits of the Charter." (Bulletin Today, Dec. 24, ". . . We can, perhaps delimit the power of the people
1972.) to speak on legal matters, on justiciable matters, on
matters that may come before the experts and

205
interpreters of the law. But we cannot disqualify the improved quality of life in its many aspects, except only
people from speaking on what we and the people in the field of civil liberties.
consider purely political matters especially those that
affect the fundamental law of the land.

". . . The political questions that were presented to the If there is any significance, both explicit and implicit,
people are exactly those that refer to the form of and certainly unmistakable, in the foregoing
government which the people want . . . The implications pronouncements, it is that the step taken in connection
of disregarding the people's will are too awesome to be with the ratification of the Constitution was meant to be
even considered. For if any power in government irreversible, and that nothing anyone could say would
should even dare to disregard the people's will there make the least difference. And if this is a correct and
would be valid ground for revolt." accurate assessment of the situation, then we would
say that since it has been brought about by political
". . . Let it be known to everybody that the people have action and is now maintained by the government that
spoken and they will no longer tolerate any attempt to is in undisputed authority and dominance, the matter
undermine the stability of their Republic; they will rise lies beyond the power of judicial review.
up in arms not in revolt against the Republic but in
protection of the Republic which they have installed. It On the other hand, by avowals no less significant if not
is quite clear when the people say, we ratify the so emphatic in terms, President Marcos has professed
Constitution, that they mean they will not discard, the fealty to the Constitution. In "Today's Revolution:
Constitution." Democracy" he says:

On January 19, 1973 the Daily Express published a "I believe, therefore, in the necessity of Revolution as
statement of the President made the day before, from an instrument of individual and social change . . . but
which the following portion is quoted: that in a democratic society, revolution is of necessity,
constitutional, peaceful, and legal."
". . . the times are too grave and the stakes too high for
us to permit the customary concessions to traditional In his TV address of September 23, 1972, President
democratic process to hold back our people's clear and Marcos told the nation:
unequivocal resolve and mandate to meet and
overcome the extraordinary challenges presented by "I have proclaimed martial law in accordance with the
these extraordinary times." powers vested in the President by the Constitution of
the Philippines.

On the same occasion of the signing of Proclamation "xxx xxx xxx

No. 1102 the President made pointed reference to "the
demand of some of our citizens . . . that when all other "I repeat, this is not a military takeover of civil
measures should fail, that the President be directed to government functions. The Government of the
organize and establish a Revolutionary Government," Republic of the Philippines which was established by
but in the next breath added: ". . . if we do ratify the our people in 1946 continues.
Constitution how can we speak of a Revolutionary
Government? They cannot be compatible . . ." "(I)t is "xxx xxx xxx
my feeling," he said, "that the Citizens' Assemblies
which submitted this recommendation merely sought to "I assure you that I am utilizing this power vested in me
articulate their impatience with the status quo that has by the Constitution to save the Republic and reform our
brought about anarchy, confusion and misery to the society . . .
masses . . ." The only alternatives which the President
clearly implied by the foregoing statements were the "I have had to use this constitutional power in order that
ratification of the new Constitution and the we may not completely lose the civil rights and freedom
establishment of a revolutionary government, the latter which we cherish . . .
being unnecessary, in his opinion, because precisely
the Constitution had been ratified. The third obvious ". . . We are against the wall. We must now defend the
alternative was entirely ruled out, namely, a return to Republic with the stronger powers of the Constitution."
the 1935 Constitution, for it was the status quo under (Vital Documents, pp. 1-12;)
that Constitution that had caused "anarchy, confusion
and misery." The message seems clear: rather than In the report of an interview granted by the President
return to such status quo, he would need the to the Newsweek Magazine (published in the issue of
recommendation of the Citizens' Assemblies to January 29, 1973), the following appears:
establish a revolutionary government, because that
would be the only other way to carry out the reforms he "xxx xxx xxx
had envisioned and initiated reforms which, in all
fairness and honesty, must be given credit for the

206
"Q. Now that you have gotten off the constitutional we do not find the issue decisive insofar as our vote in
track, won't you be in serious trouble if you run into these cases is concerned. To interpret the Constitution
critical problems with your programs? that is judicial. That the Constitution should be deemed
in effect because of popular acquiescence that is
"A. I have never gotten off the constitutional track. political, and therefore beyond the domain of judicial
Everything I am doing is in accordance with the 1930 review.
Constitution. The only thing is that instead of 18 year
olds voting, we have allowed 15-year-olds the night to We therefore vote not to give due course to the instant
vote. But the 15-year-olds of today are high school petitions.
students, if not graduates, and they are better informed
than my contemporaries at that age. On the matter of MANILA PRINCE HOTEL VS GSIS (1997)
whether it is constitutional to proclaim martial law, it is
constitutional because the Constitution provides for it MANILA PRINCE HOTEL, petitioner, vs.
in the event of invasion, insurrection, rebellion or GOVERNMENT SERVICE INSURANCE SYSTEM,
immediate danger thereof. We may quarrel about MANILA HOTEL CORPORATION, COMMITTEE ON
whether what we have gone through is sufficient cause PRIVATIZATION and OFFICE OF THE
to proclaim martial law but at the very least there is a GOVERNMENT CORPORATE COUNSEL,
danger of rebellion because so many of our soldiers respondents.
have been killed. You must remember this (martial law G.R. No. 122156 | 1997-02-03
provision) was lifted from the American legislation that
was the fundamental law of our country. Tagged under keywords View Summary

"xxx xxx xxx" Discussions citing this case or law are available.
Political Law; Constitutional Law; Self-executing and
In the light of this seeming ambivalence, the choice of Non-self-executing provisions
what course of action to pursue belongs to the Political Law; Constitutional Law; Self-executing and
President We have earlier made reference to non-self-executing provisions
subjective factors on which this Court, to our mind, is Political Law; Constitutional Law; National Economy
in no position to pass judgment. Among them is the and Patrimony; Exploration, development, and
President's own assessment of the will of the people utilisation of natural resources
as expressed through the Citizens Assemblies and of DECISION
the importance of the 1973 Constitution to the
successful implementation of the social and economic BELLOSILLO, J:
reforms he has started or envisioned. If he should
decide that there is no turning back, that what the The Filipino First Policy enshrined in the 1987
people recommended through the Citizens Constitution, i.e., in the grant of rights, privileges, and
Assemblies, as they were reported to him, demanded concessions covering the national economy and
that the action he took pursuant thereto be final and patrimony, the State shall give preference to qualified
irrevocable, then judicial review is out of the question. Filipinos, 1 is invoked by petitioner in its bid to acquire
51% of the shares of the Manila Hotel Corporation
In articulating our view that the procedure of ratification (MHC) which owns the historic Manila Hotel. Opposing,
that was followed was not in accordance with the 1935 respondents maintain that the provision is not self-
Constitution and related statutes, we have discharged executing but requires an implementing legislation for
our sworn duty as we conceive it to be. The President its enforcement. Corollarily, they ask whether the 51%
should now perhaps decide, if he has not already shares form part of the national economy and
decided, whether adherence to such procedure is patrimony covered by the protective mantle of the
weighty enough a consideration, if only to dispel any Constitution.
cloud of doubt that may now and in the future shroud
the nation's Charter. The controversy arose when respondent Government
Service Insurance System (GSIS), pursuant to the
In the deliberations of this Court one of the issues privatization program of the Philippine Government
formulated for resolution is whether or not the new under Proclamation No. 50 dated 8 December 1986,
Constitution, since its submission to the Citizens decided to sell through public bidding 30% to 51% of
Assemblies, has found acceptance among the people, the issued and outstanding shares of respondent MHC.
such issue being related to the political question theory The winning bidder, or the eventual "strategic partner,"
propounded by the respondents. We have not tarried is to provide management expertise and/or an
on the point at all since we find no reliable basis on international marketing/ reservation system, and
which to form a judgment. Under a regime of martial financial support to strengthen the profitability and
law, with the free expression of opinions through the performance of the Manila Hotel. 2 In a close bidding
usual media vehicles restricted, we have no means of held on 18 September 1995 only two (2) bidders
knowing, to the point of judicial certainty, whether the participated: petitioner Manila Prince Hotel
people have accepted the Constitution. In any event, Corporation, a Filipino corporation, which offered to

207
buy 51% of the MHC or 15,300,000 shares at P41.58 respondents from perfecting and consummating the
per share, and Renong Berhad, a Malaysian firm, with sale to the Malaysian firm.
ITT-Sheraton as its hotel operator, which bid for the
same number of shares at P44.00 per share, or P2.42 On 10 September 1996 the instant case was accepted
more than the bid of petitioner. by the Court En Banc after it was referred to it by the
First Division. The case was then set for oral
Pertinent provisions of the bidding rules prepared by arguments with former Chief Justice Enrique M.
respondent GSIS state - Fernando and Fr. Joaquin G. Bernas, S.J., as amici
curiae.
I. EXECUTION OF THE NECESSARY CONTRACTS
WITH GSIS/MHC - In the main, petitioner invokes Sec. 10, second par.,
Art. XII, of the 1987 Constitution and submits that the
1. The Highest Bidder must comply with the conditions Manila Hotel has been identified with the Filipino nation
set forth below by October 23, 1995 (reset to and has practically become a historical monument
November 3, 1995) or the Highest Bidder will lose the which reflects the vibrancy of Philippine heritage and
right to purchase the Block of Shares and GSIS will culture. It is a proud legacy of an earlier generation of
instead offer the Block of Shares to the other Qualified Filipinos who believed in the nobility and sacredness of
Bidders: independence and its power and capacity to release
the full potential of the Filipino people. To all intents and
a. The Highest Bidder must negotiate and execute with purposes, it has become a part of the national
the GSIS/MHC the Management Contract, patrimony. 6 Petitioner also argues that since 51% of
International Marketing/Reservation System Contract the shares of the MHC carries with it the ownership of
or other type of contract specified by the Highest Bidder the business of the hotel which is owned by respondent
in its strategic plan for the Manila Hotel . . . . GSIS, a government-owned and controlled
corporation, the hotel business of respondent GSIS
b. The Highest Bidder must execute the Stock being a part of the tourism industry is unquestionably a
Purchase and Sale Agreement with GSIS . . . . part of the national economy. Thus, any transaction
involving 51% of the shares of stock of the MHC is
K. DECLARATION OF THE WINNING clearly covered by the term national economy, to which
BIDDER/STRATEGIC PARTNER - Sec. 10, second par., Art. XII, 1987 Constitution,
applies. 7
The Highest Bidder will be declared the Winning
Bidder/Strategic Partner after the following conditions It is also the thesis of petitioner that since Manila Hotel
are met is part of the national patrimony and its business also
unquestionably part of the national economy petitioner
a. Execution of the necessary contracts with should be preferred after it has matched the bid offer
GSIS/MHC not later than October 23, 1995 (reset to of the Malaysian firm. For the bidding rules mandate
November 3, 1995); and that if for any reason, the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to
b. Requisite approvals from the GSIS/MHC and COP the other Qualified Bidders that have validly submitted
(Committee on Privatization)/ OGCC (Office of the bids provided that these Qualified Bidders are willing to
Government Corporate Counsel) are obtained." 3 match the highest bid in terms of price per share. 8

Pending the declaration of Renong Berhard as the Respondents except. They maintain that: First, Sec.
winning bidder/strategic partner and the execution of 10, second par., Art. XII, of the 1987 Constitution is
the necessary contracts, petitioner in a letter to merely a statement of principle and policy since it is not
respondent GSIS dated 28 September 1995 matched a self-executing provision and requires implementing
the bid price of P44.00 per share tendered by Renong legislation(s). . . . Thus, for the said provision to
Berhad. 4 In a subsequent letter dated 10 October operate, there must be existing laws "to lay down
1995 petitioner sent a manager's check issued by conditions under which business may be done." 9
Philtrust Bank for Thirty-three Million Pesos
(P33,000,000.00) as Bid Security to match the bid of Second, granting that this provision is self-executing,
the Malaysian Group, Messrs. Renong Berhad . . . . 5 Manila Hotel does not fall under the term national
which respondent GSIS refused to accept. patrimony which only refers to lands of the public
domain, waters, minerals, coal, petroleum and other
On 17 October 1995, perhaps apprehensive that mineral oils, all forces of potential energy, fisheries,
respondent GSIS has disregarded the tender of the forests or timber, wildlife, flora and fauna and all marine
matching bid and that the sale of 51% of the MHC may wealth in its territorial sea, and exclusive marine zone
be hastened by respondent GSIS and consummated as cited in the first and second paragraphs of Sec. 2,
with Renong Berhad, petitioner came to this Court on Art. XII, 1987 Constitution. According to respondents,
prohibition and mandamus. On 18 October 1995 the while petitioner speaks of the guests who have slept in
Court issued a temporary restraining order enjoining the hotel and the events that have transpired therein

208
which make the hotel historic, these alone do not make or contract violates any norm of the constitution that
the hotel fall under the patrimony of the nation. What is law or contract whether promulgated by the legislative
more, the mandate of the Constitution is addressed to or by the executive branch or entered into by private
the State, not to respondent GSIS which possesses a persons for private purposes is null and void and
personality of its own separate and distinct from the without any force and effect. Thus, since the
Philippines as a State. Constitution is the fundamental paramount and
supreme law of the nation, it is deemed written in every
Third, granting that the Manila Hotel forms part of the statute and contract.
national patrimony, the constitutional provision invoked
is still inapplicable since what is being sold is only 51% Admittedly, some constitutions are merely declarations
of the outstanding shares of the corporation, not the of policies and principles. Their provisions command
hotel building nor the land upon which the building the legislature to enact laws and carry out the purposes
stands. Certainly, 51% of the equity of the MHC cannot of the framers who merely establish an outline of
be considered part of the national patrimony. government providing for the different departments of
Moreover, if the disposition of the shares of the MHC is the governmental machinery and securing certain
really contrary to the Constitution, petitioner should fundamental and inalienable rights of citizens. 12 A
have questioned it right from the beginning and not provision which lays down a general principle, such as
after it had lost in the bidding. those found in Art. II of the 1987 Constitution, is usually
not self-executing. But a provision which is complete in
Fourth, the reliance by petitioner on par. V., subpar. J. itself and becomes operative without the aid of
1, of the bidding rules which provides that if for any supplementary or enabling legislation, or that which
reason, the Highest Bidder cannot be awarded the supplies sufficient rule by means of which the right it
Block of Shares, GSIS may offer this to the other grants may be enjoyed or protected, is self-executing.
Qualified Bidders that have validly submitted bids Thus a constitutional provision is self-executing if the
provided that these Qualified Bidders are willing to nature and extent of the right conferred and the liability
match the highest bid in terms of price per share, is imposed are fixed by the constitution itself, so that they
misplaced. Respondents postulate that the privilege of can be determined by an examination and construction
submitting a matching bid has not yet arisen since it of its terms, and there is no language indicating that the
only takes place if for any reason, the Highest Bidder subject is referred to the legislature for action. 13
cannot be awarded the Block of Shares. Thus the
submission by petitioner of a matching bid is premature As against constitutions of the past, modern
since Renong Berhad could still very well be awarded constitutions have been generally drafted upon a
the block of shares and the condition giving rise to the different principle and have often become in effect
exercise of the privilege to submit a matching bid had extensive codes of laws intended to operate directly
not yet taken place. upon the people in a manner similar to that of statutory
enactments, and the function of constitutional
Finally, the prayer for prohibition grounded on grave conventions has evolved into one more like that of a
abuse of discretion should fail since respondent GSIS legislative body. Hence, unless it is expressly provided
did not exercise its discretion in a capricious, whimsical that a legislative act is necessary to enforce a
manner, and if ever it did abuse its discretion it was not constitutional mandate, the presumption now is that all
so patent and gross as to amount to an evasion of a provisions of the constitution are self-executing. If the
positive duty or a virtual refusal to perform a duty constitutional provisions are treated as requiring
enjoined by law. Similarly, the petition for mandamus legislation instead of self-executing, the legislature
should fail as petitioner has no clear legal right to what would have the power to ignore and practically nullify
it demands and respondents do not have an imperative the mandate of the fundamental law. 14 This can be
duty to perform the act required of them by petitioner. cataclysmic. That is why the prevailing view is, as it has
always been, that -
We now resolve. A constitution is a system of
fundamental laws for the governance and . . . in case of doubt, the Constitution should be
administration of a nation. It is supreme, imperious, considered self-executing rather than non-self-
absolute and unalterable except by the authority from executing. . . . Unless the contrary is clearly intended,
which it emanates. It has been defined as the the provisions of the Constitution should be considered
fundamental and paramount law of the nation. 10 It self-executing, as a contrary rule would give the
prescribes the permanent framework of a system of legislature discretion to determine when, or whether,
government, assigns to the different departments their they shall be effective. These provisions would be
respective powers and duties, and establishes certain subordinated to the will of the lawmaking body, which
fixed principles on which government is founded. The could make them entirely meaningless by simply
fundamental conception in other words is that it is a refusing to pass the needed implementing statute. 15
supreme law to which all other laws must conform and
in accordance with which all private rights must be Respondents argue that Sec. 10, second par., Art. XII,
determined and all public authority administered. 11 of the 1987 Constitution is clearly not self-executing, as
Under the doctrine of constitutional supremacy, if a law

209
they quote from discussions on the floor of the 1986 however does not necessarily mean that the subject
Constitutional Commission - constitutional provision is not, by itself, fully
enforceable.
MR. RODRIGO. Madam President, I am asking this
question as the Chairman of the Committee on Style. If Respondents also argue that the non-self-executing
the wording of "PREFERENCE" is given to nature of Sec. 10, second par., of Art. XII is implied
"QUALIFIED FILIPINOS," can it be understood as a from the tenor of the first and third paragraphs of the
preference to qualified Filipinos vis-a-vis Filipinos who same section which undoubtedly are not self-
are not qualified. So, why do we not make it clear? To executing. 18 The argument is flawed. If the first and
qualified Filipinos as against aliens? third paragraphs are not self-executing because
Congress is still to enact measures to encourage the
THE PRESIDENT. What is the question of formation and operation of enterprises fully owned by
Commissioner Rodrigo? Is it to remove the word Filipinos, as in the first paragraph, and the State still
"QUALIFIED?" needs legislation to regulate and exercise authority
over foreign investments within its national jurisdiction,
MR. RODRIGO. No, no, but say definitely "TO as in the third paragraph, then a fortiori, by the same
QUALIFIED FILIPINOS" as against whom? As against logic, the second paragraph can only be self-executing
aliens or over aliens? as it does not by its language require any legislation in
order to give preference to qualified Filipinos in the
MR. NOLLEDO. Madam President, I think that is grant of rights, privileges and concessions covering the
understood. We use the word "QUALIFIED" because national economy and patrimony. A constitutional
the existing laws or prospective laws will always lay provision may be self-executing in one part and non-
down conditions under which business may be done. self-executing in another. 19
For example, qualifications on capital, qualifications on
the setting up of other financial structures, et cetera Even the cases cited by respondents holding that
(emphasis supplied by respondents). certain constitutional provisions are merely statements
of principles and policies, which are basically not self-
MR RODRIGO. It is just a matter of style. executing and only placed in the Constitution as moral
incentives to legislation, not as judicially enforceable
MR. NOLLEDO. Yes. 16 rights - are simply not in point. Basco v. Philippine
Amusements and Gaming Corporation 20 speaks of
Quite apparently, Sec. 10, second par., of Art. XII is constitutional provisions on personal dignity, 21 the
couched in such a way as not to make it appear that it sanctity of family life, 22 the vital role of the youth in
is non-self-executing but simply for purposes of style. nation-building, 23 the promotion of social justice, 24
But, certainly, the legislature is not precluded from and the values of education. 25 Tolentino v. Secretary
enacting further laws to enforce the constitutional of Finance 26 refers to constitutional provisions on
provision so long as the contemplated statute squares social justice and human rights 27 and on education.
with the Constitution. Minor details may be left to the 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites
legislature without the self-executing nature of provisions on the promotion of general welfare, 30 the
constitutional provisions. sanctity of family life, 31 the vital role of the youth in
nation-building 32 and the promotion of total human
In self-executing constitutional provisions, the liberation and development. 33 A reading of these
legislature may still enact legislation to facilitate the provisions indeed clearly shows that they are not
exercise of powers directly granted by the constitution, judicially enforceable constitutional rights but merely
further the operation of such a provision, prescribe a guidelines for legislation. The very terms of the
practice to be used for its enforcement, provide a provisions manifest that they are only principles upon
convenient remedy for the protection of the rights which legislations must be based. Res ipsa loquitur.
secured or the determination thereof, or place
reasonable safeguards around the exercise of the On the other hand, Sec. 10, second par., Art. XII of the
right. The mere fact that legislation may supplement 1987 Constitution is a mandatory, positive command
and add to or prescribe a penalty for the violation of a which is complete in itself and which needs no further
self-executing constitutional provision does not render guidelines or implementing laws or rules for its
such a provision ineffective in the absence of such enforcement. From its very words the provision does
legislation. The omission from a constitution of any not require any legislation to put it in operation. It is per
express provision for a remedy for enforcing a right or se judicially enforceable. When our Constitution
liability is not necessarily an indication that it was not mandates that [i]n the grant of rights, privileges, and
intended to be self-executing. The rule is that a self- concessions covering national economy and
executing provision of the constitution does not patrimony, the State shall give preference to qualified
necessarily exhaust legislative power on the subject, Filipinos, it means just that - qualified Filipinos shall be
but any legislation must be in harmony with the preferred. And when our Constitution declares that a
constitution, further the exercise of constitutional right right exists in certain specified circumstances an action
and make it more available. 17 Subsequent legislation may be maintained to enforce such right

210
notwithstanding the absence of any legislation on the our struggle for sovereignty, independence and
subject; consequently, if there is no statute especially nationhood. Verily, Manila Hotel has become part of
enacted to enforce such constitutional right, such right our national economy and patrimony. For sure, 51% of
enforces itself by its own inherent potency and the equity of the MHC comes within the purview of the
puissance, and from which all legislations must take constitutional shelter for it comprises the majority and
their bearings. Where there is a right there is a remedy. controlling stock, so that anyone who acquires or owns
Ubi jus ibi remedium. the 51% will have actual control and management of
the hotel. In this instance, 51% of the MHC cannot be
As regards our national patrimony, a member of the disassociated from the hotel and the land on which the
1986 Constitutional Commission 34 explains - hotel edifice stands. Consequently, we cannot sustain
respondents' claim that the Filipino First Policy
The patrimony of the Nation that should be conserved provision is not applicable since what is being sold is
and developed refers not only to our rich natural only 51% of the outstanding shares of the corporation,
resources but also to the cultural heritage of our race. not the Hotel building nor the land upon which the
It also refers to our intelligence in arts, sciences and building stands. 38
letters. Therefore, we should develop not only our
lands, forests, mines and other natural resources but The argument is pure sophistry. The term qualified
also the mental ability or faculty of our people. Filipinos as used in our Constitution also includes
corporations at least 60% of which is owned by
We agree. In its plain and ordinary meaning, the term Filipinos. This is very clear from the proceedings of the
patrimony pertains to heritage. 35 When the 1986 Constitutional Commission -
Constitution speaks of national patrimony, it refers not
only to the natural resources of the Philippines, as the THE PRESIDENT. Commissioner Davide is
Constitution could have very well used the term natural recognized.
resources, but also to the cultural heritage of the
Filipinos. MR. DAVIDE. I would like to introduce an amendment
to the Nolledo amendment. And the amendment would
Manila Hotel has become a landmark - a living consist in substituting the words "QUALIFIED
testimonial of Philippine heritage. While it was FILIPINOS" with the following: "CITIZENS OF THE
restrictively an American hotel when it first opened in PHILIPPINES OR CORPORATIONS OR
1912, it immediately evolved to be truly Filipino. ASSOCIATIONS WHOSE CAPITAL OR
Formerly a concourse for the elite, it has since then CONTROLLING STOCK IS WHOLLY OWNED BY
become the venue of various significant events which SUCH CITIZENS."
have shaped Philippine history. It was called the
Cultural Center of the 1930's. It was the site of the xxx xxx xxx
festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House MR. MONSOD. Madam President, apparently the
of the Philippine Government it plays host to dignitaries proponent is agreeable, but we have to raise a
and official visitors who are accorded the traditional question. Suppose it is a corporation that is 80-percent
Philippine hospitality. 36 Filipino, do we not give it preference?

The history of the hotel has been chronicled in the book MR. DAVIDE. The Nolledo amendment would refer to
The Manila Hotel: The Heart and Memory of a City. 37 an individual Filipino. What about a corporation wholly
During World War II the hotel was converted by the owned by Filipino citizens?
Japanese Military Administration into a military
headquarters. When the American forces returned to MR. MONSOD. At least 60 percent, Madam President.
recapture Manila the hotel was selected by the
Japanese together with Intramuros as the two (2) MR. DAVIDE. Is that the intention?
places for their final stand. Thereafter, in the 1950's
and 1960's, the hotel became the center of political MR MONSOD. Yes, because, in fact, we would be
activities, playing host to almost every political limiting it if we say that the preference should only be
convention. In 1970 the hotel reopened after a 100-percent Filipino.
renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent MR. DAVIDE. I want to get that meaning clear because
and ingenuity. In 1986 the hotel was the site of a failed "QUALIFIED FILIPINOS" may refer only to individuals
coup d'etat where an aspirant for vice-president was and not to juridical personalities or entities.
"proclaimed" President of the Philippine Republic.
MR. MONSOD. We agree, Madam President. 39
For more than eight (8) decades Manila Hotel has bore
mute witness to the triumphs and failures, loves and xxx xxx xxx
frustrations of the Filipinos; its existence is impressed
with public interest; its own historicity associated with

211
MR. RODRIGO. Before we vote, may I request that the
amendment be read again. The term "qualified Filipinos" simply means that
preference shall be given to those citizens who can
MR. NOLLEDO. The amendment will read: "IN THE make a viable contribution to the common good,
GRANT OF RIGHTS, PRIVILEGES AND because of credible competence and efficiency. It
CONCESSIONS COVERING THE NATIONAL certainly does NOT mandate the pampering and
ECONOMY AND PATRIMONY, THE STATE SHALL preferential treatment to Filipino citizens or
GIVE PREFERENCE TO QUALIFIED FILIPINOS." organizations that are incompetent or inefficient, since
And the word "Filipinos" here, as intended by the such an indiscriminate preference would be
proponents, will include not only individual Filipinos but counterproductive and inimical to the common good.
also Filipino-controlled entities or entities fully-
controlled by Filipinos. 40 In the granting of economic rights, privileges, and
concessions, when a choice has to be made between
The phrase preference to qualified Filipinos was a "qualified foreigner" and a "qualified Filipino," the
explained thus - latter shall be chosen over the former."

MR. FOZ. Madam President, I would like to request Lastly, the word qualified is also determinable.
Commissioner Nolledo to please restate his Petitioner was so considered by respondent GSIS and
amendment so that I can ask a question. selected as one of the qualified bidders. It was pre-
qualified by respondent GSIS in accordance with its
MR. NOLLEDO. "IN THE GRANT OF RIGHTS, own guidelines so that the sole inference here is that
PRIVILEGES AND CONCESSIONS COVERING THE petitioner has been found to be possessed of proven
NATIONAL ECONOMY AND PATRIMONY, THE management expertise in the hotel industry, or it has
STATE SHALL GIVE PREFERENCE TO QUALIFIED significant equity ownership in another hotel company,
FILIPINOS." or it has an overall management and marketing
proficiency to successfully operate the Manila Hotel. 44
MR. FOZ. In connection with that amendment, if a
foreign enterprise is qualified and a Filipino enterprise The penchant to try to whittle away the mandate of the
is also qualified, will the Filipino enterprise still be given Constitution by arguing that the subject provision is not
a preference? self-executory and requires implementing legislation is
quite disturbing. The attempt to violate a clear
MR. NOLLEDO. Obviously. constitutional provision - by the government itself - is
only too distressing. To adopt such a line of reasoning
MR. FOZ. If the foreigner is more qualified in some is to renounce the duty to ensure faithfulness to the
aspects than the Filipino enterprise, will the Filipino still Constitution. For, even some of the provisions of the
be preferred? Constitution which evidently need implementing
legislation have juridical life of their own and can be the
MR. NOLLEDO. The answer is "yes." source of a judicial remedy. We cannot simply afford
the government a defense that arises out of the failure
MR. FOZ. Thank you. 41 to enact further enabling, implementing or guiding
legislation. In fine, the discourse of Fr. Joaquin G.
Expounding further on the Filipino First Policy provision Bernas, S.J., on constitutional government is apt -
Commissioner Nolledo continues -
The executive department has a constitutional duty to
MR NOLLEDO. Yes, Madam President. Instead of implement laws, including the Constitution, even
"MUST," it will be "SHALL - THE STATE SHALL GIVE before Congress acts - provided that there are
PREFERENCE TO QUALIFIED FILIPINOS." This discoverable legal standards for executive action.
embodies the so-called "Filipino First" policy. That When the executive acts, it must be guided by its own
means that Filipinos should be given preference in the understanding of the constitutional command and of
grant of concessions, privileges and rights covering the applicable laws. The responsibility for reading and
national patrimony. 42 understanding the Constitution and the laws is not the
sole prerogative of Congress. If it were, the executive
The exchange of views in the sessions of the would have to ask Congress, or perhaps the Court, for
Constitutional Commission regarding the subject an interpretation every time the executive is confronted
provision was still further clarified by Commissioner by a constitutional command. That is not how
Nolledo 43 - constitutional government operates. 45

"Paragraph 2 of Section 10 explicitly mandates the Respondents further argue that the constitutional
"Pro-Filipino" bias in all economic concerns. It is better provision is addressed to the State, not to respondent
known as the FILIPINO FIRST Policy. . . . This GSIS which by itself possesses a separate and distinct
provision was never found in previous Constitutions. . . personality. This argument again is at best specious. It
. is undisputed that the sale of 51% of the MHC could

212
only be carried out with the prior approval of the State the Block of Shares, GSIS may offer this to other
acting through respondent Committee on Privatization. Qualified Bidders that have validly submitted bids
As correctly pointed out by Fr. Joaquin G. Bernas, S.J., provided that these Qualified Bidders are willing to
this fact alone makes the sale of the assets of match the highest bid in terms of price per share. 47
respondents GSIS and MHC a "state action." In Certainly, the constitutional mandate itself is reason
constitutional jurisprudence, the acts of persons enough not to award the block of shares immediately
distinct from the government are considered "state to the foreign bidder notwithstanding its submission of
action" covered by the Constitution (1) when the a higher, or even the highest, bid. In fact, we cannot
activity it engages in is a "public function;" (2) when the conceive of a stronger reason than the constitutional
government is so-significantly involved with the private injunction itself.
actor as to make the government responsible for his
action; and, (3) when the government has approved or In the instant case, where a foreign firm submits the
authorized the action. It is evident that the act of highest bid in a public bidding concerning the grant of
respondent GSIS in selling 51% of its share in rights, privileges and concessions covering the
respondent MHC comes under the second and third national economy and patrimony, thereby exceeding
categories of "state action." Without doubt therefore the bid of a Filipino, there is no question that the Filipino
the transaction, although entered into by respondent will have to be allowed to match the bid of the foreign
GSIS, is in fact a transaction of the State and therefore entity. And if the Filipino matches the bid of a foreign
subject to the constitutional command. 46 firm the award should go to the Filipino. It must be so if
we are to give life and meaning to the Filipino First
When the Constitution addresses the State it refers not Policy provision of the 1987 Constitution. For, while this
only to the people but also to the government as may neither be expressly stated nor contemplated in
elements of the State. After all, government is the bidding rules, the constitutional fiat is omnipresent
composed of three (3) divisions of power - legislative, to be simply disregarded. To ignore it would be to
executive and judicial. Accordingly, a constitutional sanction a perilous skirting of the basic law.
mandate directed to the State is correspondingly
directed to the three (3) branches of government. It is This Court does not discount the apprehension that this
undeniable that in this case the subject constitutional policy may discourage foreign investors. But the
injunction is addressed among others to the Executive Constitution and laws of the Philippines are understood
Department and respondent GSIS, a government to be always open to public scrutiny. These are given
instrumentality deriving its authority from the State. factors which investors must consider when venturing
into business in a foreign jurisdiction. Any person
It should be stressed that while the Malaysian firm therefore desiring to do business in the Philippines or
offered the higher bid it is not yet the winning bidder. with any of its agencies or instrumentalities is
The bidding rules expressly provide that the highest presumed to know his rights and obligations under the
bidder shall only be declared the winning bidder after it Constitution and the laws of the forum
has negotiated and executed the necessary contracts,
and secured the requisite approvals. Since the Filipino The argument of respondents that petitioner is now
First Policy provision of the Constitution bestows estopped from questioning the sale to Renong Berhad
preference on qualified Filipinos the mere tending of since petitioner was well aware from the beginning that
the highest bid is not an assurance that the highest a foreigner could participate in the bidding is meritless.
bidder will be declared the winning bidder. Resultantly, Undoubtedly, Filipinos and foreigners alike were
respondents are not bound to make the award yet, nor invited to the bidding. But foreigners may be awarded
are they under obligation to enter into one with the the sale only if no Filipino qualifies, or if the qualified
highest bidder. For in choosing the awardee Filipino fails to match the highest bid tendered by the
respondents are mandated to abide by the dictates of foreign entity. In the case before us, while petitioner
the 1987 Constitution the provisions of which are was already preferred at the inception of the bidding
presumed to be known to all the bidders and other because of the constitutional mandate, petitioner had
interested parties. not yet matched the bid offered by Renong Berhad.
Thus it did not have the right or personality then to
Adhering to the doctrine of constitutional supremacy, compel respondent GSIS to accept its earlier bid.
the subject constitutional provision is, as it should be, Rightly, only after it had matched the bid of the foreign
impliedly written in the bidding rules issued by firm and the apparent disregard by respondent GSIS of
respondent GSIS, lest the bidding rules be nullified for petitioner's matching bid did the latter have a cause of
being violative of the Constitution. It is a basic principle action.
in constitutional law that all laws and contracts must
conform with the fundamental law of the land. Those Besides, there is no time frame for invoking the
which violate the Constitution lose their reason for constitutional safeguard unless perhaps the award has
being. been finally made. To insist on selling the Manila Hotel
to foreigners when there is a Filipino group willing to
Paragraph V. J. 1 of the bidding rules provides that [i]f match the bid of the foreign group is to insist that
for any reason the Highest Bidder cannot be awarded government be treated as any other ordinary market

213
player, and bound by its mistakes or gross errors of jurisdiction. It will never shirk that duty, no matter how
judgment, regardless of the consequences to the buffeted by winds of unfair and ill-informed criticism. 48
Filipino people. The miscomprehension of the
Constitution is regrettable. Thus we would rather Privatization of a business asset for purposes of
remedy the indiscretion while there is still an enhancing its business viability and preventing further
opportunity to do so than let the government develop losses, regardless of the character of the asset, should
the habit of forgetting that the Constitution lays down not take precedence over non-material values. A
the basic conditions and parameters for its actions. commercial, nay even a budgetary, objective should
not be pursued at the expense of national pride and
Since petitioner has already matched the bid price dignity. For the Constitution enshrines higher and
tendered by Renong Berhad pursuant to the bidding nobler non-material values. Indeed, the Court will
rules, respondent GSIS is left with no alternative but to always defer to the Constitution in the proper
award to petitioner the block of shares of MHC and to governance of a free society; after all, there is nothing
execute the necessary agreements and documents to so sacrosanct in any economic policy as to draw itself
effect the sale in accordance not only with the bidding beyond judicial review when the Constitution is
guidelines and procedures but with the Constitution as involved. 49
well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided Nationalism is inherent in the very concept of the
in the bidding rules after the latter has matched the bid Philippines being a democratic and republican state,
of the Malaysian firm clearly constitutes grave abuse of with sovereignty residing in the Filipino people and
discretion. from whom all government authority emanates. In
nationalism, the happiness and welfare of the people
The Filipino First Policy is a product of Philippine must be the goal. The nation-state can have no higher
nationalism. It is embodied in the 1987 Constitution not purpose. Any interpretation of any constitutional
merely to be used as a guideline for future legislation provision must adhere to such basic concept.
but primarily to be enforced; so must it be enforced. Protection of foreign investments, while laudable, is
This Court as the ultimate guardian of the Constitution merely a policy. It cannot override the demands of
will never shun, under any reasonable circumstance, nationalism. 50
the duty of upholding the majesty of the Constitution
which it is tasked to defend. It is worth emphasizing that The Manila Hotel or, for that matter, 51% of the MHC,
it is not the intention of this Court to impede and is not just any commodity to be sold to the highest
diminish, much less undermine, the influx of foreign bidder solely for the sake of privatization. We are not
investments. Far from it, the Court encourages and talking about an ordinary piece of property in a
welcomes more business opportunities but avowedly commercial district. We are talking about a historic relic
sanctions the preference for Filipinos whenever such that has hosted many of the most important events in
preference is ordained by the Constitution. The the short history of the Philippines as a nation. We are
position of the Court on this matter could have not been talking about a hotel where heads of states would
more appropriately articulated by Chief Justice prefer to be housed as a strong manifestation of their
Narvasa - desire to cloak the dignity of the highest state function
to their official visits to the Philippines. Thus the Manila
As scrupulously as it has tried to observe that it is not Hotel has played and continues to play a significant
its function to substitute its judgment for that of the role as an authentic repository of twentieth century
legislature or the executive about the wisdom and Philippine history and culture. In this sense, it has
feasibility of legislation economic in nature, the become truly a reflection of the Filipino soul - a place
Supreme Court has not been spared criticism for with a history of grandeur; a most historical setting that
decisions perceived as obstacles to economic has played a part in the shaping of a country. 51
progress and development . . . in connection with a
temporary injunction issued by the Court's First This Court cannot extract rhyme nor reason from the
Division against the sale of the Manila Hotel to a determined efforts of respondents to sell the historical
Malaysian Firm and its partner, certain statements landmark - this Grand Old Dame of hotels in Asia - to a
were published in a major daily to the effect that that total stranger. For, indeed, the conveyance of this epic
injunction "again demonstrates that the Philippine legal exponent of the Filipino psyche to alien hands cannot
system can be a major obstacle to doing business be less than mephistophelian for it is, in whatever
here." manner viewed, a veritable alienation of a nation's soul
for some pieces of foreign silver. And so we ask: What
Let it be stated for the record once again that while it is advantage, which cannot be equally drawn from a
no business of the Court to intervene in contracts of the qualified Filipino, can be gained by the Filipinos if
kind referred to or set itself up as the judge of whether Manila Hotel - and all that it stands for - is sold to a non-
they are viable or attainable, it is its bounden duty to Filipino? How much of national pride will vanish if the
make sure that they do not violate the Constitution or nation's cultural heritage is entrusted to a foreign
the laws, or are not adopted or implemented with grave entity? On the other hand, how much dignity will be
abuse of discretion amounting to lack or excess of preserved and realized if the national patrimony is

214
safekept in the hands of a qualified, zealous and well- others nuisance candidates who could not wage a
meaning Filipino? This is the plain and simple meaning nationwide campaign and/or are not nominated by a
of the Filipino First Policy provision of the Philippine political party or are not supported by a registered
Constitution. And this Court, heeding the clarion call of political party with a national constituency.
the Constitution and accepting the duty of being the Commissioner Sadain maintained his vote for
elderly watchman of the nation, will continue to respect petitioner. By then, Commissioner Tancangco had
and protect the sanctity of the Constitution. retired.

WHEREFORE, respondents GOVERNMENT In this Petition For Writ of Certiorari, petitioner seeks to
SERVICE INSURANCE SYSTEM, MANILA HOTEL reverse the resolutions which were allegedly rendered
CORPORATION, COMMITTEE ON PRIVATIZATION in violation of his right to "equal access to opportunities
and OFFICE OF THE GOVERNMENT CORPORATE for public service" under Section 26, Article II of the
COUNSEL are directed to CEASE and DESIST from 1987 Constitution,[1] by limiting the number of qualified
selling 51% of the shares of the Manila Hotel candidates only to those who can afford to wage a
Corporation to RENONG BERHAD, and to ACCEPT nationwide campaign and/or are nominated by political
the matching bid of petitioner MANILA PRINCE parties. In so doing, petitioner argues that the
HOTEL CORPORATION to purchase the subject 51% COMELEC indirectly amended the constitutional
of the shares of the Manila Hotel Corporation at P44.00 provisions on the electoral process and limited the
per share and thereafter to execute the necessary power of the sovereign people to choose their leaders.
agreements and documents to effect the sale, to issue The COMELEC supposedly erred in disqualifying him
the necessary clearances and to do such other acts since he is the most qualified among all the presidential
and deeds as may be necessary for the purpose. candidates, i.e., he possesses all the constitutional and
legal qualifications for the office of the president, he is
SO ORDERED. capable of waging a national campaign since he has
numerous national organizations under his leadership,
PAMATONG VS COMELEC (2004) he also has the capacity to wage an international
campaign since he has practiced law in other
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, countries, and he has a platform of government.
Petitioner, versus COMMISSION ON ELECTIONS, Petitioner likewise attacks the validity of the form for
Respondent. the Certificate of Candidacy prepared by the
G.R. No. 161872 | 2004-04-13 COMELEC. Petitioner claims that the form does not
provide clear and reasonable guidelines for
View Summary determining the qualifications of candidates since it
Discussions citing this case or law are available. does not ask for the candidate's bio-data and his
Political Law; Constitutional Law; Self-executing and program of government.
Non-self-executing provisions
Political Law; Constitutional Law; Self-executing and First, the constitutional and legal dimensions involved.
non-self-executing provisions
RESOLUTION Implicit in the petitioner's invocation of the
constitutional provision ensuring "equal access to
Tinga, J.: opportunities for public office" is the claim that there is
a constitutional right to run for or hold public office and,
Petitioner Rev. Elly Velez Pamatong filed his particularly in his case, to seek the presidency. There
Certificate of Candidacy for President on December is none. What is recognized is merely a privilege
17, 2003. Respondent Commission on Elections subject to limitations imposed by law. Section 26,
(COMELEC) refused to give due course to petitioner's Article II of the Constitution neither bestows such a
Certificate of Candidacy in its Resolution No. 6558 right nor elevates the privilege to the level of an
dated January 17, 2004. The decision, however, was enforceable right. There is nothing in the plain
not unanimous since Commissioners Luzviminda G. language of the provision which suggests such a thrust
Tancangco and Mehol K. Sadain voted to include or justifies an interpretation of the sort.
petitioner as they believed he had parties or
movements to back up his candidacy. The "equal access" provision is a subsumed part of
Article II of the Constitution, entitled "Declaration of
On January 15, 2004, petitioner moved for Principles and State Policies." The provisions under
reconsideration of Resolution No. 6558. Petitioner's the Article are generally considered not self-
Motion for Reconsideration was docketed as SPP (MP) executing,[2] and there is no plausible reason for
No. 04-001. The COMELEC, acting on petitioner's according a different treatment to the "equal access"
Motion for Reconsideration and on similar motions filed provision. Like the rest of the policies enumerated in
by other aspirants for national elective positions, Article II, the provision does not contain any judicially
denied the same under the aegis of Omnibus enforceable constitutional right but merely specifies a
Resolution No. 6604 dated February 11, 2004. The guideline for legislative or executive action.[3] The
COMELEC declared petitioner and thirty-five (35)

215
disregard of the provision does not give rise to any
cause of action before the courts.[4] As long as the limitations apply to everybody equally
without discrimination, however, the equal access
An inquiry into the intent of the framers[5] produces the clause is not violated. Equality is not sacrificed as long
same determination that the provision is not self- as the burdens engendered by the limitations are
executory. The original wording of the present Section meant to be borne by any one who is minded to file a
26, Article II had read, "The State shall broaden certificate of candidacy. In the case at bar, there is no
opportunities to public office and prohibit public showing that any person is exempt from the limitations
dynasties."[6] Commissioner (now Chief Justice) or the burdens which they create.
Hilario Davide, Jr. successfully brought forth an
amendment that changed the word "broaden" to the Significantly, petitioner does not challenge the
phrase "ensure equal access," and the substitution of constitutionality or validity of Section 69 of the Omnibus
the word "office" to "service." He explained his proposal Election Code and COMELEC Resolution No. 6452
in this wise: dated 10 December 2003. Thus, their presumed
validity stands and has to be accorded due weight.
I changed the word "broaden" to "ENSURE EQUAL
ACCESS TO" because what is important would be Clearly, therefore, petitioner's reliance on the equal
equal access to the opportunity. If you broaden, it access clause in Section 26, Article II of the
would necessarily mean that the government would be Constitution is misplaced.
mandated to create as many offices as are possible to
accommodate as many people as are also possible. The rationale behind the prohibition against nuisance
That is the meaning of broadening opportunities to candidates and the disqualification of candidates who
public service. So, in order that we should not mandate have not evinced a bona fide intention to run for office
the State to make the government the number one is easy to divine. The State has a compelling interest
employer and to limit offices only to what may be to ensure that its electoral exercises are rational,
necessary and expedient yet offering equal objective, and orderly. Towards this end, the State
opportunities to access to it, I change the word takes into account the practical considerations in
"broaden." [7] (emphasis supplied) conducting elections. Inevitably, the greater the
number of candidates, the greater the opportunities for
Obviously, the provision is not intended to compel the logistical confusion, not to mention the increased
State to enact positive measures that would allocation of time and resources in preparation for the
accommodate as many people as possible into public election. These practical difficulties should, of course,
office. The approval of the "Davide amendment" never exempt the State from the conduct of a
indicates the design of the framers to cast the provision mandated electoral exercise. At the same time,
as simply enunciatory of a desired policy objective and remedial actions should be available to alleviate these
not reflective of the imposition of a clear State burden. logistical hardships, whenever necessary and proper.
Ultimately, a disorderly election is not merely a
Moreover, the provision as written leaves much to be textbook example of inefficiency, but a rot that erodes
desired if it is to be regarded as the source of positive faith in our democratic institutions. As the United States
rights. It is difficult to interpret the clause as operative Supreme Court held:
in the absence of legislation since its effective means
and reach are not properly defined. Broadly written, the [T]here is surely an important state interest in requiring
myriad of claims that can be subsumed under this some preliminary showing of a significant modicum of
rubric appear to be entirely open-ended.[8] Words and support before printing the name of a political
phrases such as "equal access," "opportunities," and organization and its candidates on the ballot - the
"public service" are susceptible to countless interest, if no other, in avoiding confusion, deception
interpretations owing to their inherent impreciseness. and even frustration of the democratic [process].[11]
Certainly, it was not the intention of the framers to inflict
on the people an operative but amorphous foundation The COMELEC itself recognized these practical
from which innately unenforceable rights may be considerations when it promulgated Resolution No.
sourced. 6558 on 17 January 2004, adopting the study
Memorandum of its Law Department dated 11 January
As earlier noted, the privilege of equal access to 2004. As observed in the COMELEC's Comment:
opportunities to public office may be subjected to
limitations. Some valid limitations specifically on the There is a need to limit the number of candidates
privilege to seek elective office are found in the especially in the case of candidates for national
provisions[9] of the Omnibus Election Code on positions because the election process becomes a
"Nuisance Candidates" and COMELEC Resolution No. mockery even if those who cannot clearly wage a
6452[10] dated December 10, 2002 outlining the national campaign are allowed to run. Their names
instances wherein the COMELEC may motu proprio would have to be printed in the Certified List of
refuse to give due course to or cancel a Certificate of Candidates, Voters Information Sheet and the Official
Candidacy. Ballots. These would entail additional costs to the

216
government. For the official ballots in automated on the basis of what is now before it. The assailed
counting and canvassing of votes, an additional page resolutions of the COMELEC do not direct the Court to
would amount to more or less FOUR HUNDRED the evidence which it considered in determining that
FIFTY MILLION PESOS (P450,000,000.00). petitioner was a nuisance candidate. This precludes
the Court from reviewing at this instance whether the
xxx[I]t serves no practical purpose to allow those COMELEC committed grave abuse of discretion in
candidates to continue if they cannot wage a decent disqualifying petitioner, since such a review would
campaign enough to project the prospect of winning, necessarily take into account the matters which the
no matter how slim.[12] COMELEC considered in arriving at its decisions.

The preparation of ballots is but one aspect that would Petitioner has submitted to this Court mere
be affected by allowance of "nuisance candidates" to photocopies of various documents purportedly
run in the elections. Our election laws provide various evincing his credentials as an eligible candidate for the
entitlements for candidates for public office, such as presidency. Yet this Court, not being a trier of facts, can
watchers in every polling place,[13] watchers in the not properly pass upon the reproductions as evidence
board of canvassers,[14] or even the receipt of at this level. Neither the COMELEC nor the Solicitor
electoral contributions.[15] Moreover, there are General appended any document to their respective
election rules and regulations the formulations of which Comments.
are dependent on the number of candidates in a given
election. The question of whether a candidate is a nuisance
candidate or not is both legal and factual. The basis of
Given these considerations, the ignominious nature of the factual determination is not before this Court. Thus,
a nuisance candidacy becomes even more galling. The the remand of this case for the reception of further
organization of an election with bona fide candidates evidence is in order.
standing is onerous enough. To add into the mix
candidates with no serious intentions or capabilities to A word of caution is in order. What is at stake is
run a viable campaign would actually impair the petitioner's aspiration and offer to serve in the
electoral process. This is not to mention the government. It deserves not a cursory treatment but a
candidacies which are palpably ridiculous so as to hearing which conforms to the requirements of due
constitute a one-note joke. The poll body would be process.
bogged by irrelevant minutiae covering every step of
the electoral process, most probably posed at the As to petitioner's attacks on the validity of the form for
instance of these nuisance candidates. It would be a the certificate of candidacy, suffice it to say that the
senseless sacrifice on the part of the State. form strictly complies with Section 74 of the Omnibus
Election Code. This provision specifically enumerates
Owing to the superior interest in ensuring a credible what a certificate of candidacy should contain, with the
and orderly election, the State could exclude nuisance required information tending to show that the candidate
candidates and need not indulge in, as the song goes, possesses the minimum qualifications for the position
"their trips to the moon on gossamer wings." aspired for as established by the Constitution and other
election laws.
The Omnibus Election Code and COMELEC
Resolution No. 6452 are cognizant of the compelling IN VIEW OF THE FOREGOING, COMELEC Case No.
State interest to ensure orderly and credible elections SPP (MP) No. 04-001 is hereby remanded to the
by excising impediments thereto, such as nuisance COMELEC for the reception of further evidence, to
candidacies that distract and detract from the larger determine the question on whether petitioner Elly Velez
purpose. The COMELEC is mandated by the Lao Pamatong is a nuisance candidate as
Constitution with the administration of elections[16] contemplated in Section 69 of the Omnibus Election
and endowed with considerable latitude in adopting Code.
means and methods that will ensure the promotion of
free, orderly and honest elections.[17] Moreover, the The COMELEC is directed to hold and complete the
Constitution guarantees that only bona fide candidates reception of evidence and report its findings to this
for public office shall be free from any form of Court with deliberate dispatch.
harassment and discrimination.[18] The determination
of bona fide candidates is governed by the statutes, SO ORDERED.
and the concept, to our mind is, satisfactorily defined in
the Omnibus Election Code. COUNCIL OF TEACHERS VS SECRETARY OF
EDUCATION (2018)
Now, the needed factual premises.
Doon sa ang trona’y ginawa ng dunong, bagong
However valid the law and the COMELEC issuance kabataa’y sadyang umuusbong, mga kamalia’y
involved are, their proper application in the case of the kanyang natutunton, at dangal ng diwa ang
petitioner cannot be tested and reviewed by this Court pinayayabong; ang liig ng bisyo’y kanyang napuputol;

217
sala’y namumutla kung nasasalubong; sinusupil niya On August 7, 1940, CA No. 586,[14] otherwise known
ang bansang ulupong, at hangal mang tao’y kanyang as the Educational Act of 1940, was enacted to comply
inaampon. with the constitutional mandate on free public primary
education. This resulted in the revision of the public
- Jose Rizal[1] elementary system,[15] which had the following
objectives:
Before the Court are consolidated petitions under Rule
65, assailing the constitutionality of Republic Act (RA) x x x (a) to simplify, shorten, and render more practical
No. 10533[2] (K to 12 Law), RA No. 10157[3] and economical both the primary and intermediate
(Kindergarten Education Act), and related issuances of courses of instruction so as to place the same within
the Department of Education (DepEd), Commission on the reach of the largest possible number of school
Higher Education (CHED), Department of Labor and children; (b) to afford every child of school age
Employment (DOLE) and Technical Education and adequate facilities to commence and complete at least
Skills Development Authority (TESDA) implementing the primary course of instruction; (c) to give every child
the K to 12 Basic Education Program. completing the primary course an adequate working
knowledge of reading and writing, the fundamentals of
History of the Philippines' Basic Education System arithmetic, geography, Philippine history and
government, and character and civic training; and (d)
On January 21, 1901, the Philippine Commission to insure that all children attending the elementary
created the Department of Public Instruction[4] through schools shall remain literate and become useful,
Act No. 74[5]. All schools established under the upright and patriotic citizens.[16]
auspices of the Military Government were made under
the control of the officers of the Department of Public To give effect to the foregoing objectives, the
Instruction[6] and as early as this law, the primary Department of Public Instructions was authorized to
education established through it was considered revise the elementary school curriculum, to be
free.[7] Act No. 74 also made English language as the approved by the President, and adjust the academic
basis of all public school instruction[8] and allowed school calendar to coincide with the working season in
optional religious instruction in all schools.[9] the Philippines.[17] In addition, Section 4 set standards
for the age of admission to public elementary schools
On March 10, 1917, Act No. 2706[10] was passed and the minimum length of time for the completion of
mandating the recognition and inspection of private primary and intermediate courses, to wit:
schools and colleges by the Secretary of Public
Instruction in order to maintain a general standard of SEC. 4. With the approval of the President of the
efficiency in all private schools and colleges.[11] The Philippines, the required age for admission to the
authority of the Secretary over private schools and public elementary schools may be raised to not more
colleges was later on expanded under Commonwealth than nine years and the length of time required for the
Act (CA) No. 180[12]. The Secretary was vested with completion of the elementary instruction comprising
the power "to supervise, inspect and regulate said both the primary and intermediate courses reduced to
schools and colleges in order to determine the not less than five years. Any increase that may be
efficiency of instruction given in the same."[13] approved in accordance with this section regarding the
minimum age of school children shall not affect those
The concept of free public primary instruction was also already enrolled before the school year 1940-1941.
enshrined in the 1935 Philippine Constitution.
Specifically, the State's interest in a complete and The law also made compulsory the attendance and
adequate system of public education was stated in completion of elementary education, except when the
Section 5, Article XIV: child was mentally or physically incapable of attending
school or when it was inconvenient to do so
SEC. 5. All educational institutions shall be under the considering the means of transportation available or on
supervision of and subject to regulation by the State. account of economic condition of the parents the child
The Government shall establish and maintain a could not afford to continue in school.[18] The parents
complete and adequate system of public education, or guardians or those having control of children therein
and shall provide at least free public primary required to attend school without justification were
instruction, and citizenship training to adult citizens. All liable to a fine of not less than twenty nor more than
schools shall aim to develop moral character, personal fifty pesos.[19]
discipline, civic conscience, and vocational efficiency,
and to teach the duties of citizenship. Optional religious In 1947, Executive Order (EO) No. 94[20] was issued
instruction shall be maintained in the public schools as renaming the Department of Instructions to the
now authorized by law. Universities established by the Department of Education.
State shall enjoy academic freedom. The State shall
create scholarships in arts, science, and letters for In 1953, RA No. 896[21] or the Elementary Education
specially gifted citizens. (Emphasis supplied) Act of 1953 was passed, again revising the elementary
school system and instituting a primary course

218
composed of Grades I to IV, and an intermediate
course composed of Grades V to VII, thus: (5) The State shall maintain a system of free public
elementary education and, in areas where finances
SEC. 3. To put into effect the educational policy permit, establish and maintain a system of free public
established by this Act, the Department of Education is education at least up to the secondary level. (Emphasis
hereby authorized to revise the elementary-school supplied)
system on the following basis: The primary course shall
be composed of four grades (Grades I to IV) and the Legislations under the 1973 Philippine Constitution
intermediate course of three grades (Grade V to VII). implemented the foregoing policies. In Batas
Pupils who are in the sixth grade of the time this Act Pambansa (BP) Blg. 232,[27] or the Education Act of
goes into effect will not be required to complete the 1982, it was declared as a policy of the State "to
seventh grade before being eligible to enroll in the first establish and maintain a complete, adequate and
year of the secondary school: Provided, That they shall integrated system of education relevant to the goals of
be allowed to elect to enroll in Grade VII if they so national development."[28] And under BP Blg. 232,
desire. "Formal Education" was defined as the hierarchically
structured and chronologically graded learnings
This law also made the enrollment and completion of organized and provided by the formal school system
elementary education mandatory.[22] Every parent or and for which certification was required in order for the
guardian or other person having custody of any child learner to progress through the grades or move to
was required to enroll such child in a public school higher levels."[29] It corresponded to (1) elementary
upon attaining seven years of age except when: (1) the education, which was primarily concerned with
child enrolled in or transferred in a private school, (2) providing basic education and usually corresponds to
the distance from the home of the child to the nearest six or seven years, including the preschool
public school exceeded three kilometers or the said programs;[30] and (2) secondary education as "the
public school was not safely or conveniently state of formal education following the elementary level
accessible, (3) on account of indigence, the child could concerned primarily with continuing basic education
not afford to be in school, (4) child could not be and expanding it to include the learning of employable
accommodated because of excess enrollment, and (5) gainful skills, usually corresponding to four years of
child was being homeschooled, under the conditions high school."[31] This law also created the Ministry of
prescribed by the Secretary of Education.[23] Education, Culture and Sports,[32] which later on
became the Department of Education Culture and
The revision of the elementary school system was Sports by virtue of EO No. 117.[33]
guided by the policy stated in Section 5, Article XIV of
the 1935 Philippine Constitution and with the As shown above, both the 1935 and 1973 Philippine
consideration that it was "the main function of the Constitution did not state that education at any level
elementary school to develop healthy citizens of good was compulsory. This changed in the 1987 Philippine
moral character, equipped with the knowledge, habits, Constitution, which made elementary education
and ideals needed for a happy and useful home and mandatory, thus:
community life."[24]
Article XIV
In 1972, the Department of Education was again
renamed to Department of Education and Culture, SEC. 1. The State shall protect and promote the right
through Proclamation No. 1081;[25] and was later on of all citizens to quality education at all levels and shall
converted to Ministry of Education and Culture in take appropriate steps to make such education
1978.[26] accessible to all.

The 1973 Philippine Constitution maintained the SEC. 2. The State shall:
State's interest in a free public elementary education.
This concept of free education was, however, xxxx
expanded to the secondary level, if the finances of the
State permitted it, thus: (2) Establish and maintain a system of free public
education in the elementary and high school
Article XV levels.Without limiting the natural right of parents to
rear their children, elementary education is compulsory
SEC. 8. (1) All educational institutions shall be under for all children of school age[.] (Emphasis supplied)
the supervision of, and subject to regulation by, the
State. The State shall establish and maintain a Subsequent legislations implemented the policies
complete, adequate, and integrated system of stated in the 1987 Philippine Constitution. Thus,
education relevant to the goals of national secondary education was provided for free in RA No.
development. 6655,[34] otherwise known as the Free Public
Secondary Education Act of 1988. Under RA No. 6655,
xxxx students in public high schools were free from payment

219
of tuition and other school fees.[35] And in response to of teachers of non-secular subjects. At least twenty
the mandate of the Constitution to promote and make percent (20%) shall go to the improvement or
quality education accessible to all Filipino citizens, RA modernization of buildings, equipment, libraries,
No. 6728,[36] otherwise known as Government laboratories, gymnasia and similar facilities and to the
Assistance To Students and Teachers In Private payment of other costs of operation. For this purpose,
Education Act, was enacted in 1989 where the voucher school shall maintain a separate record of accounts for
system under the Private Education Student Financial all assistance received from the government, any
Assistance Program (PESFA)[37] was implemented as tuition fee increase, and the detailed disposition and
follows: use thereof, which record shall be made available for
periodic inspection as may be determined by the State
SEC. 5. Tuition Fee Supplement for Student in Private Assistance Council, during business hours, by the
High School. — faculty, the non-teaching personnel, students of the
school concerned, the Department of Education,
(1) Financial assistance for tuition for students in Culture and Sports and other concerned government
private high schools shall be provided by the agencies.
government through a voucher system in the following
manner: The voucher system was expanded in RA No.
8545,[38] or the Expanded Government Assistance to
(a) Students and Teachers in Private Education Act, as
For students enrolled in schools charging less than one follows:
thousand five hundred pesos (P1,500) per year in
tuition and other fees during school year 1988-1989 or SEC. 5. Tuition Fee Supplements for Students in
such amount in subsequent years as may be Private High Schools.—
determined from time to time by the State Assistance
Council: The Government shall provide them with a (1) Financial Assistance for tuition for students in
voucher equal to two hundred ninety pesos (P290.00): private high schools shall be provided by the
Provided, That the student pays in the 1989-1990 government through a voucher system in the following
school year, tuition and other fees equal to the tuition manner:
and other fees paid during the preceding academic
year: Provided, further, That the Government shall (a) For students enrolled in schools charging an
reimburse the vouchers from the schools concerned amount as may be determined by the State Assistance
within sixty (60) days from the close of the registration Council, the government shall provide them with a
period: Provided, furthermore, That the student's family voucher in such an amount as may be determined by
resides in the same city or province in which the high the council: Provided, That the government shall
school is located unless the student has been enrolled reimburse the vouchers from the schools concerned
in that school during the previous academic year. within one hundred twenty (120) days from the close of
the registration period.

(b) (2) Assistance under paragraph (1), subparagraph (a)

For students enrolled in schools charging above one shall be guaranteed to all private high schools
thousand five hundred pesos (P1,500) per year in participating in the program for a number of slots as of
tuition and other fees during the school year 1988-1989 the effectivity of this Act as the total number of students
or such amount in subsequent years as may be who availed of tuition fee supplements for school year
determined from time to time by the State Assistance 1997-1998: Provided, That the State Assistance
Council, no assistance for tuition fees shall be granted Council may in subsequent years determine additional
by the Government: Provided, however, That the slots and/or additional participating high schools as
schools concerned may raise their tuition fees subject may be deemed necessary.
to Section 10 hereof.
In the same law, elementary and secondary education
(2) Assistance under paragraph (1), subparagraphs (a) were redefined. Elementary education was the first six
and (b) shall be granted and tuition fees under (6) years of basic education, excluding pre-school and
subparagraph (c) may be increased, on the condition grade seven;[39] while secondary education was the
that seventy percent (70%) of the amount subsidized next four (4) years after completion of basic
allotted for tuition fee or of the tuition fee increases education.[40]
shall go to the payment of salaries, wages, allowances
and other benefits of teaching and non-teaching In 2001, RA No. 8980[41] or the Early Childhood Care
personnel except administrators who are principal and Development (ECCD) Act was implemented. This
stockholders of the school, and may be used to cover law established a national ECCD system which "refers
increases as provided for in the collective bargaining to the full range of health, nutrition, early education and
agreements existing or in force at the time when this social services programs that provide for the basic
Act is approved and made effective: Provided, That holistic needs of young children from birth to age six
government subsidies are not used directly for salaries (6), to promote their optimum growth and

220
development."[42] These programs include, among
others, optional center-based and home-based early 4. Total community commitment to attain basic
childhood education.[43] education competencies for all.

In the same year, RA No. 9155[44] or the Governance Nine Urgent and Critical Tasks
of Basic Education Act of 2001 was enacted. Section 2
thereof declared it as a State policy "to protect and 1. Make every school continuously improve its
promote the right of all citizens to quality basic performance.
education and to make such education accessible to all
by providing all Filipino children a free and compulsory 2. Expand early childhood care and development
education in the elementary level and free education in coverage to yield more EFA benefits.
the high school level."[45] Basic education was defined
in this law as "the education intended to meet basic 3. Transform existing non-formal and informal learning
learning needs which lays the foundation on which options into a truly viable alternative learning system
subsequent learning can be based. It encompasses yielding more EFA benefits;
early childhood, elementary and high school education
as well as alternative learning systems for out-of- 4. Get all teachers to continuously improve their
school youth and adult learners and includes education teaching practices.
for those with special needs."[46] It was also in this law
where the then Department of Education Culture and 5. Increase the cycle of schooling to reach 12 years of
Sports was renamed the DepEd.[47] formal basic education.

Education for All 2015 and the Kindergarten Education 6. Continue enrichment of curriculum development in
Act the context of pillars of new functional literacy;

In 2000, at the World Education Forum in Dakar, 7. Provide adequate and stable public funding for
Senegal, one hundred sixty four (164) governments, country-wide attainment of EFA goals;
including the Philippines, pledged to achieve, by 2015,
the following six (6) Education for All (EFA) goals: (1) 8. Create network of community-based groups for local
expansion and improvement of early childhood care attainment of EFA goals; Monitor progress in effort
and education; (2) universal access to complete free towards attainment of EFA goals.[52]
and compulsory primary education of good quality; (3)
equitable access to appropriate learning and life skills On January 20, 2012, the Philippine Congress took a
program for youth and adult; (4) improvement of levels pivotal step towards the realization of the country's
of adult literacy, especially for women; (5) gender parity EFA goals with the enactment of the Kindergarten
and equality in education; and (6) improvement of all Education Act. Section 2 thereof declared it the policy
aspects of the quality of education and ensuring their of the State "to provide equal opportunities for all
excellence.[48] children to avail of accessible mandatory and
compulsory kindergarten education that effectively
In consonance with the country's agreement to achieve promotes physical, social, intellectual, emotional and
these goals, the DepEd, in 2002, undertook the skills stimulation and values formation to sufficiently
preparation of the Philippine EFA 2015 Plan of Action, prepare them for formal elementary schooling" and "to
in collaboration with various stakeholders at the make education learner-oriented and responsive to the
national and field levels, including relevant government needs, cognitive and cultural capacity, the
agencies and civil society groups.[49] The primary goal circumstances and diversity of learners, schools and
of the Philippine EFA 2015 Plan of Action, which the communities through the appropriate languages of
government officially adopted in 2006,[50] is to provide teaching and learning."
"basic competencies for all that will bring about
functional literacy."[51] The Philippine EFA 2015 Plan The Kindergarten Education Act institutionalized
of Action translated the sic (6) Dakar goals into four (4) kindergarten education, which is one (1) year of
objectives and nine (9) critical tasks, to wit: preparatory education for children at least five years
old,[53] as part of basic education, and is made
Universal Goals and Objectives of Philippine EFA 2015 mandatory and compulsory for entrance to Grade
1.[54] It also mandated the use of the learner's mother
1. Universal Coverage of out of school youth and adults tongue, or the language first learned by a child,[55] as
in providing learning needs; the primary medium of instruction in the kindergarten
level in public schools, except for the following cases
2. Universal school participation and total elimination of wherein the primary medium of instruction would be
dropouts and repeaters in grades 1-3; determined by the DepEd:

3. Universal completion of the full basic education cycle

with satisfactory annual achievement levels; and

221
a. When the pupils in the kindergarten classroom have Presidential Task Force on Education (2008)
different mother tongues or when some of them speak emphasized that in a 12-year pre-university program, it
another mother tongue; was important "to specify the content of the 11th and
the 12th years and benchmark these with programs
b. When the teacher does not speak the mother tongue abroad."[60]
of the learners;
Despite these proposals, the 10-year basic education
c. When resources, in line with the use of the mother cycle remained in force. Thus, prior to the enactment
tongue, are not yet available; and of the K to 12 Law, the Philippines, joined only by
Djibouti and Angola, were the only countries in the
d. When teachers are not yet trained how to use the world with a 10-year basic education system.[61]
Mother Tongue- Based Multilingual Education (MTB-
MLE) program.[56] To be at par with international standards and in line
with the country's commitment in EFA 2015, the
On April 17, 2012, DepEd, in consultation with the Philippine Congress, on May 15, 2013, passed the K
Department of Budget and Management, issued to 12 Law, which took effect on June 8, 2013. The K to
DepEd Order (DO) No. 32,[57] the Kindergarten 12 Law seeks to achieve, among others, the following
Education Act's implementing rules and regulations. objectives: (1) decongest the curriculum; (2) prepare
DO No. 32 provides that the Kindergarten Education the students for higher education; (3) prepare the
General Curriculum (KEGC) shall focus on the child's students for the labor market; and (4) comply with
total development according to his/her individual needs global standards.[62]
and socio-cultural background. The KEGC shall be
executed in a play-based manner and shall address One of the salient features of the K to 12 Law is the
the unique needs of diverse learners, including gifted expansion of basic education from ten (10) years to
children, children with disabilities, and children thirteen (13) years, encompassing "at least one (1)
belonging to indigenous groups.[58] year of kindergarten education, six (6) years of
elementary education, and six (6) years of secondary
The K to 12 Law and related issuances. education x x x. Secondary education includes four (4)
years of junior high school and two (2) years of senior
Before the enactment of the K to 12 Law, the high school education."[63]
Philippines was the only country in Asia and among the
three remaining countries in the world that had a 10- The K to 12 Law also adopts the following key changes
year basic education program.[59] The expansion of in the Basic Education Curriculum (BEC): (1) Mother
the basic education program, however, is an old Tongue (MT) will be used as a primary medium of
proposal dating to 1925. The studies are as follows: (a) instruction from Kindergarten to Grade 3 and an
the Monroe Survey (1925) stated that secondary additional learning area in Grades 1 to 3;[64] (2) the
education did not prepare for life and recommended time allotted per learning area in elementary will
training in agriculture, commerce, and industry; (b) the generally be reduced to allow off-school learning
Prosser Survey (1930) recommended to improve experiences at home or in the community; while the
phases of vocational education such as 7thgrade time allotment in secondary level will generally
shopwork, provincial schools, practical arts training in increase in view of the additional two (2) years in
the regular high schools, home economics, placement Senior High School;[65] (3) the spiral progression
work, gardening, and agricultural education; (c) the approach will be used in Science, Mathematics, Araling
UNESCO Mission Survey (1949) recommended the Panlipunan, MAPEH and Edukasyon sa
restoration of Grade 7; (d) the Education Act of 1953 Pagpapakatao, wherein the learning process is built
mandated that the primary course be composed of four upon previously learned knowledge for students to
grades (Grades I to IV) and the intermediate course of master their desired competencies by revisiting the
three grades (Grade V to VII); (e) the Swanson Survey subject several times and relating new knowledge or
(1960) recommended the restoration of Grade 7; (f) skills with the previous one;[66] and (4) specialization
Presidential Commission to Survey Philippine courses will be offered to prepare students for
Education (PCSPE) (1970) gave high priority to the employment or engage in profitable enterprise after
implementation of an 11-year program, consisting of high school.[67]
six years of compulsory elementary education and five
years of secondary education; (g) Congressional Apart from mastering core subjects, the additional two
Commission on Education (EDCOM) Report (1991), (2) years of Senior High School will allow students to
recommended that if one year was to be added, it might choose among academic, technical-vocational, or
either be seven years of elementary education or five sports and arts, as specialization, based on aptitude,
years of secondary education; (h) Presidential interest and school capacity.[68] Hence, graduates of
Commission on Educational Reforms (2000) proposed Senior High School under the K to 12 BEC are
to include the establishment of a one-year pre- envisioned to already be prepared for employment,
baccalaureate system that would also bring the entrepreneurship, or middle-level skills development
Philippines at par with other countries; and (i) should they opt not to pursue college education.[69]

222
 The curriculum shall use the spiral progression
Furthermore, the K to 12 Law extends the benefits approach to ensure mastery of knowledge and skills
provided under RA No. 8545 to qualified students.[70] after each level; and
DepEd is mandated to engage the services of private
education institutions and non-DepEd schools offering
Senior High School through the programs under RA (h)
No. 8545 and other financial arrangements based on The curriculum shall be flexible enough to enable and
the principle of public-private partnership. allow schools to localize, indigenize and enhance the
same based on their respective educational and social
The K to 12 Law also imposes upon the DepEd, CHED, contexts. The production and development of locally
and TESDA, the task to promulgate the implementing produced teaching materials shall be encouraged and
rules and regulations, which shall provide, among approval of these materials shall devolve to the
others, appropriate strategies and mechanisms to regional and division education units.[73]
ensure the smooth transition from the existing 10-year
basic education cycle to the K to 12 cycle addressing On September 4, 2013, the K to 12 implementing rules
issues such as multi-year low enrollment and and regulation (K to 12 IRR) were issued.[74] Rule VI
displacement of faculty of Higher Education Institutions of the K to 12 IRR covers the implementation of RA No.
(HEIs) and Technical Vocational Institutions (TVIs).[71] 8545 for qualified students enrolled in senior high
school. The programs of assistance are available
DepEd is likewise mandated to coordinate with TESDA primarily to students who complete junior high school
and CHED in designing the enhanced BEC to ensure in public schools and taking into consideration other
college readiness and avoid remedial and duplication factors such as income background and financial
of basic education subjects;[72] and to consult other needs of the students.[75] The forms of assistance that
national government agencies and other stakeholders the DepEd may provide include a voucher system,
in developing the K to 12 BEC, which shall adhere to "where government issues a coupon directly to
the following standards: students to enable them to enroll in eligible private
education institutions or non-DepEd public schools of
(a) their choice under a full or partial tuition or schooling
The curriculum shall be learner-centered, inclusive and subsidy".[76]
developmentally appropriate;
Further, Section 31 of the K to 12 IRR confers upon the
DepEd, in collaboration with the DOLE, CHED and
(b) TESDA, the duty to promulgate the appropriate joint
The curriculum shall be relevant, responsive and administrative issuance to ensure the sustainability of
research-based; the private and public educational institutions, and the
promotion and protection of the rights, interests and
welfare of teaching and non-teaching personnel. For
(c) this purpose, the DOLE was tasked to convene a
The curriculum shall be culture-sensitive; technical panel with representatives from the DepEd,
CHED, TESDA and representatives from both teaching
and non-teaching personnel organizations, and
(d) administrators of educational institutions.[77]
The curriculum shall be contextualized and global;
In compliance with the foregoing mandate, DOLE
organized three area-wide tripartite education fora on
(e) K to 12 in Luzon, Visayas and Mindanao. DOLE also
The curriculum shall use pedagogical approaches that conducted regional consultations with HEIs, teaching
are constructivist, inquiry-based, reflective, and non- teaching personnel.[78]
collaborative and integrative;
As a result of the tripartite consultations, DOLE,
DepEd, TESDA and CHED issued on May 30, 2014 the
(f) Joint Guidelines on the Implementation of the Labor
The curriculum shall adhere to the principles and and Management Component of Republic Act No.
framework of Mother Tongue-Based Multilingual 10533 (Joint Guidelines). The Joint Guidelines was
Education (MTB-MLE) which starts from where the issued to (a) ensure the sustainability of private and
learners are and from what they already knew public educational institutions; (b) protect the rights,
proceeding from the known to the unknown; interests, and welfare of teaching and non-teaching
instructional materials and capable teachers to personnel; and (c) optimize employment retention or
implement the MTB-MLE curriculum shall be available; prevent, to the extent possible, displacement of faculty
and non-academic personnel in private and public
HEIs during the transition from the existing 10 years
(g)

223
basic education cycle to the enhanced K to 12 basic The K to 12 basic education was implemented in parts.
education.[79] Universal kindergarten was offered starting School
Year (SY) 2011-2012.[81] In 2012, DepEd started
To achieve these goals, the Joint Guidelines provides unclogging the BEC to conform to the K to 12
that the following, in the exercise of management Curriculum. Thus, DO No. 31 was issued setting forth
prerogative, shall be observed: policy guidelines in the implementation of the Grades 1
to 10 of the K to 12 Curriculum. DO No. 31 provides
a. ensure the participation of workers in decision and that effective SY 2012-2013, the new K to 12 BEC,
policy- making processes affecting their rights, duties, which follows a spiral approach across subjects and
and welfare; uses the mother tongue as a medium of instruction
from Grades 1 to 3, shall be first implemented in
b. the DepEd and private educational institutions may Grades 1 and 7 of all public elementary and secondary
hire, as may be relevant to the particular subject, schools; and while private schools are enjoined to do
graduates of science, mathematics, statistics, the same, they may further enhance the curriculum to
engineering, music and other degree courses needed suit their school's vision/mission.[82]
to teach in their specialized subjects in elementary and
secondary education, provided they passed the Five (5) school years from SY 2012-2013, the
Licensure Examination for Teachers; implementation of the K to 12 basic education was to
be completed. In 2018, the first group of Grade 6 and
c. graduates of technical-vocational courses may teach Grade 12 students under the K to 12 BEC are set to
in their specialized subjects in secondary education, graduate.
provided that they possess the necessary certification
from TESDA and undergo in-service training; Accordingly, to accommodate the changes brought
about by the K to 12 Law, and after several public
d. the DepEd and private educational institutions may consultations with stakeholders were held,[83] CMO
hire practitioners, with expertise in the specialized No. 20, entitled General Education Curriculum: Holistic
learning areas, to teach in the secondary level, Understandings, Intellectual and Civic Competencies
provided that they teach on part-time basis only; was issued on June 28, 2013. CMO No. 20 provides
the framework and rationale of the revised General
e. faculty of HEIs offering secondary education shall be Education (GE) curriculum. It sets the minimum
given priority in hiring, provided said faculty is a holder standards for the GE component of all degree
of a relevant Bachelor's degree and must have programs that applies to private and public HEIs in the
satisfactorily served as a full time HEI faculty; country.[84]

f. if it is impossible for the affected HEI faculty members Previously, there were two General Education
and academic support personnel to be placed within Curricula (GECs), GEC-A and GEC-B. CMO No. 59,
the institution, they shall be prioritized in hiring in other Series of 1996 provided for GEC-A, which required 63
private and public senior high schools (SHS); units divided into 24 units of language and literature,
15 units of mathematics and natural sciences, 6 units
g. faculty of HEIs may be allowed to teach in their of humanities, 12 units of social sciences, and 6 units
general education or subject specialties in secondary of mandated subjects. This was taken by students
education, provided said faculty is a holder of a majoring in the humanities, social sciences, or
relevant Bachelor's degree and must have communication. Meanwhile, CMO No. 4, series of 1997
satisfactorily served as a full time HEI faculty; implemented GEC-B, which was taken by all other
students. GEC-B required 51 units divided into 21 units
h. without prejudice to existing collective bargaining of language and humanities, 15 units of mathematics,
agreements or institutional policies, HEI faculty and natural sciences, and information technology, 12 units
non-teaching personnel who may not be considered of social sciences, and 3 units of mandated subjects.
may avail of the retrenchment program pursuant to the
provisions of the Labor Code; and Under CMO No. 20, the GE curriculum became
outcome-oriented and categorized into: (a) Intellectual
i. in educational institutions where there is no collective Competencies; (b) Personal and Civic Competencies;
agreement or organized labor union, management may and (c) Practical Responsibilities.[85] This GE
adopt policies in consultation with faculty or non- curriculum requires the completion of 36 units as
academic clubs or associations in the school compared to the previous 63/51 units requirement.
consistent and in accordance with the aforementioned These 36 units are distributed as follows: 24 units of
criteria.[80] core courses; 9 units of elective courses; and 3 units
on the life and works of Rizal.[86] The required GE core
K to 12 Program Implementation and CHED courses are: (1) Understanding the Self; (2) Readings
Memorandum Order (CMO) No. 20, Series of 2013 in Philippine History; (3) The Contemporary World; (4)
Mathematics in the Modern World; (5) Purposive
Communication; (6) Art Appreciation; (7) Science,

224
Technology and Society; and (8) Ethics.[87] Further, direct injury from the K to 12 BEC and implementation
the GE curriculum provided an element of of the two (2) additional years of high school, docketed
choice[88]through elective courses which include the as G.R. No. 218465; and
following: (1) Mathematics, Science and Technology;
(2) Social Sciences and Philosophy; and (3) Arts and 7. Petition for Certiorari and Prohibition filed by Dr.
Humanities.[89] Bienvenido Lumbera and several others who are
faculty and staff of colleges and universities in the
The Petitions Philippines who stand to suffer direct injury in the
implementation of CMO No. 20 and Congressman
Claiming that the K to 12 Basic Education Program Antonio Tinio and other party-list representatives in
violates various constitutional provisions, the following their capacities as members of the Congress, who are
petitions were filed before the Court praying that the also collectively suing in their capacities as taxpayers
Kindergarten Education Act, K to 12 Law, K to 12 IRR, and concerned citizens, docketed as G.R. No.
DO No. 31, Joint Guidelines, and CMO No. 20, be 217451.[96]
declared unconstitutional:
The present consolidated petitions pray for the
1. Petition for Certiorari[90] filed by Council for issuance of a Temporary Restraining Order (TRO)
Teachers and Staff of Colleges and Universities of the and/or Writ of Preliminary Injunction against the
Philippines and several other organizations duly implementation of the K to 12 Law and other
organized under Philippine laws, representing faculty administrative issuances in relation thereto.
and staff of colleges and universities in the Philippines,
docketed as G.R. No. 216930; The Solicitor General, on behalf of the public
respondents, opposed these petitions.[97] Private
2. Petition to Declare Republic Act No. 10533, respondent Miriam College in G.R. No. 216930 also
otherwise known as the "Enhanced Basic Education filed its Comment/Opposition.[98]
Act of 2013," as Unconstitutional and/or Illegal[91] filed
by petitioners Antonio "Sonny" Trillanes, Gary C. On April 21, 2015, the Court issued a TRO in G.R. No.
Alejano, and Francisco Ashley L. Acedillo, in their 217451, enjoining the implementation of CMO No. 20
capacities as citizens, taxpayers, and members of insofar only as it excluded from the curriculum for
Congress, docketed as G.R. No. 217752; college the course Filipino and Panitikan as core
courses.[99]
3. Petition to Declare Unconstitutional, Null, Void, and
Invalid Certain Provisions of R.A. No. 10533 And However, in G.R. Nos. 216930, 217752, 218045,
Related Department of Education (DepEd) 218098, 218923 and 218465, the Court denied
Implementing Rules and Regulations, Guidelines or petitioners' prayer for issuance of TRO and/or Writ of
Orders[92] filed by petitioners Eduardo R. Alicias, Jr. Preliminary Injunction on the implementation of the K
and Aurelio P. Ramos, Jr., in their capacities as citizen, to 12 Law, its implementing rules, the Kindergarten
taxpayer, parent and educator, docketed as G.R. No. Education Act, and other administrative issuances in
218045; relation thereto, for lack of merit. [100]

4. Petition for Certiorari, Prohibition and Mandamus[93] In the Resolutions dated April 5, 2016[101] and April
filed by petitioner Richard Troy A. Colmenares in his 12, 2016,[102] the Court directed the parties to submit
capacity as citizen invoking strong public interest and their respective memoranda.
transcendental importance, petitioners Kathlea
Francynn Gawani D. Yañgot and several others, as a The Issues
class, and on behalf of others who stand to suffer direct
injury as a result of the implementation of the K to 12 Culled from the submissions of petitioners, public
Basic Education Program, and petitioners Rene Luis respondents, through the Office of the Solicitor General
Tadle and several others, in their capacities as (OSG), and respondent Miriam College, the following
taxpayers concerned that public funds are being are the issues for the Court's resolution:
illegally and improperly disbursed through the
enforcement of the invalid or unconstitutional laws and A. Procedural:
issuances, docketed as G.R. No. 218098;
1. Whether the Court may exercise its power of judicial
5. Petition for Certiorari and Prohibition,[94] docketed review over the controversy;
as G.R. No. 218123, filed by Antonio Tinio, et al., suing
in their capacities as taxpayers and concerned citizens; 2. Whether certiorari, prohibition and mandamus are
proper remedies to assail the laws and issuances.
6. Petition for Certiorari, Prohibition and Mandamus[95]
filed by petitioners Spouses Ma. Dolores M. Brillantes B. Substantive:
and Severo L. Brillantes and several others, as
students, parents and teachers, who stand to suffer 1. Whether the K to 12 Law was duly enacted;

225
2. Whether the K to 12 Law constitutes an undue a. RA No. 7104 or the Commission on the Filipino
delegation of legislative power; Language Act;

3. Whether DO No. 31 is valid and enforceable; b. BP Blg. 232 or the Education Act of 1982; and

4. Whether the K to 12 Law, K to 12 IRR, DO No. 31 c. RA No. 7356 or the Act Creating the National
and/or the Joint Guidelines contravene provisions of Commission for Culture and the Arts, Establishing
the Philippine Constitution on: National Endowment Fund for Culture and the Arts and
For Other Purposes.
a. establishing and maintaining a system of free
elementary and high school education and making 7. Whether the K to 12 Law violates petitioners' right to
elementary education compulsory for all children of substantive due process and equal protection of the
school age (Section 2[2], Article XIV); laws.

b. the right to accessible and quality education at all THE COURT'S RULING
levels and duty of the State to make such education
accessible to all (Section 1, Article XIV); Procedural Issues

c. the primary duty of parents to rear and prepare their Power of Judicial Review and the Remedies of
children (Section 2[2], Article XIV); Certiorari, Prohibition and Mandamus

d. the right of every citizen to select a profession or The OSG submits that the cases filed by petitioners
course of study (Section 5[3], Article XIV); involve the resolution of purely political questions
which go into the wisdom of the law: they raise
e. patriotism and nationalism (Sections 13 and 17, questions that are clearly political and non-justiciable
Article II, Section 3[1] and [2], Article XIV); and outside the power of judicial review.[103] The OSG
further asserts that the remedies of certiorari and
f. the use of Filipino as medium of official prohibition sought by petitioners are unwarranted
communication and as language of instruction in the because Congress, DepEd and CHED did not exercise
educational system (Section 6, Article XIV); and judicial, quasi-judicial or ministerial function, nor did
regional languages as auxiliary media of instruction they unlawfully neglect the performance of an act
(Section 7, Article XIV); which the law specifically enjoins as a duty, with regard
to the assailed issuances.[104]
g. academic freedom (Section 5[2], Article XIV); and
The Court disagrees.
h. the right of labor to full protection (Section 18, Article
II, Section 3, Article XIII and Section 5[4], Article XIV); The political question doctrine is "no longer the
Whether CMO No. 20 contravenes provisions of the insurmountable obstacle to the exercise of judicial
Philippine Constitution on: power or the impenetrable shield that protects
executive and legislative actions from judicial inquiry or
5. the use of Filipino as medium of official review"[105] under the expanded definition of judicial
communication and as language of instruction in the power of the 1987 Philippine Constitution. Section 1,
educational system (Section 6, Article XIV); Article VIII thereof authorizes courts of justice not only
"to settle actual case controversies involving rights
a. preservation, enrichment, and dynamic evolution of which are legally demandable and enforceable" but
a Filipino national culture (Sections 14, 15, and 16, also "to determine whether there has been grave
Article XIV); abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality
b. inclusion of the study of the Philippine Constitution of the Government."
as part of the curriculum of all educational institutions
(Section 3[1], Article XIV); In determining whether grave abuse of discretion
amounting to excess or lack of jurisdiction has been
c. giving priority to education to foster patriotism and committed by any branch or instrumentality of the
nationalism (Section 17, Article II and Sections 2 and government, the Court is guided primarily, by the
3, Article XIV); and Constitution, and secondarily, by existing domestic and
international law, which set limits or conditions to the
d. the protection of the rights of workers and promotion powers and functions conferred upon these political
of their welfare (Section 18, Article II and Section 3, bodies.[106] Thus, when a case is brought before the
Article XIII). Court with serious allegations that a law or executive
issuance infringes upon the Constitution, as in these
6. Whether CMO No. 20 violates the following laws: consolidated cases, it becomes not only the right but in

226
fact the duty of the Court to settle the dispute.[107] In considering that the RH Law and its implementing rules
doing so, the Court is "not judging the wisdom of an act had already taken effect and that budgetary measures
of a coequal department, but is merely ensuring that to carry out the law had already been passed.
the Constitution is upheld."[108] And, if after said Moreover, the petitioners therein had sufficiently
review, the Court does not find any constitutional shown that they were in danger of sustaining some
infringement, then, it has no more authority to proscribe direct injury as a result of the act complained of.[116]
the actions under review.[109]
Similar to Imbong, these consolidated cases present
Moreover, that the assailed laws and executive an actual case or controversy that is ripe for
issuances did not involve the exercise of judicial or adjudication. The assailed laws and executive
quasi-judicial function is of no moment. Contrary to the issuances have already taken effect and petitioners
Solicitor General's assertion, it has long been judicially herein, who are faculty members, students and
settled that under the Court's expanded jurisdiction, the parents, are individuals directly and considerably
writs of certiorari and prohibition are appropriate affected by their implementation.
remedies to raise constitutional issues and to review
and/or prohibit or nullify, on the ground of grave abuse Legal Standing
of discretion, any act of any branch or instrumentality
of the government, even if the latter does not exercise Legal standing refers to a personal and substantial
judicial, quasi-judicial or ministerial functions.[110] interest in a case such that the party has sustained or
will sustain direct injury as a result of the challenged
That said, the Court's power is not unbridled authority governmental act.[117] In constitutional cases, which
to review just any claim of constitutional violation or are often brought through public actions and the relief
grave abuse of discretion. The following requisites prayed for is likely to affect other persons,[118] non-
must first be complied with before the Court may traditional plaintiffs have been given standing by this
exercise its power of judicial review, namely: (1) there Court provided specific requirements have been
is an actual case or controversy calling for the exercise met.[119]
of judicial power; (2) the petitioner has standing to
question the validity of the subject act or issuance, i.e., When suing as a concerned citizen, the person
he has a personal and substantial interest in the case complaining must allege that he has been or is about
that he has sustained, or will sustain, direct injury as a to be denied some right or privilege to which he is
result of the enforcement of the act or issuance; (3) the lawfully entitled or that he is about to be subjected to
question of constitutionality is raised at the earliest some burdens or penalties by reason of the statute or
opportunity; and (4) the constitutional question is the act complained of.[120]
very lis mota of the case.[111] Of these four, the most
important are the first two requisites, and thus will be In the case of taxpayers, they are allowed to sue where
the focus of the following discussion. there is a claim that public funds are illegally disbursed
or that public money is being deflected to any improper
Actual case or controversy purpose, or that public funds are wasted through the
enforcement of an invalid or unconstitutional law.[121]
An actual case or controversy is one which involves a
conflict of legal rights, an assertion of opposite legal On the other hand, legislators have standing to
claims, susceptible of judicial resolution as maintain inviolate the prerogatives, powers, and
distinguished from a hypothetical or abstract difference privileges vested by the Constitution in their office and
or dispute since the courts will decline to pass upon are allowed to sue to question the validity of any official
constitutional issues through advisory opinions, bereft action which infringe upon their legislative
as they are of authority to resolve hypothetical or moot prerogatives.[122]
questions.[112] Related to the requirement of an actual An organization, asserting the rights of its members,
case or controversy is the requirement of "ripeness," may also be granted standing by the Court.[123]
and a question is ripe when the act being challenged
has a direct effect on the individual challenging it.[113] Petitioners in G.R. Nos. 216930 and 218465 include
For a case to be considered ripe for adjudication, it is a organizations/federations duly organized under the
prerequisite that an act had been accomplished or laws of the Philippines, representing the interest of the
performed by either branch of government before a faculty and staff of their respective colleges and
court may interfere, and the petitioner must allege the universities, who allegedly are threatened to be
existence of an immediate or threatened injury to demoted or removed from employment with the
himself as a result of the challenged action.[114] implementation of the K to 12 Law. Petitioners in G.R.
Nos. 217752 and 218045 are suing as citizens,
Relevantly, in Sps. Imbong v. Ochoa, Jr.,[115] taxpayers and in their personal capacities as parents
(Imbong) where the constitutionality of the whose children would be directly affected by the law in
Reproductive Health Law was challenged, the Court question. Petitioners in G.R. Nos. 218123 and 217451
found that an actual case or controversy existed and are suing in their capacities as teachers who allegedly
that the same was ripe for judicial determination are or will be negatively affected by the implementation

227
of the K to 12 Law and CMO No. 20, respectively, agencies and the private educational institutions in the
through job displacement and diminution of benefits; implementation of the K to 12 Law and address all
and as taxpayers who have the right to challenge the issues on labor.[132]
K to 12 Law and CMO No. 20 as public funds are spent
and will be spent for its implementation. The Court holds that, contrary to petitioners'
contention, the K to 12 Law was validly enacted.
Under the circumstances alleged in their respective
petitions, the Court finds that petitioners have sufficient First, petitioners' claim of lack of prior consultations is
legal interest in the outcome of the controversy. And, belied by the nationwide regional consultations
considering that the instant cases involve issues on conducted by DepEd pursuant DepEd Memorandum
education, which under the Constitution the State is Nos. 38[133] and 98,[134] series of 2011. The regional
mandated to promote and protect, the stringent consultations, which aimed "to inform the public [and]
requirement of direct and substantial interest may be to elicit their opinions, thoughts, and suggestions about
dispensed with, and the mere fact that petitioners are the K to 12 program,"[135]ran from February to March
concerned citizens asserting a public right, sufficiently 2011 and were participated in by students, parents,
clothes them with legal standing to initiate the instant teachers and administrators, government
petition.[124] representatives, and representatives from private
schools and private sectors.[136]
Substantive Issues
The Philippine Congress, in the course of drafting the
I. K to 12 Law, also conducted regional public hearings
between March 2011 to February 2012, wherein
K to 12 Law was duly enacted representatives from parents-teachers' organizations,
business, public/private school heads, civil society
Petitioners question the validity of the enactment of the groups/non-government organizations/private
K to 12 Law claiming that: (1) sectors which would be organizations and local government officials and staffs
directly affected by the K to 12 Basic Education were among the participants.[137] And even assuming
Program were deprived of their right, under Section 16, that no consultations had been made prior to the
Article XIII of the 1987 Constitution, to be consulted or adoption of the K to 12, it has been held that the
participate in matters which involved their interest prior "[p]enalty for failure on the part of the government to
to the passage of the law;[125] (2) the enrolled bill consult could only be reflected in the ballot box and
which the President signed into law varies significantly would not nullify government action."[138]
from the reconciled version of the bill as approved by
Congress and reported in the Senate Journal on Second, the enrolled bill doctrine applies in this case.
January 30, 2013,[126] and that the Court, pursuant to Under the "enrolled bill doctrine," the signing of a bill by
its ruling in Astorga v. Villegas,[127] (Astorga) should the Speaker of the House and the Senate President
look into the entries in the Journal to determine and the certification of the Secretaries of both Houses
whether the K to 12 Law was duly enacted;[128] and of Congress that it was passed is conclusive not only
(3) the K to 12 Law was incomplete because it failed to as to its provisions but also as to its due
provide sufficient standards by which the DepEd, enactment.[139] The rationale behind the enrolled bill
CHED and TESDA, might be guided in addressing the doctrine rests on the consideration that "[t]he respect
possible impact of the implementation of the K to 12 due to coequal and independent departments requires
Law on labor; thus, Section 31 of the K to 12 IRR and the [Judiciary] to act upon that assurance, and to
the Joint Guidelines, which spring forth from such accept, as having passed Congress, all bills
undue delegation of legislative power, are invalid and authenticated in the manner stated; leaving the court
unconstitutional.[129] to determine, when the question properly arises, [as in
the instant consolidated cases], whether the Act, so
For its part, the OSG contends that the K to 12 Law authenticated, is in conformity with the
was enacted in accordance with the procedure Constitution."[140]
prescribed in the Constitution and that contrary to
petitioners' assertion, the text of the enrolled bill which Jurisprudence will show that the Court has consistently
was eventually signed into law is not different from the adhered to the enrolled bill doctrine. Claims that the
consolidated bill drafted by the Bicameral Conference required three-fourths vote for constitutional
Committee and approved by the Senate and House of amendment has not been obtained,[141] that
Representatives.[130] Further, the OSG argues that irregularities attended the passage of the law,[142] that
there is no undue delegation of legislative power the tenor of the bill approved in Congress was different
because the K to 12 Law provides a sufficient standard from that signed by the President,[143]that an
on the impact on labor due to its implementation.[131] amendment was made upon the last reading of the
bill,[144] and even claims that the enrolled copy of the
Private respondent Miriam College shares the same bill sent to the President contained provisions which
view that the K to 12 Law sufficiently provided had been "surreptitiously" inserted by the conference
standards to guide the relevant administrative committee,[145] had all failed to convince the Court to

228
look beyond the four corners of the enrolled copy of the harmony with local and global communities, the
bill. capability to engage in autonomous, creative, and
critical thinking, and the capacity and willingness to
As correctly pointed out by private respondent Miriam transform others and one's self.
College, petitioners' reliance on Astorga is quite
misplaced. They overlooked that in Astorga, the For this purpose, the State shall create a functional
Senate President himself, who authenticated the bill, basic education system that will develop productive
admitted a mistake and withdrew his signature, so that and responsible citizens equipped with the essential
in effect there was no longer an enrolled bill to competencies, skills and values for both life-long
consider.[146] Without such attestation, and learning and employment. In order to achieve this, the
consequently there being no enrolled bill to speak of, State shall:
the Court was constrained to consult the entries in the
journal to determine whether the text of the bill signed (a) Give every student an opportunity to receive quality
by the Chief Executive was the same text passed by education that is globally competitive based on a
both Houses of Congress.[147] pedagogically sound curriculum; that is at par with
international standards;
In stark contrast to Astorga, this case presents no
exceptional circumstance to justify the departure from (b) Broaden the goals of high school education for
the salutary rule. The K to 12 Law was passed by the college preparation, vocational and technical career
Senate and House of Representatives on January 20, opportunities as well as creative arts, sports and
2013, approved by the President on May 15, 2013, entrepreneurial employment in a rapidly changing and
and, after publication, took effect on June 8, 2013. increasingly globalized environment; and
Thus, there is no doubt as to the formal validity of the
K to 12 Law. (c) Make education learner-oriented and responsive to
the needs, cognitive and cultural capacity, the
Third, there is no undue delegation of legislative power circumstances and diversity of learners, schools and
in the enactment of the K to 12 Law. communities through the appropriate languages of
teaching and learning, including mother tongue as a
In determining whether or not a statute constitutes an learning resource.
undue delegation of legislative power, the Court has
adopted two tests: the completeness test and the Moreover, scattered throughout the K to 12 Law are the
sufficient standard test. Under the first test, the law standards to guide the DepEd, CHED and TESDA in
must be complete in all its terms and conditions when carrying out the provisions of the law, from the
it leaves the legislature such that when it reaches the development of the K to 12 BEC, to the hiring and
delegate, the only thing he will have to do is to enforce training of teaching personnel and to the formulation of
it.[148] The policy to be executed, carried out or appropriate strategies in order to address the changes
implemented by the delegate must be set forth during the transition period.
therein.[149] The sufficient standard test, on the other
hand, mandates adequate guidelines or limitations in SEC. 5. Curriculum Development. — The DepEd shall
the law to determine the boundaries of the delegate's formulate the design and details of the enhanced basic
authority and prevent the delegation from running riot. education curriculum. It shall work with the
To be sufficient, the standard must specify the limits of Commission on Higher Education (CHED) to craft
the delegate's authority, announce the legislative harmonized basic and tertiary curricula for the global
policy and identify the conditions under which it is to be competitiveness of Filipino graduates. To ensure
implemented.[150] college readiness and to avoid remedial and
duplication of basic education subjects, the DepED
The K to 12 Law adequately provides the legislative shall coordinate with the CHED and the Technical
policy that it seeks to implement. Section 2 of the K to Education and Skills Development Authority (TESDA).
12 Lawprovides:
To achieve an effective enhanced basic education
SEC. 2. Declaration of Policy. – The State shall curriculum, the DepED shall undertake consultations
establish, maintain and support a complete, adequate, with other national government agencies and other
and integrated system of education relevant to the stakeholders including, but not limited to, the
needs of the people, the country and society-at-large. Department of Labor and Employment (DOLE), the
Professional Regulation Commission (PRC), the
Likewise, it is hereby declared the policy of the State private and public schools associations, the national
that every graduate of basic education shall be an student organizations, the national teacher
empowered individual who has learned, through a organizations, the parents-teachers associations and
program that is rooted on sound educational principles the chambers of commerce on matters affecting the
and geared towards excellence, the foundations for concerned stakeholders.
learning throughout life, the competence to engage in
work and be productive, the ability to coexist in fruitful

229
The DepED shall adhere to the following standards and Teacher Education Institutes (TEIs) will meet the
principles in developing the enhanced basic education necessary quality standards for new teachers. Duly
curriculum: recognized organizations acting as TEIs, in
coordination with the DepED, the CHED, and other
(a) The curriculum shall be learner-centered, inclusive relevant stakeholders, shall ensure that the curriculum
and developmentally appropriate; of these organizations meet the necessary quality
standards for trained teachers.
(b) The curriculum shall be relevant, responsive and
research-based; (c) Training of School Leadership. — Superintendents,
principals, subject area coordinators and other
(c) The curriculum shall be culture-sensitive; instructional school leaders shall likewise undergo
workshops and training to enhance their skills on their
(d) The curriculum shall be contextualized and global; role as academic, administrative and community
leaders.
(e) The curriculum shall use pedagogical approaches
that are constructivist, inquiry-based, reflective, Henceforth, such professional development programs
collaborative and integrative; as those stated above shall be initiated and conducted
regularly throughout the school year to ensure constant
(f) The curriculum shall adhere to the principles and upgrading of teacher skills.
framework of Mother Tongue-Based Multilingual
Education (MTB-MLE) which starts from where the SEC. 8. Hiring of Graduates of Science, Mathematics,
learners are and from what they already knew Statistics, Engineering and Other Specialists in
proceeding from the known to the unknown; Subjects with a Shortage of Qualified Applicants,
instructional materials and capable teachers to Technical-Vocational Courses and Higher Education
implement the MTB-MLE curriculum shall be available; Institution Faculty. — Notwithstanding the provisions of
Sections 26, 27 and 28 of Republic Act No. 7836,
(g) The curriculum shall use the spiral progression otherwise known as the "Philippine Teachers
approach to ensure mastery of knowledge and skills Professionalization Act of 1994", the DepED and
after each level; and private education institutions shall hire, as may be
relevant to the particular subject:
(h) The curriculum shall be flexible enough to enable
and allow schools to localize, indigenize and enhance (a) Graduates of science, mathematics, statistics,
the same based on their respective educational and engineering, music and other degree courses with
social contexts. The production and development of shortages in qualified Licensure Examination for
locally produced teaching materials shall be Teachers (LET) applicants to teach in their specialized
encouraged and approval of these materials shall subjects in the elementary and secondary education.
devolve to the regional and division education units. Qualified LET applicants shall also include graduates
admitted by foundations duly recognized for their
xxxx expertise in the education sector and who satisfactorily
complete the requirements set by these organizations:
SEC. 7. Teacher Education and Training. — To ensure Provided, That they pass the LET within five (5) years
that the enhanced basic education program meets the after their date of hiring: Provided, further, That if such
demand for quality teachers and school leaders, the graduates are willing to teach on part-time basis, the
DepED and the CHED, in collaboration with relevant provisions of LET shall no longer be required;
partners in government, academe, industry, and
nongovernmental organizations, shall conduct teacher (b) Graduates of technical-vocational courses to teach
education and training programs, as specified: in their specialized subjects in the secondary
education: Provided, That these graduates possess
(a) In-service Training on Content and Pedagogy. — the necessary certification issued by the TESDA:
Current DepED teachers shall be retrained to meet the Provided, further, That they undergo appropriate in-
content and performance standards of the new K to 12 service training to be administered by the DepED or
curriculum. The DepED shall ensure that private higher education institutions (HEIs) at the expense of
education institutions shall be given the opportunity to the DepED;
avail of such training.
(c) Faculty of HEIs be allowed to teach in their general
(b) Training of New Teachers. — New graduates of the education or subject specialties in the secondary
current Teacher Education curriculum shall undergo education: Provided, That the faculty must be a holder
additional training, upon hiring, to upgrade their skills of a relevant Bachelor's degree, and must have
to the content standards of the new curriculum. satisfactorily served as a full-time HEI faculty;
Furthermore, the CHED, in coordination with the
DepED and relevant stakeholders, shall ensure that (d) The DepED and private education institutions may
the Teacher Education curriculum offered in these hire practitioners, with expertise in the specialized

230
learning areas offered by the Basic Education efficacious solutions to these problems.[153] This is
Curriculum, to teach in the secondary level: Provided, effected by the promulgation of supplementary
That they teach on part-time basis only. For this regulations, such as the K to 12 IRR jointly issued by
purpose, the DepED, in coordination with the the DepEd, CHED and TESDA and the Joint
appropriate government agencies, shall determine the Guidelines issued in coordination with DOLE, to
necessary qualification standards in hiring these address in detail labor and management rights relevant
experts. to implementation of the K to 12 Law.

xxxx DO No. 31 is valid and enforceable

SEC. 12. Transitory Provisions. — The DepED, the Petitioners also claim that DO No. 31 is a usurpation of
CHED and the TESDA shall formulate the appropriate legislative authority as it creates a law without
strategies and mechanisms needed to ensure smooth delegation of power.[154] According to petitioners, DO
transition from the existing ten (10) years basic No. 31, which changed the curriculum and added two
education cycle to the enhanced basic education (K to (2) more years to basic education, has no statutory
12) cycle. The strategies may cover changes in basis. It also violates the constitutional right of parents
physical infrastructure, manpower, organizational and to participate in planning programs that affect them and
structural concerns, bridging models linking grade 10 the right to information on matters of public
competencies and the entry requirements of new concern.[155] Petitioners further contend that since DO
tertiary curricula, and partnerships between the No. 31 imposes additional obligations to parents and
government and other entities. Modeling for senior high children, public consultations should have been
school may be implemented in selected schools to conducted prior to its adoption and that the assailed
simulate the transition process and provide concrete DO should have been published and registered first
data for the transition plan. with the Office of the National Administrative Register
before it can take effect.[156]
To manage the initial implementation of the enhanced
basic education program and mitigate the expected Again, petitioners' arguments lack factual and legal
multi-year low enrolment turnout for HEIs and bases. DO No. 31 did not add two (2) years to basic
Technical Vocational Institutions (TVIs) starting School education nor did it impose additional obligations to
Year 2016-2017, the DepED shall engage in parents and children. DO No. 31 is an administrative
partnerships with HEIs and TVIs for the utilization of regulation addressed to DepEd personnel providing for
the latter's human and physical resources. Moreover, general guidelines on the implementation of a new
the DepED, the CHED, the TESDA, the TVIs and the curriculum for Grades 1 to 10 in preparation for the K
HEIs shall coordinate closely with one another to to 12 basic education. DO No. 31 was issued in
implement strategies that ensure the academic, accordance with the DepEd's mandate to establish and
physical, financial, and human resource capabilities of maintain a complete, adequate and integrated system
HEIs and TVIs to provide educational and training of education relevant to the goals of national
services for graduates of the enhanced basic development,[157] formulate, plan, implement, and
education program to ensure that they are not coordinate and ensure access to, promote equity in,
adversely affected. The faculty of HEIs and TVIs and improve the quality of basic education;[158] and
allowed to teach students of secondary education pursuant to the Secretary's authority to formulate and
under Section 8 hereof, shall be given priority in hiring promulgate national educational policies,[159] under
for the duration of the transition period. For this existing laws.
purpose, the transition period shall be provided for in
the implementing rules and regulations (IRR).[151] Moreover, more than a year prior to adoption of DO No.
31, and contrary to petitioners' assertions, DepEd
Clearly, under the two tests, the K to 12 Law, read and conducted regional consultations and focus group
appreciated in its entirety, is complete in all essential discussions, participated in by students, parents,
terms and conditions and contains sufficient teachers and administrators, government
parameters on the power delegated to the DepEd, representatives, and representatives from private
CHED and TESDA. The fact that the K to 12 Law did schools and private sector,[160] to elicit opinions,
not have any provision on labor does not make said law thoughts and suggestions about the K to 12 basic
incomplete. The purpose of permissible delegation to education.[161]
administrative agencies is for the latter to "implement
the broad policies laid down in a statute by 'filling in' the There is also no merit in petitioners' claim that
details which the Congress may not have the publication is necessary for DO No. 31 to be effective.
opportunity or competence to provide."[152]With the Interpretative regulations and those merely internal in
proliferation of specialized activities and their attendant nature, including the rules and guidelines to be
peculiar problems, the legislature has found it followed by subordinates in the performance of their
necessary to entrust to administrative agencies, who duties are not required to be published.[162] At any
are supposed to be experts in the particular fields rate, the Court notes that DO No. 31 was already
assigned to them, the authority to provide direct and forwarded to the University of the Philippines Law

231
Center for filing in accordance with Sections 3 and 4 of respective implementing rules and regulations and the
the Administrative Code of 1987 and took effect issuances of the government agencies, are an exercise
pursuant to said provisions.[163] of the State's police power. The State has an interest
in prescribing regulations to promote the education and
Having established that the K to 12 Law and its related the general welfare of the people. In Wisconsin v.
issuances were duly enacted and/or validly issued, the Yoder,[166] the U.S. Supreme Court ruled that "[t]here
Court now discusses whether they contravene is no doubt as to the power of a State, having a high
provisions of the Constitution. responsibility for education of its citizens, to impose
reasonable regulations for the control and duration of
II. basic education."[167]

Police power of the State Here, petitioners essentially assail the State's exercise
of police power to regulate education through the
Police power is defined broadly as the State's authority adoption of the K to 12 Basic Education Program,
to enact legislation that may interfere with personal because the K to 12 Law and its related issuances
liberty or property in order to promote the general purportedly violate the Constitutional provisions as
welfare. This all-comprehensive definition provides enumerated in the outline of issues above.
ample room for the State to meet the exigencies of the
times depending on the conditions and circumstances. Every law has in its favor the presumption of
As the Court eruditely explained in Basco v. Philippine constitutionality.[168] For a law to be nullified, it must
Amusements and Gaming Corp.[164] (Basco): be shown that there is a clear and unequivocal breach
of the Constitution.[169] The grounds for nullity must
The concept of police power is well-established in this be clear beyond reasonable doubt.[170] Hence, for the
jurisdiction. It has been defined as the "state authority Court to nullify the assailed laws, petitioners must
to enact legislation that may interfere with personal clearly establish that the constitutional provisions they
liberty or property in order to promote the general cite bestow upon them demandable and enforceable
welfare." (Edu v. Ericta, 35 SCRA 481, 487) As rights and that such rights clash against the State's
defined, it consists of (1) an imposition or restraint upon exercise of its police power under the K to 12 Law.
liberty or property, (2) in order to foster the common
good. It is not capable of an exact definition but has To be sure, the Court's role is to balance the State's
been, purposely, veiled in general terms to underscore exercise of its police power as against the rights of
its all-comprehensive embrace. (Philippine Association petitioners. The Court's pronouncement in Secretary of
of Service Exporters, Inc. v. Drilon, 163 SCRA 386). Justice v. Lantion[171] (Lantion) instructs:

Its scope, ever-expanding to meet the exigencies of the x x x The clash of rights demands a delicate balancing
times, even to anticipate the future where it could be of interests approach which is a "fundamental postulate
done, provides enough room for an efficient and of constitutional law." The approach requires that we
flexible response to conditions and circumstances thus "take conscious and detailed consideration of the
assuming the greatest benefits. (Edu v. Ericta, supra). interplay of interests observable in a given situation or
It finds no specific Constitutional grant for the plain type of situation." These interests usually consist in the
reason that it does not owe its origin to the charter. exercise by an individual of his basic freedoms on the
Along with the taxing power and eminent domain, it is one hand, and the government's promotion of
inborn in the very fact of statehood and sovereignty. It fundamental public interest or policy objectives on the
is a fundamental attribute of government that has other.[172]
enabled it to perform the most vital functions of
governance. Marshall, to whom the expression has In fact, in Wisconsin v. Yoder,[173] where the question
been credited, refers to it succinctly as the plenary was the validity of a statute criminalizing the failure of
power of the state "to govern its citizens". (Tribe, parents to allow their children to attend compulsory
American Constitutional Law, 323, 1978). The police high school education, the U.S. Supreme Court ruled
power of the State is a power co-extensive with self- that although the State's interest in universal education
protection and is most aptly termed the "law of is highly ranked in terms of State functions, this does
overwhelming necessity." (Rubi v. Provincial Board of not free this exercise of State function from the
Mindoro, 39 Phil. 660, 708) It is "the most essential, balancing process when it impinges on fundamental
insistent, and illimitable of powers." (Smith Bell & Co. rights and interests, specifically the Free Exercise
v. National, 40 Phil. 136) It is a dynamic force that Clause, thus:
enables the state to meet the exigencies of the winds
of change.[165] There is no doubt as to the power of a State, having a
high responsibility for education of its citizens, to
From the legislative history of the Philippine education impose reasonable regulations for the control and
system as detailed above, one can easily discern that duration of basic education. See, e.g., Pierce v Society
the enactment of education laws, including the K to 12 of Sisters, 268 US 510, 534, 69 L Ed 1070, 1077, 45 S
Law and the Kindergarten Education Act, their Ct 571, 39 ALR 468 (1925). Providing public schools

232
ranks at the very apex of the function of a State. Yet Non-self-executing constitutional provisions
even this paramount responsibility was, in Pierce,
made to yield to the right of parents to provide an As defined, "a constitutional provision is self-executing
equivalent education in a privately operated system. if the nature and extent of the right conferred and the
There the Court held that Oregon's statute compelling liability imposed are fixed by the constitution itself, so
attendance in a public school from age eight to age 16 that they can be determined by an examination and
unreasonably interfered with the interest of parents in construction of its terms, and there is no language
directing the rearing of their offspring, including their indicating that the subject is referred to the legislature
education in church-operated schools. As that case for action."[178]
suggests, the values of parental direction of the
religious upbringing and education of their children in In Manila Prince Hotel v. Government Service
their early and formative years have a high place in our Insurance System,[179] it was ruled that all provisions
society. See also Ginsberg v New York, 390 US 629, of the Constitution are presumed self-executing,[180]
639 20 L Ed 2d 195, 203, 88 S Ct 1274 (1968); Meyer because to treat them as requiring legislation would
v Nebraska, 262 US 390, 67 L Ed 1042, 43 S Ct 625, result in giving the legislature "the power to ignore and
29 ALR 1446 (1923); cf. Rowan v Post Office Dept., practically nullify the mandate of the fundamental
397 US 728, 25 L Ed 2d 736, 90 S Ct 1484 (1970). law."[181] And this could result in a cataclysm.[182]
Thus, a State's interest in universal education, however
highly we rank it, is not totally free from a balancing This pronouncement notwithstanding, however, the
process when it impinges on fundamental rights and Court has, in several cases, had occasion to already
interests, such as those specifically protected by the declare several Constitutional provisions as not self-
Free Exercise Clause of the First Amendment, and the executory.
traditional interest of parents with respect to the
religious upbringing of their children so long as they, in In Tanada v. Angara,[183] it was settled that the
the words of Pierce, "prepare [them] for additional sections found under Article II of the 1987 Philippine
obligations." 268 US at 535, 69 L Ed AT 1078.[174] Constitution are not self-executing provisions. In fact,
in the cases of Basco,[184] Kilosbayan, Inc. v.
As quoted above, this balancing of interest approach Morato,[185] and Tondo Medical Center Employees
has been applied in this jurisdiction in Lantion in Association v. Court of Appeals,[186] the Court
determining whether there was a violation of the private categorically ruled that Sections 11, 12, 13, 17 and 18
respondent's right to due process when he was not of Article II, Section 13 of Article XIII, and Section 2 of
furnished a copy of the request for his extradition. This Article XIV, of the 1987 Philippine Constitution,
right was balanced against the country's commitment respectively, are non-self-executing. The very terms of
under the RP-US Extradition Treaty to extradite to the these provisions show that they are not judicially
United States of America persons who were charged enforceable constitutional rights but merely guidelines
with the violation of some of its laws. [175] for legislation.[187] And the failure of the legislature to
pursue the policies embodied therein does not give rise
The Court held in Lantion that at the stage of the to a cause of action in the courts.[188]
extradition, it was only at an evaluation stage; thus
there was yet no requirement that he be given notice In specific application to the present petitions, in
of the proceedings. At that stage, the balance was tilted Tolentino v. Secretary of Finance,[189] the Court also
in favor of the interest of the State in helping suppress ruled that Section 1, Article XIV on the right of all
crime by facilitating the extradition of persons covered citizens to quality education is also not self-executory.
by treaties entered into by the government.[176] The provision "for the promotion of the right to 'quality
education' x x x [was] put in the Constitution as moral
It is with these standards and framework that the Court incentives to legislation, not as judicially enforceable
examines whether the enactments of the Kindergarten rights."[190]
Education Act, the K to 12 Law and their implementing
rules and regulations, were valid exercises of the Further, Section 6, Article XIV on the use of the Filipino
State's police power to regulate education. language as a medium of instruction is also not self-
executory. The deliberations of the Constitutional
In this regard, and to digress, only self-executing Commission confirm this:
provisions of the Constitution embody judicially
enforceable rights and therefore give rise to causes of MR. DE CASTRO. Madam President.
action in court.[177] Accordingly, it is necessary to
determine first whether the constitutional provisions THE PRESIDENT. Commissioner de Castro is
invoked by petitioners are self-executing; and if they recognized.
are, is there a conflict between these rights and the
State's police power to regulate education? If a conflict MR. DE CASTRO. Just a matter of clarification. On the
does exist, do the rights of petitioners yield to the police first sentence, we use Filipino as an official medium of
power of the State? communication in all branches of government. Is that
correct?

233
 MR. OPLE. Madam President, may I say a word?
MR. VILLACORTA. Yes.
MR. DE CASTRO. In short, does the committee want
MR. DE CASTRO. And when we speak of Filipino, can us to understand that Section 2, even if ratified, will not
it be a combination of Tagalog and the local dialect, as yet be effective because it is still subject to the
and, therefore, can be "Taglish"? Is that right? provisions of law and as Congress may deem
appropriate? So the medium of official communication
MR. VILLACORTA. Not really "Taglish," Madam among branches of government cannot as yet be
President. Filipino until subject to provisions of law and as
Congress may deem appropriate. Is that correct?
MR. BENNAGEN. It can be standard.
MR. OPLE. Madam President.
MR. DE CASTRO. Or the combination of the local
language and Tagalog? MR. DE CASTRO. No, I am asking the committee,
please.
MR. VILLACORTA. As it naturally evolves.
THE PRESIDENT. What is the answer of the
MR. DE CASTRO. Suppose I am a Muslim official from committee?
Sulu and I will use Filipino in my communication. So I
will write: "Di makadiari ang iniisip mo." It is a MR. VILLACORTA. That is correct, Madam President.
combination of Tausog — "di makadiari" and Tagalog
— "ang iniisip mo." The one receiving in the main office MR. DE CASTRO. Thank you.
may not understand the whole thing. I am just clarifying
because when we use Filipino as a medium of official MR. OPLE. I just wanted to point out that when the
communication, there is a possibility that the message words "official communication'' is used, this must
may not be understood when it reaches the central satisfy the standards of accuracy, precision and,
office or when it goes to another area. perhaps, clarity or lack of ambiguity; otherwise, it will
not be communication. One can lose a war through
MR. VILLACORTA. That is why the wording is, "The imprecise communication in government and,
government shall take steps to initiate and sustain the therefore, I think the word "communication" should be
use of Filipino." And in Section 1, it says: "as it evolves, understood in its correct light — that when one writes
it shall be further developed and enriched," the from Sulu, as in the example given by Commissioner
implication being that it will be standardized as a de Castro, he has to consider the following: Is his
national language. communication clear? Is it unambiguous? Is it precise?
I just want to point out that when we speak of official
MR. DE CASTRO. Yes, but then in Section 2, we come communication, these normal standards of good
out with Filipino as a medium of official communication. communication ought to be recognized as controlling,
I am just giving an example that as an official otherwise, the interest of public administration will be
communication, it may not be understood by the one at vitally affected.
the receiving end, especially if one comes from the
South and whose message is received in the North or Thank you, Madam President.
in the center. As I said, "Di makadiari ang iniisip mo,"
is half Tausog and half Tagalog. THE PRESIDENT. Shall we vote now on the first
sentence?
MR. VILLACORTA. Commissioner Bennagen, who is
an expert on culture and minorities, will answer the MR. RODRIGO. I think it should be on the first two
question of the Gentleman. sentences.

MR. BENNAGEN. I think what we envision to happen THE PRESIDENT. There was a suggestion, and that
would be for government agencies, as well as other was accepted by the committee, to vote on the first
nongovernmental agencies involving this, to start sentence.
immediately the work of standardization — expanding
the vocabularies, standardizing the spelling and all MR. RODRIGO. Only on the first sentence? But there
appropriate measures that have to do with propagating are two sentences.
Filipino.
THE PRESIDENT. No, that was already approved.
MR. DE CASTRO. In short?
MR. VILLACORTA. Madam President, may I ask for a
MR. BENNAGEN. The work will codify this national vote now because this has been extensively
lingua franca as it is taking place and will be subjected discussed.
to other developmental activities.

234
THE PRESIDENT. Will the chairman read what is to be guaranteed rights to ensure the protection and
voted upon? promotion, not only the rights of the labor sector, but of
the employers' as well. Without specific and pertinent
MR. VILLACORTA. Madam President, the first legislation, judicial bodies will be at a loss, formulating
sentence reads: "SUBJECT TO PROVISIONS OF their own conclusion to approximate at least the aims
LAW AND AS CONGRESS MAY DEEM of the Constitution.
APPROPRIATE, THE GOVERNMENT SHALL TAKE
STEPS TO INITIATE AND SUSTAIN THE USE OF Ultimately, therefore, Section 3 of Article XIII cannot,
FILIPINO AS A MEDIUM OF OFFICIAL on its own, be a source of a positive enforceable rightto
COMMUNICATION AND AS LANGUAGE OF stave off the dismissal of an employee for just cause
INSTRUCTION IN THE EDUCATIONAL SYSTEM." owing to the failure to serve proper notice or hearing.
As manifested by several framers of the 1987
VOTING Constitution, the provisions on social justice require
legislative enactments for their enforceability.
THE PRESIDENT. As many as are in favor of the first (Emphasis added)
sentence, please raise their hand. (Several Members
raised their hand.) Thus, Section 3, Article XIII cannot be treated as a
principal source of direct enforceable rights, for the
As many as are against, please raise their hand. (No violation of which the questioned clause may be
Member raised his hand.) declared unconstitutional. It may unwittingly risk
opening the floodgates of litigation to every worker or
The results show 37 votes in favor and none against; union over every conceivable violation of so broad a
the first sentence is approved.[191] concept as social justice for labor.

Section 3, Article XIII, on the protection of labor and It must be stressed that Section 3, Article XIII does not
security of tenure, was also declared by the Court in directly bestow on the working class any actual
Agabon v. National Labor Relations Commission,[192] enforceable right, but merely clothes it with the status
(Agabon) as not self-executory. Reiterating Agabon, of a sector for whom the Constitution urges protection
the Court explained in Serrano v. Gallant Maritime through executive or legislative action and judicial
Services, Inc.,[193] that Section 3, Article XIII, does not recognition. Its utility is best limited to being an impetus
automatically confer judicially demandable and not just for the executive and legislative departments,
enforceable rights and cannot, on its own, be a basis but for the judiciary as well, to protect the welfare of the
for a declaration of unconstitutionality, to wit: working class. And it was in fact consistent with that
constitutional agenda that the Court in Central Bank
While all the provisions of the 1987 Constitution are (now Bangko Sentral ng Pilipinas) Employee
presumed self-executing, there are some which this Association, Inc. v. Bangko Sentral ng Pilipinas,
Court has declared not judicially enforceable, Article penned by then Associate Justice now Chief Justice
XIII being one, particularly Section 3 thereof, the nature Reynato S. Puno, formulated the judicial precept that
of which, this Court, in Agabon v. National Labor when the challenge to a statute is premised on the
Relations Commission, has described to be not self- perpetuation of prejudice against persons favored by
actuating: the Constitution with special protection — such as the
working class or a section thereof — the Court may
Thus, the constitutional mandates of protection to labor recognize the existence of a suspect classification and
and security of tenure may be deemed as self- subject the same to strict judicial scrutiny.
executing in the sense that these are automatically
acknowledged and observed without need for any The view that the concepts of suspect classification
enabling legislation. However, to declare that the and strict judicial scrutiny formulated in Central Bank
constitutional provisions are enough to guarantee the Employee Association exaggerate the significance of
full exercise of the rights embodied therein, and the Section 3, Article XIII is a groundless apprehension.
realization of ideals therein expressed, would be Central Bank applied Article XIII in conjunction with the
impractical, if not unrealistic. The espousal of such equal protection clause. Article XIII, by itself, without
view presents the dangerous tendency of being the application of the equal protection clause, has no
overbroad and exaggerated. The guarantees of "full life or force of its own as elucidated in Agabon. [194]
protection to labor" and "security of tenure", when
examined in isolation, are facially unqualified, and the Here, apart from bare allegations that the K to 12 Law
broadest interpretation possible suggests a blanket does not provide mechanisms to protect labor, which,
shield in favor of labor against any form of removal as discussed, have no legal bases, petitioners have not
regardless of circumstance. This interpretation implies proffered other bases in claiming that the right to
an unimpeachable right to continued employment — a protect labor and/or security of tenure was violated with
utopian notion, doubtless — but still hardly within the the implementation of the K to 12 Law. To be sure, the
contemplation of the framers. Subsequent legislation is protection of labor from illegal dismissal has already
still needed to define the parameters of these

235
been set in stone with the enactment of the Labor Code Convention on the Rights of the Child [CRC]) to which
and the Civil Service Law. the Philippines is a signatory.[202]

Given the foregoing, petitioners cannot claim that the The State's policy in implementing the K to 12 Program
K to 12 Law and/or any of its related issuances is stated as follows:
contravene or violate any of their rights under the
foregoing constitutional provisions because these x x x [I]t is hereby declared the policy of the State that
provisions simply state a policy that may be "used by every graduate of basic education shall be an
the judiciary as aids or as guides in the exercise of its empowered individual who has learned, through a
power of judicial review, and by the legislature in its program that is rooted on sound educational principles
enactment of laws."[195] They do not embody judicially and geared towards excellence, the foundations for
enforceable constitutional rights.[196] In other words, learning throughout life, the competence to engage in
the Kindergarten Education Act, the K to 12 Law and work and be productive, the ability to coexist in fruitful
its related issuances cannot be nullified based solely harmony with local and global communities, the
on petitioners' bare allegations that they violate general capability to engage in autonomous, creative, and
provisions of the Constitution which are mere directives critical thinking, and the capacity and willingness to
addressed to the executive and legislative transform others and one's self.
departments. If these directives are unheeded, the
remedy does not lie with the courts, but with the power For this purpose, the State shall create a functional
of the electorate in casting their votes.[197] As held in basic education system that will develop productive
Tañada v. Angara:[198] "The reasons for denying a and responsible citizens equipped with the essential
cause of action to an alleged infringement of broad competencies, skills and values for both life-long
constitutional principles are sourced from basic learning and employment. In order to achieve this, the
considerations of due process and the lack of judicial State shall:
authority to wade 'into the uncharted ocean of social
and economic policy-making."'[199] (a) Give every student an opportunity to receive quality
education that is globally competitive based on a
In view of the foregoing, the Court shall now proceed pedagogically sound curriculum that is at par with
to discuss the remaining constitutional provisions, international standards;
international treaties, and other special laws invoked
by petitioners, which have allegedly been violated by (b) Broaden the goals of high school education for
the implementation of the K to 12 Law. For the college preparation, vocational and technical career
constitutional provisions, the Court shall determine opportunities as well as creative arts, sports and
whether these constitutional provisions are in conflict entrepreneurial employment in a rapidly changing and
with the police power of the State in enacting and increasingly globalized environment; and
implementing the K to 12 Law, and if so, whether these
constitutional provisions yield to the police power of the (c) Make education learner-oriented and responsive to
State. the needs, cognitive and cultural capacity, the
circumstances and diversity of learners, schools and
Compulsory Elementary and High School Education communities through the appropriate languages of
teaching and learning, including mother tongue as a
Petitioners argue that the legislature violated the learning resource.[203]
Constitution when they made kindergarten and senior
high school compulsory. For petitioners, compulsory There is no conflict between the K to 12 Law and
kindergarten and senior high school expanded the related issuances and the Constitution when it made
constitutional definition of elementary education and kindergarten and senior high school compulsory. The
that the Congress violated the rule of constitutional Constitution is clear in making elementary education
supremacy when it made kindergarten and senior high compulsory; and the K to 12 Law and related issuances
school compulsory.[200] did not change this as, in fact, they affirmed it.

On the other hand, the OSG contends that while As may be gleaned from the outlined history of
Section 2, Article XIV states that elementary education education laws in the Philippines, the definition of basic
shall be compulsory, it did not preclude Congress from education was expanded by the legislature through the
making kindergarten and secondary education enactment of different laws, consistent with the State's
mandatory (based on the clear wording of the law and exercise of police power. In BP Blg. 232, the
deliberations of the Constitutional Commission).[201] elementary and secondary education were considered
Further, the laws advance the right of child to to be the stage where basic education is provided.[204]
education, and they do not violate any international Subsequently, in RA No. 9155, the inclusion of
agreement (Universal Declaration of Human Rights elementary and high school education as part of basic
[UDHR], the International Covenant of Economic, education was affirmed.[205]
Social and Cultural Rights [ICESCR] and the

236
The legislature, through the Kindergarten Education which may be contained in: (a) [t]he law of a State
Act, further amended the definition of basic education party; or (b) [i]nternational law in force for that State.''
to include kindergarten. Thereafter, the legislature
expanded basic education to include an additional two The enactment of the K to 12 Law was the manner by
(2) years of senior high school. Thus, by then, basic which the Congress sought to realize the right to
education comprised of thirteen (13) years, divided into education of its citizens. It is indeed laudable that
one (1) year of kindergarten, six (6) years of Congress went beyond the minimum standards and
elementary education, and six (6) years of secondary provided mechanisms so that its citizens are able to
education — which was divided into four (4) years of obtain not just elementary education but also
junior high school and two (2) years of senior high kindergarten and high school. Absent any showing of a
school. violation of any Constitutional self-executing right or
any international law, the Court cannot question the
The Constitution did not curtail the legislature's power desirability, wisdom, or utility of the K to 12 Law as this
to determine the extent of basic education. It only is best addressed by the wisdom of Congress. As the
provided a minimum standard: that elementary Court held in Tablarin v. Gutierrez[207]:
education be compulsory. By no means did the
Constitution foreclose the possibility that the legislature x x x The petitioners also urge that the NMAT
provides beyond the minimum set by the Constitution. prescribed in MECS Order No. 52, s. 1985, is an
"unfair, unreasonable and inequitable requirement,"
Petitioners also contend that the expansion of which results in a denial of due process. Again,
compulsory education to include kindergarten and petitioners have failed to specify just what factors or
secondary education violates the UDHR, the ICESCR features of the NMAT render it "unfair" and
and the CRC.[206] "unreasonable" or "inequitable." They appear to
suggest that passing the NMAT is an unnecessary
Petitioners' argument is misleading. requirement when added on top of the admission
requirements set out in Section 7 of the Medical Act of
There is nothing in the UDHR, ICESCR and CRC which 1959, and other admission requirements established
proscribes the expansion of compulsory education by internal regulations of the various medical schools,
beyond elementary education. public or private. Petitioners' arguments thus appear to
Article 26 of the UDHR states: relate to utility and wisdom or desirability of the NMAT
requirement. But constitutionality is essentially a
1. Everyone has the right to education. Education shall question of power or authority: this Court has neither
be free, at least in the elementary and fundamental commission nor competence to pass upon questions of
stages. Elementary education shall be compulsory. the desirability or wisdom or utility of legislation or
Technical and professional education shall be made administrative regulation. Those questions must be
generally available and higher education shall be addressed to the political departments of the
equally accessible to all on the basis of merit. government not to the courts.

2. Education shall be directed to the full development There is another reason why the petitioners' arguments
of the human personality and to the strengthening of must fail: the legislative and administrative provisions
respect for human rights and fundamental freedoms. It impugned by them constitute, to the mind of the Court,
shall promote understanding, tolerance and friendship a valid exercise of the police power of the state. The
among all nations, racial or religious groups, and shall police power, it is commonplace learning, is the
further the activities of the United Nations for the pervasive and non-waivable power and authority of the
maintenance of peace. sovereign to secure and promote all the important
interests and needs — in a word, the public order — of
3. Parents have a prior right to choose the kind of the general community. An important component of
education that shall be given to their children. that public order is the health and physical safety and
(Emphasis and underscoring supplied) well being of the population, the securing of which no
one can deny is a legitimate objective of governmental
There is absolutely nothing in Article 26 that would effort and regulation.[208]
show that the State is prohibited from making
kindergarten and high school compulsory. The UDHR Petitioners also claim that the K to 12 basic education
provided a minimum standard for States to follow. and the two (2) additional years in high school should
Congress complied with this minimum standard; as, in not have been applied retroactively in violation of
fact, it went beyond the minimum by making Article 4 of the Civil Code.[209] Petitioners assert that
kindergarten and high school compulsory. This action students who had already began schooling prior to
of Congress is, in turn, consistent with Article 41 of the 2013 or upon the passage of the K to 12 Law already
CRC which provides that "[n]othing in the present acquired a "vested right" to graduate after the
Convention shall affect any provisions which are more completion of four (4) years of high school, pursuant to
conducive to the realization of the rights of the child and Sections 9(2) and 20 of BP Blg. 232; thus, the K to 12
BEC cannot be applied to them.[210]

237
 and Management (ABM) Strand; 2) Science,
Again, petitioners' contentions are without merit. Technology, Engineering and Mathematics (STEM)
Strand; 3) Humanities and Social Sciences (HUMSS)
The K to 12 Basic Education Program is not being Strand; and 4) General Academic (GA) Strand.[213]
retroactively applied because only those currently
enrolled at the time the K to 12 Law took effect and Petitioners have failed to show that the State has
future students will be subject to the K to 12 BEC and imposed unfair and inequitable conditions for senior
the additional two (2) years of senior high school. high schools to enroll in their chosen path. The K to 12
Students who already graduated from high school Program is precisely designed in such a way that
under the old curriculum are not required by the K to students may choose to enroll in public or private
12 Law to complete the additional two (2) years of senior high schools which offer the strands of their
senior high school. choice. For eligible students, the voucher program also
allows indigent senior high school students to enroll in
More importantly, BP Blg. 232 does not confer any private institutions that offer the strands of their choice.
vested right to four (4) years of high school education.
Rights are vested when the right to enjoyment, present Mother Tongue as medium of instruction
or prospective, has become the property of some
particular person or persons as a present interest. The Petitioners argue that the use of the MT or the regional
right must be absolute, complete, and unconditional, or native language as primary medium of instruction for
independent of a contingency, and a mere expectancy kindergarten and the first three (3) years of elementary
of future benefit, or a contingent interest in property education contravenes Section 7, Article XIV of the
founded on anticipated continuance of existing laws, 1987 Philippine Constitution, which expressly limits
does not constitute a vested right.[211] Contrary to and constrains regional languages simply as auxiliary
petitioners' assertion, the rights of students under media of instruction.[214] This is an argument of first
Section 9 of BP Blg. 232 are not absolute. These are blush. A closer look at the pertinent provisions of the
subject to limitations prescribed by law and regulations. Constitution and the deliberations of the Constitutional
In fact, while Section 9(2) of BP Blg. 232 states that Commission reveal the contrary. In fine, there is no
students have the right to continue their course up to conflict between the use of the MT as a primary
graduation, Section 20 of the same law does not medium of instruction and Section 7, Article XIV of the
restrict elementary and high school education to only 1987 Philippine Constitution.
six (6) and four (4) years. Even RA No. 9155 or the
Governance of Basic Education Act of 2001, which was Sections 6 and 7, Article XIV of the 1987 Philippine
enacted under the 1987 Philippine Constitution, does Constitution provides:
not specify the number of years in elementary and high
school. In other words, BP Blg. 232 or RA No. 9155 SEC. 6. The national language of the Philippines is
does not preclude any amendment or repeal on the Filipino. As it evolves, it shall be further developed and
duration of elementary and high school education. In enriched on the basis of existing Philippine and other
adding two (2) years of secondary education to languages.
students who have not yet graduated from high school,
Congress was merely exercising its police power and Subject to provisions of law and as the Congress may
legislative wisdom in imposing reasonable regulations deem appropriate, the Government shall take steps to
for the control and duration of basic education, in initiate and sustain the use of Filipino as a medium of
compliance with its constitutional duty to promote official communication and as language of instruction
quality education for all. in the educational system.

Right to select a profession or course of study SEC. 7. For purposes of communication and
instruction, the official languages of the Philippines are
Petitioners in G.R. No. 218123 insist that the Filipino and, until otherwise provided by law, English.
implementation of the K to 12 Law is a limitation on the
right of senior high school students to choose their The regional languages are the auxiliary official
professions.[212] For petitioners, a number of languages in the regions and shall serve as auxiliary
prospective senior high school students will be unable media of instruction therein.
to choose their profession or vocation because of the
limit on what senior high schools can offer and the The deliberations of the Constitutional Commission
availability of the different strands. This lacks basis. also confirm that MT or regional languages may be
used as a medium of instruction:
There is no conflict between the K to 12 Law and its
IRR and the right of the senior high school students to MR. SUAREZ. Thank you, Madam President. When
choose their profession or course of study. The senior the Commissioner speaks of auxiliary official
high school curriculum is designed in such a way that languages in their respective regions, what exactly
students have core subjects and thereafter, they may does he have in mind?
choose among four strands: 1) Accountancy, Business

238
MR. BENNAGEN. In addition to Filipino and English, THE PRESIDENT. Will the chairman please read the
they can be accepted also as official languages, even next sentence.
in government and in education.
MR. VILLACORTA. The next sentence, Madam
MR. SUAREZ. So that not only will they be a medium President, reads: "THE REGIONAL LANGUAGES
of instruction or communication but they can be SHALL SERVE AS AUXILIARY MEDIA OF
considered also as official languages. INSTRUCTION IN THE RESPECTIVE REGIONS."

MR. BENNAGEN. That is the intention of the THE PRESIDENT. Commissioner Padilla is
committee. We should respect also the regional recognized before we proceed to vote.
languages. x x x[215](Emphasis and underscoring
supplied) MR. PADILLA. Section 2 of the committee report
states:
xxxx
The official languages of the Philippines are Filipino
MR. DAVIDE. May I be enlightened on some of the and English, until otherwise provided by law. The
aspects of this proposed substitute amendment? The regional languages are the auxiliary official languages
first is, does it follow from the wording that the regional in their respective regions.
languages shall serve as an auxiliary media of
instruction and no law can prohibit their use as such? That second sentence in Section 2 of the committee
This means that subject to provisions of law and as report may be amended by that second sentence
Congress may deem appropriate, it would refer only to which says: "THE REGIONAL LANGUAGES SHALL
what are included in the first sentence. It will not apply SERVE AS AUXILIARY MEDIA OF INSTRUCTION IN
to the second sentence relating to regional languages THE RESPECTIVE REGIONS." I believe we should
as auxiliary media of instruction. consider the first sentence of Section 2 and then say:
"THE REGIONAL LANGUAGES SHALL SERVE AS
MR. TREÑAS. That is correct. Precisely, there is a AUXILIARY MEDIA OF INSTRUCTION IN THE
period after "educational system" and that is a new RESPECTIVE REGIONS." That is my proposal.
sentence.
THE PRESIDENT. In other words, the Commissioner's
MR. DAVIDE. As an auxiliary medium of instruction, it point is that this particular second sentence here
can actually be the primary medium, until Congress should be transposed to Section 2 of the other
shall provide otherwise. committee report.

MR. TREÑAS. It shall be auxiliary. MR. PADILLA. Yes, Madam President.

MR. DAVIDE. But in the meantime that Congress shall THE PRESIDENT. What does the committee say?
not have deemed appropriate or that there is no
provision of law relating to the use of Filipino as the REV. RIGOS. Madam President, perhaps if we
medium of instruction, it can itself be the primary approve the second sentence, we can delete the
medium of instruction in the regions. second sentence in Section 2. Is that the idea?

MR. TREÑAS. That is correct because of the provision MR. PADILLA. That is correct.
of the first sentence.
REV. RIGOS. Since we are talking about medium of
MR. DAVIDE. On the supposition that there is already instruction here, we would rather retain it in the first
a law that Congress had deemed it appropriate, the section.
regional language shall go hand in hand with Filipino
as a medium of instruction. It cannot be supplanted in MR. PADILLA. Madam President, but if no mention is
any way by Filipino as the only medium of instruction made of English, it might be the impression contrary to
in the regional level. what has already been agreed upon — that English
may not be used as a medium of instruction. And it
xxxx shall be clear that the first preference is Filipino, the
national language, without prejudice to the use of
VOTING English and also the regional languages.

xxxx REV. RIGOS. Madam President, do we understand the

Commissioner correctly that he would rather delete
MR. VILLACORTA. Shall we vote now on the next that in the first section and amend the second sentence
sentence, Madam President? in Section 2?

239
MR. PADILLA. Yes, Madam President. That is the to the government that, in the exercise of its
reason I suggested that the proposal be divided into supervisory and regulatory powers, it should first set
two sentences. We approved the first sentence. The satisfactory minimum requirements in all areas:
second sentence should be corrected to Section 2 of curriculum, faculty, internal administration, library,
the committee report. laboratory class and other facilities, et cetera, and it
should see to it that satisfactory minimum requirements
MR. VILLACORTA. Madam President, the committee are met by all educational institutions, both public and
is divided; therefore, we would like the floor to decide private.
on this matter.
When we speak of quality education we have in mind
MR. PADILLA. The only reason I am saying this is to such matters, among others, as curriculum
make clear in the Constitution that the medium of development, development of learning resources and
communication and the language of instruction are not instructional materials, upgrading of library and
only Filipino as a national language, and that the laboratory facilities, innovations in educational
medium of instruction is the regional languages, technology and teaching methodologies, improvement
otherwise, there would be no mention of English. I of research quality, and others. Here and in many other
believe that we are all agreed that the first preference provisions on education, the principal focus of attention
is the national language, Filipino, but it does not and concern is the students. I would like to say that in
prevent the use of English and also of the regional my view there is a slogan when we speak of quality of
languages.[216] (Emphasis and underscoring education that I feel we should be aware of, which is,
supplied) "Better than ever is not enough." In other words, even
if the quality of education is good now, we should
It is thus clear from the deliberations that it was never attempt to keep on improving it.[219] (Emphasis
the intent of the framers of the Constitution to use only supplied)
Filipino and English as the exclusive media of
instruction. It is evident that Congress has the power to Clearly, when the government, through the K to 12 Law
enact a law that designates Filipino as the primary and the DepEd issuances, determined that the use of
medium of instruction even in the regions but, in the MT as primary medium of instruction until Grade 3
absence of such law, the regional languages may be constitutes a better curriculum, it was working towards
used as primary media of instruction. The Congress, discharging its constitutional duty to provide its citizens
however, opted not to enact such law. On the contrary, with quality education. The Court, even in the exercise
the Congress, in the exercise of its wisdom, provided of its jurisdiction to check if another branch of the
that the regional languages shall be the primary media government committed grave abuse of discretion, will
of instruction in the early stages of schooling. Verily, not supplant such determination as it pertains to the
this act of Congress was not only Constitutionally wisdom of the policy.
permissible, but was likewise an exercise of an
exclusive prerogative to which the Court cannot Petitioners in G.R. No. 218045 also claim that the
interfere with. provision on the use of MT violates the natural and
primary right and duty of parents in the rearing of the
Petitioners further contend that the MTB-MLE is youth, recognized under Section 12, Article II of the
counter-productive, anti-developmental and does not 1987 Philippine Constitution. Petitioners aver that by
serve the people's right to quality of education, which using the MT in teaching the students, it compels
the State, under the Constitution, is mandated to parents to do something utterly redundant, inefficient,
promote.[217] Moreover, in contrast to the benefits of and wasteful, as the students are presumably already
the MTB-MLE that respondents assert, petitioners fluent in speaking their MT.[220] In other words, they
claim that comparative international and domestic data no longer need to be taught their native language.
have shown MT monolingualism to be inferior; while
high literacy and proficiency in English indicates Petitioners are once again incorrect as there is no
human development, makes people more globally conflict between the use of MT as a primary medium of
competitive and relatively happier.[218] instruction and the right of parents in rearing their
children.
Petitioners' arguments are again misplaced. While the
Constitution indeed mandates the State to provide While Section 12, Article II grants parents the primary
quality education, the determination of what constitutes right to rear and educate their children, the State, as
quality education is best left with the political parens patriae, has the inherent right and duty to
departments who have the necessary knowledge, support parents in the exercise of this constitutional
expertise, and resources to determine the same. The right. In other words, parents' authority and the State's
deliberations of the Constitutional Commission again duty are not mutually exclusive but complement each
are very instructive: other.[221] In the matter of education, a parent is
always the first teacher. The language first learned by
Now, Madam President, we have added the word the child or his "mother tongue", which the child
"quality" before "education" to send appropriate signals understands best and hence, an effective tool for

240
further learning, is first and foremost taught by the contention that the law is unconstitutional based on this
parent. The inclusion in the K to 12 Program of the MT ground is specious.
as a medium of instruction and a subject in the early
years of learning is, therefore, not intended to curtail Free public education in the elementary and high
the parents' right but to complement and enhance the school levels
same.
Petitioners claim that making kindergarten compulsory
Moreover, despite the provision on the use of MT as limits access to education;[226] that 400,000 to
primary medium of instruction for kindergarten and 500,000 Grade 11 students will be forced to enroll in
Grades 1 to 3, Filipino and English remain as subjects private schools, pushed by government towards a
in the curriculum during the earlier stages of schooling more expensive, not free education;[227] and that
and will later on be used as primary medium of there will be a de facto privatization of senior high
instruction from Grade 4 onwards. In other words, in school education (through the voucher system) and
addition to the MT, the basics of Filipino and English that this is a violation of the constitutional provision
will still be taught at the early stages of formal mandating free high school education.[228]
schooling; and should the parents, in the exercise of
their primary right and duty to rear their children, so The OSG counters that the Senior High School
desire to give additional Filipino and English lessons to Voucher program (subsidy given to those who will
their children, they have the absolute right to do so. enroll in non-DepEd schools) does not force students
Nothing in the K to 12 Law prohibits the parents from to enroll in private SHS. It simply offers a viable
doing so. alternative to both student and government — to the
student, a subsidized private education; and to the
Academic freedom government, decongested public schools.[229]

Petitioners in G.R. No. 216930 also allege that faculty The Court fully agrees with the OSG.
from HEI stand to lose their academic freedom when
they are transferred to senior high school level as Petitioners' argument that the establishment of the
provided in the K to 12 Law, the K to 12 Law IRR and voucher system will result in the de facto privatization
the Joint Guidelines.[222] of senior high school is not only speculative, it is also
without any basis. The voucher system is one of the
Without question, petitioners, who are faculty members mechanisms established by the State through RA No.
in HEIs, indeed possess the academic freedom 6728, otherwise known as the Government Assistance
granted by Constitution. This Court, in its previous to Students and Teachers in Private Education Act. In
decisions, has defined academic freedom for the Mariño, Jr. v. Gamilla,[230] the Court recognized that
individual member of the academe as "the right of a RA No. 6728 was enacted in view of the declared policy
faculty member to pursue his studies in his particular of the State, in conformity with the mandate of the
specialty and thereafter to make known or publish the Constitution, to promote and make quality education
result of his endeavors without fear that retribution accessible to all Filipino citizens, as well as the
would be visited on him in the event that his recognition of the State of the complementary roles of
conclusions are found distasteful or objectionable to public and private educational institutions in the
the powers that be, whether in the political, economic, educational system and the invaluable contribution that
or academic establishments."[223] the private schools have made and will make to
education."[231] Through the law, the State provided
However, the Court does not agree with petitioners that "the mechanisms to improve quality in private
their transfer to the secondary level, as provided by the education by maximizing the use of existing resources
K to 12 Law and the assailed issuances, constitutes a of private education x x x."[232] One of these is the
violation of their academic freedom. While the Court voucher system where underprivileged high school
agrees, in principle, that security of tenure is an students become eligible for full or partial scholarship
important aspect of academic freedom — that the for degree or vocational/technical courses.
freedom is only meaningful if the faculty members are
assured that they are free to pursue their academic The program was later expanded through RA No.
endeavors without fear of reprisals — it is likewise 8545. In the K to 12 Law, the benefits under RA No.
equally true that convergence of security of tenure and 8545, including the voucher system, were made
academic freedom does not preclude the termination applicable to qualified students under the enhanced
of a faculty member for a valid cause.[224] Civil basic education, specifically to the qualified students
servants, like petitioners, may be removed from service enrolled in senior high school.[233]
for a valid cause, such as when there is a bona fide
reorganization, or a position has been abolished or The establishment and expansion of the voucher
rendered redundant, or there is a need to merge, system is the State's way of tapping the resources of
divide, or consolidate positions in order to meet the the private educational system in order to give Filipinos
exigencies of the service.[225] Hence, petitioners' equal access to quality education. The Court finds that

241
this manner of implementing the grant of equal access educational institutions. However, the mandate was
to education is not constitutionally infirm. general and did not specify the educational level in
which it must be taught. Hence, the inclusion of the
CMO No. 20 is constitutional study of the Constitution in the basic education
curriculum satisfies the constitutional requirement.
Petitioners assert that CMO No. 20 is violative of the
Constitution because the study of Filipino, Panitikan In this regard, it must be emphasized that CMO No. 20
and the Philippine Constitution are not included as core only provides for the minimum standards for the GE
subjects. component of all degree programs. Under Section 13
of RA No. 7722 or the Higher Education Act of 1994,
The Court disagrees. the CHED is authorized to determine the (a) minimum
unit requirements for specific academic programs; (b)
First, the constitutional provisions alleged by general education distribution requirements as may be
petitioners to be violated are non-self-executing determined by the Commission; and (c) specific
provisions. As discussed above, the framers of the professional subjects as may be stipulated by the
Constitution, in discussing Section 6 of Article XIV, various licensing entities. The provision further
explained that the use of Filipino as a medium of official provides that this authority shall not be construed as
communication is still subject to provisions of law.[234] limiting the academic freedom of universities and
colleges. Therefore, HEIs are given the freedom to
In Knights of Rizal v. DMCI Homes, Inc.,[235] the Court require additional Filipino or Panitikan courses to these
held that Section 15 on arts and culture of Article XIV minimum requirements if they wish to.
is not self-executory because Congress passed laws
dealing with the preservation and conservation of our Third, petitioners aver that non-inclusion of these
cultural heritage.[236] The Court was of the view that subjects in the GE curriculum will result to job
all sections in Article XIV pertaining to arts and culture displacement of teachers and professors, which
are all non-self-executing, which includes Section 14 contravenes the constitutional provisions on protection
on Filipino national culture and Section 18 on access of labor and security of tenure. Once more, Section 3,
to cultural opportunities. The Court in Basco[237] also Article XIII and Section 18, Article II do not
ruled that Section 17, Article II on giving priority to automatically confer judicially demandable and
education, science and technology, arts, culture, and enforceable rights and cannot, on their own, be a basis
sports, and Section 2, Article XIV on educational for a declaration of unconstitutionality. Further, the
values, are non-self-executing. Court finds that, in fact, teachers and professors were
given the opportunity to participate in the various
Thus, the Court reiterates that these constitutional consultations and decision-making processes affecting
provisions are only policies that may be "used by the their rights as workers.[240]
judiciary as aids or as guides in the exercise of its
power of judicial review, and by the legislature in its CMO No. 20 does not contravene any other laws
enactment of laws."[238]The Court reiterates that they
do not embody judicially enforceable constitutional As claimed by petitioners, CMO No. 20 violated
rights.[239] Section 14 of RA No. 7104 or the Commission on the
Filipino Language Act because it interfered with the
Second, it is misleading for petitioners to allege that authority of the Commission on the Filipino Language
there is a violation of the constitutional provisions for (CFL) on matters of language. Petitioners reiterate that
the simple reason that the study of Filipino, Panitikan it is the CFL who has the authority to formulate policies,
and the Constitution are actually found in the basic plans and programs to ensure the further development,
education curriculum from Grade 1 to 10 and senior enrichment, propagation and preservation of Filipino
high school. To be sure, the changes in the GE and other Philippine language[241] and thus, CMO No.
curriculum were implemented to ensure that there 20 should have retained the nine (9) units of Filipino in
would be no duplication of subjects in Grade 1 to 10, the GE curriculum, as proposed by the CFL.
senior high school and college. Thus, the allegation of
petitioners that CMO No. 20 "removed" the study of Petitioners also aver that CMO No. 20 violates RA No.
Filipino, Panitikan and the Constitution in the GE 7356 or the Law Creating the National Commission for
curriculum is incorrect. Culture and the Arts because the non-inclusion of
Filipino and Panitikan as subjects in the GE curriculum
As regards Section 3(1), Article XIV on the requirement is a violation of our "duty x x x to preserve and conserve
that all educational institutions shall include the study the Filipino historical and cultural heritage and
of the Constitution as part of the curricula, the resources."[242]
deliberations of the Constitutional Commission confirm
that the intention was for it to be constitutionally Lastly, petitioners allege that CMO No. 20 violates BP
mandated. The Court agrees that there is indeed a Blg. 232 or the Education Act of 1982, specifically,
constitutional mandate that the study of the Section 3 on the role of the educational community to
Constitution should be part of the curriculum of promote the social and economic status of all school

242
personnel and Section 23 on the objectives of tertiary of the two basic rights of notice and hearing, as well as
education which includes a general education program the guarantee of being heard by an impartial and
that will promote national identity and cultural competent tribunal.[245]
consciousness.
Substantive due process, the aspect of due process
Again, the Court disagrees. invoked in this case, requires an inquiry on the intrinsic
validity of the law in interfering with the rights of the
It must be noted that nothing in these laws requires that person to his property. In Abakada Guro Party List vs.
Filipino and Panitikan must be included as subjects in Ermita,[246] the Court held:
the tertiary level. Further, as already established, it is
within the authority of the CHED to determine the GE x x x The inquiry in this regard is not whether or not the
distribution requirements. The Court also reiterates law is being enforced in accordance with the
that the study of Filipino and Panitikan can easily be prescribed manner but whether or not, to begin with, it
included as courses in the tertiary level, if the HEIs wish is a proper exercise of legislative power.
to. Thus, petitioners' arguments that CMO No. 20
violates the aforementioned laws must fail. To be so, the law must have a valid governmental
objective, i.e., the interest of the public as distinguished
III. from those of a particular class, requires the
intervention of the State. This objective must be
The K to 12 Law does not violate substantive due pursued in a lawful manner, or in other words, the
process and equal protection of the laws. means employed must be reasonably related to the
accomplishment of the purpose and not unduly
Petitioners also assert that the K to 12 Law is oppressive.[247] (Emphasis supplied)
unconstitutional for violating the due process clause,
as the means employed is allegedly not proportional to Hence, two things must concur: (1) the interest of the
the end to be achieved, and that there is supposedly public, in general, as distinguished from those of a
an alternative and less intrusive way of accomplishing particular class, requires the intervention of the State;
the avowed objectives of the law. They point to studies and (2) the means employed are reasonably necessary
which showed that lengthening the time did not for the accomplishment of the purpose, and not unduly
necessarily lead to better student performance. They oppressive on individuals.
further assert that "[g]iven adequate instruction, armed
with sufficient books, and a conducive learning Here, the K to 12 Law does not offend the substantive
environment, the Filipino student does not need at all due process of petitioners. The assailed law's
two (2) additional years of senior high school" and declaration of policy itself reveals that, contrary to the
hence the imposition of additional years in senior high claims of petitioners, the objectives of the law serve the
school is "unduly oppressive an unwarranted intrusion interest of the public and not only of a particular
into the right to education of all Filipino students, thus class:[248]
violating their right to substantive due process."[243] In
addition, they claim that the assailed law is violative of SEC. 2. Declaration of Policy. — The State shall
the due process clause because, allegedly, the law establish, maintain and support a complete, adequate,
served the interests of only a select few. According to and integrated system of education relevant to the
them, majority of the Filipinos will never apply for needs of the people, the country and society-at-large.
graduate school admission to a foreign university or for
professional work in a foreign corporation, and these Likewise, it is hereby declared the policy of the State
are the only people who supposedly need the that every graduate of basic education shall be an
additional two years of basic education. They point to empowered individual who has learned, through a
the fact that Filipinos are being currently employed as program that is rooted on sound educational principles
caregivers, seafarers, house helpers, etc. despite the and geared towards excellence, the foundations for
fact that they have undergone only ten (10) years of learning throughout life, the competence to engage in
basic education. Hence, the assailed law is work and be productive, the ability to coexist in fruitful
unconstitutional for serving the interests of only a harmony with local and global communities, the
select few.[244] capability to engage in autonomous, creative, and
critical thinking, and the capacity and willingness to
Again, the Court disagrees. There is no conflict transform others and one's self.
between the K to 12 Law and right of due process of
the students. For this purpose, the State shall create a functional
basic education system that will develop productive
It is established that due process is comprised of two and responsible citizens equipped with the essential
components, namely, substantive due process which competencies, skills and values for both life-long
requires the intrinsic validity of the law in interfering learning and employment. In order to achieve this, the
with the rights of the person to his life, liberty, or State shall:
property, and procedural due process which consists

243
(a) Give every student an opportunity to receive quality only to (1) improve the basic education in the country,
education that is globally competitive based on a but also to (2) make it at par with international
pedagogically sound curriculum that is at par with standards. It is in this second purpose that the means
international standards; employed by the assailed law is justified. Thus, having
established that the interest of the public in general is
(b) Broaden the goals of high school education for at the heart of the law, and that the means employed
college preparation, vocational and technical career are commensurate to its objectives, the Court holds
opportunities as well as creative arts, sports and that the K to 12 Law is not violative of the due process
entrepreneurial employment in a rapidly changing and clause.
increasingly globalized environment; and
The students of Manila Science High School (MSHS),
(c) Make education learner-oriented and responsive to petitioners in G.R. No. 218465, aver, in particular, that
the needs, cognitive and cultural capacity, the the decongestion of the originally existing basic
circumstances and diversity of learners, schools and education curriculum and the lengthening of the basic
communities through the appropriate languages of education cycle do not, and should not, be made to
teaching and learning, including mother tongue as a apply to them as their curriculum is supposedly
learning resource. (Emphasis supplied) congested on purpose.[250] It supposedly should not
apply to them because "[they] are gifted and thus are
All students are intended to benefit from the law. advanced for their age, with the capability to learn
Without ruling on the effectiveness of the revised better and faster compared to other high school
curriculum, it is erroneous to view the K to 12 Law and students. Because of their higher mental capabilities,
the DepEd Orders in question extending basic they neither need decongesting nor a longer period of
education by two (2) years simply to comply with time or any spiral approach, for them to in fact master
international standards; rather, the basic education their heavier in scope and more advanced math and
curriculum was restructured according to what the science subjects."[251] They are supposedly "not
political departments believed is the best approach to being trained for immediate employment after high
learning, or what they call as the "spiral approach." This school but for them to pursue tertiary education,
approach, according to respondent, will yield the particularly career paths either as mathematicians,
following benefits for all students: (1) it is decongested scientists or engineers, which the country needs most
and offers a more balanced approach to learning; (2) it for its development."[252]This, these petitioners
would help in freeing parents of the burden of having asseverate, makes the means employed by the K to 12
to spend for college just to make their children Law not reasonably necessary for the accomplishment
employable; (3) it would prepare students with life skills of its intended purpose. Thus, as applied to MSHS
that they learn while schooling; (4) it is seamless; (5) it students, the K to 12 Law is arbitrary, unfair,
is relevant and responsive, age-appropriate, and oppressive, discriminatory and unreasonable and thus
focused on making learners succeed in the 21st violative of their substantive due process. [253] They
century; and (6) it is enriched and learner- further allege that the law is violative of the equal
centered.[249] Thus, contrary to the claims of protection clause for treating them in the same way as
petitioners, the assailed law caters to the interest of the all other high school students when they are supposed
public in general, as opposed to only a particular group to be treated differently for not being similarly situated
of people. with the rest.[254]

Furthermore, the means employed by the assailed law In essence, what these petitioners are saying is that
are commensurate with its objectives. Again, the the K to 12 Law did not make a substantial distinction
restructuring of the curriculum with the corresponding between MSHS students and the rest of the high
additional years in senior high school were meant to school students in the country when it, in fact, should
improve the quality of basic education and to make the have done so.
country's graduates more competitive in the
international arena. This contention is without merit.

Respondents proffer, and petitioners concede, that the To assure that the general welfare is promoted, which
Philippines is the last country to adopt a 12-year basic is the end of the law, a regulatory measure may cut into
education curriculum. However, petitioners submit that the rights to liberty and property.[255] Those adversely
adding two (2) years in the basic education curriculum affected may invoke the equal protection clause only if
is not the answer to achieve these objectives, and that they can show that the governmental act assailed, far
there is supposedly a less intrusive way to achieve from being inspired by the attainment of the common
these goals, namely, to increase the salaries of the goal, was prompted by the spirit of hostility, or at the
teachers, invest in better and more resource materials, very least, discrimination that finds no support in
and building of more classrooms to achieve the goal of reason.[256] This, petitioners' failed to sufficiently
improving the quality of education in the Philippines. show. For this reason, the Court holds that the K to 12
Petitioners ought to be reminded, however, that the Law did not violate petitioners' right to due process nor
objectives of the law are two-pronged. It was meant not did it violate the equal protection clause. In JMM

244
Promotion and Management, Inc. v. Court of modify their curricula subject, of course, to the
Appeals,[257] the Court explained the object and minimum subjects prescribed by the DepEd:[262]
purpose of the equal protection clause in this wise:
SEC. 5. Curriculum Development. — The DepED shall
The equal protection clause is directed principally formulate the design and details of the enhanced basic
against undue favor and individual or class privilege. It education curriculum. It shall work with the
is not intended to prohibit legislation which is limited to Commission on Higher Education (CHED) to craft
the object to which it is directed or by the territory in harmonized basic and tertiary curricula for the global
which it is to operate. It does not require absolute competitiveness of Filipino graduates. To ensure
equality, but merely that all persons be treated alike college readiness and to avoid remedial and
under like conditions both as to privileges conferred duplication of basic education subjects, the DepED
and liabilities imposed. We have held, time and again, shall coordinate with the CHED and the Technical
that the equal protection clause of the Constitution Education and Skills Development Authority (TESDA).
does not forbid classification for so long as such
classification is based on real and substantial To achieve an effective enhanced basic education
differences having a reasonable relation to the subject curriculum, the DepED shall undertake consultations
of the particular legislation. If classification is germane with other national government agencies and other
to the purpose of the law, concerns all members of the stakeholders including, but not limited to, the
class, and applies equally to present and future Department of Labor and Employment (DOLE), the
conditions, the classification does not violate the equal Professional Regulation Commission (PRC), the
protection guarantee.[258] (Emphasis supplied) private and public schools associations, the national
student organizations, the national teacher
To emphasize, valid classifications require real and organizations, the parents-teachers associations and
substantial differences to justify the variance of the chambers of commerce on matters affecting the
treatment between the classes. The MSHS students concerned stakeholders.
did not offer any substantial basis for the Court to
create a valid classification between them and the rest The DepED shall adhere to the following standards and
of the high school students in the Philippines. principles in developing the enhanced basic education
Otherwise stated, the equal protection clause would, in curriculum:
fact, be violated if the assailed law treated the MSHS
students differently from the rest of the high school (a) The curriculum shall be learner-centered, inclusive
students in the country. and developmentally appropriate;

To be clear, the Court is not saying that petitioners are (b) The curriculum shall be relevant, responsive and
not gifted, contrary to their claims. The Court is merely research-based;
saying that the K to 12 Law was not infirm in treating
all high school students equally. The MSHS students (c) The curriculum shall be culture-sensitive;
are, after all, high school students just like all the other
students who are, and will be, subjected to the revised (d) The curriculum shall be contextualized and global;
curriculum.
(e) The curriculum shall use pedagogical approaches
The Court agrees with these petitioners to the extent of that are constructivist, inquiry-based, reflective,
their claim that they have the right granted by Article collaborative and integrative;
3(3) and (6) of Presidential Decree No. 603, or the
Child and Youth Welfare Code, to education (f) The curriculum shall adhere to the principles and
commensurate with their abilities.[259] However, the framework of Mother Tongue-Based Multilingual
Court disagrees that the said right granted by the Child Education (MTB-MLE) which starts from where the
and Youth Welfare Code was violated when the learners are and from what they already knew
revised curriculum under the K to 12 Law was applied proceeding from the known to the unknown;
to them. It bears repeating that the law is being merely instructional materials and capable teachers to
applied to the whole segment of the population to implement the MTB-MLE curriculum shall be available;
which petitioners belong. Further, the basic education
under the K to 12 was intended to meet the basic (g) The curriculum shall use the spiral progression
learning needs of the students and it is broad enough approach to ensure mastery of knowledge and skills
to cover alternative learning systems for out-of-school after each level; and
learners and those with special needs.[260]
(h) The curriculum shall be flexible enough to enable
This is not to say that they shall be continually and allow schools to localize, indigenize and enhance
subjected strictly to the K to 12 curriculum which they the same based on their respective educational and
describe as "inferior," "diluted," and "anemic."[261] The social contexts. The production and development of
K to 12 Law explicitly recognized the right of schools to locally produced teaching materials shall be
encouraged and approval of these materials shall

245
devolve to the regional and division education units.
(Emphasis supplied) As previously discussed, however, Section 2, Article
XIV of the 1987 Philippine Constitution is a non-self-
In fact, the K to 12 IRR confirms the inclusiveness of executing provision of the Constitution. Again, as the
the design of the Enhanced Basic Education in Court already held in Basco, "Section 2 (Educational
mandating that the enhanced basic education Values) of Article XIV of the 1987 [Philippine]
programs should be able to address the physical, Constitution x x x are merely statements of principles
intellectual, psychosocial, and cultural needs of and policies. As such, they are basically not self-
learners.[263] The IRR mandates that the Basic executing, meaning a law should be passed by
Education Program should include programs for the Congress to clearly define and effectuate such
gifted and talented, those with disabilities, the principles."[269] The K to 12 Law is one such law
Madrasah Program for Muslim learners, Indigenous passed by the Legislature to bring the said guiding
Peoples Programs, and Programs for Learners under principle to life. The question of what is 'relevant to the
Difficult Circumstances.[264] The K to 12 IRR also needs of the people and society' is, in turn, within the
allows the acceleration of learners in public and private sole purview of legislative wisdom in which the Court
educational institutions.[265] Therefore, the remedy of cannot intervene.
petitioner students is with MSHS and/or DepEd, and
not with this Court. Another assertion against the constitutionality of the K
to 12 Law is that it allegedly violates the constitutional
Petitioners in G.R. No. 218045 also challenge the K to State duty to exercise reasonable supervision and
12 Law on the ground of violation of the equal regulation of educational institutions mandated by
protection clause by arguing that private schools are Section 4, Article XIV of the 1987 Constitution.
allowed to offer extra and optional curriculum subjects Petitioners in G.R. No. 218123 allege that DepEd's
in addition to those required by the K to 12 Law and Basic Education Sector Transformation Program
DepEd Orders, and thus, rich families will tend to enroll (BEST) is supported by Australian Aid and managed
their children in private schools while poor families will by CardNo, a foreign corporation listed in the
be constrained to enroll their children in English Australian Securities Exchange. CardNo allegedly
starved public schools.[266] hires specialists for the implementation of the K to 12
curriculum.[270] This partnership between CardNo and
The argument is untenable. DepEd is allegedly violative of the above Constitutional
provision, which reads:
The Court, no matter how vast its powers are, cannot
trample on the previously discussed right of schools to SEC. 4. (1) The State recognizes the complementary
enhance their curricula and the primary right of parents roles of public and private institutions in the educational
to rear their children, which includes the right to system and shall exercise reasonable supervision and
determine which schools are best suited for their regulation of all educational institutions.
children's needs. Even before the passage of the K to
12 Law, private educational institutions had already (2) Educational institutions, other than those
been allowed to enhance the prescribed curriculum, established by religious groups and mission boards,
considering the State's recognition of the shall be owned solely by citizens of the Philippines or
complementary roles of public and private institutions corporations or associations at least sixty per centum
in the educational system.[267] Hence, the Court of the capital of which is owned by such citizens. The
cannot sustain petitioners' submission that the assailed Congress may, however, require increased Filipino
law is invalid based on this ground. equity participation in all educational institutions.

Other arguments against the constitutionality of the K The control and administration of educational
to 12 Law institutions shall be vested in the citizens of the
Philippines.
Petitioners in G.R. No. 217752 argue that DepEd's use
of global competitiveness as justification in the policy No educational institution shall be established
shift to K to 12 is not relevant to the needs of the people exclusively for aliens and no group of aliens shall
and society, as not everyone will be working comprise more than one-third of the enrollment in any
abroad.[268]Essentially, they are assailing the validity school. The provisions of this subsection shall not
of the law for allegedly violating Section 2(1), Article apply to schools established for foreign diplomatic
XIV of the 1987 Philippine Constitution, which states personnel and their dependents and, unless otherwise
that: provided by law, for other foreign temporary residents.

SEC. 2. The State shall: (3) All revenues and assets of non-stock, non-profit
educational institutions used actually, directly, and
(1) Establish, maintain, and support a complete, exclusively for educational purposes shall be exempt
adequate, and integrated system of education relevant from taxes and duties. Upon the dissolution or
to the needs of the people and society[.] cessation of the corporate existence of such

246
institutions, their assets shall be disposed of in the thought it advisable to restate the supervisory and
manner provided by law. regulatory functions of the State provided in the 1935
and 1973 Constitutions with the addition of the word
Proprietary educational institutions, including those "reasonable." We found it necessary to add the word
cooperatively owned, may likewise be entitled to such "reasonable" because of an obiter dictum of our
exemptions subject to the limitations provided by law Supreme Court in a decision in the case of Philippine
including restrictions on dividends and provisions for Association of Colleges and Universities vs. The
reinvestment. Secretary of Education and the Board of Textbooks in
1955. In that case, the court said, and I quote:
(4) Subject to conditions prescribed by law, all grants,
endowments, donations, or contributions used It is enough to point out that local educators and writers
actually, directly, and exclusively for educational think the Constitution provides for control of education
purposes shall be exempt from tax. (Emphasis by the State.
supplied)
The Solicitor General cites many authorities to show
Petitioners point to Section 4(1) and Section 4(2), that the power to regulate means power to control, and
paragraph 2, as legal basis for the supposed quotes from the proceedings of the Constitutional
unconstitutionality of the partnership between DepEd Convention to prove that State control of private
and CardNo in the implementation of the K to 12 education was intended by organic law.
curriculum.
The addition, therefore, of the word "reasonable" is
Petitioners' reading of the above Constitutional meant to underscore the sense of the committee, that
provisions is erroneous. Sections 4(1) and 4(2) deal when the Constitution speaks of State supervision and
with two separate matters that the Framers of the regulation, it does not in any way mean control. We
Constitution sought to address. Section 4(1) was a refer only to the power of the State to provide
provision added by the Framers to crystallize the regulations and to see to it that these regulations are
State's recognition of the importance of the role that the duly followed and implemented. It does not include the
private sector plays in the quality of the Philippine right to manage, dictate, overrule and prohibit.
education system. Despite this recognition, the Therefore, it does not include the right to
Framers added the second portion of Section 4(2) to dominate.[271] (Emphasis supplied)
emphasize that the State, in the exercise of its police
power, still possesses the power of supervision over In stark contrast, Section 4(2), Article XIV, which was
private schools. The Framers were explicit, however, copied from the 1973 Philippine Constitution, refers to
that this supervision refers to external governance, as ownership and administration of individual schools.
opposed to internal governance which was reserved to This interpretation is clear both from a plain reading of
the respective school boards, thus: the provision itself, and from the deliberations of the
Framers of the Constitution:
Madam President, Section 2(b) introduces four
changes: one, the addition of the word "reasonable" MR. GUINGONA. The committee refers to both
before the phrase "supervision and regulation"; two, ownership and administration. If I may be allowed to
the addition of the word "quality" before the word continue, may I refer the Commissioner to the same
"education"; three, the change of the wordings in the section that I have specified in the 1973 Constitution.
1973 Constitution referring to a system of education, The Commissioner will notice that this particular
requiring the same to be relevant to the goals of provision does not only refer to administration because
national development, to the present expression of it speaks also of educational institution which should
"relevant to the needs of the people and society"; and be owned solely by citizens or corporations of the
four, the explanation of the meaning of the expression Philippines.
"integrated system of education" by defining the same
as the recognition and strengthening of the MR. REGALADO. Yes.
complementary roles of public and private educational
institutions as separate but integral parts of the total MR. GUINGONA. In other words, even in the 1973
Philippine educational system. Constitution, the contemplation or the intention of the
fundamental law was to include both ownership and
When we speak of State supervision and regulation, administration.
we refer to the external governance of educational
institutions, particularly private educational institutions MR. REGALADO. They are not merely these, because
as distinguished from the internal governance by their otherwise there is an error of language in the
respective boards of directors or trustees and their Constitution then. Paragraph 7 of Section 8 states:
administrative officials. Even without a provision on "Educational institutions, other than those established
external governance, the State would still have the by religious orders, mission boards, or charitable
inherent right to regulate educational institutions organizations."
through the exercise of its police power. We have

247
MR. GUINGONA. Yes.
Dep[E]d Order No. 62, s. 2011 entitled "The National
MR. REGALADO. In other words, with the exception of Indigenous Peoples Education Policy Framework,"
educational institutions established by religious orders, was issued to serve as an instrument in promoting
mission boards, or charitable organizations, then all shared accountability, continuous dialogue,
educational institutions shall be owned solely by engagement, and partnership among governments,
citizens of the Philippines and at the time, of course, by IPs communities, civil society, and other education
corporations or associations 60 per centum of the stakeholders in upholding the IPs Learners' education
capital of which is owned by citizens. In other words, rights. In support of DepEd's commitment to strengthen
educational institutions of religious orders were its policy on Indigenous Peoples Education (IPEd),
exempted from that requirement by the very DepEd Order No. 26, s. 2013 promulgated the
constitutional provision which was further implemented Implementing Guidelines on the Allocation and
and ramified with clarity in P.D. No. 176.[272] Utilization of the Indigenous Peoples Education (IPEd)
Program Support Fund.
Thus, petitioners are mistaken in applying Section 4(2),
Article XIV to Section 4(1), Article XIV as they deal with Likewise, DepEd Order No. 46, s. 2013, entitled
completely different matters. The restrictions "Guidelines on the Madrasah Education Program and
expressed in Section 4(2), Article XIV only refer to Utilization of the Support Fund," was issued to engage
ownership, control, and administration of individual Muslim learners with relevant educational opportunities
schools, and these do not apply to the State's exercise and processes.
of reasonable supervision and regulation of
educational institutions under Section 4(1), Article XIV. On the other hand, DepEd Order No. 39, s. 2013 was
Hence, there is nothing under the provisions of the issued in support of DepEd's Special Education
Constitution which prohibits the State to forge a Program for learners with special needs and
partnership with a foreign entity, like CardNo, in the disabilities, including those who are gifted and talented.
exercise of this supervision and regulation of DepEd Memorandum No. 108, s. 2013 entitled "2013
educational institutions. Alternative Learning System Accreditation and
Equivalency (ALS & ALE) Test Registration and
Further, it is asserted that the K to 12 Law violates the Administration" was promulgated to facilitate the ALS
constitutional duty of the State to provide adult citizens, & ALE Test, designed to measure the competencies of
the disabled, and out-of-school youth with training in those who have neither attended nor finished the
civics, vocational efficiency, and other skills as elementary or secondary education in the formal
commanded by Section 2, Article XIV of the 1987 school system. Passers of this test are given a
Philippine Constitution. Petitioners decry the supposed certificate/diploma (which bears the seal and the
lack of mechanisms in the K to 12 Law to signature of the Secretary of the Department of
accommodate groups with special needs.[273] As Education) certifying their competencies as
previously discussed, Section 2, Article XIV of the 1987 comparable to graduates of the formal school system.
Philippine Constitution is not a self-executing provision. Hence, they are qualified to enroll in the secondary and
Furthermore, petitioners' argument has no factual post secondary schools.
basis because DepEd has already put in place
programs to address the needs of indigenous peoples, DepEd Order No. 17, s. 2014 was also issued to
Muslim children, adult learners, PWDs, out of school provide the guidelines on the Abot-Alam Program, a
youth and other sectors of society in keeping with the convergence program that is being undertaken by a
aforesaid constitutional provisions, in line with the K to consortium of various national government agencies,
12 Law. The Court agrees with the following discussion non government organizations, the National Youth
by the OSG in its Comment on this point: Commission, and institutions under the leadership of
DepEd to locate the out-of-school youth (OSY)
The petitioners' argument has no factual basis because nationwide who are 15-30 years old and who have not
the DepEd has already put in place programs to completed basic/higher education or who are
address the needs of the indigenous peoples, Muslim unemployed, and to mobilize and harmonize programs
schoolchildren, adult learners, and persons with which will address the OSY's needs and aspirations.
disabilities (PWDs) in line with the K-12 program.
DepEd Order No. 103, s. 2011 directed the creation of DepEd Order No. 77, s. 2011 organized the Advisory
the Indigenous Peoples Education Office (IPsEO), Council for the Education of Children and Youth with
which is a mechanism for the mobilization, Disabilities (ACECYD) to formulate an agenda for
implementation, and coordination of all the programs action and the framework for collaboration between the
and projects of DepEd pertaining to IPs education, DepEd and the disability sector and other stakeholders
pursuant to "The Indigenous Peoples Rights Act of in providing education to children and youth with
1997." This law mandates all government agencies to disabilities.
recognize and promote the rights of Indigenous
Cultural Communities and Indigenous Peoples within DepEd Order No. 64, s. 2011 directed all Schools
the framework of national unity and development. Division and City Superintendents (SDSs) and District

248
Supervisors to strictly implement relevant policies and c)
best practices on the promotion and compensation of The Philippine government does not have enough
all Alternative Learning System (ALS) mobile teachers funds to add two (2) more years of senior high
and implementers to ensure equal opportunities and school.[277]
standard implementation on the promotion and
compensation of the ALS implementers.
d)
Likewise, DepEd Order No. 22, s. 2010, entitled Student-teacher ratio is far from ideal.[278]
"Mainstreaming and Institutionalizing Madrasah
Education Program by Transferring Its Developed
Components to the Bureau of Elementary Education, e)
Regional and Division Offices, and the Establishment Teachers are paid low salaries.[279]
of Madrasah Education Unit," was promulgated with
the ultimate objective of peace building, national unity
and understanding. Under this scheme, DepEd shall f)
develop the Standard Madrasah Curriculum (SMC) for There is no assurance that senior high school results
Pre-elementary and Secondary levels, along with the in good employment.[280]
development of instructional and learning materials, to
complete the cycle of basic education Madrasah. Policy matters are not the concern of the Court. To
reiterate, government policy is within the exclusive
These inclusion programs are continuously being dominion of the political branches of the government. It
implemented to respond to the needs of the education is not for the Court to look into the wisdom or propriety
sector during the transition period. They show the of legislative determination.[281] Stated otherwise, the
resolve of the DepEd to harness the necessary judiciary does not pass upon questions of wisdom,
systems and structures to respond to the needs of the justice or expediency of legislation.[282] Indeed,
indigenous peoples, Muslim schoolchildren, adult whether an enactment is wise or unwise, whether it is
learners, PWDs, OSYs, and the other sectors of based on sound economic theory, whether it is the best
society, in keeping with the constitutional provisions on means to achieve the desired results, whether, in short,
the rights of indigenous peoples to preserve and the legislative discretion within its prescribed limits
develop their cultures, and to provide training in civics, should be exercised in a particular manner — all these
vocational efficiency, and other skills to adult, disabled, are matters for the judgment of the legislature, and the
and out-of-school youth.[274] serious conflict of opinions does not suffice to bring
them within the range of judicial cognizance. When the
In fine, the contentions of petitioners are therefore validity of a statute is challenged on constitutional
without any factual basis and utterly devoid of merit. grounds, the sole function of the court is to determine
whether it transcends constitutional limitations or the
IV. limits of legislative power.[283] In the case of Tañada
v. Cuenco,[284] the Court, quoting American
Policy issues authorities, held:

In an attempt to bolster their case against the K to 12 "Elsewhere in this treatise the well-known and well-
Law, petitioners also raised the following policy issues: established principle is considered that it is not within
the province of the courts to pass judgment upon the
a) policy of legislative or executive action. Where,
K to 12 only increases the resource gap by creating therefore, discretionary powers are granted by the
more need for resources. The solution to the problem Constitution or by statute, the manner in which those
is closing the resource gap by giving priority to powers are exercised is not subject to judicial review.
education in the budget and public spending program The courts, therefore, concern themselves only with
of the government and addressing the issue of poverty the question as to the existence and extent of these
and malnutrition and programs aimed at alleviating if discretionary powers.
not eradicating poverty in the long run but instead
government comes up with the K to 12 Law which is a "As distinguished from the judicial, the legislative and
copycat and elitist solution.[275] executive departments are spoken of as the
politicaldepartments of government because in very
many cases their action is necessarily dictated by
b) considerations of public or political policy. These
K to 12 is problem-ridden. Instead, what we need is to considerations of public or political policy of course will
prioritize deficiencies in personnel, facilities and not permit the legislature to violate constitutional
materials; and a nationalist-oriented curriculum provisions, or the executive to exercise authority not
relevant to the needs of the people.[276] granted him by the Constitution or by statute, but,
within these limits, they do permit the departments,
separately or together, to recognize that a certain set

249
of facts exists or that a given status exists, and these Restraining Order dated April 21, 2015 issued in G.R.
determinations, together with the consequences that No. 217451 is hereby LIFTED.
flow therefrom, may not be traversed in the
courts."[285] (Emphasis in the original) SO ORDERED.

Similarly, in Department of Environment and Natural

Resources v. DENR Region 12 Employees,[286] the
Court held that:

x x x. However, these concern issues addressed to the

wisdom of the transfer rather than to its legality. It is
basic in our form of government that the judiciary
cannot inquire into the wisdom or expediency of the
acts of the executive or the legislative department, for
each department is supreme and independent of the
others, and each is devoid of authority not only to
encroach upon the powers or field of action assigned
to any of the other department, but also to inquire into
or pass upon the advisability or wisdom of the acts
performed, measures taken or decisions made by the
other departments.

The Supreme Court should not be thought of as having

been tasked with the awesome responsibility of
overseeing the entire bureaucracy. Unless there is a
clear showing of constitutional infirmity or grave abuse
of discretion amounting to lack or excess of jurisdiction,
the Court's exercise of the judicial power, pervasive
and limitless it may seem to be, still must succumb to
the paramount doctrine of separation of powers. After
a careful review of the records of the case, we find that
this jurisprudential element of abuse of discretion has
not been shown to exist.[287] (Emphasis supplied)

Further, the courts accord the presumption of

constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the
Constitution, but also because the judiciary, in the
determination of actual cases and controversies, must
reflect the wisdom and justice of the people as
expressed through their representatives in the
executive and legislative departments of the
government.[288] The Court, despite its vast powers,
will not review the wisdom, merits, or propriety of
governmental policies, but will strike them down only
on either of two grounds: (1) unconstitutionality or
illegality and/or (2) grave abuse of discretion.[289] For
having failed to show any of the above in the passage
of the assailed law and the department issuances, the
petitioners' remedy thus lies not with the Court, but with
the executive and legislative branches of the
government.[290]

WHEREFORE, the consolidated petitions are hereby

DENIED. Accordingly, the Court declares Republic Act
No. 10533, Republic Act No. 10157, CHED
Memorandum Order No. 20, Series of 2013,
Department of Education Order No. 31, Series of 2012,
and Joint Guidelines on the Implementation of the
Labor and Management Component of Republic Act
No. 10533, as CONSTITUTIONAL. The Temporary

250