1

1A Consti 1 HW II. General Principles of Constitutional Construction

1. Read all cases in their full text. There will be recitation and/or quiz on a. Gold Creek Mining Corp. v. Rodriguez, 66 Phil. 259 (1938)
the first meeting (July 21). Requests for ceasefire will not be entertained. b. Francisco v. House of Representatives, G.R. No. 160261, November
10, 2003
2. No book will be required for use in class for the entire semester. c. Sarmiento v. Mison, 156 SCRA 549 (1987)
However, it is highly recommended to read the relevant chapters in any
or all of the following books: III. Aids to Construction
a. Aquino v. COMELEC, G.R. No. 40004, January 31, 1975, 62 SCRA
Constitutional Law – Fr. Joaquin G. Bernas, Justice Antonio Eduardo B. 275 (1975)
Nachura, and Atty. Hector de Leon; and b. Civil Liberties Union v. Executive Secretary, 194 SCRA 317 (1991)
3. Submit typewritten digests for the main Decision, be ready to recite on c. Luz Farms v. Secretary of the Department of Agrarian Reform, 192
the arguments of all the parties, and be able to compare ALL separate, SCRA 51 (1990)
concurring and dissenting opinions of the Supreme Court Justices in the d. Vera v. Avelino, 77 Phil. 192 (1946)
following cases: e. Roman Catholic Apostolic Administration of Davao, Inc. v. Land
a. Rep. Edcel Lagman, et al. v. Executive Secretary Medialdea, G.R. No. Registration Commission, 102 Phil. 596 (1957)
231658, July 4, 2017 f. Tanada v. Cuenco, 103 Phil. 1051 (1957)
b. Alexander Padilla v. Congress of the Philippines, G.R. No. 231671, g. Chiongbian v. De Leon, 82 Phil. 771 (1949)
July 25, 2017 h. Galman v. Pamaran, 138 SCRA 294 (1985)
c. Knights of Rizal v. DMCI Homes, Inc., G.R. No. 213948, April 25, 2017 IV. Ordinary Sense vs. Technical Sense
d. Hon. Philip Aguinaldo v. President Aquino, G.R. No. 224302, a. J.M. Tuason & Co., Inc. v. Land Tenure Administration, G.R. No.
November 29, 2016 21064, February 18, 1970
e. Saturnino Ocampo v. Executive Secretary Medialdea, G.R. No. b. Ordillo v. Commission on Elections, 192 SCRA 100 (1992)
225973, November 8, 2016 c. Marcos v. Chief of Staff, 89 Phil. 239 (1951)
f. Grace Poe-Llamanzares v. COMELEC, G.R. No. 221697, March 8, d. Ruffy v. Chief of Staff, 75 Phil. 875 (1946)
2016 e. Krivenko v. Register of Deeds, 79 Phil. 461 (1947)
g. Republic of the Philippines Vs. Maria Lourdes P. A. Sereno G.R. No. V. Self-Executing vs. Non-Self-Executing
237428. June 19, 2018. a. Knights of Rizal v. DMCI Homes, Inc., G.R. No. 213948, April 25, 2017
CHAPTER I b. Grace Poe-Llamanzares v. COMELEC, G.R. No. 221697, March 8,
INTRODUCTION TO THE CONSTITUTION AND  2016
CONSTITUTIONAL CONSTRUCTION c. Manila Prince Hotel v. GSIS, G.R. No. 122156, 3 February 1997.
I. Constitution, Definition and Characteristics d. Tanada v. Angara, G.R. No. 118295, May 2, 1997
a. Manila Prince Hotel v. GSIS, G.R. No. 122156, February 3, 1997, 267 e. Oposa v. Factoran, G.R. No. 10183, July 30, 1993
SCRA 408 f. Pamatong v. COMELEC, G.R. No. 161872, April 13, 2004
b. Lopez v. De los Reyes 55 Phil. 186, 188 VI. Mandatory vs. Directory
c. Alfredo M. de Leon v. Hon. Benjamin B. Esguerra, G.R. No. 78059, a. Tanada v. Cuenco, 103 Phil. 1051 (1957)
August 31, 1987 b. Gonzales v. COMELEC, G.R. No. 28196, November 9, 1967
 2

c. Rep. Edcel Lagman, et al. v. Executive Secretary Medialdea, G.R. No. September 2011
231658, July 4, 2017 j. General v. Urro, G.R. No. 191560, 29 March 2011
VII. Prospective vs. Retroactive
a. Hagonoy Water Distirct v. NLRC, 165 SCRA 272 (1988)
b. Filoteo v. Sandiganbayan, 263 SCRA 222 (1996)
c. Co v. Electoral Tribunal, 199 SCRA 692 (1991)
CHAPTER II
INTRODUCTION TO JUDICIAL REVIEW
I. Basis, Extent and Limitations
a. Article VIII, Section 1 and Section 4 of the 1987 Constitution
b. Rules of Court, Rules 63 and 65
c. Record of the Constitutional Commission, 434-436 (1986)
d. Endencia v. David, 93 Phil. 696 (1953)
e. Angara v. Electoral Commission, G.R. No. L-45081, 15 July 1936
f. Marcos v. Manglapus, G.R. No. 88211, 15 September 1989
g. Integrated Bar of the Philippines v. Zamora, G.R No. 141284, 15
August 2000
h. Jardeleza v. Sereno, G.R. No. 213181, August 19, 2014
i. Saturnino Ocampo v. Executive Secretary Medialdea, G.R. No.
225973, November 8, 2016
j. Rep. Edcel Lagman, et al. v. Executive Secretary Medialdea, G.R. No.
231658, July 4, 2017
II. Requisites for Judicial Review
a. Knights of Rizal v. DMCI Homes, Inc., G.R. No. 213948, April 25, 2017
b. Hon. Philip Aguinaldo v. President Aquino, G.R. No. 224302,
November 29, 2016
c. Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism
Council, G.R. No. 178552, 5 October 2010
d. Penafrancia Sugar Mills v. Sugar Regulatory Administration, G.R. No.
208660, 5 March 2014
e. Mendoza v. Familara, G.R. No. 191017, 15 November 2011
f. Kilosbayan v. Morato, G.R. No. 118910, 17 July 1995
g. David v. Arroyo, G.R. No. 171396, 3 May 2006
h. BPI v. Shemberg Biotech Corp., G.R. No. 162291, 11 August 2010
i. Carbonilla v. Board of Airline Representatives, G.R. No. 193247, 14
 3

On 1 September 2011, DMCI Project Developers, Inc. (DMCI-

EN BANC PDI) 3 acquired a 7,716.60-square meter lot in the City of Manila, located
near Taft Avenue, Ermita, beside the former Manila Jai-Alai Building and
April 18, 2017 Adamson University.4The lot was earmarked for the construction of
DMCI-PDI's Torre de Manila condominium project.
G.R. No. 213948
On 2 April 2012, DMCI-PDI secured its Barangay Clearance to start the
KNIGHTS OF RIZAL, Petitioner.  construction of its project. It then obtained a Zoning Permit from the City
vs. of Manila's City Planning and Development Office (CPDO) on 19 June
DMCI HOMES, INC., DMCI PROJECT DEVELOPERS, INC., CITY OF 2012.5
MANILA, NATIONAL COMMISSION FOR CULTURE AND THE ARTS,
NATIONAL HISTORICAL COMMISSION OF THE Then, on 5 July 2012, the City of Manila's Office of the Building Official
PHILIPPINES, Respondents. granted DMCI-PDI a Building Permit, allowing it to build a "Forty Nine
(49) Storey w/ Basement & 2 penthouse Level Res'l./Condominium" on
DECISION the property. 6

CARPIO, J.: On 24 July 2012, the City Council of Manila issued Resolution No. 121
enjoining the Office of the Building Official to temporarily suspend the
Building Permit of DMCI-PDI, citing among others, that "the Torre de
Bury me in the ground, place a stone and a cross over it.
Manila Condominium, based on their development plans, upon
My name, the date of my birth, and of my death. Nothing more.
completion, will rise up high above the back of the national monument, to
If you later wish to surround my grave with a fence, you may do so.
clearly dwarf the statue of our hero, and with such towering heights,
No anniversaries. I prefer Paang Bundok.
would certainly ruin the line of sight of the Rizal Shrine from the frontal
Roxas Boulevard vantage point[.]" 7
- Jose Rizal
Building Official Melvin Q. Balagot then sought the opinion of the City of
  Manila's City Legal Officer on whether he is bound to comply with
Resolution No. 121.8 In his letter dated 12 September 2012, City Legal
The Case  Officer Renato G. Dela Cruz stated that there is "no legal justification for
the temporary suspension of the Building Permit issued in favor of
Before this Court is a Petition for Injunction, with Applications for [DMCI-PDI]" since the construction "lies outside the Luneta Park" and is
Temporary Restraining Order, Writ of Preliminary Injunction, and "simply too far to I be a repulsive distraction or have an objectionable
Others 1 filed by the Knights of Rizal (KOR) seeking, among others, for an effect on the artistic and historical significance" of the Rizal
order to stop the construction of respondent DMCI Homes, Inc. 's Monument. 9 He also pointed out that "there is no showing that the [area
condominium development project known as the Torre de Manila. In its of subject property has been officially declared as an anthropological or
Resolution dated 25 November 2014, the Court resolved to treat the archeological area. Neither has it ' been categorically designated by the
petition as one for mandamus. 2 National Historical Institute as a heritage zone, a cultural property, a
historical landmark or even a national treasure."
The Facts
Subsequently, both the City of Manila and DMCI-PDI sought the opinion
  or the National Historical Commission of the Philippines (NHCP) on the
 4

matter. In the letter10 dated 6 November 2012 from NHCP I Chairperson of the [MZBAA] and hereby ratif[ies] and confirm[s] all previously issued
Dr. Maria Serena I. Diokno addressed to DMCI-PDI and the letter 11 dated permits, licenses and approvals issued by the City [Council] of Manila for
7 November 2012 from NHCP Executive Director III Ludovico D. Bado)f Torre de Manila[.]"
addressed to then Manila Mayor Alfredo S. Lim, the NHCP maintained
that the Torre de Manila project site is outside the boundaries of the Rizal Arguments of the KOR
f.ark and well to the rear of the Rizal Monument, and thus, cannot
possibly obstruct the frontal view of the National Monument. On 12 September 2014, the KOR, a "civic, patriotic, cultural, nonpartisan,
non-sectarian and non-profit organization" 18 created under Republic Act
On 26 November 2013, following an online petition against the Torre de No. 646, 19 filed a Petition for Injunction seeking a temporary restraining I
Manila project that garnered about 7,800 signatures, the City Council of order, and later a permanent injunction, against the construction of
Manila issued Resolution No. 146, reiterating its directive in Resolution DMCIPDI's Torre de Manila condominium project. The KOR argues that
No. 121 1 enjoining the City of Manila's building officials to temporarily the subject matter of the present suit is one of "transcendental
suspend ~MCI-PDI's Building Permit. 12 importance, paramount public interest, of overarching significance to
society, or with far-reaching implication" involving the desecration of the
In a letter to Mayor Joseph Ejercito Estrada dated 18 December 2013, Rizal Monument.
DMCI-PIDI President Alfredo R. Austria sought clarification on the
controversy surrounding its Zoning Permit. He stated that since the The KOR asserts that the completed Torre de Manila structure will "[stick]
CPDO granted its Zoning Permit, DMCI-PDI continued with the out like a sore thumb, [dwarf] all surrounding buildings within a radius of
application for the Building Permit, which was granted, and did not deem two kilometer/s" and "forever ruin the sightline of the Rizal Monument in
it necessary to go through the process of appealing to the local zoning Luneta Park: Torre de Manila building would loom at the back I and
board. He then expressed DMCI-PDI's willingness to comply with the overshadow the entire monument, whether up close or viewed from a
process if the City of Manila deemed it necessary. 13 distance. ''20

On 23 December 2013, the Manila Zoning Board of Adjustments and Further, the KOR argues that the Rizal Monument, as a National
Appeals (MZBAA) issued Zoning Board Resolution No. 06, Series of Treasure, is entitled to "full protection of the law" 21and the national
2013, 14 recommending the approval of DMCI-PDI's application for government must abate the act or activity that endangers the nation's
variance. ;The MZBAA noted that the Torre de Manila project "exceeds cultural heritage "even against the wishes of the local government
the prescribed maximum Percentage of Land Occupancy (PLO) and hosting it." 22
exceeds the prescribeµ Floor Area Ratio (FAR) as stipulated in Article V,
Section 17 of City Ordinance No. 8119[.]" However, the MZBAA still Next, the KOR contends that the project is a nuisance per se23 because
recommended the approval of the variance subject to the five conditions "[t]he despoliation of the sight view of the Rizal Monument is a situation
set under the same resolution. that annoy's or offends the senses' of every Filipino who honors the
memory of the National Hero Jose Rizal. It is a present, continuing,
After some clarification sought by DMCI-PDI, the MZBAA issued Zoning worsening and aggravating status or condition. Hence, the PROJECT is
Board Resolution No. 06-A, Series of 2013, 15 on 8 January 2014, a nuisance per se. It deserves I to be abated summarily, even without
amending condition (c) in the earlier resolution. 16 need of judicial proceeding. "24

On 16 January 2014, the City Council of Manila issued Resolution No. 5, The KOR also claims that the Torre de Manila project violates the
Series of 2014, 17 adopting Zoning Board Resolution Nos. 06 and 06- A. NHCP's Guidelines on Monuments Honoring National Heroes, Illustrious
The City Council resolution states that "the City Council of Manila find[ s] Filipinos and Other Personages, which state that historic monuments
no cogent reason to deny and/or reverse the aforesaid recommendation should assert a visual "dominance" over its surroundings, 25 as well as the
 5

country's commitment under the International Charter for the filed with the Regional Trial Court under the doctrine of hierarchy of
Conservation and Restoration of Monuments and Sites, otherwise known courts and because the petition involves questions of fact. 30
as the Venice Charter. 26
DMCI-PDI also contends that the KOR's petition is in actuality an
Lastly, the KOR claims that the DMCI-PDI's construction was opposition' or appeal from the exemption granted by the City of Manila's
commenced and continues in bad faith, and is in violation of the City of MZBAA, a matter which is also not within the jurisdiction of the
Manila's zoning ordinance. 27 Court. 31 DMCI-PDI claims that the proper forum should be the MZBAA,
and should the KOR fail there, it should appeal the same to the Housing
Arguments of DMCI-PDI and Land Use Regulatory Board (HLURB). 32

In its Comment, DMCI-PDI argues that the KOR's petition should be DMCI-PDI further argues that since the Rizal Monument has been
dismissed on the following grounds: declared a National Treasure, the power to issue a cease and desist
order is lodged with the "appropriate cultural agency" under Section 25 of
I. Republic Act No. li0066 or the National Cultural Heritage Act of
2009. 33 Moreover, DMCI-PDI asserts that the KOR availed of the wrong
remedy since an action for injunction is not the proper remedy for
THXS HONORABLE COURT HAS NO JURISDICTION OVER THIS
abatement of a nuisance. 34
ACTION.
Second, DMCI-PDI maintains that the KOR has no standing to institute
II.
this proceeding because it is not a real party in interest in this case. The
purposes of the KOR as a public corporation do not include the
KOR HAS NO LEGAL RIGHT OR INTEREST TO FILE OR PR0SECUTE preservation of the Rizal Monument as a cultural or historical heritage
THIS ACTION. site.35 The KOR has also not shown that it suffered an actual or
threatened injury as a result of the alleged illegal conduct of the City of
III. Manila. If there is any injury to the KOR at all, the same was caused by
the private conduct of a private entity and not the City of Manila. 36
TORRE DE MANILA IS NOT A NUISANCE PER SE.
Third, DMCI-PDI argues that the Torre de Manila is not a nuisance per
IV. se. DMCI-PDI reiterates that it obtained all the necessary permits,
licenses, clearances, and certificates for its construction. 37 It also refutes
DMCI-PDI ACTED IN GOOD FAITH IN CONSTRUCTING TORRE DE the KOR's claim that the Torre de Manila would dwarf all other structures
MANILA; AND around it; considering that there are other tall buildings even closer to the
Rizal Monument itself, namely, the Eton Baypark Tower at the corner of
V. Roxas Boulevard and T.M. Kalaw Street (29 storeys; 235 meters from the
Rizal Monument) and Sunview Palace at the corner of M.H. Del Pilar and
KOR IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORPER T.M. Kalaw Streets (42 storeys; 250 meters from the Rizal Monument). 38
AND/OR A WRIT OF PRELIMINARY INJUNCTION. 28
Fourth, DMCI-PDI next argues that it did not act in bad faith when it
First, DMCI-PDI asserts that the Court has no original jurisdiction over started construction of its Torre de Manila project. Bad faith cannot be
actions for injunction.29 Even assuming that the Court has concurrent attributed to it since it was within the "lawful exercise of [its] rights." 39 The
jurisdiction, DMCI-PDI maintains that the petition should still have been KOR failed to present any proof that DMCI-PDI did not follow the proper
 6

procedure and zoning restrictions of the City of Manila. Aside from Resolution No. 5, ratifying all the licenses and permits issued to DMCI-
obtaining all the necessary permits from the appropriate government PDI for its Torre de Manila project.
agencies,40 DMCI-PDI also sought clarification on its right to build on its
site from the Office of the City Legal Officer of Manila, the Manila CPDO, In its Position Paper dated 15 July 2015, the City of Manila admitted that
and the NHCP.41 Moreover, even if the KOR proffered such proof, the the Zoning Permit issued to DMCI-PDI was "in breach of certain
Court would be 1 in no position to declare DMCI-PDI's acts as illegal provisions of City Ordinance No. 8119." 50 It maintained, however, 1 that
since the Court is not a trier of facts. 42 the deficiency is "procedural in nature and pertains mostly td the failure of
[DMCI-PDI] to comply with the stipulations that allow an excess in the
Finally, DMCI-PDI opposes the KOR's application for a Temporary [FAR] provisions." 51 Further, the City of Manila argued that the MZBAA,
Restraining Order (TRO) and writ of preliminary injunction. DMCI-PDI when it recommended the allowance of the project's variance, imposed
asserts that the KOR has failed to establish "a clear and unmistakable certain conditions upon the Torre de Manila project in order to mitigate
right to enjoin I the construction of Torre de Manila, much less request its the possible adverse effects of an excess FAR. 52
demolitior."43 DMCI-PDI further argues that it "has complied with all the
legal requirements for the construction of Torre de Manila x x x [and] has The Issue
violated o right of KOR that must be protected. Further, KOR stands to
suffer o damage because of its lack of direct pecuniary interest in this The issues raised by the parties can be summed up into one main point:
petiti1 on. To grant the KOR's application for injunctive relief would Can the Court issue a writ of mandamus against the officials of the City of
constitute an unjust taking of property without due process of law. "44 Manila to stop the construction of DMCI-PDI's Torre de Manila project?

Arguments of the City of Manila The Court's Ruling

In its Comment, the City of Manila argues that the writ of mandamus The petition for mandamus lacks merit and must be dismissed.
cannot issue "considering that no property or substantive rights
whatsoever in favor of [the KOR] is being affected or x x x entitled to
There is no law prohibiting the construction of the Torre de Manila.
judicial protection[.]"45
In Manila Electric Company v. Public Service Commission,53 the Court
The City of Manila also asserts that the "issuance and revocation of a
held that "what is not expressly or impliedly prohibited by law may
Building Permit undoubtedly fall under the category of a discretionary act
be done, except when the act is contrary to morals, customs and I
or duty performed by the proper officer in light of his meticulous appraisal
public order." This principle is fundamental in a democratic society, to
and evaluation of the pertinent supporting documents of the application in
protect the weak against the strong, the minority against the majority, and
accordance with the rules laid out under the National Building Code [and]
the individual citizen against the government. In essence, this principle,
Presidential Decree No. 1096," 46 while the remedy of mandamus is
which is the foundation of a civilized society under the rule of law,
available only to compel the performance of a ministerial duty. 47
prescribes that the freedom to act can be curtailed only through law.
Without this principle, the rights, freedoms, and civil liberties of citizens
Further, the City of Manila maintains that the construction of the Torre de can be arbitrarily and whimsically trampled upon by the shifting passions
Manila did not violate any existing law, since the "edifice [is] well behind of those who can spout the loudest, or those who can gather the biggest
(some 789 meters away) the line of sight of the Rizal Monument." 48 It crowd or the most number of Internet trolls. In other instances, 54 the Court
adds that the City of Manila's "prevailing Land Use and Zoning Ordinance has allowed or upheld actions that were not expressly prohibited by
[Ordinance No. 8119] x xx allows an adjustment in Floor Area Ratios thru statutes when it determined that these acts were not contrary to morals,
the [MZBAA] subject to further final approval of the City Council." 49 The customs, and public order, or that upholding the same would lead to a
City Council adopted the MZBAA's favorable: recommendation in its more equitable solution to the controversy. However, it is the law itself -
 7

Articles 130655 and 1409(1)56 of the Civil Code - which prescribes that 4. Any proposed alteration and/or re-use of designated heritage
acts not contrary to morals, good customs, public order, or public policy properties shall be evaluated based on criteria established by the
are allowed if also not contrary to law. heritage significance of the particular property or site.

In this case, there is no allegation or proof that the Torre de Manila 5. Where an owner of a heritage property applies for approval to
project is "contrary to morals, customs, and public order" or that it brings demolish a designated heritage property or properties, the owner shall be
harm, danger, or hazard to the community. On the contrary, the City of required to provide evidence to satisfaction that demonstrates that
Manila has determined that DMCI-PDI complied with the standards set rehabilitation and re-use of the property is not viable.
under the pertinent laws and local ordinances to construct its Torre de
Manila project. 6. Any designated heritage property which is to be demolished or
significantly altered shall be thoroughly documented for archival purposes
There is one fact that is crystal clear in this case. There is no law with! a history, photographic records, and measured drawings, in
prohibiting the construction of the Torre de Manila due to its effect on accordance with accepted heritage recording guidelines, prior to
the background "view, vista, sightline, or setting" of the Rizal Monument. demolition or alteration.

Specifically, Section 47 reads: 7. Residential and commercial infill in heritage areas will be sensitive to
the existing scale and pattern of those areas, which maintains the
SEC. 47. Historical Preservation and Conservation Standards. - Historic existing landscape and streetscape qualities of those areas, and which
site and facilities shall be conserved and preserved. These shall, to the does not result in the loss of any heritage resources.
extent possible, be made accessible for the educational and cultural
enrichment of the general public. 8. Development plans shall ensure that parking facilities (surface lots
residential garages, stand-alone parking garages and parking
The following shall guide the development of historic sites and components as parts of larger developments) are compatibly integrated
facilities: into heritage areas, and/or are compatible with adjacent heritage
resources.
1. Sites with historic buildings or places shall be developed to conserve
and enhance their heritage values. 9. Local utility companies (hydro, gas, telephone, cable) shall be required
to place metering equipment, transformer boxes, power lines, conduit,
2. Historic sites and facilities shall be adaptively re-used. equipment boxes, piping, wireless telecommunication towers and other
utility equipment and devices in locations which do not detract from the
visual character of heritage resources, and which do not have a negative
3. Any person who proposes to add, to alter, or partially demolish a
impact on its architectural integrity.
designated heritage property will require the approval of the City Planning
and Development Office (CPDO) and shall be required to prepare a
heritage impact statement that will demonstrate to the satisfaction of 10. Design review approval shall be secured from the CPDO for any
CPDO that the proposal will not adversely impact the heritage alteration of the heritage property to ensure that design guidelines and
significance of the property and shall submit plans for review by the standards are met and shall promote preservation and conservation of
CPDO in coordination with the National Historical Institute (NHI). the heritage property. (Emphasis supplied)

It is clear that the standards laid down in Section 47 of Ordinance No.

8119 only serve as guides, as it expressly states that "the following shall
guide the :development of historic sites and facilities." A guide simply
 8

sets a direction 'or gives an instruction to be followed by prope1iy owners the facility. In no case, shall parking areas/lots encroach into street rights-
and developers in order to conserve and enhance a property's heritage of-way and shall follow the Traffic Code as set by the City.
values.
5. Developments that attract a significant volume of public modes of
On the other hand, Section 48 states: transportation, such as tricycles, jeepneys, buses, etc., shall provide on-
site parking for the same. These shall also provide vehicular loading and
SEC. 48. Site Performance Standards. - The City considers it in the unloading bays so as street traffic flow will not be impeded.
public interest that all projects are designed and developed in a safe,
efficient and aesthetically pleasing manner. Site development shall 6. Buffers, silencers, mufflers, enclosures and other noise-absorbing I
consider the environmental character and limitations of the site and its materials shall be provided to all noise and vibration-producing
adjacent properties. All project elements shall be in complete harmony machinery. Noise levels shall be maintained according to levels specified
according to good design principles and the subsequent development in DENR DA9 No. 30 - Abatement of Noise and Other Forms of Nuisance
must be visually pleasing as well as efficiently functioning especially in as Defined by Law.
relation to the adjacent properties and bordering streets.
7. Glare and heat from any operation or activity shall not be radiated,
The design, construction, operation and maintenance of every facility seen or felt from any point beyond the limits of the property.
shall be in harmony with the existing and intended character of its
neighborhood. It shall not change the essential character of the said area 8. No large commercial signage and/or pylon, which will be
but will be a substantial improvement to the value of the properties in the detrimental to the skyline, shall be allowed.
neighborhood in particular and the community in general.
9. Design guidelines, deeds of restriction, property management plans
Furthermore, designs should consider the following: and other regulatory tools that will ensure high quality developments shall
be required from developers of commercial subdivisions and
1. Sites, buildings and facilities shall be designed and developed with1 condominiums. These shall be submitted to the City Planning and
regard to safety, efficiency and high standards of design. The natural Development Office (CPDO) for review and approval. (Emphasis
environmental character of the site and its adjacent properties shall be supplied)
considered in the site development of each building and facility.
Se9tion 4 7 of Ordinance No. 8119 specifically regulates
2. The height and bulk of buildings and structures shall be so designed the "development of historic sites and facilities."Section 48
that it does not impair the entry of light and ventilation, cause the loss I of regulates "large commercial signage and/or pylon." There is nothing
privacy and/or create nuisances, hazards or inconveniences to adjacent in Sections 47 and 48 of Ordinance No. 8119 that disallows the
developments. construction of a building outside the boundaries of a historic site or
facility, where such building may affect the1 background of a historic
3. Abutments to adjacent properties shall not be allowed without the site. In this case, the Torre de Manila stands 870 meters outside and to
neighbor's prior written consent which shall be required by the City the rear of the Rizal Monument and "cannot possibly obstruct the front
Planning and Development Office (CPDO) prior to the granting of a view of the [Rizal] Monument." 57 Likewise, ;the Torre de Manila is not in
Zoning Permit (Locational Clearance). an area that has been declared as an "anthropological or archeological
area" or in an area designated as a heritage zone, cultural property,
4. The capacity of parking areas/lots shall be per the minimum historical landmark, or a national treasure by the NHCP. 58
requirements of the National Building Code. These shall be located,
developed and landscaped in order to enhance the aesthetic quality of
 9

Section 15, Article XIV of the Constitution, which deals with the subject of the Dissenting Opinion, "the standards set under Ordinance No.
arts and culture, provides that "[t]he State shall conserve, promote and 8119" in relation to the applications of DMCI-PDI for the Torre de Manila
popularize the nation's historical and cultural heritage and resources x x since under the ordinance these standards can never be applied
x." Since this provision is not self-executory, Congress passed laws outside the boundaries of Rizal Park. While the Rizal Park has been
dealing with the preservation and conservation of our cultural heritage. declared a National Historical Site, the area where Torre de Manila is
being built is a privately-owned property that is "not pap: of the Rizal Park
One such law is Republic Act No. 10066, 59 or the National Cultural that has been declared as a National Heritage Site in 1095," and the
Heritage Act of 2009, which empowers the National Commission for Torre de Manila area is in fact "well-beyond" the Rizal Park, according to
Culture and the Arts and other cultural agencies to issue a cease and NHCP Chairperson Dr. Maria Serena I. Diokno. 62 Neither has the area of
desist order "when the physical integrity of the national cultural the Torre de Manila been designated as a "heritage zone, a cultural
treasures or important cultural properties [is] found to be in danger of property, a historical landmark or even a national treasure." 63
destruction or significant alteration from its original state." 60 This
law declares that the State should protect the "physical integrity" of the Also, to declare that the City of Manila failed to consider the standards
heritage property or building if there is "danger of destruction or under Ordinance No. 8119 would involve making a finding of fact. A
significant alteration from its original state." Physical integrity refers to finding lot fact requires notice, hearing, and the submission of evidence
the structure itself - how strong and sound the structure is. The to ascertain compliance with the law or regulation. In such a case, it is
same law does not mention that another project, building, or property, the Regional Trial Court which has the jurisdiction to hear the case,
not itself a heritage property or building, may be the subject of a cease receive evidence, make a proper finding of fact, and determine whether
and desist order when it adversely affects the background view, vista, or the Torre de Manila project properly complied with the standards set by
sightline of a heritage property or building. Thus, Republic Act No. 10066 the ordinance. In Meralco v. Public Service Commission, 64 we held that it
cannot apply to the Torre de Manila condominium project. is the cardinal right of a party in trials and administrative proceedings to
be heard, which includes the right of the party interested or affected to
Mandamus does not lie against the City of Manila. present his own case and submit evidence in support thereof and to have
such evidence presented considered by the proper court or tribunal.
The Constitution states that "[n]o person shall be deprived of life, liberty
or 1property without due process of law x x x." 61 It is a fundamental To compel the City of Manila to consider the standards under Ordinance
principle that no property shall be taken away from an individual without No. 8119 to the Torre de Manila project will be an empty exercise since
due process, whether substantive or procedural. The dispossession of these standards cannot apply outside of the Rizal Park - and the Torre de
property, or in this case the stoppage of the construction of a building in Manila is outside the Rizal Park. Mandamus will lie only if the officials
one's own property would violate substantive due process.
The KOR also invokes this Court's exercise of its
The Rules on Civil Procedure are clear that mandamus only issues when extraordinary certiorari power of review under Section 1, Article VIII 65 of
there is a clear legal duty imposed upon the office or the officer sought to the Constitution. However, this Court can only exercise its
be compelled to perform an act, and when the party seeking mandamus extraordinary certiorari power if the City of Manila, in issuing the required
has a clear legal right to the performance of such act. permits and licenses, gravely abused its discretion amounting to lack
or excess of jurisdiction. Tellingly, neither the majority nor minority
In the present case, nowhere is it found in Ordinance No. 8119 or in any opinion in this case has found that the City of Manila committed grave
law, ordinance, or rule for that matter, that the construction of a abuse of discretion in issuing the permits and licenses to DMCI-PDI.
building outside the Rizal Park is prohibited if the building is within the Thus, there is no justification at all for this Court to exercise its
background sightline or view of the Rizal Monument. Thus, there is no extraordinary certiorari power.
legal duty on the part of the City of Manila "to consider," in the words of
 10

Moreover, the exercise of this Court's extraordinary certiorari power is City of .Manila failed to abide by this legal duty would involve factual
limited to actual cases and controversies that necessarily involve a matters which have not been admitted or established in this case.
violation of the Constitution or the determination of the constitutionality or Establishing factual matters is not within the realm of this Court. Findings
validity of a governmental act or issuance. Specific violation of a statute of fact are the province of the trial courts.
that does not raise the issue of constitutionality or validity of the statute
cannot, as a rule, be the subject of the Court's direct exercise of its There is no standard in Ordinance No. 8119 for defining or determining
expanded certiorari power. Thus, the KOR's recourse lies with other the background sightline that is supposed to be protected or that is part
judicial remedies or proceedings allowed under the Rules of Court. of the "physical integrity" of the Rizal Monument. How far should a
building like the Torre de Manila be from the Rizal Monument - one, two,
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC three, four, or five kilometers? Even the Solicitor General, during the Oral
Approved Medical Centers Association, Inc., 66we held that in cases Arguments, conceded that the ordinance does not prescribe how
where the question of constitutionality of a governmental action is raised, sightline is determined, neither is there any way to measure by metes
the judicial power that the courts exercise is likewise identified as and bounds whether al construction that is not part of the historic
the power of judicial review - the power to review the constitutionality of monument itself or is outside the protected area can be said to
the actions of other branches of government. As a rule, as required by violate the Rizal Monument's physicalintegrity, except only to say "when
the hierarchy of courts principle, these cases are filed with the lowest you stand in front of the Rizal Monument, there can be no doubt that your
court with jurisdiction over the 1subject matter. The judicial review that view is marred and impaired." This kind of a standard has no parameters
the courts undertake requires: and can include a sightline or a construction as far as the human eyes
can see when standing in front of the Rizal Monument. Obviously, this
1) there be an actual case or controversy calling for the exercise of Court cannot apply such a subjective and non-uniform standard that
judicial power; adversely affects property rights several kilometers away from a historical
sight or facility.
2) the person challenging the act must have "standing" to challenge; he
must have a personal and substantial interest in the case such that he The Dissenting Opinion claims that "the City, by reason of a mistaken or
has sustained, or will sustain, direct injury as a result of its enforcement; erroneous construction of its own Ordinance, had failed to consider its
duties under [Ordinance No. 8119] when it issued permits in DMCI-PDI's
3) the question of constitutionality must be raised at the earliest possible favor." However, MZBAA Zoning Board Resolution Nos. 06 and 06-
opportunity; and A67 easily dispel this claim. According to the resolutions, the City of
Manila, through the MZBAA, acted on DMCI-PDI's application for
variance under the powers and standards set forth in Ordinance No.
4) the issue of constitutionality must be the very lismota of the case.
8119.
The lower court's decision under the constitutional scheme reaches the
Without further proof that the MZBAA acted whimsically, capriciously, or
Supreme Court through the appeal process, through a petition for review
arbitrarily in issuing said resolution, the Court should respect MZBAA's
on certiorari under Rule 45 of the Rules of Court.
exercise of discretion. The Court cannot "substitute its I judgment :for that
of said officials who are in a better position to consider and weigh the
In the present case, the KOR elevated this case immediately to this Court same in the light of the authority specifically vested in them by
in an original petition for injunction which we later on treated as one for law." 68 Since the Court has "no supervisory power over the proceedings I
mandamus under Rule 65. There is, however, no clear legal duty on the and actions of the administrative departments of the government," it
City of Manila to consider the provisions of Ordinance No. 8119 for "should not generally interfere with purely administrative and
applications for permits to build outside the protected areas of the Rizal discretionary functions.; 69 The power of the Court in mandamus petitions
Park. Even if there were such legal duty, the determination of whether the
 11

does not extend "to direct the exercise of judgment or discretion in a but not to act lone way or the other," 72 and only in cases where there
particular way or the retraction or reversal of an action already has been a clear showing of grave abuse of discretion, manifest
taken in the exercise of either."70 injustice, or palpable excess of authority.73

Still, the Dissenting Opinion insists on directing the re-evaluation by the In this case, there can be no determination by this Court that the City of
City of Manila, through the CPDO, of the permits previously issued in Manila had been negligent or remiss in its duty under Ordinance No.
favor of the Torre de Manila project to determine compliance with the 8119 considering that this determination will involve questions of fact.
standards ]under Ordinance No. 8119. It also declares that the DMCI- PDI had been issued the proper permits and had secured all
circumstances in this case warrant the prohacvice conversion of the approvals and licenses months before the actual construction began.
proceedings in the issuance of the permits into a "contested case" Even the KOR could not point to any law that respondent City of Manila
necessitating notice and hearing with all the parties involved. had violated and could only point to declarations of policies by the NHCP
and the Venice Charter which do not constitute clear legal bases for the
Prohac vice means a specific decision does not constitute a precedent issuance of a writ of mandam1s.
because the decision is for the specific case only, not to be followed in
other cases. A prohac vice decision violates statutory law - Article 8 of The Venice Charter is merely a codification of guiding principles for the
the Civil Code - which states that "judicial decisions applying or preservation and restoration of ancient monuments, sites, and buildings.
interpreting the laws or the Constitution shall form part of the legal It brings I together principles in the field of historical conservation and
system of the Philippines." The decision of the Court in this case cannot restoration that have been developed, agreed upon, and and laid down
be prohac vice because by mandate bf the law everydecision of the by experts over the years. Each country, however, remains "responsible
Court forms part of the legal system of the Philippines. If another case for applying the plan within the framework of its own culture and
comes up with the same facts as the present case, that case must be traditions."74
decided in the same way as this case to comply with the constitutional
mandate of equal protection of the law. Thus, a prohac vice decision also The Venice Charter is not a treaty and therefore does not become
violates the equal protection clause of the Constitution. enforceable as law. The Philippines is not legally bound to follow its
directive, as in fact, these are not directives but mere guidelines - a set of
It is the policy of the courts not to interfere with the discretionary the best practices and techniques that have been proven over the years
executive acts of the executive branch unless there is a clear showing of to be the most effective in preserving and restoring historical monuments,
grave abuse of discretion amounting to lack or excess of jurisdiction. sites and buildings.
Mandamus does not lie against the legislative and executive branches or
their members acting in the exercise of their official discretionary The City of Manila concedes that DMCI-PDI's Zoning Permit was granted
functions. This emanates from the respect accorded by the judiciary to without going through the process under Ordinance No. 8119. However,
said branches as co-equal entities under the principle of separation of the same was properly rectified when, faced with mounting opposition,
powers. DMCI-PDI itself sought clarification from the City of Manila and
immediately began complying with the procedure for applying for a
In De Castro v. Salas,71 we held that no rule of law is better established variance. The MZBAA did subsequently recommend the approval of the
than the one that provides that mandamus will not issue to control the variance and the City Council of Manila approved the same, ratifying the
discretion of an officer or a court when honestly exercised and when such licenses and permits already given to DMCI-PDI. Such ratification was
power and authority is not abused. well within the right of the City Council of Manila. The City Council of
Manila could have denied the application had it seen any reason to do
In exceptional cases, the Court has granted a prayer for mandamus to so. Again, the ratification is a function of the City Council of Manila, an
compel action in matters involving judgment and discretion, only "to act,
 12

exercise of its discretion1 and well within the authority granted it by law ATTY. FLAMINIANO: Yes, Your Honor.
and the City's own Ordinance No. 8119.
JUSTICE CARPIO: The [Floor Area Ratio (FAR)] is uniform for the entire
The main purpose of zoning is the protection of public safety, health, City of Manila, the FAR 4, correct? ATTY. FLAMINIANO: I believe so,
convenience, and welfare. There is no indication that the Torre de Manila Your Honor, it's FAR 4.
project brings any harm, danger, or hazard to the people in the
surrounding areas except that the building allegedly poses an unsightly JUSTICE CARPIO: So it's FAR 4 for all residential condominium complex
view on the taking of photos or the visual appreciation of the Rizal or industrial projects.
Monument by locals and tourists. In fact, the Court must take the
approval of the MZBAA, and its subsequent ratification by the City ATTY. FLAMINIANO: There might be, the FAR might be different when it
Council of Manila, as the duly authorized exercise of discretion by the city comes to condominiums in commercial areas, Your Honor.
officials. Great care must be taken that the Court does not unduly tread
upon the local government's performance of its duties. It is not for this
JUSTICE CARPIO: Yes, I'm talking of stand-alone ...
Court to dictate upon the other branches bf the government how their
discretion must be exercised so long as these branches do not commit
grave abuse of discretion amounting to lack or excess of jurisdiction. ATTY. FLAMINIANO: Yes, Your Honor.

Likewise, any violation of Ordinance No. 8119 must be determined in the JUITICE CARPIO: ... residential condominiums...
proper case and before the proper forum. It is not within the power of this
Court in this case to make such determination. Without such ATTY. FLAMINIANO: Uniform at FAR 4, Your Honor.
determination, this Court cannot simply declare that the City of Manila
had failed to consider its duties under Ordinance No. 8119 when it issued JUSTICE CARPIO: And the percentage of land occupancy is always 60
the permits in DMCI-PDI's favor without making a finding of fact how the percent.
City of Manila failed "to consider" its duties with respect to areas outside
the boundaries of the Rizal Park. In the first place, this Court has no ATTY. FLAMINIANO: 60 percent correct, Your Honor.
jurisdiction to make findings of fact in an original action like this before
this Court. Moreover the City of Manila could not legally apply standards JUSTICE CARPIO: Okay ... how many square meters is this Torre de
to sites outside the area covered by the ordinance that prescribed the Manila?
standards. With this, I taken in light of the lack of finding that there was
grave abuse of discretion I on the part of the City of Manila, there is no xxx
basis to issue the writ of mandamus against the City of Manila.
ATTY. FLAMINIANO: The land area, Your Honor, it's almost 5,000 ...
During the Oral Arguments, it was established that the granting of a 5,556.
variance neither uncommon nor irregular. On the contrary, current
practice has made granting of a variance the rule rather than the
exception: JUSTICE CARPIO: So, it's almost half a hectare.

JUSTICE CARPIO: Let's go to Ordinance 8119. For residential ATTY. FLAMINIANO: Yes, Your Honor.
condominium that stand alone, in other words not part of a commercial
complex or an industrial complex ... JUSTICE CARPIO: And at FAR 4, it can only build up to 18 storeys, I
mean at FAR 4, is that correct?
 13

ATTY. FLAMINIANO: If the 60 percent of the lot... xxxx

JUSTICE CARPIO: Yes, but that is a rule. JUSTICE CARPIO: Every developer will have to get a variance
because it doesn't make sense to follow FAR 4 because the land is
ATTY. FLAMINIANO: That is a rule, that's the rule, Your Honor. so expensive and if you can build only two storeys on a 1,000-
square meter lot, you will surely lose money, correct? ATTY.
JUSTICE CARPIO: 60 percent of... FLAMINIANO: Exactly, Your Honor. 75 (Emphasis supplied)

ATTY. FLAMINIANO: Of the land area. This, the MZBAA's grant of the variance cannot be used as a basis
to grant the mandamus petition absent any clear finding that said
act amo'1nted to "grave abuse of discretion, manifest injustice, or
JUSTICE CARPIO: ... buildable, the rest not buildable.
palpable excess of authority."
ATTY. FLAMINIANO: Yes, Your Honor.
The KOR is Estopped from Questioning the
Torre de Manila Construction.
JUSTICE CARPIO: Okay, so if you look around here in the City of Manila
anywhere you go, you look at stand alone residential condominium
The KOR is now estopped from questioning the construction of the Torre
buildings...
de Manila project. The KOR itself came up with the idea to build a
structure right behind the Rizal Monument that would dwarf the Rizal
ATTY. FLAMINIANO: There's a lot of them, Your Honor. Monument.

JUSTICE CARPIO: It's always not FAR 4, it's more than FAR 4. In the mid-1950s, the Jose Rizal National Centennial Commission
(JRNCC) l formulated a plan to build an Educational Center within the
ATTY. FLAMINIANO: Yes, Your Honor. Rizal Park. In July 1955, the KOR proposed the inclusion of a national
theater on the site of the Educational Center. The JRNCC adopted the
JUSTICE CARPIO: And the buildable area is to the edge of the proposal. The following[ year, a law - Republic Act No. 1427 76 -
property ...it's not 60 percent, correct? authorized the establishment of the Jose Rizal National Cultural Shrine
consisting of a national theater, a national museum, and a national library
ATTY. FLAMINIANO: Yes, Your Honor. on a single site. 77

JUSTICE CARPIO: So, if you look at all the ... residential buildings in To be built on the open space right behind the 12.7 meter high Rizal
the last ten years, they [have] all variances. They did not follow the Monument were: the KOR's proposed nationaltheater, standing 29.25
original FAR 4 or the 60 percent (of land occupancy). Every meters high and 286 meters in distance from the Rizal Monument;
residential building that stand alone was a variance. ATTY. the nationallibrary, standing 25 .6 meters high and 180 meters in distance
FLAMINIANO: That's correct, Your Honor. from the Rizal ;Monument, with its rear along San Luis Street (now T.M.
Kalaw Street); and facing it, the nationalmuseum, at 19.5 meters high
JUSTICE CARPIO: So the rule really in the City of Manila is variance, and 190 meters in I distance from the Rizal Monument, with its back
and the exception which is never followed is FAR 4. along P. Burgos Street. 78

ATTY. FLAMINIANO: FAR 4, it appears to be that way, Your Honor. However, several sectors voiced their objections to the construction for
various reasons. Among them, the need to preserve the open space of
 14

the park, the high cost of construction, the desecration of the park's injures or endangers the health or safety of others; (2) annoys or offends
hallowed grounds, and the fact that the proposed cultural center the senses; (3) shocks, defies or disregards decency or morality; (4)
including the 129.25 meter high national theater proposed by the obstructs or interferes with the free passage of any public highway or
KOR would dwarf the 12.7 meter high Rizal Monument. 79 The JRNCC street, or any body of water; or (5) hinders or impairs the use of property.
revised the plan and only the National Library - which still stands today -
was built. 80 Thy Court recognizes two kinds of nuisances. The first, nuisance perse,
is on "recognized as a nuisance under any and all circumstances,
According to the NHCP, the KOR even proposed to build a Rizal Center because it constitutes a direct menace to public health or safety, and, for
on the park as recently as 2013. 81 The proposal was disapproved by the that reason, may be abated summarily under the undefined law of
NHCR and the Department of Tourism. necessity." 89 The second, nuisance peraccidens, is that which "depends
upon certain conditions and circumstances, and its existence being a
Surely, as noble as the KOR's intentions were, its proposed center would question of fact, it cannot be abated without due hearing thereon in a
have dwarfed the Rizal Monument with its size and proximity. tribunal authorized to decide whether such a thing in law constitutes a
nuisance. "90
In contrast, the Torre de Manila is located well outside the Rizal Park,
and to the rear of the Rizal Monument - approximately 870 meters from It can easily be gleaned that the Torre de Manila is not a nuisance per se.
the Rizal Monument and 3 0 meters from the edge of Rizal Park. 82 The Torre de Manila project cannot be considered as a "direct menace to
I public health or safety." Not only is a condominium project
It is a basic principle that "one who seeks equity and justice must come to commonplace in the City of Manila, DMCI-PDI has, according to the
court with clean hands. "83 In Jenosa v. Delariarte, 84 the Court proper government agencies, complied with health and safety standards
reiterated ,that he who seeks equity must do equity, and he who comes set by law. DMCI-PDI has been granted the following permits and
into equity must come with clean hands. This "signifies that a litigant may clearances prior to starting the project: (1) Height Clearance Permit from
be denied relief by a court of equity on the ground that his conduct has the Civil Aviation Authority of the Philippines; 91 (2) Development Permit
been inequitable, unfair and dishonest, or fraudulent, or deceitful as to from the HLURB;92 (3) Zoning Certification from the HLURB; 93 (4)
the controversy in issue. " 85Thus, the KOR, having earlier proposed a Certificate of Environmental Compliance Commitment from the
national theater a mere 286meters in distance from the back of the Rizal Environment Management Bureau of the Department of Environment and
Monument that would have dwarfed the Rizal Monument, comes to this I Natural Resources;94 (5) Barangay Clearance95 (6) Zoning Permit;96 (7)
Court with unclean hands. It is now precluded from "seeking any Building Permit;97 (8) and Electrical and Mechanical Permit. 98
equitable refuge" 86 from the Court. The KOR's petition should be
dismissed on this ground alone. Later, DMCI-PDI also obtained the right to build under a variance
recommended by the MZBAA and granted by the City Council of Manila.
Torre de Manila is Not a Nuisance Per Se. Thus, there can be no doubt that the Torre de Manila project is not a
nuisance perse.
In its petition, the KOR claims that the Torre de Manila is a
nuisance perse that deserves to be summarily abated even without On the other hand, the KOR now claims that the Torre de Manila is a
judicial proceedings. 87 However, during the Oral Arguments, counsel for nuisance peraccidens.
the KOR argued that the KOR now believes that the Torre de Manila is a
nuisance per accidens and not a nuisance perse. 88 By definition, a nuisance peraccidens is determined based on its
surrounding conditions and circumstances. These conditions and
Article 694 of the Civil Code defines a nuisance as any act, omission, circumstances must be well established, not merely alleged. The Court
establishment, business, condition of property, or anything else which: (1) cannot simply accept these conditions and circumstances as established
 15

facts as the KOR would have us do in this case. 99 The KOR itself rights may be enforced by mandamus if they are clear and certain. If the
concedes that the question of whether the Torre de Manila is a legal rights of th6 petitioner are not well-defined, definite, clear, and
nuisance peraccidens is a question of fact. 100 certain, 104 the petition must be dismissed. Stated otherwise, the writ
never issues in doubtful cases. It neither confers powers nor imposes
The authority to decide when a nuisance exists is an authority to find duties. It is simply a command to exercise a power already possessed
facts, to estimate their force, and to apply rules of law to the case thus and to perform a duty already imposed. 105
made. 101 1lhis Court is no such authority. It is not a trier of facts. It cannot
simply take the allegations in the petition and accept these as facts, more In sum, bearing in mind the Court does not intervene in discretionary acts
so in this case where these allegations are contested by the respondents. of the executive department in the absence of grave abuse of
discretion, 106 and considering that mandamus may only be issued to
The task to receive and evaluate evidence is lodged with the trial courts. enforce a clear and certain legal right, 107 the present special civil action
The question, then, of whether the Torre de Manila project is a for mandamus must be dismissed and the TRO issued earlier must be
nuisance peraccidens must be settled after due proceedings brought lifted.
before the proper Regional Trial Court. The KOR cannot circumvent the
process in the guise be protecting national culture and heritage. A FINAL WORD

The TRO must be lifted. It had been Rizal’s wish to die facing the rising sun. In his Mi Ultimo
Adios, the poem he left for his family the night before he was executed,
Injunctive reliefs are meant to preserve substantive rights and prevent Rizal wrote:
further injury102 until final adjudication on the merits of the case. In the
present case, since the legal rights of the KOR are not well-defined, Yo muero cuando veo que el cielo se colora
clear, and certain, the petition for mandamus must be dismissed and the Y al fin anuncia el dia tras lobrego capuz 108
TRO lifted.
[Ako’y mamamatay, ngayong namamalas
The general rule is that courts will not disturb the findings of I na sa Silanganan ay namamanaag
administrative agencies when they are supported by substantial yaong maligayang araw na sisikat
evidence. In this case, DMCI-PDI already acquired vested rights in the sa likod ng luksang nagtabing na ulap.] 109
various permits, licenses, or even variances it had applied for in order to
build a 49-storey building which is, and had been, allowed by the City of [I die just when I see the dawn break,
Manila's zoning ordinance. Through the gloom of night, to herald the day] 110

As we have time and again held, courts generally hesitate to review Yet at the point of his execution, he was made to stand facing West
discretionary decisions or actions of administrative agencies in the towards Manila Bay, with his back to the firing squad, like the traitor the
absence of proof that such decisions or actions were arrived at with colonial government wished to portray him. He asked to face his
grave abuse of discretion amounting to lack or excess of jurisdiction. executioners, facing the East where the sun would be rising since it was
early morning, but the Spanish captain did not allow it. As he was shot
In JRS Business Corp. v. Montesa, 103 we held that mandamus is the and a single bullet struck his frail body, Rizal forced himself, with his last
proper remedy if it could be shown that there was neglect on the part of a remaining strength, to turn around to face the East and thus he fell on his
tribunal in the performance of an act which the law specifically enjoins as back with] his face to the sky and the rising sun. Then, the Spanish
a duty, or there was an unlawful exclusion of a party from the use and captain approached Rizal and finished him off with one pistol shot to his
enjoyment be a right to which he is clearly entitled. Only specific legal head.
 16

Before his death, Rizal wrote a letter to his family. He asked for a simple
tomb, marked with a cross and a stone with only his name and the date (please see concurring I join the dissent of Justice
of his birth and death; no anniversary celebrations; and interment opinion) Jardeleza
at Paang Bundok(now, the Manila North Cemetery). Rizal never wanted PRESBITERO J. VELASCO, TERESITA J. LEONARDO-
his grave to be a burden to future generations. JR. DE CASTRO
Associate Justice Associate Justice
The letter never made it to his family and his wishes were not carried out.
The letter was discovered many years later, in 1953. By then, his remains I join the dissent of Justice
had been entombed at the Rizal Monument, countless anniversaries had Jardeleza LUCAS P. BERSAMIN
been . celebrated, with memorials and monuments built throughout the DIOSDADO M. PERALTA Associate Justice
world. Associate Justice

Rizal's wish was unmistakable: to be buried without pomp or pageantry; I join separate of Justice
MARIANO C. DEL
to the point of reaching oblivion or obscurity in the future. 111 For Rizal's Jardeleza
CASTILLO
life was never about fame or vainglory, but for the country he loved dearly JOSE CATRAL MENDOZA
Associate Justice
and for which he gave up his life. Associate Justice

The Rizal Monument is expressly against Rizal' s own wishes. That Please see separate
Rizal's statue now stands facing West towards Manila Bay, with Rizal's concurring opinion
BIENVENIDO L. REYES
back to the East, adds salt to the wound. If we continue the present ESTELA M. PERLAS-
Associate Justice
orientation of Rizal's statue, with Rizal facing West, we would be like the BERNABE
Spanish captain who refused Rizal's request to die facing the rising sun Associate Justice
in the East. On the other hand, if Rizal' s statue is made to face East, as
Rizal had desired when he was about to be shot, the background - the I concur, see separate Please see dissenting
blue sky above Manila Bay - would forever be clear of obstruction, and opinion opinion
we would be faithful to Rizal's dying wish. MARVIC M.V.F. LEONEN FRANCIS H. JARDELEZA
Associate Justice Associate Justice
WHEREFORE, the petition for mandamus is DISMISSED for lack of
merit. The Temporary Restraining Order issued by the Court on 16 June I join the dissent of J.
2015 is LIFTED effective immediately. I join the dissent of J.
Jardeleza
Jardeleza
ALFREDO BENJAMIN S.
SAMUEL R. MARTIRES
SO ORDERED. CAGUIOA
Associate Justice
Associate Justice
ANTONIO T. CARPIO
Associate Justice
Please see separate concurring opinion
NOEL G. TIJAM
WE CONCUR:
Associate Justice
MARIA LOURDES P. A. SERENO 
CERTIFICATION
Chief Justice
 17

Pursuant to Section 13, Article VIII of the Constitution, I certify that the Before the Court are two consolidated petitions under Rule 64 in relation
conclusions in the above Decision had been reached in consultation to Rule 65 of the Rules of Court with extremely urgent application for
before the case was assigned to the writer of the opinion of the Court. an ex parte issuance of temporary restraining order/status quo
ante order and/or writ of preliminary injunction assailing the following: (1)
MARIA LOURDES P. A. SERENO 1 December 2015 Resolution of the Commission on Elections
Chief Justice (COMELEC) Second Division; (2) 23 December 2015 Resolution of the
COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015
Resolution of the COMELEC First Division; and ( 4) 23 December 2015
Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No.
15-007 (DC) and SPA No. 15-139 (DC) for having been issued without
jurisdiction or with grave abuse of discretion amounting to lack or excess
of jurisdiction.

The Facts

Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found

abandoned as a newborn infant in the Parish Church of Jaro, Iloilo by a
certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care
and custody over petitioner was passed on by Edgardo to his relatives,
EN BANC Emiliano Militar (Emiliano) and his wife. Three days after, 6 September
1968, Emiliano reported and registered petitioner as a foundling with the
March 8, 2016 Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In her Foundling
Certificate and Certificate of Live Birth, the petitioner was given the name
G.R. No. 221697 "Mary Grace Natividad Contreras Militar." 1

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,  When petitioner was five (5) years old, celebrity spouses Ronald Allan
vs. Kelley Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a.
COMELEC AND ESTRELLA C. ELAMPARO Respondents. Susan Roces) filed a petition for her adoption with the Municipal Trial
Court (MTC) of San Juan City. On 13 May 1974, the trial court granted
x-----------------------x their petition and ordered that petitioner's name be changed from "Mary
Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora
G.R. No. 221698-700 Poe." Although necessary notations were made by OCR-Iloilo on
petitioner's foundling certificate reflecting the court decreed adoption, 2 the
petitioner's adoptive mother discovered only sometime in the second half
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,  of 2005 that the lawyer who handled petitioner's adoption failed to secure
vs. from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND new name and the name of her adoptive parents. 3 Without delay,
AMADO D. VALDEZ Respondents. petitioner's mother executed an affidavit attesting to the lawyer's
omission which she submitted to the OCR-Iloilo. On 4 May 2006, OCR-
DECISION Iloilo issued a new Certificate of Live Birth in the name of Mary Grace
Natividad Sonora Poe.4
PEREZ, J.:
 18

Having reached the age of eighteen (18) years in 1986, petitioner After a few months, specifically on 13 December 2004, petitioner rushed
registered as a voter with the local COMELEC Office in San Juan City. back to the Philippines upon learning of her father's deteriorating medical
On 13 December 1986, she received her COMELEC Voter's Identification condition. 17 Her father slipped into a coma and eventually expired. The
Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila. 5 petitioner stayed in the country until 3 February 2005 to take care of her
father's funeral arrangements as well as to assist in the settlement of his
On 4 April 1988, petitioner applied for and was issued Philippine estate.18
Passport No. F9272876 by the Department of Foreign Affairs (DFA).
Subsequently, on 5 April 1993 and 19 May 1998, she renewed her According to the petitioner, the untimely demise of her father was a
Philippine passport and respectively secured Philippine Passport Nos. severe blow to her entire family. In her earnest desire to be with her
L881511 and DD156616.7 grieving mother, the petitioner and her husband decided to move and
reside permanently in the Philippines sometime in the first quarter of
Initially, the petitioner enrolled and pursued a degree in Development 2005.19 The couple began preparing for their resettlement including
Studies at the University of the Philippines 8 but she opted to continue her notification of their children's schools that they will be transferring to
studies abroad and left for the United States of America (U.S.) in 1988. Philippine schools for the next semester; 20coordination with property
Petitioner graduated in 1991 from Boston College in Chestnuts Hill, movers for the relocation of their household goods, furniture and cars
Massachusetts where she earned her Bachelor of Arts degree in Political from the U.S. to the Philippines; 21 and inquiry with Philippine authorities
Studies.9 as to the proper procedure to be followed in bringing their pet dog into the
country.22 As early as 2004, the petitioner already quit her job in the
On 27 July 1991, petitioner married Teodoro Misael Daniel V. U.S.23
Llamanzares (Llamanzares), a citizen of both the Philippines and the
U.S., at Sanctuario de San Jose Parish in San Juan City. 10 Desirous of Finally, petitioner came home to the Philippines on 24 May 2005 24 and
being with her husband who was then based in the U.S., the couple flew without delay, secured a Tax Identification Number from the Bureau of
back to the U.S. two days after the wedding ceremony or on 29 July Internal Revenue. Her three (3) children immediately followed 25 while her
1991. 11 husband was forced to stay in the U.S. to complete pending projects as
well as to arrange the sale of their family home there. 26
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel
(Brian) on 16 April 1992. 12 Her two daughters Hanna MacKenzie (Hanna) The petitioner and her children briefly stayed at her mother's place until
and Jesusa Anika (Anika) were both born in the Philippines on 10 July she and her husband purchased a condominium unit with a parking slot
1998 and 5 June 2004, respectively. 13 at One Wilson Place Condominium in San Juan City in the second half of
2005.27 The corresponding Condominium Certificates of Title covering the
On 18 October 2001, petitioner became a naturalized American unit and parking slot were issued by the Register of Deeds of San Juan
citizen. 14 She obtained U.S. Passport No. 017037793 on 19 December City to petitioner and her husband on 20 February 2006. 28 Meanwhile, her
2001. 15 children of school age began attending Philippine private schools.

On 8 April 2004, the petitioner came back to the Philippines together with On 14 February 2006, the petitioner made a quick trip to the U.S. to
Hanna to support her father's candidacy for President in the May 2004 supervise the disposal of some of the family's remaining household
elections. It was during this time that she gave birth to her youngest belongings.29 She travelled back to the Philippines on 11 March 2006. 30
daughter Anika. She returned to the U.S. with her two daughters on 8
July 2004. 16 In late March 2006, petitioner's husband officially informed the U.S.
Postal Service of the family's change and abandonment of their address
in the U.S.31 The family home was eventually sold on 27 April
 19

2006.32 Petitioner's husband resigned from his job in the U.S. in April On 12 July 2011, the petitioner executed before the Vice Consul of the
2006, arrived in the country on 4 May 2006 and started working for a U.S. Embassy in Manila an "Oath/Affirmation of Renunciation of
major Philippine company in July 2006. 33 Nationality of the United States." 49 On that day, she accomplished a
sworn questionnaire before the U.S. Vice Consul wherein she stated that
In early 2006, petitioner and her husband acquired a 509-square meter she had taken her oath as MTRCB Chairperson on 21 October 2010 with
lot in Corinthian Hills, Quezon City where they built their family the intent, among others, of relinquishing her American citizenship. 50 In
home34 and to this day, is where the couple and their children have been the same questionnaire, the petitioner stated that she had resided
residing.35 A Transfer Certificate of Title covering said property was outside of the U.S., specifically in the Philippines, from 3 September 1968
issued in the couple's name by the Register of Deeds of Quezon City on to 29 July 1991 and from May 2005 to present.51
1June 2006.
On 9 December 2011, the U.S. Vice Consul issued to petitioner a
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of "Certificate of Loss of Nationality of the United States" effective 21
the Philippines pursuant to Republic Act (R.A.) No. 9225 or the October 2010.52
Citizenship Retention and Re-acquisition Act of 2003. 36 Under the same
Act, she filed with the Bureau of Immigration (BI) a sworn petition to On 2 October 2012, the petitioner filed with the COMELEC her Certificate
reacquire Philippine citizenship together with petitions for derivative of Candidacy (COC) for Senator for the 2013 Elections wherein she
citizenship on behalf of her three minor children on 10 July 2006. 37 As answered "6 years and 6 months" to the question "Period of residence in
can be gathered from its 18 July 2006 Order, the BI acted favorably on the Philippines before May 13, 2013." 53 Petitioner obtained the highest
petitioner's petitions and declared that she is deemed to have reacquired number of votes and was proclaimed Senator on 16 May 2013. 54
her Philippine citizenship while her children are considered as citizens of
the Philippines.38 Consequently, the BI issued Identification Certificates On 19 December 2013, petitioner obtained Philippine Diplomatic
(ICs) in petitioner's name and in the names of her three (3) children. 39 Passport No. DE0004530. 55

Again, petitioner registered as a voter of Barangay Santa Lucia, San On 15 October 2015, petitioner filed her COC for the Presidency for the
Juan City on 31 August 2006. 40 She also secured from the DFA a new May 2016 Elections. 56 In her COC, the petitioner declared that she is a
Philippine Passport bearing the No. XX4731999. 41 This passport was natural-born citizen and that her residence in the Philippines up to the
renewed on 18 March 2014 and she was issued Philippine Passport No. day before 9 May 2016 would be ten (10) years and eleven (11) months
EC0588861 by the DFA.42 counted from 24 May 2005.57 The petitioner attached to her COC an
"Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and
On 6 October 2010, President Benigno S. Aquino III appointed petitioner sworn to before a notary public in Quezon City on 14 October 2015. 58
as Chairperson of the Movie and Television Review and Classification
Board (MTRCB).43 Before assuming her post, petitioner executed an Petitioner's filing of her COC for President in the upcoming elections
"Affidavit of Renunciation of Allegiance to the United States of America triggered the filing of several COMELEC cases against her which were
and Renunciation of American Citizenship" before a notary public in the subject of these consolidated cases.
Pasig City on 20 October 2010, 44 in satisfaction of the legal requisites
stated in Section 5 of R.A. No. 9225. 45 The following day, 21 October Origin of Petition for Certiorari in G.R. No. 221697
2010 petitioner submitted the said affidavit to the BI 46 and took her oath of
office as Chairperson of the MTRCB.47 From then on, petitioner stopped
A day after petitioner filed her COC for President, Estrella Elamparo
using her American passport.48
(Elamparo) filed a petition to deny due course or cancel said COC which
was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC
Second Division.59She is convinced that the COMELEC has jurisdiction
 20

over her petition.60 Essentially, Elamparo's contention is that petitioner citizen nor was there any allegation that there was a willful or
committed material misrepresentation when she stated in her COC that deliberate intent to misrepresent on her part;
she is a natural-born Filipino citizen and that she is a resident of the
Philippines for at least ten (10) years and eleven (11) months up to the (3) she did not make any material misrepresentation in the COC
day before the 9 May 2016 Elections.61 regarding her citizenship and residency qualifications for:

On the issue of citizenship, Elamparo argued that petitioner cannot be a. the 1934 Constitutional Convention deliberations show
considered as a natural-born Filipino on account of the fact that she was that foundlings were considered citizens;
a foundling.62 Elamparo claimed that international law does not confer
natural-born status and Filipino citizenship on foundlings. 63 Following this b. foundlings are presumed under international law to
line of reasoning, petitioner is not qualified to apply for reacquisition of have been born of citizens of the place where they are
Filipino citizenship under R.A. No. 9225 for she is not a natural-born found;
Filipino citizen to begin with. 64Even assuming arguendo that petitioner
was a natural-born Filipino, she is deemed to have lost that status when
c. she reacquired her natural-born Philippine citizenship
she became a naturalized American citizen. 65 According to Elamparo,
under the provisions of R.A. No. 9225;
natural-born citizenship must be continuous from birth. 66
d. she executed a sworn renunciation of her American
On the matter of petitioner's residency, Elamparo pointed out that
citizenship prior to the filing of her COC for President in
petitioner was bound by the sworn declaration she made in her 2012
the May 9, 2016 Elections and that the same is in full
COC for Senator wherein she indicated that she had resided in the
force and effect and has not been withdrawn or recanted;
country for only six ( 6) years and six ( 6) months as of May 2013
Elections. Elamparo likewise insisted that assuming arguendo that
petitioner is qualified to regain her natural-born status under R.A. No. e. the burden was on Elamparo in proving that she did not
9225, she still fell short of the ten-year residency requirement of the possess natural-born status;
Constitution as her residence could only be counted at the earliest from
July 2006, when she reacquired Philippine citizenship under the said Act. f. residence is a matter of evidence and that she
Also on the assumption that petitioner is qualified to reacquire lost reestablished her domicile in the Philippines as early as
Philippine Citizenship, Elamparo is of the belief that she failed to May 24, 2005;
reestablish her domicile in the Philippines.67
g. she could reestablish residence even before she
Petitioner seasonably filed her Answer wherein she countered that: reacquired natural-born citizenship under R.A. No. 9225;

(1) the COMELEC did not have jurisdiction over Elamparo's h. statement regarding the period of residence in her
petition as it was actually a petition for quo warranto which could 2012 COC for Senator was an honest mistake, not
only be filed if Grace Poe wins in the Presidential elections, and binding and should give way to evidence on her true date
that the Department of Justice (DOJ) has primary jurisdiction to of reacquisition of domicile;
revoke the BI's July 18, 2006 Order;
i. Elamparo's petition is merely an action to usurp the
(2) the petition failed to state a cause of action because it did not sovereign right of the Filipino people to decide a purely
contain allegations which, if hypothetically admitted, would make political question, that is, should she serve as the
false the statement in her COC that she is a natural-born Filipino country's next leader.68
 21

After the parties submitted their respective Memoranda, the petition was Neither can petitioner seek refuge under international conventions or
deemed submitted for resolution. treaties to support her claim that foundlings have a
nationality.76 According to Tatad, international conventions and treaties
On 1 December 2015, the COMELEC Second Division promulgated a are not self-executory and that local legislations are necessary in order to
Resolution finding that petitioner's COC, filed for the purpose of running give effect to treaty obligations assumed by the Philippines. 77 He also
for the President of the Republic of the Philippines in the 9 May 2016 stressed that there is no standard state practice that automatically
National and Local Elections, contained material representations which confers natural-born status to foundlings. 78
are false. The fallo of the aforesaid Resolution reads:
Similar to Elamparo's argument, Tatad claimed that petitioner cannot
WHEREFORE, in view of all the foregoing considerations, the instant avail of the option to reacquire Philippine citizenship under R.A. No. 9225
Petition to Deny Due Course to or Cancel Certificate of Candidacy is because it only applies to former natural-born citizens and petitioner was
hereby GRANTED. Accordingly, the Certificate of Candidacy for not as she was a foundling.79
President of the Republic of the Philippines in the May 9, 2016 National
and Local Elections filed by respondent Mary Grace Natividad Sonora Referring to petitioner's COC for Senator, Tatad concluded that she did
Poe Llamanzares is hereby CANCELLED.69 not comply with the ten (10) year residency requirement. 80 Tatad opined
that petitioner acquired her domicile in Quezon City only from the time
Motion for Reconsideration of the 1 December 2015 Resolution was filed she renounced her American citizenship which was sometime in 2010 or
by petitioner which the COMELEC En Banc resolved in its 23 December 2011.81 Additionally, Tatad questioned petitioner's lack of intention to
2015 Resolution by denying the same.70 abandon her U.S. domicile as evinced by the fact that her husband
stayed thereat and her frequent trips to the U.S.82
Origin of Petition for Certiorari in G.R. Nos. 221698-700
In support of his petition to deny due course or cancel the COC of
This case stemmed from three (3) separate petitions filed by Francisco S. petitioner, docketed as SPA No. 15-139 (DC), Valdez alleged that her
Tatad (Tatad), Antonio P. Contreras (Contreras) and Amado D. Valdez repatriation under R.A. No. 9225 did not bestow upon her the status of a
(Valdez) against petitioner before the COMELEC which were natural-born citizen.83 He advanced the view that former natural-born
consolidated and raffled to its First Division. citizens who are repatriated under the said Act reacquires only their
Philippine citizenship and will not revert to their original status as natural-
born citizens.84
In his petition to disqualify petitioner under Rule 25 of the COMELEC
Rules of Procedure,71 docketed as SPA No. 15-002 (DC), Tatad alleged
that petitioner lacks the requisite residency and citizenship to qualify her He further argued that petitioner's own admission in her COC for Senator
for the Presidency.72 that she had only been a resident of the Philippines for at least six (6)
years and six (6) months prior to the 13 May 2013 Elections operates
against her. Valdez rejected petitioner's claim that she could have validly
Tatad theorized that since the Philippines adheres to the principle of jus
reestablished her domicile in the Philippines prior to her reacquisition of
sanguinis, persons of unknown parentage, particularly foundlings, cannot
Philippine citizenship. In effect, his position was that petitioner did not
be considered natural-born Filipino citizens since blood relationship is
meet the ten (10) year residency requirement for President.
determinative of natural-born status. 73 Tatad invoked the rule of statutory
construction that what is not included is excluded. He averred that the
fact that foundlings were not expressly included in the categories of Unlike the previous COMELEC cases filed against petitioner, Contreras'
citizens in the 193 5 Constitution is indicative of the framers' intent to petition,85 docketed as SPA No. 15-007 (DC), limited the attack to the
exclude them.74 Therefore, the burden lies on petitioner to prove that she residency issue. He claimed that petitioner's 2015 COC for President
is a natural-born citizen.75 should be cancelled on the ground that she did not possess the ten-year
 22

period of residency required for said candidacy and that she made false MTRCB Chair and the issuance of the decree of adoption of San Juan
entry in her COC when she stated that she is a legal resident of the RTC.97 She believed that all these acts reinforced her position that she is
Philippines for ten (10) years and eleven (11) months by 9 May a natural-born citizen of the Philippines.98
2016.86 Contreras contended that the reckoning period for computing
petitioner's residency in the Philippines should be from 18 July 2006, the Sixth, she maintained that as early as the first quarter of 2005, she
date when her petition to reacquire Philippine citizenship was approved started reestablishing her domicile of choice in the Philippines as
by the BI.87 He asserted that petitioner's physical presence in the country demonstrated by her children's resettlement and schooling in the country,
before 18 July 2006 could not be valid evidence of reacquisition of her purchase of a condominium unit in San Juan City and the construction of
Philippine domicile since she was then living here as an American citizen their family home in Corinthian Hills.99
and as such, she was governed by the Philippine immigration laws. 88
Seventh, she insisted that she could legally reestablish her domicile of
In her defense, petitioner raised the following arguments: choice in the Philippines even before she renounced her American
citizenship as long as the three determinants for a change of domicile are
First, Tatad's petition should be dismissed outright for failure to state a complied with.100She reasoned out that there was no requirement that
cause of action. His petition did not invoke grounds proper for a renunciation of foreign citizenship is a prerequisite for the acquisition of a
disqualification case as enumerated under Sections 12 and 68 of the new domicile of choice.101
Omnibus Election Code.89 Instead, Tatad completely relied on the alleged
lack of residency and natural-born status of petitioner which are not Eighth, she reiterated that the period appearing in the residency portion
among the recognized grounds for the disqualification of a candidate to of her COC for Senator was a mistake made in good faith. 102
an elective office.90
In a Resolution103 promulgated on 11 December 2015, the COMELEC
Second, the petitions filed against her are basically petitions for quo First Division ruled that petitioner is not a natural-born citizen, that she
warranto as they focus on establishing her ineligibility for the failed to complete the ten (10) year residency requirement, and that she
Presidency.91 A petition for quo warranto falls within the exclusive committed material misrepresentation in her COC when she declared
jurisdiction of the Presidential Electoral Tribunal (PET) and not the therein that she has been a resident of the Philippines for a period of ten
COMELEC.92 (10) years and eleven (11) months as of the day of the elections on 9
May 2016. The COMELEC First Division concluded that she is not
Third, the burden to prove that she is not a natural-born Filipino citizen is qualified for the elective position of President of the Republic of the
on the respondents.93 Otherwise stated, she has a presumption in her Philippines. The dispositive portion of said Resolution reads:
favor that she is a natural-born citizen of this country.
WHEREFORE, premises considered, the Commission RESOLVED, as it
Fourth, customary international law dictates that foundlings are entitled to hereby RESOLVES, to GRANT the Petitions and cancel the Certificate of
a nationality and are presumed to be citizens of the country where they Candidacy of MARY GRACE NATIVIDAD SONORA POE-
are found.94 Consequently, the petitioner is considered as a natural-born LLAMANZARES for the elective position of President of the Republic of
citizen of the Philippines.95 the Philippines in connection with the 9 May 2016 Synchronized Local
and National Elections.
Fifth, she claimed that as a natural-born citizen, she has every right to be
repatriated under R.A. No. 9225 or the right to reacquire her natural-born Petitioner filed a motion for reconsideration seeking a reversal of the
status.96 Moreover, the official acts of the Philippine Government enjoy COMELEC First Division's Resolution. On 23 December 2015, the
the presumption of regularity, to wit: the issuance of the 18 July 2006 COMELEC En Banc issued a Resolution denying petitioner's motion for
Order of the BI declaring her as natural-born citizen, her appointment as reconsideration.
 23

Alarmed by the adverse rulings of the COMELEC, petitioner instituted the The issue before the COMELEC is whether or not the COC of petitioner
present petitions for certiorari with urgent prayer for the issuance of should be denied due course or cancelled "on the exclusive ground" that
an ex parte temporary restraining order/status quo ante order and/or writ she made in the certificate a false material representation. The exclusivity
of preliminary injunction. On 28 December 2015, temporary restraining of the ground should hedge in the discretion of the COMELEC and
orders were issued by the Court enjoining the COMELEC and its restrain it from going into the issue of the qualifications of the candidate
representatives from implementing the assailed COMELEC Resolutions for the position, if, as in this case, such issue is yet undecided or
until further orders from the Court. The Court also ordered the undetermined by the proper authority. The COMELEC cannot itself, in the
consolidation of the two petitions filed by petitioner in its Resolution of 12 same cancellation case, decide the qualification or lack thereof of the
January 2016. Thereafter, oral arguments were held in these cases. candidate.

The Court GRANTS the petition of Mary Grace Natividad S. Poe- We rely, first of all, on the Constitution of our Republic, particularly its
Llamanzares and to ANNUL and SET ASIDE the: provisions in Article IX, C, Section 2:

1. Resolution dated 1 December 2015 rendered through its Section 2. The Commission on Elections shall exercise the following
Second Division, in SPA No. 15-001 (DC), powers and functions:
entitled Estrella C. Elamparo, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares. (1) Enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative,
2. Resolution dated 11 December 2015, rendered through its First referendum, and recall.
Division, in the consolidated cases SPA No. 15-002 (DC)
entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad (2) Exercise exclusive original jurisdiction over all
Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) contests relating to the elections, returns, and
entitled Antonio P. Contreras, petitioner, vs. Mary Grace qualifications of all elective regional, provincial, and city
Natividad Sonora Poe-Llamanzares, respondent; and SPA No. officials, and appellate jurisdiction over all contests
15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace involving elective municipal officials decided by trial courts
Natividad Sonora Poe-Llamanzares, respondent. of general jurisdiction, or involving elective barangay
officials decided by trial courts of limited jurisdiction.
3. Resolution dated 23 December 2015 of the Commission En
Banc, upholding the 1 December 2015 Resolution of the Second Decisions, final orders, or rulings of the Commission on
Division. election contests involving elective municipal and
barangay offices shall be final, executory, and not
4. Resolution dated 23 December 2015 of the Commission En appealable.
Banc, upholding the 11 December 2015 Resolution of the First
Division. (3) Decide, except those involving the right to vote, all
questions affecting elections, including determination of
The procedure and the conclusions from which the questioned the number and location of polling places, appointment of
Resolutions emanated are tainted with grave abuse of discretion election officials and inspectors, and registration of voters.
amounting to lack of jurisdiction. The petitioner is a QUALIFIED
CANDIDATE for President in the 9 May 2016 National Elections. (4) Deputize, with the concurrence of the President, law
enforcement agencies and instrumentalities of the
Government, including the Armed Forces of the
 24

Philippines, for the exclusive purpose of ensuring free, (9) Submit to the President and the Congress a
orderly, honest, peaceful, and credible elections. comprehensive report on the conduct of each election,
plebiscite, initiative, referendum, or recall.
(5) Register, after sufficient publication, political parties,
organizations, or coalitions which, in addition to other Not any one of the enumerated powers approximate the exactitude of the
requirements, must present their platform or program of provisions of Article VI, Section 17 of the same basic law stating that:
government; and accredit citizens' arms of the
Commission on Elections. Religious denominations and The Senate and the House of Representatives shall each have
sects shall not be registered. Those which seek to an Electoral Tribunal which shall be the sole judge of all contests
achieve their goals through violence or unlawful means, relating to the election, returns, and qualifications of their
or refuse to uphold and adhere to this Constitution, or respective Members. Each Electoral Tribunal shall be composed
which are supported by any foreign government shall of nine Members, three of whom shall be Justices of the Supreme
likewise be refused registration. Court to be designated by the Chief Justice, and the remaining
six shall be Members of the Senate or the House of
Financial contributions from foreign governments and Representatives, as the case may be, who shall be chosen on the
their agencies to political parties, organizations, basis of proportional representation from the political parties and
coalitions, or candidates related to elections constitute the parties or organizations registered under the party-list system
interference in national affairs, and, when accepted, shall represented therein. The senior Justice in the Electoral Tribunal
be an additional ground for the cancellation of their shall be its Chairman.
registration with the Commission, in addition to other
penalties that may be prescribed by law. or of the last paragraph of Article VII, Section 4 which provides that:

(6) File, upon a verified complaint, or on its own initiative, The Supreme Court, sitting en banc, shall be the sole judge of all
petitions in court for inclusion or exclusion of voters; contests relating to the election, returns, and qualifications of the
investigate and, where appropriate, prosecute cases of President or Vice-President, and may promulgate its rules for the
violations of election laws, including acts or omissions purpose.
constituting election frauds, offenses, and malpractices.
The tribunals which have jurisdiction over the question of the
(7) Recommend to the Congress effective measures to qualifications of the President, the Vice-President, Senators and the
minimize election spending, including limitation of places Members of the House of Representatives was made clear by the
where propaganda materials shall be posted, and to Constitution. There is no such provision for candidates for these
prevent and penalize all forms of election frauds, positions.
offenses, malpractices, and nuisance candidacies.
Can the COMELEC be such judge?
(8) Recommend to the President the removal of any
officer or employee it has deputized, or the imposition of The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v.
any other disciplinary action, for violation or disregard of, Commission on Elections, 104 which was affirmatively cited in the En
or disobedience to its directive, order, or decision. Banc decision in Fermin v. COMELEC105 is our guide. The citation
in Fermin reads:
 25

Apparently realizing the lack of an authorized proceeding for declaring imply that he does not suffer from any of [the] disqualifications provided
the ineligibility of candidates, the COMELEC amended its rules on in §4.
February 15, 1993 so as to provide in Rule 25 § 1, the following:
Before we get derailed by the distinction as to grounds and the
Grounds for disqualification. - Any candidate who does consequences of the respective proceedings, the importance of the
not possess all the qualifications of a candidate as opinion is in its statement that "the lack of provision for declaring the
provided for by the Constitution or by existing law or who ineligibility of candidates, however, cannot be supplied by a mere rule".
commits any act declared by law to be grounds for Justice Mendoza lectured in Romualdez-Marcos that:
disqualification may be disqualified from continuing as a
candidate. Three reasons may be cited to explain the absence of an authorized
proceeding for determining before election the qualifications of a
The lack of provision for declaring the ineligibility of candidates, however, candidate.
cannot be supplied by a mere rule. Such an act is equivalent to the
creation of a cause of action which is a substantive matter which the First is the fact that unless a candidate wins and is proclaimed elected,
COMELEC, in the exercise of its rule-making power under Art. IX, A, §6 there is no necessity for determining his eligibility for the office. In
of the Constitution, cannot do it. It is noteworthy that the Constitution contrast, whether an individual should be disqualified as a candidate for
withholds from the COMELEC even the power to decide cases involving acts constituting election offenses (e.g., vote buying, over spending,
the right to vote, which essentially involves an inquiry commission of prohibited acts) is a prejudicial question which should be
into qualifications based on age, residence and citizenship of voters. determined lest he wins because of the very acts for which his
[Art. IX, C, §2(3)] disqualification is being sought. That is why it is provided that if the
grounds for disqualification are established, a candidate will not be voted
The assimilation in Rule 25 of the COMELEC rules of grounds for for; if he has been voted for, the votes in his favor will not be counted;
ineligibility into grounds for disqualification is contrary to the evident and if for some reason he has been voted for and he has won, either he
intention of the law. For not only in their grounds but also in their will not be proclaimed or his proclamation will be set aside.
consequences are proceedings for "disqualification" different from those
for a declaration of "ineligibility." "Disqualification" proceedings, as Second is the fact that the determination of a candidates'
already stated, are based on grounds specified in § 12 and §68 of the eligibility, e.g., his citizenship or, as in this case, his domicile, may take a
Omnibus Election Code and in §40 of the Local Government Code and long time to make, extending beyond the beginning of the term of the
are for the purpose of barring an individual from becoming a candidate or office. This is amply demonstrated in the companion case (G.R. No.
from continuing as a candidate for public office. In a word, their purpose 120265, Agapito A. Aquino v. COMELEC) where the determination of
is to eliminate a candidate from the race either from the start or during its Aquino's residence was still pending in the COMELEC even after the
progress. "Ineligibility," on the other hand, refers to the lack of the elections of May 8, 1995. This is contrary to the summary character
qualifications prescribed in the Constitution or the statutes for holding proceedings relating to certificates of candidacy. That is why the law
public office and the purpose of the proceedings for declaration of makes the receipt of certificates of candidacy a ministerial duty of the
ineligibility is to remove the incumbent from office. COMELEC and its officers. The law is satisfied if candidates state in their
certificates of candidacy that they are eligible for the position which they
Consequently, that an individual possesses the qualifications for a public seek to fill, leaving the determination of their qualifications to be made
office does not imply that he is not disqualified from becoming a after the election and only in the event they are elected. Only in cases
candidate or continuing as a candidate for a public office and vice versa. involving charges of false representations made in certificates of
We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) candidacy is the COMELEC given jurisdiction.
That an alien has the qualifications prescribed in §2 of the Law does not
 26

Third is the policy underlying the prohibition against pre-proclamation determine the qualification of a candidate. The facts of qualification must
cases in elections for President, Vice President, Senators and members beforehand be established in a prior proceeding before an authority
of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to properly vested with jurisdiction. The prior determination of qualification
preserve the prerogatives of the House of Representatives Electoral may be by statute, by executive order or by a judgment of a competent
Tribunal and the other Tribunals as "sole judges" under the Constitution court or tribunal.
of the election, returns and qualifications of members of Congress of the
President and Vice President, as the case may be. 106 If a candidate cannot be disqualified without a prior finding that he or she
is suffering from a disqualification "provided by law or the Constitution,"
To be sure, the authoritativeness of the Romualdez pronouncements as neither can the certificate of candidacy be cancelled or denied due
reiterated in Fermin, led to the amendment through COMELEC course on grounds of false representations regarding his or her
Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15 qualifications, without a prior authoritative finding that he or she is not
February1993 version of Rule 25, which states that: qualified, such prior authority being the necessary measure by which the
falsity of the representation can be found. The only exception that can be
Grounds for disqualification. -Any candidate who does not possess all the conceded are self-evident facts of unquestioned or unquestionable
qualifications of a candidate as provided for by the Constitution or by veracity and judicial confessions. Such are, anyway, bases equivalent to
existing law or who commits any act declared by law to be grounds for prior decisions against which the falsity of representation can be
disqualification may be disqualified from continuing as a candidate. 107 determined.

was in the 2012 rendition, drastically changed to: The need for a predicate finding or final pronouncement in a proceeding
under Rule 23 that deals with, as in this case, alleged false
Grounds. - Any candidate who, in action or protest in which he is a party, representations regarding the candidate's citizenship and residence,
is declared by final decision of a competent court, guilty of, or found by forced the COMELEC to rule essentially that since foundlings 108 are not
the Commission to be suffering from any disqualification provided by law mentioned in the enumeration of citizens under the 1935
or the Constitution. Constitution,109 they then cannot be citizens. As the COMELEC stated in
oral arguments, when petitioner admitted that she is a foundling, she said
it all. This borders on bigotry. Oddly, in an effort at tolerance, the
A Petition to Disqualify a Candidate invoking grounds for a Petition to
COMELEC, after saying that it cannot rule that herein petitioner
Deny to or Cancel a Certificate of Candidacy or Petition to Declare a
possesses blood relationship with a Filipino citizen when "it is certain that
Candidate as a Nuisance Candidate, or a combination thereof, shall be
such relationship is indemonstrable," proceeded to say that "she now has
summarily dismissed.
the burden to present evidence to prove her natural filiation with a Filipino
parent."
Clearly, the amendment done in 2012 is an acceptance of the reality of
absence of an authorized proceeding for determining before election the
The fact is that petitioner's blood relationship with a Filipino citizen is
qualifications of candidate. Such that, as presently required, to disqualify
DEMONSTRABLE.
a candidate there must be a declaration by a final judgment of a
competent court that the candidate sought to be disqualified "is guilty of
or found by the Commission to be suffering from any disqualification At the outset, it must be noted that presumptions regarding paternity is
provided by law or the Constitution." neither unknown nor unaccepted in Philippine Law. The Family Code of
the Philippines has a whole chapter on Paternity and Filiation. 110 That
said, there is more than sufficient evider1ce that petitioner has Filipino
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule
parents and is therefore a natural-born Filipino. Parenthetically, the
23 are flipsides of one to the other. Both do not allow, are not
burden of proof was on private respondents to show that petitioner is not
authorizations, are not vestment of jurisdiction, for the COMELEC to
 27

a Filipino citizen. The private respondents should have shown that both height, flat nasal bridge, straight black hair, almond shaped eyes and an
of petitioner's parents were aliens. Her admission that she is a foundling oval face.
did not shift the burden to her because such status did not exclude the
possibility that her parents were Filipinos, especially as in this case There is a disputable presumption that things have happened according
where there is a high probability, if not certainty, that her parents are to the ordinary course of nature and the ordinary habits of life. 113 All of the
Filipinos. foregoing evidence, that a person with typical Filipino features is
abandoned in Catholic Church in a municipality where the population of
The factual issue is not who the parents of petitioner are, as their the Philippines is overwhelmingly Filipinos such that there would be more
identities are unknown, but whether such parents are Filipinos. Under than a 99% chance that a child born in the province would be a Filipino,
Section 4, Rule 128: would indicate more than ample probability if not statistical certainty, that
petitioner's parents are Filipinos. That probability and the evidence on
Sect. 4. Relevancy, collateral matters - Evidence must have such a which it is based are admissible under Rule 128, Section 4 of the
relation to the fact in issue as to induce belief in its existence or no- Revised Rules on Evidence.
existence. Evidence on collateral matters shall not be allowed, except
when it tends in any reasonable degree to establish the probability of To assume otherwise is to accept the absurd, if not the virtually
improbability of the fact in issue. impossible, as the norm. In the words of the Solicitor General:

The Solicitor General offered official statistics from the Philippine Second. It is contrary to common sense because foreigners do not come
Statistics Authority (PSA)111 that from 1965 to 1975, the total number of to the Philippines so they can get pregnant and leave their newborn
foreigners born in the Philippines was 15,986 while the total number of babies behind. We do not face a situation where the probability is such
Filipinos born in the country was 10,558,278. The statistical probability that every foundling would have a 50% chance of being a Filipino and a
that any child born in the Philippines in that decade is natural-born 50% chance of being a foreigner. We need to frame our questions
Filipino was 99.83%. For her part, petitioner presented census statistics properly. What are the chances that the parents of anyone born in the
for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there Philippines would be foreigners? Almost zero. What are the chances that
were 962,532 Filipinos and 4,734 foreigners in the province; 99.62% of the parents of anyone born in the Philippines would be Filipinos? 99.9%.
the population were Filipinos. In 1970, the figures were 1,162,669
Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures According to the Philippine Statistics Authority, from 2010 to 2014, on a
for the child producing ages (15-49). In 1960, there were 230,528 female yearly average, there were 1,766,046 children born in the Philippines to
Filipinos as against 730 female foreigners or 99.68%. In the same year, Filipino parents, as opposed to 1,301 children in the Philippines of foreign
there were 210,349 Filipino males and 886 male aliens, or 99.58%. In parents. Thus, for that sample period, the ratio of non-Filipino children to
1970, there were 270,299 Filipino females versus 1, 190 female aliens, natural born Filipino children is 1:1357. This means that the statistical
or 99.56%. That same year, there were 245,740 Filipino males as against probability that any child born in the Philippines would be a natural born
only 1,165 male aliens or 99.53%. COMELEC did not dispute these Filipino is 99.93%.
figures. Notably, Commissioner Arthur Lim admitted, during the oral
arguments, that at the time petitioner was found in 1968, the majority of From 1965 to 1975, the total number of foreigners born in the Philippines
the population in Iloilo was Filipino.112 is 15,986 while the total number of Filipinos born in the Philippines is
15,558,278. For this period, the ratio of non-Filipino children is 1:661.
Other circumstantial evidence of the nationality of petitioner's parents are This means that the statistical probability that any child born in the
the fact that she was abandoned as an infant in a Roman Catholic Philippines on that decade would be a natural born Filipino is 99.83%.
Church in Iloilo City.1âwphi1 She also has typical Filipino features:
 28

We can invite statisticians and social anthropologists to crunch the As pointed out by petitioner as well as the Solicitor General, the
numbers for us, but I am confident that the statistical probability that a deliberations of the 1934 Constitutional Convention show that the framers
child born in the Philippines would be a natural born Filipino will not be intended foundlings to be covered by the enumeration. The following
affected by whether or not the parents are known. If at all, the likelihood exchange is recorded:
that a foundling would have a Filipino parent might even be higher than
99.9%. Filipinos abandon their children out of poverty or perhaps, shame. Sr. Rafols: For an amendment. I propose that after subsection 2, the
We do not imagine foreigners abandoning their children here in the following is inserted: "The natural children of a foreign father and a
Philippines thinking those infants would have better economic Filipino mother not recognized by the father.
opportunities or believing that this country is a tropical paradise suitable
for raising abandoned children. I certainly doubt whether a foreign couple xxxx
has ever considered their child excess baggage that is best left behind.
President:
To deny full Filipino citizenship to all foundlings and render them [We] would like to request a clarification from the proponent of the
stateless just because there may be a theoretical chance that one among amendment. The gentleman refers to natural children or to any kind of
the thousands of these foundlings might be the child of not just one, but illegitimate children?
two, foreigners is downright discriminatory, irrational, and unjust. It just
doesn't make any sense. Given the statistical certainty - 99.9% - that any
Sr. Rafols:
child born in the Philippines would be a natural born citizen, a decision
To all kinds of illegitimate children. It also includes natural children of
denying foundlings such status is effectively a denial of their birthright.
unknown parentage, natural or illegitimate children of unknown parents.
There is no reason why this Honorable Court should use an improbable
hypothetical to sacrifice the fundamental political rights of an entire class
of human beings. Your Honor, constitutional interpretation and the use of Sr. Montinola:
common sense are not separate disciplines. For clarification. The gentleman said "of unknown parents." Current
codes consider them Filipino, that is, I refer to the Spanish Code wherein
all children of unknown parentage born in Spanish territory are
As a matter of law, foundlings are as a class, natural-born citizens. While
considered Spaniards, because the presumption is that a child of
the 1935 Constitution's enumeration is silent as to foundlings, there is no
unknown parentage is the son of a Spaniard. This may be applied in the
restrictive language which would definitely exclude foundlings either.
Philippines in that a child of unknown parentage born in the Philippines is
Because of silence and ambiguity in the enumeration with respect to
deemed to be Filipino, and there is no need ...
foundlings, there is a need to examine the intent of the framers.
In Nitafan v. Commissioner of Internal Revenue, 114 this Court held that:
Sr. Rafols:
There is a need, because we are relating the conditions that are
The ascertainment of that intent is but in keeping with the
[required] to be Filipino.
fundamental principle of constitutional construction that the intent
of the framers of the organic law and of the people adopting it
should be given effect. The primary task in constitutional Sr. Montinola:
construction is to ascertain and thereafter assure the realization But that is the interpretation of the law, therefore, there is no [more] need
of the purpose of the framers and of the people in the adoption of for amendment.
the Constitution. It may also be safely assumed that the people in
ratifying the Constitution were guided mainly by the explanation Sr. Rafols:
offered by the framers.115 The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother
recognized by one, or the children of unknown parentage."
 29

Sr. Briones: children with a foreign father of a mother who was a citizen of the
The amendment [should] mean children born in the Philippines of Philippines, and also foundlings; but this amendment was
unknown parentage. defeated primarily because the Convention believed that the
cases, being too few to warrant the inclusion of a provision in the
Sr. Rafols: Constitution to apply to them, should be governed by statutory
The son of a Filipina to a Foreigner, although this [person] does not legislation. Moreover, it was believed that the rules of
recognize the child, is not unknown. international law were already clear to the effect that illegitimate
children followed the citizenship of the mother, and
President: that foundlings followed the nationality of the place where they
Does the gentleman accept the amendment or not? were found, thereby making unnecessary the inclusion in the
Constitution of the proposed amendment.
Sr. Rafols:
I do not accept the amendment because the amendment would exclude This explanation was likewise the position of the Solicitor General during
the children of a Filipina with a foreigner who does not recognize the the 16 February 2016 Oral Arguments:
child. Their parentage is not unknown and I think those of overseas
Filipino mother and father [whom the latter] does not recognize, should We all know that the Rafols proposal was rejected. But note that what
also be considered as Filipinos. was declined was the proposal for a textual and explicit recognition of
foundlings as Filipinos. And so, the way to explain the constitutional
President: silence is by saying that it was the view of Montinola and Roxas which
The question in order is the amendment to the amendment from the prevailed that there is no more need to expressly declare foundlings as
Gentleman from Cebu, Mr. Briones. Filipinos.

Sr. Busion: Obviously, it doesn't matter whether Montinola's or Roxas' views were
Mr. President, don't you think it would be better to leave this matter in the legally correct. Framers of a constitution can constitutionalize rules based
hands of the Legislature? on assumptions that are imperfect or even wrong. They can even
overturn existing rules. This is basic. What matters here is that Montinola
and Roxas were able to convince their colleagues in the convention that
Sr. Roxas:
there is no more need to expressly declare foundlings as Filipinos
Mr. President, my humble opinion is that these cases are few and far in
because they are already impliedly so recognized.
between, that the constitution need [not] refer to them. By international
law the principle that children or people born in a country of unknown
parents are citizens in this nation is recognized, and it is not necessary to In other words, the constitutional silence is fully explained in terms of
include a provision on the subject exhaustively. 116 linguistic efficiency and the avoidance of redundancy. The policy is clear:
it is to recognize foundlings, as a class, as Filipinos under Art. IV, Section
1 (3) of the 1935 Constitution. This inclusive policy is carried over into the
Though the Rafols amendment was not carried out, it was not because
1973 and 1987 Constitution. It is appropriate to invoke a famous scholar
there was any objection to the notion that persons of "unknown
as he was paraphrased by Chief Justice Fernando: the constitution is not
parentage" are not citizens but only because their number was not
silently silent, it is silently vocal. 118
enough to merit specific mention. Such was the account, 117 cited by
petitioner, of delegate and constitution law author Jose Aruego who said:
The Solicitor General makes the further point that the framers "worked to
create a just and humane society," that "they were reasonable patriots
During the debates on this provision, Delegate Rafols presented
and that it would be unfair to impute upon them a discriminatory intent
an amendment to include as Filipino citizens the illegitimate
 30

against foundlings." He exhorts that, given the grave implications of the latter's nationality. Pursuant to this theory, we have jurisdiction over the
argument that foundlings are not natural-born Filipinos, the Court must status of Baby Rose, she being a citizen of the Philippines, but not over
search the records of the 1935, 1973 and 1987 Constitutions "for an the status of the petitioners, who are foreigners. 120 (Underlining supplied)
express intention to deny foundlings the status of Filipinos. The burden is
on those who wish to use the constitution to discriminate against Recent legislation is more direct. R.A. No. 8043 entitled "An Act
foundlings to show that the constitution really intended to take this path to Establishing the Rules to Govern the Inter-Country Adoption of Filipino
the dark side and inflict this across the board marginalization." Children and For Other Purposes" (otherwise known as the "Inter-
Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act
We find no such intent or language permitting discrimination against Establishing the Rules and Policies on the Adoption of Filipino Children
foundlings. On the contrary, all three Constitutions guarantee the basic and For Other Purposes" (otherwise known as the Domestic Adoption Act
right to equal protection of the laws. All exhort the State to render social of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption,"
justice. Of special consideration are several provisions in the present all expressly refer to "Filipino children" and include foundlings as among
charter: Article II, Section 11 which provides that the "State values the Filipino children who may be adopted.
dignity of every human person and guarantees full respect for human
rights," Article XIII, Section 1 which mandates Congress to "give highest It has been argued that the process to determine that the child is a
priority to the enactment of measures that protect and enhance the right foundling leading to the issuance of a foundling certificate under these
of all the people to human dignity, reduce social, economic, and political laws and the issuance of said certificate are acts to acquire or perfect
inequalities x x x" and Article XV, Section 3 which requires the State to Philippine citizenship which make the foundling a naturalized Filipino at
defend the "right of children to assistance, including proper care and best. This is erroneous. Under Article IV, Section 2 "Natural-born citizens
nutrition, and special protection from all forms of neglect, abuse, cruelty, are those who are citizens of the Philippines from birth without having to
exploitation, and other conditions prejudicial to their development." perform any act to acquire or perfect their Philippine citizenship." In the
Certainly, these provisions contradict an intent to discriminate against first place, "having to perform an act" means that the act must be
foundlings on account of their unfortunate status. personally done by the citizen. In this instance, the determination of
foundling status is done not by the child but by the
Domestic laws on adoption also support the principle that foundlings are authorities.121 Secondly, the object of the process is the determination of
Filipinos. These laws do not provide that adoption confers citizenship the whereabouts of the parents, not the citizenship of the child. Lastly,
upon the adoptee. Rather, the adoptee must be a Filipino in the first the process is certainly not analogous to naturalization proceedings to
place to be adopted. The most basic of such laws is Article 15 of the Civil acquire Philippine citizenship, or the election of such citizenship by one
Code which provides that "[l]aws relating to family rights, duties, status, born of an alien father and a Filipino mother under the 1935 Constitution,
conditions, legal capacity of persons are binding on citizens of the which is an act to perfect it.
Philippines even though living abroad." Adoption deals with status, and a
Philippine adoption court will have jurisdiction only if the adoptee is a In this instance, such issue is moot because there is no dispute that
Filipino. In Ellis and Ellis v. Republic,119 a child left by an unidentified petitioner is a foundling, as evidenced by a Foundling Certificate issued
mother was sought to be adopted by aliens. This Court said: in her favor.122 The Decree of Adoption issued on 13 May 1974, which
approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan
In this connection, it should be noted that this is a proceedings in Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as
rem, which no court may entertain unless it has jurisdiction, not only over her "foundling parents," hence effectively affirming petitioner's status as a
the subject matter of the case and over the parties, but also over the foundling.123
res, which is the personal status of Baby Rose as well as that of
petitioners herein. Our Civil Code (Art. 15) adheres to the theory that Foundlings are likewise citizens under international law. Under the 1987
jurisdiction over the status of a natural person is determined by the Constitution, an international law can become part of the sphere of
 31

domestic law either by transformation or incorporation. The Article 7

transformation method requires that an international law be transformed
into a domestic law through a constitutional mechanism such as local 1. The child shall be registered immediately after birth and shall have the
legislation.124 On the other hand, generally accepted principles of right from birth to a name, the right to acquire a nationality and as far as
international law, by virtue of the incorporation clause of the Constitution, possible, the right to know and be cared for by his or her parents.
form part of the laws of the land even if they do not derive from treaty
obligations. Generally accepted principles of international law include 2. States Parties shall ensure the implementation of these rights in
international custom as evidence of a general practice accepted as law, accordance with their national law and their obligations under the
and general principles of law recognized by civilized relevant international instruments in this field, in particular where the child
nations.125 International customary rules are accepted as binding as a would otherwise be stateless.
result from the combination of two elements: the established,
widespread, and consistent practice on the part of States; and a
In 1986, the country also ratified the 1966 International Covenant on Civil
psychological element known as the opinionjuris sive
and Political Rights (ICCPR). Article 24 thereof provide for the right
necessitates (opinion as to law or necessity). Implicit in the latter element
of every child "to acquire a nationality:"
is a belief that the practice in question is rendered obligatory by the
existence of a rule of law requiring it. 126 "General principles of law
recognized by civilized nations" are principles "established by a process Article 24
of reasoning" or judicial logic, based on principles which are "basic to
legal systems generally,"127 such as "general principles of equity, i.e., the 1. Every child shall have, without any discrimination as to race, colour,
general principles of fairness and justice," and the "general principle sex, language, religion, national or social origin, property or birth, the
against discrimination" which is embodied in the "Universal Declaration of right, to such measures of protection as are required by his status as a
Human Rights, the International Covenant on Economic, Social and minor, on the part of his family, society and the State.
Cultural Rights, the International Convention on the Elimination of All
Forms of Racial Discrimination, the Convention Against Discrimination in 2. Every child shall be registered immediately after birth and shall have a
Education, the Convention (No. 111) Concerning Discrimination in name.
Respect of Employment and Occupation." 128 These are the same core
principles which underlie the Philippine Constitution itself, as embodied in 3. Every child has the right to acquire a nationality.
the due process and equal protection clauses of the Bill of Rights. 129
The common thread of the UDHR, UNCRC and ICCPR is to obligate the
Universal Declaration of Human Rights ("UDHR") has been interpreted by Philippines to grant nationality from birth and ensure that no child is
this Court as part of the generally accepted principles of international law stateless. This grant of nationality must be at the time of birth, and it
and binding on the State.130 Article 15 thereof states: cannot be accomplished by the application of our present naturalization
laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both
1. Everyone has the right to a nationality. of which require the applicant to be at least eighteen (18) years old.

2. No one shall be arbitrarily deprived of his nationality nor denied The principles found in two conventions, while yet unratified by the
the right to change his nationality. Philippines, are generally accepted principles of international law. The
first is Article 14 of the 1930 Hague Convention on Certain Questions
The Philippines has also ratified the UN Convention on the Rights of the Relating to the Conflict of Nationality Laws under which a foundling is
Child (UNCRC). Article 7 of the UNCRC imposes the following presumed to have the "nationality of the country of birth," to wit:
obligations on our country:
 32

Article 14 Another case where the number of ratifying countries was not
determinative is Mijares v. Ranada,  134 where only four countries had
A child whose parents are both unknown shall have the nationality of the "either ratified or acceded to"135 the 1966 "Convention on the Recognition
country of birth. If the child's parentage is established, its nationality shall and Enforcement of Foreign Judgments in Civil and Commercial Matters"
be determined by the rules applicable in cases where the parentage is when the case was decided in 2005. The Court also pointed out that that
known. nine member countries of the European Common Market had acceded to
the Judgments Convention. The Court also cited U.S. laws and
A foundling is, until the contrary is proved, presumed to have been born jurisprudence on recognition of foreign judgments. In all, only the
on the territory of the State in which it was found. (Underlining supplied) practices of fourteen countries were considered and yet, there was
pronouncement that recognition of foreign judgments was widespread
practice.
The second is the principle that a foundling is presumed born of
citizens of the country where he is found, contained in Article 2 of the
1961 United Nations Convention on the Reduction of Statelessness: Our approach in Razon and Mijares effectively takes into account the
fact that "generally accepted principles of international law" are based not
only on international custom, but also on "general principles of law
Article 2
recognized by civilized nations," as the phrase is understood in Article
38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and the
A foundling found in the territory of a Contracting State shall, in the policy against discrimination, which are fundamental principles underlying
absence of proof to the contrary, be considered to have been born within the Bill of Rights and which are "basic to legal systems
the territory of parents possessing the nationality of that State. generally,"136 support the notion that the right against enforced
disappearances and the recognition of foreign judgments, were correctly
That the Philippines is not a party to the 1930 Hague Convention nor to considered as "generally accepted principles of international law" under
the 1961 Convention on the Reduction of Statelessness does not mean the incorporation clause.
that their principles are not binding. While the Philippines is not a party to
the 1930 Hague Convention, it is a signatory to the Universal Declaration Petitioner's evidence137 shows that at least sixty countries in Asia, North
on Human Rights, Article 15(1) ofwhich131effectively affirms Article 14 of and South America, and Europe have passed legislation recognizing
the 1930 Hague Convention. Article 2 of the 1961 "United Nations foundlings as its citizen. Forty-two (42) of those countries follow the jus
Convention on the Reduction of Statelessness" merely "gives effect" to sanguinis regime. Of the sixty, only thirty-three (33) are parties to the
Article 15(1) of the UDHR.132 In Razon v. Tagitis,  133 this Court noted that 1961 Convention on Statelessness; twenty-six (26) are not signatories to
the Philippines had not signed or ratified the "International Convention for the Convention. Also, the Chief Justice, at the 2 February 2016 Oral
the Protection of All Persons from Enforced Disappearance." Yet, we Arguments pointed out that in 166 out of 189 countries surveyed (or
ruled that the proscription against enforced disappearances in the said 87.83%), foundlings are recognized as citizens. These circumstances,
convention was nonetheless binding as a "generally accepted principle of including the practice of jus sanguinis countries, show that it is a
international law." Razon v. Tagitis is likewise notable for declaring the generally accepted principle of international law to presume foundlings as
ban as a generally accepted principle of international law although the having been born of nationals of the country in which the foundling is
convention had been ratified by only sixteen states and had not even found.
come into force and which needed the ratification of a minimum of twenty
states. Additionally, as petitioner points out, the Court was content with
Current legislation reveals the adherence of the Philippines to this
the practice of international and regional state organs, regional state
generally accepted principle of international law. In particular, R.A. No.
practice in Latin America, and State Practice in the United States.
8552, R.A. No. 8042 and this Court's Rules on Adoption, expressly refer
to "Filipino children." In all of them, foundlings are among the Filipino
 33

children who could be adopted. Likewise, it has been pointed that the Moreover, repatriation results in the recovery of the original nationality.
DFA issues passports to foundlings. Passports are by law, issued only to This means that a naturalized Filipino who lost his citizenship will be
citizens. This shows that even the executive department, acting through restored to his prior status as a naturalized Filipino citizen. On the other
the DFA, considers foundlings as Philippine citizens. hand, if he was originally a natural-born citizen before he lost his
Philippine citizenship, he will be restored to his former status as a
Adopting these legal principles from the 1930 Hague Convention and the natural-born Filipino.
1961 Convention on Statelessness is rational and reasonable and
consistent with the jus sanguinis regime in our Constitution. The R.A. No. 9225 is a repatriation statute and has been described as such in
presumption of natural-born citizenship of foundlings stems from the several cases. They include Sobejana-Condon v. COMELEC141 where
presumption that their parents are nationals of the Philippines. As the we described it as an "abbreviated repatriation process that
empirical data provided by the PSA show, that presumption is at more restores one's Filipino citizenship x x x." Also included is Parreno v.
than 99% and is a virtual certainty. Commission on Audit,142 which cited Tabasa v. Court of Appeals, 143where
we said that "[t]he repatriation of the former Filipino will allow him to
In sum, all of the international law conventions and instruments on the recover his natural-born citizenship. Parreno v. Commission on Audit 144 is
matter of nationality of foundlings were designed to address the plight of categorical that "if petitioner reacquires his Filipino citizenship (under
a defenseless class which suffers from a misfortune not of their own R.A. No. 9225), he will ... recover his natural-born citizenship."
making. We cannot be restrictive as to their application if we are a
country which calls itself civilized and a member of the community of The COMELEC construed the phrase "from birth" in the definition of
nations. The Solicitor General's warning in his opening statement is natural citizens as implying "that natural-born citizenship must begin at
relevant: birth and remain uninterrupted and continuous from birth." R.A. No. 9225
was obviously passed in line with Congress' sole prerogative to
.... the total effect of those documents is to signify to this Honorable Court determine how citizenship may be lost or reacquired. Congress saw it fit
that those treaties and conventions were drafted because the world to decree that natural-born citizenship may be reacquired even if it had
community is concerned that the situation of foundlings renders them been once lost. It is not for the COMELEC to disagree with the Congress'
legally invisible. It would be tragically ironic if this Honorable Court ended determination.
up using the international instruments which seek to protect and uplift
foundlings a tool to deny them political status or to accord them second- More importantly, COMELEC's position that natural-born status must be
class citizenship.138 continuous was already rejected in Bengson III v. HRET145 where the
phrase "from birth" was clarified to mean at the time of birth: "A person
The COMELEC also ruled 139 that petitioner's repatriation in July 2006 who at the time of his birth, is a citizen of a particular country, is a
under the provisions of R.A. No. 9225 did not result in the reacquisition of natural-born citizen thereof." Neither is "repatriation" an act to "acquire or
natural-born citizenship. The COMELEC reasoned that since the perfect" one's citizenship. In Bengson III v. HRET, this Court pointed out
applicant must perform an act, what is reacquired is not "natural-born" that there are only two types of citizens under the 1987 Constitution:
citizenship but only plain "Philippine citizenship." natural-born citizen and naturalized, and that there is no third category for
repatriated citizens:
The COMELEC's rule arrogantly disregards consistent jurisprudence on
the matter of repatriation statutes in general and of R.A. No. 9225 in It is apparent from the enumeration of who are citizens under the present
particular. Constitution that there are only two classes of citizens: (1) those who are
natural-born and (2) those who are naturalized in accordance with law. A
In the seminal case of Bengson Ill v. HRET,  140 repatriation was explained citizen who is not a naturalized Filipino, ie., did not have to undergo the
as follows: process of naturalization to obtain Philippine citizenship, necessarily is a
 34

natural-born Filipino. Noteworthy is the absence in said enumeration of a that her adoptive parents were her birth parents as that was what would
separate category for persons who, after losing Philippine citizenship, be stated in her birth certificate anyway. And given the policy of strict
subsequently reacquire it. The reason therefor is clear: as to such confidentiality of adoption records, petitioner was not obligated to
persons, they would either be natural-born or naturalized depending on disclose that she was an adoptee.
the reasons for the loss of their citizenship and the mode prescribed by
the applicable law for the reacquisition thereof. As respondent Cruz was Clearly, to avoid a direct ruling on the qualifications of petitioner, which it
not required by law to go through naturalization proceedings in order to cannot make in the same case for cancellation of COC, it resorted to
reacquire his citizenship, he is perforce a natural-born Filipino. As such, opinionatedness which is, moreover, erroneous. The whole process
he possessed all the necessary qualifications to be elected as member of undertaken by COMELEC is wrapped in grave abuse of discretion.
the House of Representatives.146
On Residence
The COMELEC cannot reverse a judicial precedent. That is reserved to
this Court. And while we may always revisit a doctrine, a new rule The tainted process was repeated in disposing of the issue of whether or
reversing standing doctrine cannot be retroactively applied. In Morales v. not petitioner committed false material representation when she stated in
Court of Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed her COC that she has before and until 9 May 2016 been a resident of the
reversed the condonation doctrine, we cautioned that it "should be Philippines for ten (10) years and eleven (11) months.
prospective in application for the reason that judicial decisions applying
or interpreting the laws of the Constitution, until reversed, shall form part
Petitioner's claim that she will have been a resident for ten (10) years and
of the legal system of the Philippines." This Court also said that "while the
eleven (11) months on the day before the 2016 elections, is true.
future may ultimately uncover a doctrine's error, it should be, as a general
rule, recognized as good law prior to its abandonment. Consequently, the
people's reliance thereupon should be respected." 148 The Constitution requires presidential candidates to have ten (10) years'
residence in the Philippines before the day of the elections. Since the
forthcoming elections will be held on 9 May 2016, petitioner must have
Lastly, it was repeatedly pointed out during the oral arguments that
been a resident of the Philippines prior to 9 May 2016 for ten (10) years.
petitioner committed a falsehood when she put in the spaces for "born to"
In answer to the requested information of "Period of Residence in the
in her application for repatriation under R.A. No. 9225 the names of her
Philippines up to the day before May 09, 2016," she put in "10 years 11
adoptive parents, and this misled the BI to presume that she was a
months" which according to her pleadings in these cases corresponds to
natural-born Filipino. It has been contended that the data required were
a beginning date of 25 May 2005 when she returned for good from the
the names of her biological parents which are precisely unknown.
U.S.
This position disregards one important fact - petitioner was legally
When petitioner immigrated to the U.S. in 1991, she lost her original
adopted. One of the effects of adoption is "to sever all legal ties between
domicile, which is the Philippines. There are three requisites to acquire a
the biological parents and the adoptee, except when the biological parent
new domicile: 1. Residence or bodily presence in a new locality; 2. an
is the spouse of the adoptee." 149 Under R.A. No. 8552, petitioner was also
intention to remain there; and 3. an intention to abandon the old
entitled to an amended birth certificate "attesting to the fact that the
domicile.152 To successfully effect a change of domicile, one must
adoptee is the child of the adopter(s)" and which certificate "shall not bear
demonstrate an actual removal or an actual change of domicile; a bona
any notation that it is an amended issue." 150 That law also requires that
fide intention of abandoning the former place of residence and
"[a]ll records, books, and papers relating to the adoption cases in the files
establishing a new one and definite acts which correspond with the
of the court, the Department [of Social Welfare and Development], or any
purpose. In other words, there must basically be animus
other agency or institution participating in the adoption proceedings shall
manendi coupled with animus non revertendi. The purpose to remain in
be kept strictly confidential."151 The law therefore allows petitioner to state
or at the domicile of choice must be for an indefinite period of time; the
 35

change of residence must be voluntary; and the residence at the place application under R.A. No. 9225 was approved by the BI. In this regard,
chosen for the new domicile must be actual.153 COMELEC relied on Coquilla v. COMELEC,155 Japzon v.
156 157
COMELEC  and Caballero v. COMELEC.   During the oral arguments,
Petitioner presented voluminous evidence showing that she and her the private respondents also added Reyes v. COMELEC.158 Respondents
family abandoned their U.S. domicile and relocated to the Philippines for contend that these cases decree that the stay of an alien former Filipino
good. These evidence include petitioner's former U.S. passport showing cannot be counted until he/she obtains a permanent resident visa or
her arrival on 24 May 2005 and her return to the Philippines every time reacquires Philippine citizenship, a visa-free entry under
she travelled abroad; e-mail correspondences starting in March 2005 to a balikbayan stamp being insufficient. Since petitioner was still an
September 2006 with a freight company to arrange for the shipment of American (without any resident visa) until her reacquisition of citizenship
their household items weighing about 28,000 pounds to the Philippines; under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot
e-mail with the Philippine Bureau of Animal Industry inquiring how to ship be counted.
their dog to the Philippines; school records of her children showing
enrollment in Philippine schools starting June 2005 and for succeeding But as the petitioner pointed out, the facts in these four cases are very
years; tax identification card for petitioner issued on July 2005; titles for different from her situation. In Coquilla v. COMELEC,159 the only evidence
condominium and parking slot issued in February 2006 and their presented was a community tax certificate secured by the candidate and
corresponding tax declarations issued in April 2006; receipts dated 23 his declaration that he would be running in the elections. Japzon v.
February 2005 from the Salvation Army in the U.S. acknowledging COMELEC160 did not involve a candidate who wanted to count residence
donation of items from petitioner's family; March 2006 e-mail to the U.S. prior to his reacquisition of Philippine citizenship. With the Court
Postal Service confirming request for change of address; final statement decreeing that residence is distinct from citizenship, the issue there was
from the First American Title Insurance Company showing sale of their whether the candidate's acts after reacquisition sufficed to establish
U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire residence. In Caballero v. COMELEC,  161 the candidate admitted that his
submitted to the U.S. Embassy where petitioner indicated that she had place of work was abroad and that he only visited during his frequent
been a Philippine resident since May 2005; affidavit from Jesusa Sonora vacations. In Reyes v. COMELEC,162 the candidate was found to be an
Poe (attesting to the return of petitioner on 24 May 2005 and that she and American citizen who had not even reacquired Philippine citizenship
her family stayed with affiant until the condominium was purchased); and under R.A. No. 9225 or had renounced her U.S. citizenship. She was
Affidavit from petitioner's husband (confirming that the spouses jointly disqualified on the citizenship issue. On residence, the only proof she
decided to relocate to the Philippines in 2005 and that he stayed behind offered was a seven-month stint as provincial officer. The COMELEC,
in the U.S. only to finish some work and to sell the family home). quoted with approval by this Court, said that "such fact alone is not
sufficient to prove her one-year residency."
The foregoing evidence were undisputed and the facts were even listed
by the COMELEC, particularly in its Resolution in the Tatad, Contreras It is obvious that because of the sparse evidence on residence in the four
and Valdez cases. cases cited by the respondents, the Court had no choice but to hold that
residence could be counted only from acquisition of a permanent resident
However, the COMELEC refused to consider that petitioner's domicile visa or from reacquisition of Philippine citizenship. In contrast, the
had been timely changed as of 24 May 2005. At the oral arguments, evidence of petitioner is overwhelming and taken together leads to no
COMELEC Commissioner Arthur Lim conceded the presence of the first other conclusion that she decided to permanently abandon her U.S.
two requisites, namely, physical presence and animus manendi, but residence (selling the house, taking the children from U.S. schools,
maintained there was no animus non-revertendi.154 The COMELEC getting quotes from the freight company, notifying the U.S. Post Office of
disregarded the import of all the evidence presented by petitioner on the the abandonment of their address in the U.S., donating excess items to
basis of the position that the earliest date that petitioner could have the Salvation Army, her husband resigning from U.S. employment right
started residence in the Philippines was in July 2006 when her after selling the U.S. house) and permanently relocate to the Philippines
and actually re-established her residence here on 24 May 2005 (securing
 36

T.I.N, enrolling her children in Philippine schools, buying property here, To avoid the logical conclusion pointed out by the evidence of residence
constructing a residence here, returning to the Philippines after all trips of petitioner, the COMELEC ruled that petitioner's claim of residence of
abroad, her husband getting employed here). Indeed, coupled with her ten (10) years and eleven (11) months by 9 May 2016 in her 2015 COC
eventual application to reacquire Philippine citizenship and her family's was false because she put six ( 6) years and six ( 6) months as "period of
actual continuous stay in the Philippines over the years, it is clear that residence before May 13, 2013" in her 2012 COC for Senator. Thus,
when petitioner returned on 24 May 2005 it was for good. according to the COMELEC, she started being a Philippine resident only
in November 2006. In doing so, the COMELEC automatically assumed
In this connection, the COMELEC also took it against petitioner that she as true the statement in the 2012 COC and the 2015 COC as false.
had entered the Philippines visa-free as a balikbayan. A closer look at
R.A. No. 6768 as amended, otherwise known as the "An Act Instituting a As explained by petitioner in her verified pleadings, she misunderstood
Balikbayan Program," shows that there is no overriding intent to the date required in the 2013 COC as the period of residence as of the
treat balikbayans as temporary visitors who must leave after one year. day she submitted that COC in 2012. She said that she reckoned
Included in the law is a former Filipino who has been naturalized abroad residency from April-May 2006 which was the period when the U.S.
and "comes or returns to the Philippines." 163 The law institutes house was sold and her husband returned to the Philippines. In that
a balikbayan program "providing the opportunity to avail of the necessary regard, she was advised by her lawyers in 2015 that residence could be
training to enable the balikbayan to become economically self-reliant counted from 25 May 2005.
members of society upon their return to the country" 164in line with the
government's "reintegration program." 165 Obviously, balikbayans are not Petitioner's explanation that she misunderstood the query in 2012 (period
ordinary transients. of residence before 13 May 2013) as inquiring about residence as of the
time she submitted the COC, is bolstered by the change which the
Given the law's express policy to facilitate the return of a balikbayan and COMELEC itself introduced in the 2015 COC which is now "period of
help him reintegrate into society, it would be an unduly harsh conclusion residence in the Philippines up to the day before May 09, 2016." The
to say in absolute terms that the balikbayan must leave after one year. COMELEC would not have revised the query if it did not acknowledge
That visa-free period is obviously granted him to allow him to re-establish that the first version was vague.
his life and reintegrate himself into the community before he attends to
the necessary formal and legal requirements of repatriation. And that is That petitioner could have reckoned residence from a date earlier than
exactly what petitioner did - she reestablished life here by enrolling her the sale of her U.S. house and the return of her husband is plausible
children and buying property while awaiting the return of her husband given the evidence that she had returned a year before. Such evidence,
and then applying for repatriation shortly thereafter. to repeat, would include her passport and the school records of her
children.
No case similar to petitioner's, where the former Filipino's evidence of
change in domicile is extensive and overwhelming, has as yet been It was grave abuse of discretion for the COMELEC to treat the 2012 COC
decided by the Court. Petitioner's evidence of residence is as a binding and conclusive admission against petitioner. It could be
unprecedented. There is no judicial precedent that comes close to the given in evidence against her, yes, but it was by no means conclusive.
facts of residence of petitioner. There is no indication in Coquilla v. There is precedent after all where a candidate's mistake as to period of
COMELEC,166 and the other cases cited by the respondents that the residence made in a COC was overcome by evidence. In Romualdez-
Court intended to have its rulings there apply to a situation where the Marcos v. COMELEC,167 the candidate mistakenly put seven (7) months
facts are different. Surely, the issue of residence has been decided as her period of residence where the required period was a minimum of
particularly on the facts-of-the case basis. one year. We said that "[i]t is the fact of residence, not a statement in a
certificate of candidacy which ought to be decisive in determining
whether or not an individual has satisfied the constitutions residency
 37

qualification requirement." The COMELEC ought to have looked at the statement in her 2012 COC for Senator which was expressly mentioned
evidence presented and see if petitioner was telling the truth that she was in her Verified Answer.
in the Philippines from 24 May 2005. Had the COMELEC done its duty, it
would have seen that the 2012 COC and the 2015 COC both correctly The facts now, if not stretched to distortion, do not show or even hint at
stated the pertinent period of residency. an intention to hide the 2012 statement and have it covered by the 2015
representation. Petitioner, moreover, has on her side this Court's
The COMELEC, by its own admission, disregarded the evidence that pronouncement that:
petitioner actually and physically returned here on 24 May 2005 not
because it was false, but only because COMELEC took the position that Concededly, a candidate's disqualification to run for public office does not
domicile could be established only from petitioner's repatriation under necessarily constitute material misrepresentation which is the sole
R.A. No. 9225 in July 2006. However, it does not take away the fact that ground for denying due course to, and for the cancellation of, a COC.
in reality, petitioner had returned from the U.S. and was here to stay Further, as already discussed, the candidate's misrepresentation in his
permanently, on 24 May 2005. When she claimed to have been a COC must not only refer to a material fact (eligibility and qualifications for
resident for ten (10) years and eleven (11) months, she could do so in elective office), but should evince a deliberate intent to mislead,
good faith. misinform or hide a fact which would otherwise render a candidate
ineligible. It must be made with an intention to deceive the electorate as
For another, it could not be said that petitioner was attempting to hide to one's qualifications to run for public office. 168
anything. As already stated, a petition for quo warranto had been filed
against her with the SET as early as August 2015. The event from which In sum, the COMELEC, with the same posture of infallibilism, virtually
the COMELEC pegged the commencement of residence, petitioner's ignored a good number of evidenced dates all of which can
repatriation in July 2006 under R.A. No. 9225, was an established fact to evince animus manendi to the Philippines and animus non revertedi to
repeat, for purposes of her senatorial candidacy. the United States of America. The veracity of the events of coming and
staying home was as much as dismissed as inconsequential, the focus
Notably, on the statement of residence of six (6) years and six (6) months having been fixed at the petitioner's "sworn declaration in her COC for
in the 2012 COC, petitioner recounted that this was first brought up in the Senator" which the COMELEC said "amounts to a declaration and
media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist therefore an admission that her residence in the Philippines only
Alliance. Petitioner appears to have answered the issue immediately, commence sometime in November 2006"; such that "based on this
also in the press. Respondents have not disputed petitioner's evidence declaration, [petitioner] fails to meet the residency requirement for
on this point. From that time therefore when Rep. Tiangco discussed it in President." This conclusion, as already shown, ignores the standing
the media, the stated period of residence in the 2012 COC and the jurisprudence that it is the fact of residence, not the statement of the
circumstances that surrounded the statement were already matters of person that determines residence for purposes of compliance with the
public record and were not hidden. constitutional requirement of residency for election as President. It
ignores the easily researched matter that cases on questions of
Petitioner likewise proved that the 2012 COC was also brought up in the residency have been decided favorably for the candidate on the basis of
SET petition for quo warranto. Her Verified Answer, which was filed on 1 facts of residence far less in number, weight and substance than that
September 2015, admitted that she made a mistake in the 2012 COC presented by petitioner.169 It ignores, above all else, what we consider as
when she put in six ( 6) years and six ( 6) months as she misunderstood a primary reason why petitioner cannot be bound by her declaration in
the question and could have truthfully indicated a longer period. Her her COC for Senator which declaration was not even considered by the
answer in the SET case was a matter of public record. Therefore, when SET as an issue against her eligibility for Senator. When petitioner made
petitioner accomplished her COC for President on 15 October 2015, she the declaration in her COC for Senator that she has been a resident for a
could not be said to have been attempting to hide her erroneous period of six (6) years and six (6) months counted up to the 13 May 2013
 38

Elections, she naturally had as reference the residency requirements for The family home in the US was sole on 27 April 2006.
election as Senator which was satisfied by her declared years of
residence. It was uncontested during the oral arguments before us that at In April 2006, [petitioner's] husband resigned from his work in the US. He
the time the declaration for Senator was made, petitioner did not have as returned to the Philippines on 4 May 2006 and began working for a
yet any intention to vie for the Presidency in 2016 and that the general Philippine company in July 2006.
public was never made aware by petitioner, by word or action, that she
would run for President in 2016. Presidential candidacy has a length-of- In early 2006, [petitioner] and her husband acquired a vacant lot in
residence different from that of a senatorial candidacy. There are facts of Corinthian Hills, where they eventually built their family home. 170
residence other than that which was mentioned in the COC for Senator.
Such other facts of residence have never been proven to be false, and
In light of all these, it was arbitrary for the COMELEC to satisfy its
these, to repeat include:
intention to let the case fall under the exclusive ground of false
representation, to consider no other date than that mentioned by
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] petitioner in her COC for Senator.
husband however stayed in the USA to finish pending projects and
arrange the sale of their family home.
All put together, in the matter of the citizenship and residence of
petitioner for her candidacy as President of the Republic, the questioned
Meanwhile [petitioner] and her children lived with her mother in San Juan Resolutions of the COMELEC in Division and En Banc are, one and all,
City. [Petitioner] enrolled Brian in Beacon School in Taguig City in 2005 deadly diseased with grave abuse of discretion from root to fruits.
and Hanna in Assumption College in Makati City in 2005. Anika was
enrolled in Learning Connection in San Juan in 2007, when she was
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
already old enough to go to school.
1. dated 1 December 2015 rendered through the COMELEC Second
In the second half of 2005, [petitioner] and her husband acquired Unit 7F
Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo,
of One Wilson Place Condominium in San Juan. [Petitioner] and her
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
family lived in Unit 7F until the construction of their family home in
respondent, stating that:
Corinthian Hills was completed.
[T]he Certificate of Candidacy for President of the Republic of the
Sometime in the second half of 2005, [petitioner's] mother discovered
Philippines in the May 9, 2016 National and Local Elections filed by
that her former lawyer who handled [petitioner's] adoption in 1974 failed
respondent Mary Grace Natividad Sonora Poe-Llamanzares is hereby
to secure from the Office of the Civil Registrar of Iloilo a new Certificate of
GRANTED.
Live Birth indicating [petitioner's] new name and stating that her parents
are "Ronald Allan K. Poe" and "Jesusa L. Sonora."
2. dated 11 December 2015, rendered through the COMELEC First
Division, in the consolidated cases SPA No. 15-002 (DC)
In February 2006, [petitioner] travelled briefly to the US in order to
entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora
supervise the disposal of some of the family's remaining household
Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P.
belongings.1a\^/phi1 [Petitioner] returned to the Philippines on 11 March
Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-
2006.
Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D.
Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
In late March 2006, [petitioner's] husband informed the United States Llamanzares, respondent; stating that:
Postal Service of the family's abandonment of their address in the US.
 39

WHEREFORE, premises considered, the Commission RESOLVED, as it

hereby RESOLVES, to GRANT the petitions and cancel the Certificate of Associate Justice
Candidacy of MARY GRACE NATIVIDAD SONORA POE-
LLAMANZARES for the elective position of President of the Republic of Please see Separate
the Philippines in connection with the 9 May 2016 Synchronized Local Dissenting Opinion See Dissenting opinion
and National Elections. TERESITA J. LEONARDO- ARTURO D. BRION
DE CASTRO Associate Justice
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 Associate Justice
December 2015 Resolution of the Second Division stating that:
I join J. Caguioa's Opinion
LUCAS P. BERSAMIN
WHEREFORE, premises considered, the Commission RESOLVED, as it DIOSDADO M. PERALTA
Associate Justice
hereby RESOLVES, to DENY the Verified Motion for Reconsideration of Associate Justice
SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES.
The Resolution dated 11 December 2015 of the Commission First Pls. see Dissenting Opinion
Division is AFFIRMED. MARIANO C. DEL JOSE CATRAL MENDOZA
CASTILLO Associate Justice
4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 Associate Justice
December 2015 Resolution of the First Division.
(I concur with the Dissenting
See Dissenting Opinion
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE Opinion of Justice Perlas-
ESTELA M. PERLAS-
NATIVIDAD SONORA POE-LLAMANZARES is DECLARED Bernabe)
BERNABE
QUALIFIED to be a candidate for President in the National and Local BIENVENIDO L. REYES
Associate Justice
Elections of 9 May 2016. Associate Justice

SO ORDERED. See Separate Concurring

See Concurring Opinion
Opinion
FRANCIS H. JARDELEZA
JOSE PORTUGAL PEREZ MARVIC M.V.F. LEONEN
Associate Justice
Associate Justice Associate Justice

WE CONCUR:
See Concurring Opinion
ALFREDO BENJAMIN S. CAGUIOA
See Concurring Opinion Associate Justice
MARIA LOURDES P.A. SERENO
Chief Justice
CERTIFICATION

See Dissenting Opinion Please see Concurring Pursuant to Section 13, Article VIII of the Constitution, it is hereby
ANTONIO T. CARPIO Opinion certified that the conclusions in the above Decision had been reached in
Associate Justice PRESBITERO J. VELASCO, consultation before the case was assigned to the writer of the opinion of
JR. the Court.
 40

MARIA LOURDES P.A. SERENO

Chief Justice

EN BANC

July 4, 2017

G.R. No. 231658

REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN,

GARY C. ALEJANO, EMMANUEL A. BILLONES, AND TEDDY
BRAWNER BAGUILAT, JR., Petitioners 
vs.
HON. SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY; HON.
DELFIN N. LORENZANA, SECRETARY OF THE DEPARTMENT OF
NATIONAL DEF'ENSE AND MARTIAL LAW ADMINISTRATOR; AND
GEN. EDUARDO ANO, CHIEF OF STAFF OF THE ARMED FORCES
OF THE PHILIPPINES AND MARTIAL LAW IMPLEMENTOR,
Respondents

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

G.R. No. 231771

EUFEMIA CAMPOS CULLAMAT, VIRGILIO T. LIN CUNA, ATELIANA

U. HIJOS, ROLAND A. COBRADO, CARL ANTHONY D. OLALO, ROY
JIM BALANGIDG, RENATO REYES, JR., CRISTIN A E. PALABAY,
AMARYLLIS H. ENRIQUEZ, ACT TEACHERS' REPRESENTATIVE
ANTONIO L. TINIO, GABRIELA WOMEN'S PARTY
REPRESENTATIVE i\RLENED.BROSAS,KABATAAN PARTY-LIST
REPRESENTATIVE SARAH JANE I. ELAGO, MAE PANER,
GABRIELA KRISTA DALENA, ANNA ISABELLE ESTEIN, MARK
 41

VINCENT D. LIM, VENCER MARI CRISOSTOMO, JOVITA WHEREAS, Section 18, Article VII of the Constitution provides that 'x x x
MONTES, Petitioners,  In case of invasion or rebellion, when the public safety requires it, he (the
vs. President) may, for a period not exceeding sixty days, suspend the
PRESIDENT RODRIGO DUTERTE, EXECUTIVE SECRETARY privilege of the writ of habeas corpus or place the Philippines or any part
SALVADOR MEDIALDEA, DEFENSE SECRETARY DELFIN thereof under martial law x x x';
LORENZANA, ARMED FORCES OF THE PHILIPPINES CHIEF OF
STAFF LT. GENERAL EDUARDO ANO, PHILIPPINE NATIONAL WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A.
POLICE DIRECTOR-GENERAL RONALD DELA ROSA, Respondents No. 6968, provides that 'the crime of rebellion or insurrection is
committed by rising and taking arms against the Government for the
x-----------------------x purpose of removing from the allegiance to said Government or its laws,
the territory of the Republic of the Philippines or any part thereof, of any
G.R. No. 231774 body of land, naval or other armed forces, or depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or
NORKAYA S. MOHAMAD, SITTIE NUR DYHANNA S. MOHAMAD, prerogatives';
NORAISAH S. SANI, ZAHRIA P. MUTI-MAPANDI, Petitioners, 
vs. WHEREAS, part of the reasons for the issuance of Proclamation No. 55
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, was the series of violent acts committed by the Maute terrorist group
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY DELFIN such as the attack on the military outpost in Butig, Lanao del Sur in
N. LORENZANA, DEPARTMENT OF THE INTERIOR AND LOCAL February 2016, killing and wounding several soldiers, and the mass
GOVERNMENT (DILG) SECRETARY (OFFICER-INCHARGE) jailbreak in Marawi City in August 2016, freeing their arrested comrades
CATALINO S. CUY, ARMED FORCES OF THE PHILIPPINES (AFP) and other detainees;
CHEF OF STAFF GEN. EDUARDO M. AÑO, PHILIPPINE NATIONAL
POLICE (PNP) CHIEF DIRECTOR GENERAL RONALD M. DELA WHEREAS, today 23 May 2017, the same Maute terrorist group has
ROSA, NATIONAL SECURITY ADVISER HERMOGENES C. taken over a hospital in Marawi City, Lanao del Sur, established several
ESPERON, JR., Respondents. checkpoints within the City, burned down certain government and private
facilities and inflicted casualties on the part of Government forces, and
DECISION started flying the flag of the Islamic State of Iraq and Syria (ISIS) in
several areas, thereby openly attempting to remove from the allegiance
DEL CASTILLO, J.: to the Philippine Government this part of Mindanao and deprive the Chief
Executive of his powers and prerogatives to enforce the laws of the land
and to maintain public order and safety in Mindanao, constituting the
Effective May 23, 2017, and for a period not exceeding 60 days,
crime of rebellion; and
President Rodrigo Roa Duterte issued Proclamation No. 216 declaring a
state of martial law and suspending the privilege of the writ of habeas
corpus in the whole of Mindanao. WHEREAS, this recent attack shows the capability of the Maute group
and other rebel groups to sow terror, and cause death and damage to
property not only in Lanao del Sur but also in other parts of Mindanao.
The full text of Proclamation No. 216 reads as follows:
NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the
WHEREAS, Proclamation No. 55, series of 2016, was issued on 04
Republic of the Philippines, by virtue of the powers vested in me by the
September 2016 declaring a state of national emergency on account of
Constitution and by law, do hereby proclaim as follows:
lawless violence in Mindanao;
 42

SECTION 1. There is hereby declared a state of martial law in the groups' armed siege and acts of violence directed towards civilians and
Mindanao group of islands for a period not exceeding sixty days, effective government authorities, institutions and establishments, they were able to
as of the date hereof. take control of major social, economic, and political foundations of
Marawi City which led to its paralysis. This sudden taking of control was
SECTION 2. The privilege of the writ of habeas corpus shall likewise be intended to lay the groundwork for the eventual establishment of a
suspended in the aforesaid area for the duration of the state of martial DAESH wilayat or province in Mindanao.
law.
Based on verified intelligence reports, the Maute Group, as of the end of
DONE in the Russian Federation, this 23rd day of May in the year of our 2016, consisted of around two hundred sixty-three (263) members, fully
Lord, Two Thousand and Seventeen. armed and prepared to wage combat in furtherance of its aims. The
group chiefly operates in the province of Lanao del Sur, but has
Within the timeline set by Section 18, Article VII of the Constitution, the extensive networks and linkages with foreign and local armed groups
President submitted to Congress on May 25, 2017, a written Report on such as the Jemaah Islamiyah, Mujahidin Indonesia Timur and the ASG.
the factual basis of Proclamation No. 216. It adheres to the ideals being espoused by the DAESH, as evidenced by,
among others, its publication of a video footage declaring its allegiance to
the DAESH. Reports abound that foreign-based terrorist groups, the ISIS
The Report pointed out that for decades, Mindanao has been plagued
(Islamic State of Iraq and Syria) in particular, as well as illegal drug
with rebellion and lawless violence which only escalated and worsened
money, provide financial and logistical support to the Maute Group.
with the passing of time.
The events commencing on 23 May 2017 put on public display the
Mindanao has been the hotbed of violent extremism and a brewing
groups' clear intention to establish an Islamic State and their capability to
rebellion for decades. In more recent years, we have witnessed the
deprive the duly constituted authorities - the President, foremost - of their
perpetration of numerous acts of violence challenging the authority of the
powers and prerogatives.2
duly constituted authorities, i.e., the Zamboanga siege, the Davao
bombing, the Mamasapano carnage, and the bombings in Cotabato,
Sultan Kudarat, Sulu, and Basilan, among others. Two armed groups In particular, the President chronicled in his Report the events which took
have figured prominently in all these, namely, the Abu Sayaff Group place on May 23, 2017 in Marawi City which impelled him to declare a
(ASG) and the ISIS-backed Maute Group.1 state of martial law and suspend the privilege of writ of habeas corpus, to
wit:
The President went on to explain that on May 23, 2017, a government
operation to capture the high-ranking officers of the Abu Sayyaf Group • At 1400H members of the Maute Group and ASG, along with their
(ASG) and the Maute Group was conducted. These groups, which have sympathizers, commenced their attack on various facilities - government
been unleashing havoc in Mindanao, however, confronted the and privately owned - in the City of Marawi.
government operation by intensifying their efforts at sowing violence
aimed not only against the government authorities and its facilities but • At 1600H around fifty (50) armed criminals assaulted Marawi City Jail
likewise against civilians and their properties. As narrated in the being manage by the Bureau of Jail Management and Penology (BJMP).
President's Report:
• The Maute Group forcibly entered the jail facilities, destroyed its main
On 23 May 2017, a government operation to capture Isnilon Hapilon, a gate, and assaulted on-duty personnel. BJMP personnel were disarmed,
senior leader of the ASG, and Maute Group operational leaders, Abdullah tied, and/or locked inside the cells.
and Omarkhayam Maute, was confronted with armed resistance which
escalated into open hostility against the government. Through these
 43

• The group took cellphones, personnel-issued firearms, and • Other educational institutions were also burned, namely, Senator Ninoy
vehicles (i.e., two [2] prisoner vans and private vehicles). Aquino College Foundation and the Marawi Central Elementary Pilot
School.
• By 1630H, the supply of power into Marawi City had been interrupted,
and sporadic gunfights were heard and felt everywhere. By evening, the • The Maute Group also attacked Amai Pakpak Hospital and hoisted the
power outage had spread citywide. (As of 24 May 2017, Marawi City's DAESH flag there, among other several locations. As of 0600H of 24May
electric supply was still cut off, plunging the city into total black-out.) 2017, members of the Maute Group were seen guarding the entry gates
of Amai Pakpak Hospital. They held hostage the employees of the
• From 1800H to 1900H, the same members of the Maute Group Hospital and took over the PhilHealth office located thereat.
ambushed and burned the Marawi Police Station. A patrol car of the
Police Station was also taken. • The groups likewise laid siege to another hospital, Filipino-Libyan
Friendship Hospital, which they later set ablaze.
• A member of the Provincial Drug Enforcement Unit was killed during the
takeover of the Marawi City Jail. The Maute Group facilitated the escape • Lawless armed groups likewise ransacked the Landbank of the
of at least sixty-eight (68) inmates of the City Jail. Philippines and commandeered one of its armored vehicles.

• The BJMP directed its personnel at the Marawi City Jail and other • Latest information indicates that about seventy-five percent (75%) of
affected areas to evacuate. Marawi City has been infiltrated by lawless armed groups composed of
members of the Maute Group and the ASG. As of the time of this Report,
• By evening of 23 May 2017, at least three (3) bridges in Lanao del Sur, eleven (11) members of the Armed Forces and the Philippine National
namely, Lilod, Bangulo, and Sauiaran, fell under the control of these Police have been killed in action, while thirty-five (35) others have been
groups. They threatened to bomb the bridges to pre-empt military seriously wounded.
reinforcement.
• There are reports that these lawless armed groups are searching for
• As of 2222H, persons connected with the Maute Group had occupied Christian communities in Marawi City to execute Christians. They are
several areas in Marawi City, including Naga Street, Bangolo Street, also preventing Maranaos from leaving their homes and forcing young
Mapandi, and Camp Keithly, as well as the following barangays: Basak male Muslims to join their groups.
Malutlot, Mapandi, Saduc, Lilod Maday, Bangon, Saber, Bubong,
Marantao, Caloocan, Banggolo, Barionaga, and Abubakar. • Based on various verified intelligence reports from the AFP and the
PNP, there exists a strategic mass action of lawless armed groups in
• These lawless armed groups had likewise set up road blockades and Marawi City, seizing public and private facilities, perpetrating killings of
checkpoints at the Iligan City-Marawi City junction. government personnel, and committing armed uprising against and open
defiance of the government.3
• Later in the evening, the Maute Group burned Dansalan College
Foundation, Cathedral of Maria Auxiliadora, the nun's quarters in the The unfolding of these events, as well as the classified reports he
church, and the Shia Masjid Moncado Colony. Hostages were taken from received, led the President to conclude that -
the church.
These activities constitute not simply a display of force, but a clear
• About five (5) faculty members of Dansalan College Foundation had attempt to establish the groups' seat of power in Marawi City for their
been reportedly killed by the lawless groups. planned establishment of a DAESH wilayat or province covering the
entire Mindanao.
 44

The cutting of vital lines for transportation and power; the recruitment of whole. In addition, the Report pointed out the possible tragic
young Muslims to further expand their ranks and strengthen their force; repercussions once Marawi City falls under the control of the lawless
the armed consolidation of their members throughout Marawi City; the groups.
decimation of a segment of the city population who resist; and the brazen
display of DAESH flags constitute a clear, pronounced, and unmistakable The groups' occupation of Marawi City fulfills a strategic objective
intent to remove Marawi City, and eventually the rest of Mindanao, from because of its terrain and the easy access it provides to other parts of
its allegiance to the Government. Mindanao. Lawless armed groups have historically used provinces
adjoining Marawi City as escape routes, supply lines, and backdoor
There exists no doubt that lawless armed groups are attempting to passages.
deprive the President of his power, authority, and prerogatives within
Marawi City as a precedent to spreading their control over the entire Considering the network and alliance-building activities among terrorist
Mindanao, in an attempt to undermine his control over executive groups, local criminals, and lawless armed men, the siege of Marawi City
departments, bureaus, and offices in said area; defeat his mandate to is a vital cog in attaining their long-standing goal: absolute control over
ensure that all laws are faithfully executed; and remove his supervisory the entirety of Mindanao. These circumstances demand swift and
powers over local govemments.4 decisive action to ensure the safety and security of the Filipino people
and preserve our national integrity. 6
According to the Report, the lawless activities of the ASG, Maute Group,
and other criminals, brought about undue constraints and difficulties to The President ended his Report in this wise:
the military and government personnel, particularly in the performance of
their duties and functions, and untold hardships to the civilians, viz.: While the government is presently conducting legitimate operations to
address the on-going rebellion, if not the seeds of invasion, public safety
Law enforcement and other government agencies now face pronounced necessitates the continued implementation of martial law and the
difficulty sending their reports to the Chief Executive due to the city-wide suspension of the privilege of the writ of habeas corpus in the whole of
power outages. Personnel from the BJMP have been prevented from Mindanao until such time that the rebellion is completely quelled. 7
performing their functions. Through the attack and occupation of several
hospitals, medical services in Marawi City have been adversely affected. In addition to the Report, representatives from the Executive Department,
The bridge and road blockades set up by the groups effectively deprive the military and police authorities conducted briefings with the Senate
the government of its ability to deliver basic services to its citizens. Troop and the House of Representatives relative to the declaration of martial
reinforcements have been hampered, preventing the government from law.
restoring peace and order in the area. Movement by both civilians and
government personnel to and from the city is likewise hindered.
After the submission of the Report and the briefings, the Senate issued
P.S. Resolution No. 3888 expressing full support to the martial law
The taking up of arms by lawless armed groups in the area, with support proclamation and finding Proclamation No. 216 "to be satisfactory,
being provided by foreign-based terrorists and illegal drug money, and constitutional and in accordance with the law". In the same Resolution,
their blatant acts of defiance which embolden other armed groups in the Senate declared that it found "no compelling reason to revoke the
Mindanao, have resulted in the deterioration of public order and safety in same". The Senate thus resolved as follows:
Marawi City; they have likewise compromised the security of the entire
Island of Mindanao.5
NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, by way
of the sense of the Senate, that the Senate finds the issuance of
The Report highlighted the strategic location of Marawi City and the Proclamation No. 216 to be satisfactory, constitutional and in accordance
crucial and significant role it plays in Mindanao, and the Philippines as a
 45

with the law. The Senate hereby supports fully Proclamation No. 216 and was precipitated or initiated by the government in its bid to capture
finds no compelling reason to revoke the sarne.9 Hapilon.18Based on said statement, it concludes that the objective of the
Maute Group's armed resistance was merely to shield Hapilon and the
The Senate's counterpart in the lower house shared the same Maute brothers from the government forces, and not to lay siege on
sentiments. The House of Representatives likewise issued House Marawi City and remove its allegiance to the Philippine Republic. 19 It then
Resolution No. 105010 "EXPRESSING THE FULL SUPPORT OF THE posits that if at all, there is only a threat of rebellion in Marawi City which
HOUSE OF REPRESENTATIVES TO PRESIDENT RODRIGO is akin to "imminent danger" of rebellion, which is no longer a valid
DUTERTE AS IT FINDS NO REASON TO REVOKE PROCLAMATION ground for the declaration of martial law.20
NO. 216, ENTITLED 'DECLARING A STATE OF MARTIAL LAW AND
SUSPENDING THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS Second, the Lagman Petition claims that the declaration of martial law
IN THE WHOLE OF MINDANAO"'. has no sufficient factual basis because the President's Report containef
"false, inaccurate, contrived and hyperbolic accounts". 21
The Petitions
It labels as false the claim in the President's Report that the Maute Group
A) G.R. No. 231658 (Lagman Petition) attacked Amai Pakpak Medical Center. Citing online reports on the
interview of Dr. Amer Saber (Dr. Saber), the hospital's Chief, the Lagman
On June 5, 2017, Representatives Edcel C. Lagman, Tomasito s. Villarin, Petition insists that the Maute Group merely brought an injured member
Gary C. Alejano, Emmanuel A. Billones, and Teddy Brawner Baguilat, Jr. to the hospital for treatment but did not overrun the hospital or harass the
filed a Petition11 Under the Third Paragraph of Section 18 of Article VII of hospital personnel. 22 The Lagman Petition also refutes the claim in the
the 1987 Constitution. President's Report that a branch of the Landbank of the Philippines was
ransacked and its armored vehicle commandeered. It alleges that the
bank employees themselves clarified that the bank was not ransacked
First, the Lagman Petition claims that the declaration of martial law has
while the armored vehicle was owned by a third party and was empty at
no sufficient factual basis because there is no rebellion or invasion in
the time it was commandeered. 23 It also labels as false the report on the
Marawi City or in any part of Mindanao. It argues that acts of terrorism in
burning of the Senator Ninoy Aquino College Foundation and the Marawi
Mindanao do not constitute rebellion 12 since there is no proof that its
Central Elementary Pilot School. It avers that the Senator Ninoy Aquino
purpose is to remove Mindanao or any part thereof from allegiance to the
College Foundation is intact as of May 24, 2017 and that according to
Philippines, its laws, or its territory. 13 It labels the flying of ISIS flag by the
Asst. Superintendent Ana Alonto, the Marawi Central Elementary Pilot
Maute Group in Marawi City and other outlying areas as mere
School was not burned by the terrorists. 24 Lastly, it points out as false the
propaganda114 and not an open attempt to remove such areas from the
report on the beheading of the police chief of Malabang, Lanao del Sur,
allegiance to the Philippine Government and deprive the Chief Executive
and the occupation of the Marawi City Hall and part of the Mindanao
of the assertion and exercise of his powers and prerogatives therein. It
State University.25
contends that the Maute Group is a mere private army, citing as basis the
alleged interview of Vera Files with Joseph Franco wherein the latter
allegedly mentioned that the Maute Group is more of a "clan's private Third, the Lagman Petition claims that the declaration of martial law has
militia latching into the IS brand theatrically to inflate perceived no sufficient factual basis since the President's Report mistakenly
capability".15 The Lagman Petition insists that during the briefing, included the attack on the military outpost in Butig, Lanao del Sur in
representatives of the military and defense authorities did not February 2016, the mass jail break in Marawi City in August 2016, the
categorically admit nor deny the presence of an ISIS threat in the country Zamboanga siege, the Davao market bombing, the Mamasapano
but that they merely gave an evasive answer 16 that "there is ISIS in the carnage and other bombing incidents in Cotabato, Sultan Kudarat, and
Philippines".17 The Lagman Petition also avers that Lt. Gen. Salvador Basilan, as additional factual bases for the proclamation of martial law. It
Mison, Jr. himself admitted that the current armed conflict in Marawi City contends that these events either took place long before the conflict in
 46

Marawi City began, had long been resolved, or with the culprits having In particular, it avers that the supposed rebellion described in
already been arrested.26 Proclamation No. 216 relates to events happening in Marawi City only an
not in the entire region of Mindanao. It concludes that Proclamation No
Fourth, the Lagman Petition claims that the declaration of martial law 216 "failed to show any factual basis for the imposition of martial law in
has no sufficient factual basis considering that the President acted alone the entire Mindanao,"35 "failed to allege any act of rebellion outside
and did not consult the military establishment or any ranking Marawi City, much less x x x allege that public safety requires the
official27 before making the proclamation. imposition o martial law in the whole of Mindanao".36

Finally, the Lagman Petition claims that the President's proclamation of The Cullamat Petition claims that the alleged "capability of the Maute
martial law lacks sufficient factual basis owing to the fact that during the Group and other rebel groups to sow terror and cause death and damage
presentation before the Committee of the Whole of the House of to property"37 does not rise to the level of rebellion sufficient to declare
Representatives, it was shown that the military was even successful in martial law in the whole of Mindanao. 38 It also posits that there is no
pre-empting the ASG and the Maute Group's plan to take over Marawi lawless violence in other parts of Mindanao similar to that in Marawi
City and other parts of Mindanao; there was absence of any hostile plan City.39
by the Moro Islamic Liberation Front; and the number of foreign fighters
allied with ISIS was "undetermined" 28 which indicates that there are only Moreover, the Cullamat Petition assails the inclusion of the phrase "other
a meager number of foreign fighters who can lend support to the Maute rebel groups" in the last Whereas Clause of Proclamation No. 216 for
Group.29 being vague as it failed to identify these rebel groups and specify the acts
of rebellion that they were supposedly waging. 40
Based on the foregoing argumentation, the Lagman Petition asks the
Court to: (1)"exercise its specific and special jurisdiction to review the In addition, the Cullamat Petition cites alleged inaccuracies,
sufficiency of the factual basis of Proclamation No. 216"; and (2) render exaggerations, and falsities in the Report of the President to Congress,
"a Decision voiding and nullifying Proclamation No. 216" for lack of particularly the attack at the Amai Pakpak Hospital, the ambush and
sufficient factual basis.30 burning of the Marawi Police Station, the killing of five teachers of
Dansalan College Foundation, and the attacks on various government
In a Resolution31 dated June 6, 2017, the Court required respondents to facilities.41
comment on the Lagman Petition and set the case for oral argument on
June 13, 14, and 15, 2017. In fine, the Cullamat Petition prays for the Court to declare Proclamation
No. 216 as unconstitutional or in the alternative, should the Court find
On June 9, 2017, two other similar petitions docketed as G.R. Nos. justification for the declaration of martial law and suspension of the
231771 and 231774 were filed and eventually consolidated with G.R. No. privilege of the writ of habeas corpus in Marawi City, to declare the same
231658.32 as unconstitutional insofar as its inclusion of the other parts of
Mindanao.42
B) G.R. No. 231771 (Cullamat Petition)
C) G.R. No. 231774 (Mohamad Petition)
33
The Cullamat Petition, "anchored on Section 18, Article VII"  of the
Constitution, likewise seeks the nullification of Proclamation No. 216 for The Mohamad Petition, denominated as a "Petition for Review of the
being unconstitutional because it lacks sufficient factual basis that there Sufficiency of [the] Factual Basis of [the] Declaration of Martial Law and
is rebellion in Mindanao and that public safety warrants its declaration. 34 [the] Suspension of the Privilege of the Writ of Habeas Corpus,"43 labels
itself as "a special proceeding"44 or an "appropriate proceeding filed by
any citizen"45 authorized under Section 18, Article VII of the Constitution.
 47

The Mohamad Petition posits that martial law is a measure of last In closing, the Mohamad Petition prays for the Court to exercise its power
resort46 and should be invoked by the President only after exhaustion of to review, "compel respondents to present proof on the factual basis [of]
less severe remedies.47 It contends that the extraordinary powers of the the declaration of martial law and the suspension of the privilege of the
President should be dispensed sequentially, i.e., first, the power to call writ of habeas corpus in Mindanao"57 and declare as unconstitutional
out the armed forces; second, the power to suspend the privilege of the Proclamation No. 216 for lack of sufficient factual basis.
writ of habeas corpus; and finally, the power to declare martial law. 48 It
maintains that the President has no discretion to choose which The Consolidated Comment
extraordinary power to use; moreover, his choice must be dictated only
by, and commensurate to, the exigencies of the situation. 49 The respondents' Consolidated Comment 58 was filed on June 12, 2017,
as required by the Court. Noting that the same coincided with the
According to the Mohamad Petition, the factual situation in Marawi is not celebration of the 119th anniversary of the independence of this
so grave as to require the imposition of martial law. 50 It asserts that the Republic, the Office of the Solicitor General (OSG) felt that "defending
Marawi incidents "do not equate to the existence of a public necessity the constitutionality of Proclamation No. 216" should serve as "a rallying
brought about by an actual rebellion, which would compel the imposition call for every Filipino to unite behind one true flag and defend it against
of martial law or the suspension of the privilege of the writ of habeas all threats from within and outside our shores".59
corpus".51 It proposes that "[m]artial law can only be justified if the
rebellion or invasion has reached such gravity that [its] imposition x x x is The OSG acknowledges that Section 18, Article VII of the Constitution
compelled by the needs of public safety" 52 which, it believes, is not yet vests the Court with the authority or power to review the sufficiency of the
present in Mindanao. factual basis of the declaration of martial law. 60 The OSG, however,
posits that although Section 18, Article VII lays the basis for the exercise
Moreover, it alleges that the statements contained in the President's of such authority or power, the same constitutional provision failed to
Report to the Congress, to wit: that the Maute Group intended to specify the vehicle, mode or remedy through which the "appropriate
establish an Islamic State; that they have the capability to deprive the proceeding" mentioned therein may be resorted to. The OSG suggests
duly constituted authorities of their powers and prerogatives; and that the that the "appropriate proceeding" referred to in Section 18, Article VII may
Marawi armed hostilities is merely a prelude to a grander plan of taking be availed of using the vehicle, mode or remedy of a certiorari petition,
over the whole of Mindanao, are conclusions bereft of substantiation. 53 either under Section 1 or 5, of Article VIII. 61Corollarily, the OSG maintains
that the review power is not mandatory, but discretionary only, on the part
The Mohamad Petition posits that immediately after the declaration of of the Court. 62 The Court has the discretion not to give due course to the
martial law, and without waiting for a congressional action, a suit may petition.63
already be brought before the Court to assail the sufficiency of the factual
basis of Proclamation No. 216. Prescinding from the foregoing, the OSG contends that the sufficiency of
the factual basis of Proclamation No. 216 should be reviewed by the
Finally, in invoking this Court's power to review the sufficiency ofthe Court "under the lens of grave abuse of discretion" 64 and not the yardstick
factual basis for the declaration of martial law and the suspension of the of correctness of the facts.65 Arbitrariness, not correctness, should be the
privilege of the writ of habeas corpus, the Mohamad Petition insists that standard in reviewing the sufficiency of factual basis.
the Court may "look into the wisdom of the [President's] actions, [and] not
just the presence of arbitrariness". 54 Further, it asserts that since it is The OSG maintains that the burden lies not with the respondents but with
making a negative assertion, then the burden to prove the sufficiency of the petitioners to prove that Proclamation No. 216 is bereft of factual
the factual basis is shifted to and lies on the respondents. 55 It thus asks basis.1âwphi1 It thus takes issue with petitioners' attempt to shift the
the Court "to compel the [r]espondents to divulge relevant information" 56in burden of proof when they asked the Court "to compel [the] respondents
order for it to review the sufficiency of the factual basis. to present proof on the factual basis"66 of Proclamation No. 216. For the
 48

OSG, "he who alleges must prove" 67 and that governmental actions are Finally, the OSG points out that it has no duty or burden to prove that
presumed to be valid and constitutional.68 Proclamation No. 216 has sufficient factual basis. It maintains that the
burden rests with the petitioners. However, the OSG still endeavors to lay
Likewise, the OSG posits that the sufficiency of the factual basis must be out the factual basis relied upon by the President "if only to remove any
assessed from the trajectory or point of view of the President and base doubt as to the constitutionality of Proclamation No. 216". 77
on the facts available to him at the time the decision was made. 69 It
argues that the sufficiency of the factual basis should be The facts laid out by the OSG in its Consolidated Comment will be
examined not based on the facts discovered after the President had discussed in detail in the Court's Ruling.
made his decision to declare martial law because to do so would subject
the exercise of the President's discretion to an impossible standard. 70 It ISSUES
reiterates that the President's decision should be guided only by the
information and data available to him at the time he made the The issues as contained in the revised Advisory78 are as follows:
determination.71 The OSG thus asserts that facts that were
established after the declaration of martial law should not be considered
1. Whether or not the petitions docketed as G.R. Nos. 231658, 231771,
in the review of the sufficiency of the factual basis of the proclamation of
and 231774 are the "appropriate proceeding" covered by Paragraph 3,
martial law. The OSG suggests that the assessment of after-proclamation
Section 18, Article VII of the Constitution sufficient to invoke the mode of
facts lies with the President and Congress for the purpose of determining
review required of this Court when a declaration of martial law or the
the propriety of revoking or extending the martial law. The OSG fears that
suspension of the privilege of the writ of habeas corpus is promulgated;
if the Court considers after-proclamation-facts in its review of the
sufficiency of the factual basis for the proclamation, it would in effect
usurp the powers of the Congress to determine whether martial law 2. Whether or not the President in declaring martial law and suspending
should be revoked or extended. 72 the privilege of the writ of habeas corpus:

It is also the assertion of the OSG that the President could validly rely on a. is required to be factually correct or only not arbitrary in his
intelligence reports coming from the Armed Forces of the appreciation of facts;
Philippines;73 and that he could not be expected to personally determine
the veracity of thecontents of the reports. 74 Also, since the power to b. is required to obtain the favorable recommendation thereon of the
impose martial law is vested solely on the President as Commander-in- Secretary of National Defense;
Chief, the lack of recommendation from the Defense Secretary, or any
official for that matter, will not nullify the said declaration, or affect its c. is required to take into account only the situation at the time of the
validity, or compromise the sufficiency of the factual basis. proclamation, even if subsequent events prove the situation to have not
been accurately reported;
Moreover, the OSG opines that the petitioners miserably failed to validly
refute the facts cited by the President in Proclamation No. 216 and in his 3. Whether or not the power of this Court to review the sufficiency of the
Report to the Congress by merely citing news reports that supposedly factual basis [of] the proclamation of martial law or the suspension of the
contradict the facts asserted therein or by criticizing in piecemeal the privilege of the writ of habeas corpus is independent of the actual actions
happenings in Marawi. For the OSG, the said news articles are "hearsay that have been taken by Congress jointly or separately;
evidence, twice removed," 75 and thus inadmissible and without probative
value, and could not overcome the "legal presumption bestowed on 4. Whether or not there were sufficient factual [basis] for the proclamation
governmental acts".76 of martial law or the suspension of the privilege of the writ of
habeas corpus;
 49

a. What are the parameters for review? After the oral argument, the parties submitted their respective
memoranda and supplemental memoranda.
b. Who has the burden of proof?
OUR RULING
c. What is the threshold of evidence?
I. Locus standi of petitioners.
5. Whether the exercise of the power of judicial review by this Court
involves the calibration of graduated powers granted the President as One of the requisites for judicial review is locus standi, i.e., "the
Commander-in-Chief, namely calling out powers, suspension of the constitutional question is brought before [the Court] by a party having the
privilege of the writ of habeas corpus, and declaration of martial law; requisite 'standing' to challenge it." 79 As a general rule, the challenger
must have "a personal and substantial interest in the case such that he
6. Whether or not Proclamation No. 216 of 23 May 2017 may be has sustained, or will sustain, direct injury as a result of its
considered, vague and thus null and void: enforcement."80 Over the years, there has been a trend towards
relaxation of the rule on legal standing, a prime example of which is
a. with its inclusion of "other rebel groups;" or found in Section 18 of Article VII which provides that any citizen may file
the appropriate proceeding to assail the sufficiency of the factual basis of
the declaration of martial law or the suspension of the privilege of the writ
b. since it has no guidelines specifying its actual operational parameters
of habeas corpus. "[T]he only requisite for standing to challenge the
within the entire Mindanao region;
validity of the suspension is that the challenger be a citizen. He need not
even be a taxpayer."81
7. Whether or not the armed hostilities mentioned in Proclamation No.
216 and in the Report of the President to Congress are sufficient [bases]:
Petitioners in the Cullamat Petition claim to be "suing in their capacities
as citizens of the Republic;" 82 similarly, petitioners in the Mohamad
a. for the existence of actual rebellion; or Petition all claim to be "Filipino citizens, all women, all of legal [age], and
residents of Marawi City".83 In the Lagman Petition, however, petitioners
b. for a declaration of martial law or the suspension of the privilege of the therein did not categorically mention that they are suing's citizens but
writ of habeas corpus in the entire Mindanao 1 region; merely referred to themselves as duly elected Representatives. 84 That
they are suing in their official capacities as Members of Congress couLd
8. Whether or not terrorism or acts attributable to terrorism are equivalent have elicited a vigorous discussion considering the issuance by the
to actual rebellion and the requirements of public safety sufficient to House of Representatives of House Resolution No. 1050 expressing full
declare martial law or suspend the privilege of the writ of habeas support to President Duterte and finding no reason to revoke
corpus; and Proclamation No. 216. By such resolution, the House of Representatives
is declaring that it finds no reason to review the sufficiency of the factual
9. Whether or not nullifying Proclamation No. 216 of 23 May 2017 will: basis of the martial law declaration, which is in direct contrast to the
views and arguments being espoused by the petitioners in the Lagman
a. have the effect of recalling Proclamation No. 55 s. 2016; or Petition. Considering, however, the trend towards relaxation of the rules
on legal standing, as well as the transcendental issues involved in the
b. also nullify the acts of the President in calling out the armed forces to present Petitions, the Court will exercise judicial self-restraint 85 and will
quell lawless violence in Marawi and other parts of the Mindanao region. not venture into this matter. After all, "the Court is not entirely without
discretion to accept a suit which does not satisfy the requirements of
a [bona fide] case or of standing. Considerations paramount to [the
 50

requirement of legal standing] could compel assumption of of the Constitution or a statute. 90 It must appear clearly from the law or it
jurisdiction."86 In any case, the Court can take judicial cognizance of the will not be held to exist.91
fact that petitioners in the Lagman Petition are all citizens of the
Philippines since Philippine citizenship is a requirement for them to be A plain reading of the afore-quoted Section 18, Article VII reveals that it
elected as representatives. We will therefore consider them as suing in specifically grants authority to the Court to determine the sufficiency of
their own behalf as citizens of this country. Besides, respondents did not the factual basis of the proclamation of martial law or suspension of the
question petitioners' legal standing. privilege of the writ of habeas corpus.

II. Whether or not the petitions are the b) "In an appropriate

"appropriate proceeding" covered by paragraph proceeding" does not refer to a
3, Section 18, Article VII of the Constitution petition for certiorari filed under
sufficient to invoke the mode of review required Section 1 or 5 of Article VIII
by the Court.
It could not have been the intention of the framers of the Constitution that
All three petitions beseech the cognizance of this Court based on the the phrase "in an appropriate proceeding" would refer to a Petition
third paragraph of Section 18, Article VII (Executive Department) of the for Certiorari pursuant to Section 1 or Section 5 of Article VIII. The
1987 Constitution which provides: standard of review in a petition for certiorari is whether the respondent
has committed any grave abuse of discretion amounting to lack or excess
The Supreme Court may review, in an appropriate proceeding filed by of jurisdiction in the performance of his or her functions. Thus, it is not the
any citizen, the sufficiency of the factual basis of the proclamation of proper tool to review the sufficiency of the factual basis of the
martial law or the suspension of the privilege of the writ or the extension proclamationor suspension. It must be emphasized that under Section
thereof, and must promulgate its decision thereon within thirty days from 18, Article VII, the Court is tasked to review the sufficiency of
its filing. the factual basis of the President's exercise of emergency powers. Put
differently, if this Court applies the standard of review used in a petition
During the oral argument, the petitioners theorized that the jurisdiction of for certiorari, the same would emasculate its constitutional task under
this Court under the third paragraph of Section 18, Article VII is sui Section 18, Article VII.
generis.87 It is a special and specific jurisdiction of the Supreme Court
different from those enumerated in Sections 1 and 5 of Article VIII. 88 c) Purpose/significance of
Section 18, Article VII is to
The Court agrees. constitutionalize the pre-Marcos
martial law ruling in In the Matter of
a) Jurisdiction must be the Petition for Habeas Corpus of Lansang.
specifically conferred by the
Constitution or by law. The third paragraph of Section 18, Article VII was inserted by the framers
of the 1987 Constitution to constitutionalize the pre-Marcos martial law
It is settled that jurisdiction over the subject matter is conferred only by ruling of this Court in In the Matter of the Petition for Habeas Corpus of
the Constitution or by the law. 89 Unless jurisdiction has Lansang,92 to wit: that the factual basis of the declaration of martial law or
been specifically conferred by the Constitution or by some legislative act, the suspension of the privilege of the writ of habeas corpus is not a
no body or tribunal has the power to act or pass upon a matter brought political question but precisely within the ambit of judicial review.
before it for resolution. It is likewise settled that in the absence of
a clear legislative intent, jurisdiction cannot be implied from the language
 51

"In determining the meaning, intent, and purpose of a law or d) Purpose of Section 18,
constitutional provision, the history of the times out of which it grew and Article VII is to provide additional
to which it may be rationally supposed to bear some direct relationship, safeguard against possible abuse by
the evils intended to be remedied, and the good to be accomplished are the President on the exercise of the
proper subjects of inquiry."93 Fr. Joaquin G. Bernas, S.J. (Fr. Bernas), a extraordinary powers.
member of the Constitutional Commission that drafted the 1987
Constitution, explained: Section 18, Article VII is meant to provide additional safeguard against
possible abuse by the President in the exercise of his power to declare
The Commander-in-Chief provisions of the 1935 Constitution had martial law or suspend the privilege of the writ of habeas corpus. Reeling
enabled President Ferdinand Marcos to impose authoritarian rule on the from the aftermath of the Marcos martial law, the framers of the
Philippines from 1972 to 1986. Supreme Court decisions during that Constitution deemed it wise to insert the now third paragraph of Section
period upholding the actions taken by Mr. Marcos made authoritarian rule 18 of Article VII.99 This is clear from the records of the Constitutional
part of Philippine constitutional jurisprudence. The members of the Commission when its members were deliberating on whether the
Constitutional Commission, very much aware of these facts, went about President could proclaim martial law even without the concurrence of
reformulating the Commander-in-Chief powers with a view to dismantling Congress. Thus:
what had been constructed during the authoritarian years. The new
formula included revised grounds for the activation of emergency powers, MR. SUAREZ. Thank you, Madam President.
the manner of activating them, the scope of the powers, and review of
presidential action.94 (Emphasis supplied) The Commissioner is proposing a very substantial amendment because
this means that he is vesting exclusively unto the President the right to
To recall, the Court held in the 1951 case of Montenegro v. determine the factors which may lead to the declaration of martial law
Castaneda95 that the authority to decide whether there is a state of and the suspension of the writ of habeas corpus. I suppose he has strong
rebellion requiring the suspension of the privilege of the writ of habeas and compelling reasons in seeking to delete this particular, phrase. May
corpus is lodged with the President and his decision thereon is final and we be informed of his good and substantial reasons?
conclusive upon the courts. This ruling was reversed in the 1971 case
of Lansang where it was held that the factual basis of the declaration of MR. MONSOD. This situation arises in cases of invasion or rebellion.
martial law and the suspension of the privilege of the writ of habeas And in previous interpellations regarding this phrase, even during the
corpus is not a political question and is within the ambit of judicial discussions on the Bill of Rights, as I understand it, the interpretation is a
review.96 However, in 1983, or after the declaration of martial law by situation of actual invasion or rebellion. In these situations, the President
former President Ferdinand E. Marcos, the Court, in Garcia-Padilla v. has to act quickly. Secondly, this declaration has a time fuse. It is only
Enrile,97 abandoned the ruling in Lansang and reverted good for a maximum of 60 days. At the end of 60 days, it automatically
to Montenegro. According to the Supreme Court, the constitutional power terminates. Thirdly, the right of the judiciary to inquire into the sufficiency
of the President to suspend the privilege of the writ of habeas corpus is of the factual basis of the proclamation always exists, even during those
not subject to judicial inquiry.98 first 60 days.

Thus, by inserting Section 18 in Article VII which allows judicial review of MR. SUAREZ. Given our traumatic experience during the past
the declaration of martial law and suspension of the privilege of the writ administration, if we give exclusive right to the President to determine
of habeas corpus, the framers of the 1987 Constitution in effect these factors, especially the existence of an invasion or rebellion and the
constitutionalized and reverted to the Lansang doctrine. second factor of determining whether the public safety requires it or not,
may I call the attention of the Gentleman to what happened to us during
the past administration. Proclamation No. 1081 was issued by Ferdinand
 52

E. Marcos in his capacity as President of the Philippines by virtue of the extension thereof and must promulgate its decision on the same within
powers vested upon him purportedly under Article VII, Section 10 (2) of 30 days from its filing.
the Constitution, wherein he made this predicate under the "Whereas"
provision: I believe that there are enough safeguards. The Constitution is supposed
to balance the interests of the country. And here we are trying to balance
Whereas, the rebellion and armed action undertaken by these lawless the public interest in case of invasion or rebellion as against the rights of
elements of the Communists and other armed aggrupations organized to citizens. And I am saying that there are enough safeguards, unlike in
overthrow the Republic of the Philippines by armed violence and force 1972 when Mr. Marcos was able to do all those things mentioned. 100
have assumed the magnitude of an actual state of war against our people
and the Republic of the Philippines. To give more teeth to this additional safeguard, the framers of the 1987
Constitution not only placed the President's proclamation of martial law or
And may I also call the attention of the Gentleman to General Order No. suspension of the privilege of the writ of habeas corpus within the ambit
3, also promulgated by Ferdinand E. Marcos, in his capacity as of judicial review, it also relaxed the rule on standing by allowing any
Commander-in-Chief of all the Armed Forces of the Philippines and citizen to question before this Court the sufficiency of the factual basis of
pursuant to Proclamation No. 1081 dated September 21, 1972 wherein such proclamation or suspension. Moreover, the third paragraph of
he said, among other things: Section 18, Article VII veritably conferred upon any citizen a demandable
right to challenge the sufficiency of the factual basis of said proclamation
Whereas, martial law having been declared because of wanton or suspension. It further designated this Court as the reviewing tribunal to
destruction of lives and properties, widespread lawlessness and anarchy examine, in an appropriate proceeding, the sufficiency of the factual
and chaos and disorder now prevailing throughout the country, which basis and to render its decision thereon within a limited period of 30 days
condition has been brought about by groups of men who are actively from date of filing.
engaged in a criminal conspiracy to seize political and state power in the
Philippines in order to take over the government by force and violence, e) Purpose of Section 18,
the extent of which has now assumed the proportion of an actual war Article VII is to curtail the extent of
against our people and the legitimate government ... the powers of the President.

And he gave all reasons in order to suspend the privilege of the writ The most important objective, however, of Section 18, Article VII is the
of habeas corpus and declare martial law in our country without justifiable curtailment of the extent of the powers of the Commander-in-Chief. This
reason. Would the Gentleman still insist on the deletion of the phrase is the primary reason why the provision was not placed in Article VIII or
'and, with the concurrence of at least a majority of all the members of the the Judicial Department but remained under Article VII or the Executive
Congress'? Department.

MR. MONSOD. Yes, Madam President, in the case of Mr.Marcos, he is During the closing session of the Constitutional Commission's
undoubtedly an aberration in our history and national consciousness. But deliberations, President Cecilia Muñoz Palma expressed her sentiments
given the possibility that there would be another Marcos, our Constitution on the 1987 Constitution. She said:
now has sufficient safeguards. As I said, it is not really true, as the
Gentleman has mentioned, that there is an exclusive right to determine The executive power is vested in the President of the Philippines elected
the factual basis because the paragraph beginning on line 9 precisely by the people for a six-year term with no reelection for the duration of
tells us that the Supreme Court may review, in an appropriate proceeding his/her life. While traditional powers inherent in the office of the President
filed by any citizen, the sufficiency of the factual basis of the proclamation are granted, nonetheless for the first time, there are specific provisions
of martial law or the suspension of the privilege of the writ or the which curtail the extent of such powers. Most significant is the power of
 53

the Chief Executive to suspend the privilege of the writ of habeas The jurisdiction of this Court is not restricted to those enumerated in
corpus or proclaim martial law. Sections 1 and 5 of Article VIII. For instance, its jurisdiction to be the sole
judge of all contests relating to the election, returns, and qualifications of
The flagrant abuse of that power of the Commander-in-Chief by Mr. the President or Vice-President can be found in the last paragraph of
Marcos caused the imposition of martial law for more than eight years Section 4, Article VII.102 The power of the Court to review on certiorari the
and the suspension of the privilege of the writ even after the lifting of decision, order, or ruling of the Commission on Elections and
martial law in 1981. The new Constitution now provides that those Commission on Audit can be found in Section 7, Article IX(A). 103
powers can be exercised only in two cases, invasion or rebellion when
public safety demands it, only for a period not exceeding 60 days, and h) Unique features of the third
reserving to Congress the power to revoke such suspension or paragraph of Section 18, Article VII
proclamation of martial law which congressional action may not be make it sui generis.
revoked by the President. More importantly, the action of the President is
made subject to judicial review, thereby again discarding jurisprudence The unique features of the third paragraph of Section 18, Article VII
which render[s] the executive action a political question and beyond the clearly indicate that it should be treated as sui generis separate and
jurisdiction of the courts to adjudicate. different from those enumerated in Article VIII. Under the third paragraph
of Section 18, Article VII, a petition filed pursuant therewith will follow a
For the first time, there is a provision that the state of martial law does not different rule on standing as any citizen may file it. Said provision of the
suspend the operation of the Constitution nor abolish civil courts or Constitution also limits the issue to the sufficiency of the factual basis of
legislative assemblies, or vest jurisdiction to military tribunals over the exercise by the Chief Executive of his emergency powers. The usual
civilians, or suspend the privilege of the writ. Please forgive me if, at this period for filing pleadings in Petition for Certiorari is likewise not
point, I state that this constitutional provision vindicates the dissenting applicable under the third paragraph of Section 18, Article VII considering
opinions I have written during my tenure in the Supreme Court in the the limited period within which this Court has to promulgate its decision.
martial law cases.101
A proceeding "[i]n its general acceptation, [is] the form in which actions
f) To interpret "appropriate are to be brought and defended, the manner of intervening in suits, of
proceeding" as filed under Section 1 conducting them, the mode of deciding them, of opposing judgments, and
of Article VIII would be contrary to of executing."104In fine, the phrase "in an appropriate proceeding"
the intent of the Constitution. appearing on the third paragraph of Section 18, Article VII refers to any
action initiated by a citizen for the purpose of questioning the sufficiency
To conclude that the "appropriate proceeding" refers to a Petition of the factual basis of the exercise of the Chief Executive's emergency
for Certiorari filed under the expanded jurisdiction of this Court would, powers, as in these cases. It could be denominated as a complaint, a
therefore, contradict the clear intention of the framers of the Constitution petition, or a matter to be resolved by the Court.
to place additional safeguards against possible martial law abuse for,
invariably, the third paragraph of Section 18, Article VII would be III. The power of the Court to review the
subsumed under Section 1 of Article VIII. In other words, the framers of sufficiency of the factual basis of the
the Constitution added the safeguard under the third paragraph of proclamation of martial law or the suspension of
Section 18, Article VII on top of the expanded jurisdiction of this Court. the privilege of the writ of habeas corpus under
Section 18, Article VII of the 1987 Constitution is
g) Jurisdiction of the Court is independent of the actions taken by Congress.
not restricted to those enumerated in
Sections I and 5 of Article VIII
 54

During the oral argument, 105 the OSG urged the Court to give! deference Thus, the power to review by the Court and the power to revoke by
to the actions of the two co-equal branches of the Government: on' the Congress are not only totally different but likewise independent from each
part of the President as Commander-in-Chief, in resorting to his other although concededly, they have the same trajectory, which is, the
extraordinary powers to declare martial law and suspend the privilege of nullification of the presidential proclamation. Needless to say, the power
the writ of habeas corpus; and on the part of Congress, in giving its of the Court to review can be exercised independently from the power of
imprimatur to Proclamation No. 216 and not revoking the same. revocation of Congress.

The framers of the 1987 Constitution reformulated the scope of the b) The framers of the 1987
extraordinary powers of the President as Commander-in-Chief and the Constitution intended the judicial
review of the said presidential action. In particular, the President's power to review to be exercised
extraordinary powers of suspending the privilege of the writ of habeas independently from the congressional
corpus and imposing martial law are subject to the veto powers of the power to revoke.
Court and Congress.
If only to show that the intent of the framers of the 1987 Constitution was
a) The judicial power to review to vest the Court and Congress with veto powers independently from
versus the congressional power to each other, we quote the following exchange:
revoke.
MS. QUESADA. Yesterday, the understanding of many was that there
The Court may strike down the presidential proclamation in an would be safeguards that Congress will be able to revoke such
appropriate proceeding filed by any citizen on the ground of lack of proclamation.
sufficient factual basis. On the other hand, Congress may revoke the
proclamation or suspension, which revocation shall not be set aside by MR. RAMA. Yes.
the President.
MS. QUESADA. But now, if they cannot meet because they have been
In reviewing the sufficiency of the factual basis of the proclamation or arrested or that the Congress has been padlocked, then who is going to
suspension, the Court considers only the information and data available declare that such a proclamation was not warranted?
to the President prior to or at the time of the declaration; it is not allowed
td "undertake an independent investigation beyond the pleadings." 106 On xxxx
the other hand, Congress may take into consideration not only data
available prior to, but likewise events supervening the declaration. Unlike
MR. REGALADO. May I also inform Commissioner Quesada that the
the Court I which does not look into the absolute correctness of the
judiciary is not exactly just standing by. A petition for a writ of habeas
factual basis as will be discussed below, Congress could probe deeper
corpus, if the Members are detained, can immediately be applied for, and
and further; it can delve into the accuracy of the facts presented before it.
the Supreme Court shall also review the factual basis. x x x 107
In addition, the Court's review power is passive; it is only initiated by the
c) Re-examination of the
filing of a petition "in an appropriate proceeding" by a citizen. On the
Court's pronouncement in Fortun v.
other hand, Congress' review mechanism is automatic in the sense that it
President Macapagal-Arroyo
may be activated by Congress itself at any time after the proclamation or
suspension was made.
 55

Considering the above discussion, the Court finds it imperative to re- The President as the Commander-in-Chief wields the extraordinary
examine, reconsider, and set aside its pronouncement in Fortun v. powers of: a) calling out the armed forces; b) suspending the privilege of
President Macapagal-Arroyo108 to the effect that: the writ of habeas corpus; and c) declaring martial law. 112 These powers
may be resorted to only under specified conditions.
Consequently, although the Constitution reserves to the Supreme Court
the power to review the sufficiency of the factual basis of the The framers of the 1987 Constitution reformulated the powers of the
proclamation or suspension in a proper suit, it is implicit that the Court Commander-in-Chief by revising the "grounds for the activation of
must allow Congress to exercise its own review powers, which is emergency powers, the manner of activating them, the scope of the
automatic rather than initiated. Only when Congress defaults in its powers, and review of presidential action."113
express duty to defend the Constitution through such review should the
Supreme Court step in as its final rampart. The constitutional validity of a) Extraordinary powers of the
the President's proclamation of martial law or suspension of the writ President distinguished.
of habeas corpus is first a political question in the hands of Congress
before it becomes a justiciable one in the hands of the Court. 109 Among the three extraordinary powers, the calling out power is the most
benign and involves ordinary police action. 114 The President may resort to
xxxx this extraordinary power whenever it becomes necessary to prevent or
suppress lawless violence, invasion, or rebellion. "[T]he power to call is
If the Congress procrastinates or altogether fails to fulfill its duty fully discretionary to the President;" 115 the only limitations being that he
respecting the proclamation or suspension within the short time expected acts within permissible constitutional boundaries or in a manner not
of it, then the Court can step in, hear the petitions challenging the constituting grave abuse of discretion. 116 In fact, "the actual use to which
President's action, and ascertain if it has a factual basis. x x x110 the President puts the armed forces is x x x not subject to judicial
review."117
By the above pronouncement, the Court willingly but unwittingly clipped
its own power and surrendered the same to Congress as well as: The extraordinary powers of suspending the privilege of the writ
abdicated from its bounden duty to review. Worse, the Court considered' of habeas corpus and/or declaring martial law may be exercised only
itself just on stand-by, waiting and willing to act as a substitute in case when there is actual invasion or rebellion, and public safety requires it.
Congress "defaults." It is an aberration, a stray declaration, which must The 1987 Constitution imposed the following limits in the exercise of
be rectified and set aside in this proceeding. 111 these powers: "(1) a time limit of sixty days; (2) review and possible
revocation by Congress; [and] (3) review and possible nullification by the
We, therefore, hold that the Court can simultaneously exercise its power Supreme Court."118
of review with, and independently from, the power to revoke by
Congress. Corollary, any perceived inaction or default on the part of The framers of the 1987 Constitution eliminated insurrection, and the
Congress does not deprive or deny the Court of its power to review. phrase "imminent danger thereof' as grounds for the suspension of the
privilege of the writ of habeas corpus or declaration of martial
IV. The judicial power to review the sufficiency law.119 They perceived the phrase "imminent danger" to be "fraught with
of factual basis of the declaration of martial law possibilities of abuse;"120 besides, the calling out power of the President
or the suspension of the privilege of the writ of "is sufficient for handling imminent danger." 121
habeas corpus does not extend to the calibration
of the President's decision of which among his The powers to declare martial law and to suspend the privilege of the writ
graduated powers he will avail of in a given of habeas corpus involve curtailment and suppression of civil rights and
situation. individual freedom. Thus, the declaration of martial law serves as a
 56

warning to citizens that the Executive Department has called upon the xxxx
military to assist in the maintenance of law and order, and while the
emergency remains, the citizens must, under pain of arrest and FR. BERNAS. This phrase was precisely put here because we have
punishment, not act in a manner that will render it more difficult to restore clarified the meaning of martial law; meaning, limiting it to martial law as it
order and enforce the law. 122 As such, their exercise requires more has existed in the jurisprudence in international law, that it is a law for the
stringent safeguards by the Congress, and review by the Court. 123 theater of war. In a theater of war, civil courts are unable to function. If in
the actual theater of war civil courts, in fact, are unable to function, then
b) What really happens during martial law? the military commander is authorized to give jurisdiction even over
civilians to military courts precisely because the civil courts are closed in
During the oral argument, the following questions cropped up: What that area. But in the general area where the civil courts are open then in
really happens during the imposition of martial law? What powers could no case can the military courts be given jurisdiction over civilians. This is
the President exercise during martial law that he could not exercise if in reference to a theater of war where the civil courts, in fact, are unable
there is no martial law? Interestingly, these questions were also to function.
discussed by the framers of the 1987 Constitution, viz.:
MR. FOZ. It is a state of things brought about by the realities of the
FR. BERNAS. That same question was asked during the meetings of the situation in that specified critical area.
Committee: What precisely does martial law add to the power of the
President to call on the armed forces? The first and second lines in this FR. BERNAS. That is correct.
provision state:
MR. FOZ. And it is not something that is brought about by a declaration
A state of martial law does not suspend the operation of the Constitution, of the Commander-in-Chief.
nor supplant the functioning of the civil courts or legislative assemblies...
FR. BERNAS. It is not brought about by a declaration of the Commander-
The provision is put there, precisely, to reverse the doctrine of the in-Chief. The understanding here is that the phrase 'nor authorize the
Supreme Court. I think it is the case of Aquino v. COMELEC where the conferment of jurisdiction on military courts and agencies over civilians'
Supreme Court said that in times of martial law, the President has reference to the practice under the Marcos regime where military
automatically has legislative power. So these two clauses denied that. A courts were given jurisdiction over civilians. We say here that we will
state of martial law does not suspend the operation of the Constitution; never allow that except in areas where civil courts are, in fact, unable to
therefore, it does not suspend the principle of separation of powers. function and it becomes necessary for some kind of court to function. 125

The question now is: During martial law, can the President issue A state of martial law is peculiar because the President, at such a time,
decrees? The answer we gave to that question in the Committee was: exercises police power, which is normally a function of the Legislature. In
During martial law, the President may have the powers of a commanding particular, the President exercises police power, with the military’s
general in a theatre of war. In actual war when there is fighting in an assistance, to ensure public safety and in place of government agencies
area, the President as the commanding general has the authority to issue which for the time being are unable to cope with the condition in a
orders which have the effect of law but strictly in a theater of war, not in locality, which remains under the control of the State. 126
the situation we had during the period of martial law. In other words,
there is an effort here to return to the traditional concept of martial law as In David v. President Macapagal-Arroyo,127 the Court, quoting Justice
it was developed especially in American jurisprudence, where martial law Vicente V. Mendoza's (Justice Mendoza) Statement before the Senate
has reference to the theater of war.124 Committee on Justice on March 13, 2006, stated that under a valid
declaration of martial law, the President as Commander-in-Chief may
 57

order the "(a) arrests and seizures without judicial warrants; (b) ban on President. The power to choose, initially, which among these
public assemblies; (c) [takeover] of news media and agencies and press extraordinary powers to wield in a given set of conditions is a judgment
censorship; and (d) issuance of Presidential Decrees x x x".128 call on the part of the President. As Commander-in-Chief, his powers are
broad enough to include his prerogative to address exigencies or threats
Worthy to note, however, that the above-cited acts that the President that endanger the government, and the very integrity of the State. 132
may perform do not give him unbridled discretion to infringe on the rights
of civilians during martial law. This is because martial law does not It is thus beyond doubt that the power of judicial review does not extend
suspend the operation of the Constitution, neither does it supplant the to calibrating the President's decision pertaining to which extraordinary
operation of civil courts or legislative assemblies. Moreover, the power to avail given a set of facts or conditions. To do so would be
guarantees under the Bill of Rights remain in place during its pendency. tantamount to an incursion into the exclusive domain of the Executive
And in such instance where the privilege of the writ of habeas corpus is and an infringement on the prerogative that solely, at least initially, lies
also suspended, such suspension applies only to those judicially charged with the President.
with rebellion or offenses connected with invasion. 129
d) The framers of the 1987
Clearly, from the foregoing, while martial law poses the most severe Constitution intended the Congress
threat to civil liberties,130 the Constitution has safeguards against the not to interfere a priori in the
President's prerogative to declare a state of martial law. decision-making process of the
President.
c) "Graduation" of powers
refers to hierarchy based on scope The elimination by the framers of the 1987 Constitution of the
and effect; it does not refer to a requirement of prior concurrence of the Congress in the initial imposition
sequence, order, or arrangement by of martial law or suspension of the privilege of the writ of habeas
which the Commander-in-Chief must corpus further supports the conclusion that judicial review does not
adhere to. include the calibration of the President's decision of which of his
graduated powers will be availed of in a given situation. Voting 28 to 12,
Indeed, the 1987 Constitution gives the "President, as Commander-in- the framers of the 1987 Constitution removed the requirement of
Chief, a 'sequence' of 'graduated power[s]'. From the most to the least congressional concurrence in the first imposition of martial law and
benign, these are: the calling out power, the power to suspend the suspension of the privilege.133
privilege of the writ of habeas corpus, and the power to declare martial
law."131 It must be stressed, however, that the graduation refers only to MR. PADILLA.x x x
hierarchy based on scope and effect. It does not in any manner refer to a
sequence, arrangement, or order which the Commander-in-Chief must We all agree with the suspension of the writ or the proclamation of martial
follow. This so-called "graduation of powers" does not dictate or restrict law should not require beforehand the concurrence of the majority of the
the manner by which the President decides which power to choose. Members of the Congress. However, as provided by the Committee, the
Congress may revoke, amend, or shorten or even increase the period of
These extraordinary powers are conferred by the Constitution with the such suspension.134
President as Commander-in-Chief; it therefore necessarily follows that
the power and prerogative to determine whether the situation warrants a xxxx
mere exercise of the calling out power; or whether the situation demands
suspension of the privilege of the writ of habeas corpus; or whether it MR. NATIVIDAD. First and foremost, we agree with the Commissioner's
calls for the declaration of martial law, also lies, at least initially, with the thesis that in the first imposition of martial law there is no need for
 58

concurrence of the Members of Congress because the provision says 'in MR. SUAREZ. x x x
case of actual invasion or rebellion.' If there is actual invasion and
rebellion, as Commissioner Crispino de Castro said, there is a need for The Commissioner is proposing a very substantial amendment because
immediate response because there is an attack. Second, the fact of this means that he is vesting exclusively unto the President the right to
securing a concurrence may be impractical because the roads might be determine the factors which may lead to the declaration of martial law
blocked or barricaded. x x x So the requirement of an initial concurrence and the suspension of the writ of habeas corpus. I suppose he has strong
of the majority of all Members of the Congress in case of an invasion or and compelling reasons in seeking to delete this particular phrase. May
rebellion might be impractical as I can see it. we be informed of his good and substantial reasons?

Second, Section 15 states that the Congress may revoke the declaration MR. MONSOD. This situation arises in cases of invasion or rebellion.
or lift the suspension. And in previous interpellations regarding this phrase, even during the
discussions on the Bill of Rights, as I understand it, the interpretation is a
And third, the matter of declaring martial law is already a justiciable situation of actual invasion or rebellion. In these situations, the President
question and no longer a political one in that it is subject to judicial review has to act quickly. Secondly, this declaration has a time fuse. It is only
at any point in time. So on that basis, I agree that there is no need for good for a maximum of 60 days. At the end of 60 days, it automatically
concurrence as a prerequisite to declare martial law or to suspend the terminates. Thirdly, the right of the judiciary to inquire into the sufficiency
privilege of the writ of habeas corpus. x x x135 of the factual basis of the proclamation always exists, even during those
first 60 days.
xxxx
xxxx
MR. SUAREZ. Thank you.
MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos[,] he is
The Commissioner is suggesting that in connection with Section 15, we undoubtedly an aberration in our history and national consciousness. But
delete the phrase 'and, with the concurrence of at least a majority of all given the possibility that there would be another Marcos, our Constitution
the Members of the Congress...' now has sufficient safeguards. As I said, it is not really true, as the
Gentleman mentioned, that there is an exclusive right to determine the
MR. PADILLA. That is correct especially for the initial suspension of the factual basis because the paragraph being on line 9 precisely tells us that
privilege of the writ of habeas corpus or also the declaration of martial the Supreme court may review, in an appropriate proceeding filed by any
law. citizen, the sufficiency of the factual basis of the proclamation of martial
law or the suspension of the privilege of the writ or the extension thereof
and must promulgate its decision on the same within 30 days from its
MR. SUAREZ. So in both instances, the Commissioner is suggesting that
filing.
this would be an exclusive prerogative of the President?
I believe that there are enough safeguards. The Constitution is supposed
MR. PADILLA. At least initially, for a period of 60 days. But even that
to balance the interests of the country. And here we are trying to balance
period of 60 days may be shortened by the Congress or the Senate
the public interest in case of invasion or rebellion as against the rights of
because the next sentence says that the Congress or the Senate may
citizens. x x x
even revoke the proclamation.136
MR. SUAREZ. Will that prevent a future President from doing what Mr.
xxxx
Marcos had done?
 59

MR. MONSOD. There is nothing absolute in this world, and there may be powers to avail given a certain
another Marcos. What we are looking for are safeguards that situation or condition.
arereasonable and, I believe, adequate at this point. On the other hand,
in case of invasion or rebellion, even during the first 60 days when the It cannot be overemphasized that time is paramount in situations
intention here is to protect the country in that situation, it would be necessitating the proclamation of martial law or suspension of the
unreasonable to ask that there should be a concurrence on the part of privilege of the writ of habeas corpus. It was precisely this time element
the Congress, which situation is automatically terminated at the end of that prompted the Constitutional Commission to eliminate the
such 60 days. requirement of 1 concurrence of the Congress in the initial imposition by
the President of martial law or suspension of the privilege of the writ
xxxx of habeas corpus.

MR. SUAREZ. Would the Gentleman not feel more comfortable if we Considering that the proclamation of martial law or suspension of the
provide for a legislative check on this awesome power of the Chief privilege of the writ of habeas corpus is now anchored on actual invasion
Executive acting as Commander-in-Chief? or rebellion and when public safety requires it, and is no longer under
threat or in imminent danger thereof, there is a necessity and urgency for
MR. MONSOD. I would be less comfortable if we have a presidency that the President to act quickly to protect the country. 138The Court, as
cannot act under those conditions. Congress does, must thus accord the President the same leeway by not
wading into the realm that is reserved exclusively by the Constitution to
MR. SUAREZ. But he can act with the concurrence of the proper or the Executive Department.
appropriate authority?
j) The recommendation of the
MR. MONSOD. Yes. But when those situations arise, it is very unlikely Defense Secretary is not a condition
that the concurrence of Congress would be available; and, secondly, the for the declaration of martial law or
President will be able to act quickly in order to deal with the suspension of the privilege of the writ
circumstances. of habeas corpus.

MR. SUAREZ. So, we would be subordinating actual circumstances to Even the recommendation of, or consultation with, the Secretary of
expediency? National Defense, or other high-ranking military officials, is not a
condition for the President to declare martial law. A plain reading of
Section 18, Article VII of the Constitution shows that the President's
MR. MONSOD. I do not believe it is expediency when one is trying to
power to declare martial law is not subject to any condition except for the
protect the country in the event of an invasion or a rebellion. 137
requirements of actual invasion or rebellion and that public safety
requires it. Besides, it would be contrary to common sense if the decision
The foregoing exchange clearly manifests the intent of the Constitution of the President is made dependent on the recommendation of his mere
not to allow Congress to interfere a priori in the President's choice of alter ego. Rightly so, it is only on the President and no other that the
extraordinary powers. exercise of the powers of the Commander-in-Chief under Section 18,
Article VII of the Constitution is bestowed.
e) The Court must similarly
and necessarily refrain from g) In any event, the President
calibrating the President's decision of initially employed the most benign
which among his extraordinary action - the calling out power -
 60

before he declared martial law and The void-for-vagueness doctrine holds that a law is facially invalid if "men
suspended the privilege of the writ of of common intelligence must necessarily guess at its meaning and differ
habeas corpus. as to its application."140 "[A] statute or act may be said to be vague when
it lacks comprehensible standards that men of common intelligence must
At this juncture, it must be stressed that prior to Proclamation No. 216 or necessarily guess at its meaning and differ in its application. [In such
the declaration of martial law on May 23, 201 7, the President had instance, the statute] is repugnant to the Constitution in two respects: (1)
already issued Proclamation No. 55 on September 4, 2016, declaring a it violates due process for failure to accord persons, especially the parties
state of national emergency on account of lawless violence in Mindanao. targeted by it, fair notice of the conduct to avoid; and (2) it leaves law
This, in fact, is extant in the first Whereas Clause of Proclamation No. enforcers unbridled discretion in carrying out its provisions and becomes
216. Based on the foregoing presidential actions, it can be gleaned that an arbitrary flexing of the Government muscle." 141
although there is no obligation or requirement on his part to use his
extraordinary powers on a graduated or sequential basis, still the b) Vagueness doctrine applies
President made the conscious anddeliberate effort to first employ the only in free speech cases.
most benign from among his extraordinary powers. As the initial and
preliminary step towards suppressing and preventing the armed The vagueness doctrine is an analytical tool developed for testing "on
hostilities in Mindanao, the President decided to use his calling out power their faces" statutes in free speech cases or, as they are called in
first. Unfortunately, the situation did not improve; on the contrary, it only American law, First Amendment cases.142 A facial challenge is allowed to
worsened. Thus, exercising his sole and exclusive prerogative, the be made to a vague statute and also to one which is overbroad because
President decided to impose martial law and suspend the privilege of the of possible "'chilling effect' on protected speech that comes from statutes
writ of habeas corpus on the belief that the armed hostilities in Mindanao violating free speech. A person who does not know whether his speech
already amount to actual rebellion and public safety requires it. constitutes a crime under an overbroad or vague law may simply restrain
himself from speaking in order to avoid being charged of a crime. The
V. Whether or not Proclamation No. 216 may overbroad or vague law thus chills him into silence." 143
be considered vague and thus void because of (a)
its inclusion of "other rebel groups"; and (b) the It is best to stress that the vagueness doctrine has a special application
absence of any guideline specifying its actual only to free-speech cases. They are not appropriate for testing the
operational parameters within the entire validity of penal statutes.144 Justice Mendoza explained the reason as
Mindanao region. follows:

Proclamation No. 216 is being facially challenged on the ground of A facial challenge is allowed to be made to a vague statute and to one
"vagueness" by the insertion of the phrase "other rebel groups" 139 in its which is overbroad because of possible 'chilling effect' upon protected
Whereas Clause and for lack of available guidelines specifying its actual speech. The theory is that ' [w]hen statutes regulate or proscribe speech
operational parameters within the entire Mindanao region, making the and no readily apparent construction suggests itself as a vehicle for
proclamation susceptible to broad interpretation, misinterpretation, or rehabilitating the statutes in a single prosecution, the transcendent value
confusion. to all society of constitutionally protected expression is deemed to justify
allowing attacks on overly broad statutes with no requirement that the
This argument lacks legal basis. person making the attack demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity.' The possible harm
a) Void-for-vagueness doctrine. to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be
 61

deterred and perceived grievances left to fester because of possible speech, religious freedom, and other fundamental rights that may be
inhibitory effects of overly broad statutes. facially challenged.148 What it seeks to penalize is conduct, not speech.

This rationale does not apply to penal statutes. Criminal statutes have As held by the Court in David v. President Macapagal-Arroyo,149 the facial
general in terrorem effect resulting from their very existence, and, if facial review of Proclamation No. 1017, issued by then President Gloria
challenge is allowed for this reason alone, the State may well be Macapagal-Arroyo declaring a state of national emergency, on ground o
prevented from enacting laws against socially harmful conduct. In the vagueness is uncalled for since a plain reading of Proclamation No.
area of criminal law, the law cannot take chances as in the area of free 10171 shows that it is not primarily directed at speech or even speech-
speech. related1 conduct. It is actually a call upon the Armed Forces of the
Philippines (AFP) to prevent or suppress all forms of lawless violence.
xxxx Like Proclamation No. 1017, Proclamation No. 216 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are regulation.
analytical tools developed for testing 'on their faces' statutes in free
speech cases or, as they are called in American law, First Amendment d) Inclusion of "other rebel
cases. They cannot be made to do service when what is involved is a groups " does not make Proclamation
criminal statute. With respect to such statute, the established rule is No.216 vague.
that'one to whom application of a statute is constitutional will not be heard
to attack the statute on the ground that impliedly it might also be taken as The contention that the phrase "other rebel groups" leaves Proclamation
applying to other persons or other situations in which its application might No. 216 open to broad interpretation, misinterpretation, and confusion,
be unconstitutional.' As has been pointed out, 'vagueness challenges in cannot be sustained.
the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found vague as a matter of due In People v. Nazario,150 the Court enunciated that:
process typically are invalidated [only] 'as applied' to a particular
defendant.' x x x145 As a rule, a statute or act may be said to be vague when it lacks
comprehensible standards that men 'of common intelligence must
Invalidation of statutes "on its face" should be used sparingly because it necessarily guess at its meaning and differ as to its application.' It is
results in striking down statutes entirely on the ground that they might repugnant to the Constitution in two respects: (1) it violates due process
beapplied to parties not before the Court whose activities are for failure to accord persons, especially the parties targetted by it, fair
constitutionally protected.146 "Such invalidation would constitute a notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
departure from the usual requirement of 'actual case and controversy' discretion in carrying out its provisions and becomes an arbitrary flexing
and permit decisions to be made in a sterile abstract context having no of the Government muscle.
factual concreteness."147
But the act must be utterly vague on its face, that is to say, it cannot be
c) Proclamation No. 216 clarified by either a saving clause or by construction. Thus, in Coates v.
cannot be facially challenged using City of Cincinnati, the U.S. Supreme Court struck down an ordinance that
the vagueness doctrine. had made it illegal for 'three or more persons to assemble on any
sidewalk and there conduct themselves in a manner annoying to persons
Clearly, facial review of Proclamation No. 216 on the grounds of passing by.' Clearly, the ordinance imposed no standard at all 'because
vagueness is unwarranted. Proclamation No. 216 does not regulate one may never know in advance what annoys some people but does not
annoy others.'
 62

Coates highlights what has been referred to as a 'perfectly vague' act quell lawless violence in Marawi and other parts
whose obscurity is evident on its face. It is to be distinguished, however, of the Mindanao region.
from legislation couched in imprecise language - but which nonetheless
specifies a standard though defectively phrased - in which case, it may a) The calling out power is in a
be 'saved' by proper construction.151 different category from the power to
declare martial law and the power to
The term "other rebel groups" in Proclamation No. 216 is not at all vague suspend the privilege of the writ of
when viewed in the context of the words that accompany it. Verily, the habeas corpus; nullification of
text of Proclamation No. 216 refers to "other rebel groups" found in Proclamation No. 216 will not affect
Proclamation No. 55, which it cited by way of reference in its Whereas Proclamation No. 55.
clauses.
The Court's ruling in these cases will not, in any way, affect the
e) Lack of guidelines/ President's declaration of a state of national emergency on account of
operational parameters does not lawless violence in Mindanao through Proclamation No. 55 dated
make Proclamation No. 216 vague. September 4, 2016, where he called upon the Armed Forces and the
Philippine National 1 Police (PNP) to undertake such measures to
Neither could Proclamation No. 216 be described as vague, and thus suppress any and all forms of lawless violence in the Mindanao region,
void, on the ground that it has no guidelines specifying its actual and to prevent such lawless violence from spreading and escalating
operational parameters within the entire Mindanao region. Besides, elsewhere in the Philippines.
operational guidelines will serve only as mere tools for the
implementation of the proclamation. In Part III, we declared that judicial In Kulayan v. Tan,152 the Court ruled that the President's calling out power
review covers only the sufficiency of information or data available to or is in a different category from the power to suspend the privilege of the
known to the President prior to, or at the time of, the declaration or writ of habeas corpus and the power to declare martial law:
suspension. And, as will be discussed exhaustively in Part VII, the review
will be confined to the proclamation itself and the Report submitted to x x x Congress may revoke such proclamation or suspension and the
Congress. Court may review the sufficiency of the factual basis thereof. However,
there is no such equivalent provision dealing with the revocation or
Clearly, therefore, there is no need for the Court to determine the review of the President's action to call out the armed forces. The
constitutionality of the implementing and/or operational guidelines, distinction places the calling out power in a different category from the
general orders, arrest orders and other orders issued after the power to declare martial law and the power to suspend the privilege of
proclamation for being irrelevant to its review. Thus, any act committed the writ of habeas corpus, otherwise, the framers of the Constitution
under the said orders in violation of the Constitution and the laws, such would have simply lumped together the three powers and provided for
as criminal acts or human rights violations, should be resolved in a their revocation and review without any qualification. 153
separate proceeding. Finally, there is a risk that if the Court wades into
these areas, it would be deemed as trespassing into the sphere that is In other words, the President may exercise the power to call out the
reserved exclusively for Congress in the exercise of its power to revoke. Armed Forces independently of the power to suspend the privilege of the
writ of habeas corpus and to declare martial law, although, of course, it
VI. Whether or not nullifying Proclamation No. may also be a prelude to a possible future exercise of the latter powers,
216 will (a) have the effect of recalling as in this case.
Proclamation No. 55; or (b) also nullify the acts
of the President in calling out the armed forces to
 63

Even so, the Court's review of the President's declaration of martial law Constitution, the former shall be void and the latter shall govern.
and his calling out the Armed Forces necessarily entails separate Administrative or executive acts, orders and regulations shall be valid
proceedings instituted for that particular purpose. only when they are not contrary to the laws or the Constitution.' The
above provision of the Civil Code reflects the orthodox view that an
As explained in Integrated Bar of the Philippines v. Zamora, 154 the unconstitutional act, whether legislative or executive, is not a law, confers
President's exercise of his power to call out the armed forces to prevent no rights, imposes no duties, and affords no protection. This doctrine
or suppress lawless violence, invasion or rebellion may only be examined admits of qualifications, however. As the American Supreme Court
by the Court as to whether such power was exercised within permissible stated: 'The actual existence of a statute prior to such a determination [of
constitutional limits or in a manner constituting grave abuse of constitutionality], is an operative fact and may have consequences which
discretion.155 cannot always be erased by a new judicial declaration. The effect of the
subsequent ruling as to the invalidity may have to be considered in
In Zamora, the Court categorically ruled that the Integrated Bar of the ' various aspects, - with respect to particular regulations, individual and
Philippines had failed to sufficiently comply with the requisites of locus corporate, and particular conduct, private and official.
standi, as it was not able to show any specific injury which it had suffered
or could suffer by virtue of President Joseph Estrada's order deploying The orthodox view finds support in the well-settled doctrine that the
the Philippine Marines to join the PNP in visibility patrols around the Constitution is supreme and provides the measure for the validity of
metropolis.156 legislative or executive acts. Clearly then, neither the legislative nor the
executive branch, and for that matter much less, this Court, has power
This locus standi requirement, however, need not be complied with in so under the Constitution to act contrary to its terms. Any attempted
far as the Court's jurisdiction to review the sufficiency of the factual basis exercise of power in violation of its provisions is to that extent
of the President's declaration of martial law or suspension of the privilege unwarranted and null.
ofthe writ of habeas corpus is concerned. In fact, by constitutional design,
such review may be instituted by any citizen before the Court,157 without The growing awareness of the role of the judiciary as the governmental
the need to prove that he or she stands to sustain a direct and personal organ which has the final say on whether or not a legislative or executive
injury as a consequence of the questioned Presidential act/s. measure is valid leads to a more appreciative attitude of theemerging
concept that a declaration of nullity may have legal consequences which
But, even assuming arguendo that the Court finds no sufficient basis for the more orthodox view would deny. That for a period of time such a
the declaration of martial law in this case, such ruling could not affect the statute, treaty, executive order, or ordinance was in 'actual existence'
President's exercise of his calling out power through Proclamation No. appears to be indisputable. What is more appropriate and logical then
55. than to consider it as 'an operative fact?' (Emphasis supplied) 159

b) The operative fact doctrine. However, it must also be stressed that this "operative fact doctrine" is not
a fool-proof shield that would repulse any challenge to acts performed
during the effectivity of martial law or suspension of the privilege of the
Neither would the nullification of Proclamation No. 216 result in the
writ of habeas corpus, purportedly in furtherance of quelling rebellion or
nullification of the acts of the President done pursuant thereto. Under the
invasion, and promotion of public safety, when evidence shows
"operative fact doctrine," the unconstitutional statute is recognized as an
otherwise.
"operative fact" before it is declared unconstitutional. 158
VII. The Scope of the Power to Review.
Where the assailed legislative or executive act is found by the judiciary to
be contrary to the Constitution, it is null and void. As the new Civil Code
puts it: 'When the courts declare a law to be inconsistent with the
 64

a) The scope of the power of Similarly, under the doctrine of contemporaneous construction, the
review under the 1987 Constitution framers of the 1987 Constitution are presumed to know the prevailing
refers only to the determination of the jurisprudence at the time they were drafting the Constitution. Thus, the
sufficiency of the factual basis of the phrase "sufficiency of factual basis" in Section 18, Article VII of the
declaration of martial law and Constitution should be understood as the only test for judicial review of
suspension of the privilege of habeas the President's power to declare martial law and suspend the privilege of
corpus. the writ of habeas corpus under Section 18, Article VII of the Constitution.
The Court does not need to satisfy itself that the President's decision is
To recall, the Court, in the case of In the Matter of the Petition for Habeas correct, rather it only needs to determine whether the President's
Corpus of Lansang,160 which was decided under the 1935 decision had sufficient factual bases.
Constitution,161 held that it can inquire into, within proper bounds, whether
there has been adherence to or compliance with the constitutionally- We conclude, therefore, that Section 18, Article VII limits the scope of
imposed limitations on the Presidential power to suspend the privilege of judicial review by the introduction of the "sufficiency of the factual basis"
the writ of habeas corpus.162 "Lansang limited the review function of the test.
Court to a very prudentially narrow test of arbitrariness." 163 Fr. Bernas
described the "proper bounds" in Lansang as follows: As Commander-in-Chief, the President has the sole discretion to declare
martial law and/or to suspend the privilege of the writ of
What, however, are these 'proper bounds' on the power of the courts? habeas corpus, subject to the revocation of Congress and the review of
The Court first gave the general answer that its power was 'merely to this Court. Since the exercise of these powers is a judgment call of the
check - not to supplant - the Executive, or to ascertain merely whether he President, the determination of this Court as to whether there is sufficient
has gone beyond the constitutional limits of his jurisdiction, not to factual basis for the exercise of such, must be based only on facts or
exercise the power vested in him or to determine the wisdom of his act. information known by or available to the President at the time he made
More specifically, the Court said that its power was not 'even comparable the declaration or suspension, which facts or information are found in the
with its power over civil or criminal cases elevated thereto by appeal...in proclamation as well as the written Report submitted by him to Congress.
which cases the appellate court has all the powers of the courtof origin,' These may be based on the situation existing at the time the declaration
nor to its power of quasi-judicial administrative decisions where the Court was made or past events. As to how far the past events should be from
is limited to asking whether 'there is some evidentiary basis' for the the present depends on the President.
administrative finding. Instead, the Court accepted the Solicitor General's
suggestion that it 'go no further than to satisfy [itself] not that the Past events may be considered as justifications for the declaration and/or
President's decision is correct and that public safety was endangered by suspension as long as these are connected or related to the current
the rebellion and justified the suspension of the writ, but that in situation existing at the time of the declaration.
suspending the writ, the President did not act arbitrarily.' 164
As to what facts must be stated in the proclamation and the written
Lansang, however, was decided under the 1935 Constitution. The 1987 Report is up to the President. 165 As Commander-in-Chief, he has sole
Constitution, by providing only for judicial review based on the discretion to determine what to include and what not to include in the
determination of the sufficiency of the factual bases, has in fact done proclamation and the written Report taking into account the urgency of
away with the test of arbitrariness as provided in Lansang. the situation as well as national security. He cannot be forced to divulge
intelligence reports and confidential information that may prejudice the
b) The "sufficiency of factual operations and the safety of the military.
basis test".
 65

Similarly, events that happened after the issuance of the proclamation, within their realm of competence, and that a state of emergency has also
which are included in the written report, cannot be considered in been declared in Central Mindanao to prevent lawless violence similar to
determining the sufficiency of the factual basis of the declaration of the 'Maguindanao massacre,' which may be an indication that there is a
martial law and/or the suspension of the privilege of the writ of habeas threat to the public safety warranting a declaration of martial law or
corpus since these happened after the President had already issued the suspension of the writ.
proclamation. If at all, they may be used only as tools, guides or
reference in the Court's determination of the sufficiency of factual basis, Certainly, the President cannot be expected to risk being too late before
but not as part or component of the portfolio of the factual basis itself. declaring martial law or suspending the writ of habeas corpus. The
Constitution, as couched, does not require precision in establishing the
In determining the sufficiency of the factual basis of the declaration fact of rebellion. The President is called to act as public safety requires. 168
and/or the suspension, the Court should look into the full complement or
totality of the factual basis, and not piecemeal or individually. Neither Corollary, as the President is expected to decide quickly on whether
should the Court expect absolute correctness of the facts stated in the there is a need to proclaim martial law even only on the basis of
proclamation and in the written Report as the President could not be intelligence reports, it is irrelevant, for purposes of the Court's review, if
expected to verify the accuracy and veracity of all facts reported to him subsequent events prove that the situation had not been accurately
due to the urgency of the situation. To require precision in the President's reported to him.
appreciation of facts would unduly burden him and therefore impede the
process of his decision-making. Such a requirement will practically After all, the Court's review is confined to the sufficiency, not accuracy, of
necessitate the President to be on the ground to confirm the correctness the information at hand during the declaration or suspension; subsequent
of the reports submitted to him within a period that only the events do not have any bearing insofar as the Court's review is
circumstances obtaining would be able to dictate. Such a scenario, of concerned. In any event, safeguards under Section 18, Article VII of the
course, would not only place the President in peril but would also defeat Constitution are in place to cover such a situation, e.g., the martial law
the very purpose of the grant of emergency powers upon him, that is, to period is good only for 60 days; Congress may choose to revoke it even
borrow the words of Justice Antonio T. Carpio in Fortun, to "immediately immediately after the proclamation is made; and, this Court may
put an end to the root cause of the emergency". 166 Possibly, by the time investigate the factual background of the declaration. 169
the President is satisfied with the correctness of the facts in his
possession, it would be too late in the day as the invasion or rebellion
Hence, the maxim falsus in uno, falsus in omnibus finds no application in
could have already escalated to a level that is hard, if not impossible, to
this case. Falsities of and/or inaccuracies in some of the facts stated in
curtail.
the proclamation and the written report are not enough reasons for the
Court to invalidate the declaration and/or suspension as long as there are
Besides, the framers of the 1987 Constitution considered intelligence other facts in the proclamation and the written Report that support the
reports of military officers as credible evidence that the President ca conclusion that there is an actual invasion or rebellion and that public
appraise and to which he can anchor his judgment, 167 as appears to be safety requires the declaration and/or suspension.
the case here.
In sum, the Court's power to review is limited to the determination of
At this point, it is wise to quote the pertinent portions of the Dissenting whether the President in declaring martial law and suspending the
Opinion of Justice Presbitero J. Velasco Jr. in Fortun: privilege of the writ of habeas corpus had sufficient factual basis. Thus,
our review would be limited to an examination on whether the President
President Arroyo cannot be blamed for relying upon the information given acted within the bounds set by the Constitution, i.e., whether the facts in
to her by the Armed Forces of the Philippines and the Philippine National his possession prior to and at the time of the declaration or suspension
Police, considering that the matter of the supposed armed uprising was
 66

are sufficient for him to declare martial law or suspend the privilege of the Thus, rebellion as mentioned in the Constitution could only refer to
writ of habeas corpus. rebellion as defined under Article 134 of the RPC. To give it a different
definition would not only create confusion but would also give the
VIII. The parameters for determining the President wide latitude of discretion, which may be abused - a situation
sufficiency of the/actual basis/or the declaration that the Constitution see k s to prevent. 174
of martial law and/or the suspension of the
privilege of the writ of habeas corpus. Article 134 of the RPC states:

a) Actual invasion or rebellion, Art. 134. Rebellion or insurrection; How committed. - The crime of
and public safety requirement. rebellion or insurrection is committed by rising publicly and taking arms
against the Government for the purpose of removing from the allegiance
Section 18, Article VII itself sets the parameters for determining the to said Government or its laws, the territory of the Philippine Islands or
sufficiency of the factual basis for the declaration of martial law and/or the any part thereof, of any body of land, naval or other armed forces,
suspension of the privilege of the writ of habeas corpus, "namely (1) depriving the Chief Executive or the Legislature, wholly or partially, of any
actual invasion or rebellion, and (2) public safety requires the exercise of of their powers or prerogatives.
such power."170 Without the concurrence of the two conditions, the
President's declaration of martial law and/or suspension of the privilege Thus, for rebellion to exist, the following elements must be present, to wit:
of the writ of habeas corpus must be struck down. "(l) there is a (a) public uprising and (b) taking arms against the
Government; and (2) the purpose of the uprising or movement is either
As a general rule, a word used in a statute which has a technical or legal (a) to remove from the allegiance to the Government or its laws: (i) the
meaning, is construed to have the same technical or legal territory of the Philippines or any part thereof; or (ii) any body of land,
meaning.171 Since the Constitution did not define the term "rebellion," it naval, or other armed forces; or (b) to deprive the Chief Executive or
must be understood to have the same meaning as the crime of "rebellion" Congress, wholly or partially, of any of their powers and prerogatives." 175
in the Revised Penal Code (RPC).172
b) Probable cause is the
During the July 29, 1986 deliberation of the Constitutional Commission of allowable standard of proof for the
1986, then Commissioner Florenz D. Regalado alluded to actual rebellion President.
as one defined under Article 134 of the RPC:
In determining the existence of rebellion, the President only needs to
MR. DE LOS REYES. As I see it now, the Committee envisions actual convince himself that there is probable cause or evidence showing that
rebellion and no longer imminent rebellion. Does the Committee mean more likely than not a rebellion was committed or is being
that there should be actual shooting or actual attack on the legislature or committed.176 To require him to satisfy a higher standard of proof would
Malacañang, for example? Let us take for example a contemporary event restrict the exercise of his emergency powers. Along this line, Justice
- this Manila Hotel incident, everybody knows what happened. Would the Carpio, in his Dissent in Fortun v. President Macapagal-
Committee consider that an actual act of rebellion? Arroyo, concluded that the President needs only to satisfy probable
cause as the standard of proof in determining the existence of either
MR. REGALADO. If we consider the definition of rebellion under Articles invasion or rebellion for purposes of declaring martial law, and that
134 and 135 of the Revised Penal Code, that presupposes an actual probable cause is the most reasonable, most practical and most
assemblage of men in an armed public uprising for the purposes expedient standard by which the President can fully ascertain the
mentioned in Article 134 and by the means employed under Article 135. x existence or non-existence of rebellion necessary for a declaration of
x x173 martial law or suspension of the writ. This is because unlike other
 67

standards of proof, which, in order to be met, would require much from 2. That the purpose of the uprising or movement is either: (a) to remove
the President and therefore unduly restrain his exercise of emergency from the allegiance to said Government or its laws the territory of the
powers, the requirement of probable cause is much simpler. It merely Philippines or any part thereof, or any body of land, naval or other armed
necessitates an "average man [to weigh] the facts and circumstances forces or (b) to deprive the Chief Executive or Congress, wholly or
without resorting to the calibration of the rules of evidence of which he partially, of any of their powers or prerogatives. 178
has no technical knowledge. He [merely] relies on common sense [and] x
x x needs only to rest on evidence showing that, more likely than not, a Petitioners concede that there is an armed public uprising in Marawi
crime has been committed x x x by the accused."177 City.179 However, they insist that the armed hostilities do not constitute
rebellion in the absence of the element of culpable political
To summarize, the parameters for determining the sufficiency of factual purpose, i.e., the removal from the allegiance to the Philippine
basis are as follows: l) actual rebellion or invasion; 2) public safety Government or its laws: (i) the territory of the Philippines or any part
requires it; the first two requirements must concur; and 3) there is thereof; or (ii) any body of land, naval, or other armed forces; or (b) to
probable cause for the President to believe that there is actual rebellion deprive the Chief Executive or Congress, wholly or partially, of any of
or invasion. their powers and prerogatives.

Having laid down the parameters for review, the Court shall nowproceed The contention lacks merit.
to the core of the controversy - whether Proclamation No. 216,Declaring
a State of Martial Law and Suspending the Privilege of the Writ a) Facts, events and
of Habeas Corpus in the whole of Mindanao, lacks sufficient factual information upon which the President
basis. anchored his decision to declare
martial law and suspend the privilege
IX. There is sufficient factual basis for the of the writ of habeas corpus.
declaration of martial law and the suspension of
the writ of habeas corpus. Since the President supposedly signed Proclamation No. 216 on May 23,
2017 at 10:00 PM,180 the Court will consider only those facts and/or
At this juncture, it bears to emphasize that the purpose of judicial review events which were known to or have transpired on or before that time,
is not the determination of accuracy or veracity of the facts upon which consistent with the scope of judicial review. Thus, the following facts
the President anchored his declaration of martial law or suspension of the and/or events were deemed to have been considered by the President in
privilege of the writ of habeas corpus; rather, only the sufficiency of the issuing Proclamation No. 216, as plucked from and extant in
factual basis as to convince the President that there is probable cause Proclamation No. 216 itself:
that rebellion exists. It must also be reiterated that martial law is a matter
ofurgency and much leeway and flexibility should be accorded the 1. Proclamation No. 55 issued on September 4, 2016, declaring a state of
President. As such, he is not expected to completely validate all the national emergency on account of lawless violence in Mindanao; 181
information he received before declaring martial law or suspending the
privilege of the writ of habeas corpus. 2. Series of violent acts182 committed by the Maute terrorist group
including:
We restate the elements of rebellion for reference:
a) Attack on the military outpost in Butig, Lanao del Sur m
1. That there be (a) public uprising, and (b) taking up arms against the February 2016, killing and wounding several soldiers;
Government; and
 68

b) Mass jailbreak in Marawi City in August 2016 of the 10. Acts of violence directed not only against government authorities and
arrested comrades of the Maute Group and other establishments but civilians as well;194
detainees;
11. Takeover of major social, economic and political foundations which
3. On May 23, 2017:183 paralyzed Marawi City;195

a) Takeover of a hospital in Marawi; 12. The object of the armed hostilities was to lay the groundwork for the
establishment of a DAESH/ISIS wilayat or province;196
b) Establishment of several checkpoints within Marawi;
13. Maute Group has 263 active members, armed and combat-ready; 197
c) Burning of certain government and private facilities;
14. Extensive networks or linkages of the Maute Group with foreign and
d) Mounting casualties on the part of the government; local armed groups;198

e) Hoisting the flag of ISIS in several areas; and 15. Adherence of the Maute Group to the ideals espoused by ISIS;199

f) Capability of the Maute Group and other rebel groups to sow terror, 16. Publication of a video showing Maute Group's declaration of
and cause death and damage to property not only in Lanao del Sur but allegiance to ISIS;200
also in other parts of Mindanao; and the Report 184 submitted to Congress:
17. Foreign-based terrorist groups provide financial and logistical support
1. Zamboanga siege;185 to the Maute Group;201

2. Davao bombing;186 18. Events on May 23, 2017 in Marawi City, particularly:

3. Mamasapano carnage;187 a) at 2:00 PM, members and sympathizers of the Maute Group and ASG
attacked various government and privately-owned facilities; 202
4. Cotabato bombings;188
b) at 4:00 PM, around fifty (50) armed criminals forcibly entered the
5. Sultan Kudarat bombings; 189 Marawi City Jail; facilitated the escape of inmates; killed a member of
PDEA; assaulted and disarmed on-duty personnel and/or locked them
inside the cells; confiscated cellphones, personnel-issued firearms, and
6. Sulu bombings;190
vehicles;203
7. Basilan bombings;191
c) by 4:30 PM, intem1ption of power supply; sporadic gunfights; city-wide
power outage by evening;204
8. Attempt to capture Hapilon was confronted with armed resistance by
combined forces of ASG and the Maute Group;192
d) from 6:00 PM to 7:00 PM, Maute Group ambushed and burned the
Marawi Police Station; commandeered a police car;205
9. Escalation of armed hostility against the government troops; 193
 69

e) BJMP personnel evacuated the Marawi City Jail and other affected b) The President's Conclusion
areas;206
After the assessment by the President of the aforementioned facts, he
f) control over three bridges in Lanao del Sur, namely, Lilod, Bangulo, arrived at the following conclusions, as mentioned in Proclamation No.
and Sauiaran, was taken by the rebels;207 216 and the Report:

g) road blockades and checkpoints set up by lawless armed groups at 1) The Maute Group is "openly attempting to remove from the allegiance
the Iligan-Marawi junction;208 to the Philippine Government this part of Mindanao and deprive the Chief
Executive of his powers and prerogatives to enforce the laws of the land
h) burning of Dansalan College Foundation, Cathedral of Maria and to maintain public order and safety in Mindanao, constituting the
Auxiliadora, the nuns' quarters in the church, and the Shia Masjid crime of rebellion."221
Moncado Colony;209
2) "[L]awless armed groups have taken up arms and committed public
i) taking of hostages from the church; 210 uprising against the duly constituted government and against the people
of Mindanao, for the purpose of removing Mindanao - starting with the
j) killing of five faculty members of Dansalan College foundation; 211 City of Marawi, Lanao del Sur - from its allegiance to the Government
and its laws and depriving the Chief Executive of his powers and
prerogatives to enforce the laws of the land and to maintain public order
k) burning of Senator Ninoy Aquino College Foundation and Marawi
and safety in Mindanao, to the great damage, prejudice, and detriment of
Central Elementary Pilot School;212
the people therein and the nation as a whole." 222
1) overrunning of Amai Pakpak Hospital; 213
3) The May 23, 2017 events "put on public display the groups' clear
intention to establish an Islamic State and their capability to deprive the
m) hoisting the ISIS flag in several areas;214 duly constituted authorities - the President, foremost - of their powers and
prerogatives. "223
n) attacking and burning of the Filipino-Libyan Friendship Hospital; 215
4) "These activities constitute not simply a display of force, but a clear
o) ransacking of a branch of Landbank of the Philippines and attempt to establish the groups' seat of power in Marawi City for their
commandeering an armored vehicle;216 planned establishment of a DAESH wilayat or province covering the
entire Mindanao."224
p) reports regarding Maute Group's plan to execute Christians; 217
5) "The cutting of vital lines for transportation and power; the recruitment
q) preventing Maranaos from leaving their homes;218 of young Muslims to further expand their ranks and strengthen their force;
the armed consolidation of their members throughout Marawi City; the
r) forcing young Muslims to join their group;219 and decimation of a segment of the city population who resist; and the brazen
display of DAESH flags constitute a clear, pronounced, and unmistakable
s) intelligence reports regarding the existence of strategic mass action of intent to remove Marawi City, and eventually the rest of Mindanao, from
lawless armed groups in Marawi City, seizing public and private facilities, its allegiance to the Government." 225
perpetrating killings of government personnel1 , and committing armed
uprising against and open defiance of the Government. 220 6) "There exists no doubt that lawless armed groups are attempting to
deprive the President of his power, authority, and prerogatives within
 70

Marawi City as a precedent to spreading their control over the entire A review of the aforesaid facts similarly leads the Court to conclude that
Mindanao, in an attempt to undermine his control over executive the President, in issuing Proclamation No. 216, had sufficient factual
departments, bureaus, and offices in said area; defeat his mandate to bases tending to show that actual rebellion exists. The President's
ensure that all laws are faithfully executed; and remove his supervisory conclusion, that there was an armed public uprising, the culpable
powers over local governments."226 purpose of which was the removal from the allegiance of the Philippine
Government a portion of its territory and the deprivation of the President
7) "Law enforcement and other government agencies now face from performing his powers and prerogatives, was reached after a
pronounced difficulty sending their reports to the Chief Executive due to tactical consideration of the facts. In fine, the President satisfactorily
the city-wide power outages. Personnel from the BJMP have been discharged his burden of proof.
prevented from performing their functions. Through the attack and
occupation of several hospitals, medical services in Marawi City have After all, what the President needs to satisfy is only the standard of
been adversely affected. The bridge and road blockades set up by the probable cause for a valid declaration of martial law and suspension of
groups effectively deprive the government of its ability to deliver basic the privilege of the writ of habeas corpus. As Justice Carpio decreed in
services to its citizens. Troop reinforcements have been hampered, his Dissent in Fortun:
preventing the government from restoring peace and order in the area.
Movement by both civilians and government personnel to and from the x x x [T]he Constitution does not compel the President to produce such
city is likewise hindered."227 amount of proof as to unduly burden and effectively incapacitate her from
exercising such powers.
8) "The taking up of arms by lawless armed groups in the area, with
support being provided by foreign-based terrorists and illegal drug Definitely, the President need not gather proof beyond reasonable doubt,
money, and their blatant acts of defiance which embolden other armed which is the standard of proof required for convicting an accused charged
groups in Mindanao, have resulted in the deterioration of public order and with a criminal offense.x x x
safety in Marawi City; they have likewise compromised the security of the
entire Island of Mindanao."228 xxxx

9) "Considering the network and alliance-building activities among Proof beyond reasonable doubt is the highest quantum of evidence, and
terrorist groups, local criminals, and lawless armed men, the siege f to require the President to establish the existence of rebellion or invasion
Marawi City is a vital cog in attaining their long-standing goal: absolute with such amount of proof before declaring martial law or suspending the
control over the entirety of Mindanao. These circumstances demand swift writ amounts to an excessive restriction on 'the President's power to act
and decisive action to ensure the safety and security of the Filipino as to practically tie her hands and disable her from effectively protecting
people and preserve our national integrity."229 the nation against threats to public safety.'

Thus, the President deduced from the facts available to him that there Neither clear and convincing evidence, which is employed in either
was an armed public uprising, the culpable purpose of which was to criminal or civil cases, is indispensable for a lawful declaration of martial
remove from the allegiance to the Philippine Government a portion of its law or suspension of the writ. This amount of proof likewise unduly
territory and to deprive the Chief Executive of any of his powers and restrains the President in exercising her emergency powers, as it
prerogatives, leading the President to believe that there was probable requires proof greater than preponderance of evidence although not
cause that the crime of rebellion was and is being committed and that beyond reasonable doubt.
public safety requires the imposition of martial law and suspension of the
privilege of the writ of habeas corpus.
 71

Not even preponderance of evidence, which is the degree of proof c) Inaccuracies, simulations,
necessary in civil cases, is demanded for a lawful declaration of martial falsities, and hyperboles.
law.
The allegation in the Lagman Petition that the facts stated in
xxxx Proclamation No. 216 and the Report are false, inaccurate, simulated,
and/or hyperbolic, does not persuade. As mentioned, the Court is not
Weighing the superiority of the evidence on hand, from at least two concerned about absolute correctness, accuracy, or precision of the facts
opposing sides, before she can act and impose martial law or suspend because to do so would unduly tie the hands of the President in
the writ unreasonably curtails the President's emergency powers. responding to an urgent situation.

Similarly, substantial evidence constitutes an unnecessary restriction on Specifically, it alleges that the following facts are not true as shown by its
the President's use of her emergency powers. Substantial evidence is the counter-evidence.231
amount of proof required in administrative or quasi-judicial cases, or that
amount of relevant evidence which a reasonable mind might accept as FACTUAL STATEMENTS COUNTER-EVIDENCE
adequate to justify a conclusion.
(1) that the Maute group attacked Amai Statements made by:
Pakpak Hospital and hoisted the DAESH (a) Dr. Amer Saber, Chief of the Hospital
I am of the view that probable cause of the existence of either invasion or flag there, among several locations. As of (b) Health Secretary Paulyn Ubial;
0600H of 24 May 2017, members of the (c) PNP Spokesperson Senior Supt.
rebellion suffices and satisfies the standard of proof for a valid Maute Group were seen guarding the entry Dionardo Carlos;
declaration of martial law and suspension of the writ. gates of the Amai Pakpak Hospital and (d) AFP Public Affairs Office Chief Co.
that they held hostage the employees of Edgard Arevalo; and
the Hospital and took over the PhilHealth (e) Marawi City Mayor Majul Gandamra
Probable cause is the same amount of proof required for the filing of a office located thereat (Proclamation No. denying that the hospital was attacked by
criminal information by the prosecutor and for the issuance of an arrest 216 and Report); the Maute Group citing online news articles
warrant by a judge. Probable cause has been defined as a 'set of facts of Philstar, Sunstar, Inquirer, and Bombo
Radyo.232
and circumstances as would lead a reasonably discreet and prudent man
to believe that the offense charged in the Information or any offense 2. that the Maute Group ambushed and Statements made by PNP Director General
included therein has been committed by the person sought to be burned the Marawi Police Station Ronald dela Rosa and Marawi City Mayor
(Proclamation No. 216 and the Report); Majul Gandamra in the online news reports
arrested.' of ABS-CBN News and CNN
Philippines233denying that the Maute group
occupied the Marawi Police Station.
In determining probable cause, the average man weighs the facts and
circumstances without resorting to the calibrations of the rules of 3. that lawless armed groups likewise Statement made by the bank officials in the
evidence of which he has no technical knowledge. He relies on common ransacked the Landbank of the Philippines on-line news article of Philstar 234 that the
and commandeered one of its armored Marawi City branch was not ransacked but
sense. A finding of probable cause needs only to rest on evidence vehicles (Report); sustained damages from the attacks.
showing that, more likely than not, a crime has been committed and that
4. that the Marawi Central Elementary Pilot Statements in the on-line news article of
it was committed by the accused. Probable cause demands more than School was burned (Proclamation No. 216 Philstar235 made by the Marawi City
suspicion; it requires less than evidence that would justify conviction. and the Report); Schools Division Assistant Superintendent
Ana Alonto denying that the school was
burned and Department of Education
Probable cause, basically premised on common sense, is the most Assistant Secretary Tonisito Umali stating
reasonable, most practical, and most expedient standard by which the that they have not received any report of
President can fully ascertain the existence or non-existence of rebellion, damage.
necessary for a declaration of martial law x x x230 5. that the Maute Group attacked various Statement in the on-line news article of
government facilities (Proclamation No. Inquirer236 made by Marawi City Mayor
 72

216 and the Report). Majul Gandamra stating that the ASG and more likely than not, rebellion exists
the Maute Terror Groups have not taken and that public safety requires it.
over any government facility in Marawi
City.
Moreover, the alleged false and/or inaccurate statements are just pieces
and parcels of the Report; along with these alleged false data is an
However, the so-called counter-evidence were derived solely from arsenal of other independent facts showing that more likely than not,
unverified news articles on the internet, with neither the authors nor the actua1 rebellion exists, and public safety requires the declaration of
sources shown to have affirmed the contents thereof It was not even martial law or suspension of the privilege of the writ of habeas corpus. To
shown that efforts were made to secure such affirmation albeit the be precise, the alleged false and/or inaccurate statements are only five
circumstances proved futile. As the Court has consistently ruled, news out of the severa1 statements bulleted in the President's Report. Notably,
articles are hearsay evidence, twice removed, and are thus without any in the interpellation by Justice Francis H. Jardeleza during the second
probative value, unless offered for a purpose other than proving the truth day of the oral argument, petitioner Lagman admitted that he was not
of the matter asserted. 237 This pronouncement applies with equal force to aware or that he had no personal knowledge of the other incidents
the Cullamat Petition which likewise submitted online news articles 238 as cited.241 As it thus stands, there is no question or challenge with respect
basis for their claim of insufficiency of factual basis. to the reliability of the other incidents, which by themselves are ample to
preclude the conclusion that the President's report is unreliable and that
Again, it bears to reiterate that the maxim falsus in uno, falsus in Proclamation No. 216 was without sufficient factual basis.
omnibus finds no application in these cases. As long as there are other
facts in the proclamation and the written Report indubitably showing the Verily, there is no credence to petitioners' claim that the bases for the
presence of an actual invasion or rebellion and that public safety requires President's imposition of martial law and suspension of the writ of habeas
the declaration and/or suspension, the finding of sufficiency of factual corpus were mostly inaccurate, simulated, false and/or hyperbolic.
basis, stands.
X. Public safety requires the declaration of
d) Ruling in Bedol v. martial law and the suspension of the privilege of
Commission on Elections not the writ of habeas corpus in the whole of
Applicable. Mindanao.

Petitioners, however, insist that in Bedol v. Commission on Invasion or rebellion alone may justify resort to the calling out power but
Elections,239 news reports may be admitted on grounds of relevance, definitely not the declaration of martial law or suspension of the privilege
trustworthiness, and necessity. Petitioners' reliance on this case is of the writ of habeas corpus. For a declaration of martial law or
misplaced. The Court in Bedol made it clear that the doctrine of suspension of the privilege of the writ of habeas corpus to be valid, there
independent relevant statement, which is an ·exception to the hearsay must be a concurrence of actual rebellion or invasion and the public
rule, applies in cases "where only the fact that such statements were safety requirement. In his Report, the President noted that the acts of
made is relevant, and the truth or falsity thereof is immaterial." 240 Here, violence perpetrated by the ASG and the Maute Group were directed not
the question is not whether such statements were made by Saber, et. only against government forces or establishments but likewise against
al., but rather whether what they said are true. Thus, contrary to the view civilians and their properties.242 In addition and in relation to the armed
of petitioners, the exception in Bedol finds no application here. hostilities, bomb threats were issued; 243 road blockades and checkpoints
were set up;244 schools and churches were burned; 245 civilian hostages
e) There are other independent were taken and killed; 246 non-Muslims or Christians were
facts which support the finding that, 247
targeted;  young male Muslims were forced to join their
group;248 medical services and delivery of basic services were
 73

hampered;249 reinforcements of government troops and civilian movement "precautionary , and although it might [curtail] certain rights of individuals,
were hindered;250 and the security of the entire Mindanao Island was [it] is for the purpose of defending and protecting the security of the state
compromised.251 or the entire country and our sovereign people". 253 Commissioner Ople
referred to the suspension of the privilege of the writ of habeas corpus as
These particular scenarios convinced the President that the atrocities had a "form of immobilization" or "as a means of immobilizing potential
already escalated to a level that risked public safety and thus impelled internal enemies" "especially in areas like Mindanao." 254
him to declare martial law and suspend the privilege of the writ of habeas
corpus. In the last paragraph of his Report, the President declared: Aside from protecting the security of the country, martial law also
guarantees and promotes public safety. It is worthy of mention that
While the government is presently conducting legitimate operations to rebellion alone does not justify the declaration of martial law or
address the on-going rebellion, if not the seeds of invasion, public safety suspension of the privilege of the writ of habeas corpus; the public safety
necessitates the continued implementation of martial law and the requirement must likewise be present.
suspension of the privilege of the writ of habeas corpus in the whole of
Mindanao until such time that the rebellion is completely quelled. 252 b) As Commander-in-Chief, the
President receives vital, relevant,
Based on the foregoing, we hold that the parameters for the declaration classified, and live information which
of martial law and suspension of the privilege of the writ f habeas equip and assist him in making
corpus have been properly and fully complied with. Proclamation No. 216 decisions.
has sufficient factual basis there being probable cause to believe that
rebellion exists and that public safety requires the martial law declaration In Parts IX and X, the Court laid down the arsenal of facts and events
and the suspension of the privilege of the writ of habeas corpus. that formed the basis for Proclamation No. 216. For the President, the
totality of facts and events, more likely than not, shows that actual
XI. Whole of Mindanao rebellion exists and that public safety requires the declaration of martial
law and suspension of the privilege of the writ of habeas
a) The overriding and corpus. Otherwise stated, the President believes that there is probable
paramount concern of martial law is cause that actual rebellion exists and public safety warrants the issuance
the protection of the security of the of Proclamation No. 216. In turn, the Court notes that the President, in
nation and the good and safety of the arriving at such a conclusion, relied on the facts and events included in
public. the Report, which we find sufficient.

Considering the nation's and its people's traumatic experience martial law To be sure, the facts mentioned in the Proclamation and the Report are
under the Marcos regime, one would expect the framers of the 1987 far from being exhaustive or all-encompassing. At this juncture, it may not
Constitution to stop at nothing from not resuscitating the law. Yet it would be amiss to state that as Commander-in-Chief, the President has
appear that the constitutional writers entertained no doubt about the possession of documents and information classified as "confidential", the
necessity and practicality of such specie of extraordinary power and thus, contents of which cannot be included in the Proclamation or Report for
once again, bestowed on the Commander-in-Chief the power to declare reasons of national security. These documents may contain information
martial law albeit in its diluted form. detailing the position of government troops and rebels, stock of firearms
or ammunitions, ground commands and operations, names of suspects
and sympathizers, etc. , In fact, during the closed door session held by
Indeed, martial law and the suspension of the privilege of the writ
the Court, some information came to light, although not mentioned in the
of habeas corpus are necessary for the protection of the security of the
Proclamation or Report. But then again, the discretion whether to include
nation; suspension of the privilege of the writ of habeas corpus is
 74

the same in the Proclamation or Report is the judgment call of the to determine the territorial coverage
President. In fact, petitioners concede to this. During the oral argument, or application of martial law or
petitioner Lagman admitted that "the assertion of facts [in the suspension of the privilege of the writ
Proclamation and Report] is the call of the President." 255 of habeas corpus.

It is beyond cavil that the President can rely on intelligence reports and Section 18, Article VII of the Constitution states that "[i]n case of invasion
classified documents. "It is for the President as [C]ommander-in[C]hief of or rebellion, when the public safety requires it, [the President] may x x x
the Armed Forces to appraise these [classified evidence or suspend the privilege of writ of habeas corpus or place the Philippines
documents/]reports and be satisfied that the public safety demands the or any part thereof under martial law." Clearly, the Constitution grants
suspension of the writ."256 Significantly, respect to these so-called to the President the discretion to determine the territorial coverage of
classified documents is accorded even "when [the] authors of or martial law and the suspension of the privilege of the writ of habeas
witnesses to these documents may not be revealed." 257 corpus. He may put the entire Philippines or only a part thereof under
martial law.
In fine, not only does the President have a wide array of information
before him, he also has the right, prerogative, and the means to access This is both an acknowledgement and a recognition that it is the
vital, relevant, and confidential data, concomitant with his position as Executive Department, particularly the President as Commander-in-
Commander-in-Chief of the Armed Forces. Chief, who is the repository of vital, classified, and live information
necessary for and relevant in calibrating the territorial application of
c) The Court has no machinery martial law and the suspension of the privilege of the writ of habeas
or tool equal to that of the corpus. It, too, is a concession that the President has the tactical and
Commander-in-Chief to ably and military support, and thus has a more informed understanding of what is
properly assess the ground happening on the ground. Thus, the Constitution imposed a limitation on
conditions. the period of application, which is 60 days, unless sooner nullified,
revoked or extended, but not on the territorial scope or area of coverage;
In contrast, the Court does not have the same resources available to the it merely stated "the Philippines or any part thereof," depending on the
President. However, this should not be considered as a constitutiona1 assessment of the President.
lapse. On the contrary, this is in line with the function of the Court,
particularly in this instance, to determine the sufficiency of factual basis of e) The Constitution has
Proclamation No. 216. As thoroughly discussed in Part VIII, the provided sufficient safeguards against
determination by the Court of the sufficiency of factual basis must be possible abuses of Commander-in-
limited only to the facts and information mentioned in the Report and Chief's powers; further curtailment of
Proclamation. In fact, the Court, in David v. President Macapagal- Presidential powers should not only
Arroyo,258 cautioned not to "undertake an independent investigation be discouraged but also avoided.
beyond the pleadings." In this regard, "the Court will have to rely on the
fact-finding capabilities of the [E]xecutive [D]epartment;" 259 in turn, the Considering the country's history, it is understandable that the
Executive Department will have to open its findings to the Court, 260 which resurgence of martial law would engender apprehensions among the
it did during the closed door session last June 15, 2017. citizenry. Even the Court as an institution cannot project a stance of
nonchalance. However, the importance of martial law in the context of
d) The 1987 Constitution our society should outweigh one's prejudices and apprehensions against
grants to the President, as it. The significance of martial law should not be undermined by unjustified
Commander-in-Chief, the discretion fears and past experience. After all, martial law is critical and crucial to
 75

the promotion of public safety, the preservation of the nation's BISHOP BACANI. Yes, just two sentences. The reason I vote II yes is
sovereignty and ultimately, the survival of our country. It is vital for the that despite my concern for human rights, I believe that a good President
protection of the country not only against internal enemies but also can also safeguard human rights and human lives as well. And I do not
against those enemies lurking from beyond our shores. As such, martial want to unduly emasculate the powers of the President. Xxx 263
law should not be cast aside, or its scope and potency limited and
diluted, based on bias and unsubstantiated assumptions. Commissioner Delos Reyes shared the same sentiment, to wit:

Conscious of these fears and apprehensions, the Constitution placed MR. DE LOS REYES. May I explain my vote, Madam President.
several safeguards which effectively watered down the power to declare
martial law. The 1987 Constitution "[clipped] the powers of [the] x x x The power of the President to impose martial law is doubtless of a
Commander-in-Chief because of [the] experience with the previous very high and delicate nature. A free people are naturally jealous of the
regime."261 Not only were the grounds limited to actual invasion or exercise of military power, and the power to impose martial law is
rebellion, but its duration was likewise fixed at 60 days, unless sooner certainly felt to be one of no ordinary magnitude. But as presented by the
revoked, nullified, or extended; at the same time, it is subject to the veto Committee, there are many safeguards: 1) it is limited to 60 days; 2)
powers of the Court and Congress. Congress can revoke it; 3) the Supreme Court can still review as to the
sufficiency of factual basis; and 4) it does not suspend the operation of
Commissioner Monsod, who, incidentally, is a counsel for the Mohamad the Constitution. To repeat what I have quoted when I interpellated
Petition, even exhorted his colleagues in the Constitutional Convention to Commissioner Monsod, it is said that the power to impose martial law is
look at martial law from a new perspective by elaborating on the dangerous to liberty and may be abused. All powers may be abused if
sufficiency of the proposed safeguards: placed in unworthy hands. But it would be difficult, we think, to point out
any other hands in which this power will be more safe and at the same
MR. MONSOD. x x x time equally effectual. When citizens of the State are in arms against
each other and the constituted authorities are unable to execute the laws,
Second, we have been given a spectre of non sequitur, that the mere the action of the President must be prompt or it is of little value. x x
declaration of martial law for a fixed period not exceeding 60 days, which x264 (Emphasis supplied)
is subject to judicial review, is going to result in numerous violations of
human rights, the predominance of the military forever and in untold At this juncture, it bears to stress that it was the collective sentiment of
sufferings. Madam President, we are talking about invasion and rebellion. the framers of the 1987 Constitution that sufficient safeguards against
We may not have any freedom to speak of after 60 days, if we put as a possible misuse and abuse by the Commander-in-Chief of his
precondition the concurrence of Congress. That might prevent the extraordinary powers are already in place and that no further
President from acting at that time in order to meet the problem. So I emasculation of the presidential powers is called for in the guise of
would like to suggest that, perhaps, we should look at this in its proper additional safeguards. The Constitution recognizes that any further
perspective. We are only looking at a very specific case. We are only curtailment, encumbrance, or emasculation of the presidential powers
looking at a case of the first 60 days at its maximum. And we are looking would not generate any good among the three co-equal branches, and to
at actual invasion and rebellion, and there are other safeguards in those the country and its citizens as a whole. Thus:
cases.262
MR. OPLE. The reason for my concern, Madam President, is that when
Even Bishop Bacani was convinced that the 1987 Constitution has we put all of these encumbrances on the President and Commander-in-
enough safeguards against presidential abuses and commission of Chief during an actual invasion or rebellion, given an intractable
human rights violations. In voting yes for the elimination of the Congress that may be dominated by opposition parties, we may be
requirement of prior concurrence of Congress, Bishop Bacani stated, viz.: actually impelling the President to use the sword of Alexander to cut the
 76

Gordian knot by just declaring a revolutionary government that sets him the measure of the extent, scope or range, of the actual I rebellion. This
free to deal with the invasion or the insurrection. x x x265 (Emphasis is logical since the other rebels positioned in PGH, MSHS, I or
supplied) elsewhere, whose participation did not involve the publicity aspect of
rebellion, may also be considered as engaging in the crime of rebellion.
f) Rebellion and public safety;
nature, scope, and range. Proceeding from the same illustration, suppose we say that the
President, after finding probable cause that there exists actual rebellion
It has been said that the "gravamen of the crime of rebellion is an armed and that public safety requires it, declares martial law and suspends the
public uprising against the government;"266 and that by nature, "rebellion writ of habeas corpus in the whole of Metro Manila, could we then say
is x x x a crime of masses or multitudes, involving crowd action, that that the territorial coverage of the proclamation is too expansive?
cannot be confined a priori, within predetermined bounds."267 We
understand this to mean that the precise extent or range of the rebellion To answer this question, we revert back to the premise that the discretion
could not be measured by exact metes and bounds. to determine the territorial scope of martial law lies with the President.
The Constitution grants him the prerogative whether to put the entire
To illustrate: A contingent armed with high-powered firearms publicly Philippines or any part thereof under martial law. There is no
assembled in Padre Faura, Ermita, Manila where the Court's compound constitutional edict that martial law should be confined only in the
is situated. They overpowered the guards, entered the Court's premises, particular place where the armed public uprising actually transpired. This
and hoisted the ISIS flag. Their motive was political, i.e., they want to is not only practical but also logical. Martial law is an urgent measure
remove from the allegiance to the Philippine government a part of the since at stake is the nation's territorial sovereignty and survival. As such,
territory of the Philippines, particularly the Court's compound and the President has to respond quickly. After the rebellion in the Court's
establish it as an ISIS-territory. compound, he need not wait for another rebellion to be mounted in
Quezon City before he could impose martial law thereat. If that is the
Based on the foregoing illustration, and vis-a-vis the nature of the crime case, then the President would have to wait until every remote corner in
of rebellion, could we validly say that the rebellion is confined only within the country is infested with rebels before he could declare martial law in
the Court's compound? Definitely not. The possibility that there are other the entire Philippines. For sure, this is not the scenario envisioned by the
rebels positioned in the nearby buildings or compound of the Philippine Constitution.
General Hospital (PGH) or the Manila Science High Schoo1 (MSHS)
could not be discounted. There is no way of knowing that all participants Going back to the illustration above, although the President is not
in the rebellion went and stayed inside the Court's compound. required to impose martial law only within the Court's compound because
it is where the armed public uprising actually transpired, he may do so if
Neither could it be validly argued that the armed contingent positioned in he sees fit. At the same time, however, he is not precluded from
PGH or MSHS is not engaged in rebellion because there is no publicity in expanding the coverage of martial law beyond the Court's compound.
their acts as, in fact, they were merely lurking inside the compound of After all, rebellion is not confined within predetermined bounds.
PGH and MSHS. However, it must be pointed out that for the crime of
rebellion to be consummated, it is not required that all armed participants Public safety, which is another component element for the declaration of
should congregate in one place, in this case, the Court's compound, and martial law, "involves the prevention of and protection from events that
publicly rise in arms against the government for the attainment of their could endanger the safety of the general public from significant danger,
culpable purpose. It suffices that a portion of the contingent gathered and injury/harm, or damage, such as crimes or disasters." 268 Public safety is
formed a mass or a crowd and engaged in an armed public uprising an abstract term; it does not take any physical form. Plainly, its range,
against the government. Similarly, it cannot be validly concluded that the extent or scope could not be physically measured by metes and bounds.
grounds on which the armed public uprising actually to6k place should be
 77

Perhaps another reason why the territorial scope of martial law should areas where the present hostilities are in danger of spilling over. It is not
not necessarily be limited to the particular vicinity where the armed public intended merely to prevent the escape of lawless elements from Marawi
uprising actually transpired, is because of the unique characteristic of City, but also to avoid enemy reinforcements and to cut their supply lines
rebellion as a crime. "The crime of rebellion consists of many acts. It is a coming from different parts of Mindanao. Thus, limiting the proclamation
vast movement of men and a complex net of intrigues and plots. Acts and/or suspension to the place where there is actual rebellion would not
committed in furtherance of rebellion[,] though crimes in themselves[,] are only defeat the purpose of declaring martial law, it will make the exercise
deemed absorbed in one single crime of rebellion." 269 Rebellion absorbs thereof ineffective and useless.
"other acts committed in its pursuance". 270 Direct
271 272 273 274 275
assault, murder,  homicide,  arson,  robbery,  and g) The Court must stay within
kidnapping,276 just to name a few, are absorbed in the crime of rebellion if the confines of its power.
committed in furtherance of rebellion; "[i]t cannot be made a basis of a
separate charge."277Jurisprudence also teaches that not only common The Court can only act within the confines of its power.1âwphi1 For the
crimes may be absorbed in rebellion but also "offenses under special Court to overreach is to infringe upon another's territory. Clearly, the
laws [such as Presidential Decree No. 1829] 278 which are perpetrated in power to determine the scope of territorial application belongs to the
furtherance of the political offense".279 "All crimes, whether punishable President. "The Court cannot indulge in judicial legislation without
under a special law or general law, which are me e components or violating the principle of separation of powers, and, hence, undermining
ingredients, or committed in furtherance thereof, become absorbed in the the foundation of our republican system." 281
crime of rebellion and cannot be isolated and charged as separate crimes
in themselves.280
To reiterate, the Court is not equipped with the competence and logistical
machinery to determine the strategical value of other places in the
Thus, by the theory of absorption, the crime of murder committed in military's efforts to quell the rebellion and restore peace. It would be
Makati City, if committed in furtherance of the crime of rebellion being engaging in an act of adventurism if it dares to embark on a mission of
hypothetically staged in Padre Faura, Ermita, Manila, is stripped of its deciphering the territorial metes and bounds of martial law. To be blunt
common complexion and is absorbed in the crime of rebellion. This all about it, hours after the proclamation of martial law none of the members
the more makes it difficult to confine the application of martial law only to of this Court could have divined that more than ten thousand souls would
the place where the armed public uprising is actually taking place. In the be forced to evacuate to Iligan and Cagayan de Oro and that the military
illustration above, Padre Faura could only be the nerve center of the would have to secure those places also; none of us could have predicted
rebellion but at the same time rebellion is also happening in Makati City. that Cayamora Maute would be arrested in Davao City or that his wife
Ominta Romato Maute would be apprehended in Masiu, Lanao del Sur;
In fine, it is difficult, if not impossible, to fix the territorial scope of martial and, none of us had an inkling that the Bangsamoro Islamic Freedom
law in direct proportion to the "range" of actual rebellion and public safety Fighters (BIFF) would launch an attack in Cotabato City. The Court has
simply because rebellion and public safety have no fixed physical no military background and technical expertise to predict that. In the
dimensions. Their transitory and abstract nature defies precise same manner, the Court lacks the technical capability to determine which
measurements; hence, the determination of the territorial scope of martial part of Mindanao would best serve as forward operating base of the
law could only be drawn from arbitrary, not fixed, variables. The military in their present endeavor in Mindanao. Until now the Court is in a
Constitution must have considered these limitations when it granted the quandary and can only speculate whether the 60-day lifespan of
President wide leeway and flexibility in determining the territorial scope of Proclamation No. 216 could outlive the present hostilities in Mindanao. It
martial law. is on this score that the Court should give the President sufficient leeway
to address the peace and order problem in Mindanao.
Moreover, the President's duty to maintain peace and public safety is not
limited only to the place where there is actual rebellion; it extends to other
 78

Thus, considering the current situation, it will not serve any purpose if the h) Several local armed groups
President is goaded into using "the sword of Alexander to cut the Gordian have formed linkages aimed at
knot"282 by attempting to impose another encumbrance; after all "the committing rebellion and acts in
declaration of martial law or the suspension of the privilege of the writ furtherance thereof in the whole of
of habeas corpus is essentially an executive act."283 Mindanao.

Some sectors, impelled perhaps by feelings of patriotism, may wish to With a predominantly Muslim population, Marawi City is "the only Islamic
subdue, rein in, or give the President a nudge, so to speak, as some sort City of the South."285 On April 15, 1980, it was conferred the official title of
of reminder of the nation's experience under the Marcos-styled martial "Islamic City of Marawi."286 The city's first name, "Dansalan," "was derived
law. However, it is not fair to judge President Duterte based on the ills from the word 'dansal', meaning a destination point or rendezvous.
some of us may have experienced during the Marcos-martial law era. At Literally, it also means arrival or coming." 287 Marawi lies in the heart of
this point, the Court quotes the insightful discourse of Commissioner Mindanao. In fact, the Kilometer Zero marker in Mindanao is found in
Ople: Marawi City thereby making Marawi City the point of reference of all
roads in Mindanao.
MR. OPLE. x x x
Thus, there is reasonable basis to believe that Marawi is only the staging
xxxx point of the rebellion, both for symbolic and strategic reasons. Marawi
may not be the target but the whole of Mindanao. As mentioned in the
Madam President, there is a tendency to equate patriotism with rendering Report, "[l]awless armed groups have historically used provinces
the executive branch of the government impotent, as though by reducing adjoining Marawi City as escape routes, supply lines, and backdoor
drastically the powers of the executive, we are rendering a service to passages;"288 there is also the plan to establish a wilayat in Mindanao by
human welfare. I think it is also important to understand that the staging the siege of Marawi. The report that prior to May 23, 2017,
extraordinary measures contemplated in the Article on the Executive Abdullah Maute had already dispatched some of his men to various
pertain to a practical state of war existing in this country when national places in Mindanao, such as Marawi, Iligan, and Cagayan de Oro for
security will become a common bond of patriotism of all Filipinos, bombing operations, carnapping, and the murder of military and police
especially if it is an actual invasion or an actual rebellion, and the personnel,289 must also be considered. Indeed, there is some semblance
President may have to be given a minimum flexibility to cope with such of truth to the contention that Marawi is only the start, and Mindanao the
unprecedented threats to the survival of a nation. I think the Commission end.
has done so but at the same time has not, in any manner, shunned the
task of putting these powers under a whole system of checks and Other events also show that the atrocities were not concentrated in
balances, including the possible revocation at any time of a proclamation Marawi City. Consider these:
of martial law by the Congress, and in any case a definite determination
of these extraordinary powers, subject only to another extension to be a. On January 13, 2017, an improvised explosive device (IED) exploded
determined by Congress in the event that it is necessary to do so in Barangay Campo Uno, Lamita City, Basilan. A civilian was killed while
because the emergency persists. another was wounded.290

So, I think this Article on the Executive for which I voted is completely b. On January 19, 2017, the ASG kidnapped three Indonesians near
responsible; it is attuned to the freedom and the rights of the citizenry. It Bakungan Island, Taganak, Tawi-Tawi.291
does not render the presidency impotent and, at the same time, it allows
for a vigorous representation of the people through their Congress when
an emergency measure is in force and effect.284
 79

c. On January 29, 2017, the ASG detonated an IED in Barangay It is also of judicial notice that the insurgency in Mindanao has been
Danapah, Albarka, Basilan resulting in the death of two children and the ongoing for decades. While some groups have sought legal and peaceful
wounding of three others.292 means, others have resorted to violent extremism and terrorism.
Rebellion may be subsumed under the crime of terrorism, which has a
d. From March to May 2017, there were eleven (11) separate instances broader scope covering a wide range of predicate crimes. In fact,
of IED explosions by the BIFF in Mindanao. These resulted in the death rebellion is only one of the various means by which terrorism can be
and wounding of several personalities.293 committed.299 However, while the scope of terrorism may be
comprehensive, its purpose is distinct and well-defined. The objective of
e. On February 26, 2017, the ASG beheaded its kidnap victim, Juergen a "'terrorist" is to sow and create a condition of widespread fear among
Kantner in Sulu.294 the populace in order to coerce the government to give in to an unlawful
demand. This condition of widespread fear is traditionally achieved
through bombing, kidnapping, mass killing, and beheading, among
f. On April 11, 2017, the ASG infiltrated Inabaga, Bohol resulting in
others. In contrast, the purpose of rebellion, as previously discussed, is
firefights between rebels and government troops. 295
political, i.e., (a) to remove from the allegiance to the Philippine
Government or its laws: (i) the territory of the Philippines or any part
g. On April 13, 2017, the ASG beheaded Filipino kidnap victim Noel thereof; (ii) any body of land, naval, or armed forces; or (b) to deprive the
Besconde.296 Chief Executive or Congress, wholly or partially, of any of their powers
and prerogatives.
h. On April 20, 2017, the ASG kidnapped SSg. Anni Siraji and beheaded
him three days later.297 In determining what crime was committed, we have to look into the main
objective of the malefactors. If it is political, such as for the purpose of
There were also intelligence reports from the military about offensives severing the allegiance of Mindanao to the Philippine Government to
committed by the ASG and other local rebel groups. All these suggest establish a wilayat therein, the crime is rebellion. If, on the other hand,
that the rebellion in Marawi has already spilled over to other parts of the primary objective is to sow and create a condition of widespread and
Mindanao. extraordinary fear and panic among the populace in order to coerce the
government to give in to an unlawful demand, the crime is terrorism.
Moreover, considering the widespread atrocities in Mindanao and the Here, we have already explained and ruled that the President did not err
linkages established among rebel groups, the armed uprising that was in believing that what is going on in Marawi City is one contemplated
initially staged in Marawi cannot be justified as confined only to Marawi. under the crime of rebellion.
The Court therefore will not simply disregard the events that happened
during the Davao City bombing, the Mamasapano massacre, the In any case, even assuming that the insurgency in Marawi City can also
Zamboanga City siege, and the countless bombings in Cotabato, Sultan be characterized as terrorism, the same will not in any manner affect
Kudarat, Sulu, and Basilan, among others. 298 The Court cannot simply Proclamation No. 216. Section 2 of Republic Act (RA) No. 9372,
take the battle of Marawi in isolation. As a crime without predetermined otherwise known as the Human Security Act of 2007 expressly provides
bounds, the President has reasonable basis to believe that the that "[n]othing in this Act shall be interpreted as a curtailment, restriction
declaration of martial law, as well as the suspension of the privilege of or diminution of constitutionally recognized powers of the executive
the writ of habeas corpus in the whole of Mindanao, is most necessary, branch of the government." Thus, as long as the President complies with
effective, and called for by the circumstances. all the requirements of Section 18, Article VII, the existence of terrorism
cannot prevent him from exercising his extraordinary power of
i) Terrorism neither negates proclaiming martial ' law or suspending the privilege of the writ of habeas
nor absorbs rebellion. corpus. After all, the extraordinary powers of the President are bestowed
 80

on him by the Constitution. No act of Congress can, therefore, curtail or WE CONCUR:

diminish such powers.
See Dissenting Opinion
Besides, there is nothing in Art. 134 of the RPC and RA 9372 which MARIA LOURDES P.A. SERENO
states that rebellion and terrorism are mutuallty exclusive of each other or Chief Justice
that they cannot co-exist together. RA 9372 does not expressly or
impliedly repeal Art. 134 of the RPC. And while rebellion is one of the
predicate crimes of terrorism, one cannot absorb the other as they have I concur, Please see my
different elements.300 See Dissenting Opinion Separate Opinion
ANTONIO T. CARPIO PRESBITERO J. VELASCO,
Verily, the Court upholds the validity of the declaration of martial law and Associate Justice JR.
suspension of the privilege of the writ of habeas corpus in the entire Associate Justice
Mindanao region.
I concur, see my Separate
At the end of the day, however ardently and passionately we may believe Opinion See Separate Opinion
in the validity or correctness of the varied and contentious causes or TERESITA J. LEONARDO- DIOSDADO M. PERALTA
principles that we espouse, advocate or champion, let us not forget that DE CASTRO Associate Justice
at this point in time we, the Filipino people, are confronted with a crisis of Associate Justice
such magnitude and proportion that we all need to summon the spirit of
unity and act as one undivided nation, if we are to overcome and prevail I concur, Please see my I concur, see Separate
in the struggle at hand. Separate Opinion Opinion
LUCAS P. BERSAMIN JOSE CATRAL MENDOZA
Let us face up to the fact that the siege in Marawi City has entered the Associate Justice Associate Justice
second month and only God or Allah knows when it would end. Let us
take notice of the fact that the casualties of the war are mounting. To I concur in the result. Please
See separate concurring
date, 418 have died. Out of that were 303 Maute rebels as against 71 see separate opinion
Opinion
government troops and 44 civilians. ESTELA M. PERLAS-
BIENVENIDO L. REYES
BERNABE
Associate Justice
Can we not sheathe our swords and pause for a while to bury our dead, Associate Justice
including our differences and prejudices?
I dissent, see separate
See separate opinion
WHEREFORE, the Court FINDS sufficient factual bases for the issuance opinion
FRANCIS H. JARDELEZA
of Proclamation No. 216 and DECLARES it MARVIC M.V.F. LEONEN
Associate Justice
as CONSTITUTIONAL. Accordingly, the consolidated Petitions are Associate Justice
hereby DISMISSED.
See separate opinion
w/ separate opinion
SO ORDERED. ALFREDO BENJAMIN S.
SAMUEL R. MARTIRES
CAGUIOA
Associate Justice
MARIANO C. DEL CASTILLO Associate Justice
Associate Justice
 81

with separate opinion Hotel. Opposing, respondents maintain that the provision is not self-
NOEL GIMENEZ TIJAM executing but requires an implementing legislation for its enforcement.
Associate Justice Corollarily, they ask whether the 51% shares form part of the national
economy and patrimony covered by the protective mantle of the
CERTIFICATION Constitution.

I certify that the conclusions in the above Decision had been reached in The controversy arose when respondent Government Service Insurance
consultation before the case was assigned to the writer of the opinion of System (GSIS), pursuant to the privatization program of the Philippine
the Court. Government under Proclamation No. 50 dated 8 December 1986,
decided to sell through public bidding 30% to 51% of the issued and
MARIA LOURDES P.A. SERENO outstanding shares of respondent MHC. The winning bidder, or the
Chief Justice eventual "strategic partner," is to provide management expertise and/or
an international marketing/reservation system, and financial support to
strengthen the profitability and performance of the Manila Hotel.2 In a
close bidding held on 18 September 1995 only two (2) bidders
participated: petitioner Manila Prince Hotel Corporation, a Filipino
Republic of the Philippines corporation, which offered to buy 51% of the MHC or 15,300,000 shares
SUPREME COURT at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-
Manila Sheraton as its hotel operator, which bid for the same number of shares
at P44.00 per share, or P2.42 more than the bid of petitioner.
EN BANC
Pertinent provisions of the bidding rules prepared by respondent GSIS
  state —

G.R. No. 122156 February 3, 1997 I. EXECUTION OF THE NECESSARY CONTRACTS

WITH GSIS/MHC —
MANILA PRINCE HOTEL petitioner, 
vs. 1. The Highest Bidder must comply with the conditions set
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL forth below by October 23, 1995 (reset to November 3,
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF 1995) or the Highest Bidder will lose the right to purchase
THE GOVERNMENT CORPORATE COUNSEL, respondents. the Block of Shares and GSIS will instead offer the Block
of Shares to the other Qualified Bidders:

a. The Highest Bidder must negotiate and execute with

BELLOSILLO, J.: the GSIS/MHC the Management Contract, International
Marketing/Reservation System Contract or other type of
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the contract specified by the Highest Bidder in its strategic
grant of rights, privileges, and concessions covering the national plan for the Manila Hotel. . . .
economy and patrimony, the State shall give preference to qualified
Filipinos,1 is in oked by petitioner in its bid to acquire 51% of the shares of b. The Highest Bidder must execute the Stock Purchase
the Manila Hotel Corporation (MHC) which owns the historic Manila and Sale Agreement with GSIS . . . .
 82

K. DECLARATION OF THE WINNING which reflects the vibrancy of Philippine heritage and culture. It is a proud
BIDDER/STRATEGIC PARTNER — legacy of an earlier generation of Filipinos who believed in the nobility
and sacredness of independence and its power and capacity to release
The Highest Bidder will be declared the Winning the full potential of the Filipino people. To all intents and purposes, it has
Bidder/Strategic Partner after the following conditions are become a part of the national patrimony.6 Petitioner also argues that
met: since 51% of the shares of the MHC carries with it the ownership of the
business of the hotel which is owned by respondent GSIS, a government-
a. Execution of the necessary contracts with GSIS/MHC owned and controlled corporation, the hotel business of respondent GSIS
not later than October 23, 1995 (reset to November 3, being a part of the tourism industry is unquestionably a part of the
1995); and national economy. Thus, any transaction involving 51% of the shares of
stock of the MHC is clearly covered by the term national economy, to
which Sec. 10, second par., Art. XII, 1987 Constitution, applies. 7
b. Requisite approvals from the GSIS/MHC and COP
(Committee on Privatization)/OGCC (Office of the
Government Corporate Counsel) are obtained.3 It is also the thesis of petitioner that since Manila Hotel is part of the
national patrimony and its business also unquestionably part of the
national economy petitioner should be preferred after it has matched the
Pending the declaration of Renong Berhad as the winning
bid offer of the Malaysian firm. For the bidding rules mandate that if for
bidder/strategic partner and the execution of the necessary contracts,
any reason, the Highest Bidder cannot be awarded the Block of Shares,
petitioner in a letter to respondent GSIS dated 28 September 1995
GSIS may offer this to the other Qualified Bidders that have validly
matched the bid price of P44.00 per share tendered by Renong
submitted bids provided that these Qualified Bidders are willing to match
Berhad.4 In a subsequent letter dated 10 October 1995 petitioner sent a
the highest bid in terms of price per share.8
manager's check issued by Philtrust Bank for Thirty-three Million Pesos
(P33.000.000.00) as Bid Security to match the bid of the Malaysian
Group, Messrs. Renong Berhad . . .5 which respondent GSIS refused to Respondents except. They maintain that: First, Sec. 10, second par., Art.
accept. XII, of the 1987 Constitution is merely a statement of principle and policy
since it is not a self-executing provision and requires implementing
legislation(s) . . . Thus, for the said provision to Operate, there must be
On 17 October 1995, perhaps apprehensive that respondent GSIS has
existing laws "to lay down conditions under which business may be
disregarded the tender of the matching bid and that the sale of 51% of
done."9
the MHC may be hastened by respondent GSIS and consummated with
Renong Berhad, petitioner came to this Court on prohibition
and mandamus. On 18 October 1995 the Court issued a temporary Second, granting that this provision is self-executing, Manila Hotel does
restraining order enjoining respondents from perfecting and not fall under the term national patrimony which only refers to lands of the
consummating the sale to the Malaysian firm. public domain, waters, minerals, coal, petroleum and other mineral oils,
all forces of potential energy, fisheries, forests or timber, wildlife, flora
and fauna and all marine wealth in its territorial sea, and exclusive marine
On 10 September 1996 the instant case was accepted by the Court En
zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987
Banc after it was referred to it by the First Division. The case was then
Constitution. According to respondents, while petitioner speaks of the
set for oral arguments with former Chief Justice Enrique M. Fernando
guests who have slept in the hotel and the events that have transpired
and Fr. Joaquin G. Bernas, S.J., as amici curiae.
therein which make the hotel historic, these alone do not make the hotel
fall under the patrimony of the nation. What is more, the mandate of the
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution is addressed to the State, not to respondent GSIS which
Constitution and submits that the Manila Hotel has been identified with
the Filipino nation and has practically become a historical monument
 83

possesses a personality of its own separate and distinct from the is founded. The fundamental conception in other words is that it is a
Philippines as a State. supreme law to which all other laws must conform and in accordance
with which all private rights must be determined and all public authority
Third, granting that the Manila Hotel forms part of the national patrimony, administered. 11 Under the doctrine of constitutional supremacy, if a law
the constitutional provision invoked is still inapplicable since what is being or contract violates any norm of the constitution that law or contract
sold is only 51% of the outstanding shares of the corporation, not the whether promulgated by the legislative or by the executive branch or
hotel building nor the land upon which the building stands. Certainly, 51% entered into by private persons for private purposes is null and void and
of the equity of the MHC cannot be considered part of the national without any force and effect. Thus, since the Constitution is the
patrimony. Moreover, if the disposition of the shares of the MHC is really fundamental, paramount and supreme law of the nation, it is deemed
contrary to the Constitution, petitioner should have questioned it right written in every statute and contract.
from the beginning and not after it had lost in the bidding.
Admittedly, some constitutions are merely declarations of policies and
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding principles. Their provisions command the legislature to enact laws and
rules which provides that if for any reason, the Highest Bidder cannot be carry out the purposes of the framers who merely establish an outline of
awarded the Block of Shares, GSIS may offer this to the other Qualified government providing for the different departments of the governmental
Bidders that have validly submitted bids provided that these Qualified machinery and securing certain fundamental and inalienable rights of
Bidders are willing to match the highest bid in terms of price per share, is citizens. 12 A provision which lays down a general principle, such as those
misplaced. Respondents postulate that the privilege of submitting a found in Art. II of the 1987 Constitution, is usually not self-executing. But
matching bid has not yet arisen since it only takes place if for any reason, a provision which is complete in itself and becomes operative without the
the Highest Bidder cannot be awarded the Block of Shares. Thus the aid of supplementary or enabling legislation, or that which supplies
submission by petitioner of a matching bid is premature since Renong sufficient rule by means of which the right it grants may be enjoyed or
Berhad could still very well be awarded the block of shares and the protected, is self-executing. Thus a constitutional provision is self-
condition giving rise to the exercise of the privilege to submit a matching executing if the nature and extent of the right conferred and the liability
bid had not yet taken place. imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is
Finally, the prayer for prohibition grounded on grave abuse of discretion no language indicating that the subject is referred to the legislature for
should fail since respondent GSIS did not exercise its discretion in a action. 13
capricious, whimsical manner, and if ever it did abuse its discretion it was
not so patent and gross as to amount to an evasion of a positive duty or a As against constitutions of the past, modern constitutions have been
virtual refusal to perform a duty enjoined by law. Similarly, the petition generally drafted upon a different principle and have often become in
for mandamus should fail as petitioner has no clear legal right to what it effect extensive codes of laws intended to operate directly upon the
demands and respondents do not have an imperative duty to perform the people in a manner similar to that of statutory enactments, and the
act required of them by petitioner. function of constitutional conventions has evolved into one more like that
of a legislative body. Hence, unless it is expressly provided that a
We now resolve. A constitution is a system of fundamental laws for the legislative act is necessary to enforce a constitutional mandate, the
governance and administration of a nation. It is supreme, imperious, presumption now is that all provisions of the constitution are self-
absolute and unalterable except by the authority from which it emanates. executing If the constitutional provisions are treated as requiring
It has been defined as the fundamental and paramount law of the legislation instead of self-executing, the legislature would have the power
nation. 10 It prescribes the permanent framework of a system of to ignore and practically nullify the mandate of the fundamental
government, assigns to the different departments their respective powers law.14 This can be cataclysmic. That is why the prevailing view is, as it
and duties, and establishes certain fixed principles on which government has always been, that —
 84

. . . in case of doubt, the Constitution should be purposes of style. But, certainly, the legislature is not precluded from
considered self-executing rather than non-self-executing . enacting other further laws to enforce the constitutional provision so long
. . . Unless the contrary is clearly intended, the provisions as the contemplated statute squares with the Constitution. Minor details
of the Constitution should be considered self-executing, may be left to the legislature without impairing the self-executing nature
as a contrary rule would give the legislature discretion to of constitutional provisions.
determine when, or whether, they shall be effective.
These provisions would be subordinated to the will of the In self-executing constitutional provisions, the legislature may still enact
lawmaking body, which could make them entirely legislation to facilitate the exercise of powers directly granted by the
meaningless by simply refusing to pass the needed constitution, further the operation of such a provision, prescribe a practice
implementing statute. 15 to be used for its enforcement, provide a convenient remedy for the
protection of the rights secured or the determination thereof, or place
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 reasonable safeguards around the exercise of the right. The mere fact
Constitution is clearly not self-executing, as they quote from discussions that legislation may supplement and add to or prescribe a penalty for the
on the floor of the 1986 Constitutional Commission — violation of a self-executing constitutional provision does not render such
a provision ineffective in the absence of such legislation. The omission
MR. RODRIGO. Madam President, I am asking this question as from a constitution of any express provision for a remedy for enforcing a
the Chairman of the Committee on Style. If the wording of right or liability is not necessarily an indication that it was not intended to
"PREFERENCE" is given to QUALIFIED FILIPINOS," can it be be self-executing. The rule is that a self-executing provision of the
understood as a preference to qualified Filipinos vis-a- constitution does not necessarily exhaust legislative power on the
vis Filipinos who are not qualified. So, why do we not make it subject, but any legislation must be in harmony with the constitution,
clear? To qualified Filipinos as against aliens? further the exercise of constitutional right and make it more
available. 17 Subsequent legislation however does not necessarily mean
THE PRESIDENT. What is the question of Commissioner that the subject constitutional provision is not, by itself, fully enforceable.
Rodrigo? Is it to remove the word "QUALIFIED?".
Respondents also argue that the non-self-executing nature of Sec. 10,
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED second par., of Art. XII is implied from the tenor of the first and third
FILIPINOS" as against whom? As against aliens or over aliens? paragraphs of the same section which undoubtedly are not self-
executing. 18 The argument is flawed. If the first and third paragraphs are
not self-executing because Congress is still to enact measures to
MR. NOLLEDO. Madam President, I think that is understood. We
encourage the formation and operation of enterprises fully owned by
use the word "QUALIFIED" because the existing laws or
Filipinos, as in the first paragraph, and the State still needs legislation to
prospective laws will always lay down conditions under which
regulate and exercise authority over foreign investments within its
business may be done. For example, qualifications on the setting
national jurisdiction, as in the third paragraph, then a fortiori, by the same
up of other financial structures, et cetera (emphasis supplied by
logic, the second paragraph can only be self-executing as it does not by
respondents)
its language require any legislation in order to give preference to qualified
Filipinos in the grant of rights, privileges and concessions covering the
MR. RODRIGO. It is just a matter of style. national economy and patrimony. A constitutional provision may be self-
executing in one part and non-self-executing in another. 19
MR. NOLLEDO Yes, 16
Even the cases cited by respondents holding that certain constitutional
Quite apparently, Sec. 10, second par., of Art XII is couched in such a provisions are merely statements of principles and policies, which are
way as not to make it appear that it is non-self-executing but simply for
 85

basically not self-executing and only placed in the Constitution as moral Therefore, we should develop not only our lands, forests,
incentives to legislation, not as judicially enforceable rights — are simply mines and other natural resources but also the mental
not in point. Basco v. Philippine Amusements and Gaming ability or faculty of our people.
Corporation 20 speaks of constitutional provisions on personal
dignity, 21 the sanctity of family life, 22 the vital role of the youth in nation- We agree. In its plain and ordinary meaning, the term patrimony pertains
building 23 the promotion of social justice, 24 and the values of to heritage. 35 When the Constitution speaks of national patrimony, it
education. 25 Tolentino v. Secretary of Finance  26 refers to the refers not only to the natural resources of the Philippines, as the
constitutional provisions on social justice and human rights 27 and on Constitution could have very well used the term natural resources, but
education. 28 Lastly, Kilosbayan, Inc. v. Morato  29 cites provisions on the also to the cultural heritage of the Filipinos.
promotion of general welfare, 30 the sanctity of family life, 31 the vital role
of the youth in nation-building 32 and the promotion of total human Manila Hotel has become a landmark — a living testimonial of Philippine
liberation and development. 33A reading of these provisions indeed clearly heritage. While it was restrictively an American hotel when it first opened
shows that they are not judicially enforceable constitutional rights but in 1912, it immediately evolved to be truly Filipino, Formerly a concourse
merely guidelines for legislation. The very terms of the provisions for the elite, it has since then become the venue of various significant
manifest that they are only principles upon which the legislations must be events which have shaped Philippine history. It was called the Cultural
based. Res ipsa loquitur. Center of the 1930's. It was the site of the festivities during the
inauguration of the Philippine Commonwealth. Dubbed as the Official
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Guest House of the Philippine Government. it plays host to dignitaries
Constitution is a mandatory, positive command which is complete in itself and official visitors who are accorded the traditional Philippine
and which needs no further guidelines or implementing laws or rules for hospitality. 36
its enforcement. From its very words the provision does not require any
legislation to put it in operation. It is per se judicially enforceable When The history of the hotel has been chronicled in the book The Manila
our Constitution mandates that [i]n the grant of rights, privileges, and Hotel: The Heart and Memory of a City. 37During World War II the hotel
concessions covering national economy and patrimony, the State shall was converted by the Japanese Military Administration into a military
give preference to qualified Filipinos, it means just that — qualified headquarters. When the American forces returned to recapture Manila
Filipinos shall be preferred. And when our Constitution declares that a the hotel was selected by the Japanese together with Intramuros as the
right exists in certain specified circumstances an action may be two (2) places fro their final stand. Thereafter, in the 1950's and 1960's,
maintained to enforce such right notwithstanding the absence of any the hotel became the center of political activities, playing host to almost
legislation on the subject; consequently, if there is no statute especially every political convention. In 1970 the hotel reopened after a renovation
enacted to enforce such constitutional right, such right enforces itself by and reaped numerous international recognitions, an acknowledgment of
its own inherent potency and puissance, and from which all legislations the Filipino talent and ingenuity. In 1986 the hotel was the site of a
must take their bearings. Where there is a right there is a remedy. Ubi jus failed coup d' etat where an aspirant for vice-president was "proclaimed"
ibi remedium. President of the Philippine Republic.

As regards our national patrimony, a member of the 1986 Constitutional For more than eight (8) decades Manila Hotel has bore mute witness to
Commission 34 explains — the triumphs and failures, loves and frustrations of the Filipinos; its
existence is impressed with public interest; its own historicity associated
The patrimony of the Nation that should be conserved with our struggle for sovereignty, independence and nationhood. Verily,
and developed refers not only to out rich natural Manila Hotel has become part of our national economy and patrimony.
resources but also to the cultural heritage of out race. It For sure, 51% of the equity of the MHC comes within the purview of the
also refers to our intelligence in arts, sciences and letters. constitutional shelter for it comprises the majority and controlling stock,
 86

so that anyone who acquires or owns the 51% will have actual control MR: DAVIDE. I want to get that meaning clear because
and management of the hotel. In this instance, 51% of the MHC cannot "QUALIFIED FILIPINOS" may refer only to individuals and not to
be disassociated from the hotel and the land on which the hotel edifice juridical personalities or entities.
stands. Consequently, we cannot sustain respondents' claim that
the Filipino First Policy provision is not applicable since what is being MR. MONSOD. We agree, Madam President. 39
sold is only 51% of the outstanding shares of the corporation, not the
Hotel building nor the land upon which the building stands. 38 x x x           x x x          x x x

The argument is pure sophistry. The term qualified Filipinos as used in MR. RODRIGO. Before we vote, may I request that the
Our Constitution also includes corporations at least 60% of which is amendment be read again.
owned by Filipinos. This is very clear from the proceedings of the 1986
Constitutional Commission
MR. NOLLEDO. The amendment will read: "IN THE GRANT OF
RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
THE PRESIDENT. Commissioner Davide is recognized. NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word
MR. DAVIDE. I would like to introduce an amendment to the "Filipinos" here, as intended by the proponents, will include not
Nolledo amendment. And the amendment would consist in only individual Filipinos but also Filipino-controlled entities or
substituting the words "QUALIFIED FILIPINOS" with the entities fully-controlled by Filipinos. 40
following: "CITIZENS OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR The phrase preference to qualified Filipinos was explained thus
CONTROLLING STOCK IS WHOLLY OWNED BY SUCH —
CITIZENS.
MR. FOZ. Madam President, I would like to request
x x x           x x x          x x x Commissioner Nolledo to please restate his amendment so that I
can ask a question.
MR. MONSOD. Madam President, apparently the proponent is
agreeable, but we have to raise a question. Suppose it is a MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES
corporation that is 80-percent Filipino, do we not give it AND CONCESSIONS COVERING THE NATIONAL ECONOMY
preference? AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE
TO QUALIFIED FILIPINOS."
MR. DAVIDE. The Nolledo amendment would refer to an
individual Filipino. What about a corporation wholly owned by MR FOZ. In connection with that amendment, if a foreign
Filipino citizens? enterprise is qualified and a Filipino enterprise is also qualified,
will the Filipino enterprise still be given a preference?
MR. MONSOD. At least 60 percent, Madam President.
MR. NOLLEDO. Obviously.
MR. DAVIDE. Is that the intention?
MR. FOZ. If the foreigner is more qualified in some aspects than
MR. MONSOD. Yes, because, in fact, we would be limiting it if we the Filipino enterprise, will the Filipino still be preferred?
say that the preference should only be 100-percent Filipino.
 87

MR. NOLLEDO. The answer is "yes." accordance with its own guidelines so that the sole inference here is that
petitioner has been found to be possessed of proven management
MR. FOZ. Thank you, 41 expertise in the hotel industry, or it has significant equity ownership in
another hotel company, or it has an overall management and marketing
Expounding further on the Filipino First Policy provision Commissioner proficiency to successfully operate the Manila Hotel. 44
Nolledo continues —
The penchant to try to whittle away the mandate of the Constitution by
MR. NOLLEDO. Yes, Madam President. Instead of arguing that the subject provision is not self-executory and requires
"MUST," it will be "SHALL — THE STATE SHALL GlVE implementing legislation is quite disturbing. The attempt to violate a clear
PREFERENCE TO QUALIFIED FILIPINOS. This constitutional provision — by the government itself — is only too
embodies the so-called "Filipino First" policy. That means distressing. To adopt such a line of reasoning is to renounce the duty to
that Filipinos should be given preference in the grant of ensure faithfulness to the Constitution. For, even some of the provisions
concessions, privileges and rights covering the national of the Constitution which evidently need implementing legislation have
patrimony. 42 juridical life of their own and can be the source of a judicial remedy. We
cannot simply afford the government a defense that arises out of the
failure to enact further enabling, implementing or guiding legislation. In
The exchange of views in the sessions of the Constitutional Commission
fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional
regarding the subject provision was still further clarified by Commissioner
government is apt —
Nolledo 43 —
The executive department has a constitutional duty to
Paragraph 2 of Section 10 explicitly mandates the "Pro-
implement laws, including the Constitution, even before
Filipino" bias in all economic concerns. It is better known
Congress acts — provided that there are discoverable
as the FILIPINO FIRST Policy . . . This provision was
legal standards for executive action. When the executive
never found in previous Constitutions . . . .
acts, it must be guided by its own understanding of the
constitutional command and of applicable laws. The
The term "qualified Filipinos" simply means that responsibility for reading and understanding the
preference shall be given to those citizens who can make Constitution and the laws is not the sole prerogative of
a viable contribution to the common good, because of Congress. If it were, the executive would have to ask
credible competence and efficiency. It certainly does NOT Congress, or perhaps the Court, for an interpretation
mandate the pampering and preferential treatment to every time the executive is confronted by a constitutional
Filipino citizens or organizations that are incompetent or command. That is not how constitutional government
inefficient, since such an indiscriminate preference would operates. 45
be counter productive and inimical to the common good.
Respondents further argue that the constitutional provision is addressed
In the granting of economic rights, privileges, and to the State, not to respondent GSIS which by itself possesses a
concessions, when a choice has to be made between a separate and distinct personality. This argument again is at best
"qualified foreigner" end a "qualified Filipino," the latter specious. It is undisputed that the sale of 51% of the MHC could only be
shall be chosen over the former." carried out with the prior approval of the State acting through respondent
Committee on Privatization. As correctly pointed out by Fr. Joaquin G.
Lastly, the word qualified is also determinable. Petitioner was so Bernas, S.J., this fact alone makes the sale of the assets of respondents
considered by respondent GSIS and selected as one of GSIS and MHC a "state action." In constitutional jurisprudence, the acts
the qualified bidders. It was pre-qualified by respondent GSIS in
 88

of persons distinct from the government are considered "state action" Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the
covered by the Constitution (1) when the activity it engages in is a "public Highest Bidder cannot be awarded the Block of Shares, GSIS may offer
function;" (2) when the government is so significantly involved with the this to other Qualified Bidders that have validly submitted bids provided
private actor as to make the government responsible for his action; and, that these Qualified Bidders are willing to match the highest bid in terms
(3) when the government has approved or authorized the action. It is of price per
evident that the act of respondent GSIS in selling 51% of its share in share. 47 Certainly, the constitutional mandate itself is reason enough not
respondent MHC comes under the second and third categories of "state to award the block of shares immediately to the foreign bidder
action." Without doubt therefore the transaction. although entered into by notwithstanding its submission of a higher, or even the highest, bid. In
respondent GSIS, is in fact a transaction of the State and therefore fact, we cannot conceive of a stronger reason than the constitutional
subject to the constitutional command. 46 injunction itself.

When the Constitution addresses the State it refers not only to the people In the instant case, where a foreign firm submits the highest bid in a
but also to the government as elements of the State. After all, public bidding concerning the grant of rights, privileges and concessions
government is composed of three (3) divisions of power — legislative, covering the national economy and patrimony, thereby exceeding the bid
executive and judicial. Accordingly, a constitutional mandate directed to of a Filipino, there is no question that the Filipino will have to be allowed
the State is correspondingly directed to the three(3) branches of to match the bid of the foreign entity. And if the Filipino matches the bid
government. It is undeniable that in this case the subject constitutional of a foreign firm the award should go to the Filipino. It must be so if we
injunction is addressed among others to the Executive Department and are to give life and meaning to the Filipino First Policy provision of the
respondent GSIS, a government instrumentality deriving its authority from 1987 Constitution. For, while this may neither be expressly stated nor
the State. contemplated in the bidding rules, the constitutional fiat is, omnipresent to
be simply disregarded. To ignore it would be to sanction a perilous
It should be stressed that while the Malaysian firm offered the higher bid skirting of the basic law.
it is not yet the winning bidder. The bidding rules expressly provide that
the highest bidder shall only be declared the winning bidder after it has This Court does not discount the apprehension that this policy may
negotiated and executed the necessary contracts, and secured the discourage foreign investors. But the Constitution and laws of the
requisite approvals. Since the "Filipino First Policy provision of the Philippines are understood to be always open to public scrutiny. These
Constitution bestows preference on qualified Filipinos the mere tending of are given factors which investors must consider when venturing into
the highest bid is not an assurance that the highest bidder will be business in a foreign jurisdiction. Any person therefore desiring to do
declared the winning bidder. Resultantly, respondents are not bound to business in the Philippines or with any of its agencies or instrumentalities
make the award yet, nor are they under obligation to enter into one with is presumed to know his rights and obligations under the Constitution and
the highest bidder. For in choosing the awardee respondents are the laws of the forum.
mandated to abide by the dictates of the 1987 Constitution the provisions
of which are presumed to be known to all the bidders and other The argument of respondents that petitioner is now estopped from
interested parties. questioning the sale to Renong Berhad since petitioner was well aware
from the beginning that a foreigner could participate in the bidding is
Adhering to the doctrine of constitutional supremacy, the subject meritless. Undoubtedly, Filipinos and foreigners alike were invited to the
constitutional provision is, as it should be, impliedly written in the bidding bidding. But foreigners may be awarded the sale only if no Filipino
rules issued by respondent GSIS, lest the bidding rules be nullified for qualifies, or if the qualified Filipino fails to match the highest bid tendered
being violative of the Constitution. It is a basic principle in constitutional by the foreign entity. In the case before us, while petitioner was already
law that all laws and contracts must conform with the fundamental law of preferred at the inception of the bidding because of the constitutional
the land. Those which violate the Constitution lose their reason for being. mandate, petitioner had not yet matched the bid offered by Renong
 89

Berhad. Thus it did not have the right or personality then to compel As scrupulously as it has tried to observe that it is not its
respondent GSIS to accept its earlier bid. Rightly, only after it had function to substitute its judgment for that of the
matched the bid of the foreign firm and the apparent disregard by legislature or the executive about the wisdom and
respondent GSIS of petitioner's matching bid did the latter have a cause feasibility of legislation economic in nature, the Supreme
of action. Court has not been spared criticism for decisions
perceived as obstacles to economic progress and
Besides, there is no time frame for invoking the constitutional safeguard development . . . in connection with a temporary
unless perhaps the award has been finally made. To insist on selling the injunction issued by the Court's First Division against the
Manila Hotel to foreigners when there is a Filipino group willing to match sale of the Manila Hotel to a Malaysian Firm and its
the bid of the foreign group is to insist that government be treated as any partner, certain statements were published in a major
other ordinary market player, and bound by its mistakes or gross errors of daily to the effect that injunction "again demonstrates that
judgment, regardless of the consequences to the Filipino people. The the Philippine legal system can be a major obstacle to
miscomprehension of the Constitution is regrettable. Thus we would doing business here.
rather remedy the indiscretion while there is still an opportunity to do so
than let the government develop the habit of forgetting that the Let it be stated for the record once again that while it is no
Constitution lays down the basic conditions and parameters for its business of the Court to intervene in contracts of the kind
actions. referred to or set itself up as the judge of whether they are
viable or attainable, it is its bounden duty to make sure
Since petitioner has already matched the bid price tendered by Renong that they do not violate the Constitution or the laws, or are
Berhad pursuant to the bidding rules, respondent GSIS is left with no not adopted or implemented with grave abuse of
alternative but to award to petitioner the block of shares of MHC and to discretion amounting to lack or excess of jurisdiction. It
execute the necessary agreements and documents to effect the sale in will never shirk that duty, no matter how buffeted by winds
accordance not only with the bidding guidelines and procedures but with of unfair and ill-informed criticism. 48
the Constitution as well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided in the bidding rules Privatization of a business asset for purposes of enhancing its business
after the latter has matched the bid of the Malaysian firm clearly viability and preventing further losses, regardless of the character of the
constitutes grave abuse of discretion. asset, should not take precedence over non-material values. A
commercial, nay even a budgetary, objective should not be pursued at
The Filipino First Policy is a product of Philippine nationalism. It is the expense of national pride and dignity. For the Constitution enshrines
embodied in the 1987 Constitution not merely to be used as a guideline higher and nobler non-material values. Indeed, the Court will always
for future legislation but primarily to be enforced; so must it be enforced. defer to the Constitution in the proper governance of a free society; after
This Court as the ultimate guardian of the Constitution will never shun, all, there is nothing so sacrosanct in any economic policy as to draw itself
under any reasonable circumstance, the duty of upholding the majesty of beyond judicial review when the Constitution is involved. 49
the Constitution which it is tasked to defend. It is worth emphasizing that
it is not the intention of this Court to impede and diminish, much less Nationalism is inherent, in the very concept of the Philippines being a
undermine, the influx of foreign investments. Far from it, the Court democratic and republican state, with sovereignty residing in the Filipino
encourages and welcomes more business opportunities but avowedly people and from whom all government authority emanates. In
sanctions the preference for Filipinos whenever such preference is nationalism, the happiness and welfare of the people must be the goal.
ordained by the Constitution. The position of the Court on this matter The nation-state can have no higher purpose. Any interpretation of any
could have not been more appropriately articulated by Chief Justice constitutional provision must adhere to such basic concept. Protection of
Narvasa —
 90

foreign investments, while laudible, is merely a policy. It cannot override CORPORATION to purchase the subject 51% of the shares of the Manila
the demands of nationalism. 50 Hotel Corporation at P44.00 per share and thereafter to execute the
necessary clearances and to do such other acts and deeds as may be
The Manila Hotel or, for that matter, 51% of the MHC, is not just any necessary for purpose.
commodity to be sold to the highest bidder solely for the sake of
privatization. We are not talking about an ordinary piece of property in a SO ORDERED.
commercial district. We are talking about a historic relic that has hosted
many of the most important events in the short history of the Philippines Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima,
as a nation. We are talking about a hotel where heads of states would Jr., JJ., concur.
prefer to be housed as a strong manifestation of their desire to cloak the
dignity of the highest state function to their official visits to the Philippines.
Thus the Manila Hotel has played and continues to play a significant role
as an authentic repository of twentieth century Philippine history and
culture. In this sense, it has become truly a reflection of the Filipino soul
— a place with a history of grandeur; a most historical setting that has Separate Opinions
played a part in the shaping of a country. 51

This Court cannot extract rhyme nor reason from the determined efforts
of respondents to sell the historical landmark — this Grand Old Dame of PADILLA, J., concurring:
hotels in Asia — to a total stranger. For, indeed, the conveyance of this
epic exponent of the Filipino psyche to alien hands cannot be less than I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I
mephistophelian for it is, in whatever manner viewed, a veritable would like to expound a bit more on the concept of national patrimony as
alienation of a nation's soul for some pieces of foreign silver. And so we including within its scope and meaning institutions such as the Manila
ask: What advantage, which cannot be equally drawn from a qualified Hotel.
Filipino, can be gained by the Filipinos Manila Hotel — and all that it
stands for — is sold to a non-Filipino? How much of national pride will It is argued by petitioner that the Manila Hotel comes under "national
vanish if the nation's cultural heritage is entrusted to a foreign entity? On patrimony" over which qualified Filipinos have the preference, in
the other hand, how much dignity will be preserved and realized if the ownership and operation. The Constitutional provision on point states:
national patrimony is safekept in the hands of a qualified, zealous and
well-meaning Filipino? This is the plain and simple meaning of xxx xxx xxx
the Filipino First Policy provision of the Philippine Constitution. And this
Court, heeding the clarion call of the Constitution and accepting the duty In the grant of rights, privileges, and concessions
of being the elderly watchman of the nation, will continue to respect and covering the national economy and patrimony, the State
protect the sanctity of the Constitution. shall Give preference to qualified Filipinos.1

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE Petitioner's argument, I believe, is well taken. Under the 1987
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON Constitution, "national patrimony" consists of the natural resources
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE provided by Almighty God (Preamble) in our territory (Article I) consisting
COUNSEL are directed to CEASE and DESIST from selling 51% of the of land, sea, and air.2study of the 1935 Constitution, where the concept of
shares of the Manila Hotel Corporation to RENONG BERHAD, and to "national patrimony" originated, would show that its framers decided to
ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL adopt the even more comprehensive expression "Patrimony of the
 91

Nation" in the belief that the phrase encircles a concept embracing not existing order." In the field of public bidding in the acquisition of things
only their natural resources of the country but practically everything that that pertain to the national patrimony, preference to qualified Filipinos
belongs to the Filipino people, the tangible and the material as well as the must allow a qualified Filipino to match or equal the higher bid of a non-
intangible and the spiritual assets and possessions of the people. It is to Filipino; the preference shall not operate only when the bids of the
be noted that the framers did not stop with conservation. They knew that qualified Filipino and the non-Filipino are equal in which case, the award
conservation alone does not spell progress; and that this may be should undisputedly be made to the qualified Filipino. The Constitutional
achieved only through development as a correlative factor to assure to preference should give the qualified Filipino an opportunity to match or
the people not only the exclusive ownership, but also the exclusive equal the higher bid of the non-Filipino bidder if the preference of the
benefits of their national patrimony).3 qualified Filipino bidder is to be significant at all.

Moreover, the concept of national patrimony has been viewed as It is true that in this present age of globalization of attitude towards
referring not only to our rich natural resources but also to the cultural foreign investments in our country, stress is on the elimination of barriers
heritage of our to foreign trade and investment in the country. While government
4
race. agencies, including the courts should re-condition their thinking to such a
trend, and make it easy and even attractive for foreign investors to come
There is no doubt in my mind that the Manila Hotel is very much a part of to our shores, yet we should not preclude ourselves from reserving to us
our national patrimony and, as such, deserves constitutional protection Filipinos certain areas where our national identity, culture and heritage
as to who shall own it and benefit from its operation. This institution has are involved. In the hotel industry, for instance, foreign investors have
played an important role in our nation's history, having been the venue of established themselves creditably, such as in the Shangri-La, the Nikko,
many a historical event, and serving as it did, and as it does, as the the Peninsula, and Mandarin Hotels. This should not stop us from
Philippine Guest House for visiting foreign heads of state, dignitaries, retaining 51% of the capital stock of the Manila Hotel Corporation in the
celebrities, and others.5 hands of Filipinos. This would be in keeping with the intent of the Filipino
people to preserve our national patrimony, including our historical and
It is therefore our duty to protect and preserve it for future generations of cultural heritage in the hands of Filipinos.
Filipinos. As President Manuel L. Quezon once said, we must exploit the
natural resources of our country, but we should do so with. an eye to the VITUG, J., concurring:
welfare of the future generations. In other words, the leaders of today are
the trustees of the patrimony of our race. To preserve our national I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements,
patrimony and reserve it for Filipinos was the intent of the distinguished shared by Mr. Justice Reynato S. Puno in a well written separate
gentlemen who first framed our Constitution. Thus, in debating the need (dissenting) opinion, that:
for nationalization of our lands and natural resources, one expounded
that we should "put more teeth into our laws, and; not make the First, the provision in our fundamental law which provides that "(I)n the
nationalization of our lands and natural resources a subject of ordinary grant of rights, privileges, and concessions covering the national
legislation but of constitutional enactment" 6 To quote further: "Let not our economy and patrimony, the State shall give preference to qualified
children be mere tenants and trespassers in their own country. Let us Filipinos"1 is self-executory. The provision verily does not need, although
preserve and bequeath to them what is rightfully theirs, free from all it can obviously be amplified or regulated by, an enabling law or a set of
foreign liens and encumbrances". 7 rules.

Now, a word on preference. In my view "preference to qualified Filipinos", Second, the term "patrimony" does not merely refer to the country's
to be meaningful, must refer not only to things that are peripheral, natural resources but also to its cultural heritage. A "historical landmark,"
collateral, or tangential. It must touch and affect the very "heart of the
 92

to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now Under the rules on public bidding of the Government Service and
indeed become part of Philippine heritage. Insurance System, if petitioner and the Malaysian firm had offered the
same price per share, "priority [would be given] to the bidder seeking the
Third, the act of the Government Service Insurance System ("GSIS"), a larger ownership interest in MHC," 2 so that petitioner bid for more shares,
government entity which derives its authority from the State, in selling it would be preferred to the Malaysian corporation for that reason and not
51% of its share in MHC should be considered an act of the State subject because it is a Philippine corporation. Consequently, it is only in cases
to the Constitutional mandate. like the present one, where an alien corporation is the highest bidder, that
preferential treatment of the Philippine corporation is mandated not by
On the pivotal issue of the degree of "preference to qualified Filipinos," I declaring it winner but by allowing it "to match the highest bid in terms of
find it somewhat difficult to take the same path traversed by the forceful price per share" before it is awarded the shares of stocks. 3 That, to me, is
reasoning of Justice Puno. In the particular case before us, the only what "preference to qualified Filipinos" means in the context of this case
meaningful preference, it seems, would really be to allow the qualified — by favoring Filipinos whenever they are at a disadvantage vis-a-
Filipino to match the foreign bid for, as a particular matter, I cannot see vis foreigners.
any bid that literally calls for millions of dollars to be at par (to the last
cent) with another. The magnitude of the magnitude of the bids is such This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute
that it becomes hardly possible for the competing bids to stand exactly giving "preference to Filipino citizens in the lease of public market
"equal" which alone, under the dissenting view, could trigger the right of stalls."5 This Court upheld the cancellation of existing leases covering
preference. market stalls occupied by persons who were not Filipinos and the award
thereafter of the stalls to qualified Filipino vendors as ordered by the
It is most unfortunate that Renong Berhad has not been spared this great Department of Finance. Similarly, in Vda. de Salgado v. De la
disappointment, a letdown that it did not deserve, by a simple and timely Fuente,6 this Court sustained the validity of a municipal ordinance passed
advise of the proper rules of bidding along with the peculiar constitutional pursuant to the statute (R.A. No. 37), terminating existing leases of public
implications of the proposed transaction. It is also regrettable that the market stalls and granting preference to Filipino citizens in the issuance
Court at time is seen, to instead, be the refuge for bureaucratic of new licenses for the occupancy of the stalls. In Chua Lao
inadequate which create the perception that it even takes on non- v. Raymundo,7 the preference granted under the statute was held to
justiciable controversies. apply to cases in which Filipino vendors sought the same stalls occupied
by alien vendors in the public markets even if there were available other
stalls as good as those occupied by aliens. "The law, apparently, is
All told, I am constrained to vote for granting the petition.
applicable whenever there is a conflict of interest between Filipino
applicants and aliens for lease of stalls in public markets, in which
MENDOZA, J., concurring in the judgment: situation the right to preference immediately arises."8

I take the view that in the context of the present controversy the only way Our legislation on the matter thus antedated by a quarter of a century
to enforce the constitutional mandate that "[i]n the grant of rights, efforts began only in the 1970s in America to realize the promise of
privileges and concessions covering the national patrimony the State equality, through affirmative action and reverse discrimination programs
shall give preference to qualified Filipinos"1 is to allow petitioner designed to remedy past discrimination against colored people in such
Philippine corporation to equal the bid of the Malaysian firm Renong areas as employment, contracting and licensing. 9 Indeed, in vital areas of
Berhad for the purchase of the controlling shares of stocks in the Manila our national economy, there are situations in which the only way to place
Hotel Corporation. Indeed, it is the only way a qualified Filipino of Filipinos in control of the national economy as contemplated in the
Philippine corporation can be given preference in the enjoyment of a Constitution 10 is to give them preferential treatment where they can at
right, privilege or concession given by the State, by favoring it over a least stand on equal footing with aliens.
foreign national corporation.
 93

There need be no fear that thus preferring Filipinos would either invite perhaps is due to the belief that in the words of Justice Oliver Wendell
foreign retaliation or deprive the country of the benefit of foreign capital or Holmes, Jr., a "page of history is worth a volume of logic."
know-how. We are dealing here not with common trades of common
means of livelihood which are open to aliens in our midst, 11 but with the I will, however, attempt to share my thoughts on whether the Manila Hotel
sale of government property, which is like the grant of government has a historical and cultural aspect within the meaning of the constitution
largess of benefits and concessions covering the national economy" and and thus, forming part of the "patrimony of the nation".
therefore no one should begrudge us if we give preferential treatment to
our citizens. That at any rate is the command of the Constitution. For the Section 10, Article XII of the 1987 Constitution provides:
Manila Hotel is a business owned by the Government. It is being
privatized. Privatization should result in the relinquishment of the
xxx xxx xxx
business in favor of private individuals and groups who are Filipino
citizens, not in favor of aliens.
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the State
Nor should there be any doubt that by awarding the shares of stocks to
shall give preference to qualified Filipinos.
petitioner we would be trading competence and capability for nationalism.
Both petitioner and the Malaysian firm are qualified, having hurdled the
prequalification process. 12 It is only the result of the public bidding that is The State shall regulate and exercise authority over
sought to be modified by enabling petitioner to up its bid to equal the foreign investments within its national goals and priorities.
highest bid.
The foregoing provisions should be read in conjunction with Article II of
Nor, finally, is there any basis for the suggestion that to allow a Filipino the same Constitution pertaining to "Declaration of Principles and State
bidder to match the highest bid of an alien could encourage speculation, Policies" which ordain —
since all that a Filipino entity would then do would be not to make a bid or
make only a token one and, after it is known that a foreign bidder has The State shall develop a self-reliant and independent
submitted the highest bid, make an offer matching that of the foreign firm. national economy effectively by Filipinos. (Sec. 19).
This is not possible under the rules on public bidding of the GSIS. Under
these rules there is a minimum bid required (P36.87 per share for a Interestingly, the matter of giving preference to "qualified Filipinos" was
range of 9 to 15 million shares). 13 Bids below the minimum will not be one of the highlights in the 1987 Constitution Commission proceedings
considered. On the other hand, if the Filipino entity, after passing the thus:
prequalification process, does not submit a bid, he will not be allowed to
match the highest bid of the foreign firm because this is a privilege x x x           x x x          x x x
allowed only to those who have "validly submitted bids." 14 The
suggestion is, to say the least, fanciful and has no basis in fact. MR. NOLLEDO. The Amendment will read: "IN THE GRANT OF
RIGHTS, PRIVILEGES AND CONCESSIONS COVERING THE
For the foregoing reasons, I vote to grant the petition. NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS". And the word
TORRES, JR., J., separate opinion: "Filipinos" here, as intended by the proponents, will include not
only individual Filipinos but also Filipino-Controlled entities fully
Constancy in law is not an attribute of a judicious mind. I say this as we controlled by Filipinos (Vol. III, Records of the Constitutional
are not confronted in the case at bar with legal and constitutional issues Commission, p. 608).
— and yet I am driven so to speak on the side of history. The reason
 94

MR. MONSOD. We also wanted to add, as Commissioner practices. It is actually a product of growth and acceptance by the
Villegas said, this committee and this body already approved collective mores of a race. It is the spirit and soul of a people.
what is known as the Filipino First policy which was suggested by
Commissioner de Castro. So that it is now in our Constitution The Manila Hotel is part of our history, culture and heritage. Every inch of
(Vol. IV, Records of the Constitutional Commission, p. 225). the Manila Hotel is witness to historic events (too numerous to mention)
which shaped our history for almost 84 years.
Commissioner Jose Nolledo explaining the provision adverted to
above, said: As I intimated earlier, it is not my position in this opinion, to examine the
single instances of the legal largese which have given rise to this
MR. NOLLEDO. In the grant of rights, privileges and concessions controversy. As I believe that has been exhaustively discussed in
covering the national economy and patrimony, the State shall the ponencia. Suffice it to say at this point that the history of the Manila
give preference to qualified Filipinos. Hotel should not be placed in the auction block of a purely business
transaction, where profits subverts the cherished historical values of our
MR. FOZ. In connection with that amendment, if a foreign people.
enterprise is qualified and the Filipinos enterprise is also qualified,
will the Filipino enterprise still be given a preference? As a historical landmark in this "Pearl of the Orient Seas", it has its
enviable tradition which, in the words of the philosopher Salvador de
MR. NOLLEDO. Obviously. Madarriaga tradition is "more of a river than a stone, it keeps flowing, and
one must view the flowing , and one must view the flow of both directions.
MR. FOZ. If the foreigner is more qualified in some aspects than If you look towards the hill from which the river flows, you see tradition in
the Filipino enterprise, will the Filipino still be preferred:? the form of forceful currents that push the river or people towards the
future, and if you look the other way, you progress."
MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616, Records of
the Constitutional Commission). Indeed, tradition and progress are the same, for progress depends on the
kind of tradition. Let us not jettison the tradition of the Manila Hotel and
thereby repeat our colonial history.
The nationalistic provisions of the 1987 Constitution reflect the history
and spirit of the Malolos Constitution of 1898, the 1935 Constitution and
the 1973 Constitutions. That we have no reneged on this nationalist I grant, of course the men of the law can see the same subject in different
policy is articulated in one of the earliest case, this Court said — lights.

The nationalistic tendency is manifested in various I remember, however, a Spanish proverb which says — "He is always
provisions of the Constitution. . . . It cannot therefore be right who suspects that he makes mistakes". On this note, I say that if I
said that a law imbued with the same purpose and spirit have to make a mistake, I would rather err upholding the belief that the
underlying many of the provisions of the Constitution is Filipino be first under his Constitution and in his own land.
unreasonable, invalid or unconstitutional (Ichong, et al.
vs. Hernandez, et al., 101 Phil. 1155). I vote GRANT the petition.

I subscribe to the view that history, culture, heritage, and traditions are  
not legislated and is the product of events, customs, usages and
PUNO, J., dissenting:
 95

This is a. petition for prohibition and mandamus filed by the Manila Prince Second — Submit the highest bid on a price per share
Hotel Corporation, a domestic corporation, to stop the Government basis for the Block of Shares;
Service Insurance System (GSIS) from selling the controlling shares of
the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale Third — Negotiate and execute the necessary contracts
violates the second paragraph of section 10, Article XII of the with GSIS/MHC not later than October 23, 1995;
Constitution.
xxx xxx xxx
Respondent GSIS is a government-owned and controlled corporation. It
is the sole owner of the Manila Hotel which it operates through its IV GUIDELINES FOR PREQUALIFICATION
subsidiary, the Manila Hotel Corporation. Manila Hotel was included in
the privatization program of the government. In 1995, GSIS proposed to
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
sell to interested buyers 30% to 51% of its shares, ranging from
9,000,000 to 15,300,000 shares, in the Manila Hotel Corporation. After
the absence of bids at the first public bidding, the block of shares offered The Winning Bidder/Strategic Partner will be expected to provide
for sale was increased from a maximum of 30% to 51%. Also, the management expertise and/or an international marketing
winning bidder, or the eventual "strategic partner" of the GSIS was reservation system, and financial support to strengthen the
required to "provide management expertise and/or an international profitability and performance of The Manila Hotel. In this context,
marketing/reservation system, and financial support to strengthen the the GSIS is inviting to the prequalification process any local
profitability and performance of the Manila Hotel" 1 The proposal was and/or foreign corporation, consortium/joint venture or juridical
approved by respondent Committee on Privatization. entity with at least one of the following qualifications:

In July 1995, a conference was held where prequalification documents a. Proven management .expertise in the hotel industry; or
and the bidding rules were furnished interested parties. Petitioner Manila
Prince Hotel, a domestic corporation, and Renong Berhad, Malaysian b. Significant equity ownership (i.e. board representation) in
firm with ITT Sheraton as operator, prequalified.2 another hotel company; or

The bidding rules and procedures entitled "Guidelines and Procedures: c. Overall management and marketing expertise to successfully
Second Prequalification and Public Bidding of the MHC Privatization" operate the Manila Hotel.
provide:
Parties interested in bidding for MHC should be able to provide
I INTRODUCTION AND HIGHLIGHTS access to the requisite management expertise and/or
international marketing/reservation system for The Manila Hotel.
DETERMINING THE WINNING BIDDER/STRATEGIC
PARTNER xxx xxx xxx

The party that accomplishes the steps set forth below will D. PREQUALIFICATION DOCUMENTS
be declared the Winning Bidder/Strategic Partner and will
be awarded the Block of Shares: xxx xxx xxx

First — Pass the prequalification process; E. APPLICATION PROCEDURE

 96

1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE 2. If the Applicant is a Consortium/Joint Venture, the evaluation
will consider the overall qualifications of the group, taking into
The prequalification documents can be secured at the account the contribution of each member to the venture.
Registration Office between 9:00 AM to 4:00 PM during working
days within the period specified in Section III. Each set of 3. The decision of the PBAC with respect to the results of the
documents consists of the following: PBAC evaluation will be final.

a. Guidelines and Procedures: Second Prequalification and 4. The Applicant shall be evaluated according to the criteria set
Public Bidding of the MHC Privatization forth below:

b. Confidential Information Memorandum: The Manila Hotel a. Business management expertise, track record, and experience
Corporation
b. Financial capability.
c. Letter of Invitation. to the Prequalification and Bidding
Conference c. Feasibility and acceptability of the proposed strategic plan for
the Manila Hotel
xxx xxx xxx
5. The PBAC will shortlist such number of Applicants as it may
4. PREQUALIFICATION AND BIDDING CONFERENCE deem appropriate.

A prequalification and bidding conference will be held at The 6. The parties that prequalified in the first MHC public bidding —
Manila Hotel on the date specified in Section III to allow the ITT Sheraton, Marriot International Inc., Renaissance Hotels
Applicant to seek clarifications and further information regarding International Inc., consortium of RCBC Capital/Ritz Carlton —
the guidelines and procedures. Only those who purchased the may participate in the Public Bidding without having to undergo
prequalification documents will be allowed in this conference. the prequalification process again.
Attendance to this conference is strongly advised, although the
Applicant will not be penalized if it does not attend. G. SHORTLIST OF QUALIFIED BIDDERS

5. SUBMISSION OF PREQUALIFICATION DOCUMENTS 1. A notice of prequalification results containing the shortlist of

Qualified Bidders will be posted at the Registration Office at the
The applicant should submit 5 sets of the prequalification date specified in Section III.
documents (1 original set plus 4 copies) at the Registration Office
between 9:00 AM to 4:00 PM during working days within the 2. In the case of a Consortium/Joint Venture, the withdrawal by
period specified in Section III. member whose qualification was a material consideration for
being included in the shortlist is ground for disqualification of the
F. PREQUALIFICATION PROCESS Applicant.

1. The Applicant will be evaluated by the PBAC with the V. GUIDELINES FOR THE PUBLIC BIDDING
assistance of the TEC based on the Information Package and
other information available to the PBAC.
 97

A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC 2. During the Public Bidding, the Qualified Bidder will submit the
BIDDING Official Bid Form, which will indicate the offered purchase price, in
a sealed envelope marked "OFFICIAL BID."
All parties in the shortlist of Qualified Bidders will be eligible to
participate in the Public Bidding. F. SUPPORTING DOCUMENTS

B. BLOCK OF SHARES During the Public Bidding, the following documents should be
submitted along with the bid in a separate envelop marked
A range of Nine Million (9,000,000) to Fifteen Million Three "SUPPORTING DOCUMENTS":
Hundred Thousand (15,300,000) shares of stock representing
Thirty Percent to Fifty-One Percent (30%-51%) of the issued and 1. WRITTEN AUTHORITY TO BID (UNDER OATH).
outstanding shares of MHC, will be offered in the Public Bidding
by the GSIS. The Qualified Bidders will have the Option of If the Qualified Bidder is a corporation, the representative of the
determining the number of shares within the range to bid for. The Qualified Bidder should submit a Board resolution which
range is intended to attract bidders with different preferences and adequately authorizes such representative to bid for and in behalf
objectives for the operation and management of The Manila of the corporation with full authority to perform such acts
Hotel. necessary or requisite to bind the Qualified Bidder.

C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS If the Qualified Bidder is a Consortium/Joint Venture, each
member of the Consortium/Joint venture should submit a Board
1. Bids will be evaluated on a price per share basis. The resolution authorizing one of its members and such member's
minimum bid required on a price per share basis for the Block of representative to make the bid on behalf of the group with full
Shares is Thirty-Six Pesos and Sixty-Seven Centavos (P36.67). authority to perform such acts necessary or requisite to bind the
Qualified Bidder.
2. Bids should be in the Philippine currency payable to the GSIS.
2. BID SECURITY
3. Bids submitted with an equivalent price per share below the
minimum required will not considered. a. The Qualified Bidder should deposit Thirty-Three Million Pesos
(P33,000,00), in Philippine currency as Bid Security in the form
D. TRANSFER COSTS of:

x x x           x x x          x x x i. Manager's check or unconditional demand draft payable to the

"Government Service Insurance System" and issued by a
E. OFFICIAL BID FORM reputable banking institution duly licensed to do business in the
Philippines and acceptable to GSIS; or
1. Bids must be contained in the prescribed Official Bid Form, a
copy of which is attached as Annex IV. The Official Bid Form ii. Standby-by letter of credit issued by a reputable banking
must be properly accomplished in all details; improper institution acceptable to the GSIS.
accomplishment may be a sufficient basis for disqualification.
b. The GSIS will reject a bid if:
 98

i. The bid does not have Bid Security; or G. SUBMISSION OF BIDS

ii. The Bid Security accompanying the bid is for less than the 1. The Public Bidding will be held on September 7, 1995 at the
required amount. following location:

c. If the Bid Security is in the form of a manager's check or New GSIS Headquarters Building
unconditional demand draft, the interest earned on the Bid Financial Center, Reclamation Area
Security will be for the account of GSIS. Roxas Boulevard, Pasay City, Metro Manila.

d. If the Qualified Bidder becomes the winning Bidder/Strategic 2. The Secretariat of the PBAC will be stationed at the Public
Partner, the Bid Security will be applied as the downpayment on Bidding to accept any and all bids and supporting requirements.
the Qualified Bidder's offered purchase price. Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
e. The Bid Security of the Qualified Bidder will be returned
immediately after the Public Bidding if the Qualified Bidder is not 3. The Qualified Bidder should submit its bid using the Official Bid
declared the Highest Bidder. Form. The accomplished Official Bid Form should be submitted in
a sealed envelope marked "OFFICIAL BID."
f. The Bid Security will be returned by October 23, 1995 if the
Highest Bidder is unable to negotiate and execute with 4. The Qualified Bidder should submit the following documents
GSIS/MHC the Management Contract, International in another sealed envelope marked "SUPPORTING BID
Marketing/Reservation System Contract or other types of contract DOCUMENTS"
specified by the Highest Bidder in its strategic plan for The Manila
Hotel. a. Written Authority Bid

g. The Bid Security of the Highest Bidder will be forfeited in favor b. Bid Security
of GSIS if the Highest Bidder, after negotiating and executing the
Management Contract, International Marketing/Reservation 5. The two sealed envelopes marked "OFFICIAL BID" and
System Contract specified by the Highest Bidder or other types of "SUPPORTING BID DOCUMENTS" must be submitted
contract in its strategic plan for The Manila Hotel, fails or refuses simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
to: Philippine Standard Time, on the date of the Public Bidding. No
bid shall be accepted after the closing time. Opened or tampered
i. Execute the Stock Purchase and Sale Agreement with GSIS not bids shall not be accepted.
later than October 23, 1995; or
6. The Secretariat will log and record the actual time of
ii. Pay the full amount of the offered purchase price not later than submission of the two sealed envelopes. The actual time of
October 23, 1995; or submission will also be indicated by the Secretariat on the face of
the two envelopes.
iii. Consummate the sale of the Block of Shares for any other
reason.
 99

7. After Step No. 6, the two sealed envelopes will be dropped in right to purchase the Block of Shares and GSIS will instead offer
the corresponding bid boxes provided for the purpose. These the Block of Shares to the other Qualified Bidders:
boxes will be in full view of the invited public.
a. The Highest Bidder must negotiate and execute with
H. OPENING AND READING OF BIDS GSIS/MHC the Management Contract, International Marketing
Reservation System Contract or other type of contract specified
1. After the closing time of 2:00 PM on the date of the Public by the Highest Bidder in its strategic plan for The Manila Hotel. If
Bidding, the PBAC will open all sealed envelopes marked the Highest Bidder is intending to provide only financial support to
"SUPPORTING BID DOCUMENTS" for screening, evaluation and The Manila Hotel, a separate institution may enter into the
acceptance. Those who submitted incomplete/insufficient aforementioned contract/s with GSIS/MHC.
documents or document/s which is/are not substantially in the
form required by PBAC will be disqualified. The envelope b. The Highest Bidder must execute the Stock Purchase and Sale
containing their Official Bid Form will be immediately returned to Agreement with GSIS, a copy of which will be distributed to each
the disqualified bidders. of the Qualified Bidder after the prequalification process is
completed.
2. The sealed envelopes marked "OFFICIAL BID" will be opened
at 3:00 PM. The name of the bidder and the amount of its bid 2. In the event that the Highest Bidder chooses a Management
price will be read publicly as the envelopes are opened. Contract for The Manila Hotel, the maximum levels for the
management fee structure that GSIS/MHC are prepared to
3. Immediately following the reading of the bids, the PBAC will accept in the Management Contract are as follows:
formally announce the highest bid and the Highest Bidder.
a. Basic management fee: Maximum of 2.5% of gross revenues.
4. The highest bid will be, determined on a price per share basis. (1)
In the event of a tie wherein two or more bids have the same
equivalent price per share, priority will be given to the bidder b. Incentive fee: Maximum of 8.0% of gross operating profit(1)
seeking the larger ownership interest in MHC. after deducting undistributed overhead expenses and the basic
management fee.
5. The Public Bidding will be declared a failed bidding in case:
c. Fixed component of the international marketing/reservation
a. No single bid is submitted within the prescribed period; or system fee: Maximum of 2.0% of gross room revenues.(1) The
Applicant should indicate in its Information Package if it is wishes
b. There is only one (1) bid that is submitted and acceptable to to charge this fee.
the PBAC.
Note (1): As defined in the uniform system of account for hotels.
I. EXECUTION OF THE NECESSARY CONTRACTS WITH
GSIS/MHC The GSIS/MHC have indicated above the acceptable parameters
for the hotel management fees to facilitate the negotiations with
1. The Highest Bidder must comply with the conditions set forth the Highest Bidder for the Management Contract after the Public
below by October 23, 1995 or the Highest Bidder will lose the Bidding.
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A Qualified Bidder envisioning a Management Contract for The 2. All payments should be made in the form of a Manager's
Manila Hotel should determine whether or not the management Check or unconditional Demand Draft, payable to the
fee structure above is acceptable before submitting their "Government Service Insurance System," issued by a reputable
prequalification documents to GSIS. banking institution licensed to do business in the Philippines and
acceptable to GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
M. GENERAL CONDITIONS
1. If for any reason, the Highest Bidder cannot be awarded the
Block of Shares, GSIS may offer this to the other Qualified 1. The GSIS unconditionally reserves the right to reject any or all
Bidders that have validly submitted bids provided that these applications, waive any formality therein, or accept such
Qualified are willing to match the highest bid in terms of price per application as maybe considered most advantageous to the
share. GSIS. The GSIS similarly reserves the right to require the
submission of any additional information from the Applicant as the
2. The order of priority among the interested Qualified Bidders will PBAC may deem necessary.
be in accordance wit the equivalent price per share of their
respective bids in their public Bidding, i.e., first and second 2. The GSIS further reserves the right to call off the Public
priority will be given to the Qualified Bidders that submitted the Bidding prior to acceptance of the bids and call for a new public
second and third highest bids on the price per share basis, bidding under amended rules, and without any liability
respectively, and so on. whatsoever to any or all the Qualified Bidders, except the
obligation to return the Bid Security.
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC
PARTNER 3. The GSIS reserves the right to reset the date of the
prequalification/bidding conference, the deadline for the
The Highest Bidder will be declared the Winning Bidder/Strategic submission of the prequalification documents, the date of the
Partner after the following conditions are met: Public Bidding or other pertinent activities at least three (3)
calendar days prior to the respective deadlines/target dates.
a. Execution of the necessary contract with GSIS/MHC not later
than October 23, 1995; and 4. The GSIS sells only whatever rights, interest and participation
it has on the Block of Shares.
b. Requisite approvals from the GSIS/MHC and COP/OGCC are
obtained. 5. All documents and materials submitted by the Qualified
Bidders, except the Bid Security, may be returned upon request.
I. FULL PAYMENT FOR THE BLOCK OF SHARES
6. The decision of the PBAC/GSIS on the results of the Public
1. Upon execution of the necessary contracts with GSIS/MHC, Bidding is final. The Qualified Bidders, by participating in the
the Winning Bidder/Strategic Partner must fully pay, not later than Public Bidding, are deemed to have agreed to accept and abide
October 23, 1995, the offered purchase price for the Block of by these results.
Shares after deducting the Bid Security applied as downpayment.
7. The GSIS will be held free and harmless form any liability, suit
or allegation arising out of the Public Bidding by the Qualified
Bidders who have participated in the Public Bidding. 3
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The second public bidding was held on September 18, 1995. Petitioner (2) Assuming section 10 paragraph 2 of Article XII is self-
bidded P41.00 per share for 15,300,000 shares and Renong Berhad executing whether the controlling shares of the Manila
bidded P44.00 per share also for 15,300,000 shares. The GSIS declared Hotel Corporation form part of our patrimony as a nation;
Renong Berhad the highest bidder and immediately returned petitioner's
bid security. (3) Whether GSIS is included in the term "State," hence,
mandated to implement section 10, paragraph 2 of Article
On September 28, 1995, ten days after the bidding, petitioner wrote to XII of the Constitution;
GSIS offering to match the bid price of Renong Berhad. It requested that
the award be made to itself citing the second paragraph of Section 10, (4) Assuming GSIS is part of the State, whether it failed to
Article XII of the Constitution. It sent a manager's check for thirty-three give preference to petitioner, a qualified Filipino
million pesos (P33,000,000.00) as bid security. corporation, over and above Renong Berhad, a foreign
corporation, in the sale of the controlling shares of the
Respondent GSIS, then in the process of negotiating with Renong Manila Hotel Corporation;
Berhad the terms and conditions of the contract and technical
agreements in the operation of the hotel, refused to entertain petitioner's (5) Whether petitioner is estopped from questioning the
request. sale of the shares to Renong Berhad, a foreign
corporation.
Hence, petitioner filed the present petition. We issued a temporary
restraining order on October 18, 1995. Anent the first issue, it is now familiar learning that a Constitution
provides the guiding policies and principles upon which is built the
Petitioner anchors its plea on the second paragraph of Article XII, Section substantial foundation and general framework of the law and
10 of the Constitution4 on the "National Economy and Patrimony" which government.5 As a rule, its provisions are deemed self-executing and can
provides: be enforced without further legislative action. 6 Some of its provisions,
however, can be implemented only through appropriate laws enacted by
xxx xxx xxx the Legislature, hence not self-executing.

In the grant of rights, privileges, and concessions To determine whether a particular provision of a Constitution is self-
covering the national economy and patrimony, the State executing is a hard row to hoe. The key lies on the intent of the framers
shall give preference to qualified Filipinos. of the fundamental law oftentimes submerged in its language. A
searching inquiry should be made to find out if the provision is intended
xxx xxx xxx as a present enactment, complete in itself as a definitive law, or if it
needs future legislation for completion and enforcement. 7 The inquiry
demands a micro-analysis of the text and the context of the provision in
The vital issues can be summed up as follows:
question.8
(1) Whether section 10, paragraph 2 of Article XII of the
Courts as a rule consider the provisions of the Constitution as self-
Constitution is a self-executing provision and does not
executing,9 rather than as requiring future legislation for their
need implementing legislation to carry it into effect;
enforcement. 10 The reason is not difficult to discern. For if they are not
treated as self-executing, the mandate of the fundamental law ratified by
the sovereign people can be easily ignored and nullified by
Congress. 11 Suffused with wisdom of the ages is the unyielding rule that
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legislative actions may give breath to constitutional rights but In the grant of rights, privileges, and concessions
congressional in action should not suffocate them. 12 covering the national economy and patrimony, the State
shall give preference to qualified Filipinos.
Thus, we have treated as self-executing the provisions in the Bill of
Rights on arrests, searches and seizures, 13 the rights of a person under The State shall regulate and exercise authority over
custodial investigation, 14 the rights of an accused, 15 and the privilege foreign investments within its national jurisdiction and in
against self-incrimination, 16 It is recognize a that legislation is accordance with its national goals and priorities.
unnecessary to enable courts to effectuate constitutional provisions
guaranteeing the fundamental rights of life, liberty and the protection of The first paragraph directs Congress to reserve certain areas of
property. 17 The same treatment is accorded to constitutional provisions investments in the country 25 to Filipino citizens or to corporations
forbidding the taking or damaging of property for public use without just sixty per
compensation.18 cent 26 of whose capital stock is owned by Filipinos. It further
commands Congress to enact laws that will encourage the
Contrariwise, case law lays down the rule that a constitutional provision is formation and operation of one hundred percent Filipino-owned
not self-executing where it merely announces a policy and its language enterprises. In checkered contrast, the second paragraph orders
empowers the Legislature to prescribe the means by which the policy the entire State to give preference to qualified Filipinos in the
shall be carried into effect. 19 Accordingly, we have held that the grant of rights and privileges covering the national economy and
provisions in Article II of our Constitution entitled "Declaration of patrimony. The third paragraph also directs the State to regulate
Principles and State Policies" should generally be construed as mere foreign investments in line with our national goals and well-set
statements of principles of the State. 20 We have also ruled that some priorities.
provisions of Article XIII on "Social Justice and Human Rights," 21 and
Article XIV on "Education Science and Technology, Arts, Culture end The first paragraph of Section 10 is not self-executing. By its
Sports" 22 cannot be the basis of judicially enforceable rights. Their express text, there is a categorical command for Congress to
enforcement is addressed to the discretion of Congress though they enact laws restricting foreign ownership in certain areas of
provide the framework for legislation 23 to effectuate their policy investments in the country and to encourage the formation and
content. 24 operation of wholly-owned Filipino enterprises. The right granted
by the provision is clearly still in esse. Congress has to breathe
Guided by this map of settled jurisprudence, we now consider whether life to the right by means of legislation. Parenthetically, this
Section 10, Article XII of the 1987 Constitution is self-executing or not. It paragraph was plucked from section 3, Article XIV of the 1973
reads: Constitution. 27 The provision in the 1973 Constitution affirmed
our ruling in the landmark case of Lao Ichong
Sec. 10. The Congress shall, upon recommendation of v. Hernandez, 28where we upheld the discretionary authority of
the economic and planning agency, when the national Congress to Filipinize certain areas of investments. 29 By
interest dictates, reserve to citizens of the Philippines or reenacting the 1973 provision, the first paragraph of section 10
to corporations or associations at least sixty per affirmed the power of Congress to nationalize certain areas of
centum of whose capital is owned by such citizens, or investments in favor of Filipinos.
such higher percentage as Congress may prescribe,
certain areas of investments. The Congress shall enact The second and third paragraphs of Section 10 are different. They are
measures that will encourage the formation and operation directed to the State and not to Congress alone which is but one of the
of enterprises whose capital is wholly owned by Filipinos. three great branches of our government. Their coverage is also broader
for they cover "the national economy and patrimony" and "foreign
 103

investments within [the] national jurisdiction" and not merely "certain glamorous international film and sports celebrities were housed in the
areas of investments." Beyond debate, they cannot be read as granting Hotel. It was also the situs of international conventions and conferences.
Congress the exclusive power to implement by law the policy of giving In the local scene, it was the venue of historic meetings, parties and
preference to qualified Filipinos in the conferral of rights and privileges conventions of political parties. The Hotel has reaped and continues
covering our national economy and patrimony. Their language does not reaping numerous recognitions and awards from international hotel and
suggest that any of the State agency or instrumentality has the privilege travel award-giving bodies, a fitting acknowledgment of Filipino talent and
to hedge or to refuse its implementation for any reason whatsoever. Their ingenuity. These are judicially cognizable facts which cannot be bent by a
duty to implement is unconditional and it is now. The second and the third biased mind.
paragraphs of Section 10, Article XII are thus self-executing.
The Hotel may not, as yet, have been declared a national cultural
This submission is strengthened by Article II of the Constitution entitled treasure pursuant to Republic Act No. 4846 but that does not exclude it
"Declaration of Principles and State Policies." Its Section 19 provides that from our national patrimony. Republic Act No. 4846, "The Cultural
"[T]he State shall develop a self-reliant and independent national Properties Preservation and Protection Act," merely provides a procedure
economy effectively controlled by Filipinos." It engrafts the all-important whereby a particular cultural property may be classified a "national
Filipino First policy in our fundamental law and by the use of the cultural treasure" or an "important cultural property. 32 Approved on June
mandatory word "shall," directs its enforcement by the whole State 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach
without any pause or a half- pause in time. and cannot be read as the exclusive law implementing section 10, Article
XII of the 1987 Constitution. To be sure, the law does not equate cultural
The second issue is whether the sale of a majority of the stocks of the treasure and cultural property as synonymous to the phrase "patrimony of
Manila Hotel Corporation involves the disposition of part of our national the nation."
patrimony. The records of the Constitutional Commission show that the
Commissioners entertained the same view as to its meaning. According The third issue is whether the constitutional command to the State
to Commissioner Nolledo, "patrimony" refers not only to our rich natural includes the respondent GSIS. A look at its charter will reveal that GSIS
resources but also to the cultural heritage of our race. 30 By this yardstick, is a government-owned and controlled corporation that administers funds
the sale of Manila Hotel falls within the coverage of the constitutional that come from the monthly contributions of government employees and
provision giving preferential treatment to qualified Filipinos in the grant of the government. 33 The funds are held in trust for a distinct purpose which
rights involving our national patrimony. The unique value of the Manila cannot be disposed of indifferently. 34 They are to be used to finance the
Hotel to our history and culture cannot be viewed with a myopic eye. The retirement, disability and life insurance benefits of the employees and the
value of the hotel goes beyond pesos and centavos. As chronicled by administrative and operational expenses of the GSIS, 35Excess funds,
Beth Day Romulo, 31 the hotel first opened on July 4, 1912 as a first-class however, are allowed to be invested in business and other ventures for
hotel built by the American Insular Government for Americans living in, or the benefit of the employees.36 It is thus contended that the GSIS
passing through, Manila while traveling to the Orient. Indigenous investment in the Manila Hotel Corporation is a simple business venture,
materials and Filipino craftsmanship were utilized in its construction, For hence, an act beyond the contemplation of section 10, paragraph 2 of
sometime, it was exclusively used by American and Caucasian travelers Article XII of the Constitution.
and served as the "official guesthouse" of the American Insular
Government for visiting foreign dignitaries. Filipinos began coming to the The submission is unimpressive. The GSIS is not a pure private
Hotel as guests during the Commonwealth period. When the Japanese corporation. It is essentially a public corporation created by Congress and
occupied Manila, it served as military headquarters and lodging for the granted an original charter to serve a public purpose. It is subject to the
highest-ranking officers from Tokyo. It was at the Hotel and the jurisdictions of the Civil Service Commission 37 and the Commission on
Intramuros that the Japanese made their last stand during the Liberation Audit. 38 As state-owned and controlled corporation, it is skin-bound to
of Manila. After the war, the Hotel again served foreign guests and adhere to the policies spelled out in the general welfare of the people.
Filipinos alike. Presidents and kings, premiers and potentates, as well as
 104

One of these policies is the Filipino First policy which the people elevated x x x           x x x          x x x
as a constitutional command.
As previously discussed, the constitutional command to enforce
The fourth issue demands that we look at the content of phrase "qualified the Filipino First policy is addressed to the State and not to
Filipinos" and their "preferential right." The Constitution desisted from Congress alone. Hence, the word "laws" should not be
defining their contents. This is as it ought to be for a Constitution only understood as limited to legislations but all state actions which
lays down flexible policies and principles which can bent to meet today's include applicable rules and regulations adopted by agencies and
manifest needs and tomorrow's unmanifested demands. Only a instrumentalities of the State in the exercise of their rule-making
constitution strung with elasticity can grow as a living constitution. power. In the case at bar, the bidding rules and regulations set
forth the standards to measure the qualifications of bidders
Thus, during the deliberations in the Constitutional Commission, Filipinos and foreigners alike. It is not seriously disputed that
Commissioner Nolledo to define the phrase brushed aside a suggestion petitioner qualified to bid as did Renong Berhad. 39
to define the phrase "qualified Filipinos." He explained that present and
prospective "laws" will take care of the problem of its interpretation, viz: Thus, we come to the critical issue of the degree of preference which
GSIS should have accorded petitioner, a qualified Filipino, over Renong
x x x           x x x          x x x Berhad, a foreigner, in the purchase of the controlling shares of the
Manila Hotel. Petitioner claims that after losing the bid, this right of
THE PRESIDENT. What is the suggestion of Commissioner preference gives it a second chance to match the highest bid of Renong
Rodrigo? Is it to remove the word "QUALIFIED?" Berhad.

MR. RODRIGO. No, no, but say definitely "TO QUALIFIED With due respect, I cannot sustain petitioner's submission. I prescind
FILIPINOS" as against whom? As against aliens over aliens? from the premise that the second paragraph of section 10, Article XII of
the Constitution is pro-Pilipino but not anti-alien. It is pro-Filipino for it
gives preference to Filipinos. It is not, however, anti-alien per se for it
MR. NOLLEDO. Madam President, I think that is understood. We
does not absolutely bar aliens in the grant of rights, privileges and
use the word "QUALIFIED" because the existing laws or the
concessions covering the national economy and patrimony. Indeed, in
prospective laws will always lay down conditions under which
the absence of qualified Filipinos, the State is not prohibited from
business map be done, for example, qualifications on capital,
granting these rights, privileges and concessions to foreigners if the act
qualifications on the setting up of other financial structures, et
will promote the weal of the nation.
cetera.
In implementing the policy articulated in section 10, Article XII of the
MR. RODRIGO. It is just a matter of style.
Constitution, the stellar task of our State policy-makers is to maintain a
creative tension between two desiderata — first, the need to develop our
MR. NOLLEDO Yes. economy and patrimony with the help of foreigners if necessary, and,
second, the need to keep our economy controlled by Filipinos. Rightfully,
MR. RODRIGO. If we say, "PREFERENCE TO QUALIFIED the framers of the Constitution did not define the degree of the right of
FILIPINOS," it can be understood as giving preference to qualified preference to be given to qualified Filipinos. They knew that for the right
Filipinos as against Filipinos who are not qualified. to serve the general welfare, it must have a malleable content that can be
adjusted by our policy-makers to meet the changing needs of our people.
MR. NOLLEDO. Madam President, that was the intention of the In fine, the right of preference of qualified Filipinos is to be determined by
proponents. The committee has accepted the amendment. degree as time dictates and circumstances warrant. The lesser the need
 105

for alien assistance, the greater the degree of the right of preference can petitioner cannot demand. Our symphaties may be with petitioner but the
be given to Filipinos and vice verse. court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of
Again, it should be stressed that the right and the duty to determine the preference depend on galaxy of facts and factors whose determination
degree of this privilege at any given time is addressed to the entire State. belongs to the province of the policy-making branches and agencies of
While under our constitutional scheme, the right primarily belongs to the State. We are duty-bound to respect that determination even if we
Congress as the lawmaking department of our government, other differ with the wisdom of their judgment. The right they grant may be little
branches of government, and all their agencies and instrumentalities, but we must uphold the grant for as long as the right of preference is not
share the power to enforce this state policy. Within the limits of their denied. It is only when a State action amounts to a denial of the right that
authority, they can act or promulgate rules and regulations defining the the Court can come in and strike down the denial as unconstitutional.
degree of this right of preference in cases where they have to make
grants involving the national economy and judicial duty. On the other Finally, I submit that petitioner is estopped from assailing the winning bid
hand, our duty is to strike down acts of the state that violate the policy. of Renong Berhad. Petitioner was aware of the rules and regulations of
the bidding. It knew that the rules and regulations do not provide that a
To date, Congress has not enacted a law defining the degree of the qualified Filipino bidder can match the winning bid submitting an inferior
preferential right. Consequently, we must turn to the rules and regulations bid. It knew that the bid was open to foreigners and that foreigners
of on respondents Committee Privatization and GSIS to determine the qualified even during the first bidding. Petitioner cannot be allowed to
degree of preference that petitioner is entitled to as a qualified Filipino in repudiate the rules which it agreed to respect. It cannot be allowed to
the subject sale. A tearless look at the rules and regulations will show obey the rules when it wins and disregard them when it loses. If
that they are silent on the degree of preferential right to be accorded sustained, petitioners' stance will wreak havoc on he essence of bidding.
qualified Filipino bidder. Despite their silence, however, they cannot be Our laws, rules and regulations require highest bidding to raise as much
read to mean that they do not grant any degree of preference to funds as possible for the government to maximize its capacity to deliver
petitioner for paragraph 2, section 10, Article XII of the Constitution is essential services to our people. This is a duty that must be discharged
deemed part of said rules and regulations. Pursuant to legal by Filipinos and foreigners participating in a bidding contest and the rules
hermeneutics which demand that we interpret rules to save them from are carefully written to attain this objective. Among others, bidders are
unconstitutionality, I submit that the right of preference of petitioner arises prequalified to insure their financial capability. The bidding is secret and
only if it tied the bid of Benong Berhad. In that instance, all things stand the bids are sealed to prevent collusion among the parties. This objective
equal, and bidder, as a qualified Pilipino bidder, should be preferred. will be undermined if we grant petitioner that privilege to know the
winning bid and a chance to match it. For plainly, a second chance to bid
It is with deep regret that I cannot subscribe to the view that petitioner will encourage a bidder not to strive to give the highest bid in the first
has a right to match the bid of Renong Berhad. Petitioner's submission bidding.
must be supported by the rules but even if we examine the rules inside-
out .thousand times, they can not justify the claimed right. Under the We support the Filipino First policy without any reservation. The visionary
rules, the right to match the highest bid arises only "if for any reason, the nationalist Don Claro M. Recto has warned us that the greatest tragedy
highest bidder cannot be awarded block of shares . . ." No reason has that can befall a Filipino is to be an alien in his own land. The Constitution
arisen that will prevent the award to Renong Berhad. It qualified as has embodied Recto's counsel as a state policy. But while the Filipino
bidder. It complied with the procedure of bidding. It tendered the highest First policy requires that we incline to a Filipino, it does not demand that
bid. It was declared as the highest bidder by the GSIS and the rules say we wrong an alien. Our policy makers can write laws and rules giving
this decision is final. It deserves the award as a matter of right for the favored treatment to the Filipino but we are not free to be unfair to a
rules clearly did not give to the petitioner as a qualified Filipino privilege foreigner after writing the laws and the rules. After the laws are written,
to match the higher bid of a foreigner. What the rules did not grant, they must be obeyed as written, by Filipinos and foreigners alike. The
 106

equal protection clause of the Constitution protects all against unfairness. The moral lesson here is simple: Do not do unto other what you dont
We can be pro-Filipino without unfairness to foreigner. want other to do unto you.

I vote to dismiss the petition. 3. In the absence of a law specifying the degree or extent of the "Filipino
First" policy of the Constitution, the constitutional preference for the
Narvasa, C.J., and Melo, J., concur. "qualified Filipinos" may be allowed only where all the bids are equal. In
this manner, we put the Filipino ahead without self-destructing him and
  without being unfair to the foreigner.

PANGANIBAN, J., dissenting: In short, the Constitution mandates a victory for the qualified Filipino only
when the scores are tied. But not when the ballgame is over and the
foreigner clearly posted the highest score.
I regret I cannot join the majority. To the incisive Dissenting Opinion of
Mr. Justice Reynato S. Puno, may I just add

1. The majority contends the Constitution should be interpreted to mean

that, after a bidding process is concluded, the losing Filipino bidder Separate Opinions
should be given the right to equal the highest foreign bid, and thus to win.
However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the PADILLA, J., concurring:
grant of rights . . . covering the national economy and patrimony, the
State shall give preference to qualified Filipinos." The majority concedes I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I
that there is no law defining the extent or degree of such would like to expound a bit more on the concept of national patrimony as
preference. Specifically, no statute empowers a losing Filipino bidder to including within its scope and meaning institutions such as the Manila
increase his bid and equal that of the winning foreigner. In the absence of Hotel.
such empowering law, the majority's strained interpretation, I respectfully
submit constitutes unadulterated judicial legislation, which makes bidding It is argued by petitioner that the Manila Hotel comes under "national
a ridiculous sham where no Filipino can lose and where no foreigner can patrimony" over which qualified Filipinos have the preference, in
win. Only in the Philippines!. ownership and operation. The Constitutional provision on point states:

2. Aside from being prohibited by the Constitution, such judicial is short- xxx xxx xxx
sighted and, viewed properly, gravely prejudicial to long-term Filipino
interest. It encourages other countries — in the guise of reverse comity or In the grant of rights, privileges, and concessions
worse, unabashed retaliation — to discriminate against us in their own covering the national economy and patrimony, the State
jurisdictions by authorizing their own nationals to similarly equal and shall Give preference to qualified Filipinos.1
defeat the higher bids of Filipino enterprises solely, while on the other
hand, allowing similar bids of other foreigners to remain unchallenged by
Petitioner's argument, I believe, is well taken. Under the 1987
their nationals. The majority's thesis will thus marginalize Filipinos as
Constitution, "national patrimony" consists of the natural resources
pariahs in the global marketplace with absolute no chance of winning any
provided by Almighty God (Preamble) in our territory (Article I) consisting
bidding outside our country. Even authoritarian regimes and hermit
of land, sea, and air.2study of the 1935 Constitution, where the concept of
kingdoms have long ago found out unfairness, greed and isolation are
"national patrimony" originated, would show that its framers decided to
self-defeating and in the long-term, self-destructing.
adopt the even more comprehensive expression "Patrimony of the
 107

Nation" in the belief that the phrase encircles a concept embracing not existing order." In the field of public bidding in the acquisition of things
only their natural resources of the country but practically everything that that pertain to the national patrimony, preference to qualified Filipinos
belongs to the Filipino people, the tangible and the material as well as the must allow a qualified Filipino to match or equal the higher bid of a non-
intangible and the spiritual assets and possessions of the people. It is to Filipino; the preference shall not operate only when the bids of the
be noted that the framers did not stop with conservation. They knew that qualified Filipino and the non-Filipino are equal in which case, the award
conservation alone does not spell progress; and that this may be should undisputedly be made to the qualified Filipino. The Constitutional
achieved only through development as a correlative factor to assure to preference should give the qualified Filipino an opportunity to match or
the people not only the exclusive ownership, but also the exclusive equal the higher bid of the non-Filipino bidder if the preference of the
benefits of their national patrimony).3 qualified Filipino bidder is to be significant at all.

Moreover, the concept of national patrimony has been viewed as It is true that in this present age of globalization of attitude towards
referring not only to our rich natural resources but also to the cultural foreign investments in our country, stress is on the elimination of barriers
heritage of our to foreign trade and investment in the country. While government
4
race. agencies, including the courts should re-condition their thinking to such a
trend, and make it easy and even attractive for foreign investors to come
There is no doubt in my mind that the Manila Hotel is very much a part of to our shores, yet we should not preclude ourselves from reserving to us
our national patrimony and, as such, deserves constitutional protection Filipinos certain areas where our national identity, culture and heritage
as to who shall own it and benefit from its operation. This institution has are involved. In the hotel industry, for instance, foreign investors have
played an important role in our nation's history, having been the venue of established themselves creditably, such as in the Shangri-La, the Nikko,
many a historical event, and serving as it did, and as it does, as the the Peninsula, and Mandarin Hotels. This should not stop us from
Philippine Guest House for visiting foreign heads of state, dignitaries, retaining 51% of the capital stock of the Manila Hotel Corporation in the
celebrities, and others.5 hands of Filipinos. This would be in keeping with the intent of the Filipino
people to preserve our national patrimony, including our historical and
It is therefore our duty to protect and preserve it for future generations of cultural heritage in the hands of Filipinos.
Filipinos. As President Manuel L. Quezon once said, we must exploit the
natural resources of our country, but we should do so with. an eye to the VITUG, J., concurring:
welfare of the future generations. In other words, the leaders of today are
the trustees of the patrimony of our race. To preserve our national I agree with Mr. Justice Josue N. Bellosillo on his clear-cut statements,
patrimony and reserve it for Filipinos was the intent of the distinguished shared by Mr. Justice Reynato S. Puno in a well written separate
gentlemen who first framed our Constitution. Thus, in debating the need (dissenting) opinion, that:
for nationalization of our lands and natural resources, one expounded
that we should "put more teeth into our laws, and; not make the First, the provision in our fundamental law which provides that "(I)n the
nationalization of our lands and natural resources a subject of ordinary grant of rights, privileges, and concessions covering the national
legislation but of constitutional enactment" 6 To quote further: "Let not our economy and patrimony, the State shall give preference to qualified
children be mere tenants and trespassers in their own country. Let us Filipinos"1 is self-executory. The provision verily does not need, although
preserve and bequeath to them what is rightfully theirs, free from all it can obviously be amplified or regulated by, an enabling law or a set of
foreign liens and encumbrances". 7 rules.

Now, a word on preference. In my view "preference to qualified Filipinos", Second, the term "patrimony" does not merely refer to the country's
to be meaningful, must refer not only to things that are peripheral, natural resources but also to its cultural heritage. A "historical landmark,"
collateral, or tangential. It must touch and affect the very "heart of the
 108

to use the words of Mr. Justice Justo P. Torres, Jr., Manila Hotel has now Under the rules on public bidding of the Government Service and
indeed become part of Philippine heritage. Insurance System, if petitioner and the Malaysian firm had offered the
same price per share, "priority [would be given] to the bidder seeking the
Third, the act of the Government Service Insurance System ("GSIS"), a larger ownership interest in MHC," 2 so that petitioner bid for more shares,
government entity which derives its authority from the State, in selling it would be preferred to the Malaysian corporation for that reason and not
51% of its share in MHC should be considered an act of the State subject because it is a Philippine corporation. Consequently, it is only in cases
to the Constitutional mandate. like the present one, where an alien corporation is the highest bidder, that
preferential treatment of the Philippine corporation is mandated not by
On the pivotal issue of the degree of "preference to qualified Filipinos," I declaring it winner but by allowing it "to match the highest bid in terms of
find it somewhat difficult to take the same path traversed by the forceful price per share" before it is awarded the shares of stocks. 3 That, to me, is
reasoning of Justice Puno. In the particular case before us, the only what "preference to qualified Filipinos" means in the context of this case
meaningful preference, it seems, would really be to allow the qualified — by favoring Filipinos whenever they are at a disadvantage vis-a-
Filipino to match the foreign bid for, as a particular matter, I cannot see vis foreigners.
any bid that literally calls for millions of dollars to be at par (to the last
cent) with another. The magnitude of the magnitude of the bids is such This was the meaning given in Co Chiong v. Cuaderno4 to a 1947 statute
that it becomes hardly possible for the competing bids to stand exactly giving "preference to Filipino citizens in the lease of public market
"equal" which alone, under the dissenting view, could trigger the right of stalls."5 This Court upheld the cancellation of existing leases covering
preference. market stalls occupied by persons who were not Filipinos and the award
thereafter of the stalls to qualified Filipino vendors as ordered by the
It is most unfortunate that Renong Berhad has not been spared this great Department of Finance. Similarly, in Vda. de Salgado v. De la
disappointment, a letdown that it did not deserve, by a simple and timely Fuente,6 this Court sustained the validity of a municipal ordinance passed
advise of the proper rules of bidding along with the peculiar constitutional pursuant to the statute (R.A. No. 37), terminating existing leases of public
implications of the proposed transaction. It is also regrettable that the market stalls and granting preference to Filipino citizens in the issuance
Court at time is seen, to instead, be the refuge for bureaucratic of new licenses for the occupancy of the stalls. In Chua Lao
inadequate which create the perception that it even takes on non- v. Raymundo,7 the preference granted under the statute was held to
justiciable controversies. apply to cases in which Filipino vendors sought the same stalls occupied
by alien vendors in the public markets even if there were available other
stalls as good as those occupied by aliens. "The law, apparently, is
All told, I am constrained to vote for granting the petition.
applicable whenever there is a conflict of interest between Filipino
applicants and aliens for lease of stalls in public markets, in which
MENDOZA, J., concurring in the judgment: situation the right to preference immediately arises."8

I take the view that in the context of the present controversy the only way Our legislation on the matter thus antedated by a quarter of a century
to enforce the constitutional mandate that "[i]n the grant of rights, efforts began only in the 1970s in America to realize the promise of
privileges and concessions covering the national patrimony the State equality, through affirmative action and reverse discrimination programs
shall give preference to qualified Filipinos"1 is to allow petitioner designed to remedy past discrimination against colored people in such
Philippine corporation to equal the bid of the Malaysian firm Renong areas as employment, contracting and licensing. 9 Indeed, in vital areas of
Berhad for the purchase of the controlling shares of stocks in the Manila our national economy, there are situations in which the only way to place
Hotel Corporation. Indeed, it is the only way a qualified Filipino of Filipinos in control of the national economy as contemplated in the
Philippine corporation can be given preference in the enjoyment of a Constitution 10 is to give them preferential treatment where they can at
right, privilege or concession given by the State, by favoring it over a least stand on equal footing with aliens.
foreign national corporation.
 109

There need be no fear that thus preferring Filipinos would either invite perhaps is due to the belief that in the words of Justice Oliver Wendell
foreign retaliation or deprive the country of the benefit of foreign capital or Holmes, Jr., a "page of history is worth a volume of logic."
know-how. We are dealing here not with common trades of common
means of livelihood which are open to aliens in our midst, 11 but with the I will, however, attempt to share my thoughts on whether the Manila Hotel
sale of government property, which is like the grant of government has a historical and cultural aspect within the meaning of the constitution
largess of benefits and concessions covering the national economy" and and thus, forming part of the "patrimony of the nation".
therefore no one should begrudge us if we give preferential treatment to
our citizens. That at any rate is the command of the Constitution. For the Section 10, Article XII of the 1987 Constitution provides:
Manila Hotel is a business owned by the Government. It is being
privatized. Privatization should result in the relinquishment of the
xxx xxx xxx
business in favor of private individuals and groups who are Filipino
citizens, not in favor of aliens.
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the State
Nor should there be any doubt that by awarding the shares of stocks to
shall give preference to qualified Filipinos.
petitioner we would be trading competence and capability for nationalism.
Both petitioner and the Malaysian firm are qualified, having hurdled the
prequalification process. 12 It is only the result of the public bidding that is The State shall regulate and exercise authority over
sought to be modified by enabling petitioner to up its bid to equal the foreign investments within its national goals and priorities.
highest bid.
The foregoing provisions should be read in conjunction with Article II of
Nor, finally, is there any basis for the suggestion that to allow a Filipino the same Constitution pertaining to "Declaration of Principles and State
bidder to match the highest bid of an alien could encourage speculation, Policies" which ordain —
since all that a Filipino entity would then do would be not to make a bid or
make only a token one and, after it is known that a foreign bidder has The State shall develop a self-reliant and independent
submitted the highest bid, make an offer matching that of the foreign firm. national economy effectively by Filipinos. (Sec. 19).
This is not possible under the rules on public bidding of the GSIS. Under
these rules there is a minimum bid required (P36.87 per share for a Interestingly, the matter of giving preference to "qualified Filipinos" was
range of 9 to 15 million shares). 13 Bids below the minimum will not be one of the highlights in the 1987 Constitution Commission proceedings
considered. On the other hand, if the Filipino entity, after passing the thus:
prequalification process, does not submit a bid, he will not be allowed to
match the highest bid of the foreign firm because this is a privilege x x x           x x x          x x x
allowed only to those who have "validly submitted bids." 14 The
suggestion is, to say the least, fanciful and has no basis in fact. MR. NOLLEDO. The Amendment will read: "IN THE
GRANT OF RIGHTS, PRIVILEGES AND
For the foregoing reasons, I vote to grant the petition. CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL
TORRES, JR., J., separate opinion: GIVE PREFERENCE TO QUALIFIED FILIPINOS". And
the word "Filipinos" here, as intended by the proponents,
Constancy in law is not an attribute of a judicious mind. I say this as we will include not only individual Filipinos but also Filipino-
are not confronted in the case at bar with legal and constitutional issues Controlled entities fully controlled by Filipinos (Vol. III,
— and yet I am driven so to speak on the side of history. The reason Records of the Constitutional Commission, p. 608).
 110

MR. MONSOD. We also wanted to add, as I subscribe to the view that history, culture, heritage, and traditions are
Commissioner Villegas said, this committee and this not legislated and is the product of events, customs, usages and
body already approved what is known as the Filipino practices. It is actually a product of growth and acceptance by the
First policy which was suggested by Commissioner de collective mores of a race. It is the spirit and soul of a people.
Castro. So that it is now in our Constitution (Vol. IV,
Records of the Constitutional Commission, p. 225). The Manila Hotel is part of our history, culture and heritage. Every inch of
the Manila Hotel is witness to historic events (too numerous to mention)
Commissioner Jose Nolledo explaining the provision adverted to which shaped our history for almost 84 years.
above, said:
As I intimated earlier, it is not my position in this opinion, to examine the
MR. NOLLEDO. In the grant of rights, privileges and single instances of the legal largese which have given rise to this
concessions covering the national economy and controversy. As I believe that has been exhaustively discussed in
patrimony, the State shall give preference to qualified the ponencia. Suffice it to say at this point that the history of the Manila
Filipinos. Hotel should not be placed in the auction block of a purely business
transaction, where profits subverts the cherished historical values of our
MR. FOZ. In connection with that amendment, if a people.
foreign enterprise is qualified and the Filipinos
enterprise is also qualified, will the Filipino enterprise As a historical landmark in this "Pearl of the Orient Seas", it has its
still be given a preference? enviable tradition which, in the words of the philosopher Salvador de
Madarriaga tradition is "more of a river than a stone, it keeps flowing, and
MR. NOLLEDO. Obviously. one must view the flowing , and one must view the flow of both directions.
If you look towards the hill from which the river flows, you see tradition in
MR. FOZ. If the foreigner is more qualified in some the form of forceful currents that push the river or people towards the
aspects than the Filipino enterprise, will the Filipino still future, and if you look the other way, you progress."
be preferred:?
Indeed, tradition and progress are the same, for progress depends on the
MR. NOLLEDO. The answer is "yes". (Vol. III, p. 616, kind of tradition. Let us not jettison the tradition of the Manila Hotel and
Records of the Constitutional Commission). thereby repeat our colonial history.

The nationalistic provisions of the 1987 Constitution reflect the history I grant, of course the men of the law can see the same subject in different
and spirit of the Malolos Constitution of 1898, the 1935 Constitution and lights.
the 1973 Constitutions. That we have no reneged on this nationalist
policy is articulated in one of the earliest case, this Court said — I remember, however, a Spanish proverb which says — "He is always
right who suspects that he makes mistakes". On this note, I say that if I
The nationalistic tendency is manifested in various have to make a mistake, I would rather err upholding the belief that the
provisions of the Constitution. . . . It cannot therefore be Filipino be first under his Constitution and in his own land.
said that a law imbued with the same purpose and spirit
underlying many of the provisions of the Constitution is I vote GRANT the petition.
unreasonable, invalid or unconstitutional (Ichong, et al.
vs. Hernandez, et al., 101 Phil. 1155). PUNO, J., dissenting:
 111

This is a. petition for prohibition and mandamus filed by the Manila Prince Second — Submit the highest bid on a price per share basis for the
Hotel Corporation, a domestic corporation, to stop the Government Block of Shares;
Service Insurance System (GSIS) from selling the controlling shares of
the Manila Hotel Corporation to a foreign corporation. Allegedly, the sale Third — Negotiate and execute the necessary contracts with
violates the second paragraph of section 10, Article XII of the GSIS/MHC not later than October 23, 1995;
Constitution.
xxx xxx xxx
Respondent GSIS is a government-owned and controlled corporation. It
is the sole owner of the Manila Hotel which it operates through its IV GUIDELINES FOR PREQUALIFICATION
subsidiary, the Manila Hotel Corporation. Manila Hotel was included in
the privatization program of the government. In 1995, GSIS proposed to
A. PARTIES WHO MAP APPLY FOR PREQUALIFICATION
sell to interested buyers 30% to 51% of its shares, ranging from
9,000,000 to 15,300,000 shares, in the Manila Hotel Corporation. After
the absence of bids at the first public bidding, the block of shares offered The Winning Bidder/Strategic Partner will be expected to provide
for sale was increased from a maximum of 30% to 51%. Also, the management expertise and/or an international marketing reservation
winning bidder, or the eventual "strategic partner" of the GSIS was system, and financial support to strengthen the profitability and
required to "provide management expertise and/or an international performance of The Manila Hotel. In this context, the GSIS is inviting
marketing/reservation system, and financial support to strengthen the to the prequalification process any local and/or foreign corporation,
profitability and performance of the Manila Hotel" 1 The proposal was consortium/joint venture or juridical entity with at least one of the
approved by respondent Committee on Privatization. following qualifications:

In July 1995, a conference was held where prequalification documents a. Proven management .expertise in the hotel industry; or
and the bidding rules were furnished interested parties. Petitioner Manila
Prince Hotel, a domestic corporation, and Renong Berhad, Malaysian b. Significant equity ownership (i.e. board representation) in another
firm with ITT Sheraton as operator, prequalified.2 hotel company; or

The bidding rules and procedures entitled "Guidelines and Procedures: c. Overall management and marketing expertise to successfully
Second Prequalification and Public Bidding of the MHC Privatization" operate the Manila Hotel.
provide:
Parties interested in bidding for MHC should be able to provide
I INTRODUCTION AND HIGHLIGHTS access to the requisite management expertise and/or international
marketing/reservation system for The Manila Hotel.
DETERMINING THE WINNING BIDDER/STRATEGIC PARTNER
xxx xxx xxx
The party that accomplishes the steps set forth below will be
declared the Winning Bidder/Strategic Partner and will be awarded D. PREQUALIFICATION DOCUMENTS
the Block of Shares:
xxx xxx xxx
First — Pass the prequalification process;
E. APPLICATION PROCEDURE
 112

1. DOCUMENTS AVAILABLE AT THE REGISTRATION OFFICE 2. If the Applicant is a Consortium/Joint Venture, the evaluation will
consider the overall qualifications of the group, taking into account
The prequalification documents can be secured at the Registration the contribution of each member to the venture.
Office between 9:00 AM to 4:00 PM during working days within the
period specified in Section III. Each set of documents consists of the 3. The decision of the PBAC with respect to the results of the PBAC
following: evaluation will be final.

a. Guidelines and Procedures: Second Prequalification and Public 4. The Applicant shall be evaluated according to the criteria set forth
Bidding of the MHC Privatization below:

b. Confidential Information Memorandum: The Manila Hotel a. Business management expertise, track record, and experience
Corporation
b. Financial capability.
c. Letter of Invitation. to the Prequalification and Bidding Conference
c. Feasibility and acceptability of the proposed strategic plan for the
xxx xxx xxx Manila Hotel

4. PREQUALIFICATION AND BIDDING CONFERENCE 5. The PBAC will shortlist such number of Applicants as it may deem
appropriate.
A prequalification and bidding conference will be held at The Manila
Hotel on the date specified in Section III to allow the Applicant to 6. The parties that prequalified in the first MHC public bidding — ITT
seek clarifications and further information regarding the guidelines Sheraton, Marriot International Inc., Renaissance Hotels
and procedures. Only those who purchased the prequalification International Inc., consortium of RCBC Capital/Ritz Carlton — may
documents will be allowed in this conference. Attendance to this participate in the Public Bidding without having to undergo the
conference is strongly advised, although the Applicant will not be prequalification process again.
penalized if it does not attend.
G. SHORTLIST OF QUALIFIED BIDDERS
5. SUBMISSION OF PREQUALIFICATION DOCUMENTS
1. A notice of prequalification results containing the shortlist of
The applicant should submit 5 sets of the prequalification documents Qualified Bidders will be posted at the Registration Office at the date
(1 original set plus 4 copies) at the Registration Office between 9:00 specified in Section III.
AM to 4:00 PM during working days within the period specified in
Section III. 2. In the case of a Consortium/Joint Venture, the withdrawal by
member whose qualification was a material consideration for being
F. PREQUALIFICATION PROCESS included in the shortlist is ground for disqualification of the Applicant.

1. The Applicant will be evaluated by the PBAC with the assistance V. GUIDELINES FOR THE PUBLIC BIDDING
of the TEC based on the Information Package and other information
available to the PBAC. A. PARTIES WHO MAY PARTICIPATE IN THE PUBLIC BIDDING
 113

All parties in the shortlist of Qualified Bidders will be eligible to F. SUPPORTING DOCUMENTS
participate in the Public Bidding.
During the Public Bidding, the following documents should be
B. BLOCK OF SHARES submitted along with the bid in a separate envelop marked
"SUPPORTING DOCUMENTS":
A range of Nine Million (9,000,000) to Fifteen Million Three Hundred
Thousand (15,300,000) shares of stock representing Thirty Percent 1. WRITTEN AUTHORITY TO BID (UNDER OATH).
to Fifty-One Percent (30%-51%) of the issued and outstanding
shares of MHC, will be offered in the Public Bidding by the GSIS. If the Qualified Bidder is a corporation, the representative of the
The Qualified Bidders will have the Option of determining the Qualified Bidder should submit a Board resolution which adequately
number of shares within the range to bid for. The range is intended authorizes such representative to bid for and in behalf of the
to attract bidders with different preferences and objectives for the corporation with full authority to perform such acts necessary or
operation and management of The Manila Hotel. requisite to bind the Qualified Bidder.

C. MINIMUM BID REQUIRED ON A PRICE PER SHARE BASIS If the Qualified Bidder is a Consortium/Joint Venture, each member
of the Consortium/Joint venture should submit a Board resolution
1. Bids will be evaluated on a price per share basis. The minimum authorizing one of its members and such member's representative to
bid required on a price per share basis for the Block of Shares is make the bid on behalf of the group with full authority to perform
Thirty-Six Pesos and Sixty-Seven Centavos (P36.67). such acts necessary or requisite to bind the Qualified Bidder.

2. Bids should be in the Philippine currency payable to the GSIS. 2. BID SECURITY

3. Bids submitted with an equivalent price per share below the a. The Qualified Bidder should deposit Thirty-Three Million Pesos
minimum required will not considered. (P33,000,00), in Philippine currency as Bid Security in the form of:

D. TRANSFER COSTS i. Manager's check or unconditional demand draft payable to the

"Government Service Insurance System" and issued by a reputable
x x x           x x x          x x x banking institution duly licensed to do business in the Philippines
and acceptable to GSIS; or
E. OFFICIAL BID FORM
ii. Standby-by letter of credit issued by a reputable banking
1. Bids must be contained in the prescribed Official Bid Form, a copy institution acceptable to the GSIS.
of which is attached as Annex IV. The Official Bid Form must be
properly accomplished in all details; improper accomplishment may b. The GSIS will reject a bid if:
be a sufficient basis for disqualification.
i. The bid does not have Bid Security; or
2. During the Public Bidding, the Qualified Bidder will submit the
Official Bid Form, which will indicate the offered purchase price, in a ii. The Bid Security accompanying the bid is for less than the
sealed envelope marked "OFFICIAL BID." required amount.
 114

c. If the Bid Security is in the form of a manager's check or New GSIS Headquarters Building
unconditional demand draft, the interest earned on the Bid Security Financial Center, Reclamation Area
will be for the account of GSIS. Roxas Boulevard, Pasay City, Metro Manila.

d. If the Qualified Bidder becomes the winning Bidder/Strategic 2. The Secretariat of the PBAC will be stationed at the Public
Partner, the Bid Security will be applied as the downpayment on the Bidding to accept any and all bids and supporting requirements.
Qualified Bidder's offered purchase price. Representatives from the Commission on Audit and COP will be
invited to witness the proceedings.
e. The Bid Security of the Qualified Bidder will be returned
immediately after the Public Bidding if the Qualified Bidder is not 3. The Qualified Bidder should submit its bid using the Official Bid
declared the Highest Bidder. Form. The accomplished Official Bid Form should be submitted in a
sealed envelope marked "OFFICIAL BID."
f. The Bid Security will be returned by October 23, 1995 if the
Highest Bidder is unable to negotiate and execute with GSIS/MHC 4. The Qualified Bidder should submit the following documents
the Management Contract, International Marketing/Reservation in another sealed envelope marked "SUPPORTING BID
System Contract or other types of contract specified by the Highest DOCUMENTS"
Bidder in its strategic plan for The Manila Hotel.
a. Written Authority Bid
g. The Bid Security of the Highest Bidder will be forfeited in favor of
GSIS if the Highest Bidder, after negotiating and executing the b. Bid Security
Management Contract, International Marketing/Reservation System
Contract specified by the Highest Bidder or other types of contract in 5. The two sealed envelopes marked "OFFICIAL BID" and
its strategic plan for The Manila Hotel, fails or refuses to: "SUPPORTING BID DOCUMENTS" must be submitted
simultaneously to the Secretariat between 9:00 AM and 2:00 PM,
i. Execute the Stock Purchase and Sale Agreement with GSIS not Philippine Standard Time, on the date of the Public Bidding. No bid
later than October 23, 1995; or shall be accepted after the closing time. Opened or tampered bids
shall not be accepted.
ii. Pay the full amount of the offered purchase price not later than
October 23, 1995; or 6. The Secretariat will log and record the actual time of submission
of the two sealed envelopes. The actual time of submission will also
iii. Consummate the sale of the Block of Shares for any other be indicated by the Secretariat on the face of the two envelopes.
reason.
7. After Step No. 6, the two sealed envelopes will be dropped in the
G. SUBMISSION OF BIDS corresponding bid boxes provided for the purpose. These boxes will
be in full view of the invited public.
1. The Public Bidding will be held on September 7, 1995 at the
following location: H. OPENING AND READING OF BIDS

1. After the closing time of 2:00 PM on the date of the Public

Bidding, the PBAC will open all sealed envelopes marked
 115

"SUPPORTING BID DOCUMENTS" for screening, evaluation and separate institution may enter into the aforementioned contract/s
acceptance. Those who submitted incomplete/insufficient with GSIS/MHC.
documents or document/s which is/are not substantially in the form
required by PBAC will be disqualified. The envelope containing their b. The Highest Bidder must execute the Stock Purchase and Sale
Official Bid Form will be immediately returned to the disqualified Agreement with GSIS, a copy of which will be distributed to each of
bidders. the Qualified Bidder after the prequalification process is completed.

2. The sealed envelopes marked "OFFICIAL BID" will be opened at 2. In the event that the Highest Bidder chooses a Management
3:00 PM. The name of the bidder and the amount of its bid price will Contract for The Manila Hotel, the maximum levels for the
be read publicly as the envelopes are opened. management fee structure that GSIS/MHC are prepared to accept in
the Management Contract are as follows:
3. Immediately following the reading of the bids, the PBAC will
formally announce the highest bid and the Highest Bidder. a. Basic management fee: Maximum of 2.5% of gross revenues.(1)

4. The highest bid will be, determined on a price per share basis. In b. Incentive fee: Maximum of 8.0% of gross operating profit(1) after
the event of a tie wherein two or more bids have the same deducting undistributed overhead expenses and the basic
equivalent price per share, priority will be given to the bidder seeking management fee.
the larger ownership interest in MHC.
c. Fixed component of the international marketing/reservation
5. The Public Bidding will be declared a failed bidding in case: system fee: Maximum of 2.0% of gross room revenues.(1) The
Applicant should indicate in its Information Package if it is wishes to
a. No single bid is submitted within the prescribed period; or charge this fee.

b. There is only one (1) bid that is submitted and acceptable to the Note (1): As defined in the uniform system of account for hotels.
PBAC.
The GSIS/MHC have indicated above the acceptable parameters for
I. EXECUTION OF THE NECESSARY CONTRACTS WITH the hotel management fees to facilitate the negotiations with the
GSIS/MHC Highest Bidder for the Management Contract after the Public
Bidding.
1. The Highest Bidder must comply with the conditions set forth
below by October 23, 1995 or the Highest Bidder will lose the right to A Qualified Bidder envisioning a Management Contract for The
purchase the Block of Shares and GSIS will instead offer the Block Manila Hotel should determine whether or not the management fee
of Shares to the other Qualified Bidders: structure above is acceptable before submitting their prequalification
documents to GSIS.
a. The Highest Bidder must negotiate and execute with GSIS/MHC
the Management Contract, International Marketing Reservation J. BLOCK SALE TO THE OTHER QUALIFIED BIDDERS
System Contract or other type of contract specified by the Highest
Bidder in its strategic plan for The Manila Hotel. If the Highest Bidder 1. If for any reason, the Highest Bidder cannot be awarded the Block
is intending to provide only financial support to The Manila Hotel, a of Shares, GSIS may offer this to the other Qualified Bidders that
 116

have validly submitted bids provided that these Qualified are willing additional information from the Applicant as the PBAC may deem
to match the highest bid in terms of price per share. necessary.

2. The order of priority among the interested Qualified Bidders will 2. The GSIS further reserves the right to call off the Public Bidding
be in accordance wit the equivalent price per share of their prior to acceptance of the bids and call for a new public bidding
respective bids in their public Bidding, i.e., first and second priority under amended rules, and without any liability whatsoever to any or
will be given to the Qualified Bidders that submitted the second and all the Qualified Bidders, except the obligation to return the Bid
third highest bids on the price per share basis, respectively, and so Security.
on.
3. The GSIS reserves the right to reset the date of the
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC prequalification/bidding conference, the deadline for the submission
PARTNER of the prequalification documents, the date of the Public Bidding or
other pertinent activities at least three (3) calendar days prior to the
The Highest Bidder will be declared the Winning Bidder/Strategic respective deadlines/target dates.
Partner after the following conditions are met:
4. The GSIS sells only whatever rights, interest and participation it
a. Execution of the necessary contract with GSIS/MHC not later than has on the Block of Shares.
October 23, 1995; and
5. All documents and materials submitted by the Qualified Bidders,
b. Requisite approvals from the GSIS/MHC and COP/OGCC are except the Bid Security, may be returned upon request.
obtained.
6. The decision of the PBAC/GSIS on the results of the Public
I. FULL PAYMENT FOR THE BLOCK OF SHARES Bidding is final. The Qualified Bidders, by participating in the Public
Bidding, are deemed to have agreed to accept and abide by these
1. Upon execution of the necessary contracts with GSIS/MHC, the results.
Winning Bidder/Strategic Partner must fully pay, not later than
October 23, 1995, the offered purchase price for the Block of Shares 7. The GSIS will be held free and harmless form any liability, suit or
after deducting the Bid Security applied as downpayment. allegation arising out of the Public Bidding by the Qualified Bidders
who have participated in the Public Bidding. 3
2. All payments should be made in the form of a Manager's Check or
unconditional Demand Draft, payable to the "Government Service The second public bidding was held on September 18, 1995. Petitioner
Insurance System," issued by a reputable banking institution bidded P41.00 per share for 15,300,000 shares and Renong Berhad
licensed to do business in the Philippines and acceptable to GSIS. bidded P44.00 per share also for 15,300,000 shares. The GSIS declared
Renong Berhad the highest bidder and immediately returned petitioner's
M. GENERAL CONDITIONS bid security.

1. The GSIS unconditionally reserves the right to reject any or all On September 28, 1995, ten days after the bidding, petitioner wrote to
applications, waive any formality therein, or accept such application GSIS offering to match the bid price of Renong Berhad. It requested that
as maybe considered most advantageous to the GSIS. The GSIS the award be made to itself citing the second paragraph of Section 10,
similarly reserves the right to require the submission of any Article XII of the Constitution. It sent a manager's check for thirty-three
million pesos (P33,000,000.00) as bid security.
 117

Respondent GSIS, then in the process of negotiating with Renong (5) Whether petitioner is estopped from questioning the
Berhad the terms and conditions of the contract and technical sale of the shares to Renong Berhad, a foreign
agreements in the operation of the hotel, refused to entertain petitioner's corporation.
request.
Anent the first issue, it is now familiar learning that a Constitution
Hence, petitioner filed the present petition. We issued a temporary provides the guiding policies and principles upon which is built the
restraining order on October 18, 1995. substantial foundation and general framework of the law and
government.5 As a rule, its provisions are deemed self-executing and can
Petitioner anchors its plea on the second paragraph of Article XII, Section be enforced without further legislative action. 6 Some of its provisions,
10 of the Constitution4 on the "National Economy and Patrimony" which however, can be implemented only through appropriate laws enacted by
provides: the Legislature, hence not self-executing.

xxx xxx xxx To determine whether a particular provision of a Constitution is self-

executing is a hard row to hoe. The key lies on the intent of the framers
In the grant of rights, privileges, and concessions of the fundamental law oftentimes submerged in its language. A
covering the national economy and patrimony, the State searching inquiry should be made to find out if the provision is intended
shall give preference to qualified Filipinos. as a present enactment, complete in itself as a definitive law, or if it
needs future legislation for completion and enforcement. 7 The inquiry
demands a micro-analysis of the text and the context of the provision in
xxx xxx xxx
question.8
The vital issues can be summed up as follows:
Courts as a rule consider the provisions of the Constitution as self-
executing,9 rather than as requiring future legislation for their
(1) Whether section 10, paragraph 2 of Article XII of the enforcement. 10 The reason is not difficult to discern. For if they are not
Constitution is a self-executing provision and does not treated as self-executing, the mandate of the fundamental law ratified by
need implementing legislation to carry it into effect; the sovereign people can be easily ignored and nullified by
Congress. 11 Suffused with wisdom of the ages is the unyielding rule that
(2) Assuming section 10 paragraph 2 of Article XII is self- legislative actions may give breath to constitutional rights but
executing whether the controlling shares of the Manila congressional in action should not suffocate them. 12
Hotel Corporation form part of our patrimony as a nation;
Thus, we have treated as self-executing the provisions in the Bill of
(3) Whether GSIS is included in the term "State," hence, Rights on arrests, searches and seizures, 13 the rights of a person under
mandated to implement section 10, paragraph 2 of Article custodial investigation, 14 the rights of an accused, 15 and the privilege
XII of the Constitution; against self-incrimination, 16 It is recognize a that legislation is
unnecessary to enable courts to effectuate constitutional provisions
(4) Assuming GSIS is part of the State, whether it failed to guaranteeing the fundamental rights of life, liberty and the protection of
give preference to petitioner, a qualified Filipino property. 17 The same treatment is accorded to constitutional provisions
corporation, over and above Renong Berhad, a foreign forbidding the taking or damaging of property for public use without just
corporation, in the sale of the controlling shares of the compensation.18
Manila Hotel Corporation;
 118

Contrariwise, case law lays down the rule that a constitutional provision is formation and operation of one hundred percent Filipino-owned
not self-executing where it merely announces a policy and its language enterprises. In checkered contrast, the second paragraph orders
empowers the Legislature to prescribe the means by which the policy the entire State to give preference to qualified Filipinos in the
shall be carried into effect. 19 Accordingly, we have held that the grant of rights and privileges covering the national economy and
provisions in Article II of our Constitution entitled "Declaration of patrimony. The third paragraph also directs the State to regulate
Principles and State Policies" should generally be construed as mere foreign investments in line with our national goals and well-set
statements of principles of the State. 20 We have also ruled that some priorities.
provisions of Article XIII on "Social Justice and Human Rights," 21 and
Article XIV on "Education Science and Technology, Arts, Culture end The first paragraph of Section 10 is not self-executing. By its
Sports" 22 cannot be the basis of judicially enforceable rights. Their express text, there is a categorical command for Congress to
enforcement is addressed to the discretion of Congress though they enact laws restricting foreign ownership in certain areas of
provide the framework for legislation 23 to effectuate their policy investments in the country and to encourage the formation and
content. 24 operation of wholly-owned Filipino enterprises. The right granted
by the provision is clearly still in esse. Congress has to breathe
Guided by this map of settled jurisprudence, we now consider whether life to the right by means of legislation. Parenthetically, this
Section 10, Article XII of the 1987 Constitution is self-executing or not. It paragraph was plucked from section 3, Article XIV of the 1973
reads: Constitution. 27 The provision in the 1973 Constitution affirmed
our ruling in the landmark case of Lao Ichong
Sec. 10. The Congress shall, upon recommendation of v. Hernandez, 28where we upheld the discretionary authority of
the economic and planning agency, when the national Congress to Filipinize certain areas of investments. 29 By
interest dictates, reserve to citizens of the Philippines or reenacting the 1973 provision, the first paragraph of section 10
to corporations or associations at least sixty per affirmed the power of Congress to nationalize certain areas of
centum of whose capital is owned by such citizens, or investments in favor of Filipinos.
such higher percentage as Congress may prescribe,
certain areas of investments. The Congress shall enact The second and third paragraphs of Section 10 are different. They are
measures that will encourage the formation and operation directed to the State and not to Congress alone which is but one of the
of enterprises whose capital is wholly owned by Filipinos. three great branches of our government. Their coverage is also broader
for they cover "the national economy and patrimony" and "foreign
In the grant of rights, privileges, and concessions investments within [the] national jurisdiction" and not merely "certain
covering the national economy and patrimony, the State areas of investments." Beyond debate, they cannot be read as granting
shall give preference to qualified Filipinos. Congress the exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and privileges
The State shall regulate and exercise authority over covering our national economy and patrimony. Their language does not
foreign investments within its national jurisdiction and in suggest that any of the State agency or instrumentality has the privilege
accordance with its national goals and priorities. to hedge or to refuse its implementation for any reason whatsoever. Their
duty to implement is unconditional and it is now. The second and the third
paragraphs of Section 10, Article XII are thus self-executing.
The first paragraph directs Congress to reserve certain areas of
investments in the country 25 to Filipino citizens or to corporations
sixty per This submission is strengthened by Article II of the Constitution entitled
cent 26 of whose capital stock is owned by Filipinos. It further "Declaration of Principles and State Policies." Its Section 19 provides that
commands Congress to enact laws that will encourage the "[T]he State shall develop a self-reliant and independent national
 119

economy effectively controlled by Filipinos." It engrafts the all-important whereby a particular cultural property may be classified a "national
Filipino First policy in our fundamental law and by the use of the cultural treasure" or an "important cultural property. 32 Approved on June
mandatory word "shall," directs its enforcement by the whole State 18, 1966 and amended by P.D. 374 in 1974, the law is limited in its reach
without any pause or a half- pause in time. and cannot be read as the exclusive law implementing section 10, Article
XII of the 1987 Constitution. To be sure, the law does not equate cultural
The second issue is whether the sale of a majority of the stocks of the treasure and cultural property as synonymous to the phrase "patrimony of
Manila Hotel Corporation involves the disposition of part of our national the nation."
patrimony. The records of the Constitutional Commission show that the
Commissioners entertained the same view as to its meaning. According The third issue is whether the constitutional command to the State
to Commissioner Nolledo, "patrimony" refers not only to our rich natural includes the respondent GSIS. A look at its charter will reveal that GSIS
resources but also to the cultural heritage of our race. 30 By this yardstick, is a government-owned and controlled corporation that administers funds
the sale of Manila Hotel falls within the coverage of the constitutional that come from the monthly contributions of government employees and
provision giving preferential treatment to qualified Filipinos in the grant of the government. 33 The funds are held in trust for a distinct purpose which
rights involving our national patrimony. The unique value of the Manila cannot be disposed of indifferently. 34 They are to be used to finance the
Hotel to our history and culture cannot be viewed with a myopic eye. The retirement, disability and life insurance benefits of the employees and the
value of the hotel goes beyond pesos and centavos. As chronicled by administrative and operational expenses of the GSIS, 35Excess funds,
Beth Day Romulo, 31 the hotel first opened on July 4, 1912 as a first-class however, are allowed to be invested in business and other ventures for
hotel built by the American Insular Government for Americans living in, or the benefit of the employees.36 It is thus contended that the GSIS
passing through, Manila while traveling to the Orient. Indigenous investment in the Manila Hotel Corporation is a simple business venture,
materials and Filipino craftsmanship were utilized in its construction, For hence, an act beyond the contemplation of section 10, paragraph 2 of
sometime, it was exclusively used by American and Caucasian travelers Article XII of the Constitution.
and served as the "official guesthouse" of the American Insular
Government for visiting foreign dignitaries. Filipinos began coming to the The submission is unimpressive. The GSIS is not a pure private
Hotel as guests during the Commonwealth period. When the Japanese corporation. It is essentially a public corporation created by Congress and
occupied Manila, it served as military headquarters and lodging for the granted an original charter to serve a public purpose. It is subject to the
highest-ranking officers from Tokyo. It was at the Hotel and the jurisdictions of the Civil Service Commission 37 and the Commission on
Intramuros that the Japanese made their last stand during the Liberation Audit. 38 As state-owned and controlled corporation, it is skin-bound to
of Manila. After the war, the Hotel again served foreign guests and adhere to the policies spelled out in the general welfare of the people.
Filipinos alike. Presidents and kings, premiers and potentates, as well as One of these policies is the Filipino First policy which the people elevated
glamorous international film and sports celebrities were housed in the as a constitutional command.
Hotel. It was also the situs of international conventions and conferences.
In the local scene, it was the venue of historic meetings, parties and The fourth issue demands that we look at the content of phrase "qualified
conventions of political parties. The Hotel has reaped and continues Filipinos" and their "preferential right." The Constitution desisted from
reaping numerous recognitions and awards from international hotel and defining their contents. This is as it ought to be for a Constitution only
travel award-giving bodies, a fitting acknowledgment of Filipino talent and lays down flexible policies and principles which can bent to meet today's
ingenuity. These are judicially cognizable facts which cannot be bent by a manifest needs and tomorrow's unmanifested demands. Only a
biased mind. constitution strung with elasticity can grow as a living constitution.

The Hotel may not, as yet, have been declared a national cultural Thus, during the deliberations in the Constitutional Commission,
treasure pursuant to Republic Act No. 4846 but that does not exclude it Commissioner Nolledo to define the phrase brushed aside a suggestion
from our national patrimony. Republic Act No. 4846, "The Cultural
Properties Preservation and Protection Act," merely provides a procedure
 120

to define the phrase "qualified Filipinos." He explained that present and Filipinos and foreigners alike. It is not seriously disputed that
prospective "laws" will take care of the problem of its interpretation, viz: petitioner qualified to bid as did Renong Berhad. 39

x x x           x x x          x x x Thus, we come to the critical issue of the degree of preference which

GSIS should have accorded petitioner, a qualified Filipino, over Renong
THE PRESIDENT. What is the suggestion of Commissioner Berhad, a foreigner, in the purchase of the controlling shares of the
Rodrigo? Is it to remove the word "QUALIFIED?" Manila Hotel. Petitioner claims that after losing the bid, this right of
preference gives it a second chance to match the highest bid of Renong
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED Berhad.
FILIPINOS" as against whom? As against aliens over aliens?
With due respect, I cannot sustain petitioner's submission. I prescind
MR. NOLLEDO. Madam President, I think that is understood. We from the premise that the second paragraph of section 10, Article XII of
use the word "QUALIFIED" because the existing laws or the the Constitution is pro-Pilipino but not anti-alien. It is pro-Filipino for it
prospective laws will always lay down conditions under which gives preference to Filipinos. It is not, however, anti-alien per se for it
business map be done, for example, qualifications on capital, does not absolutely bar aliens in the grant of rights, privileges and
qualifications on the setting up of other financial structures, et concessions covering the national economy and patrimony. Indeed, in
cetera. the absence of qualified Filipinos, the State is not prohibited from
granting these rights, privileges and concessions to foreigners if the act
will promote the weal of the nation.
MR. RODRIGO. It is just a matter of style.
In implementing the policy articulated in section 10, Article XII of the
MR. NOLLEDO Yes.
Constitution, the stellar task of our State policy-makers is to maintain a
creative tension between two desiderata — first, the need to develop our
MR. RODRIGO. If we say, "PREFERENCE TO QUALIFIED economy and patrimony with the help of foreigners if necessary, and,
FILIPINOS," it can be understood as giving preference to qualified second, the need to keep our economy controlled by Filipinos. Rightfully,
Filipinos as against Filipinos who are not qualified. the framers of the Constitution did not define the degree of the right of
preference to be given to qualified Filipinos. They knew that for the right
MR. NOLLEDO. Madam President, that was the intention of the to serve the general welfare, it must have a malleable content that can be
proponents. The committee has accepted the amendment. adjusted by our policy-makers to meet the changing needs of our people.
In fine, the right of preference of qualified Filipinos is to be determined by
x x x           x x x          x x x degree as time dictates and circumstances warrant. The lesser the need
for alien assistance, the greater the degree of the right of preference can
As previously discussed, the constitutional command to enforce be given to Filipinos and vice verse.
the Filipino First policy is addressed to the State and not to
Congress alone. Hence, the word "laws" should not be Again, it should be stressed that the right and the duty to determine the
understood as limited to legislations but all state actions which degree of this privilege at any given time is addressed to the entire State.
include applicable rules and regulations adopted by agencies and While under our constitutional scheme, the right primarily belongs to
instrumentalities of the State in the exercise of their rule-making Congress as the lawmaking department of our government, other
power. In the case at bar, the bidding rules and regulations set branches of government, and all their agencies and instrumentalities,
forth the standards to measure the qualifications of bidders share the power to enforce this state policy. Within the limits of their
authority, they can act or promulgate rules and regulations defining the
 121

degree of this right of preference in cases where they have to make Finally, I submit that petitioner is estopped from assailing the winning bid
grants involving the national economy and judicial duty. On the other of Renong Berhad. Petitioner was aware of the rules and regulations of
hand, our duty is to strike down acts of the state that violate the policy. the bidding. It knew that the rules and regulations do not provide that a
qualified Filipino bidder can match the winning bid submitting an inferior
To date, Congress has not enacted a law defining the degree of the bid. It knew that the bid was open to foreigners and that foreigners
preferential right. Consequently, we must turn to the rules and regulations qualified even during the first bidding. Petitioner cannot be allowed to
of on respondents Committee Privatization and GSIS to determine the repudiate the rules which it agreed to respect. It cannot be allowed to
degree of preference that petitioner is entitled to as a qualified Filipino in obey the rules when it wins and disregard them when it loses. If
the subject sale. A tearless look at the rules and regulations will show sustained, petitioners' stance will wreak havoc on he essence of bidding.
that they are silent on the degree of preferential right to be accorded Our laws, rules and regulations require highest bidding to raise as much
qualified Filipino bidder. Despite their silence, however, they cannot be funds as possible for the government to maximize its capacity to deliver
read to mean that they do not grant any degree of preference to essential services to our people. This is a duty that must be discharged
petitioner for paragraph 2, section 10, Article XII of the Constitution is by Filipinos and foreigners participating in a bidding contest and the rules
deemed part of said rules and regulations. Pursuant to legal are carefully written to attain this objective. Among others, bidders are
hermeneutics which demand that we interpret rules to save them from prequalified to insure their financial capability. The bidding is secret and
unconstitutionality, I submit that the right of preference of petitioner arises the bids are sealed to prevent collusion among the parties. This objective
only if it tied the bid of Benong Berhad. In that instance, all things stand will be undermined if we grant petitioner that privilege to know the
equal, and bidder, as a qualified Pilipino bidder, should be preferred. winning bid and a chance to match it. For plainly, a second chance to bid
will encourage a bidder not to strive to give the highest bid in the first
It is with deep regret that I cannot subscribe to the view that petitioner bidding.
has a right to match the bid of Renong Berhad. Petitioner's submission
must be supported by the rules but even if we examine the rules inside- We support the Filipino First policy without any reservation. The visionary
out .thousand times, they can not justify the claimed right. Under the nationalist Don Claro M. Recto has warned us that the greatest tragedy
rules, the right to match the highest bid arises only "if for any reason, the that can befall a Filipino is to be an alien in his own land. The Constitution
highest bidder cannot be awarded block of shares . . ." No reason has has embodied Recto's counsel as a state policy. But while the Filipino
arisen that will prevent the award to Renong Berhad. It qualified as First policy requires that we incline to a Filipino, it does not demand that
bidder. It complied with the procedure of bidding. It tendered the highest we wrong an alien. Our policy makers can write laws and rules giving
bid. It was declared as the highest bidder by the GSIS and the rules say favored treatment to the Filipino but we are not free to be unfair to a
this decision is final. It deserves the award as a matter of right for the foreigner after writing the laws and the rules. After the laws are written,
rules clearly did not give to the petitioner as a qualified Filipino privilege they must be obeyed as written, by Filipinos and foreigners alike. The
to match the higher bid of a foreigner. What the rules did not grant, equal protection clause of the Constitution protects all against unfairness.
petitioner cannot demand. Our symphaties may be with petitioner but the We can be pro-Filipino without unfairness to foreigner.
court has no power to extend the latitude and longtitude of the right of
preference as defined by the rules. The parameters of the right of I vote to dismiss the petition.
preference depend on galaxy of facts and factors whose determination
belongs to the province of the policy-making branches and agencies of Narvasa, C.J., and Melo, J., concur.
the State. We are duty-bound to respect that determination even if we
differ with the wisdom of their judgment. The right they grant may be little PANGANIBAN, J., dissenting:
but we must uphold the grant for as long as the right of preference is not
denied. It is only when a State action amounts to a denial of the right that
I regret I cannot join the majority. To the incisive Dissenting Opinion of
the Court can come in and strike down the denial as unconstitutional.
Mr. Justice Reynato S. Puno, may I just add
 122

1. The majority contends the Constitution should be interpreted to mean

that, after a bidding process is concluded, the losing Filipino bidder
should be given the right to equal the highest foreign bid, and thus to win.
However, the Constitution [Sec. 10 (2), Art. XII] simply states that "in the
grant of rights . . . covering the national economy and patrimony, the
State shall give preference to qualified Filipinos." The majority concedes
that there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino bidder to
increase his bid and equal that of the winning foreigner. In the absence of
such empowering law, the majority's strained interpretation, I respectfully
submit constitutes unadulterated judicial legislation, which makes bidding
a ridiculous sham where no Filipino can lose and where no foreigner can
win. Only in the Philippines!.

2. Aside from being prohibited by the Constitution, such judicial is short-

sighted and, viewed properly, gravely prejudicial to long-term Filipino
interest. It encourages other countries — in the guise of reverse comity or
worse, unabashed retaliation — to discriminate against us in their own
jurisdictions by authorizing their own nationals to similarly equal and
defeat the higher bids of Filipino enterprises solely, while on the other
hand, allowing similar bids of other foreigners to remain unchallenged by
their nationals. The majority's thesis will thus marginalize Filipinos as
pariahs in the global marketplace with absolute no chance of winning any
bidding outside our country. Even authoritarian regimes and hermit
kingdoms have long ago found out unfairness, greed and isolation are
self-defeating and in the long-term, self-destructing.

The moral lesson here is simple: Do not do unto other what you dont
want other to do unto you.

3. In the absence of a law specifying the degree or extent of the "Filipino

First" policy of the Constitution, the constitutional preference for the
"qualified Filipinos" may be allowed only where all the bids are equal. In
this manner, we put the Filipino ahead without self-destructing him and
without being unfair to the foreigner.

In short, the Constitution mandates a victory for the qualified Filipino only
when the scores are tied. But not when the ballgame is over and the
foreigner clearly posted the highest score.
 123

vs.
HIS EXCELLENCY PRESIDENT BENIGNO SIMEON C. AQUINO III,
HON. EXECUTIVE SECRETARY PAQUITO N. OCHOA, HON.
MICHAEL FREDERICK L. MUSNGI, HON. MA. GERALDINE FAITH A.
ECONG, HON. DANILO S. SANDOVAL, HON. WILHELMINA B.
JORGE-WAGAN, HON. ROSANA FE ROMERO-MAGLAYA, HON.
MERIANTHE PACITA M. ZURAEK, HON. ELMO M. ALAMEDA, and
HON. VICTORIA C. FERNANDEZ-BERNARDO, Respondents

RESOLUTION

LEONARDO-DE CASTRO, J.:

In its Decision dated November 29, 2016, the Court En Banc held:

WHEREFORE, premises considered, the Court DISMISSES the instant

Petition for Quo Warranto and Certiorari and Prohibition for lack of merit.
The Court DECLARES the clustering of nominees by the Judicial and
Bar Council UNCONSTITUTIONAL, and the appointments of
respondents Associate Justices Michael Frederick L. Musngi and
Geraldine Faith A. Econg, together with the four other newly-appointed
Associate Justices of the Sandiganbayan, as VALID. The Court
further DENIES the Motion for Intervention of the Judicial and Bar
Council in the present Petition, but ORDERS the Clerk of Court En
Banc to docket as a separate administrative matter the new rules and
practices of the Judicial and Bar Council which the Court took cognizance
of in the preceding discussion as Item No. 2: the deletion or non-
inclusion in JBC No. 2016-1, or the Revised Rules of the Judicial and Bar
Council, of Rule 8, Section 1 of JBC-009; and Item No. 3: the removal of
incumbent Senior Associate Justices of the Supreme Court as
consultants of the Judicial and Bar Council, referred to in pages 3 5 to 40
EN BANC of this Decision. The Court finally DIRECTS the Judicial and Bar Council
to file its comment on said Item Nos. 2 and 3 within thirty (30) days from
February 21, 2017 notice.1

G.R. No. 224302 I

THE JBC MOTIONS
HON. PHILIP A. AGUINALDO, HON. REYNALDO A. ALHAMBRA,
HON. DANILO S. CRUZ, HON. BENJAMIN T. POZON, HON. The Judicial and Bar Council (JBC) successively filed a Motion for
SALVADOR V. TIMBANG, JR., and the INTEGRATED BAR OF THE Reconsideration (with Motion for the Inhibition of the Ponente) on
PHILIPPINES (IBP),Petitioners 
 124

December 27, 2016 and a Motion for Reconsideration-in-Intervention (Of rem, and a decision rendered in violation of a party's right to due process
the Decision dated 29 November 2016) on February 6, 2017. is void for lack of jurisdiction.

At the outset, the Court notes the revelation of the JBC in its Motion for On the merits of the case, the JBC asserts that in submitting six short
Reconsideration-in-Intervention that it is not taking any position in this lists for six vacancies, it was only acting in accordance with the clear and
particular case on President Aquino's appointments to the six newly- unambiguous mandate of Article VIII, Section 9 3 of the 1987 Constitution
created positions of Sandiganbayan Associate Justice. The Court quotes for the JBC to submit a list for every vacancy. Considering its
the relevant portions from the Motion, as follows: independence as a constitutional body, the JBC has the discretion and
wisdom to perform its mandate in any manner as long as it is consistent
The immediate concern of the JBC is this Court's pronouncement with the Constitution. According to the JBC, its new practice of
that the former's act of submitting six lists for six vacancies was "clustering," in fact, is more in accord with the purpose of the JBC to rid
unconstitutional. Whether the President can cross-reach into the the appointment process to the Judiciary from political pressure as the
lists is not the primary concern of the JBC in this particular case. At President has to choose only from the nominees for one particular
another time, perhaps, it may take a position. But not in this vacancy. Otherwise, the President can choose whom he pleases, and
particular situation involving the newly created positions in the thereby completely disregard the purpose for the creation of the JBC.
Sandiganbayan in view of the lack of agreement by the JBC The JBC clarifies that it numbered the vacancies, not to influence the
Members on that issue. order of precedence, but for practical reasons, i.e., to distinguish one list
from the others and to avoid confusion. The JBC also points out that the
What the President did with the lists, for the purpose of this acts invoked against the JBC are based on practice or custom, but
particular dispute alone as far as the JBC is concerned, was the "practice, no matter how long continued, cannot give rise to any vested
President's exclusive domain.2 right." The JBC, as a constitutional body, enjoys independence, and as
such, it may change its practice from time to time in accordance with its
wisdom.
Nonetheless, the JBC did not categorically withdraw the arguments
raised in its previous Motions, and even reiterated and further discussed
said arguments, and raised additional points in its Motion for Lastly, the JBC moves for the inhibition of the ponente of the assailed
Reconsideration-in-Intervention. Hence, the Court is still constrained to Decision based on Canon 3, Section 5 of the New Code of Judicial
address said arguments in this Resolution. Conduct for Philippine Judiciary.4 The JBC alleges that the ponente, as
consultant of the JBC from 2014 to 2016, had personal knowledge of the
voting procedures and format of the short lists, which are the subject
In its Motion for Reconsideration (with Motion for Inhibition of
matters of this case. The ponente was even present as consultant during
the Ponente) the JBC argues as follows: (a) Its Motion for Intervention
the meeting on October 26, 2015 when the JBC voted upon the
was timely filed on November 26, 2016, three days before the
candidates for the six new positions of Associate Justice of the
promulgation of the Decision in the instant case; (b) The JBC has a legal
Sandiganbayan created under Republic Act No. 10660. The JBC then
interest in this case, and its intervention would not have unduly delayed
expresses its puzzlement over the ponente 's participation in the present
or prejudiced the adjudication of the rights of the original parties; (c) Even
proceedings, espousing a position contrary to that of the JBC. The JBC
assuming that the Motion for Intervention suffers procedural infirmities,
questions why it was only in her Decision in the instant case did
said Motion should have been granted for a complete resolution of the
the ponente raise her disagreement with the JBC as to the clustering of
case and to afford the JBC due process; and (d) Unless its Motion for
nominees for each of the six simultaneous vacancies for Sandiganbayan
Intervention is granted by the Court, the JBC is not bound by the
Associate Justice. The JBC further quoted portions of the assailed
questioned Decision because the JBC was neither a party litigant nor
Decision that it claims bespoke of the ponente 's "already-arrived-at"
impleaded as a party in the case, the JBC was deprived of due process,
conclusion as to the alleged ill acts and intentions of the JBC. Hence, the
the assailed Decision is a judgment in personam and not a judgment in
JBC submits that such formed inference will not lend to an even-handed
 125

consideration by the ponente should she continue to participate in the The JBC impugns the significance accorded by the ponente to the fact
case. that Chief Justice Maria Lourdes P. A. Sereno (Sereno), Chairperson of
the JBC, administered the oath of office of respondent Econg as
Ultimately, the JBC prays: Sandiganbayan Associate Justice on January 25, 2016. Chief Justice
Serena's act should not be taken against the JBC because, the JBC
IN VIEW OF THE FOREGOING, it is respectfully prayed that the reasons, Chief Justice Sereno only chairs the JBC, but she is not the
DECISION dated 29 November 2016 be reconsidered and set aside and JBC, and the administration of the oath of office was a purely ministerial
a new one be issued granting the Motion for Intervention of the JBC. act.

It is likewise prayed that the ponente inhibit herself from further The JBC likewise disputes the ponente 's observation that clustering is a
participating in this case and that the JBC be granted such other reliefs totally new practice of the JBC. The JBC avers that even before Chief
as are just and equitable under the premises.5 Justice Sereno's Chairmanship, the JBC has generally followed the rule
of one short list for every vacancy in all first and second level trial courts.
The JBC has followed the "one list for every vacancy" rule even for
The JBC subsequently filed a Motion for Reconsideration-in-Intervention
appellate courts since 2013. The JBC even recalls that it submitted on
(Of the Decision dated 29 November 2016), praying at the very beginning
August 17, 2015 to then President Benigno Simeon C. Aquino III
that it be deemed as sufficient remedy for the technical deficiency of its
(Aquino) four separate short lists for four vacancies in the Court of
Motion for Intervention (i.e., failure to attach the pleading-in-intervention)
Appeals; and present during the JBC deliberations were the ponente and
and as Supplemental Motion for Reconsideration of the denial of its
Supreme Court Associate Justice Presbitero J. Velasco, Jr. (Velasco) as
Motion for Intervention.
consultants, who neither made any comment on the preparation of the
short lists.
The JBC, in its latest Motion, insists on its legal interest, injury, and
standing to intervene in the present case, as well as on the timeliness of
On the merits of the Petition, the JBC maintains that it did not exceed its
its Motion for Intervention.
authority and, in fact, it only faithfully complied with the literal language of
Article VIII, Section 9 of the 1987 Constitution, when it prepared six short
The JBC proffers several reasons for not immediately seeking to lists for the six vacancies in the Sandiganbayan. It cites the cases
intervene in the instant case despite admitting that it received copies of of Atong Paglaum, Inc. v. Commission on Elections 6and Ocampo v.
the appointments of the six Sandiganbayan Associate Justices from the Enriquez,7 wherein the Court allegedly adopted the textualist approach of
Office of the President (OP) on January 25, 2016, to wit: (a) Even as its constitutional interpretation.
individual Members harbored doubts as to the validity of the
appointments of respondents Michael Frederick L. Musngi (Musngi) and
The JBC renounces any duty to increase the chances of appointment of
Geraldine Faith A. Econg (Econg) as Sandiganbayan Associate Justices,
every candidate it adjudged to have met the minimum qualifications. It
the JBC agreed as a body in an executive session that it would stay
asserts that while there might have been favorable experiences with the
neutral and not take any legal position on the constitutionality of said
past practice of submitting long consolidated short lists, past practices
appointments since it "did not have any legal interest in the offices of
cannot be used as a source of rights and obligations to override the duty
Associate Justices of the Sandiganbayan"; (b) None of the parties prayed
of the JBC to observe a straightforward application of the Constitution.
that the act of clustering by the JBC be declared unconstitutional; and (c)
The JBC believed that the Court would apply the doctrine of presumption
of regularity in the discharge by the JBC of its official functions and if the The JBC posits that clustering is a matter of legal and operational
Court would have been inclined to delve into the validity of the act of necessity for the JBC and the only safe standard operating procedure for
clustering by the JBC, it would order the JBC to comment on the matter. making short lists. It presents different scenarios which demonstrate the
need for clustering, viz., (a) There are two different sets of applicants for
 126

the vacancies; (b) There is a change in the JBC composition during the was only an ordinal designation of the cluster to which the candidates
interval in the deliberations on the vacancies as the House of were included.
Representatives and the Senate alternately occupy the ex officio seat for
the Legislature; (c) The applicant informs the JBC of his/her preference The JBC ends with a reiteration of the need for the ponente to inhibit
for assignment in the Cebu Station or Cagayan de Oro Station of the herself from the instant case as she appears to harbor hostility possibly
Court of Appeals because of the location or the desire to avoid mingling arising from the termination of her JBC consultancy.
with certain personalities; (d) The multiple vacancies in newly-opened
first and second level trial courts; and (e) The dockets to be inherited in The prayer of the JBC in its Motion for Reconsideration-in-Intervention
the appellate court are overwhelming so the JBC chooses nominees for reads:
those particular posts with more years of service as against those near
retirement.
IN VIEW OF THE FOREGOING, it is respectfully prayed that JBC's
Motion for Reconsideration-in-Intervention, Motion for Intervention and
To the JBC, it seems that the Court was in a hurry to promulgate its Motion for Reconsideration with Motion for Inhibition of Justice Teresita J.
Decision on November 29, 2016, which struck down the practice of Leonardo-De Castro of the JBC be granted and/or given due course and
clustering by the JBC. The JBC supposes that it was in anticipation of the that:
vacancies in the Court as a result of the retirements of Supreme Court
Associate Justices Jose P. Perez (Perez) and Arturo D. Brion (Brion) on
1. the Court's pronouncements in the Decision dated 29 November 2016
December 14, 2016 and December 29, 2016, respectively. The JBC then
with respect to the JBC's submission of six shortlists of nominees to the
claims that it had no choice but to submit two separate short lists for said
Sandiganbayan be modified to reflect that the JBC is deemed to have
vacancies in the Court because there were two sets of applicants for the
followed Section 9, Article VIII of the Constitution in its practice of
same, i.e., there were 14 applicants for the seat vacated by Justice Perez
submitting one shortlist of nominees for every vacancy, including in
and 17 applicants for the seat vacated by Justice Brion.
submitting on 28 October 2015 six lists to former President Benigno
Simeon C. Aquino III for the six vacancies of the Sandiganbayan, or for
The JBC further contends that since each vacancy creates discrete and the Court to be completely silent on the matter; and
possibly unique situations, there can be no general rule against
clustering. Submitting separate, independent short lists for each vacancy
2. the Court delete the treatment as a separate administrative matter of
is the only way for the JBC to observe the constitutional standards of (a)
the alleged new rules and practices of the JBC, particularly the following:
one list for every vacancy, and (b) choosing candidates of competence,
(1) the deletion or non-inclusion of Rule 8, Section 1 of JBC-009 in JBC
independence, probity, and integrity for every such vacancy.
No. 2016-1, or the Revised Rules of the Judicial and Bar Council; and (2)
the removal of incumbent Senior Associate Justices of the Supreme
It is also the asseveration of the JBC that it did not encroach on the Court as consultants of the JBC, referred to in pages 35 to 40 of the
President's power to appoint members of the Judiciary. The JBC alleges Decision. And as a consequence, the Court excuse the JBC from filing
that its individual Members gave several reasons why there was an the required comment on the said matters.9
apparent indication of seniority assignments in the six short lists for the
six vacancies for Sandiganbayan Associate Justice, particularly: (a) The
II
JBC can best perform its job by indicating who are stronger candidates
THE RULING OF THE COURT
by giving higher priority to those in the lower-numbered list; (b) The
indication could head off the confusion encountered in Re: Seniority
Among the Four Most Recent Appointments to the Position of Associate There is no legal or factual basis for the
Justices of the Court of Appeals; 8 and (c) The numbering of the lists from ponente to inhibit herself from the instant
16th to 21st had nothing to do with seniority in the Sandiganbayan, but case.
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The Motion for Inhibition of the Ponente filed by the JBC is denied. and, therefore, she did not have the opportunity to study and submit her
recommendation to the JBC on the clustering of nominees.
The present Motion for Inhibition has failed to comply with Rule 8,
Section 2 of the Internal Rules of the Supreme Court, 10 which requires It is evident that prior to the meeting on October 26, 2015, the JBC had
that "[a] motion for inhibition must be in writing and under oath and shall already reached an agreement on the procedure it would follow in voting
state the grounds therefor." Yet, even if technical rules are relaxed for nominees, i.e., the clustering of the nominees into six separate short
herein, there is still no valid ground for the inhibition of the ponente. lists, with one short list for each of the six newly-created positions of
Sandiganbayan Associate Justice. That Senator Pimentel and DOJ
There is no ground11 for the mandatory inhibition of the ponente from the Secretary Caguioa, who were not present at the meeting on October 26,
case at bar. 2015, were informed beforehand of the clustering of nominees only
proves that the JBC had already agreed upon the clustering of nominees
The ponente has absolutely no personal interest in this case. prior to the said meeting.
The ponente is not a counsel, partner, or member of a law firm that is or
was the counsel in the case; the ponente or her spouse, parent, or child Notably, Chief Justice Sereno inaccurately claimed at the very start of the
has no pecuniary interest in the case; and the ponente is not related to deliberations that the JBC had been voting on a per vacancy basis "as
any of the parties in the case within the sixth degree of consanguinity or the Council had always done," giving the impression that the JBC was
affinity, or to an attorney or any member of a law firm who is counsel of merely following established procedure, when in truth, the clustering of
record in the case within the fourth degree of consanguinity or affinity. nominees for simultaneous or closely successive vacancies in a
collegiate court was a new practice only adopted by the JBC under her
The ponente is also not privy to any proceeding in which the JBC Chairmanship. In the Decision dated November 29, 2016, examples were
discussed and decided to adopt the unprecedented method of clustering already cited how, in previous years, the JBC submitted just one short list
the nominees for the six simultaneous vacancies for Sandiganbayan for simultaneous or closely successive vacancies in collegiate courts,
Associate Justice into six separate short lists, one for every vacancy. including the Supreme Court, which will again be presented hereunder.
The ponente does not know when, how, and why the JBC adopted the
clustering method of nomination for appellate courts and even the As previously mentioned, it is the practice of the JBC to hold executive
Supreme Court. sessions when taking up sensitive matters. The ponente and Associate
Justice Velasco, incumbent Justices of the Supreme Court and then JBC
With due respect to Chief Justice Sereno, it appears that when the JBC consultants, as well as other JBC consultants, were excluded from such
would deliberate on highly contentious, sensitive, and important issues, it executive sessions. Consequently, the ponente and Associate Justice
was her policy as Chairperson of the JBC to hold executive sessions, Velasco were unable to participate in and were kept in the dark on JBC
which excluded the Supreme Court consultants. At the JBC meeting held proceedings/decisions, particularly, on matters involving the nomination
on October 26, 2015, Chief Justice Sereno immediately mentioned at the of candidates for vacancies in the appellate courts and the Supreme
beginning of the deliberations "that, as the Council had always done in Court. The matter of the nomination to the Supreme Court of now
the past when there are multiple vacancies, the voting would be on a per Supreme Court Associate Justice FRANCIS H. Jardeleza (Jardeleza),
vacancy basis."12 Chief Justice Sereno went on to state that the manner which became the subject matter of Jardeleza v. Sereno,14 was taken up
of voting had already been explained to the two ex officio members of the by the JBC in such an executive session. This ponente also does not
JBC who were not present during the meeting, namely, Senator Aquilino know when and why the JBC deleted from JBC No. 2016-1, "The
L. Pimentel III (Pimentel) and then Department of Justice (DOJ) Revised Rules of the Judicial and Bar Council," what was Rule 8, Section
Secretary ALFREDO BENJAMIN S. Caguioa (Caguioa). 13 Then the JBC 1 of JBC-009, the former JBC Rules, which gave due weight and regard
immediately proceeded with the voting of nominees. This ponente was to the recommendees of the Supreme Court for vacancies in the Court.
not consulted before the JBC decision to cluster nominees was arrived at The amendment of the JBC Rules could have been decided upon by the
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JBC when the ponente and Associate Justice Velasco were already Furthermore, it appears from the admitted lack of consensus on the part
relieved by Chief Justice Sereno of their duties as consultants of the JBC. of the JBC Members as to the validity of the clustering shows that the
The JBC could have similarly taken up and decided upon the clustering conclusion reached by the ponente did not arise from personal hostility
of nominees for the six vacant posts of Sandiganbayan Associate Justice but from her objective evaluation of the adverse constitutional
during one of its executive sessions prior to October 26, 2015. implications of the clustering of the nominees for the vacant posts of
Sandiganbayan Associate Justice. It is unfortunate that the JBC stooped
Hence, even though the ponente and the other JBC consultants were so low in casting aspersion on the person of this ponente instead of
admittedly present during the meeting on October 26, 2015, the focusing on sound legal arguments to support its position. There is
clustering of the nominees· for the six simultaneous vacancies for absolutely no factual basis for the uncalled for and unfair imputation of
Sandiganbayan Associate Justice was already fait accompli. Questions the JBC that the ponente harbors personal hostility against the JBC
as to why and how the JBC came to agree on the clustering of nominees presumably due to her removal as consultant. The ponente 's removal as
were no longer on the table for discussion during the said meeting. As consultant was the decision of Chief Justice Sereno, not the JBC.
the minutes of the meeting on October 26, 2015 bear out, the JBC The ponente does not bear any personal grudge or resentment against
proceedings focused on the voting of nominees. It is stressed that the the JBC for her removal as consultant. The ponente does not view Chief
crucial issue in the present case pertains to the clustering of nominees Justice Sereno's move as particularly directed against her as Associate
and not the nomination and qualifications of any of the nominees. Justice Velasco had been similarly removed as JBC consultant.
This ponente only had the opportunity to express her opinion on the The ponente has never been influenced by personal motive in deciding
issue of the clustering of nominees for simultaneous and closely cases. The ponente, instead, perceives the removal of incumbent
successive vacancies in collegiate courts in her ponencia in the instant Supreme Court Justices as consultants of the JBC as an affront against
case. As a Member of the Supreme Court, the ponente is duty-bound to the Supreme Court itself as an institution, since the evident intention of
render an opinion on a matter that has grave constitutional implications. such move was to keep the Supreme Court in the dark on the changes in
rules and practices subsequently adopted by the JBC, which, to the mind
Neither is there any basis for the ponente 's voluntary inhibition from the of this ponente, may adversely affect the exercise of the supervisory
case at bar. Other than the bare allegations of the JBC, there is no clear authority over the JBC vested upon the Supreme Court by the
and convincing evidence of the ponente 's purported bias and prejudice, Constitution.
sufficient to overcome the presumption that she had rendered her
assailed ponencia in the regular performance of her official and sacred All the basic issues raised in the Petition
duty of dispensing justice according to law and evidence and without fear had been thoroughly passed upon by the
or favor. Significant herein is the following disquisition of the Court on Court in its Decision dated November 29,
voluntary inhibition of judges in Gochan v. Gochan,15 which is just as 2016 and the JBC already expressed its
applicable to Supreme Court Justices: disinterest to question President Aquino's
"cross-reaching" in his appointment of the
In a string of cases, the Supreme Court has said that bias and six new Sandiganbayan Associate Justices.
prejudice, to be considered valid reasons for the voluntary
inhibition of judges, must be proved with clear and convincing Even if the Motion for Reconsideration and Motion for Reconsideration-
evidence. Bare allegations of their partiality will not suffice. It in-Intervention of the JBC, praying for the grant of its Motion for
cannot be presumed, especially if weighed against the sacred oaths Intervention and the reversal of the Decision dated November 29, 2016,
of office of magistrates, requiring them to administer justice fairly are admitted into the records of this case and the issues raised and
and equitably - both to the poor and the rich, the weak and the strong, arguments adduced in the said two Motions are considered, there is no
the lonely and the well-connected. (Emphasis supplied.) cogent reason to reverse the Decision dated November 29, 2016,
particularly, in view of the admission of the JBC of the lack of unanimity
among the JBC members on the issue involving the clustering of
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nominees for the six simultaneous vacancies for Sandiganbayan Incidentally, it should be mentioned that the JBC reproaches the Court for
Associate Justice and their disinterest to question the "cross-reaching" or supposedly hurrying the promulgation of its Decision on November 29,
non-observance by President Aquino of such clustering. 2016 in anticipation of the impending vacancies in the Supreme Court
due to the retirements of Associate Justices Perez and Brion in
Hence, the Court will no longer belabor the issue that only three JBC December 2016. On the contrary, it appears that it was the JBC which
Members signed the Motion for Intervention and Motion for hurriedly proceeded with the two separate publications on August 4, 2016
Reconsideration and only four JBC Members signed the Motion for and August 18, 2016 of the opening of the application for the aforesaid
Reconsideration-in-Intervention, as well as the fact that Chief Justice vacancies, respectively, which was contrary to previous practice, even
Sereno, as Chairperson of the JBC, did not sign the three Motions. while the issue of clustering was set to be decided by the Court.
Moreover, a scrutiny of the process the Petition went through before its
To determine the legal personality of the signatories to file the JBC promulgation negates any haste on the part of the Court. Bear in mind
Motions, the Court has accorded particular significance to who among that the Petition at bar was filed on May 1 7, 2016 and petitioners' Reply,
the JBC Members signed the Motions and to Chief Justice Sereno's act the last pleading allowed by the Court in this case, was filed on August 3,
of administering the oath of office to three of the newly-appointed 2016. The draftponencia was calendared in the agenda of the Supreme
Sandiganbayan Associate Justices, including respondent Econg, in Court en bane, called again, and deliberated upon several times before it
resolving the pending Motions of the JBC. However, in its Motion for was actually voted upon on November 29, 2016. Indeed, it appears that it
Reconsideration-in-Intervention, the JBC now reveals that not all of its was the JBC which rushed to release the separate short lists of nominees
Members agree on the official position to take in the case of President for the said Supreme Court vacancies despite knowing the pendency of
Aquino's appointment of the six new Sandiganbayan Associate Justices. the instant Petition and its own filing of a Motion for Intervention herein on
Thus, the position of the JBC on the clustering of the nominees for the six November 28, 2016. The JBC went ahead with the release of separate
simultaneous vacancies for Sandiganbayan Associate Justice rests on short lists of nominees for the posts of Supreme Court Associate Justice
shaky legal ground. vice retired Associate Justices Perez and Brion on December 2, 2016
and December 9, 2016, respectively.
The JBC takes exception as to why the Court allowed the Petition at bar
even when it did not strictly comply with the rules, as it was filed beyond Even if the Court allows the intervention of the JBC, as it will now do in
the 60-day period for filing a petition for certiorari. The Court, in its the case at bar, the arguments of the JBC on the merits of the case fail to
Decision dated November 29, 2016, gave consideration to petitioners' persuade the Court to reconsider its Decision dated November 29, 2016.
assertion that they had to secure first official copies of the six short lists
before they were able to confirm that President Aquino, in appointing the a. The clustering of nominees for the
six new Sandiganbayan Associate Justices, actually disregarded the six vacancies in the Sandiganbayan
clustering of nominees into six separate short lists. While the Court is by the JBC impaired the President's
hard-pressed to extend the same consideration to the JBC which made power to appoint members of the
no immediate effort to explain its failure to timely question or challenge Judiciary and to determine the
the appointments of respondents Econg and Musngi as Sandiganbayan seniority of the newly-appointed
Associate Justices whether before the OP or the courts, the Court will Sandiganbayan Associate Justices.
nevertheless now allow the JBC intervention by considering the issues
raised and arguments adduced in the Motion for Reconsideration and Noteworthy is the fact that the Court unanimously voted that in this case
Motion for Reconsideration-in-Intervention of the JBC in the interest of of six simultaneous vacancies for Sandiganbayan Associate Justice, the
substantial justice. JBC acted beyond its constitutional mandate in clustering the nominees
into six separate short lists and President Aquino did not commit grave
abuse of discretion in disregarding the said clustering.
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The JBC invokes its independence, discretion, and wisdom, and such duty, it only requires that the JBC gives all qualified nominees fair
maintains that it deemed it wiser and more in accord with Article VIII, and equal opportunity to be appointed. The clustering by the JBC of
Section 9 of the 1987 Constitution to cluster the nominees for the six nominees for simultaneous or closely successive vacancies in collegiate
simultaneous vacancies for Sandiganbayan Associate Justice into six courts can actually be a device to favor or prejudice a particular nominee.
separate short lists. The independence and discretion of the JBC, A favored nominee can be included in a cluster with no other strong
however, is not without limits. It cannot impair the President's power to contender to ensure his/her appointment; or conversely, a nominee can
appoint members of the Judiciary and his statutory power to determine be placed in a cluster with many strong contenders to minimize his/her
the seniority of the newly-appointed Sandiganbayan Associate Justices. chances of appointment.
The Court cannot sustain the strained interpretation of Article VIII,
Section 9 of the 1987 Constitution espoused by the JBC, which ultimately Without casting aspersion or insinuating ulterior motive on the part of the
curtailed the President's appointing power. JBC - which would only be highly speculative on the part of the Court -
hereunder are different scenarios, using the very same circumstances
In its Decision dated November 29, 2016, the Court ruled that the and nominees in this case, to illustrate how clustering could be used to
clustering impinged upon the President's appointing power in the favor or prejudice a particular nominee and subtly influence President
following ways: The President's option for every vacancy was limited to Aquino's appointing power, had President Aquino faithfully observed the
the five to seven nominees in each cluster. Once the President had clustering.
appointed a nominee from one cluster, then he was proscribed from
considering the other nominees in the same cluster for the other The six nominees actually appointed by President Aquino as
vacancies. All the nominees applied for and were found to be qualified for Sandiganbayan Associate Justices were the following:
appointment to any of the vacant Associate Justice positions in the
Sandiganbayan, but the JBC failed to explain why one nominee should
be considered for appointment to the position assigned to one specific
cluster only. Correspondingly, the nominees' chance for appointment was
restricted to the consideration of the one cluster in which they were
included, even though they applied and were found to be qualified for all
the vacancies. Moreover, by designating the numerical order of the
vacancies, the JBC established the seniority or order of preference of the
new Sandiganbayan Associate Justices, a power which the law (Section
1, paragraph 3 of Presidential Decree No. 1606 16), rules (Rule II, Section
1 (b) of the Revised Internal Rules of the Sandiganbayan 17), and
jurisprudence (Re: Seniority Among the Four Most Recent Appointments
to the Position of Associate Justices of the Court of Appeals 18), vest
exclusively upon the President.

b. Clustering can be used as a device to

favor or prejudice a qualified
nominee.

The JBC avers that it has no duty to increase the chances of appointment
of every candidate it has adjudged to have met the minimum
qualifications for a judicial post. The Court does not impose upon the JBC
VACANCY IN THE PERSON SHORT FORMER
SANDIGANBAYA APPOINTED LISTED POSITION
N FOR HELD
131
16th Associate Michael 21st Undersecretary
Justice Frederick L. Associat for Special aforementioned six nominees were strong contenders. If all six nominees
Musngi e Justice Concerns/ were placed in the same cluster, then only one of them would have been
Chief of Staff of It actually appointed as Sandiganbayan Associate Justice and the other
the Executive would five could no longer be considered for the still unfilled vacancies. If then
Secretary, OP, be Atty. Zaldy V. Trespeses (Trespeses), Judicial Staff Head, OCJ, was
for 5 years safe to included in the cluster with respondent Econg, PHILJA Chief of Office for
17th Associate Reynaldo P. 19th Undersecretary, say PMC, and respondent Musngi, Undersecretary for Special Concerns and
Justice Cruz Associat Office of the that all Chief of Staff of the Executive Secretary, OP, then he would have lesser
e Justice Executive the chance of being appointed as he would have to vie for a single vacancy
Secretary, OP, with two other strong contenders; and only one of the three would have
for 4-1/2 years been appointed. Evidently, the appointments to the six simultaneous
vacancies for Sandiganbayan Associate Justice would have been
18th Associate Geraldine 21st Former Judge, different by simply jumbling the clusters of nominees. Even if we go back
Justice Faith A. Associat Regional Trial in history, had the JBC clustered the nominees for the posts vacated by
Econg e Justice Court (RTC), Supreme Court Associate Justices Leonardo A. Quisumbing
Cebu, for 6 (Quisumbing) and Minita V. Chico-Nazario (Chico-Nazario), and if
years Chief of Associate Justices Perez and Jose Catral Mendoza (Mendoza) were
Office, together in the same cluster, then only one of them would have been
Philippine appointed. Also, had the JBC clustered the nominees for the vacancies
Mediation resulting from the retirements of Supreme Court Associate Justices
Center (PMC) Antonio Eduardo B. Nachura (Nachura) and Conchita Carpio Morales
Philippine (Carpio Morales), and if Associate Justices Bienvenido L. Reyes (Reyes)
Judicial and ESTELA M. Perlas-Bernabe (Perlas-Bernabe) were together in the
Academy same cluster, then the appointment of one of them would have already
(PHILJA) excluded the other.
19th Associate Maria 17th Judge, RTC,
Justice Theresa V. Associat Malolos c. There are no objective criteria,
Mendoza- e Justice Bulacan, for 10 standards, or guidelines for the
Arcega years clustering of nominees by the JBC.

20th Associate Karl B. 20th Assistant The problem is that the JBC has so far failed to present a legal, objective,
Justice Miranda Associat Solicitor and rational basis for determining which nominee shall be included in a
e Justice General, Office cluster. Simply saying that it is the result of the deliberation and voting by
of the Solicitor the JBC for every vacancy is unsatisfactory. A review of the voting
General (OSG), patterns by the JBC Members for the six simultaneous vacancies for
for 15 years Sandiganbayan Associate Justice only raises more questions and doubts
than answers. It would seem, to the casual observer, that the Chief
21st Associate Zaldy V. 18th Judicial Staff
Justice and the four regular JBC Members exercised block voting most of
Justice Trespeses Associat Head, Office of
the time. Out of the 89 candidates for the six vacancies, there were a
e Justice the Chief
total of 3 7 qualified nominees spread across six separate short lists. Out
Justice (OCJ),
of the 37 qualified nominees, the Chief Justice and the four regular JBC
Supreme Court,
Members coincidentally voted for the same 28 nominees in precisely
for 2 years
 132

the same clusters, only varying by just one vote for the other nine Intervention for assigning a nominee to a particular cluster/vacancy. The
nominees. Court highlights that without objective criteria, standards, or guidelines in
determining which nominees are to be included in which cluster, the
It is also interesting to note that all the nominees were listed only once in clustering of nominees for specific vacant posts seems to be at the very
just one cluster, and all the nominees subsequently appointed as least, totally arbitrary. The lack of such criteria, standards, or guidelines
Sandiganbayan Associate Justice were distributed among the different may open the clustering to manipulation to favor or prejudice a qualified
clusters, except only for respondents Econg and Musngi. Was this by nominee.
chance or was there already an agreement among the Chief Justice and
the regular JBC Members to limit the nomination of a candidate to a d. There is technically no clustering of
specific cluster for one specific vacancy, thus, excluding the same nominees for first and second level
candidate from again being nominated in a different cluster for another trial courts.
vacancy? It is understandable that the Chief Justice and the four regular
JBC Members would agree on whom to nominate because their The Court further points out that its Decision dated November 29, 2016
nominations were based on the qualifications of the candidates. What is only discussed vacancies in collegiate courts. The constant referral by
difficult to comprehend is how they determined the distribution of the the JBC to separate short lists of nominees for vacant judgeship posts in
nominees to the different clusters in the absence of any criteria or first and second level trial courts as proof of previous clustering is inapt.
standard to be observed in the clustering of nominees. This was never The separate short lists in such situations are technically not clustering
explained by the JBC in any of its Motions even when the issue of as the vacancies happened and were announced at different times and
clustering is vital to this case. Resultantly, the Court also asks why were candidates applied for specific vacancies, based on the inherent
respondents Econg and Musngi nominated in a single cluster? And why differences in the location and jurisdiction of the trial courts, as well as
was then Atty. Trespeses not included in the same cluster as the qualifications of nominees to the same, hence, justifying a separate
respondents Econg and Musngi, or the clusters of then Undersecretary short list for each vacant post.
Reynaldo P. Cruz, RTC Judge Maria Theresa V. Mendoza-Arcega, or
Assistant Solicitor General Karl B. Miranda? Furthermore, what criteria e. While clustering of nominees was
was used when Chief Justice Sereno and the other four regular JBC observed in the nominations for
Members voted for then Atty. Trespeses for only one particular vacancies in the Court of Appeals in
cluster, i.e., for the 18th Sandiganbayan Associate Justice, and nowhere 2015, it escaped scrutiny as the
else? Atty. Trespeses did not receive any vote in the other clusters appointments to said vacancies were
except for the lone vote for him of an ex officio JBC Member for the not challenged before the Court.
vacancy for the 21st Sandiganbayan Associate Justice.
As an example of previous clustering in a collegiate court, the JBC
The Court emphasizes that the requirements and qualifications, as well attached to its Motion for Reconsideration-in-Intervention a transmittal
as the powers, duties, and responsibilities are the same for all vacant letter dated August 1 7, 2015 of the JBC addressed to President Aquino,
posts in a collegiate court, such as the Sandiganbayan; and if an which divided the nominees into four clusters for the four vacancies for
individual is found to be qualified for one vacancy, then he/she is found to Court of Appeals Associate Justice. The JBC contends that during the
be qualified for all the other vacancies - there are no distinctions among deliberations on said nominations, the ponente and Supreme Court
the vacant posts. It is improbable that the nominees expressed their Associate Justice Velasco were both present as JBC consultants but did
desire to be appointed to only a specific vacant position and not the other not raise any objection.
vacant positions in the same collegiate court, when neither the
Constitution nor the law provides a specific designation or distinctive
While it may be true that the JBC already observed clustering in 2015, it
description for each vacant position in the collegiate court. The JBC did
is still considered a relatively new practice, adopted only under Chief
not cite any cogent reason in its Motion for Reconsideration-in-
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Justice Sereno's Chairmanship of the JBC. The clustering then escaped bears to stress that the current vacancies in the Supreme Court as a
scrutiny as no party questioned the appointments to the said vacancies. result of the compulsory retirements of Associate Justices Perez and
The view of the consultants was also not solicited or requested by the Brion are not in issue in this case, but has been brought to the fore by
JBC. The Court now observes that the vacancies for Court of Appeals the JBC itself in its Motion for Reconsideration-in-Intervention. Therefore,
Associate Justice in 2015 were not all simultaneous or closely the Court will refrain from making any pronouncements on the separate
successive, most of which occurring months apart, specifically, vice the short lists of nominees submitted by the JBC to President Rodrigo Roa
late Associate Justice Michael P. Elbinias who passed away on Duterte (Duterte) on December 2, 2016 and December 9, 2016 so as not
November 20, 2014; vice retired Associate Justice Rebecca De Guia- to preempt the President's decision on how to treat the separate short
Salvador, who opted for early retirement effective on January 31, 2015; lists of nominees for the two current vacancies in the Supreme Court.
vice Associate Justice Hakim S. Abdulwahid, who compulsorily retired on The Court will only address the statements made by the JBC in relation
June 12, 2015; and vice Associate Justice Isaias P. Dicdican who to said short lists by reciting some relevant historical facts relating to the
compulsorily retired on July 4, 2015. Even so, the JBC published a single filling-up of previous vacancies in the Supreme Court.
announcement for all four vacancies on March 15, 2015, with the same
deadlines for submission of applications and supporting documents. This The JBC avers that it had no choice but to submit separate short lists of
is in stark contrast to the two-week interval between the compulsory nominees to President Duterte for the vacancies for Supreme Court
retirements of Supreme Court Associate Justices Perez and Brion on Associate Justice vice Associate Justices Perez and Brion, who retired
December 14, 2016 and December 29, 2016, respectively, for which the on December 14, 2016 and December 29, 2016, respectively, because
JBC still made separate publications, required submission of separate there were different sets of applicants for each, with 14 applicants for the
applications, separately processed the applications, and submitted seat vacated by Associate Justice Perez and 17 applicants for the seat
separate short lists. Additionally, it is noteworthy that the nominations for vacated by Associate Justice Brion. The situation is the own doing of the
the four vacant posts of Court of Appeals Associate Justice were JBC, as the JBC announced the expected vacancies left by the
contained in a single letter dated August 1 7, 2015, addressed to compulsory retirements of Associate Justices Perez and Brion, which
President Aquino, through then Executive Secretary Paquito N. Ochoa, were merely two weeks apart, through two separately paid publications
Jr., whereas in the case of the Sandiganbayan, the JBC submitted six on August 4, 2016 and August 18, 2016, respectively, in newspapers of
separate letters, all dated October 26, 2015, transmitting one short list for general circulation; invited the filing of separate applications for the
each of the six vacancies. The separate letters of transmittal further vacancies with different deadlines; and separately processed the
reinforce the intention of the JBC to prevent the President from "cross- applications of candidates to the said vacancies. The JBC would
reaching" or disregarding the clustering of nominees for the six vacancies inevitably end up with two different sets of nominees, one set for the
for Sandiganbayan Associate Justice and, thus, unduly limit the position vacated by Justice Perez and another set for that vacated by
President's exercise of his power to appoint members of the Judiciary. Justice Brion, notwithstanding that the JBC undeniably found all
nominees in both sets to be qualified to be appointed as Associate
f. The separate short lists for the Justice of the Supreme Court, as they all garnered at least four votes.
current vacancies in the Supreme
Court are not in issue in this case, There had been no similar problems in the past because the JBC jointly
but has been brought up by the JBC announced simultaneous or closely successive vacancies in the
in its Motion for Reconsideration-in- Supreme Court in a single publication, invited the filing by a candidate of
Intervention. a single application for all the vacancies on the same deadline, jointly
processed all applications, and submitted a single list of qualified
The Court takes the occasion herein to clarify that the application of its nominees to the President, thus, resulting in a simple, inexpensive, and
ruling in the Decision dated November 29, 2017 to the situation involving efficient process of nomination. Such was the case when the JBC
closely successive vacancies in a collegiate court may be properly announced the two vacancies for Supreme Court Associate Justice
addressed in an actual case which squarely raises the issue. It also following the retirements of Associate Justices Quisumbing and Chico-
 134

Nazario in 2009. Pertinent portions of the JBC publication are reproduced Applications or recommendations for vacancies in nos. 1-3 must be filed
below: on or before 28 March 2011 (Monday) x x x to the JBC Secretariat, 2nd
Flr. Centennial Bldg., Supreme Court, Padre Faura St., Manila (Tel. No.
The Judicial and Bar Council (JBC) announces the opening, for 552-9512; Fax No. 552-9598; email
application or recommendation, of the: two (2) forthcoming vacant address jbcsupremecourt@yahoo.com.ph. Those who applied before
positions of ASSOCIATE JUSTICE OF THE SUPREME COURT vice these vacancies were declared open must manifest in writing their
Hon. Leonardo A. Quisumbing and Hon. Minita V. Chico-Nazario, interest on or before the said deadline. In case of recommendations, the
who will compulsorily retire on 6 November and 5 December 2009, recommendees must signify their acceptance either in the
respectively, x x x recommendation letter itself or in a separate document.

Applications or recommendation for the two (2) positions in the Supreme New applicants or recommendees for positions in the appellate courts
Court must be submitted not later than 28 September 2009 (Monday) x x must submit the following on or before 4 April 2011 (Monday) x x x:
x to the JBC Secretariat, 2nd Flr. Centennial Bldg., Supreme Court,
Padre Faura St., Manila (Tel. No. 552-9512; Fax No. 552-9607; email x x xx
address jbc _supreme court@yahoo.com.ph or jbc@sc.judiciary.gov.ph).
Applicants or recommendees must submit six (6) copies of the following: The single short list dated June 21, 2011, submitted by the JBC, under
the Chairmanship of Supreme Court Chief Justice Renato C. Corona,
x x xx presented, for President Aquino's consideration, six nominees for the two
vacant posts of Supreme Court Associate Justice, with President Aquino
The JBC, then headed by Supreme Court Chief Justice Reynato S. Puno, subsequently appointing Associate Justices Reyes and Perlas-Bernabe.
submitted to President Gloria Macapagal-Arroyo (Macapagal-Arroyo) a
single short list dated November 29, 2009 with a total of six nominees for How the new procedure adopted by the JBC of submitting two separate
the two vacancies for Supreme Court Associate Justice, from which, lists of nominees will also affect the seniority of the two Supreme Court
President Macapagal-Arroyo appointed Associate Justices Perez and Associate Justices to be appointed to the current vacancies is another
Mendoza. issue that may arise because of the new JBC procedure. Unlike the
present two separate lists of nominees specifying the vacant post to
The JBC again announced the two vacancies for Supreme Court which they are short-listed for appointment, the short list of nominees
Associate Justice due to the retirements of Associate Justices Nachura submitted by the JBC before did not identify to which of the vacant
and Carpio Morales, thus: positions, when there are more than one existing vacancies, a qualified
candidate is nominated to as there was only one list of nominees for all
The Judicial and Bar Council (JBC) announces the opening, for vacancies submitted to the President. Correspondingly, the appointment
application or recommendation, of the following positions: papers issued by the President, as in the cases of Supreme Court
Associate Justices Perez, Mendoza, Reyes, and Perlas-Bernabe, did not
specify the particular vacant post to which each of them was appointed.
1. ASSOCIATE JUSTICE OF THE SUPREME COURT (vice Hon.
The appointment papers of the afore-named Supreme Court Associate
Antonio Eduardo B. Nachura and Hon. Conchita Carpio Morales,
Justices were all similarly worded as follows:
who will compulsorily retire on 13 and 19 June 2011, respectively);
Pursuant to the provisions of existing laws, you are hereby
x x xx
appointed ASSOCIATE JUSTICE OF THE SUPREME COURT.
 135

By virtue hereof, you may qualify and enter upon the performance of the Evidently, based on law, rules, and jurisprudence, the numerical order of
duties and functions of the office, furnishing this Office and the Civil the Sandiganbayan Associate Justices cannot be determined until their
Service Commission with copies of your Oath of Office. actual appointment by the President.

As earlier stated, the Court makes no ruling on the above-mentioned It also bears to point out that part of the President's power to appoint
divergence between the procedures in the nomination for existing members of a collegiate court, such as the Sandiganbayan, is the power
vacancies in the Supreme Court followed by the JBC before and by to determine the seniority or order of preference of such newly appointed
the present JBC as it may be premature to do so and may prejudge members by controlling the date and order of issuance of said members'
whatever action President Duterte may take on the two separate appointment or commission papers. By already designating the numerical
short lists of nominees for the current Supreme Court vacancies order of the vacancies, the JBC would be establishing the seniority or
which were submitted by the JBC. order of preference of the new Sandiganbayan Associate Justices even
before their appointment by the President and, thus, unduly arrogating
g. The designation by the JBC of unto itself a vital part of the President's power of appointment. 22
numbers to the vacant
Sandiganbayan Associate Justice It is also not clear to the Court how, as the JBC avowed in its Motion for
posts encroached on the President's Reconsideration, the clustering of nominees for simultaneous vacancies
power to determine the seniority of in collegiate courts into separate short lists can rid the appointment
the justices appointed to the said court. process to the Judiciary of political pressure; or conversely, how the
previous practice of submitting a single list of nominees to the President
The JBC contends in its Motion for Reconsideration-in-Intervention that for simultaneous vacancies in collegiate courts, requiring the same
its individual members have different reasons for designating numbers to qualifications, made the appointment process more susceptible to
the vacant Sandiganbayan Associate Justice posts. The varying reason/s political pressure. The 1987 Constitution itself, by creating the JBC and
of each individual JBC Members raises the concern whether they each requiring that the President can only appoint judges and Justices from
fully appreciated the constitutional and legal consequences of their the nominees submitted by the JBC, already sets in place the mechanism
act, i.e., that it encroached on the power, solely vested in the President, to protect the appointment process from political pressure. By arbitrarily
to determine the seniority of the justices appointed to a collegiate court. clustering the nominees for appointment to the six simultaneous
Each of the six short lists submitted by the JBC to President Aquino vacancies for Sandiganbayan Associate Justice into separate short lists,
explicitly stated that the nominees were for the Sixteenth (16th), the JBC influenced the appointment process and encroached on the
Seventeenth (17th), Eighteenth (18th), Nineteenth (19th), Twentieth President's power to appoint members of the Judiciary and determine
(20th), and Twenty-First (2 Pt) Sandiganbayan Associate Justice, seniority in the said court, beyond its mandate under the 1987
respectively; and on the faces of said short lists, it could only mean that Constitution. As the Court pronounced in its Decision dated November
President Aquino was to make the appointments in the order of seniority 29, 2016, the power to recommend of the JBC cannot be used to restrict
pre-determined by the JBC, and that nominees who applied for any of the or limit the President's power to appoint as the latter's prerogative to
vacant positions, requiring the same qualifications, were deemed to be choose someone whom he/she considers worth appointing to the
qualified to be considered for appointment only to the one vacant position vacancy in the Judiciary is still paramount. As long as in the end, the
to which his/her cluster was specifically assigned. Whatever the President appoints someone nominated by the JBC, the appointment is
intentions of the individual JBC Members were, they cannot go against valid, and he, not the JBC, determines the seniority of appointees to a
what has been clearly established by law, 19 rules,20 and collegiate court.
21
jurisprudence.  In its Decision dated November 29, 2016, the Court
already adjudged that: Finally, the JBC maintains that it is not bound by the Decision dated
November 29, 2016 of the Court in this case on the ground that it is not a
 136

party herein. The JBC prays in its Motion for Reconsideration and Motion positions of Associate Justice of the Sandiganbayan is unconstitutional
for Reconsideration-in-Intervention, among other reliefs and remedies, for was only incidental to its ruling that President Aquino is not bound by
the Court to reverse its ruling in the Decision dated November 29, 2016 such clustering in making his appointments to the vacant Sandiganbayan
denying the Motion for Intervention of the JBC in the present case. Associate Justice posts. Other than said declaration, the Court did not
However, the Court has now practically allowed the intervention of require the JBC to do or to refrain from doing something insofar as the
the JBC in this case, by taking into consideration the issues raised and issue of clustering of the nominees to the then six vacant posts of
arguments adduced in its Motion for Reconsideration and Motion for Sandiganbayan Associate Justice was concerned.
Reconsideration-in-Intervention, but which the Court found to be
unmeritorious. As for the other new rules and practices adopted by the JBC which the
Court has taken cognizance of and docketed as a separate
To recapitulate, the Petition at bar challenged President Aquino's administrative matter (viz., Item No. 2: the deletion or non-inclusion in
appointment of respondents Econg and Musngi as Sandiganbayan JBC No. 2016-1, or the Revised Rules of the Judicial and Bar Council, of
Associate Justices, which disregarded the clustering by the JBC of the Rule 8, Section 1 of JBC-009; and Item No. 3: the removal of incumbent
nominees for the six simultaneous vacancies in said collegiate court into Senior Associate Justices of the Supreme Court as consultants of the
six separate short lists. The Court ultimately decreed in its Decision dated Judicial and Bar Council, referred to in pages 45 to 51 of the Decision
November 29, 2016 that: dated November 29, 2016), the JBC is actually being given the
opportunity to submit its comment and be heard on the same. The
President Aquino validly exercised his discretionary power to appoint administrative matter was already raffled to another ponente, thus, any
members of the Judiciary when he disregarded the clustering of incident concerning the same should be consolidated in the said
nominees into six separate shortlists for the vacancies for the 16th, 17th, administrative matter.
18th, 19th, 20th, and 21st Sandiganbayan Associate Justices. President
Aquino merely maintained the well-established practice, consistent with Regarding the Separate Opinion of Associate Justice Caguioa, it must be
the paramount Presidential constitutional prerogative, to appoint the six pointed out that he has conceded that the President did not commit an
new Sandiganbayan Associate Justices from the 37 qualified nominees, unconstitutional act in "disregarding the clustering done by the JBC"
as if embodied in one JBC list. This does not violate Article VIII, Section 9 when he chose Associate Justices of the Sandiganbayan "outside" of the
of the 1987 Constitution which requires the President to appoint from a "clustered" lists provided by the JBC.
list of at least three nominees submitted by the JBC for every vacancy.
To meet the minimum requirement under said constitutional provision of WHEREFORE, premises considered, except for its motion/prayer for
three nominees per vacancy, there should at least be 18 nominees from intervention, which the Court has now granted, the Motion for
the JBC for the six vacancies for Sandiganbayan Associate Justice; but Reconsideration (with Motion for the Inhibition of the Ponente) and the
the minimum requirement was even exceeded herein because the JBC Motion for Reconsideration-in-Intervention (Of the Decision dated 29
submitted for the President's consideration a total of 37 qualified November 2016) of the Judicial and Bar Council are DENIED for lack of
nominees. All the six newly appointed Sandiganbayan Associate Justices merit.
met the requirement of nomination by the JBC under Article VIII, Section
9 of the 1987 Constitution. Hence, the appointments of respondents Nota bene: The Court has agreed not to issue a ruling herein on the
Musngi and Econg, as well as the other four new Sandiganbayan separate short lists of nominees submitted by the Judicial and Bar
Associate Justices, are valid and do not suffer from any constitutional Council to President Rodrigo Roa Duterte for the present vacancies in
infirmity.23 the Supreme Court resulting from the compulsory retirements of
Associate Justices Jose P. Perez and Arturo D. Brion because these
The declaration of the Court that the clustering of nominees by the JBC were not in issue nor deliberated upon in this case, and in order not to
for the simultaneous vacancies that occurred by the creation of six new preempt the decision the President may take on the said separate short
 137

lists in the exercise of his power to appoint members of the Judiciary separate opinion
under the Constitution. MARVIC M.V.F. LEONEN Associate Justice
Associate Justice
SO ORDERED.

teresita j. LEONARDO-DE CASTRO See Separate Opinion

Associate Justice ALFREDO BENJAMIN S. caguioa
Associate Justice
WE CONCUR:
CERTIFICATION
No part
MARIA LOURDES P.A. SERENO* Pursuant to Article VIII, Section 13 of the Constitution, I certify that the
Chief Justice conclusions in the above Resolution had been reached in consultation
Chairperson before the case was assigned to the writer of the opinion of the Court.

ANTONIO T. CARPIO
I concur in the result. (Please Senior Associate Justice
see separate opinion. The
November 29, 2016 Decision
does not apply to closely
ANTONIO T. CARPIO successive vacancies like
Senior Associate Justice, those created with the
Presiding retirement of Justices Brion
and Perez.
PRESBITERO J. VELASCO,
JR.
Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO JOSE CATRAL MENDOZA

Associate Justice Associate Justice

I concur in the result and also TUESDAY. SEPTEMBER 9, 1986

join the separate opinion of J.
(ON LEAVE)
Leonen indirect reconsideration without going through the
BIENVENIDO L. REYES**
ESTELA M. PERLAS-
Associate Justice
BERNABE body’s voting. I, therefore, object to the manifestation
Associate Justice
of Commissioner Quesada.
I concur in the result. See FRANCIS H. JARDELEZA
 138

MR. GASCON. So, therefore, this does not preclude

MS. QUESADA. I submit, Madam President. Congress from making laws or the MECS itself from

providing regulations for consultation and democratiza-

MR. MAAMBONG. Madam President. tion.

THE PRESIDENT. There has been a motion to delete That is all. Thank you.

and that has been approved. So, Section 5(b) as worded

now, is deleted. The Chair stated that should the motion MR. MAAMBONG. Madam President.

to delete be lost, then the section would be open for

amendments. But it won; therefore, the whole para- THE PRESIDENT. Commissioner Maambong is

graph is deleted, but we do not foreclose any rephrasing recognized.

of any other section here in the committee report.

MR. MAAMBONG. Madam President, may I just

MR. GASCON. Madam President, the basis for the indicate that I have served some 15 to 20 years in a

motion for deletion, as I understood from Commis- university council of the University of the Visayas in

sioners Bacani and Bemas, is that it is sufficiently Cebu, and even with the deletion of this provision, this

covered in other provisions. procedure has been adopted a long time ago in that

particular university. We have such a thing as a univer-

THE PRESIDENT. Yes, that is right. sity council composed of administrators and the deans

of all the colleges. We have representatives in that

 139

university council - the president of the Supreme

Student Council, the president of the Faculty Club and MR. MONSOD. Madam President, I just want to

the president of the Parent-Teacher Association. This propose two deletions. The first one is the phrase “as

has been implemented a long time ago, Madam Pres- well as faculty members and students thereof,” and the

ident. So, I do not think we should quibble over this second one is the second sentence which talks about

provision. “fiscal autonomy” for public and private educational

institutions. When we say “All institutions of higher

Thank you. learning shall enjoy academic freedom,” that is a very

encompassing sentence. It already includes all the

MR. RAMA. Madam President. aspects of faculty members, students and so on at the

institute of higher learning.

THE PRESIDENT. So, let us proceed to subsection

(c). With respect to public and private educational institu-

tions of higher learning that enjoy fiscal autonomy, I

MR. RAMA. I ask that Commissioner Monsod be believe that in the period of interpellations, we already

recognized. said that the COA had been limited to a postaudit of

educational institutions of the government and that

fiscal autonomy would put too much discretion and

THE PRESIDENT. Commissioner Monsod is recog- authority in the educational institutions. So, we are

nized. proposing that that section be deleted because of the

 140

presence of that provision in the COA section.

MR. SARMIENTO. Madam President.

Secondly, I do not understand what “fiscal autonomy

in private educational institutions” means because THE PRESIDENT. Commissioner Sarmiento is recog-

fiscal autonomy normally refers to government institu- nized.

tions. Hence, my amendment is to delete the whole line.

MR. SARMIENTO. May I speak briefly in favor of

THE PRESIDENT. May we have the comments of the the committee proposal? I think there is a need to

committee? place the words “faculty members and students in the

proposed section. By including the words “faculty mem-

MR. GASCON. There are two motions for deletion; bers and students” we will be giving emphasis to these

one is for the deletion of the phrase “as well as faculty aspects of academic freedom. Madam President, during

members and students thereof.” It should be deleted martial law, this freedom was enriched when it was

since it is already covered by all institutions of higher understood to mean academic freedom of educational

learning. Then the second one is to delete lines 3 1 and institutions. However, with the filing of so many

32, starting from “public” up to “autonomy.” students’ cases with the Supreme Court, the latter

enriched the jurisprudence on the students’ academic

May we recommend that we discuss these separately? freedom.

MR. MONSOD. Yes.

 141

TUESDAY, SEPTEMBER 9 ± 1986 MR. RAMA. Madam President, Commissioner

Bengzon would like to reserve his comments.

435

THE PRESIDENT. Commissioner Bengzon is recog-

As I stated during the period of interpellations, about nized.

three or four cases were acted upon by the Supreme

Court thereby enriching the jurisprudence on students’ MR. BENGZON. Madam President, under the Rules,

academic freedom. There is need to retain the word in the matter of amendment, there will be three who

“students” here to show to the students who constitute will speak in favor of the proponent and two against. I

a big portion of our population that we, the Members of will speak in favor of the proponent by agreeing to the

the Constitutional Commission, love and protect them. deletion of the phrases stated by Commissioner Monsod.

So, I suggest that we maintain the academic freedom of Since the Supreme Court has enriched the jurisprudence,

students and also that of the faculty. By stressing the then we should leave this concept to develop by itself

faculty academic freedom, we show to these teachers through the cases that may be filed in the proper courts.

that we patronize, protect and love the teaching This is a field of law that is currently developing. There

profession which is an oppressed sector of our society. is no question that the Members of this Commission

care for the students and the faculty members. There is

So, with due respect to Commissioner Monsod, I will no question that the Members of this Commission are

object to his amendment by deletion. concerned with the welfare, not only of the physical

well-being, but also of the mental well-being of our

 142

students, as well as the affairs of the faculty members. panded in the 1973 Constitution under Section 8 (2),

But again, if we do not state this here, it does not mean which reads: “All institutions of higher learning shall

that we do not care for them. Precisely, we do care for enjoy academic freedom.” I believe that the 1973

them so much that we allow society in the Philippines Constitution which expanded the 1935 Constitution is

to develop this concept by itself in the course of the more than sufficient to assure academic freedom in

development and the life of the Filipino people. Let

• it flourish by itself and let the Supreme Court enrich the

jurisprudence, so that law will evolve through the inter- educational institutions of higher learning. And so, I

pretation of the various laws that will be created by support the proposed amendment of Commissioner

Congress. Monsod, as well as the comments of Commissioner

Bengzon.

Thank you.

Thank you, Madam President.

MR. RAMA. Madam President, Commissioner Padilla

would like to make his comments. MR. NOLLEDO. Point of information. Madam

President.

MR. PADILLA. Madam President, I wish to invite

attention that Section 5 of the 1935 Constitution states THE PRESIDENT. Commissioner Nolledo is recog-

the following: “Universities established by the State nized.

shall enjoy academic freedom.” This provision was ex-

 143

MR. NOLLEDO. Thank you. Madam President. Romulo, be enjoyed only teachers. In view of this

opinion, the Supreme Court made an obiter. So there is

With regard to the cases cited by Commissioner no established rule that academic freedom is enjoyed by

Sarmiento where the Supreme Court ruled that students students, and this Commission will be justified in

enjoy academic freedom, it was stated by the Supreme making it a categorical statement that students also

Court that academic freedom is enjoyed by students in enjoy academic freedom. If we really love the students,

the form of an obiter dictum. The statement was not then let us manifest by overt act our love for them not

decisive of the cases mentioned. I have read the cases in by mere omission. Let us manifest it by an express

their original copies and I am very sure of this. That is statement that academic freedom is likewise enjoyed by

why the committee is justified in providing that aca- them. I think the students will be grateful to the

demic freedom is likewise enjoyed by students because Members of the Commission for making that statement

the pronouncement of the Philippine Supreme Court is

only in the form of an obiter dictum. So, with due emphatic.

respect to Commissioner Monsod, I recommend very

strongly that we should be emphatic by saying that Thank you, Madam President.

academic freedom is also enjoyed by students.

MR. RAMA. Thank you.

In my interpellations of the members of the commit-

tee, I suggested that academic freedom as defined by Commissioner Aquino would like to be recognized.

many authorities, including the late Dr. Carlos P.

 144

MS. AQUINO. Madam President. Academic freedom when defined to mean the freedom

of intellectual inquiry is basic to intellectual growth

THE PRESIDENT. Commissioner Aquino is recog- and development. However, we should likewise be aware

nized. that academic freedom is subject to manipulation. It

can be used and disguised by institutions to peddle an

MS. AQUINO. I would concede to the fact that the ideology, a sectarian thought or a professed dogma.

principle of academic freedom belonging to the institu- Likewise, educators or professors could use and abuse

tion, to the parents and to the students as well, is not academic freedom for their, own ends. They occupy

yet well established. It is not well established in law such a persuasive position in the classroom that the

neither in jurisprudence. Precisely, there is the historical impressionable minds of the students when stunted

imperative now to define it decisively in the Constitu- effectively could amount to no less than dwarfed

thoughts. Dwarfism is hardly productive for growth. I

would rather that we be very definitive in protecting the

436 academic freedom of the students. There is only a hair-

line difference between learning and persuasion,

between indoctrination and assimilation and it is

TUESDAY, SEPTEMBER 9, 1986 necessary for us to develop in the students the con-

sciousness and the use of their critical faculties to avoid

the possibility of orthodoxy or standardized thought in

tion. However, there is one thing that is very definite. education.

 145

FR. BERNAS. What I would like to know is that

MR. RAMA. Madam President, I ask that Commis- when we assert, it is fairly clear on what the contents of

sioner Bemas be recognized. academic freedom for educational institutions are or

there is an abundant literature on the content of aca-

THE PRESIDENT. Commissioner Bemas is recog- demic freedom for faculty. When the Commissioner

nized. asserts the academic freedom of students, what precisely

are the contents of this concept?

FR. BERNAS. Madam President, I have just a few

questions to be addressed to the committee. Is it the MR. GASCON. If the Commissioner would recall, we

intention of the committee to fix the meaning of reasserted that when we speak of academic freedom

academic freedom, whether it is for institutions or for which is accrued to scholars, we first make the assertion

faculty members or for students? that students should also be acknowledged as scholars

in the educational institution in search for knowledge

MR. GASCON. The intention is to clarify what is and truth. Hence, they should be accorded this basic

already understood. According to jurisprudence, when right to academic freedom which is, first, the basic right

we speak of academic freedom for educational institu- to inquire; second, it is their right to search and publish

tions, it includes the academic freedom of teachers and whatever they have researched. However, what hap-

students. That was made clear during our period of pened during the dictatorship of Mr. Marcos was that

interpellations.
 146

this constitutional provision on academic freedom to

educational institutions was also made good use of but MR. GASCON. Yes.

the right of students to form organizations and student

councils, to run publications and to express their views FR. BERNAS. That means no new concepts are being

and opinions was repressed. When we speak of students’ followed?

academic freedom, this basic right of the student to

organize student councils, to run a publication and to MR. GASCON. When we were in conference, the

express their views and opinions should also be reas- Commissioner was asking if academic freedom meant

serted because this freedom was repressed during the that the student has the right not to attend his classes

dictatorship of Mr. Marcos. when he is so required. That is not what it means. It is

very clear that what we want is to reassert the position

So, we would like to assert and make it clear that that there is genuinely student academic freedom. For

the basic right of the citizen outside the school is not example, when we speak of the right to organize, we say

lost when he enters the gate of the university. that it is already in the Bill of Rights and this is also

further mentioned in the Labor Code. We also reasserted

FR. BERNAS. Therefore, do I take it right that when that in our Article on Social Justice. We have reasserted

the Commissioner says that students have academic the basic right of workers to organization although it is

freedom, all he is saying is that their constitutional already in the Bill of Rights, just as much as we provide

rights as found in the Bill of Rights should be respected that in the Article on Social Justice.

even if they are in school?

 147

I think we should also give much to the students who, be a confusion of ends and means here. We are not

up to this point in time, do not even have genuine

campus organizations or student councils so that they TUESDAY, SEPTEMBER 9, 1986

will be provided and accorded their basic constitutional

rights. 437

FR. BERNAS. In other words, as with other rights, talking of vague concepts of academic freedom. Essen-

when we assert the academic freedom of students or tially, academic freedom is defined as the freedom of

faculty members, this allows for a weighing of values intellectual inquiry. That is first and foremost. All the

whenever there is conflict? other rights that are appurtenant thereto are supportive

of such freedom, like the right to organize and parti-

MR. GASCON. Yes. cipate in the policy-making bodies of the institution.

But the thrust of academic freedom, as it is funda-

MS. AQUINO. Madam President. mentally understood, is the right of the student to learn,

and the freedom of the student to be protected from

THE PRESIDENT. Commissioner Aquino is recog- conversion or indoctrination.

nized.

MS. AQUINO. I would volunteer to assist the com-

mittee in streamlining the concept because there might